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[ "FIRST SECTION CASE OF KOLOMIYETS v. RUSSIA (Application no. 76835/01) JUDGMENT STRASBOURG 22 February 2007 FINAL 22/05/2007 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 Kolomiyets v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL.", "Loucaides,MrsN. Vajić,MrA. Kovler,MrsE. Steiner,MrS.E. Jebens,MrG.", "Malinverni, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 1 February 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 76835/01) 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 two Russian nationals, Ms Svetlana Yevgenyevna Kolomiyets and Ms Galina Nikolayevna Kolomiyets (“the applicants”), on 1 June 2001. 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 25 May 2005 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 applicants were born in 1970 and 1946 respectively and live in the town of Kireyevsk of the Tula Region.", "They are relatives. 5. On 23 October 1992 the second applicant lodged an action against her former husband, claiming division of their marital property, including a country house. 6. On 29 December 1993 the Kireyevskiy District Court of the Tula Region ordered the equitable distribution of property.", "The judgment was quashed on 26 April 1994 and the case was remitted for a fresh examination. 7. On 14 June 1994 the Kireyevskiy District Court transferred the case to the Tsentralniy District Court and on 10 July 1995 the Tsentralniy District Court partly accepted the action. On 16 May 1996 the Tula Regional Court quashed the judgment and remitted the case for a fresh examination. 8.", "On 10 January 1997 the first applicant entered the proceedings in the capacity of a co-plaintiff. In September 1998 the applicants' amended their claim. 9. According to the Government, after September 1998 the District Court listed several hearings which were adjourned because the defendant defaulted and the District Court had to summons additional witnesses. 10.", "In 1999 the applicants complained to the Judicial Department of the Supreme Court of the Russian Federation and the Tula Regional Judicial Qualification Board about the excessive length of the proceedings. On 13 April 1999 the Tula Regional Judicial Qualifications Board informed the applicants that the excessive length had been caused by the complexity of the case, a large amount of cases pending before the court and the parties' failure to attend hearings. The Board also noted that the presiding judge had been asked to observe the time-limits. 11. On 4 December 2000 the Presidium of the Tula Regional Court, by way of a supervisory review, quashed the decision of 14 June 1994 and transferred the case back to the Kireyevskiy District Court for further examination.", "12. On 25 December 2000 the Kireyevskiy District Court received the case-file. On the same day the applicants asked for a stay in the proceedings because they had complained about the decision of 4 December 2000 to the Supreme Court of the Russian Federation. The proceedings were resumed in February 2001 after the Supreme Court had refused to quash the decision of 4 December 2000. 13.", "By a decision of 18 December 2001 the Kireyevskiy District Court severed the applicants' claims concerning the common household and decided to examine them in a separate set of the proceedings. On 3 April 2002 the District Court dismissed those claims. The judgment was not appealed against and became final on 14 April 2002. 14. On 23 July 2002 the Kireyevskiy District Court examined the remaining claims and partly accepted the applicants' action.", "The Tula Regional Court quashed the judgment in the part concerning the division of the country house and remitted the case for a new examination on 14 November 2002. 15. The Kireyevskiy District Court fixed a preparatory hearing for 17 March 2003. Of the six hearings listed between 1 April 2003 and 28 April 2004, four hearings were adjourned because the defendant did not attend and two were adjourned upon the applicants' requests awaiting the outcome of the related proceedings. 16.", "On 30 April 2004 the District Court discovered that the defendant had died on 17 April 2004. The proceedings were stayed for determination of a successor. The Kireyevskiy District Court resumed the proceedings on 1 April 2005 as the defendant's daughter, Ms K., entered the proceedings on his behalf. 17. On 25 April 2005 the District Court asked Ms K. to provide certain evidence related to the inheritance procedure.", "The District Court set the time-limit until 15 June 2005. 18. The proceedings were stayed again on 23 June 2005 because the Kireyevskiy District Court had discovered certain deficiencies in inheritance documents provided by Ms K. 19. On 28 November 2005 the District Court resumed the proceedings and ordered an expert study. The expert fees were to be paid by the Federal Treasury.", "The decision of 28 November 2005 was upheld on appeal, subject to certain amendments. 20. The case-file was sent to the experts on 16 January 2006. In March 2006 the experts asked the Kireyevskiy District Court for additional materials. On 15 March 2006 the District Court provided the experts with the necessary documents.", "21. It appears that the proceedings are at present pending before the Kireyevskiy District Court. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF EXCESSIVE LENGTH OF THE PROCEEDINGS 22. The applicants complained that the length of the proceedings was incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 23.", "The period to be taken into consideration began on 5 May 1998, when the Convention entered into force in respect of Russia. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The proceedings in question have not yet ended. They have thus lasted so far for more than eight years and eight months. A. Admissibility 24.", "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 25.", "The Government argued that the proceedings were complex as the subject-matter of the claim had concerned personal relationships and the domestic courts had had to be particularly sensitive. Delays had been caused by the applicants' frequent amendments to their claims, the death of the defendant and the necessity to identify a successor. Another delay resulted from the need to obtain an expert opinion. 26. The applicants maintained their claims.", "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 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). 28. The Court agrees that the proceedings at issue were complex as they required examination of voluminous documents and expert studies.", "However, the Court cannot accept that the complexity of the case, taken on its own, was such as to justify the overall length of the proceedings. 29. As concerns the applicant's conduct, the Court is not convinced by the Government's argument that the applicants should be held responsible for amending their claims. It has been the Court's constant approach that an applicant cannot be blamed for taking full advantage of the resources afforded by national law in the defence of his interests (see, mutatis mutandis, Yağcı and Sargın v. Turkey, judgment of 8 June 1995, Series A no. 319‑A, § 66).", "30. The Court, however, observes substantial periods of inactivity, for which the Government have not submitted any satisfactory explanation, are attributable to the domestic courts. In particular, the Court finds it striking that it took the domestic authorities more than six years to determine the court competent to examine the applicants' case (see paragraphs 7 and 11 above). The Court is not called upon to determine the reasons for that delay because the principle responsibility for it rests ultimately with the State (see, among other authorities, Löffler v. Austria, no. 30546/96, § 57, 3 October 2000).", "Furthermore, the Court observes that the proceedings in the present case are still pending before the first-instance court and that the Government did not provide any explanation as to the District Court's failure to render the judgment. 31. Having examined all the material submitted to it and having regard to the overall length of the proceedings, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE TRANSFER OF JURISDICTION 32. The applicants complained under Article 6 of the Convention that on 4 December 2000 the Presidium of the Tula Regional Court had unlawfully quashed the decision of 14 June 1994. 33. The Court observes that on 4 December 2000 the Presidium of the Tula Regional Court quashed a procedural decision of 14 June 1994 by which the applicants' claim had been sent to the Tsentralniy District Court for an examination. By the decision of 4 December 2000 the case was returned to the Kiryevskiy District Court.", "34. The Court observes that the decisions of 14 June 1994 and 4 December 2000 concerned determination of the territorial jurisdiction of the domestic courts in examination of the applicants' claim. They did not determine, either finally or provisionally, the applicants' civil rights and obligations (see Fedotova v. Russia (dec.), no. 73225/01, 1 April 2004). The Court therefore concludes that the applicants' complaint about the procedural decision of 4 December 2000 as such is outside the scope of Article 6 of the Convention (see, e.g., Verlagsgruppe News GmbH v. Austria (dec.), no.", "62763/00, 16 January 2003; Wiot v. France (dec.), no. 43722/98, 15 March 2001; Apis a.s. v. Slovakia (dec.), no. 39754/98, 13 January 2000). 35. 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.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 36. Invoking Article 8 of the Convention and Article 1 of Protocol No. 1, the applicants finally complained that they had sustained pecuniary damage and that their health had deteriorated during the proceedings, that certain employees of the Kireyevskiy District Court were relatives of the employees of the Tula town council and that the defendant had sold the country house. 37.", "Having regard to all the material in its possession, 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 this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. 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.” 39.", "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”. 40. The Court observes that on 8 September 2005 the applicants were invited to submit by 10 November 2005 quantified claims for just satisfaction. No claims were received within the time allowed. Accordingly, the Court considers that there is no call to award the applicants any sum on that account.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the proceedings in the applicants' case; 3. Holds that there is no call to award the applicants just satisfaction. Done in English, and notified in writing on 22 February 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos RozakisRegistrarPresident" ]

[ "SECOND SECTION CASE OF VARNAS v. LITHUANIA (Application no. 42615/06) JUDGMENT STRASBOURG 9 July 2013 FINAL 09/12/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Varnas v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Danutė Jočienė,Peer Lorenzen,Dragoljub Popović,Işıl Karakaş,Nebojša Vučinić,Paulo Pinto de Albuquerque, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 18 June 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "42615/06) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr Tomas Varnas (“the applicant”), on 17 October 2006. 2. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė. 3. The applicant alleged that the length of his pre-trial detention had been unreasonable.", "He also complained that unjustified restrictions had been imposed on family visits while he had been held in detention on remand. 4. On 1 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 1975. He is currently serving a prison sentence in Vilnius. A. The applicant’s arrest, detention and conviction in the first criminal case 6.", "On 10 March 2004 the applicant was arrested on suspicion of belonging to a criminal association (nusikalstamas susivienijimas), led by a certain D.S., who had died during the pre-trial investigation. He was also suspected of having stolen three high value cars. On the same day the Vilnius City First District Court ordered the applicant’s detention for three months. On 1 April 2004 the Vilnius Regional Court upheld the decision. The courts observed that the applicant was suspected of a very serious crime: belonging to a criminal association since 2001.", "The charges against him were based on concrete evidence, and there was a risk that if he were not detained he might continue his criminal activities. He also had a prior conviction for disorderly conduct (chuliganizmas), for which he had already served a sentence. Therefore, his participation in the pre-trial investigation could be guaranteed only if he were remanded in custody. The applicant remained in custody in the Lukiškės Remand Prison. 7.", "On 31 May 2004 the Vilnius City First District Court extended the applicant’s detention by three months, upholding the above reasons and adding that the crimes with which the applicant was charged had been committed over a long period of time. The court also considered that if the applicant were released pending trial, he could obstruct the investigation, influence the victims and witnesses, and contact other suspects, who were being searched for at that time. On 1 July 2004 the Vilnius Regional Court dismissed an appeal lodged by the applicant. 8. On 6 September 2004 the Vilnius Regional Court extended the applicant’s pre-trial detention.", "This time, the court observed that from 2002 to 2004 the applicant had been a member of a highly sophisticated criminal organisation and had taken part in the theft of seventeen high value cars in Lithuania. The cars had belonged to citizens of Lithuania, Germany, Latvia, Estonia, the Netherlands and Spain. The crimes had been committed in a “business” manner (versliškai), with a high level of conspiracy; each member of the criminal organisation had had a designated role. The criminal association had thereby caused serious loss to Lithuanian and foreign citizens. The court also noted that, in the meantime, many investigative measures – expert examinations, questioning of witnesses – had been carried out.", "Accordingly, there was no reason to consider that the pre-trial investigation had been delayed. On 9 December 2004 the Vilnius Regional Court upheld the decision for all the same reasons, but dismissed Vilnius City First District Court’s argument about the risk of the applicant obstructing the investigation by influencing witnesses as abstract and not based on specific facts. On the other hand, the Regional Court noted that the criminal case was especially complex, and that since the last decision to prolong the detention, further investigative actions had been carried out. 9. Once the pre-trial investigation in the first criminal case was concluded in February 2005, the final notice of suspicion encompassed participation in a criminal association, committing or attempting to commit thefts of high value property (some twenty counts), destruction of property, acquiring high value property by criminal means and the theft of documents.", "10. On 9 March 2005 the Vilnius Regional Court extended the detention on remand for another three months. On 30 March 2005 the Court of Appeal dismissed an appeal lodged by the applicant, on the ground that he might try to hinder the investigation and influence witnesses. The appellate court observed that, although the case had been forwarded to the trial court for examination, the applicant might try to influence the witnesses who had yet to testify in court. The court also took into account the seriousness of the accusations against the applicant and his prior conviction.", "11. On 31 May 2005 the Vilnius Regional Court sanctioned another three months of detention on the grounds that the applicant was accused of very serious crimes and that he had a prior conviction. The court also emphasised that the case had just been transferred to the trial court and the evidence had not yet been examined in a courtroom. Likewise, all the co-accused had not yet been questioned and most of the victims had not yet testified. Accordingly, there was a risk that the applicant, if released from detention, might influence those persons.", "On 22 June 2005 the Court of Appeal upheld that decision, noting that Article 242 of the Code of Criminal Procedure obliged the court to examine evidence – that is, to question the accused, the victims and witnesses – in the courtroom irrespective of whether they had been questioned during the pre-trial investigation. Taking into account that those actions had not yet been carried out and the applicant’s and his co-accused’s tactics of denying their involvement in the crimes, there was a risk that the co-accused might attempt to influence other participants in the proceedings if they were released from detention. Furthermore, the applicant had been charged with belonging to a criminal association and committing nearly twenty serious crimes. Given the scale and duration of the criminal activity, and the applicant’s active role in it, it was reasonable to believe that there were sound reasons for holding him in custody pending trial. 12.", "On 9 September 2005 the Vilnius Regional Court again sanctioned the extension of the detention for three months. 13. The applicant appealed, arguing that the accusations against him had not been proved in the courtroom and thus there were no grounds to hold that he had committed any crimes. Such a conclusion by the courts that had sanctioned his detention was in breach of his right to presumption of innocence. Neither was there any concrete proof that he could exert influence on other parties to the criminal proceedings if released.", "Lastly, the applicant maintained that he had already been detained for eighteen months. For ten of those months he had been denied any contact with his wife and family. Although at the time of appeal, his wife could visit him for one and a half hours a month under the supervision of a guard, because of the applicant’s status as a person charged with a crime (as opposed to a convicted person), conjugal visits were not allowed. Thus his status had placed him in a significantly worse situation than that of a convicted criminal. The applicant argued that long-term visits were physiologically necessary for both him and his wife, and that the lack thereof amounted to torture and was a method of extracting a confession.", "14. On 26 September 2005 the Court of Appeal held that the reasons for detention indicated in the earlier decisions continued to exist. The appellate court observed that, although it was true that the detention had been lengthy and had already lasted more than eighteen months, the maximum statutory limit of eighteen months was only applicable to detention during pre-trial investigations. This case had been forwarded to the trial court for examination; the law did not provide for any limitation on the length of detention once a case was being examined by the trial court. As to the applicant’s argument about breach of the presumption of innocence, the courts’ findings that the applicant had been implicated in the criminal acts were not the conclusion as to his guilt, but merely statements that there was sufficient evidence that he had committed the crimes for the purpose of deciding whether he should be held in detention.", "The question of his criminal liability was to be decided later, when the trial court adopted an accusatory or exculpatory judgment. Lastly, given the seriousness of the charges against the applicant, the public interest prevailed against his right to presumption of innocence and his other rights. It followed that the applicant’s argument that he had been discriminated against compared with a convicted person as regards the right to receive conjugal visits was unfounded. 15. On 5 December 2005 the Vilnius Regional Court extended the detention by another three months, upholding the argument that the applicant had been charged with very serious and systematically committed crimes.", "By that time, most of the suspects and witnesses had already been questioned in court, but since it was not the case for the applicant and his co-accused, the reason to continue the pre-trial detention remained. On 22 December 2005 the Court of Appeal dismissed an appeal lodged by the applicant, also observing that the case was extremely complex. 16. On 27 February 2006 the Vilnius Regional Court extended the detention for another three months, observing that the essential reasons for maintaining the applicant in detention had not changed. In addition, there had been a break in the proceedings because a photographic expert report had been ordered and the results were not due until the beginning of March.", "For that reason, the next court hearing had been scheduled for 17 March. The applicant’s arguments that by depriving him of long-term visits the investigators had been seeking to extract his confession were not founded, because the applicant had testified only when he had so wished – he had been silent during pre-trial investigation, but had chosen to testify only in court, and only after the witnesses had testified. Lastly, there was a risk that the applicant, if released pending trial, would go into hiding to avoid a possible heavy sentence. On 15 March 2006 the Court of Appeal upheld the decision. 17.", "In June 2006 the applicant lodged another appeal against his detention. He argued that conditions in the Lukiškės Remand Prison, where he had already been detained for twenty-seven months, were atrocious. The cells were overcrowded, lacked proper ventilation and were full of smoke. The inmates could leave the cell for only one hour a day. They ate, slept, washed and used the toilet in the same cell.", "The applicant reiterated his argument that being deprived of long-term visits and thus physical contact with his wife for the entire twenty-seven months had had a mental and physical impact on his well-being. Such a measure was inhuman, degrading and in breach of Article 3 of the Convention. Lastly, the applicant argued that his pre-trial detention amounted to a violation of Article 5 of the Convention. He considered that at that stage of the criminal proceedings, a milder remand measure could have been imposed on him. 18.", "While acknowledging that the applicant had already been detained “for a long time”, on 9 June 2006 the Vilnius Regional Court extended his detention on the grounds that the crimes were particularly serious and the applicant risked a heavy sentence, so might go into hiding if released. It also noted that the criminal case was particularly complex – there were seven co-accused, some twenty criminal episodes, and more than eighty people to be questioned. The court also noted that the applicant’s complaint about inappropriate conditions of detention did not affect the validity of holding him in custody. The court decision stipulated that it could be appealed against to the Court of Appeal. The applicant states that he did not appeal against this decision because he was convicted ten days later.", "19. By a judgment of 19 June 2006, the Vilnius Regional Court found the applicant guilty of belonging to a criminal association, numerous counts of theft of high value property by participating in an organised group, destruction of property and theft of documents. The applicant was sentenced to twelve years’ of deprivation of liberty, the sentence to be served in a correctional home (pataisos namuose, see paragraphs 59-61 below). The time that the applicant had spent in pre-trial detention from 10 March 2004 was subsumed by the sentence. The court also ordered the continued detention of the applicant until the judgment came into force or he started serving his sentence.", "Six of the applicant’s co-accused were also convicted. Their sentences ranged from a fine to twelve years’ imprisonment, depending on their roles in the criminal association and the crimes they had committed. 20. The applicant, one of the co-accused and the prosecutor lodged appeals against their convictions. 21.", "On 1 September 2006 – prior to the coming into force of the trial court’s judgment – following a request by the applicant, pursuant to Article 315 of the Code of Criminal Procedure (see paragraph 70 below), he was transferred to the Kybartai Correctional Home to start serving his prison sentence. 22. On 15 October 2008 the Court of Appeal acquitted the applicant in respect of the charge of belonging to a criminal association, but upheld the conviction as regards the remaining charges. The applicant’s conviction was amended to six years’ imprisonment. 23.", "By a ruling of 26 May 2009, the Supreme Court referred the case for re-examination, having found that the appellate court had not taken into account all the circumstances of the case and the existing case-law, and thus had not properly reasoned its conclusion as to the applicant’s belonging to a criminal association. 24. By a ruling of 24 April 2012 the Court of Appeal upheld the Vilnius Regional Court’s verdict of 19 June 2006, with minor amendments. B. The applicant’s detention and conviction in the second criminal case 25.", "While the applicant was still serving his sentence in the first criminal case in the Kybartai Correctional Home, the prosecutors of the Vilnius region were carrying out a pre-trial investigation in another criminal case which also concerned two counts of theft of high value cars, in 2001 and 2002, committed by an organised group. There were six persons in that group: the applicant, four persons other than those who were charged in the first set of criminal proceedings, and their leader, the same D.S. as the one charged in the first set of criminal proceedings (see paragraph 6 above). Having questioned and charged the applicant, on 15 June 2007 the prosecutor asked the court to have the applicant transferred from the Kybartai Correctional Home to the Lukiškes Remand Prison for a period of two months, so that they could finish the pre-trial investigation and the applicant could read the voluminous pre-trial investigation materials. 26.", "On the same day, pursuant to a detention order issued by the Vilnius City First District Court, the applicant was moved back to the Lukiškės Remand Prison. The court’s grounds for holding the applicant in pre-trial detention in the second set of criminal proceedings were the abundance of evidence implicating him in the car thefts, the high level of complicity of the criminal group, and the possibility of a heavy sentence on top of his conviction of 19 June 2006 for similar crimes. The court therefore considered that the applicant, if released, might obstruct the investigation by hiding from the investigators or the court, or commit further crimes. The court also emphasised that pre-trial detention was being imposed on the applicant in that second criminal case, irrespective of the fact that he was serving a custodial sentence for offences in the first criminal case. 27.", "The applicant appealed, arguing that he had been placed in pre-trial detention as early as 10 March 2004 and that the length of his detention had been out of proportion. However, by a ruling of 5 July 2007 the Vilnius Regional Court dismissed the appeal, upholding the lower court’s reasoning and pointing out that in the second criminal case the applicant had been remanded in custody only as of 15 June 2007. 28. On 3 July 2007 the applicant asked the court to terminate the pre-trial investigation, arguing that it had been excessively long. He had been questioned as early as 10 March 2004, and the pre-trial investigation had been continuing ever since.", "29. On 17 July 2007 the Vilnius City First District Court dismissed the applicant’s request, finding that he had attempted to mislead the court by claiming that he had first been questioned as a suspect in this criminal case on 10 March 2004. He had in fact been questioned in a different criminal case, for which he had been convicted and was serving a custodial sentence. In the second criminal case the applicant had been questioned for the first time only on 15 June 2007, but had refused to reply. The court also held that there had been no delays in the pre-trial investigation.", "Lastly, the court observed that pursuant to Article 215 § 1 of the Code of Criminal Procedure, a suspect could challenge the length of the pre-trial investigation if the investigation had not been terminated within six months, which was not yet the case for the applicant. The applicant’s appeal was dismissed on 25 July 2007. 30. On 14 August 2007 the Vilnius Regional Court extended the applicant’s pre-trial detention for a further three months on the grounds that there was sufficient evidence against him and he had a prior conviction for hooliganism. The court likewise observed that on 19 June 2006 the applicant had been convicted of numerous serious crimes committed by a criminal association, for which heavy deprivation of liberty sanctions applied.", "For the court, taking into account that the latter judgment had not yet come into force, it was reasonable to believe that the risk of a heavy prison sentence would give the applicant an incentive to hide from the court to avoid criminal liability. Thus the applicant’s pre-trial detention was in order to guarantee his participation in the proceedings. On 30 August 2007 the Court of Appeal dismissed an appeal lodged by the applicant, upholding the lower court’s reasons and emphasising that the applicant was suspected of belonging to a criminal association, which was one of the most dangerous forms of criminal complicity. 31. On 13 November 2007 the Vilnius Regional Court extended the applicant’s detention by another three months on the same grounds as before, reiterating that his twelve-year custodial sentence for the first set of criminal offences could give him a strong incentive to flee from justice if released pending his conviction of 19 June 2006.", "On 13 December 2007 the Court of Appeal upheld that decision. 32. Following a decision by the Vilnius Regional Court of 12 February 2008, the applicant’s pre-trial detention was not extended further. Having heard the applicant, his lawyer and the prosecutor, the court held that the applicant’s conviction in the first set of criminal proceedings and, in particular, the fact that in those proceedings he had also been detained pending appeal, was sufficient guarantee that he would not flee from justice in the second set of criminal proceedings. The Government state that immediately after this decision the applicant was transferred back to the Kybartai Correctional Home to continue serving his sentence.", "33. Following a judgment by the Vilnius Regional Court of 29 September 2008, the applicant was convicted on two counts of theft of high value property, committed by an organised group. He was sentenced to five years’ imprisonment. 34. On 23 February 2009 the conviction, with minor corrections, was upheld by the Court of Appeal.", "On 20 October 2009 the Supreme Court dismissed an appeal on points of law lodged by the applicant. 35. The Government submitted that on 22 May 2009 the applicant had been transferred from the Kybartai Correctional Home to the Vilnius Second Correctional Home (Vilniaus antrieji pataisos namai), where he is currently serving his sentence. C. Visits 36. On 28 March 2006 the applicant wrote to the administration of the Lukiškės Remand Prison requesting a conjugal visit.", "He noted that during the pre-trial investigation, he had already been detained for more than two years, during which time he had had no physical contact with his wife. The applicant was quite open and wrote that “because of the lack of sexual contact” he was being tortured physically and mentally, and was in a state of constant stress. The same day, the remand prison administration told the applicant that detainees who had not been convicted had no right to conjugal visits. 37. The applicant’s wife repeated her husband’s request on 4 April 2004.", "In a letter of 14 April 2004, the prison administration informed her that pursuant to Article 16 of the Law on Pre-trial Detention (Kardomojo kalinimo istatymas) and the Internal Regulations for Pre-trial Detention Facilities (Kardomojo kalinimo vietų vidaus tvarkos taisyklės) (see paragraphs 57-58 below) a detainee could receive visits from his relatives or other persons for up to two hours, provided that the prosecutor or court so permitted. The visits were to be held in a designated room in the detention facility, under the officers’ constant supervision. Only persons whom a court had sentenced to deprivation of liberty in a correctional home (pataisos namuose) had a right to conjugal visits. Accordingly, the Lukiškės Remand Prison administration dismissed the request. 38.", "On 7 April 2006 the applicant challenged the above decision before the administrative courts. He emphasised that he had been held at the Lukiškės Remand Prison for more than two years without his wife being able to see him for a conjugal visit. The applicant maintained that the lack of conjugal visits for such a long time amounted to physical and mental torture, prohibited by Article 3 of the Convention, and was contributing to the destruction of his marriage and the deterioration of his family life. He also claimed that he had been punished without conviction, because the situation he was in could be compared to a criminal punishment. 39.", "In support of her husband’s cause, the applicant’s wife also wrote to the court, stating that the absence of conjugal visits for more than two years had caused her “psychological and physical torture, was damaging her body and mind and destroying her marriage and her family’s well-being”. She asked the court to order the Lukiškės Remand Prison administration to grant the applicant conjugal visits, which “were necessary for her physical and psychological survival”. 40. The applicant maintained his complaint at a hearing before the Vilnius Regional Administrative Court. He asked the court to annul the Lukiškės Remand Prison administration’s decision, irrespective of the fact that on 19 June 2006 he had already been convicted by a judgment which had not yet entered into force.", "The applicant also asked the court to disregard the fact that one month earlier he had asked to be transferred to a correctional home before the accusatory judgment came into force. On those last two points, the applicant noted that he did not know when he would be transferred to a correctional home from the Lukiškės Remand Prison. He also did not rule out the possibility that he might be returned to that remand prison in the future. 41. On 11 September 2006 the Vilnius Regional Administrative Court dismissed the applicant’s complaint.", "The court observed that only convicted detainees had a right to conjugal visits; when the applicant had submitted his request for a conjugal visit to the Lukiškės Remand Prison, he had not been convicted, therefore he had no such right. The court also found that the refusal to grant a conjugal visit could not amount to torture, because torture or cruel behaviour necessitated active actions. The Lukiškės Remand Prison administration had merely followed the letter of the law. 42. It appears that the applicant did not appeal against the decision.", "By then he was already serving his sentence in the Kybartai Correctional Home, where he could receive conjugal visits. 43. On 27 August 2007, when the applicant had again been placed in the Lukiškės Remand Prison in connection with the second set of criminal proceedings, he again requested a conjugal visit. 44. On 11 September 2007 the remand prison administration informed the applicant that he did not have the right to conjugal visits because he was again being detained on suspicion of having committed offences which were still under investigation and his status was that of a remand prisoner.", "45. On 23 October 2007 the applicant lodged a complaint with the Vilnius Regional Administrative Court, submitting that on 1 September 2006 he had been transferred to the Kybartai Correctional Home to serve his sentence, where he had received conjugal visits. Nevertheless, on 15 June 2007 he had been returned to the Lukiškės Remand Prison to be detained pending investigation. Observing that the Lukiškės Remand Prison had refused his request on the basis of the Law on Pre-trial Detention, the applicant argued that the aim of pre-trial detention measures should be not to punish or correct a person, but to guarantee that the proceedings run smoothly. He reiterated his argument about his entitlement to the presumption of innocence and argued that as a convicted person, he had been entitled to conjugal visits under the Code on the Execution of Sentences.", "For the applicant, the provisions of the Law on Pre-trial Detention barring detainees from receiving conjugal visits were in breach of Article 3 of the Convention. On the merits of his complaint, the applicant added that the absence of physical contact with his wife had been causing him physical and mental suffering. He also considered that “in a caring society (sąmoningoje visuomenėje) physical contact (a sexual relationship – lytiniai santykiai) was as normal an element of life as sleeping and eating”. 46. In December 2007 the applicant asked the Vilnius Regional Court to return him to the Kybartai Correctional Home.", "However, on 18 December 2007 the court turned down the request on the ground that pending the outcome of the second set of criminal proceedings, the applicant’s legal status was that of a pre-trial detainee and, in accordance with the Law on Pre-trial Detention, detainees had to be held in a pre-trial detention facility. Accordingly, it was not possible to transfer the applicant from the Lukiškės Remand Prison to the Kybartai Correctional Home. 47. By a decision of 17 January 2008 the Vilnius Regional Court ordered the Lukiškės Remand Prison administration to re-examine the applicant’s request. The court held that by treating the applicant only as a detainee and thus disregarding his conviction, the prison administration had interpreted the domestic law too narrowly and had ignored the applicant’s dual status.", "The court also noted that under point 124.2 of the Internal Regulations for Pre-trial Detention Facilities convicts who, like the applicant, had been transferred to a pre-trial detention facility from a prison pending pre-trial investigation in another case could receive conjugal visits. However, according to rule 125, if the detention facility had no specific premises for such visits, a long-term visit could be exchanged for two short- term visits. The Lukiškės Remand Prison administration was thus ordered to explain why point 124.2 of the regulations did not apply to the applicant and to answer the question whether there were facilities for conjugal visits at that institution. 48. The applicant appealed, emphasising his dual status, being discriminated against and reiterating his urge for conjugal visits, which, at that time, appeared to be a question of “life or death”.", "He objected strongly to the application of rule 125, insisting that it was his right to choose whether to exchange a long-term (conjugal) visit for two short-term visits. The applicant also mentioned that at the Kybartai Correctional Home he had been assigned to the medium security level (see paragraph 60 below) and thus could receive one short and one long visit once every three months. The applicant’s wife asked the court to grant her husband’s request. The Lukiškės Remand Prison administration maintained that the applicant’s status as a detainee was more serious than that of a convicted person. Accordingly, he had no right to a conjugal visit.", "It also submitted that the remand establishment in any case had no premises for conjugal visits. 49. On 21 November 2008 the Supreme Administrative Court reversed the lower court’s decision and dismissed the applicant’s complaint. The court observed that the applicant had been transferred to the Lukiškės Remand Prison as a suspect in the second criminal case in which his pre-trial detention had been ordered, and thus the Law on Pre-trial Detention was applicable to him. As to his dual status, the court held: “A person who has been sentenced to deprivation of liberty, but in respect of whom the accusatory judgment has not yet entered into force, and (or) a convicted person in respect of whom pre-trial detention has been ordered [in another case] while they were serving a liberty deprivation sentence, have the same procedural status as those in pre-trial detention.", "Were it otherwise, a person who had committed no crime and had not been convicted, but had been placed in pre-trial detention, would be in a significantly worse situation than a person who had already been sentenced to deprivation of liberty and in respect of whom pre-trial detention had been ordered in another criminal case. In the instant case, the chamber finds it important that [the applicant], as a suspect in [the second] criminal case, has been placed in pre-trial detention and, for precisely that reason, he is held in the Lukiškės Remand Prison. On that ground, the entire set of pre-trial detention rules is applied to the applicant. Those regulations restrict some of his rights and freedoms with the aim of achieving a timely and unobstructed investigation of the criminal case by eliminating any possibility to convey information to other persons, which could obstruct the objective investigation of the case. Accordingly, the fact that the applicant has been convicted in another criminal case has no bearing on the resolution of this case.” 50.", "The court also noted that any measure applied to a person held in custody could restrict his constitutional rights, and that the restriction on conjugal visits did not amount to torture, inhuman or degrading treatment. Neither was the measure in breach of the applicant’s right to respect for his family life. Lastly, even though in accordance with point 124 of the Internal Regulations for Pre-trial Detention Facilities, convicts who, like the applicant, had been transferred to a pre-trial detention facility from a prison pending pre-trial investigation in another case could receive conjugal visits, this right could be substituted by short visits if the remand institution did not have facilities for a conjugal visit. The argument that the Lukiškės Remand Prison did not have specific premises for conjugal visits had not been overruled. Therefore, even assuming that the applicant had a right to a conjugal visit, such visits were impossible from a practical point of view.", "51. It transpires from the record of the Lukiškės Remand Prison that during the applicant’s detention pending investigation in the first criminal case, from 10 March 2004 until his conviction on 19 June 2006, he received thirty-two short-term visits from his wife and parents (of which seventeen visits from his wife). He also received five short-term visits from his wife and parents before being transferred to the Kybartai Correctional Home, namely between 19 June and 1 September 2006. 52. The Lukiškės Remand Prison record also shows that from 1 September 2006, when the applicant was transferred to the Kybartai Correctional Home to serve his prison sentence, to 15 June 2007, when he was detained as a suspect in the second criminal case, the applicant received seven long-term visits from his wife and six short-term visits from his wife and a friend.", "53. During the applicant’s pre-trial detention in the second criminal case, namely from 15 June 2007 to 12 February 2008, he received four short-term visits from his wife. 54. Following the decision by the Vilnius Regional Court of 12 February 2008, whereby the applicant’s detention in the second criminal case was not extended and he was transferred back to the Kybartai Correctional Home, and until 22 May 2009, when he was transferred to the Vilnius Second Correction Home, the applicant received twelve long-term visits from his wife and seven short-term visits from his wife and friends. Once in the Vilnius Second Correctional Home, until 28 September 2010, the day the Government submitted their observations on the admissibility and merits of the case, the applicant’s wife had paid him thirteen long-term visits, and his friends and wife had paid him two short visits.", "D. Conditions of detention 55. In May 2006 the applicant submitted complaints to the authorities about the conditions of his detention in Lukiškės Remand Prison. 56. On 16 June 2006, having verified the facts, the Emergency Situations Centre at the Ministry of Health acknowledged that the cells at the remand facility were overcrowded. The health care specialists noted that at the time of their inspection the applicant was being held with three other persons in a cell measuring 7.94 square meters, although they did not specify for how long that had been going on.", "His cell was clean, but needed some painting and floor repairs. The ventilation met applicable standards. It transpires from the documents in the case-file before the Court that the applicant did not institute administrative court proceedings as regards the conditions of his detention in the Lukiškės Remand Prison. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "Legal provisions for pre-trial detention 57. The Code of Criminal Procedure (hereinafter – the CCP) provides that the purpose of holding a suspect, an accused or a convict in remand is to secure his or her presence during the proceedings, and ensure that the pre-trial investigation, judicial hearing and execution of the judgment may be carried out unhindered, as well as to prevent him or her from committing further criminal acts (Article 119). The grounds for ordering pre-trial detention are a reasonable assumption that a suspect might: 1) abscond or go into hiding from the investigators or court; 2) obstruct the course of the proceedings; 3) commit new crimes (Article 122). Article 2 of the Law on Pre-trial Detention (Kardomojo kalinimo įstatymas) lists the reasons for pre-trial detention that are analogous to those mentioned in Article 119 of the CCP. 58.", "Under Article 16 of the Law on Pre-trial Detention, the administration of the relevant remand institution may allow detainees visits of up to two hours by family members or other persons, but permission has to be sanctioned by the investigation officer or the court. Visits must comply with the procedure established by the Internal Regulations for Pre-trial Detention Facilities (Kardomojo kalinimo vietų vidaus tvarkos taisyklės), which read as follows: XV. DETAINEES’ VISITS FROM FAMILY MEMBERS AND OTHER PERSONS ORDER “123. As established by Article 16 of the Law on Pre-Trial Detention of the Republic of Lithuania, the remand prison administration shall allow untried prisoners visits from relatives or other persons only with the consent of the officer investigating the case or the court that has jurisdiction in the case. The same rules shall be applied to convicts who have been transferred from correctional institutions owing to prosecution in another case if a remand measure - detention - has been ordered.", "The length of the visit as provided by law shall be up to two hours... 124. (...) the number of short-term visits, which last up to four hours, and long-term visits, which last up to forty-eight hours, is limited to persons sentenced to deprivation of liberty and: [...] 124.2. who have been ... transferred to such facilities from a correctional institution (iš pataisos darbų įstaigų) in order that investigations may be carried out in criminal cases or while criminal cases are pending in court (atlikti tardymo veiksmų baudžiamosiose bylose arba dėl bylų nagrinėjimo teisme); ... 125. Provided that the pre-trial detention institution has no facility for long-term visits, the convicts listed in point 124 of the Internal Regulations shall receive two short-term visits instead. In order that [those convicts] may maintain a social connection with their family or relatives, the director of the remand prison may grant them supplementary visits... [...] 129. Anyone who visits a detainee shall apply for a visit in writing... to the Reception Office ... of the remand prison.", "He or she shall hand the request to an employee of the Office together with the written consent of the officer investigating the case or the court that has jurisdiction in the case. [...] The Office employee, if satisfied that the visit may be granted, shall inform the director of the remand prison or his deputy, who shall indicate the duration of the visit on the written request for a visit. If he refuses to give permission for a visit, the reasons for refusal shall be indicated. [...] The consent of the officer investigating the case or the court that has jurisdiction in the case to grant permission for a visit is valid for only one visit. Only two adults at a time may visit a detainee or convict; they may be accompanied by the minor children of the detainee or convict.", "[...] 131. A hall shall be equipped for the short-term visits of detainees and convicts by their relatives or other persons in the premises of the remand prison. A table measuring not less than 120 cm in width and not more than 70 cm high shall be installed in the hall. One end of the table shall stand against the wall of the hall. The table shall be fitted with a wooden partition from the tabletop to the ground.", "Wire netting shall be installed along the length of the table from the ceiling to within 20 cm of the tabletop. Visitors may pass food to the detainees or convicts through the space between the table and the wire netting. 132. On the side of the table where the detainees and convicts must sit, cabins measuring not more than 80 cm by 1 metre shall be installed. All the cabins shall be separated from the ground to the ceiling by partitions.", "... 133. On the side of the table where the visitors must sit, a sufficient number of chairs or stools shall be placed. Cabins shall not be installed on that side of the table. ... 134. A table for the officers supervising the visits shall be placed at the end of the visit table.", "The officers shall have an alarm connection to the control room. ... 138. The officers supervising the visit shall constantly observe the visitors, detainees and convicts. During the visit the visitors, detainees and convicts are not allowed to give each other notes and other objects (except for food).” B. Legal provisions for the service of liberty deprivation sentences 59.", "Once an adult has been sentenced to deprivation of liberty, he or she is transferred to one of three types of correctional facilities: a correctional home (pataisos namai), a prison (kalėjimas), or an open colony (atviroji kolonija) to serve the sentence (Article 62 of the Code on the Execution of Sentences (Bausmių vykdymo kodeksas), hereinafter – the CES). 60. According to Articles 71 to 76 and 94 of the CES, once a convict has been placed in a correctional home (pataisos namuose), in the applicant’s case Kybartai Correctional Home, he or she has a right to short-term (up to four hours) and long-term (up to forty-eight hours, including conjugal) visits. The frequency at which convicted inmates can receive visitors is determined according to the inmate’s security level. Those assigned to the lowest security level are allowed one short-term visit by their friends and/or relatives and one long-term visit by a spouse at least once every two months.", "Convicted inmates assigned to medium-security level, are allowed one short-term visit and one long-term visit once every three months. Lastly, inmates assigned to the highest security level are not allowed any visits, but may make one telephone call every two months. Short visits take place in the presence of a guard, but the guard does not listen to the conversation between the visitor and the inmate. Long-term visits take place in designated premises within the correctional institution. 61.", "Persons who have committed very serious crimes serve their sentence in prisons (kalėjimuose). Those assigned to medium security category can receive up to one short-term visit every two months. Upon permission of the prison administration, such short visit may be exchanged for a visit by the spouse, held in designated premises and without the guards’ supervision (Articles 83 and 85 of the CES). Persons convicted of negligent crimes and serving their sentence in open colonies (atvirosiose kolonijose) can receive unrestricted visits and even home leave for up to two days once a week (Articles 85 and 91 of the CES). C. Legal provisions for civil remedies for unlawful pre-trial detention 62.", "Article 6.272 § 1 of the Civil Code allows a civil claim for pecuniary and non-pecuniary damage in the event of unlawful actions by the investigating authorities or a court in the context of a criminal case. The provision envisages compensation for an unlawful conviction, arrest or detention, or for the application of unlawful procedural measures of enforcement, or an unlawful administrative penalty. 63. On 1 October 2003 the Supreme Court ruled in the civil case of M.B., who claimed to have suffered non-pecuniary damage as a result of his allegedly unlawful pre-trial detention. The Vilnius Regional Court and the Court of Appeal had earlier dismissed M.B.’s claim on the ground that a civil court had no jurisdiction to assess the lawfulness of M.B.’s detention in a criminal case.", "The two courts also argued that M.B. did not have a right to damages, since the orders to detain him had not been recognised as unlawful and quashed in his criminal case. 64. The Supreme Court dismissed that reasoning and noted that the Convention, in particular Article 5 § 3 thereof, could be directly applied by the Lithuanian courts and that the lower courts, when deciding M.B.’s claim for damages, had failed to examine whether the length of his detention had been reasonable, regardless of the fact that the court orders to detain him had not been quashed in criminal proceedings. The case was returned to the Court of Appeal for fresh examination.", "65. By a ruling of 20 September 2004, the Court of Appeal granted M.B.’s civil claim in part and awarded him 7,000 Lithuanian litai (LTL) (approximately 2,027 euros (EUR)) for the damage he suffered as a result of his detention, the length of which those courts found to be unreasonable. 66. On 28 February 2005 the Supreme Court upheld the above ruling. 67.", "In another civil case for damages, by a decision of 7 June 2005 the Vilnius Regional Court acknowledged that criminal proceedings, where the plaintiff had been accused of improper accounting and ordered not to leave her place of residence, were delayed because of investigators’ inaction and thus lasted unjustifiably long. The plaintiff therefore had a right to a compensation, in accordance with Article 6.272 § 1 of the Civil Code. Given that the obligation not to leave her place of residence was the mildest procedural measure and it had been applied for only for eighteen months, the court awarded the plaintiff LTL 3,000 (approximately EUR 870) in compensation for non-pecuniary damage. 68. On 5 June 2007 the Court of Appeal decided yet another civil case where it found that the plaintiff had been detained for ten months without a proper legal basis.", "The court also established that the pre-trial investigation in the plaintiff’s case had been unjustifiably long because no investigative actions had been performed for four years. Having taken into account the Court’s practice in similar cases and relying on Article 6.272 of the Civil Code, the court awarded the plaintiff a sum of LTL 20,000 (approximately EUR 5,800) for non-pecuniary damage. D. Other relevant legal provisions 69. The Criminal Code at the relevant time provided that a person who steals high value property of another or steals another’s property by participating in an organised group may be punished by imprisonment for a term of up to eight years (Article 178 § 3). A person who participates in the activities of a criminal association risks imprisonment for a term of from three to fifteen years (Article 249 § 1).", "A criminal association (nusikalstamas susivienijimas) is the most serious form of complicity, described as one where three or more persons are linked by permanent mutual relations and a division of roles or tasks in order to commit a joint criminal act – one or several serious or grave crimes (Article 25 §§ 1 and 4). Another form of criminal complicity recognised by the Criminal Code is an organised group (organizuota grupė), which is where two or more persons agree, at any stage of the commission of a criminal act, to commit several crimes or one serious or grave crime, with each member of the group performing a certain task or role (Article 25 § 3). 70. The Code of Criminal Procedure provides that in the event that an appeal is lodged against a judgment, the execution of the judgment will be stayed. Nonetheless, the judgment may be put into effect if the convicted person submits a written request to start serving his sentence pending the outcome of his appeal (Article 315).", "III. RELEVANT INTERNATIONAL LAW AND PRACTICE A. International Covenant on Civil and Political Rights 71. Article 10 of the International Covenant on Civil and Political Rights, by which Lithuania has been bound since 20 November 1991, reads as follows: Article 10 “1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.", "2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons; ...” 72. General Comment No. 21 on Article 10 of the International Covenant on Civil and Political Rights was adopted by the United Nations Human Rights Committee on 10 April 1992. In so far as relevant it reads: “4.", "Treating all persons deprived of their liberty with humanity and with respect for their dignity is a fundamental and universally applicable rule. Consequently, the application of this rule, as a minimum, cannot be dependent on the material resources available in the State party... 9. Article 10, paragraph 2 (a), provides for the segregation, save in exceptional circumstances, of accused persons from convicted ones. Such segregation is required in order to emphasize their status as unconvicted persons who at the same time enjoy the right to be presumed innocent as stated in article 14, paragraph 2. ...” B.", "Council of Europe documents 73. The European Prison Rules are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided by the Rules in their legislation and policies and to ensure wide dissemination of the Rules to their judicial authorities and to prison staff and inmates. 1. The 1987 European Prison Rules 74.", "The 1987 European Prison Rules (Recommendation No. R (87) 3) were adopted by the Committee of Ministers of the Council of Europe on 12 February 1987. Part V of the Rules contain a number of basic principles concerning untried prisoners, including the following: “91. Without prejudice to legal rules for the protection of individual liberty or prescribing the procedure to be observed in respect of untried prisoners, these prisoners, who are presumed to be innocent until they are found guilty, shall be ... treated without restrictions other than those necessary for the penal procedure and the security of the institution. 92.", "1. Untried prisoners shall be allowed to inform their families of their detention immediately and given all reasonable facilities for communication with family and friends and persons with whom it is in their legitimate interest to enter into contact. 2. They shall also be allowed to receive visits from them ... subject only to such restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution. ...” 2.", "The 2006 European Prison Rules 75. On 11 January 2006 the Committee of Ministers of the Council of Europe adopted a new version of the European Prison Rules (Recommendation Rec(2006)2). It noted that the 1987 Rules “needed to be substantively revised and updated in order to reflect the developments which ha[d] occurred in penal policy, sentencing practice and the overall management of prisons in Europe”. 76. The 2006 Rules contain, inter alia, the following principles concerning untried prisoners: “95.1.", "The regime for untried prisoners may not be influenced by the possibility that they may be convicted of a criminal offence in the future. ... 95.3. In dealing with untried prisoners prison authorities shall be guided by the rules that apply to all prisoners and allow untried prisoners to participate in various activities for which these rules provide. ... 99. Unless there is a specific prohibition for a specified period by a judicial authority in an individual case, untried prisoners: a. shall receive visits and be allowed to communicate with family and other persons in the same way as convicted prisoners; b. may receive additional visits and have additional access to other forms of communication; ...” 77.", "The Committee for the Prevention of Torture and Inhuman or Degrading Treatment (hereinafter referred to as “the CPT”) visited Lithuania from 14 to 18 June 2010. The relevant parts of its report read as follows: “c. contact with the outside world ... 60. The CPT recalls that it is essential that all prisoners, including remand prisoners, are able to maintain good contact with the outside world. Granting of contact (via mail, visits or telephone) should therefore be the rule, and restrictions the exception.", "Any restriction should be based on the requirements of the investigation or security considerations and be applied for a limited period; in accordance with the proportionality principle, the restriction should also be the least severe possible (a supervision measure should, for example, be chosen rather than a prohibition). ... The CPT recommends that the relevant legislation be amended in order to establish the principle that remand prisoners are entitled to receive visits and make telephone calls. Any restriction on a given remand prisoner’s right to receive visits or make telephone calls should comply with the above criteria (i.e. be based on the requirements of the investigation or security considerations, be applied for a limited period, and be the least severe possible).", "Moreover, the restrictive approach to visits and phone calls taken by the prosecutorial/judicial authorities must be reviewed without waiting for the adoption of new legislation or regulations.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 78. The applicant complained that the length of his pre-trial detention had been excessive. He relied on Article 5 of the Convention, which, in so far as relevant, reads as follows: “1. Everyone has the right to liberty and security of person.", "No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (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; ... 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. The parties’ submissions 1. The applicant 79.", "The applicant argued that the length of his pre-trial detention had been disproportionate. He observed that he had been detained from 10 March 2004 and implied that the Lithuanian courts had repeatedly extended his pre-trial detention without a valid reason. 2. The Government 80. At the outset the Government maintained that, in his complaints before the domestic courts, the applicant had not explicitly complained about the length of his pre-trial detention, failing to invoke Article 5 of the Convention.", "Furthermore, whilst conceding that the applicant had appealed against “almost all” of the court decisions to remand him in custody in the first criminal case, the Government argued that the applicant had had a possibility to seek redress on the basis of the civil remedy provided for in Article 6.272 of the Civil Code. In that connection, they also referred to the domestic courts’ case-law, in which the Supreme Court had explicitly established that the unreasonable length of pre-trial detention could constitute its unlawfulness, and that the courts, in deciding on the unlawfulness of detention, should also examine the matter in the light of Article 5 § 3 requirements (see paragraphs 62–66 above). The Government pointed out that in that civil case, the Court of Appeal had awarded compensation for non-pecuniary damage caused by unreasonably long detention. However, given that in the instant case the applicant had not availed himself of that opportunity, his complaint was inadmissible for failure to exhaust domestic remedies. 81.", "Alternatively, the Government submitted that the complaint was unfounded. As regards the first criminal case, the period of the applicant’s detention to be taken into account for the purposes of Article 5 § 3 of the Convention amounted to about two years and three months. That being so, the applicant’s detention had not been in breach of the above provision. The courts had given relevant and sufficient reasons for holding the applicant in custody. The Government recalled that the applicant had initially been suspected of only three counts of theft of high value property and of belonging to a criminal association.", "However, he had later been charged with further multiple episodes of theft and other criminal acts. The case was very complex and the case-file voluminous. The severity of the sentence that might have been imposed on the applicant also had to be taken into account, as well as the fact that the applicant had refused to give evidence and had denied the charges brought against him. 82. The applicant’s detention in the second criminal case, while his sentence in the first criminal case had been pending, had lasted some eight months.", "However, the applicant’s detention had been justified by the reasonable suspicion that he might obstruct the proceedings or attempt to abscond and the authorities’ obligation to expedite the second criminal proceedings speedily. The mere fact that the applicant had at the same time been serving a liberty deprivation sentence following his conviction in the first criminal case neither ensured his participation in the second criminal proceedings (as the first criminal case had been pending before the Court of Appeal and a final judgment had not yet been given), nor prevented the investigation from being obstructed. Moreover, similarly to the first criminal case, the charges in the second one concerned crimes committed by an organised group, for which the applicant was facing a severe penalty. B. The Court’s assessment 83.", "Turning to the applicant’s complaint that his pre-trial detention had been too lengthy, the Court observes that in the instant case the applicant’s pre-trial detention was broken into two periods. Although in both sets of criminal proceedings the applicant was charged with somewhat similar crimes, they concerned different criminal associations and, except for D.S. and the applicant, different persons were accused and convicted. The Court also recalls that a period of an applicant’s detention should be regarded as a “continuing situation” as long as the detention has been effected in the same type of detention facility in substantially similar conditions (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 78, 10 January 2012).", "Short periods of absence during which the applicant is taken out of the facility for interviews or other procedural acts would have no influence on the continuous nature of the detention. However, the applicant’s release or transfer to a different type of detention regime, both within and outside the facility, would put an end to the “continuing situation”. Complaints about the conditions of detention must be lodged within six months of the end of the situation complained about or, if there is an available domestic remedy, of the final decision in the process of exhaustion (see, most recently, Yefimenko v. Russia, no. 152/04, § 72, 12 February 2013). 84.", "As regards the circumstances of the instant case, the applicant has been twice held at the Lukiškės Remand Prison. In between, for some nine months he served his liberty deprivation sentence in the Kybartai Correctional Home, in conditions he clearly saw as more favourable than those in remand prison. Accordingly, the Court will treat the applicant’s pre-trial detention as two separate non-consecutive periods (also see, by converse implication, Solmaz v. Turkey, no. 27561/02, §§ 34-37, 16 January 2007, and, more recently, Idalov v. Russia [GC], no. 5826/03, § 125, 22 May 2012) and deal with each of them in turn.", "1. The applicant’s pre-trial detention in the first set of criminal proceedings 85. The Court notes that in the first criminal case the applicant’s pre-trial detention began after his arrest on 10 March 2004. He was then detained, for the purposes of Article 5 § 3 of the Convention, until his conviction by the Vilnius Regional Court on 19 June 2006. From that date the applicant was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a), and therefore that period of his detention falls outside the scope of Article 5 § 3 (see Kudła v. Poland [GC], no.", "30210/96, § 104, ECHR 2000‑XI). 86. The Government have argued that the applicant failed to lodge a civil claim for damages as regards the reasonableness of holding him in detention. On this point the Court reiterates the Convention organs’ constant case-law to the effect that an action for damages cannot be seen as an effective remedy in respect of complaints under Article 5 § 3 about the excessive length of time spent on remand (see Woukam Moudefo v. France, no. 10868/84, Commission decision of 21 January 1987, DR 51, p. 73; Egue v. France, no.", "11256/84, Commission decision of 5 September 1988, DR 57, p. 60; Tomasi v. France, judgment of 27 August 1992, § 79, Series A no. 241‑A; Yağcı and Sargın v. Turkey, nos. 16419/90 and 16426/90, Commission decision of 10 July 1991, DR 71, p. 253, and judgment of 8 June 1995, § 44, Series A no. 319‑A; Haris v. Slovakia, no. 14893/02, § 38, 6 September 2007).", "In all those cases, the main basis for such a decision was that the right to obtain release and the right to obtain compensation for a deprivation of liberty in breach of Article 5 are two separate rights, enshrined respectively in paragraphs 4 and 5 of that Article. That distinction is also relevant for the purposes of Article 35 § 1. This line of reasoning is of particular importance where the person concerned is still in custody. In such circumstances, the only remedy which may be considered sufficient and adequate is one which is capable of leading to a binding decision for his or her release (see Gavril Yosifov v. Bulgaria, no. 74012/01, § 40, 6 November 2008).", "87. However, in a number of other cases the Court has accepted that, if the impugned detention has come to an end, an action for damages, which is capable of leading to a declaration that the detention was unlawful or in breach of Article 5 § 1 and to a consequent award of compensation, may be an effective remedy in respect of complaints under this provision (ibid., § 41). 88. In the Court’s view, where the applicant’s complaint of a violation of Article 5 § 1 of the Convention is mainly based on the alleged unlawfulness of his or her detention under domestic law, and where this detention has come to an end, an action capable of leading to a declaration that it was unlawful and to a consequent award of compensation is an effective remedy which needs to be exhausted, if its practicability has been convincingly established (see Kolevi v. Bulgaria (dec.), no. 1108/02, 4 December 2007).", "The Court considers that the same holds true as regards the complaint under Article 5 § 3 of the Convention. To hold otherwise would mean to duplicate the domestic process with proceedings before the Court, which would be hardly compatible with its subsidiary character (see, most recently, Demir v. Turkey (dec.), no. 51770/07, 16 October 2012, §§ 22–24). 89. The Court notes that Article 6.272 of the Civil Code provides for a possibility to obtain compensation for pre-trial detention that had been unreasonably long.", "It also takes cognisance of the Lithuanian courts’ case-law on this matter, which both recognised that the person’s detention had been too lengthy, and awarded pecuniary compensation for his suffering. Accordingly, and whilst acknowledging that the civil law avenue was not an effective remedy to be exhausted while the applicant was still in pre-trial detention, given that that remedy could not have allowed his release pending trial, the Court is of the view that the applicant had to use that avenue once he had been convicted by the trial court on 19 June 2006, or at least after he had started serving his sentence on 1 September 2006, but, in any case, before lodging his application with the Court on 17 October 2006. Given that the applicant did not do so, the Court holds that his complaint under Article 5 § 3 about the reasonableness of the length of his pre-trial detention in the first set of criminal proceedings must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies. 2. The applicant’s detention in the second set of criminal proceedings 90.", "The Court notes that on 15 June 2007 the Vilnius Regional Court ordered the applicant’s pre-trial detention in the second set of criminal proceedings. The Court nevertheless observes that his detention following that date fell within the ambit of Article 5 § 1 (a) of the Convention, given that he was already serving the prison sentence imposed by the Vilnius Regional Court which had convicted him in the first set of criminal proceedings on 19 June 2006 (see paragraph 19 above). The Court further considers in this connection that there is nothing in the case-file giving reason to doubt that this was a lawful detention of the applicant after conviction by a competent court. Accordingly, this part of the complaint must be dismissed as manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 91. The applicant complained that his inability to receive conjugal visits from his wife during his pre-trial detention had caused him intolerable mental and physical suffering and had threatened to break up his family. He was also displeased that his entitlement in that respect had been more restricted than that of a convicted person serving a prison sentence. He alleged that Article 3 of the Convention had been breached. 92.", "The Court considers that the essence of the applicant’s grievances appears to be the allegedly unjustified difference in treatment as concerns family visits between himself, as a person in pre-trial detention, and a convicted prisoner serving a prison sentence. It therefore finds that the applicant’s complaints fall to be examined under Articles 8 and 14 of the Convention, which, in so far as relevant, provide as follows: Article 8 “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.” 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.” A. Arguments of the parties 1.", "The applicant 93. The applicant complained about the refusal of his requests for conjugal visits while he had been detained in the Lukiškės Remand Prison. He emphasised that he had been in pre-trial detention for a significantly long time, totalling more than three years. Irrespective of such length of detention, under the domestic law a person being held on remand was not entitled to conjugal visits. For the applicant, it was remarkable that Lithuanian law allowed persons who had already been convicted, even those sentenced for the most serious crimes, such a right.", "In his view, a person in pre-trial detention should be entitled to the presumption of innocence until proved guilty by a court. However, in his case the opposite was true: his guilt had not yet been established, but he had had to face much more serious restrictions than those already convicted, and thus had been punished without conviction. 94. The applicant further maintained that the lack of conjugal visits had amounted to torture. The conjugal visits were indispensable for maintaining a social and physical connection between him and his wife.", "Moreover, sexual contact was vital for his mental and physical health. The lack of conjugal visits had also denied the applicant the possibility of having children and risked breaking up his marriage and the loss of family happiness. Lastly, the applicant was also dissatisfied with the Lukiškės Remand Prison administration’s excuse that the facility had no premises for long-term visits. 2. The Government 95.", "The Government maintained, at the outset, that in his complaints of alleged torture and punishment without conviction before the domestic courts, the applicant had invoked only relevant domestic-law provisions. However, he had not relied on Article 14 of the Convention in conjunction with Article 8, and had thus failed to complain of alleged discrimination and interference with respect for his family life. 96. They also doubted whether the applicant could be considered a victim of a Convention violation, given that he had been deprived of conjugal visits only for a very short time. As to the first period of his pre-trial detention, the applicant had first asked the domestic authorities for a conjugal visit only on 28 March 2006.", "Soon thereafter, he had been convicted and, on 1 September 2006, had been transferred to the Kybartai Correctional Home to serve his sentence, where he had been able to receive conjugal visits. As to the second period of his pre-trial detention, the applicant had submitted a request for a conjugal visit on 27 August 2007. Having been returned to the Kybartai Correctional Home some six months later, that is to say on 12 February 2008, the applicant had again been able to receive conjugal visits. 97. Should the Court find the applicant’s complaint admissible, the Government wished to point out that pre-trial detention by its nature entailed some restrictions on a prisoner’s private and family life and that some measure of control over a prisoner’s contacts with the outside world was called for.", "Thus it was not, in itself, incompatible with the Convention (see Van der Ven v. the Netherlands, no. 50901/99, § 68, ECHR 2003‑II). Even presuming that there had been an interference with the applicant’s right to respect for his family life, that interference met Article 8 § 2 requirements. 98. Firstly, the interference was “prescribed by law” (see paragraphs 57-61 above), in accordance with which convicted persons were allowed two types of visits from their relatives and other persons: short-term visits lasting up to four hours, and long-term visits, including conjugal ones, lasting up to forty-eight hours, which took place in special separate premises without surveillance by the prison administration.", "As to the persons in pre-trial detention, they may receive visits from their family and relatives lasting up to two hours. 99. The Government considered that there was a legitimate aim for distinguishing between the two above-mentioned categories of persons who are deprived of their liberty. The grounds for imposing pre-trial detention were to ensure that the proceedings until the case was examined by a court and the judgment was pronounced were unhindered. The authorities had to make sure that the suspect would not obstruct the investigation by tarnishing the evidence and intimidating witnesses, and that the circumstances of the criminal acts were identified.", "The restrictions were also necessary so that the suspect would not abscond or commit further crimes. That was why a suspect’s contacts with the outside world could be subjected to more or less severe restrictions, depending on the complexity of the case and the seriousness of the criminal acts under investigation. As to a convicted person, the circumstances of his criminal case and the evidence given by witnesses were to be considered as established once the court judgment had entered into force. Thus a convict could enjoy less restricted visits from his family, as an objective and unhindered investigation was no longer at stake. Accordingly, given the different purposes of pre-trial detention and deprivation of liberty after conviction, the fact that national law provided for different entitlement for remand prisoners and convicts was objectively and reasonably justifiable.", "100. The Government also advanced an argument that it was usually presumed that the length of pre-trial detention would be relatively short. Therefore, even where a suspect’s contacts with the outside world were restricted, it should not amount to a violation of his right to respect for family life, where it lasted for a relatively short period of time. 101. On the matter of alleged discrimination, the Government also submitted that, had the applicant been transferred to the remand facility but continued to enjoy the rights guaranteed to convicts, that would have put those who were being held on remand but with no previous convictions, or who were not serving sentences imposed in other criminal cases, in an unfair position.", "Such a risk of reverse discrimination had been confirmed by the Supreme Administrative Court on 21 November 2008 (see paragraph 49 above). 102. The Government considered that the restriction on the applicant to receive conjugal visits had been proportionate and had not prevented him from having regular contact with his family. On this point they noted that during his pre-trial detention in the first criminal case, the applicant had received thirty-seven short-term visits from his wife and parents. During the period of some eight months when the applicant had been detained on suspicion that he had been involved in a second criminal case, his wife had paid him four short-term visits.", "For the Government, it was also important to observe that the applicant had not requested more short-term visits while in pre-trial detention. 103. Lastly, concerning the conjugal visits, it was worth noting that once the applicant had been convicted in the first set of criminal proceedings and started serving his sentence on 1 September 2006 in the Kybartai Correctional Home, he had received seven long-term visits from his wife until being returned to the remand facility on 15 June 2007. Furthermore, after the decision of 12 February 2008 not to extend his detention, the applicant had been transferred back to the Kybartai Correctional Home where he had continued to enjoy the right to conjugal visits. The Government were therefore certain that the restrictions on the applicant’s right to respect for his family life in accordance with his status as a remand prisoner were proportionate to the purpose of the detention, namely to ensure that the course of the criminal proceedings was not obstructed.", "104. In sum, the Government concluded that there were no indications that the applicant had suffered any discrimination in the enjoyment of his Convention rights. Accordingly, there had been no violation of Article 14, read in conjunction with Article 8 of the Convention. B. The Court’s assessment 1.", "Admissibility 105. The Court considers that the issue of exhaustion of domestic remedies as regards the applicant’s alleged failure to properly complain about interference with his family life (paragraph 95 above) is closely linked to the merits of his plea that he, as a remand detainee, had been discriminated against because of the absence of conjugal visits. Thus, the Court finds it necessary to join the Government’s objection to the merits. The Court further considers that this part of the application 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.", "Therefore, it should be declared admissible. 2. Merits 106. The Court reiterates that Article 14 of the Convention protects individuals in similar situations from being treated differently without justification in the enjoyment of their Convention rights and freedoms. This provision has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols.", "However, the application of Article 14 does not presuppose a breach of one or more such provisions and to this extent it is autonomous. For Article 14 to become applicable, it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols (see Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 38, ECHR 2004‑VIII). 107. The Court will therefore establish whether the facts of the case fall within the ambit of Article 8, whether there has been a difference in the treatment of the applicant and, if so, whether such different treatment was justified under Article 14 of the Convention.", "(a) Whether the facts of the case fall under Articles 8 and 14 of the Convention 108. The Court has held that detention, like any other measure depriving a person of his or her liberty, entails inherent limitations on private and family life. However, it is an essential part of a detainee’s right to respect for family life that the authorities enable him or, if need be, assist him, in maintaining contact with his close family. Such restrictions as limitations imposed on the number of family visits, supervision over those visits and, if so justified by the nature of the offence, subjection of a detainee to a special prison regime or special visit arrangements constitute an interference with his rights under Article 8 but are not, by themselves, in breach of that provision (see, among other authorities, Bogusław Krawczak v. Poland, no. 24205/06, §§ 107-108, 31 May 2011; Moiseyev v. Russia, no.", "62936/00, § 246, 9 October 2008; and Trosin v. Ukraine, no. 39758/05, § 39, 23 February 2012). 109. The Court has also had occasion to establish that more than half of the Contracting States allow for conjugal visits for prisoners (subject to a variety of different restrictions). However, while the Court has expressed its approval for the evolution in several European countries towards conjugal visits, it has not so far interpreted the Convention as requiring Contracting States to make provision for such visits.", "Accordingly, this is an area in which the Contracting States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals (see Dickson v. the United Kingdom [GC], no. 44362/04, § 81, ECHR 2007‑V). 110. In the present case the Court observes that the applicant and his wife lodged numerous complaints with the Lukiškės Remand Prison authorities and the criminal and administrative courts, claiming that the absence of conjugal visits was discriminatory and also detrimental to their physical and mental health and could have done irreparable harm to their family (see paragraphs 13, 17, 36, 38–40, 45 and 48 above). The Court thus accepts that the prohibition of conjugal visits which the applicant had complained of comes within the ambit of Article 8 (see, by contrast, Epners-Gefners v. Latvia, no.", "37862/02, § 65, 29 May 2012). It therefore rejects the Government’s objection as to failure to exhaust domestic remedies. The Court accordingly concludes that Article 14 of the Convention, in conjunction with Article 8, is applicable in the present case (see E.B. v. France [GC], no. 43546/02, § 47, 22 January 2008).", "(b) Whether the applicant had an “other status” and whether his position was analogous to convicted prisoners 111. Remanding a person in custody may be regarded as placing the individual in a distinct legal situation, which even though it may be imposed involuntarily and generally for a temporary period, is inextricably bound up with the individual’s personal circumstances and existence. The Court is therefore satisfied – and it has not been disputed between the parties – that by the fact of being remanded in custody the applicant fell within the notion of “other status” within the meaning of Article 14 of the Convention (see, mutatis mutandis, Shelley v. the United Kingdom (dec.), no. 23800/06, 4 January 2008, and Clift v. the United Kingdom, no. 7205/07, §§ 55-63, 13 July 2010).", "112. In order for an issue to arise under Article 14, there must be a difference in the treatment of persons in analogous, or relevantly similar, situations (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007–IV). The requirement to demonstrate an “analogous position” does not mean that the comparator groups must be identical. The fact that the applicant’s situation is not fully analogous to that of convicted prisoners and that there are differences between the various groups based on the purpose of their deprivation of liberty does not preclude the application of Article 14.", "It must be shown that, having regard to the particular nature of his complaint, the applicant was in a relevantly similar situation to others who were treated differently (see Clift, cited above, § 66). 113. The applicant’s complaints under examination concern the legal provisions regulating his visiting rights in remand prison. They thus relate to issues which are of relevance to all persons detained in prisons, as they determine the scope of the restrictions on their private and family life which are inherent in the deprivation of liberty, regardless of the ground on which they are based. 114.", "The Court therefore considers that, as regards the facts at issue, the applicant can claim to have been in a relevantly similar situation to a convicted person (see Laduna v. Slovakia, no. 31827/02, § 58, ECHR 2011). (c) Whether the difference in treatment was justified 115. A difference in treatment is discriminatory if it has no objective and reasonable justification, in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment.", "The scope of this margin will vary according to the circumstances, the subject matter and the background. The Court has accepted that, in principle, a wide margin of appreciation applies in questions of prisoners and penal policy (see Clift, cited above, § 73, with further references). 116. As to the facts of the present case, the Court notes that the applicant was detained pending trial from 10 March 2004 to 19 June 2006. During that period and until on 1 September 2006 when he was transferred to the Kybartai Correctional Home to serve his sentence, the regime of his detention was governed by the Law on Pre-trial Detention and the Internal Regulations for Pre-trial Detention Facilities.", "Under that legislation, all accused persons detained during investigations and judicial proceedings were entitled to receive visitors for up to two hours on short-term visits. 117. During the same period, the statutory duration of short-term visits for convicts serving their sentence in a correctional home and assigned to medium security level, as the applicant claimed it was in his case (see paragraph 48 above), was fixed at a maximum of four hours. In addition, a convict could receive long-term visits, including conjugal ones, lasting up to forty-eight hours once every three months, which took place on special separate premises without the surveillance of the guards. 118.", "Thus, at the relevant time, the duration of visits for a person detained pending trial, such as the applicant, was shorter (two hours) than that which the law allowed in respect of a convicted person (four hours). Above all, a person detained pending trial had no right to conjugal visits at all. Moreover, the frequency of visits and the type of contact (short-term or conjugal visits) to which convicted persons were entitled differed according to the security level of the liberty deprivation facility in which they were being held and according to that of the prisoner (paragraphs 58-61 above). In contrast, the restrictions on the visiting rights of remand prisoners were applicable in a general manner, regardless of the reasons for their detention and the related security considerations. 119.", "The Court notes the Government’s argument that the grounds for imposing pre-trial detention and thus limiting the suspect’s contacts with the outside world serve to guarantee an unhindered investigation. That being so, it also observes that Article 10 § 2 (a) of the International Covenant on Civil and Political Rights requires, inter alia, that accused persons should, save in exceptional circumstances, be subject to separate treatment appropriate to their status as unconvicted persons who enjoy the right to be presumed innocent (see paragraphs 71 and 72 above). The 1987 European Prison Rules contain an analogous rule (paragraph 74 above, point 91). Similarly, the 2006 European Prison Rules, which were adopted shortly before the applicant had requested a conjugal visit (paragraph 36 above), provide that unless there is a specific prohibition for a specified period by the judicial authority in an individual case, untried prisoners are to receive visits and be allowed to communicate with family members in the same way as convicted prisoners (see paragraph 76 above, point 99). This approach appears to be supported by the CPT in its report on visit to Lithuania, which considered that any restriction on a remand prisoner’s right to receive visits should be based on the requirements of the investigation or security considerations, be applied for a limited period and be the least severe possible (see paragraph 77 above).", "Lithuanian legislation, however, restricts remand prisoner’s visiting rights in a general manner and to a greater extent than those of convicted persons placed in a correctional home, as in the applicant’s case. In this regard the Court has already had occasion to hold that, inasmuch as it concerns particular restrictions on a detained person’s visiting rights, the aim of protecting the legitimate interests of an investigation may also be attained by other means which do not affect all detained persons regardless of whether they are actually required, such as the setting up of different categories of detention, or particular restrictions as may be required by the circumstances of an individual case (see Laduna, cited above, § 66). 120. As to the reasonableness of the justification of difference in treatment between remand detainees and convicted prisoners, the Court acknowledges that the applicant in the instant case had been charged with belonging to a criminal association and to an organised group involved in multiple car thefts. However, it also finds that the security considerations relating to any criminal family links were absent in the instant case (see Messina v. Italy (no.", "2), no. 25498/94, §§ 65-67, ECHR 2000‑X). Namely, the applicant’s wife was neither a witness nor a co-accused in the criminal cases against her husband, which removed the risk of collusion or other forms of obstructing the process of collecting evidence (see, in contrast, mutatis mutandis, Silickienė v. Lithuania, no. 20496/02, §§ 28 and 29, 10 April 2012). Nor has the Court any information to the effect that the applicant’s wife was involved in criminal activities.", "Accordingly, the Court is not persuaded that there was a particular reason to prevent the applicant from having conjugal visits with his wife (see, by contrast, Kučera v. Slovakia, no. 48666/99, § 130, 17 July 2007; Bagiński v. Poland, no. 37444/97, § 92 et seq., 11 October 2005; and Klamecki v. Poland (no. 2), no. 31583/96, § 135, 3 April 2003).", "Above all, the Court notes that in justifying the prohibition on the applicant having conjugal visits when placed in pre-trial detention, the Government, like the Lithuanian administrative courts, in essence relied on the legal norms as such, without any reference as to why those prohibitions had been necessary and justified in the applicant’s specific situation. 121. Lastly, whilst giving certain weight to the Government’s argument that during his pre-trial detention the applicant had not lost contact with his wife in view of the number of short-term visits she paid him in the Lukiškės Remand Prison, the Court cannot lose sight of the fact that especially limited physical contact appears to have been available during those short-term visits, given that the visitor and the inmate were separated by wire netting, except for a 20 cm gap so that the visitor could pass food to the inmate. The Court also considers that such limited physical interaction was further compounded by the fact that the detainee and the visitor were under the constant observation of a guard (see paragraph 58, points 131 and 138 above). As to the lack of direct contact with visitors, the Court observes that in a previous case it held that a person detained pending trial who had been physically separated from his visitors throughout his detention for three and a half years was, in the absence of any demonstrated need such as security considerations, not justified as regards the effective enjoyment of the right to one’s private and family life (see, Moiseyev, cited above, §§ 258-59, and, mutatis mutandis, Laduna, cited above, § 53).", "The Court therefore considers that the particularly long period of the applicant’s pre-trial detention (two years at the moment when the applicant had first asked for a conjugal visit) reduced his family life to a degree that could not be justified by the inherent limitations involved in detention. In this context the Court also notes that the Lukiškės Remand Prison authorities’ refusal to grant the applicant a conjugal visit had been based not only on theoretical security considerations, but equally on the lack of appropriate facilities (see paragraphs 48 and 50 above), a reason which cannot withstand the Court’s scrutiny (see paragraph 72 above, point 4). It therefore finds that by having restricted the applicant from receiving conjugal visits when detained on remand the authorities failed to provide a reasonable and objective justification for the difference in treatment and thus acted in a discriminatory manner. 122. There has therefore been a violation of Article 14 in conjunction with Article 8 of the Convention.", "123. The Court also considers that since it has found a breach of Article 14 of the Convention taken in conjunction with Article 8, it is not necessary to examine whether there has been a violation of Article 8 alone. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 124. Lastly, the applicant complained that the conditions of his pre-trial detention at the Lukiškės Remand Prison had been deplorable.", "The Court notes, however, that the applicant had not raised this issue with the Lithuanian administrative courts, which it has already acknowledged to be an effective remedy for complaints raising Article 3 issues on account of conditions of detention (see Jankauskas v. Lithuania (dec.), no. 59304/00, 16 December 2003, and Jelcovas v. Lithuania, no. 16913/04, § 76, 19 July 2011). As a result, the Court is prevented by the exhaustion rule under Article 35 § 1 from examining these parts of the applicant’s complaints, in so far as they have not been submitted to the domestic courts. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 125. 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 126. The applicant claimed 300,000 Lithuanian litas (LTL) (approximately 86,886 euros (EUR)) in respect of non-pecuniary damage. 127.", "The Government contested the above claim as unreasoned and excessive. 128. The Court, making an assessment on an equitable basis, considers it appropriate to grant EUR 6,000 to the applicant in respect of non-pecuniary damage. B. Costs and expenses 129.", "The applicant also claimed LTL 1,000 for the costs and expenses incurred before the Court, without supporting his claim with any documentation. 130. The Government contested the claim as unsubstantiated. 131. In the absence of any supporting documentation, the Court makes no award for costs and expenses.", "C. Default interest 132. 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 argument concerning exhaustion of domestic remedies in respect of the complaint about discrimination and interference with respect for family life and dismisses it; 2. Declares admissible the applicant’s complaints under Articles 8 and 14 of the Convention concerning his different treatment in pre-trial detention, and the remainder of the application inadmissible; 3.", "Holds that there has been a violation of Article 14 of the Convention in conjunction with Article 8; 4. Holds that it is not necessary to examine whether there has been a violation of Article 8 of the Convention taken alone; 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 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Lithuanian litas 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 9 July 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stanley NaismithGuido RaimondiRegistrarPresident" ]

[ "FIRST SECTION CASE OF NDIDI v. THE UNITED KINGDOM (Application no. 41215/14) JUDGMENT STRASBOURG 14 September 2017 FINAL 29/01/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ndidi v. the United Kingdom, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Linos-Alexandre Sicilianos, President,Kristina Pardalos,Ksenija Turković,Armen Harutyunyan,Pauliine Koskelo,Tim Eicke,Jovan Ilievski, judges,and Renata Degener, Deputy Section Registrar, Having deliberated in private on 11 July 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "41215/14) 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 Nigerian national, Mr Ifeanyi Chukwu Ndidi (“the applicant”), on 23 May 2014. 2. The applicant, who had been granted legal aid, was born in 1987 and lives in London. He was represented before the Court by Ms E. Cohen of Bindmans Solicitors, a lawyer practising in London. The British Government (“the Government”) were represented by their Agent, Ms M. Valchero of the Foreign and Commonwealth Office.", "3. On 19 January 2016 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The facts of the case, as submitted by the parties, may be summarised as follows.", "A. The factual background 5. The applicant and his mother entered the United Kingdom on 13 July 1989 and were granted six months’ leave to enter as visitors. Following the expiry of their leave they remained in the United Kingdom as overstayers. 6.", "The applicant’s father entered the United Kingdom in 1991. 7. The applicant’s siblings were born in the United Kingdom on 20 November 1993 and 11 January 1995. 8. On 5 June 1995 the applicant’s mother claimed asylum on undisclosed grounds.", "The applicant and his two siblings were named dependents on that claim. The Secretary of State for the Home Department refused the asylum claim on 15 April 1998. Following a reconsideration of the case in August 1999, the Secretary of State again refused the asylum claim but granted the family four years’ exceptional leave to remain in the United Kingdom. 9. In March and November 1999 the applicant, who was then twelve years old, received police cautions for offences of assault occasioning actual bodily harm and robbery.", "10. On 7 February 2003 he was convicted of robbery and assault occasioning grievous bodily harm. 11. On 21 August 2003 the applicant, his mother and his siblings were granted indefinite leave to remain in the United Kingdom. His mother and siblings have since become British citizens.", "12. On 16 December 2003 the applicant was convicted of disorderly behaviour or using threatening/abusive/insulting words likely to cause harassment, alarm or distress. He was fined GBP 50.00. 13. On 3 March 2004 he was convicted of burglary, theft and impersonating a police officer.", "He was sentenced to a community punishment order of two hundred hours. 14. On 26 November 2004 the applicant was convicted of robbery and was sentenced to three years’ detention in a Young Offenders’ Institution. 15. In or around this time the Secretary of State considered instigating deportation proceedings against the applicant.", "On 30 June 2006 he decided not to pursue such proceedings owing to the length of his residence in the United Kingdom. However, he warned him that should he come to the adverse attention of the authorities through criminal offending in the future, he could be liable to deportation. 16. In 2006 the applicant’s father was granted indefinite leave to remain in the United Kingdom. 17.", "On 11 July 2008 the applicant pleaded guilty to the supply of Class A drugs. On 20 March 2009 he was sentenced to seven years’ imprisonment. The sentencing judge addressed him in the following terms: “this case has been a copy-book example of how people in your position are able to continue to operate outside the law by the use of interchangeable street names, preying upon the most vulnerable addicts and by the indiscriminate use of fear and violence to ensure that no-one informs the police of your criminal activities ... Your evidence to the jury was that you were the main man for drugs in Swindon ... Your nickname of ‘Bruiser’ ensured that when the ‘workers’ as you called those who sold drugs on your behalf, ‘messed up’ it was your policy, to use your own words, of ‘roughing them up a little bit’.", "You told the jury, with some satisfaction, that this policy was successful ... I regard you as close to the source of supply and wholesaling to retailers in Swindon on a persistent and regular basis.” 18. The applicant’s appeal against conviction and sentence was dismissed on 19 June 2009. However, on 9 February 2010 the Court of Appeal substituted the applicant’s sentence of seven years’ imprisonment with one of seven years’ detention in a Young Offenders’ Institution. While in detention he received sixteen adjudications, which included the use of threats and abusive behaviour, disobeying lawful orders, fighting with other inmates, and attempting to commit/incite another inmate to commit assault on staff.", "19. He was released on licence on 3 March 2011. B. Automatic deportation 20. Pursuant to section 32(5) of the United Kingdom Borders Act 2007 (“the 2007 Act”), the Secretary of State was required to make a deportation order in respect of foreign criminals sentenced, inter alia, to a period of imprisonment of at least twelve months, unless one of the exceptions in section 33 – namely that removal would breach their rights under either the Refugee Convention or the European Convention on Human Rights – applied (see paragraphs 52 and 53 below).", "C. Deportation Proceedings – 6 April 2010 to 30 October 2012 21. On 6 April 2010 the Secretary of State notified the applicant of his liability to automatic deportation and asked him to submit reasons why he should not be deported. His representatives responded to that letter; however, on 2 March 2011 he was served with both a deportation order dated 23 February 2011, and a decision that section 32(5) of the 2007 Act applied (that is, he was liable to automatic deportation and removal would not breach his rights under either the Refugee Convention or the European Convention on Human Rights). 22. In a section of the decision headed “Consideration under ECHR”, the Secretary of State had regard to her obligations under Article 8 of the Convention.", "Although she accepted that the applicant had family ties in the United Kingdom with his mother, father, brother and sister, in the absence of further elements of dependency she found that these ties did not constitute family life. She did accept that he enjoyed private life in the United Kingdom but did not consider that his removal would be disproportionate to the legitimate interest of preventing disorder and crime. In particular, she noted that he had an elderly grandmother in Nigeria and as an adult he could be expected to readjust to life there. Furthermore, as English was one of the official languages of Nigeria, he would not face a language barrier on return. Finally, she had regard to the seriousness of his criminal record, the sixteen adjudications he had received while in detention, and the fact that he had been warned about the risk of reoffending in 2006.", "She therefore concluded that his deportation would not be in breach of Article 8 of the Convention. 23. The applicant appealed against this decision. In support of his appeal, he submitted a report by Dr B., a consultant forensic psychiatrist. The report indicated that he suffered from dyslexia; that he had developed Adolescent Conduct Disorder which could manifest itself in antisocial behaviour but was not inevitably associated with continued offending in adult life; and that although he presented a medium risk of reoffending, there existed a number of positive factors which would decrease the likelihood of continued criminal involvement, including his family’s abstention from criminal activity, his sustained and supportive parental relationships, his wish to improve himself, and the absence of substance misuse.", "24. On 8 June 2011 the First-tier Tribunal (IAC) allowed the applicant’s appeal on Article 8 grounds, having found that his deportation would be neither proportionate nor necessary in a democratic society. It found that the applicant did enjoy family life with his parents and younger siblings, his unfortunate history having resulted in a particular dependency on them, since he required their support to “help him to change from being a criminal offender to an employed adult and useful member of society”. In addition, it found that he had also established a private life in the United Kingdom; that he had no experience of living in Nigeria, save for a short period as a baby and a two week holiday in 2004; that he had no close relatives in, and no ties to, Nigeria; that he had indicated his remorse and given assurances that he would not offend again; and that his working and studying whilst in detention supported those assurances. 25.", "The Secretary of State was granted permission to appeal on 24 June 2011. 26. On 31 October 2011 the Upper Tribunal (IAC) found there to have been a material error of law in the decision of the First-tier Tribunal. The decision was set aside in its entirety and the case submitted for a full rehearing before the Upper Tribunal. 27.", "On 24 April 2012 the Upper Tribunal dismissed the applicant’s appeal against the deportation order. 28. The Tribunal considered the principles established by this Court in Boultif v. Switzerland, no. 54273/00, ECHR 2001‑IX, Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006‑XII and Maslov v. Austria [GC], no.", "1638/03, ECHR 2008. In its view, the single most compelling factor in the applicant’s favour was the length of his residence in the United Kingdom. It also had regard to his family ties. Although it did not accept that there was any additional element of dependency which would enable it to find the existence of family life for the purposes of Article 8 of the Convention, it nevertheless accepted that the applicant’s parents and siblings were an important part of his private life. 29.", "Balanced against his long residence and established private life, the Tribunal considered the applicant’s criminal record. It noted that he had a long history of offending, beginning at the age of twelve; that he had received fair warning from the Secretary of State in 2006 that any further offending would not be tolerated; that notwithstanding that warning and the subsequent assurances given to the Secretary of State that he was turning his life around, he was already engaged in drug dealing; that his criminal behaviour had not only continued but had also escalated; that whilst serving his most recent sentence, he had received sixteen adjudications, the majority of them for violence and disobedience; that his problems with dyslexia could not be used as an excuse to justify his poor behaviour and repeat offending; and that whilst the majority of his offending had occurred when he was a child, his most recent and most serious had occurred after he had attained his majority. 30. With regard to the issue of future offending and risk to the public, the Tribunal found it difficult to accept his assurances that he had had a genuine change of heart and no longer posed a risk to the public. He had made similar assurances when faced with deportation in 2006, and since his criminal associates were in prison the fact that he did not see them was not a weighty factor indicating a lifestyle change.", "Furthermore, there was no evidence that either of his parents would be able to exert any positive influence over him, as they had been unable to do so in the past. Although he was in employment on a probationary period, there was no evidence of a contingency plan should he not progress into more secure employment. 31. Therefore, whilst accepting that the applicant’s removal would be difficult, the Tribunal concluded that he was of an age where he could be expected to “stand on his own two feet and make a life for himself”. His family could visit him in Nigeria and there was evidence to suggest that he had a number of relatives living there.", "The Tribunal further noted that he had no girlfriend or children in the United Kingdom, he was in good health, and he would not face any language difficulties as there was a universal use of English in Nigeria. Consequently, the Tribunal concluded that in spite of his long residence and family circumstances, serious reasons (as required by this Court in Maslov, cited above, § 75) existed to justify the applicant’s expulsion, and that the public interest in effecting deportation outweighed his Article 8 rights. 32. On 21 June 2012 the Upper Tribunal refused to grant the applicant permission to appeal. The Court of Appeal similarly refused permission to appeal on 12 September 2012, and again on 30 October 2012 following an oral hearing.", "It found that although the case had required a difficult and delicate balancing exercise, the Upper Tribunal had provided a thorough and careful determination, and the conclusion reached was one which had been open to it. D. Amendment of the Immigration Rules 33. On 9 July 2012 the Secretary of State amended the Immigration Rules (see paragraphs 54-57 below). In so far as relevant, the new Rules (which have since been further amended) provided that the deportation of foreign criminals would be conducive to the public good if they were sentenced to four or more years’ imprisonment. In such cases, the public interest would only be outweighed in “exceptional circumstances”.", "E. Further representations 34. On 9 November 2012 and 14 November 2012 the applicant submitted further representations to the Secretary of State based on his fourteen-month relationship with a British national, who had no connection to Nigeria, and the birth of their son on 1 October 2012. The Secretary of State treated those representations as an application to revoke the deportation order and refused it on 3 January 2013. She also certified the applicant’s claim, which meant that he was not afforded an automatic in‑country right of appeal. 35.", "On 14 January 2013 the applicant sought permission to apply for judicial review of the Secretary of State’s decision to certify his claim. Along with his application, he provided medical evidence that his son required an operation in March 2013 to correct an umbilical hernia, and that he had been diagnosed with respiratory syncytial virus and bronchiolitis. 36. On 19 February 2013 the Secretary of State agreed to withdraw the certification decision and to issue a new decision taking account of the applicant’s further representations of November 2012 and those lodged with the judicial review application in January 2013. 37.", "The Secretary of State considered the applicant’s further representations in light of the amended Immigration Rules. In a decision dated 11 April 2013, she refused to revoke the deportation order since there were no “exceptional factors” which outweighed the public interest. In particular, she noted that the applicant had entered into a relationship in the full knowledge of the intention to deport him; that both the applicant and his partner should have been fully aware of the implications of conceiving a child in those circumstances; that no valid reason had been given to explain the applicant’s failure to make submissions regarding his relationship at either the Upper Tribunal hearing in April 2012 or the Court of Appeal hearing on 30 October 2012; that if the applicant’s partner wished to continue the family unit in Nigeria, suitable medication would be available in that country to treat their son’s bronchiolitis condition; that there was no evidence of any exceptional, compelling or compassionate factors; and that deportation remained a proportionate response to the applicant’s serious criminal offending. 38. The applicant appealed.", "He submitted a number of documents in support of his case, including a further psychiatric report by Dr B. dated 17 July 2013. The report indicated that he had continued to make progress in adopting a “pro-social lifestyle”, that he had addressed his tendency to violence, that he no longer had any criminal associates, that he had demonstrated a commitment to his partner and their son, that he had secured employment, and that the risk of re-offending and of harm to the public was very low. 39. The First-tier Tribunal, having heard oral evidence from the applicant, his partner, mother, father, brother and sister, and having considered the evidence before it, dismissed the applicant’s appeal on 16 September 2013. 40.", "Using a two-stage approach, the Tribunal first considered the applicant’s case under the Immigration Rules. It noted that the applicant’s most recent conviction was for a serious offence which had attracted a sentence of seven years’ detention; that following the amendment of the Immigration Rules, “exceptional circumstances” would be required to prevent deportation; and that those “exceptional circumstances” were inextricably bound up with the applicant’s Article 8 rights. 41. In this regard, the Tribunal recalled that the applicant’s family and personal circumstances had been examined with the most careful and thorough consideration by the Upper Tribunal in 2012. It had considered them in the context of the exceptionality requirements set out in Maslov (the requirement of “very serious reasons” to justify the expulsion of a settled migrant: see Maslov, cited above, § 75) and concluded that his deportation was justified.", "The Tribunal noted, however, that the applicant’s personal circumstances had since changed. It therefore gave careful consideration to his two-and-a-half-year relationship with his partner and the birth of their child. Nevertheless, it concluded that neither the relationship nor the birth of the child amounted to an “exceptional circumstance” within the context of the Immigration Rules. Although it accepted that there would be an inevitable interference with the family life said to exist between the applicant, his partner and their child, it found there to be nothing “exceptional” about this. Consequently, the Tribunal did not consider that his family and personal circumstances amounted to the “exceptionality” required by the Immigration Rules.", "42. The Tribunal moved on to consider Article 8 as a separate issue, having regard to the findings of the Upper Tribunal in 2012. It agreed with the Upper Tribunal that language would not be an obstacle for the applicant since English was widely spoken in Nigeria. It further noted that while the evidence as to the existence of family in Nigeria was somewhat confusing, it was perhaps not of fundamental importance for an adult quite capable of standing on his own two feet; that the applicant would continue to receive support from his parents following his removal to Nigeria; and that his parents could visit him there as often as they wished. 43.", "In respect of the applicant’s relationship with his partner and their child, it observed that he had failed to disclose his immigration status to his partner until after she had fallen pregnant; that he and his partner had never lived together; that his partner and child had the full support of her family in the United Kingdom, with whom they lived, and that support would continue following the applicant’s deportation; and that his child could visit him in Nigeria and maintain such a relationship as deemed appropriate. Therefore, having carefully considered the issue of proportionality, including “section 55 [of the Borders, Citizenship and Immigration Act 2009 – see paragraph 60 below] and the best interests of the Appellant’s child”, the Tribunal concluded that the Secretary of State had a legitimate interest in maintaining appropriate immigration control and social order within the United Kingdom, and that the interests in effecting the applicant’s deportation were not outweighed by his Article 8 rights. 44. The applicant sought permission to appeal on the ground that the Tribunal had erred in concluding that his circumstances were not “exceptional” for the purposes of the Immigration Rules. The First-tier Tribunal refused permission to appeal on 4 October 2013.", "The applicant made a further application for permission to appeal to the Upper Tribunal, raising the same grounds as before the First-tier Tribunal. In addition, he also submitted that the application raised an important point of principle: namely, whether the decision of the Tribunal was contrary to the principle of double jeopardy, or constituted discriminatory punishment, since a British national could not be excluded from the United Kingdom. On 23 October 2013 the Upper Tribunal refused the application for permission to appeal. Both Tribunals found that the applicant’s grounds sought, in essence, to reargue the merits of the appeal and that no error of law had been disclosed. 45.", "The applicant then sought permission to apply for judicial review of the Upper Tribunal’s refusal of the application for permission to appeal. Following the Supreme Court judgment in R (on the application of Cart) v. The Upper Tribunal; R (on the application of MR (Pakistan)) v. The Upper Tribunal (Immigration & Asylum Chamber) and Secretary of State for the Home Department [2011] UKSC 28, the Administrative Court could only review decisions of the Upper Tribunal if the “second appeal” test was satisfied; that is, if the appeal raised an important point of principle, or there was another compelling reason to allow it to succeed. In the present case the applicant once again submitted that the “double jeopardy” argument raised an important point of principle. However, on 6 December 2013 the Administrative Court refused the application for permission to apply for judicial review. In refusing permission the judge expressly stated that while it was “apparent that different views might reasonably be taken about whether the Claimant should be permitted to remain in the UK in the light of his family ties and length of residence”, that was “not the test for the grant of permission”.", "46. Following the refusal of the application for permission to apply for judicial review, the applicant had no right to renew the application at an oral hearing in the Administrative Court. However, it would have been possible for him to apply to the Court of Appeal for permission to appeal against the Administrative Court’s decision. F. Events subsequent to the final domestic decisions 47. Removal directions scheduled for 20 January 2015 were cancelled owing to the absence of a valid travel document.", "48. On 18 March 2015 the applicant advised the Court that his relationship with his partner had broken down and that he had court-ordered direct contact with his son on alternate Saturdays. 49. On 4 August 2015 the Secretary of State advised the applicant that an application to the Nigerian authorities for a travel document, required to effect his deportation from the United Kingdom, was pending. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. The Human Rights Act 1998 50. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as it is relevant to the proceedings in which that question has arisen. B. Deportation of a foreign national criminal 1. The Immigration Act 1971 51.", "Section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State for the Home Department deems his deportation to be conducive to the public good. 2. The United Kingdom Borders Act 2007 52. Section 32(4) and (5) of the United Kingdom Borders Act 2007 provides that, subject to section 33, the Secretary of State “must” make a deportation order in respect of a “foreign criminal”, and, for the purposes of section 3(5)(a) of the Immigration Act 1971, the deportation of a foreign criminal is conducive to the public good. A foreign criminal is defined as a person who is not a British citizen, who has been convicted in the United Kingdom of an offence and sentenced to a period of imprisonment of at least twelve months.", "53. According to section 33, section 32(4) and (5) does not apply where the removal of the foreign criminal in pursuance of the deportation order would breach his rights under either the Refugee Convention or the European Convention on Human Rights. 3. The amendment to the Immigration Rules 54. On 9 July 2012 the Secretary of State amended the Immigration Rules to include new rules on deportation.", "Paragraph A362 of those new Rules stated: “Where Article 8 is raised in the context of deportation under Part 13 of these Rules, the claim under Article 8 will only succeed where the requirements of these Rules as at 9 July 2012 are met, regardless of when the notice of intention to deport or the deportation order, as appropriate, was served.” 55. Paragraphs 398 to 399A set out the situations in which a foreign criminal’s private and/or family life would be deemed to outweigh the public interest in effecting his or her deportation. 56. In the case of offenders sentenced to between twelve months and four years’ imprisonment, or those sentenced to less that twelve months but who had caused “serious harm” or were persistent offenders, paragraphs 399 and 399A provided that the public interest in deportation would be deemed to be outweighed by private and/or family life factors if they (i) had twenty years’ residence in the United Kingdom and no ties to the country to which they were to be deported; (ii) had fifteen years’ residence in the United Kingdom with valid leave and a partner with British citizenship, settled status, refugee status of humanitarian protection, and there were insurmountable obstacles to family life continuing elsewhere; (iii) had children who were British citizens or who had lived in the United Kingdom continuously for at least seven years, who had no-one to care for them in the United Kingdom and who could not be expected to relocate abroad; or (iv) were under twenty-five, had spent at least half their lives in the United Kingdom, and had no ties to the country to which they were to be deported. If none of these conditions were satisfied, the public interest in deportation would only be outweighed by other factors in “exceptional circumstances”.", "57. For more serious offenders sentenced to four or more years’ imprisonment, the public interest in deportation would only be outweighed in “exceptional circumstances”. 4. Judicial interpretation of paragraphs 398 to 399A of the Immigration Rules 58. In both MF (Article 8 – new rules) Nigeria [2012] UKUT 393 (IAC) (31 October 2012) and Izuazu (Article 8 – new rules) Nigeria [2013] UKUT 45 (IAC) (30 January 2013) the Upper Tribunal indicated that in cases to which the new Immigration Rules applied, judges should adopt a two-stage approach.", "First, they should consider whether a claimant was able to benefit under the applicable provisions of the Immigration Rules designed to address Article 8 claims. Where the claimant did not meet the requirements of the Rules it would then be necessary to make an assessment of Article 8 applying the criteria established by law. 59. The Upper Tribunal’s decision in MF (cited above) was the subject of an appeal to the Court of Appeal (MF (Nigeria) v. Secretary of State for the Home Department [2013] EWCA Civ 1192 (08 October 2013)). The court disagreed with the Upper Tribunal’s approach to and interpretation of the Immigration Rules.", "Rather than adopt a two-stage approach, it held that the new Rules were a complete code and the exceptional circumstances to be considered in the balancing exercise involved the application of a proportionality test as required by the Strasbourg jurisprudence. Therefore, in the case of a foreign prisoner to whom paragraphs 399 and 399A did not apply, very compelling reasons would be required to outweigh the public interest in deportation. These compelling reasons were the “exceptional circumstances”. 5. Borders, Citizenship and Immigration Act 2009 60.", "Section 55 of the 2009 Act places the Secretary of State for the Home Department under a duty to make arrangements for ensuring that any functions in relation to immigration, asylum or nationality are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 61. The applicant complained that the requirements of paragraphs 398 and 399 of the Immigration Rules were not compatible with Article 8 of the Convention, and that his deportation from the United Kingdom would constitute a disproportionate interference with his right to respect for his family and private life in breach of Article 8. 62.", "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.” 63. The Government contested the applicant’s arguments.", "A. Admissibility 1. Non-exhaustion of domestic remedies (a) The parties’ submissions 64. The Government submitted that the applicant had failed to exhaust domestic remedies since he could have applied to the Court of Appeal for permission to appeal against the Administrative Court’s decision of 6 December 2013. The Government acknowledged that as the application for permission to apply for judicial review had been by way of a Cart judicial review, permission could only have been granted by the Administrative Court if the “second appeal” test was met; that is, if the appeal raised an important point of principle, or there was another compelling reason to allow it to succeed (see paragraph 45 above). The same test would have to be satisfied before the Court of Appeal would have granted permission to appeal against the Administrative Court’s decision.", "However, according to the Government, the applicant’s complaint that the Immigration Rules applied a higher standard than proportionality arguably raised an important point of principle and, as such, he should have applied to the Court of Appeal for permission to appeal. 65. While the applicant accepted that an application for permission to appeal to the Court of Appeal was theoretically possible, he argued that such an application would have offered no realistic possibility of success. The Administrative Court judge, in his decision of 6 December 2013, clearly found that the “second appeal” test had not been met. In light of that decision, and in view of the fact that permission to appeal had only rarely been granted by the Court of Appeal in Cart judicial reviews, the applicant’s counsel was of the opinion that a further appeal to the Court of Appeal would have offered no prospect of success.", "(b) The Court’s assessment 66. The applicant makes two distinct complaints under Article 8 of the Convention, which must be examined separately: first, that paragraphs 398 and 399 of the Immigration Rules, which required the existence of “exceptional circumstances” before removal would be in breach of Article 8 of the Convention, imposed a higher standard than that of “proportionality”; and secondly, that in all the circumstances of his case, the decision to deport him constituted a disproportionate interference with his Article 8 rights. (i) The first Article 8 complaint 67. The Court is inclined to agree with the Government that the applicant’s first Article 8 complaint arguably raised an important point of principle which could potentially have satisfied the “second appeals” test. That being said, it is not necessary for the Court to reach any firm conclusion in respect of this point, since the applicant did not raise it in either the preceding application for permission to appeal or the application for permission to apply for judicial review.", "On the contrary, the only “important point of principle” relied on in these applications was the question of whether the decision of the Tribunal had been contrary to the principle of double jeopardy (see paragraphs 44-45 above). 68. Consequently, the Court considers that the complaint that paragraphs 398 and 399 of the Immigration Rules imposed a higher standard than that of proportionality must be rejected under Article 35 § 1 of the Convention for failure to exhaust domestic remedies. (ii) The second Article 8 complaint 69. The Court considers that the applicant’s second Article 8 complaint – namely, that his deportation would constitute a disproportionate interference with his right to respect for his family and private life – primarily turned on the particular circumstances of his case.", "Consequently, neither the Upper Tribunal, in refusing permission to appeal, nor the Administrative Court, in refusing permission to apply for judicial review of the Upper Tribunal’s decision, considered that this complaint raised “an important point of principle” capable of satisfying the “second appeal” test (see paragraphs 44-45 above). Indeed, the Administrative Court judge expressly stated that while it was “apparent that different views might reasonably be taken about whether the Claimant should be permitted to remain in the UK in the light of his family ties and length of residence”, that was “not the test for the grant of permission” (see paragraph 45 above). 70. Consequently, the Court does not consider that this complaint can be rejected under Article 35 § 1 of the Convention for failure to exhaust domestic remedies. 2.", "Manifestly ill-founded 71. The Government further submitted that the applicant’s complaint that his deportation would constitute a disproportionate interference with his right to respect for his family and private life was manifestly ill-founded. However, the Court is of the opinion that this complaint raises sufficiently complex issues of fact and law, so that it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is further satisfied that it is not inadmissible on any other ground. It must therefore be declared admissible.", "B. Merits 1. The parties’ submissions 72. The applicant submitted that there had been a disproportionate interference with his right to respect for his family life (with his son) and his private life, having particular regard to the fact that he had arrived in the United Kingdom just before his second birthday; he had lived there for twenty-eight years; his criminal offences were committed when he was either a minor or young adult; and he had not reoffended since his release in March 2011. 73.", "The Government, on the other hand, endorsed the reasoning of the domestic courts, which, in their submission, had conducted a full and proper assessment of the proportionality of the applicant’s deportation. The applicant, who was now almost thirty years’ old, was a single adult in good health who should readily be able to establish himself in Nigeria, where his parents still had family. While there would be a degree of interference with his relationship with his son, he had never lived with him or had primary responsibility for his care and upbringing. Having regard to the applicant’s long history of sustained and serious offending, which included drug dealing and crimes of violence, the public interest in favour of deportation carried great weight. 2.", "The Court’s assessment 74. In the present case the domestic courts accepted that the applicant’s deportation would constitute an interference with his right to respect for both his family life with his son, and his private life. The Government do not appear to contest that finding. Moreover, it does not appear to be in doubt that the deportation order was “in accordance with the law” and “in pursuit of a legitimate aim” (the prevention of disorder and crime) for the purposes of Article 8 § 2 of the Convention. Consequently, the principal issue to be determined is whether the applicant’s deportation would be “necessary in a democratic society”, or, in other words, whether the deportation order struck a fair balance between the applicant’s Convention rights on the one hand and the community’s interests on the other (see Slivenko v. Latvia [GC], no.", "48321/99, § 113, ECHR 2003‑X, and Boultif v. Switzerland, no. 54273/00, § 47, ECHR 2001‑IX). 75. The Court has consistently held that in assessing whether an interference with a right protected by Article 8 was necessary in a democratic society and proportionate to the legitimate aim pursued, the Contracting States enjoy a certain margin of appreciation (see Slivenko, cited above, § 113, and Boultif, cited above, § 47). However, as the State’s margin of appreciation goes hand in hand with European supervision, the Court is empowered to give the final ruling on whether an expulsion measure is reconcilable with Article 8 (see Maslov v. Austria [GC], no.", "1638/03, § 76, ECHR 2008). 76. The requirement for “European supervision” does not mean that in determining whether an impugned measure struck a fair balance between the relevant interests, it is necessarily the Court’s task to conduct the Article 8 proportionality assessment afresh. On the contrary, in Article 8 cases the Court has generally understood the margin of appreciation to mean that, where the independent and impartial domestic courts have carefully examined the facts, applying the relevant human rights standards consistently with the Convention and its case-law, and adequately balanced the applicant’s personal interests against the more general public interest in the case, it is not for it to substitute its own assessment of the merits (including, in particular, its own assessment of the factual details of proportionality) for that of the competent national authorities. The only exception to this is where there are shown to be strong reasons for doing so (see, mutatis mutandis, Von Hannover v. Germany (no.", "2) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012). Consequently, in two recent cases concerning the expulsion of settled migrants, the Court declined to substitute its conclusions for those of the domestic courts, which had thoroughly assessed the applicants’ personal circumstances, carefully balanced the competing interests and took into account the criteria set out in its case law, and reached conclusions which were “neither arbitrary nor manifestly unreasonable” (see Hamesevic v. Denmark (dec.), no. 25748/15, § 43, 16 May 2017 and Alam v. Denmark (dec.), no. 33809/15, § 35, 6 June 2017).", "77. In the case at hand, the original deportation order and the subsequent appeals, first by the applicant and then by the Secretary of State, predated the amendment to the Immigration Rules on 9 July 2011. Consequently, there were no Rules restricting the decision-making authorities’ consideration of the applicant’s rights under Article 8 of the Convention, and every decision-making body assessed the proportionality of his deportation with regard to this Court’s relevant principles concerning the expulsion of settled migrants (see Boultif, Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006‑XII and Maslov, all cited above). 78.", "First of all, in her original decision to deport the applicant, the Secretary of State had specific regard to her obligations under Article 8 of the Convention, balancing his ties to the United Kingdom and the difficulties he would face readjusting to life in Nigeria against the seriousness of his criminal offending (see paragraph 22 above). On appeal, the First-tier Tribunal conducted a similar assessment of proportionality and, having accepted that the applicant’s “unfortunate history” had resulted in a particular dependency on his family, allowed his appeal on Article 8 grounds (see paragraph 24 above). However, the Upper Tribunal allowed the Secretary of State’s appeal, finding that, in spite of his long residence and family circumstances, “very weighty reasons” existed to justify the applicant’s deportation. The Upper Tribunal gave careful consideration to the principles established by this Court in Boultif, Üner and Maslov, weighing the length of the applicant’s residence in the United Kingdom and the family and private life established there against his long history of offending, continuing after the Secretary of State’s warning in 2006, his poor behaviour in prison, and the risk to the public from future offending. Whilst accepting that his removal would be difficult, the Upper Tribunal concluded that he was of an age where he could be expected to “stand on his own two feet and make a life for himself” (see paragraphs 28-31 above).", "79. Although the applicant’s further representations were made following the amendment to the Immigration Rules, the First-tier Tribunal heard his appeal against the Secretary of State’s refusal to revoke the deportation order before the Court of Appeal gave judgment in MF (Nigeria) (see paragraph 59 above). It therefore adopted the two-stage approach required by the Upper Tribunal in both MF and Izuazu (Nigeria) (see paragraph 58 above), asking first, whether there were “exceptional circumstances” as required by the Immigration Rules, before going on to consider Article 8 as a “separate issue” (see paragraph 42 above). 80. In its assessment of proportionality under Article 8, it had regard to the Upper Tribunal’s decision of 24 April 2012 (see paragraph 42 above), which had in turn given careful consideration to the principles established by this Court in Boultif, Üner and Maslov (see paragraphs 28-31 and 78 above).", "In addition, the First-tier Tribunal also had regard to the new evidence concerning the applicant’s relationship with his (then) partner and their child. However, it considered it significant that he had failed to disclose his immigration status to his partner until after she had fallen pregnant; that he and his partner had never lived together; that his partner had the support of her family in the United Kingdom; and that his child could visit him in Nigeria and maintain such a relationship as deemed appropriate. Having weighed everything in the balance, including the best interests of the applicant’s child, it reached the same conclusion as the Upper Tribunal; namely, that the interests in effecting the applicant’s deportation were not outweighed by his Article 8 rights (see paragraph 43 above). 81. Therefore, regardless of whether or not paragraphs 398 and 399 of the Immigration Rules could be said to impose a higher standard than that of proportionality, there is no doubt that in the present case the First-tier Tribunal – and, in fact, all the domestic decision-makers – gave thorough and careful consideration to the proportionality test required by Article 8 of the Convention, including the relevant criteria set out in this Court’s case‑law, and, having balanced the applicant’s Article 8 rights against the public interest in deportation, concluded that his deportation would not constitute a disproportionate interference with his right to respect for his family and private life.", "The facts of the applicant’s case undoubtedly require careful scrutiny, given the length of his residence in the United Kingdom, his ongoing relationship with his son and other family members there, and his limited ties to his home country. Nevertheless, having regard to his long and escalating history of offending, continuing after the Secretary of State’s warning in 2006, and beyond his attaining the age of majority, the Court sees no grounds upon which the decision of the domestic authorities can be impugned. Furthermore, there has been no change in the applicant’s circumstances since the date of the last domestic decision which would provide the Court with strong reasons to substitute its own assessment of proportionality for that of the domestic authorities. In fact, following the last domestic decision, the applicant’s relationship with his partner has ended, and his contact with his son has been restricted to alternate Saturdays. 82.", "Accordingly, the Court considers that the applicant’s deportation would not be in breach of Article 8 of the Convention. 2. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ TOGETHER WITH ARTICLE 8 83. The applicant complained under Article 14 of the Convention, read together with Article 8, that he had been treated differently, without justification, from both a foreign criminal sentenced to less than four years’ imprisonment, who could benefit from the exceptions in paragraphs 399 and 399A of the Immigration Rules, and a British national sentenced to more than four years’ imprisonment, who could not be deported. 84.", "Article 14 provides as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 85. The Court recalls that the applicant did not expressly invoke Article 14 at any stage of the domestic proceedings, although in his application for permission to appeal to the Upper Tribunal, and in his application for permission to apply for judicial review of the Upper Tribunal’s decision, he contended that the decision of the Tribunal was contrary to the principle of double jeopardy, or constituted discriminatory punishment, since a British national could not be excluded from the United Kingdom (see paragraphs 44 and 45 above). Therefore, insofar as he now seeks to argue that he has been treated differently from a foreign national offender sentenced to less than four years’ imprisonment, he cannot be said to have exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention, since he did not raise this argument either expressly or in substance before the domestic courts. 86. The complaint that he was treated differently from a British national sentenced to more than four years’ imprisonment was raised in substance in his application for permission to appeal and his application for judicial review.", "As the human rights and fundamental freedoms defined in the Convention are now part of the law of the United Kingdom, there is no doubt that he could have expressly invoked his rights under Article 14 in these applications (see, for example, Peacock v. the United Kingdom (dec.), no. 52335/12, 5 January 2016). However, it is not necessary for the Court to decide whether he has nevertheless exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention, since it has found that in expulsion cases non-nationals cannot be compared to nationals who have a right of abode in their own country and cannot be expelled from it (see Moustaquim v. Belgium, 18 February 1991, § 49, Series A no. 193 and C. v. Belgium, 7 August 1996, §37-38, Reports of Judgments and Decisions 1996 III). Accordingly, the Court considers that the Article 14 complaint based on this ground must be rejected as manifestly ill-founded pursuant to Article 35 § 3(a) of the Convention.", "FOR THESE REASONS, THE COURT, BY SIX VOTES TO ONE, 1. Declares the complaint concerning the proportionality of the applicant’s deportation admissible and the remainder of the application inadmissible; 2. Holds that there has been no violation of Article 8 of the Convention; Done in English, and notified in writing on 14 September 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Renata DegenerLinos-Alexandre SicilianosDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Turković is annexed to this judgment. L.A.S.R.D.", "DISSENTING OPINION OF JUDGE TURKOVIĆ 1. To my great regret, I am unable to subscribe to the majority’s conclusion that the applicant’s deportation would not be in breach of Article 8 of the Convention. 2. The Court recognized in A.A. v. the United Kingdom (no. 8000/08, 20 September 2011) that in cases in which the applicant has not been yet expelled at the time of the Court’s decision, the Court itself must assess the compatibility with the Convention of the applicant’s actual expulsion with reference to the facts known to the ECHR at the time of the proceedings before it, but post-dating the domestic proceedings.", "Relying on its well-established case-law, the Court indicated that in cases where deportation is intended to satisfy the aim of preventing disorder or crime, the period of time which has passed since the offence was committed and the applicant’s conduct throughout that period are particularly significant. The Court further specified that in cases in which the applicant has not committed further offences, and where he or she made efforts to rehabilitate himself or herself and to reintegrate into society, and where his risk of reoffending was assessed to be low, the Government are required to provide further support for their contention that the applicant can reasonably be expected to cause disorder or to engage in criminal activities such as to render his or her deportation necessary in a democratic society (see A.A. v. the United Kingdom, cited above, §§ 63 and 68). 3. In the present case, the majority took the position that there was “no change in the applicant’s circumstances since the date of the last domestic decision which would provide the Court with strong reasons to substitute its own assessment of proportionality for that of the domestic authorities” (see paragraph 81 of the judgment). The majority completely disregarded the fact that a considerable period of time (10 years) has elapsed since the offence was committed, since the applicant was released from the Young Offenders’ Institution under licence (6 and a half years) and since the licence expired (4 and a half years), and that during that period the applicant has not committed any further offences and has demonstrated serious efforts to rehabilitate himself and to reintegrate into society.", "His conduct shows genuine dissociation from his crime. All these factors have an important impact on the assessment of the risk which the applicant poses to society. [1] Thus, I cannot agree with the majority that there has been no change in the applicant’s circumstances since the date of the last domestic decision which should prompt the Court to substitute its own assessment of proportionality for that of the domestic authorities. This does not mean that the Court would necessarily take a different position from the domestic authorities; in such circumstances, however, as was established in A.A. v. the United Kingdom, the Government should be required to provide further support for their contention that the applicant can reasonably be expected to cause disorder or to engage in criminal activities such as to render his or her deportation necessary in a democratic society. Indeed, any other approach, as was emphasised in the same case (cited above, § 67), “would render the protection of the Convention theoretical and illusory by allowing Contracting States to expel applicants months, even years, after a final order had been made notwithstanding the fact that such expulsion would be disproportionate having regard to subsequent developments” (ibid.).", "4. In the present case, the majority has considerably limited the possibility for the Court to take subsequent developments into consideration in cases in which the applicant has not been yet expelled at the time of the decision of the Court. It seems that, as opposed to the criteria laid down in A.A. v. the United Kingdom, the Court is now requiring the applicant to demonstrate that there has been some change in his or her circumstances over and above the fact that he or she did not commit further offences for a significant period of time after being released and assessed as posing a low risk of re-offending. It seems that the applicant is required to demonstrate some “exceptional” change in his or her circumstances post-dating the last decision of the domestic authorities in order for the Court even to engage in the assessment of proportionality. The approach the Court has taken in the present case is especially problematic in cases of expulsion of settled migrants who have lawfully spent all or the major part of their childhood and youth in the host country.", "This is all the more so where the person concerned is a settled migrant who was a juvenile (minor/young adult) at the time that the underlying offence(s) was committed, as is the case in respect of the applicant in the present case. Very serious reasons are required to justify their expulsion and the burden of proof is on the Government (see Maslov v. Austria [GC], no. 1638/03, § 76, ECHR 2008). 5. In view of the above considerations and of the Court’s conclusions in A.W.", "Khan v. the United Kingdom, where “having particular regard to the length of time that the applicant has been in the United Kingdom and his very young age at the time of his entry, the lack of any continuing ties to Pakistan, the strength of his ties with the United Kingdom, and the fact that the applicant has not reoffended following his release from prison in 2006, the Court has found that the applicant’s deportation from the United Kingdom would not be proportionate to the legitimate aim pursued and would therefore not be necessary in a democratic society” (see A.W. Khan v. the United Kingdom, no. 47486/06, § 50, 12 January 2010)[2], I cannot, without further support by the Government for their contention that the applicant can reasonably be expected to cause disorder or to engage in criminal activities at the present time, conclude that the applicant’s deportation would be a proportionate measure. 6. I am fully aware that the assessment of proportionality is and always will be fact-sensitive.", "I could not agree more with Lord Bingham that “there is in general no alternative to making a careful and informed evaluation of the facts of the particular case” and that “[t]he search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which Article 8 requires” (see Lord Bingham in EB (Kosovo) [2008] UKHL 41, [2009] 1 AC 1159 at [12]). However, an overly casuistic approach to the matter fails to achieve consistency in decision making and to bring certainty to the decision-making process, both at the national and European level. The new Immigration Rules were in part intended to bring greater clarity in this respect domestically (see MF (Nigeria) [2013] UKHL 41, [2009] EWCA Civ.1192 at para 34, citing the document produced by Ms Giovanetti QC). 7. The inconsistences in application of the Üner, Maslov and A.A. principles, some of which were identified above by way of example, may warrant their further clarification and/or elaboration.", "At a time when Europe is coping with the serious problems which partially originate in a poor record in terms of integration efforts, especially with regard to second-generation migrants, it is of utmost importance to balance wisely society’s impulse to attach greater weight to the public interest than to private and family life claims under Article 8 of the Convention. After all, it is impossible to make a sharp distinction between the two. It is in the public interest to protect the private- and family-life claims of long-term migrants. 8. In addition and separately from the above arguments, I cannot agree with the majority that in the present case the First-Tier Tribunal properly addressed the best interests of the child.", "The Tribunal indeed referred to the best interests of the child, but it failed to explain what was considered to be in the child’s best interests, what criteria this was based on and how the child’s interests were weighed against other considerations. The Tribunal failed to indicate clearly whether primary importance was accorded to the child’s interest[3]. Rather, it seems that the best interests of the child were treated merely as one of the considerations that weighs in the balance alongside other competing factors, and not as a factor that must rank higher than any other. All this does not necessarily mean that a proportionality test which included adequate treatment of the child’s best interest would ultimately have had a different conclusion from that at which the First-Tier Tribunal arrived. Nonetheless, failure to address the best interests of the child adequately should in itself constitute a procedural violation of Article 8.", "[1] The research has shown that for those who do not reoffend within three years of release the likelihood of re-incarceration at a later point is greatly diminished. The risk of reoffending decreases over time. See Langan PA, Levin DJ. Recidivism of prisoners released in 1994.Washington, DC: Bureau of Justice Statistics; 2002. (Bureau of Justice Statistics Publication No.", "NCJ 193427). [2] In both cases the applicants were sentenced for drug-related offences. In the present case, the applicant – who committed an offence when he had just turned 19 – was sentenced to seven years’ detention in a ‘Young Offenders’ Institution’ and in A.W. Khan the applicant – who was an adult when he committed an offence – was sentenced to seven years’ imprisonment. Both were released before serving the full term.", "Both applicants came to the UK at a very young age; in the present case the applicant was almost two and in A.W. Khan the applicant was three years old. Neither applicant reoffended following their release; in A.W. Khan this amounted to period of around three and a half years, and in the present case to a period of more than six years. Neither have any continuing ties to their native lands.", "Both fathered a child after committing an offence. [3] The right of the child to have his or her best interests taken as primary consideration means that the child’s interests may not be considered on the same level as all other considerations; they have higher priority and thus a greater weight must be attached to what serves the child best than to other competing considerations. See General Comment No. 14, adopted by the UN Committee on the Rights of the Children at its 62nd session, 14 January-1 February 2013, p. 10. There are, however, circumstances in which the community or other parties might have superior interests (e.g.", "religious or economic) so that a child’s interests may not prevail." ]

[ "FIRST SECTION CASE OF ROHDE v. DENMARK (Application no. 69332/01) JUDGMENT STRASBOURG 21 July 2005 FINAL 21/10/2005 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Rohde v. Denmark, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL.", "Loucaides,MrsF. Tulkens,MrP. Lorenzen,MrsN. Vajić,MrsS. Botoucharova,MrA.", "Kovler, judges,and Mr S. Quesada, Deputy Section Registrar, Having deliberated in private on 30 June 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 69332/01) against the Kingdom of Denmark lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Danish national, Mr Peter Rohde (“the applicant”), on 19 February 2001. 2. The applicant was represented by Ms Merethe Stagetorn, a lawyer practising in Copenhagen.", "The Government were represented by their Agent, Mr Peter Taksøe-Jensen of the Ministry of Foreign Affairs, and their Co-Agent, Ms Nina Holst‑Christensen of the Ministry of Justice. 3. The applicant alleged that the Danish authorities subjected him to a treatment contrary to Article 3 of the Convention since they detained him on remand in solitary confinement from 14 December 1994 until 28 November 1995. 4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court).", "Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5. By a decision of 4 December 2003, the Court declared the application admissible. 6. The applicant and the Government each filed observations on the merits (Rule 59 § 1).", "7. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE A.", "The decision(s) to submit the applicant to pre-trial detention in solitary confinement 8. On 25 October 1994 a warehouseman found 5.684 kg of cocaine hidden in a consignment of green papaya fruits from Brazil, ordered by the applicant. The discovery was reported to the police, who on the same day interviewed the applicant. He denied having any knowledge of the cocaine and explained that he had ordered the fruits because he contemplated developing a health product made from the seeds. 9.", "On 13 December 1994 at Copenhagen Airport when the applicant was about to emigrate to England he was arrested and charged with drug trafficking. 10. On 14 December 1994 the City Court in Copenhagen (Københavns Byret) decided with reference to section 762, subsection 1 (iii) and section 770a of the Administration of Justice Act (Retsplejeloven) that the applicant be detained on remand and in solitary confinement. The time limit was fixed at 28 December 1994 with regard to the solitary confinement and at 10 January 1995 as concerns the pre-trial detention. The City Court referred notably to the facts that a person, PL, whom the applicant had known as one of his acquaintances for just under six months had been arrested in the same case, that PL had picked up a load of papaya fruits shortly after the applicant's consignment of papaya fruits had been delivered to him, that co‑offenders were assumed still to be at large, that further investigation was required in the case, and that the applicant had taken up residence in London after the commencement of the case.", "11. On appeal to the High Court of Eastern Denmark, the decision was upheld on 17 December 1994 on the grounds stated by the City Court. 12. During a police interview on 21 December 1994 the applicant stated that in October 1994 he had been contacted by a Brazilian papaya fruit farmer, called RS, in search of a business partner in Denmark. RS had found the applicant via a friend, RB, whom the applicant knew from the USA.", "Accordingly, the applicant had contacted PL in order to obtain his assistance with the importation. 13. On 28 December 1994 the City Court extended the solitary confinement until 10 January 1995. It appears from the court record that the applicant's counsel had confirmed in writing that the applicant had consented to this extension without appearing in court. 14.", "The detention on remand in solitary confinement was prolonged by the City Court on 10 January 1995, upheld on appeal on 16 January 1995 by the High Court, which found among other things that no reasonable explanation of the applicant's importation of papaya fruits had been brought to light, and that the applicant's importation of the fruits seemed to constitute the link between PL and the cocaine. 15. The applicant's pre-trial detention in solitary confinement was prolonged anew by the City Court on 7 February and 7 March 1995. The applicant appealed against the latter decision to the High Court, and submitted in this connection his diary, which contained notes as to RS and RB on the dates 11 and 14 October 1994. The applicant explained that RS and RB had been supposed to come to Denmark on 14 October 1994, but that they had never showed up.", "On 24 March 1995 the High Court confirmed the City Court's decision of 7 March 1995 on the following grounds: “...Despite the new information in [the applicant's] diary book notes, his importation of papaya fruits is still found to constitute the link between [PL], also charged, and the discovery of the cocaine. This is supported by the telephone call made by [the applicant] on 24 October 1994 [to PL]. Therefore, the reasons for continued detention on remand under Section 762, Subsection 1 (i) and (iii), and for continued solitary confinement are still justified as stated in the City Court order of 7 March 1995.” 16. The pre-trial detention in solitary confinement was further extended as follows; by the City Court on 4 April 1995, upheld on appeal by the High Court on 20 April 1995; by the City Court on 25 April 1995, upheld on appeal by the High Court on 11 May 1995; by the City Court on 30 May 1995; on 27 June; 7 July; 25 July; 22 August; 19 September 1995. 17.", "PL admitted to cocaine smuggling on 12 September 1995. In addition, he stated that the applicant had participated, but under the belief that the smuggling concerned diamonds. Having been confronted with this statement, during an interview with the police on 26 September 1995 the applicant explained that he and PL had actually planned to smuggle diamonds in the papaya fruits. After the papaya fruits had been delivered on 24 October 1994, PL had informed the applicant that the diamonds had arrived safely and that PL had sold them for a profit amounting to 500,000 Danish kroner (DKK). When the applicant had been confronted by the police and the press with the discovery of the cocaine, he had panicked and decided to emigrate to England.", "The applicant admitted that his previous explanation about RS and RB, and the notes in his diary had been fabricated, and made up by him and PL before their arrest as a “cover story”. 18. On 3 October and 17 October 1995, the City Court upheld the applicant's pre‑trial detention in solitary confinement on the basis of submitted letters containing the applicant's and his counsel's consent. At a court hearing before the City Court on 31 October 1995, the applicant and counsel were present and objected to the continued confinement. The City Court decided as follows: “...the court finds it necessary under section 770 a of the Administration Act to maintain the solitary confinement in view of the prosecutor's information on the divergences between particular [the applicant's] and the detained PL's statements as to whether the two persons had had discussions in relation to the smuggling of cocaine in connection with the agreement between them on smuggling from Brazil.", "Despite the duration of the pre‑trial detention, the court finds that the solitary confinement must be maintained at least until the examination in court has been carried out, and it should be noted that the examination has been fixed for 24 and 28 November 1995.” On appeal, on 2 November 1995 the decision was upheld by the High Court 19. At the court hearing before the City Court on 28 November 1995 the applicant confirmed the explanation he had given on 26 September 1995 and the City Court lifted the solitary confinement. Nevertheless, the applicant remained voluntarily in solitary confinement until 12 December 1995. B. The conditions in the prison 20.", "During the period when the applicant was detained in solitary confinement he was placed in the Western Prison (Vestre Fængsel). The cells there have an area of about eight square metres. They are furnished with a bed, a table, a chair, a lamp, a bookcase, a cupboard, a radio, a television set, a refrigerator/freezing compartment, a duvet, a pillow, a mirror, a sink, bed linen, a tea-towel and a towel. There is a window in each cell placed in a high of approximately 3 meters above the floor. The flooring in the cell is terrazzo/cement.", "21. Being detained on remand in solitary confinement in the Western Prison, the applicant was totally excluded from association with other inmates. He followed the daily routine in the so-called segregation wing and could use the fitness room, borrow various games, occupy himself with various hobby activities such as painting and borrow books once a week, buy goods in the shop, including newspapers, and receive tuition, including school tuition. He was allowed to two daily exercise periods (morning and afternoon), each lasting half an hour, but it was up to him to decide whether to make use of the outdoor exercise option. C. Visits by family and friends 22.", "Visits from the applicant's family and friends were only allowed under supervision. The applicant's mother visited the applicant twice in the period from 14 December 1994 until 10 January 1995. Thereafter, during a shorter period, the applicant refused to receive visitors. From 7 March 1995 she visited him every week for approximately one hour. It appears that in the beginning friends came along with her, up to five persons at a time, but that the police limited the visits to two persons at a time in order to be able to check that the conversations did not concern the charge against the applicant.", "Since February 1995, the applicant's father along with a cousin visited the applicant every two weeks. D. Contact with counsel, police officers, judges and the public prosecutor 23. The applicant's counsel came to visit the applicant approximately once a week. It appears from the case-file that counsel sent herbal medicine to the applicant a couple of times. Also, it appears that on one occasion the prison staff asked the prison management to consider limiting the visits from counsel because these seemed to be more frequent and last a lot longer than usual counsel visits.", "The prison management discussed the matter with counsel, but no restrictions were imposed. 24. Moreover, during the segregation period, the applicant was questioned by police officers investigating the case, notably by one named JL. Also, on several occasions the applicant was brought before the court in connection with extensions of the time limits for the pre-trial detention and solitary confinement and court hearings. On these occasions, he had contact with police officers as well as his counsel, the judge and the public prosecutor.", "E. Contacts with prison staff 25. The applicant had contact with the prison staff on numerous occasions every day, including when food was dispensed, when food boxes were collected afterwards, when he opted for outdoor exercise, when he bathed and when he chose to use the fitness room. 26. In the period from March until December 1995, the applicant received roughly fifty lessons in English and French from one of the prison teachers, thus once a week and for approximately 1 hour and 15 minutes. 27.", "In addition, the applicant visited the prison chaplain once a week for about one hour in the latter's office. 28. Furthermore, during the period from 14 December 1994 until 28 November 1995, the applicant had contact twelve times with a welfare worker, it appears for the last time, on 11 December 1995, when the applicant stated that being in solitary confinement (voluntarily since 28 November 1995) was getting him down so much that he would probably choose to leave it. Furthermore, he stated that he had no immediate problems with which the social worker or the Prison and Probation service (Kriminalforsorgen) could assist him. Instead, he talked about the problems that the case had caused him, including the fact that he felt betrayed by people whom he thought were good friends.", "29. In the same period, the applicant was treated by a dentist a couple of times and by a physiotherapist thirty-two times. F. Contacts with doctors 30. During the applicant's detention on remand in solitary confinement from 13 December 1994 until 28 November 1995 medical inspections were carried out twenty-seven times by a doctor. 31.", "From the prison medical journals submitted it appeared, among other things, that the applicant from 13 December 1994, the day of his arrest, at 8 p.m. until 14 December 1994 12.30 p.m. was placed in an observation cell, as he had stated that he suffered from claustrophobia and had said that he was contemplating suicide. During this period he was observed thirty-six times by the prison staff and twice by nurses. He was given a sleeping pill for that night (and for the following nights during a week). 32. On 11 January 1995 a doctor attended the applicant and refused to prolong the prescription for sleeping pills.", "The doctor established that the applicant had no complaints of claustrophobia and advised him to do “physical exercise” to achieve natural fatigue instead of chemical, tablet-induced sleep. 33. At the beginning of/mid January 1995 the applicant went on a hunger strike, although he drank fruit juices. In this connection the applicant was monitored every day on 16, 17 and 18 January 1995 by nurses and doctors. 34.", "On 17 January 1995 the applicant told a doctor that he was determined to starve himself to death. The prison doctor informed him of the relevant Danish regulation, which prescribes respect for the desires of mentally competent persons, even the desire to die. The doctor found the applicant mentally capable and not abnormal for the purposes of taking this decision. The doctor received and accepted the applicant's refusal of medical intervention (artificial feeding at any future potentially fatal weakening of the applicant's health). The doctor furthermore found the applicant physically normal and without any acetone smell (usual occurrence at fasts).", "The doctor prescribed him a sleeping pill for that night. According to the prison rules, the doctor also requested a psychiatric assessment of the applicant – a requirement when inmates go on hunger strike even if no signs of mental disorder are found. 35. The following day, on 18 January 1995 the applicant informed a doctor that he was drinking but that he expected to be dead within three weeks. The doctor found the applicant normal and without any signs of dehydration.", "As to the applicant's mental health, the doctor waited for the psychiatric examination, which was scheduled to take place on the same day. The latter concluded: “Visit to a thirty-year-old male, charged with Article 191[of the Penal Code (straffeloven)], of which, according to him, he is innocent. He is now carrying out a hunger strike, as a protest against his perception that the press and others have convicted him in advance, and he is fully aware of the consequences of such an act and is at present writing farewell letters, his will, etc. Diagnosis: situational reaction.” 36. Due to the applicant's decision to continue his hunger strike, the prison doctor ordered that twice a week he be checked by a doctor, be weighed and have his urine checked for ketonic substances which may occur during fasting.", "The applicant decided to start eating again at the end of January. 37. Once, in March 1995 an EEG scanning was carried out, notably to check the applicant for epilepsy. 38. On 1 May 1995 a doctor attended the applicant because he complained of continuous pain in his lower back.", "The doctor ordered that he be given an extra mattress and referred him to a physiotherapist. 39. On 12 December 1995 the applicant decided to leave the solitary confinement he had volunteered for since 28 November 1995. Moreover, having volunteered for kitchen duty, he was attended to by a doctor, as the chief consultant of the Copenhagen Prisons had stated that inmates with indications of for instance mental disorders or significantly deviating conduct were not accepted for kitchen duty. G. Contacts with nurses 40.", "During the applicant's detention on remand in solitary confinement from 13 December 1994 until 28 November 1995 medical inspections were carried out forty-three times by a nurse. H. The trial against the applicant 41. After the solitary confinement had been lifted on 28 November 1995, the applicant's detention on remand was prolonged several times by the courts until 14 May 1996, when the High Court sitting with a jury acquitted the applicant of the drug offences. However, on the basis of the applicant's confession he was convicted of aggravated tax fraud and sentenced to 8 months' imprisonment and an additional fine of DKK 875,000 (or in the alternative 60 days' imprisonment). 42.", "By a City Court judgment of 21 June 1996, a co-accused, MP, who in the meantime had been extradited from the USA, and PL were convicted of the cocaine smuggling. I. The compensation proceedings before the City Court 43. On 12 July 1996, the applicant claimed compensation for pecuniary and non-pecuniary damage pursuant to Section 1018a of the Administration of Justice Act for having been detained from 14 December 1994 until 14 May 1996. The total claim for compensation amounted to more than DKK 19 million, thereof DKK 10 million for injury to his feelings and reputation.", "In support of the latter counsel referred to the unusually long, unjustified pre-trial detention, the massive press attention given to the case, to the fact that the applicant was a well-known person and that the case therefore had been unusually and extraordinarily insulting to him. The prosecution first considered the claim, and then in June 1997 it was brought before the City Court. 44. In a letter of 10 July 1997 counsel stated that she also wished to invoke Article 3 of the Convention and for this purpose she requested that a report be procured from the Legal‑Psychiatric Clinic (Retspsykiatrisk Klinik) concerning the applicant's mental state of health during and after his detention on remand. On 18 September 1997 the City Court complied with his request, and the report was submitted on 19 January 1998 stating, inter alia: “The subject is a now 32-year-old male, who had never exhibited any signs of a mental disorder until just over three years ago.", "From his early youth and until 1992 he was a successful competition swimmer. As from 1990 he was self-employed in a business which he ran successfully until his arrest in December 1994. Until his arrest he seems always to have functioned well. He has never abused any drugs or alcohol. During this examination he was found of normal to good intelligence.", "There is no basis for assuming that he suffers from epilepsy or any other organic brain disease. [The applicant] states having delusions of persecution and that he suffers from megalomania, and he appears distrustful and on guard. His perception of reality is lacking to such an extent that he can be characterised as psychotic. A final clarification of his illness cannot be made, but most likely he suffers from a paranoid psychosis. Since his release, probably due to his psychotic condition, the [applicant's] way of living has been affected by a considerable and vagrant travel activity, which to some degree has been characterised by a lacking capability to maintain human contacts, to make bond or to root himself in localities.", "On the basis of the information available it must be assumed that [the applicant's] mental suffering coincided with the period when he was detained on remand in solitary confinement. Moreover, taking into account [the applicant's] distinct personality and mental vulnerability, it is probable that the out-break and the progress of [his] illness are causally linked to the fact that he was solitary confined during a longer period”. 45. In addition, statements of 30 March and 4 May 1998 from the Medico‑Legal Council (Retslægerådet) were submitted before the City Court. In the former it was stated inter alia: “... the Medico-Legal Council states that until about three years ago [the applicant] did not seem to exhibit any signs of a mental disorder or personality disorder.", "He is of good intelligence. During his prolonged pre-trial detention and solitary confinement in the period from December 1994 until May 1996, he developed a psychosis, characterised particularly by failing perception of reality and grandeur. It is difficult to fix the exact time when the psychosis developed during the pre-trial detention. At a psychiatric visit on 18 January 1995 no psychosis-like symptoms were found, but a “situational reaction” and a hunger strike. During the forensic psychiatric examination - completed in January 1998 - he was found both by clinical psychiatric testing and by psychological testing to be psychotic, probably suffering from a paranoid psychosis (mental disorder with delusions).", "In the Medico-Legal Council's view it is very difficult to establish [the exact cause for the applicant's mental illness], but it is reasonable to assume that the considerable and long lasting mental strain which the case involved, presumably in conjunction with a distinct personality characterised by sensitivity and vulnerability significantly influenced the progress of the mental illness. The solitary confinement was a particular and severe mental strain, but also other circumstances like the charge and the subsequent indictment may have contributed to the progress of the applicant's mental disorder.” In the latter the Medico‑Legal Council supplemented: “ ... The Council finds it substantiated that the main diagnosis is paranoid schizophrenic and not a post traumatic stress reaction, as the condition is a psychosis-like condition. But heavy mental strain is one of the prerequisites both for development of [the applicant's] psychosis and for the development of a post‑traumatic stress reaction, and in addition to the psychotic symptoms [the applicant] exhibits symptoms which are characteristic of a post-traumatic stress reaction (irritability, concentration difficulties, sleeping difficulties, nightmares, depressive tendencies with suicidal thoughts). ... the Council cannot assess or make any statement as to whether the mental disorder is permanent.” 46.", "Moreover, an assessment of 3 August 1998 by the National Board of Industrial Injuries (Arbejdsskadestyrelsen) was submitted as to the applicant's degree of disablement and loss of working capacity as a result of his mental illness. The Board estimated that the degree of the applicant's disablement amounted to approximately 30 % and that he had lost 1/3 of his working capacity. 47. During the proceedings before the City Court, the applicant and fifteen witnesses were heard. The witnesses testified about their knowledge of the applicant's income, businesses and possessions, and about their observations of the applicant before, during and after the criminal proceedings.", "None of the doctors or the nurses that had carried out the medical inspections of the applicant during his pre-trial detention in solitary confinement were heard or summoned before the City Court. With regard to his behaviour during this period i.e. from 13 December 1994 until 28 November 1995 the following witnesses testified in so far as relevant: 48. The applicant's mother stated, among other things, that she felt that it was worst for the applicant during the detention period when he was also solitary confined. Thereafter, he became more human and spoke more coherently.", "During the solitary confinement he wrote some letters with weird contents, including a letter with incomprehensible presentation of how the universe works. She had talked with counsel about getting a psychologist in from outside, but it was too difficult to cope with and nothing came of it. She would describe the difference in the applicant's behaviour before and after by saying that he used to be dynamic, committed and extrovert but had become grumpy and inaccessible. 49. The applicant's cousin stated, among other things, that the applicant seemed deeply unhappy and preoccupied.", "Often he was just listening. He had also changed appearance, having grown a big beard and lost weight. The applicant became better as time passed, as if he had found some peace. 50. The prison chaplain stated, among other things, that the applicant moved with great care around the grounds and walked practically sideways along the wall.", "He moved like a person who had done no exercise and seemed timid. The applicant needed exercise, both physically and mentally. He had a great feeling of powerlessness. The applicant seemed different than other inmates, like a stranger in that he could both think and talk and was not already broken. The chaplain found that in general persons detained in solitary confinement lose their concentration.", "This was also the case as regards the applicant. The applicant cheered up and felt stimulated by the visits to the chaplain and it had been difficult to end the consultations as the applicant kept finding new subjects and knew which subjects were interesting to the chaplain. 51. The prison teacher stated, among other things, that the applicant from the first day seemed desperate. Subsequently he appeared resigned.", "On his index card of 18 September 1995, the teacher had noted that the applicant got more and more depressed. The applicants' physical condition worsened, he got careless about himself, both concerning clothing and hygiene. The applicant read a lot, although he encountered difficulties in concentrating. 52. Police officer JL, who investigated the case against the applicant and regularly kept visits to the applicant under surveillance, stated among other things, that the applicant's mental state appeared the same, whether questioned in the presence of his counsel or receiving visits.", "At some time the applicant turned his sports jersey the wrong side out as he did not wish to be like everybody else. He wanted to be a loner. 53. During the proceedings before the City Court the applicant raised his claim for compensation to DKK 22,556,334. By judgment of 1 October 1998 the City Court granted the applicant compensation in the amount of DKK 790,475 and stated inter alia: “... Having regard to the findings on the evidence in the High Court's verdict of 14 May 1996, and to the evidence produced during these proceedings, the court finds it established that an agreement had been concluded between PL and MP on the smuggling of cocaine from Brazil to Denmark so that the cocaine was to be hidden in a consignment of papaya fruits.", "Accordingly, in Brazil MP placed the cocaine in a pallet with green papaya fruits to be imported by the firm..., from which [the applicant] had ordered the fruits. However, PL had tricked [the applicant] into establishing ... a health firm, and ordering the papaya fruits via this firm by stating that the import of green papaya fruits was to cover smuggling of diamonds, although to PL cocaine was involved. After the arrival [of the papaya fruits] complications arose whereby the smuggled cocaine was discovered. [The applicant] had taken initiatives as to the potential commercial exploitation of green papaya fruits for health products, etc. The court finds that [the applicant] has exhibited considerable contributory negligence by embarking on an agreement with PL on the smuggling of diamonds from Brazil.", "He knew that PL was a trained gemmologist, but their acquaintance was of recent date and his efforts to ensure that PL's criminal intention was limited to diamond smuggling were poor. PL's statement to the effect that at some time he briefly remarked to [the applicant] that he had previously tried to smuggle cocaine is contested by [the applicant] and no decisive weight has been attached to it in this assessment of the evidence. ...On the evidence [before it] the court finds that [the applicant] started establishing [the health firm] to be in charge of the import of papaya fruits etc. after having agreed with PL to assist in smuggling diamonds from Brazil hidden in consignments of papaya fruits. According to the evidence it cannot be excluded that [the applicant] also intended to obtain a commercial profit from [the health firm].", "However, having regard to the applicant's knowledge of the discovery of the cocaine and to the police interviews in general, the court finds that [the applicant] should have realised that the investigation theory of the police was that [his established health firm] was only a cover for the import of cocaine, and that any profit from the sale of health products made from papaya fruits was quite immaterial. Furthermore, the court notes that [the applicant's] rather experimental/impulsive way of starting up his firm was suited to strengthen this assumption by the police, and that the applicant should have realised this. After the police had found the cocaine and after the press publicity on 26 October 1994, but before his own arrest, [the applicant] chose together with PL to agree on a false statement about the background of his import of papaya fruits, ...[the story about RS and RB] supported by construed diary notes. [The applicant] maintains that he asked PL repeatedly at this stage whether PL had anything to do with the cocaine. Despite PL's denials [the applicant] should have suspected serious mischief at least at this stage.", "[The applicant] was arrested on 13 December 1994. He did not change his statement until 26 September 1995, when during an interview [with the police] he told about the planned diamond smuggling. This statement was repeated at the hearings before the court on 28 and 30 November 1995 and then maintained. The solitary confinement was terminated at the court hearing on 28 November 1995. ... accordingly, the court finds that [the applicant] has exhibited contributory negligence by way of his suspicious conduct/failure to clear himself of suspicion, partly by having embarked on the alleged smuggling of diamonds and taking relevant steps, having construed and made use of a false cover story and having failed to explain the true facts of the case until the autumn of 1995, whereby he must also have realised that with this course of events in the autumn of 1995 he himself had considerably contributed to causing doubts about the correctness of his present statement, cf.", "in this respect [the High Court decision of 15 January 1996 as to the continued pre-trial detention]. The court finds that the contributory negligence exhibited by [the applicant] therefore entails that he has basically forfeited the right to compensation for the harm inflicted on him by the arrest and the pre-trial detention... In accordance with the opinion of the Medico-Legal Council the court finds that the applicant did not show any signs of mental disorder or personal disorder [before his arrest], but that during the prolonged pre-trial detention and solitary confinement he developed a psychosis, particularly characterised by a failing perception of reality, delusions of reference as well as delusions of persecution and of grandeur. It is impossible to fix the exact time when the psychosis developed during the pre-trial detention as no psychosis-like symptoms were found at a psychiatric visit on 18 January 1995, but a “situational reaction” and a hunger strike, whereas in the forensic psychiatric examination - completed in January 1998 - [the applicant] was found psychotic, probably suffering from a paranoid psychosis (mental disorder with delusions) ... Particularly concerning the European Convention on Human Rights and the basis of responsibility in general: ... generally, any kind of deprivation of liberty constitutes a strain on the person involved.", "Such a strain manifests itself even more with regard to pre-trial detention in solitary confinement, which entails complete exclusion from association with other inmates, and visits only to a limited extent and subject to surveillance. In some cases this strain may, for a particular individual, prove to have consequences beyond what is generally foreseeable and predictable by the legislator owing to that individual's mental preparedness and life situation in general. It must be presumed that the legislator considers solitary confinement necessary for the sake of the investigation, particularly in grave criminal cases committed by a group of persons acting in a more organised way, in which the clearing up to a great extent depends on the persons' lack of opportunities to harmonise their statements mutually and with others. In order to balance the interests of the detainee against the interest of the society in prosecuting crimes, the legislator has laid down provisions on solitary confinement cf. sections 770a to 770c of the Administration of Justice Act.", "Thus, the use of totally solitary confinement is limited to a continuous period of eight weeks [except for] cases, where the charge concerns an offence being punishable under the law by imprisonment for six years or more, which are not subject to any restriction in time. The charge against [the applicant] for drug offences under Article 191 of the Penal Code satisfies this condition. Under section 770b, the courts must check whether the purpose of the solitary confinement can be fulfilled by less radical measures, and they must ensure that the measure is not disproportionate to the importance of the case and the sanction that may be expected if the person charged is found guilty. Furthermore, under this provision the court must “take into account the special potential strain on the person charged owing to his youth, or physical or mental weakness” when it orders solitary confinement. In the opinion of the court, the legislator has thus realised that solitary confinement may at worst result in an unintended harmful effect owing to the mental weakness of the person charged.", "This is attempted countered by imposing a duty on the Prison and Probation Service staff (kriminalforsorgens personale), including the prison doctor, to be aware of any danger signals, according to which psychiatric monitoring may prove relevant. The question of medical monitoring may be raised by everybody who is in contact with the detainee, including counsel, as well as the detainee himself and the prison staff. If so, the judge responsible for a continuation of the pre-trial detention in solitary confinement must decide whether the interest of society in prosecution must give way for the mental wellbeing of the person charged, with particular regard to the risk of permanent mental harm. It is a matter for the courts to check and apply the provisions of the law compared with general principles of law, including the principles expressed in the European Convention on Human Rights... as incorporated into Danish law by Act No. 285 of 29 April 1992.", "Article 3 of the European Convention on Human Rights sets out that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Article 5 of the Convention provides for the situations in which a person may exceptionally be deprived of his liberty. [The applicant's] detention on remand was ordered due to the risk of influencing others and the risk of evasion, and solitary confinement was imposed in addition due to the risk of influencing others. Pursuant to the case-law of the European Commission of Human Rights, a decision as to whether Article 3 of the Convention is violated depends on a specific assessment of the circumstances of the case, particularly the stringency of the solitary confinement, its duration, the purpose of the solitary confinement and its effect on the inmate's health. In addition to the specific elements of the case, the court has taken into account the assessments made by the European Commission of Human Rights, the Human Rights Committee of the United Nations (CCPR), the Committee against Torture of the United Nations (CAT), and the Committee for the Prevention of Torture of the Council of Europe (CPT) on the conditions of solitary confinement in Denmark as well as national deliberations, most recently report (betænkning) No.", "1358/1998 on pre‑trial detention in solitary confinement... The court finds that the pre-trial detention in solitary confinement and the subsequent ordinary pre-trial detention did not involve any violation of Article 3 of the Convention by virtue of its duration, form or conditions, as seen in relation to the nature of the suspected offence. The same applies as to the effect of the imprisonment on [the applicant's] health. However, the court finds that the detention on remand in solitary confinement has had a mental consequential effect to [the detriment of the applicant and that it] occurred under such circumstances as to trigger liability for the Government [for the following reason]. It must be assumed, even without the establishment of committed human errors e.g.", "by failing monitoring, that incidents may occur, where the detained subsequently are found to have developed psychiatric damage, which to a significant extent has been caused by the pre-trial detention [as opposed to normal predictable mental after‑effects], and which may be entailed by the usual administrative rates fixed to cover non-pecuniary damage. In the present case, having regard to the medical statements, the court finds it established that [the applicant] suffers from a paranoid psychosis (mental disorder with delusions) and a traumatic strain-reaction, and that the detention on remand to a very significant extent caused this. The public authorities have a special duty of solicitude for detainees, which entails liability to compensation should they fail to comply with this duty. With regard to solitary confinement the court finds that a strengthened degree of culpability must be employed towards the public authorities. It may be difficult for the surroundings to recognise in particular a paranoid psychosis.", "However, having regard to the information provided by [the applicant] about his claustrophobia and his contemplation of suicide, which resulted in his placement in an observation cell, the court finds that [the applicant], maybe already at the time of the arrest, behaved in such a way that could and should have caused a closer observance in the period to follow, than were actually performed of [the applicant's] mental development, in any case subsequent to [the applicant's] hunger strike in January 1995. The court finds that the authorities carry the burden of proof that the [above] circumstances have had no influence on the psychiatric damage incurred. Thus, the court finds that it cannot be excluded that the mental damage to a significant extent could have been avoided or reduced by a more thorough observation, and that the courts [had such an observation been carried out] would have had an opportunity for balancing the risk of (permanent) damage against the interest of the investigation cf. section 770b of the Administration of Justice Act.” J. The compensation proceedings before the High Court 54.", "Both the applicant and the prosecution appealed against the City Court judgment of 1 October 1998 to the High Court of Eastern Denmark. 55. Before the High Court a letter of 5 October 1998 was submitted containing an account of the nurses' monitoring of the applicant during his pre‑trial detention in solitary confinement during the period from 13 December 1994 until 28 November 1995. Thus, as to the forty-three medical inspections which had been carried out by nurses the head of nursing stated inter alia: “. It does not appear at any time from the nurses' report books summarising the visits that the nurses suspected that [the applicant] was developing a paranoid psychosis.", "Considering the nurses' background both in the prison service and the psychiatric system, one would expect that the nurses who made these visits would have observed it, if [the applicant] had been developing a psychosis-like condition. It should be added that the nurses' visits in the south wing [where the applicant was placed] were performed by the “permanent nurses” of the south wing, who were [therefore] able to monitor any changes in [the applicant's] mental condition.” 56. The head of nursing also testified before the High Court and explained the routines and observations of the prison nurses, including that the applicant gave cause for discussion only once at the nurses' morning conferences, namely when he was on his hunger strike. Otherwise, he was considered “nice and talkative” 57. A similar account was made as to the doctors' monitoring of the applicant, i.e.", "twenty-seven medical examinations carried out by doctors in the relevant period. In a letter of 2 October 1998 the chief consultant of the Copenhagen Prisons (Københavns Fængsler), a specialist of internal medicine and medical gastroenterology concluded inter alia: “that [the applicant] was not at any time found to be mentally ill to a major extent corresponding to the otherwise obvious and probable harmful effect of the solitary confinement ordered by the courts; that at no time [the applicant] was found to be borderline psychotic, not to mention psychotic (thus not suffering from a paranoid psychosis either); that the psychiatrist's assessment of [the applicant] on 18 January 1995 was carried out for administrative reasons only in connection with [the applicant's] short-term refusal to eat, which had caused no complications (it was not a total fast as [the applicant] drank juice). The psychiatric assessment was not carried out due to an uncertainty on the prison doctor's behalf as to [the applicant's] mental state, [since] neither the ordinary prison doctor nor, in particular, the psychiatrist had found [the applicant's mental state] very remarkable or even mentally threatened. [Instead] the psychiatrist made the said administrative assessment to make doubly sure that [the applicant] was found competent [to cope with the situation] concerning his refusal to eat.” 58. The chief consultant did not question that the applicant was found to be psychotic during the period of psychiatric observation from 8 December 1997 until 19 January 1998, but underlined that the applicant had not been found to be significantly mentally ill, borderline psychotic or psychotic during the period of detention from 13 December 1994 until 14 May 1996.", "None of the highly qualified and well‑trained doctors and nurses attending the applicant during that period had noted any signs of mental disorder in the applicant. He pointed out that the said doctors and nurses had plenty of experience with examining inmates held in solitary confinement and that they knew what telltale signs of oncoming or existing mental disorder to look for when examining such inmates. Accordingly, in the chief consultant's opinion, it could not established that the mental disorder, found when examining the applicant a year and a half after the determination of his detention, actually began during his detention at the Western Prison. 59. The chief consultant also provided a general account on visits and assessments of detainees.", "He mentioned that such may take place at counsel's request. In this respect the letter stated as follows: “Concerning [the applicant] it should be noted in this connection that the doctors [of the Prison and Probation Service] have received no inquiries during the said detention period from [the applicant's] prosecutor or two counsel, apart from the letter of 18 January 1995 from [the applicant's] first counsel and the letter of 21 June 1995 from [the applicant's] second counsel. In the letter of 18 January 1995 [the first counsel] stated that he found the applicant very depressed, and he asked that doctors attend to [the applicant]. No letter of reply was sent to [the first counsel] since he had not requested such, and since he had stated in the letter that he had not notified [the applicant] that he had written the said letter (all other things being equal, a reply would require [the applicant's] specific consent and thus indicate to [the applicant] that his counsel had sent a letter without his consent), but the most important reason for not sending a reply was the fact that [the applicant] had not been found depressed in connection with a medical assessment, including the psychiatric assessment made on 18 January 1995. If the latter had been the case, a letter of reply would have been forwarded to counsel nevertheless, possibly even without [the applicant's] specific (informed) consent, and ... also from the prison doctor to the judicial instances via the Prison and Probation Service.", "In the letter of 21 June 1995 [the second counsel] asked that herbal medicine ... be given to [the applicant]. Otherwise, [the two counsel] have not given notice orally, by telephone or in writing about any deviant state observed as to [the applicant]. [It should be noted in this respect that notably [the second counsel] and the doctors [of the Prison and Probation Service] are in regular good contact concerning the inmates' state of health and particular complex matters related thereto, also in relation to court measures, such as solitary confinement]. The doctors [of the Prison and Probation Service] are pleased to receive notices from everybody (including school teachers, ministers of religion etc. within and outside [the Prison and Probation Service], not to mention the applicant) regardless of the nature of the notices and the information since, all other things being equal, such notices give the doctors better possibilities of performing their work of ensuring the best possible conditions for the inmates' health subject to the terms ordered by the courts.", "“ 60. The chief consultant was heard as a witness before the High Court. He explained in more general terms the routines of the prison doctors and the attention focused on inmates held in solitary confinement for long periods and he gave further description of some of the findings noted in the medical record sheet relating to the applicant. 61. The applicant's case was discussed at the daily conferences between the doctors.", "The witness himself never saw the applicant. There were no signs that the applicant was characterised by incipient isolation syndrome. The symptoms of this syndrome are difficulties of concentrating, sleeping trouble, disturbed perception of time and space, disturbed interpretation of sensory impulses, depression, possibly with self destruction and thought of low self-esteem, fits of anxiety, lack of interests in surroundings. This may develop into a borderline psychosis, the symptoms being delusions/paranoia, feeling of unreality and into an actual psychosis. When he suspects incipient isolation syndrome, he writes to the prison management about it with a view to forward it to the counsel and the prosecutor.", "In 1998, for example, the witness wrote such letters in thirty‑two cases. He did not know exactly how many letters like that he wrote in 1995, but he has not changed practise in this respect since 1992. 62. As to the notes in the medical record of 17 January 1995, when the applicant was on hunger strike, the chief consultant specified that doctors always assess whether a person is mentally competent and understands the consequences of a hunger strike and that all doctors have psychiatric training. He would rather call the applicant's hunger strike a refusal to eat, since he drank plenty of water and juice, which contains calories and nourishment.", "According to the Medical Act (Lægeloven), a doctor is not allowed to interrupt a competent person's hunger strike by force. He may try to procure consent to treatment when the person becomes weak. The applicant granted no such consent. Force may be used against mentally ill persons. 63.", "As to the psychiatric attendance on 18 January 1995 the witness stated inter alia that the applicant was found to suffer from a situational reaction such as many new detainees do. It is not uncommon in the Western Prison that inmates state their intention of going on hunger strike. The applicant was not in any bodily danger, but might in time become mentally endangered. Thus, the close observation of the applicant continued. 64.", "The Director of the Copenhagen Prisons gave his account before the High Court of the monitoring of the applicant during the latter's pre-trial detention and period of solitary confinement. In a letter of 7 October 1998 he stated, among other things: “For the purpose of this account the prison management has procured information on [the applicant's] stay in the prison from the chief consultant, the head of nursing, the welfare worker, supervisory staff [at the applicant's unit] and from his workplace in the prison. Supervisory staff in the south wing [which monitored the applicant during his entire period in solitary confinement] stated that despite the solitary confinement he functioned well, knew how to structure his everyday life and occupy himself, and he did not in any way appear mentally conspicuous. At no time did the staff find any reason to contact the health staff to obtain a psychiatric assessment, which is otherwise an initiative very frequently taken by staff. The principal officer of the west wing [to which the applicant was transferred after the solitary confinement] and the staff in the kitchen where he worked have stated the same.", "[The applicant's] welfare worker who regularly talked with him during his entire detention has also stated the same. With reference to the comments of the court [in connection with the compensation proceedings] decisive importance must be attached, however, to the question whether these assessments are supported by the doctors' monitoring of [the applicant]. The chief consultant has provided the appended statement on the case. For details please refer to this assessment. It appears from the chief consultant's statement that during his entire period of detention [the applicant] has been extremely carefully monitored and assessed by doctors.", "Visits by doctors, including psychiatrists, may be carried out at the request of the health staff of the Copenhagen Prisons, but may also be carried out at the request of staff, counsel or the prosecutor. In [the applicant's] case, counsel only once requested a visit from a doctor [i.e. the first counsel in his letter of 18 January 1995], which had, however, already been made by a psychiatrist in connection with the hunger strike, cf. below. During all visits, doctors and nurses of the Copenhagen Prisons have their attention directed at signs of psychoses, both obvious signs and minute signs.", "They are, of course, particular attentive to such signs in a case of solitary confinement, which is in itself a stressful measure. If, in connection with a visit, a doctor finds even the slightest suspicion that the inmate is or may possibly be on his way to become mentally ill, a statement to that effect is given to counsel and the prosecutor. This was not done in [the applicant's] case, as there was never at any time any suspicion of a mental illness. The reason why [the applicant] was attended to by a psychiatrist on 18 January 1995 at the initiative of the Copenhagen Prisons was not that a mental illness was suspected, but solely that the internal guidelines prescribe this when inmates go on hunger strike. Anyway, no psychopathological characters were found at the examination, but a situational reaction ...Particularly referring to the chief consultant's statement, the Copenhagen Prisons repudiate that [the applicant] has been subjected to failure of health monitoring.", "During his entire stay, [the applicant] was regularly visited by doctors and nurses, and these visits have not given any rise to any suspicion of mental disorders...” 65. Moreover, by letter of 8 October 1998 the Director of the Western Prison gave his account of the monitoring of the applicant during the latter's pre-trial detention and solitary confinement. The letter read inter alia: “After the passing of the judgment in the compensation proceedings on 1 October 1998 I have had conversations with the following persons about [the applicant's] stay in the Copenhagen Prisons: DW, then social worker in the east unit, states that [the applicant] was an intelligent and interesting young man. During his stay [the applicant] started painting. He read a lot.", "His behaviour was not conspicuous. He seemed present during conversations. He was bitter and angry with the police and felt unjustly treated. These thoughts did not seem pathological to DW. JL, prison officer, ... , who knew [the applicant] during his entire stay in the south wing, stated that he painted, was active and seemed to function well.", "He was good-humoured to be with and was given a rather free rein. He was always ready with a gay remark. He was considered by all staff as a person who functioned well and was not conspicuous. He knew how to establish an everyday life. He felt unjustly treated by the system and thought that solitary confinement in general could be considered as some kind of torture.", "CL, prison officer, ... , who also monitored [the applicant] in the south wing, stated that he was not pathologically conspicuous. He was quite ordinary to talk to. In the circumstances he managed the solitary confinement incredibly well. JEL... who was the foreman in the kitchen where [the applicant] worked after the solitary confinement, stated that he did not seem mentally conspicuous or affected by the long solitary confinement. VB, principal officer, west wing, stated that [the applicant] functioned well during his stay in the west wing after the solitary confinement and did not seem affected by the solitary confinement.” 66.", "Additional statements from the Legal‑Psychiatric Clinic and the Medico‑Legal Council were submitted on 29 April 1999 and 9 August 1999 respectively, and the applicant and several witnesses were heard. 67. By judgment of 27 August 1999 the High Court granted the applicant compensation in the amount of DKK 1,334,600 covering as follows: non-pecuniary damage DKK 100,000 lost earnings DKK 125,000 loss of working capacity DKK 1,022,000 disablement DKK 87,600 68. The High Court found that the applicant's mental illness was caused or mainly caused by the solitary confinement, but pointed out that on the basis of the medical statements before it, it was not possible to establish when the mental disorder broke out or how it had progressed. On the material before it, the court found it established that during his detention the applicant had been treated in a proper manner.", "Thus, having regard to the reason for the solitary confinement and the treatment of the applicant during this period, the court found that in spite of the duration of the solitary confinement and its serious effects on the applicant's mental health, Article 3 of the Convention could not be considered breached. 69. The court found that compensation for non-pecuniary damage was justified pursuant to section 1018a § 2 of the Administration of Justice Act for the deprivation of liberty exceeding the sentence laid down in the verdict of 14 May 1996. However, according to section 1018a § 3 of the said Act the applicant was found to a considerable extent to have given rise to the measures himself, due to so-called “own fault”, in the period between 13 December 1994 until 26 September 1995, when the applicant made the statement to the police as to his participation in diamonds smuggling. Accordingly, a sum of DKK 100,000 was found to be reasonable.", "Also, the compensation for lost earnings was reduced due to “own fault”. 70. The amounts for disablement and loss of working capacity were calculated on the basis of the Compensation Act (Erstatningsansvarsloven), and the information on the applicant's previous yearly income. Since no exact moment of injury could be established the court chose 13 December 1994 as the starting point. Considering that it was common knowledge to the authorities that solitary confinement entails a risk of disturbing the mental health, and taking into account the extraordinary and severe damage, which the long lasting detention in segregation caused the applicant, the court found no reason to reduce these amounts on the “own fault” considerations.", "71. Finally, the High Court decided that the Government should pay all the legal costs before the City Court as well as before the High Court. K. The compensation proceedings before the Supreme Court 72. Having been granted leave to appeal, before the Supreme Court (Højesteret) the applicant claimed compensation in the amount of DKK 18,618,602.36 for pecuniary and non-pecuniary damage. By judgment of 5 September 2000 the Supreme Court reduced the amount to be paid in compensation to DKK 1,109,600, covering as follows: non-pecuniary damage DKK 0 lost earnings DKK 0 loss of working capacity DKK 1,022,000 disablement DKK 87,600 73.", "The Supreme Court agreed unanimously with the High Court that the solitary confinement was the main reason for the applicant's mental suffering. Also, noting that there was no reason to assume that the applicant had not been treated in a proper manner during his detention on remand, it confirmed the High Court's finding that the case disclosed no appearance of a violation of Article 3 of the Convention. 74. Moreover, the Supreme Court upheld the High Court's finding that to a significant extent the applicant himself gave rise to measures taken against him, and pointed out that the applicant's explanations during the criminal proceedings did not leave an impression of being provided by someone who lacked ability to act rationally. 75.", "As to the amounts regarding compensation for disablement and loss of working capacity the Supreme Court confirmed that it was common knowledge that solitary confinement entails a risk of disturbing the mental health. On the other hand it found that the applicant could not have foreseen, by his conduct and the measures to which he was consequently subjected, that accordingly he would be induced a permanent mental disorder causing loss of working capacity and disablement. Therefore, the Supreme Court endorsed that the amounts covering compensation for disablement and loss of working should not be reduced on “own fault” considerations. 76. As to the applicant's claim covered by Section 1018a, Subsection 2 cf.", "Subsection 1, the majority of the Supreme Court (three judges) stated: “We find that by participating in the papaya project and by his attitude shown during part of the detention period, notably by having actively opposed the investigation of the case, [the applicant] is thereby excluded from obtaining compensation for these claims pursuant to Section 1018a, Subsection 3 of the Administration of Justice Act.” A minority of two judges stated: “When assessing the 'own fault' shown by [the applicant], regard must be had to the difficult situation he was facing and to the severity of the measure [he was subjected to], thus in our view [own fault] should not influence the compensation to be awarded to cover lost earnings as to the period after 12 October 1995 or non-pecuniary damage as to the period after 26 September 1995. The case contains no such special circumstances, which can justify a deviation from the administrative rates fixed to cover non‑pecuniary damage. Otherwise agreeing with the High Court's reasoning concerning each of the claims we find that the applicant, in addition to compensation for loss of working capacity and disablement, be granted DKK 250,000 covering lost earnings and DKK 106,800 covering non-pecuniary damage.” 77. The Supreme Court decided that the applicant pay legal fees in the amount of DKK 37,500 inclusive VAT. II.", "RELEVANT DOMESTIC LAW 78. The relevant provisions of the Administration of Justice Act read as follows at the relevant time: Section 762 1. A suspect (en sigtet) may be detained on remand when there is a reasonable ground for suspecting that he has committed an offence which is subject to public prosecution, provided that under the law the offence may result in imprisonment for one year and six months or more, and (i) according to information received concerning the suspect's situation, there are specific reasons for assuming that he will evade prosecution or execution of judgment, or (ii) according to information received concerning the suspect's situation, there is specific reason to fear that, if at large, he will commit a new offence of the nature described above, or (iii) in the circumstances of the case, there are specific reasons for assuming that the suspect will impede the investigation, in particular by removing evidence or by warning or influencing others. 2. ... 3.", "Detention on remand may not be imposed if the offence can be expected to result in a fine or in light imprisonment (hæfte) or if the deprivation of liberty will be disproportionate to the interference with the suspect's situation, the importance of the case and the sanction expected if the suspect is found guilty. Section 770a 1. At the request of the police the court may decide that a detained shall be totally or partially excluded from association with other inmates (solitary confinement) if (i) the detention on remand was decided pursuant to Section 762, Subsection 1 (iii), and (ii) the purpose of the detention on remand requires solitary confinement in order to prevent the suspect from influencing co-suspects though other inmates or from influencing others by threats or in another similar way. 2. Totally solitary confinement may not be imposed for a continuous period of more than eight weeks unless the charge relates to an offence which, under the law, may result in imprisonment for six years or more.", "Section 770b Solitary confinement may not be initiated or continued if the purpose thereof can be fulfilled by less radical measures or if the measure is disproportionate to the importance of the case and the sanction to be expected if the suspect is found guilty. Decisions on solitary confinement must also take into account the special potential strain on the suspect owing to his youth or physical or mental weakness. Section 1018a 1. Any person who has been arrested or held in custody as part of a criminal prosecution is entitled to compensation for the damage suffered thereby if the charges are withdrawn or the accused is acquitted... 2. Even if the conditions for granting compensation under subsection 1 are not satisfied, compensation may be granted if the deprivation of liberty cannot be considered proportionate to the outcome of the prosecution, or if it is found unreasonable for other particular grounds.", "3. The compensation may be reduced or refused, if the person charged has given rise to the measures himself. III. THE FINDINGS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT 79. The CPT visited Denmark from 2 to 8 December 1990.", "With regard to solitary confinement it found inter alia the following (CPT/Inf (91) 12): 136. ... at the Western Prison the CPT's delegation was able to observe at first hand the practice of the solitary confinement of remand prisoners ordered by judicial decision. Numerous allegations were made as regards the adverse effects of such confinement. The CPT wishes to underline that, in certain circumstances, solitary confinement could amount to inhuman and degrading treatment, and that in any event all forms of solitary confinement should be as short as possible. The question of solitary confinement is currently being examined by the Danish authorities.", "The CPT, for its part, has formulated several recommendations designed to strengthen the protection of prisoners in this area. Emphasis is placed in particular on the importance of the respect of the principle of proportionality between the requirements of the investigation and placement in solitary confinement (a measure which can have very harmful consequences for the persons concerned), of an effective periodic judicial review of the solitary confinement, and of the proper medical examination of a prisoner subject to such a measure. 80. The CPT also visited Denmark from 29 September to 9 October 1996. Its findings with regard to solitary confinement, and the condition of the Western Prison were the following (CPT/Inf (97) 4): 3.", "Solitary confinement of remand prisoners by court order 54. In the course of its ongoing dialogue with the Danish authorities, the CPT has stressed that all forms of solitary confinement without appropriate mental and physical stimulation are likely in the long term to have damaging effects, resulting in deterioration of mental faculties and social abilities. It has paid particular attention to the solitary confinement of remand prisoners by court order, which can continue for extended periods. 55. The Danish authorities have long recognised the importance of this subject and, in 1990, the Minister of Justice commissioned a research project to examine \"any possible harmful effects of being remanded in custody in solitary confinement\".", "The results of that research were published, in a report entitled \"Remand in Custody and Mental Health\", in May 1994. The research team found that: \"...remand in custody in solitary confinement versus non-solitary confinement involves the risk of harmful effects on mental health\" and that \"...there is a greater probability that those in solitary confinement develop mental problems and are transferred to prison hospitals for mental reasons than those who are not placed in solitary confinement\". (cf. page 164 of document CPT/Inf (96) 14) However, researchers found no proven link between the length of judicially-ordered solitary confinement and prisoners' mental health. The report concludes that: \"... the harmful effects of solitary confinement are not in general such as to result in abnormalities in the cognitive functions, e.g.", "concentration and memory\". (cf. page 165 of document CPT/Inf (96) 14). The Criminal Justice Review Committee is currently examining the findings of \"Remand in Custody and Mental Health\", with a view to re-assessing the rules governing placement in judicially ordered solitary confinement. In addition, the same research team is producing a follow-up study, which is to be published in the form of a supplementary report.", "56. The CPT welcomes the fact that the mental health of prisoners in judicially ordered solitary confinement has been the subject of a study. However, it feels bound to point out that, during its 1996 visit, a considerable number of doctors, lawyers, prison staff and other persons who have frequent contact with such inmates expressed considerable surprise at the study's principal conclusion. In their experience, prisoners subjected to lengthy periods of judicially ordered solitary confinement frequently exhibited lapses in concentration, memory loss and impaired social skills. These observations were borne out by the Committee's own findings during its second periodic visit.", "Many prisoners subject to judicially ordered solitary confinement complained of symptoms including anxiety, depression, inability to concentrate, irregular sleeping patterns, nausea and persistent headaches. In one particular case, the delegation's psychiatric expert was of the opinion that symptoms such as impairment of concentration, depressive mood and suicidal thoughts could be attributed to the inmate's lengthy placement in solitary confinement. In short, notwithstanding the principal conclusion of \"Remand in Custody and Mental Health\", the CPT considers that there remain serious grounds for concern about the effects upon remand prisoners' mental health of being placed in judicially-ordered solitary confinement for prolonged periods. 57. In addition to stressing that all forms of solitary confinement should be as short as possible, the CPT's 1991 report recommended that the Danish authorities take steps to ensure that remand prisoners were only placed in solitary confinement in exceptional circumstances which were strictly limited to the actual requirements of the case.", "It also recommended that there be an effective judicial review of placements in solitary confinement and that, where a placement was prolonged, the reasons for such prolongation be set out in writing (cf. paragraph 29 of document CPT/Inf (91) 12). In their response, the Danish authorities asserted that Danish law was already in accordance with these recommendations and cited a steady fall in the number of remand prisoners being placed in judicially-ordered solitary confinement. 58. The CPT welcomes the above-mentioned fall.", "However, the information gathered during the second periodic visit would suggest that - at least in respect of certain types of cases (serious drugs offences, crimes of violence etc.) - the balance between the legitimate requirements of a criminal investigation and the potentially harmful effects of imposing solitary confinement is still not being struck in an appropriate way. As an example, senior police officers, prosecutors and judges with whom the delegation spoke agreed that it would be extremely unusual were solitary confinement not to be sought (and granted) in a case brought under Section 191 of the Administration of Justice Act (which deals with serious drugs offences). It is also noteworthy that a detailed examination of the court transcript of a randomly-selected Section 191 case showed that no specific reasons had been given by the judge for imposing solitary confinement; instead, he had simply cited the statute which authorised him to grant the prosecutor's request. Furthermore, although it is true that the statistical information which has been supplied by the Danish authorities shows a downward trend in the number of placements in solitary confinement, it also indicates that the average length of solitary confinement has increased.", "Indeed, in the course of the 1996 visit, the CPT's delegation met a number of prisoners who had been subject to judicially ordered solitary confinement for long periods of time (one for ten months, two for six months and six for three months or more). 59. In the light of the information set out above, the CPT considers that further action is required to ensure that the safeguards in Danish law concerning the placement of remand prisoners in solitary confinement are rendered fully effective in practice. The CPT recommends that steps be taken to ensure that: - prosecutors are reminded that they should only seek a placement in solitary confinement when this is strictly necessary in the interests of a particular criminal investigation; - on every occasion when the question of whether to impose or prolong solitary confinement is raised before a court, the reasoned grounds for the decision which results are recorded in writing; - prisoners are systematically informed in straightforward language of the reasons for their placement in judicially-ordered solitary confinement; - in the context of each periodic review of the necessity to continue remand in custody, the necessity to continue a placement in solitary confinement is fully considered as a separate issue, bearing in mind the general principle that all placements in solitary confinement should be as short as possible. The Committee also invites the Danish authorities to consider introducing a maximum limit on the total period for which a remand prisoner may be placed in solitary confinement.", "60. The effect upon remand prisoners of being placed in judicially ordered solitary confinement can be exacerbated by the imposition of prohibitions/restrictions upon their letters and visits. The imposition of such restrictions lies within the sole discretion of the police (although a prisoner may appeal to a court against the imposition of restrictions). In the course of its second visit, the delegation found that the police rarely if ever sought to prohibit letters or visits; however, it was common for remand prisoners' letters to be monitored and their visits supervised. In its report on the first visit, the CPT recommended that the police be given clear instructions on the circumstances in which such prohibitions/restrictions might be imposed and required to state the reasons in writing for any such measures.", "This recommendation has not been implemented by the Danish authorities, who consider that the Administration of Justice Act already provides sufficient safeguards in this respect. In the view of the CPT, the current system of police-imposed restrictions upon letters and visits still does not adequately ensure that the measures adopted in a given case will be strictly proportionate to the needs of the criminal investigation involved. Accordingly, the Committee recommends that the Danish authorities take steps to implement its 1991 recommendation on this subject without further delay. The CPT also recommends that, in the context of each periodic review by a court of the necessity to continue remand in custody, the question of the necessity for the police to continue to impose particular restrictions upon a remand prisoner's visits and letters be considered as a separate issue. 61.", "As regards the question of activities for remand prisoners placed in judicially-ordered solitary confinement, the Committee was pleased to note that the Ministry of Justice fully agrees with the CPT's view that persons in solitary confinement should be provided with access to purposeful activities and appropriate human contact in order to counteract the effects of being placed in solitary confinement (cf. page 165 of document CPT/Inf (96) 14). During the second periodic visit, the delegation noted that efforts were being made to achieve this objective in the establishments visited. The CPT recommends that the Danish authorities pursue their efforts in this respect. 4.", "Conditions of detention in general ... b. the Western Prison in Copenhagen i. introduction 64. Since the CPT's first visit to the Western Prison in 1990, the establishment has become the reception facility for all of the Copenhagen Prisons (a role previously filled by the Police Headquarters Prison, cf. paragraph 62, above); the Western Prison now has a turnover of between 8,000 and 10,000 inmates per year. With an official capacity of 439, on the first day of the 1996 visit the establishment was holding 426 inmates. (As compared to some 403 (with an official capacity of 430) at the time of the first periodic visit) ... 81.", "The Danish Government replied inter alia as follows: According to the existing Danish legislation, only the courts can decide whether a suspect may be placed in solitary confinement and that such a decision requires that certain conditions are met, i.e. that the suspect is remanded in custody because he or she must be prevented from influencing other suspects through other inmates or in any other way. Total isolation was only possible for a maximum period of eight weeks unless the person involved was charged with a criminal offence punishable by six years' imprisonment or more. Furthermore, the principle of proportionality must be observed – hence, if the purpose of the solitary confinement may be achieved through other means of less vital importance, or if the solitary confinement is disproportionate to the importance of the case and the legal consequences to be expected if the suspect is found guilty, solitary confinement must not be used. When deciding this matter, the judge must also take into account the strain, which solitary confinement may put upon the suspect due to the suspect's young age or mental or physical weakness.", "The Government also pointed out that the number of persons kept in solitary confinement was decreasing significantly over the years and that the conditions to be met in order to keep someone in solitary confinement were among the strictest in Europe; Only the courts can decide to detain a suspect in solitary confinement and the courts' decisions regarding this issue must explain in detail the reasons for this decision; The staff of the Danish Prisons has been instructed to inform the prison doctor/nurse in all cases where a prisoner wishes to get medical attention. The prison doctor will specifically look not only for somatic inmates but also psychiatric problems when examining an inmate. It is always possible for the doctor to inform the prison management and in certain cases also the public prosecutor, the inmate's counsel and the courts of whether and to what extent a psychopathological symptom ascertained must be deemed to have been caused or worsened by solitary confinement and what the inmate's prognosis must be deemed to be under continued solitary confinement. Such medical information will form part of the considerations of the courts when deciding whether solitary confinement is proportionate in the case in question; The Administration of Justice Act contains specific provisions concerning prohibitions/restrictions of the prisoners' correspondence and visits, and a prisoner who is subjected to such restrictions has a right to request that the decisions be brought before a court. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 82. The applicant complained that the Danish Authorities subjected him to treatment contrary to Article 3 of the Convention since they detained him in remand in solitary confinement from 14 December 1994 until 28 November 1995 allegedly in spite of being aware that solitary confinement damages the mental health of a person. Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties' submissions 83. The applicant found that his pre-trial detention in solitary confinement from 14 December 1994 until 28 November 1995 by itself violated Article 3 of the Convention since the authorities allegedly were aware that solitary confinement damages the mental health of a person.", "84. Moreover, he maintained that while detained in solitary confinement medical monitoring of his condition had been insufficient, notably in that the examinations failed to aim at ascertaining whether a mental disorder was developing. Thus, he alleged that during his time in the Western Prison no psychiatric examinations as such had been carried out in this respect. 85. Also, as to the accounts given by the doctors, nurses and the staff at the Western Prison in the beginning of October 1998 on the monitoring of his condition while in solitary confinement, the applicant points out that those were submitted after the City Court in its judgment had expressed a very critical opinion with regard to the said monitoring.", "Thus, it was only after the passing of the judgment by the first instance court in the compensation proceedings that these very categorical statements were made. 86. The Government maintained that in general there is no basis for claiming that pre-trial detention in solitary confinement as provided for by Danish law constitutes torture in contravention of Article 3 of the Convention. More specifically they submitted that the applicant's detention on remand in solitary confinement, which lasted eleven months and fourteen days, was not in breach of the said provision. There had been reasonable grounds for suspecting that the applicant had committed a very serious crime that might have resulted in prolonged imprisonment, and solitary confinement was necessary to prevent the applicant from impeding the police investigation.", "Moreover, the applicant himself gave rise to a considerable extent to the duration of the pre-trial detention in solitary confinement by maintaining until 26 September 1995 his false statement, as agreed with the other co-accused, PL, and by fabricating false diary notes in support thereof. The solitary confinement had been lifted as soon as the applicant could no longer influence the investigation, for example through communication with the co-accused in order that they harmonise their statements. 87. The Government further submitted that the authorities did not know, nor could have known, that the applicant was harmed by being detained in solitary confinement. They did not question that the applicant was found to be psychotic during the period of psychiatric observation from 8 December 1997 until 19 January 1998, but maintained that during the period from 14 December 1994 until 28 November 1995, he did not show any signs of oncoming or existing mental disorder and that he was indeed effectively monitored, notably forty-three times by nurses and twenty-seven times by doctors, who were well‑trained and knew what telltale signs to look for when examining inmates in solitary confinement.", "In this respect they referred inter alia to the statements submitted by the Chief Consultant of the Copenhagen Prisons on 2 October 1998. 88. In addition, they pointed out that the solitary confinement did not imply total isolation from other people. The applicant had daily contact with the prison staff and regularly visits by nurses, doctors, a welfare worker, his counsel, and others from the outside world, although the latter took place under surveillance. Finally, the Government noted that the applicant in fact chose to remain in voluntary solitary confinement in the period from 28 November until 12 December 1995.", "B. The Court's assessment 89. As the Court has held on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).", "90. According to the Court's case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162). Furthermore, in considering whether 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.", "However, the absence of such a purpose cannot conclusively rule out a finding of a violation of this provision (see Peers v. Greece, no. 28524/95, §§ 67-68 and 74, ECHR 2001-III, and Valašinas v. Lithuania, no. 44558/98, § 101, ECHR 2001-VIII). 91. In the light of Article 3 of the Convention, the State must ensure that a person is detained under conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject the individual to distress or hardship exceeding the unavoidable level of suffering inherent in detention, and that, given the practical demands of imprisonment, the person's health and well-being are adequately secured (see Kudła v. Poland [GC], no.", "30210/96, §§ 92-94, ECHR 2000-XI), with the provision of the requisite medical assistance and treatment (see, mutatis mutandis, the Aerts v. Belgium judgment of 30 July 1998, Reports 1998-V, p. 1966, §§ 64 et seq.). When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as the specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001‑II). 92. The Court notes that the applicant's complaints under Article 3 of the Convention concern two issues: 1) Whether the duration of the isolation period was excessive or put in other words, whether the length of the solitary confinement, which lasted from 14 December 1994 until 28 November 1995, in itself was in breach of the said provision; and 2) Whether the applicant's state of mental health was effectively monitored during this period.", "1) Whether the duration of the isolation period was excessive 93. The Court reiterates that solitary confinement is not in itself in breach of Article 3 (cf. Valašinas v. Lithuania and Peers v. Greece, cited above). “Whilst prolonged removal from association with others is undesirable, whether such a measure falls within the ambit of Article 3 of the Convention depends on the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned” (see e.g. Hosie v. United Kingdom, application no.", "27847/95, Commission decision of 23 October 1997, R v. Denmark, no. 10263/83, Commission decision of 11 March 1985, DR 41 p. 149 and Ensslin, Baader, Raspe v. Germany, no. 7572/76, 7586/76 and 7587/76, Commission decision of 8 July 1978, DR 14, p. 64). 94. In the above-mentioned R v. Denmark, although finding no appearance of a violation of Article 3 of the Convention, the Commission stated that 17 months' of solitary confinement was an undesirable length of time, and that the authorities must ensure that its duration does not become excessive.", "95. Furthermore, the Court notes for instance the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment after their visit to Denmark from 29 September to 9 October 1996 (CPT/Inf (97) 4)), from which it appears that the issue of solitary confinement had featured prominently in the ongoing dialogue between the CPT and the Danish authorities. The Committee stressed that all forms of solitary confinement without appropriate mental or physical stimulation are likely in the long term to have damaging effects, resulting in deterioration of mental faculties and social abilities. 96. On the other hand, the Court reiterates its finding in Messina v. Italy (dec.), no.", "25498/94, ECHR 1999‑V concerning the applicant's placement under a special regime for approximately four and a half years because of very serious offences linked to the Mafia of which he had been convicted or with which he had been charged. The Court found that the treatment did not reach the minimum level of severity for it to amount to a violation of Article 3 of the Convention. Again, in Bastone v. Italy (dec), no. 59638/00, on 18 January 2005, the Court declared inadmissible the applicant's complaint under Article 3 of the Convention about the special prison regime that he was subjected to from 1993 until 2003 aimed at preventing him from having contact with the Mafia. Finally, in Öcalan v. Turkey, [GC], no.", "46221/99, § 196, 12 May 2005, while concurring with the CPT's recommendations that long-term effects of the applicant's relative social isolation (which had lasted since 16 February 1999, thus more than six years at the date when the judgment was adopted) should be attenuated by giving him access to the same facilities as other high security prisoners, such as television and telephone contact with his family, the Court found that the general conditions in which he was detained as the sole inmate at İmralı Prison had not thus far reached the minimum level of severity required to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention. 97. In the present case, the length of the solitary confinement lasted from 14 December 1994 until 28 November 1995, thus, eleven months and fourteen days. The Court notes that a period of such a length may give rise to concern because of the risk of harmful effects upon mental health, as stated on several occasions by the CPT. However, when assessing whether the length was excessive under Article 3 the Court must also take into account the conditions of the detention including the extent of the social isolation.", "The applicant was detained in a cell which had an area of about eight square metres and in which there was a television. Also, he had access to newspapers. He was totally excluded from association with other inmates, but during the day he had regular contact with prison staff, e.g. when food was delivered; when he made use of the outdoor exercise option or the fitness room; when he borrowed books in the library or bought goods in the shop. In addition, every week he received lessons in English and French from the prison teacher and he visited the prison chaplain.", "Also, every week he received a visit from his counsel. Furthermore, during the segregation period in solitary confinement the applicant had contact twelve times with a welfare worker; and he was attended to thirty-two times by a physiotherapist, twenty‑seven times by a doctor; and forty-three times by a nurse. Visits from the applicant's family and friends were allowed under supervision. The applicant's mother visited the applicant approximately one hour every week. In the beginning friends came along with her, up to five persons at a time, but the police eventually limited the visits to two persons at a time in order to be able to check that the conversations did not concern the charge against the applicant.", "Also, the applicant's father along with a cousin visited the applicant every two weeks. 98. In these circumstances, the Court finds that the period of solitary confinement in itself, lasting less than a year, did not amount to treatment contrary to Article 3 of the Convention. 2) Whether the applicant's state of mental health was effectively monitored during this period. 99.", "The Court recalls that the authorities are under an obligation to protect the health of persons deprived of liberty and the lack of appropriate medical care may amount to treatment contrary to Article 3 (see, among others, McGlinchey and Others v. the United Kingdom, no. 50390/99, § 57, ECHR 2003‑V, and İlhan v. Turkey [GC], no. 22277/93, § 87, ECHR 2000-VII). In the case of mentally ill persons, the assessment of whether the treatment or punishment concerned is incompatible with the standards of Article 3 has, in particular, to take into consideration their vulnerability and their inability, in some cases, to complain coherently or at all about how they are being affected by any particular treatment (see, for example, Herczegfalvy and Aerts v. Belgium, both cited above). In the judgment Keenan v. United Kingdom, no.", "27229/95, ECHR 2001‑III, §§ 113-116, the Court was struck by the lack of medical notes concerning the applicant, who was an identifiable suicide risk. It found a lack of effective monitoring of the applicant's condition and that the lack of informed psychiatric input into his assessment and treatment disclosed significant defects in the medical care provided to a mentally ill person known to be a suicide risk. 100. In the present case the applicant was placed in an observation cell from 13 December 1994 at 8 p.m. until 14 December 1994 12.30 p.m. because he had stated that he suffered from claustrophobia and expressed contemplation of suicide. The Court notes that this period concerns the very first day of the applicant's arrest, before the authorities decided to detain him in solitary confinement.", "Also, it observes that during this sixteen-and-a-half-hour-period the applicant was observed thirty-six times by the prison staff, twice by nurses. 101. During the period of solitary confinement from 14 December 1994 until 28 November 1995 the applicant was attended to by medical or health care staff regularly, thus twenty‑seven times by a doctor, forty-three times by a nurse, thirty-two times by a physiotherapist, and a couple of times by a dentist. With regard to the reports relating to the twenty-seven medical inspections carried out by a doctor, the following events are found noteworthy: 102. On 11 January 1995 a doctor attended the applicant and refused to prolong the prescription for sleeping pills.", "The doctor established that the applicant had no complaints of claustrophobia and advised him to take “physical exercise” to achieve natural fatigue instead of chemical, tablet-induced sleep. 103. During a period starting approximately mid January 1995 until the end of that month the applicant went on a hunger strike, although he drank fruit juices. In this connection he was monitored every day by doctors in the period from 16 until 18 January 1995. On 17 January 1995, the applicant stated that he was determined to starve himself to death, whereupon the prison doctor informed him of the relevant Danish regulation, which prescribes respect for the desires of mentally competent persons, even the desire of dying.", "The doctor found the applicant mentally capable and not abnormal for the purposes of taking this decision and the doctor received and accepted the applicant's refusal of medical intervention i.e. artificial feeding at any future potentially fatal weakening of the applicant's health. Furthermore, the doctor found the applicant physically normal and without any acetone smell which usually occur at fasts. The doctor prescribed the applicant a sleeping pill for that night. According to the prison rules, the doctor also requested a psychiatric assessment of the applicant – a requirement when inmates go on hunger strike even if no signs of mental disorder are found.", "The following day, on 18 January 1995 the applicant informed a doctor that he had drunk but that he expected to be dead within three weeks. The doctor found the applicant physically normal and without any signs of dehydration. As to the applicant's mental health, the doctor awaited the psychiatric examination, which was scheduled to take place on the same day. In his report the psychiatrist concluded: “Visit to a thirty-year-old male, charged with Article 191[of the Penal Code (straffeloven)], of which, according to himself, he is innocent. He is now carrying out a hunger strike, as a protest against his conception that the press and others have convicted him in advance, and he is fully aware of the consequences of such an act and is at present writing farewell letters, his will, etc.", "Diagnosis: situational reaction.” Subsequently, until the applicant decided to start eating again at the end of January 1995, thus a period of approximately twelve days, the applicant was attended to twice a week by a doctor. 104. In March 1995 an EEG scanning was carried out, notably to check the applicant for epilepsy. On 1 May 1995 a doctor attended the applicant because he complained of continuously pain in his lower back. The doctor ordered that he be given an extra mattress and referred him to a physiotherapist.", "105. On 12 December 1995 the applicant decided to leave the solitary confinement that he had volunteered to since 28 November 1995, when it was lifted by the court. Moreover, having volunteered for kitchen duty, he was attended to by a doctor, as the Chief Consultant of the Copenhagen Prisons had stated that inmates with indications of for example mental disorders or significantly deviating conduct were not accepted for kitchen duty. 106. On the basis of the medical notes submitted, the Court considers it established that the applicant was attended to by medical staff automatically and regularly, and that the latter reacted promptly and increased their observation of the applicant, whenever he showed any change in mood or behaviour.", "107. In addition to the medical notes submitted, the Court recalls inter alia the statement provided on 2 October 1998 by the Chief Consultant of the Copenhagen Prisons. He did not question that the applicant was found to be psychotic during the period of psychiatric observation from 8 December 1997 until 19 January 1998, that is more than two years after the termination of the solitary confinement, but underlined that the applicant had not been found to be significantly mentally ill, borderline psychotic or psychotic during the period of detention from 13 December 1994 until 14 May 1996. Moreover, he stressed that the psychiatrist's assessment of the applicant on 18 January 1995 was carried out for administrative reasons only in connection with the applicant's short‑term refusal to eat. It was thus not carried out due to any uncertainty on the prison doctor's behalf as to the applicant's mental state, and neither the prison doctor nor the psychiatrist found the applicant's mental state particularly remarkable or even threatened.", "Before the High Court the chief consultant repeated that none of the highly qualified and well‑trained doctors and nurses attending the applicant during the relevant period had noted any signs of mental disorder in the applicant. He pointed out in that respect that the said doctors and nurses had plenty of experience with examining inmates held in solitary confinement and that they knew what telltale signs of oncoming or existing mental disorder to look for when examining such inmates. However, there were no signs that the applicant was characterised by incipient isolation syndrome. The symptoms of this syndrome are difficulties of concentrating, sleeping trouble, disturbed perception of time and space, disturbed interpretation of sensory impulses, depression, possibly with self-destruction and low self-esteem, attacks of anxiety, lack of interest in surroundings. An incipient isolation syndrome may develop into a borderline psychosis, the symptoms being delusions/paranoia, feeling of unreality and into an actual psychosis.", "When he suspects incipient isolation syndrome, he writes to the prison management about it with a view to forwarding it to the counsel and the prosecutor. In 1998, for example, the witness wrote such letters in thirty‑two cases. He did not know exactly how many such letters he had written in 1995, but he has not changed practice in this respect since 1992. 108. In these circumstances the Court cannot share the applicant's view that the monitoring carried out was not as such adequate and sufficient.", "Admittedly, the applicant was not automatically or regularly examined by a psychologist or a psychiatrist. In the Court's opinion, however, such a general obligation cannot be imposed on the authorities, or the detainees for that matter, in order that the States comply with the requirement that persons in solitary confinement are effectively monitored. 109. Finally, the Court will proceed to examine whether observations made by other persons of the applicant's behaviour during his pre-trial detention in solitary confinement could or should have given rise to the authorities increasing their monitoring or submitting the applicant to further psychological or psychiatric examinations. In particular, the Court notes the testimonies given by the applicant's mother, his cousin, the prison chaplain, and the prison teacher before the City Court in the compensation proceedings (see §§ 48-51).", "However, none of those four witnesses expressed the opinion that the applicant had developed a mental illness and they did not at any time during the applicant's detention in solitaryconfinement report their observations or their concerns to the courts, the counsel, the prison management, the nurses or the doctors. Having addressed the latter would have been highly appropriate, as will be seen from the statement given by the Chief Consultant of the Copenhagen Prisons as to his general practice of reporting suspicion of incipient isolation syndrome to the prison management with a view to forwarding it to the counsel and the prosecutor. 110. In these circumstances, the Court concludes that there was no lack of effective monitoring of the applicant's condition or lack of psychiatric assessment or lack of medical attention, which could amount to a treatment contrary to Article 3 of the Convention. FOR THESE REASONS, THE COURT Holds by 4 votes to 3 that there has been no violation of Article 3 of the Convention; Done in English, and notified in writing on 21 July 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Santiago QuesadaChristos Rozakis Deputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following dissenting opinion of Judges Rozakis, Loucaides and Tulkens is annexed to this judgment. C.L.R. S.Q. JOINT DISSENTING OPINION OF JUDGES ROZAKIS, LOUCAIDES AND TULKENS We do not share the conclusion of the majority that there has been no violation of Article 3 in the present case for the following reasons. 1.", "Leaving aside the question whether the case-law cited under § 96 of the judgment ought to be distinguished from the present case owing to the differences in the criminal offences concerned, clearly a distinction needs to be made between, on the one hand, social isolation or a special regime imposed after a conviction by a court and, on the other, pre-trial detention in solitary confinement, as in the present case. At the relevant time, according to sections 770a and 770b of the Administration of Justice Act, pre-trial detention in solitary confinement: “...cannot be initiated or continued if the purpose thereof can be fulfilled by less radical measures or if the measure is disproportionate to the importance of the case and the sanction to be expected if the suspect is found guilty. Decisions on solitary confinement must also take into account the special potential strain on the suspect owing to his youth or physical or mental weakness”. Thus, solitary confinement was an exceptional measure, which could be applied only when it was considered absolutely necessary in the circumstances. Nevertheless, in this case, the City Court and, on appeal, the High Court, when prolonging the applicant's solitary confinement, gave rather general reasons for their decisions and did not specify why, in the circumstances, solitary confinement was considered absolutely necessary or, to put it another way, why the applicant had to be totally excluded from association with other inmates.", "Moreover, the decisions did not elaborate on whether less radical measures had been considered, for example they did not explain why “normal” pre-trial detention under section 762 of the Administration of Justice Act was not considered sufficient in the circumstances. Also, we find it noteworthy that the solitary-confinement measure was lifted on 28 November 1995 as soon as the applicant admitted before the City Court his involvement in the import of the papaya fruit (see §§ 13-19). Taking these considerations into account, we are not convinced that it was absolutely necessary, in the circumstances, to subject the applicant to the exceptional measure of pre-trial detention in solitary confinement for such a long time. 2. In the present case from 8 p.m. on 13 December 1994, the day of his arrest, until 12.30 p.m. the following day the applicant was placed in an observation cell because he had stated that he was suffering from claustrophobia and contemplating suicide.", "Subsequently, from 14 December 1994 until 28 November 1995, he was detained in solitary confinement and accordingly placed in a cell in which he was totally excluded from association with other inmates. On the basis of the medical notes and statements that were produced, the Court considered it established that the medical staff had monitored the applicant and placed him under increased surveillance whenever he showed any change in mood or behaviour. Nevertheless, the applicant was attended to only once by a psychiatrist, namely on 18 January 1995, less than one month after he had been detained in solitary confinement. During the remaining period of solitary confinement, which lasted until 28 November 1995 (that is to say, for another ten months), no psychological or psychiatric examination was carried out of the applicant. We reiterate in this connection that the CPT in its report of 1991 (CPT/Inf (91) 2) had underlined that, in certain circumstances, solitary confinement could amount to inhuman and degrading treatment, and that in any event all forms of solitary confinement should be as short as possible.", "It recommended that the Danish authorities take steps to ensure that remand prisoners were only placed in solitary confinement in exceptional circumstances which were strictly limited to the actual requirements of the case. Also, we observe that at the relevant time a research project had been commissioned by the Minister of Justice to examine “any possible harmful effects of being remanded in custody in solitary confinement”, the result of which had been published in a report in May 1994 stated that the research team had found inter alia that: “...remand in custody in solitary confinement versus non-solitary confinement involves the risk of harmful effects on mental health” and that “...there is a greater probability that those in solitary confinement develop mental problems and are transferred to prison hospitals for mental reasons than those who are not placed in solitary confinement” (see, for instance, page 164 of document CPT/Inf (96) 14). In these circumstances and having regard to the fact that the applicant had displayed mental vulnerability at an early stage of his detention, for example he said he was contemplating suicide on the day he was arrested, we find that it would have been reasonable to expect the authorities to arrange for the applicant to receive regular psychological or psychiatric examinations on their own initiative. Also, we note the observations made by the following persons as regards the applicant's behaviour during his pre-trial detention in solitary confinement: The applicant's mother stated, among other things, that she felt that it was worst for the applicant during the detention period when he was also solitary confined. Thereafter, he became more human and spoke more coherently.", "During the solitary confinement he wrote some letters with weird contents, including a letter with incomprehensible presentation of how the universe works. She had talked with counsel about getting a psychologist in from outside, but it was too difficult to cope with and nothing came of it. She would describe the difference in the applicant's behaviour before and after by saying that he used to be dynamic, committed and extrovert but had become grumpy and inaccessible. The applicant's cousin stated, among other things, that the applicant seemed deeply unhappy and preoccupied. Often he was just listening.", "He had also changed appearance, having grown a big beard and lost weight. The applicant became better as time passed, as if he had found some peace. The prison chaplain stated, among other things, that the applicant moved with great care around the grounds and walked practically sideways along the wall. He moved like a person who had done no exercise and seemed timid. The applicant needed exercise, both physically and mentally.", "He had a great feeling of powerlessness. The applicant seemed different than other inmates, like a stranger in that he could both think and talk and was not already “busted”. The chaplain found that in general persons detained in solitary confinement looses their concentration. This was also the case as regards the applicant. The applicant cheered up and felt stimulated by the visits to the chaplain and it has been difficult to end the consultations as the applicant kept finding new subjects and knew which subjects were interesting to the chaplain.", "The prison teacher stated, among other things, that the applicant from the first day seemed desperate. Subsequently he appeared resigned. On his index card of 18 September 1995, the teacher had noted that the applicant got more and more depressed. The applicants' physical condition worsened, he got careless about himself, both concerning clothing and hygiene. The applicant read a lot, although he encountered difficulties in concentrating.", "Apparently, none of these four witnesses reported their observations or their concerns to the courts, counsel, the prison management, the nurses or the doctors, which may have resulted in a psychological or psychiatric assessment having been carried out. In our view, however, such assessments should not depend on a request but instead should be part of a system of automatic regular monitoring of long-term detainees in solitary confinement. We believe that only under these conditions can the required monitoring be considered effective. In view of the above we find that there has been a violation of Article 3 of the Convention in this case." ]

[ "THIRD SECTION CASE OF SEGHETI v. THE REPUBLIC OF MOLDOVA (Application no. 39584/07) JUDGMENT STRASBOURG 15 October 2013 FINAL 15/01/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Segheti v. the Republic of Moldova, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Alvina Gyulumyan,Ján Šikuta,Luis López Guerra,Kristina Pardalos,Johannes Silvis,Valeriu Griţco, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 24 September 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "39584/07) 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 Romanian national, Mr Ionel Segheti (“the applicant”), on 30 August 2007. 2. The applicant was represented by Mr R. Zadoinov, a lawyer practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol. 3.", "The applicant alleged, in particular, that he had been held in inhuman conditions of detention. 4. On 5 January 2010 the application was communicated to the Government. On the same date the Romanian 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), but they expressed no wish to avail themselves of this right. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1960 and lives in Cricova. 6. The applicant worked as a consultant for the Romanian Embassy in Moldova. On 12 April 2005 he was arrested by Moldovan police in Călăraşi, Moldova, on suspicion of having made false accusations against a third person.", "While the parties did not submit any copies of judgments concerning the applicant’s criminal proceedings, it follows from his correspondence that on an unknown date he was convicted to eight years’ imprisonment. He was placed in detention in prison no. 3 in Chişinău (previously known as prison no. 13) on 12 April 2005. On 5 October 2006 he was transferred to prison no.", "15 in Cricova. On 6 August 2009 he was transferred to the Pruncul prison hospital (prison no. 16), where he received inpatient treatment until 18 August 2009 for hypertension and cardiac insufficiency. A. The applicant’s description of the conditions of his detention 7.", "The applicant described the conditions of his detention in prison no. 3 in Chişinău as follows. He was detained with thirty-nine other people in a 40 sq. m cell without ventilation or heating. Prisoners sometimes had to take turns to sleep and had to wait for a daily time-slot of two to three hours to obtain running tap water, which made hygiene issues in the prison a lot worse.", "The toilet was located in the cell itself and gave off a foul odour because there were no products to clean it with. The food was inedible. 8. He described the conditions of his detention in prison no. 15 as follows.", "On 5 October 2006 he was placed in a cell measuring 60 sq. m with twenty-six other people, which left very little space for each detainee. In the absence of any work or other activities, he had nothing to do and spent most of his time in the cell. 9. No bedding was given to the applicant and he had to ask his relatives to bring him some.", "The same was true of items of personal hygiene. He had to wear the same clothes he had been wearing when he was admitted to the prison, since no clothes were provided by the prison administration. 10. Water from a single tap was available during the day but not at night, and owing to the number of detainees in the cell it was not always possible to have access to it. Food was scarce and of very poor quality.", "The library contents were old and there were no reading materials about the Convention. The applicant also claimed that he had been given insufficient medical treatment in both detention facilities. B. The Government’s description of the applicant’s conditions of detention 11. According to the Government, the space available to the applicant in various cells of prisons no.", "3 and 15 always exceeded 4 sq.m. In particular, in prison no. 15 he was held in a detention block for working prisoners. The first cell he was detained in measured 61.6 sq.m and accommodated fifteen people. Shortly thereafter he was transferred to a cell measuring 30 sq.m, which accommodated three detainees.", "He was later moved to another cell measuring 24 sq.m, which also accommodated three detainees. All the cells had the correct number beds for detainees and were equipped with a water tap and a toilet. 12. The Government submitted a list confirming that the applicant was given medical assistance on a number of occasions in both prisons no. 3 and no.", "15, including inpatient treatment for an ulcer in 2005. II. RELEVANT MATERIALS 13. The relevant parts of the report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT) concerning its visit to Moldova from 20 to 30 September 2004 read as follows (unofficial translation): “54. The delegation visited five establishments run by the Ministry of Justice: prison no.", "3 in Chişinău [and] correctional facilities nos. 4 and 15 in Cricova ... 55. In view of the economic situation in the country, the situation in the majority of prisons visited remained difficult and the delegation encountered a number of problems already identified during its visits in 1998 and 2001 in terms of the physical conditions of detention and regimes. ... 81. Correctional facility no.", "15 has four detention blocks where the prisoners were divided into different units, according to whether they were classed as workers (units 2, 3, 4 and 6) or non-workers (units 1, 5, 7 and 8). Unlike correctional facility no. 4, despite the shabbiness of the premises, the establishment gave an overall impression of cleanliness and satisfactory upkeep. The laudable efforts made in this regard deserve to be highlighted. But again, much depended on the resources [available to the] prisoners for fitting out and renovating the cells.", "Physical conditions ranged from acceptable to good on occasion. This was the case as regards unit 5 which held non-working detainees. Other dormitories – while remaining in an acceptable state of upkeep and cleanliness – presented difficult conditions there being, in some cases, fewer beds than occupants, windows with panes missing and a lack of basic amenities, certain essentials (such as mattresses, sheets, blankets or crockery) having been obtained through the charity of fellow-prisoners. Again, living space was often restricted in some of the dormitories, a situation which was partially alleviated by an open-door policy within the sections. 83.", "Except in the Lipcani Re-education Correctional Facility for Minors, where the efforts made in this respect regard are to be highlighted... the quantity and quality of prisoners’ food everywhere is a source of grave concern. The delegation was inundated with complaints regarding the absence of meat and dairy products. The findings of the delegation, regarding both stock levels of food and the menus, confirm the credibility of these complaints. The delegation’s findings also confirm that in certain places (Colonies 3 and 4) the food served was repulsive and virtually inedible (for instance, insects and vermin were present). This is hardly surprising, given the general state of the kitchens and their modest equipment.", "The Moldovan authorities have always claimed financial difficulties in ensuring that prisoners receive adequate food. However, the Committee reiterates that this is a fundamental requirement of life that must be ensured by the State to persons in its care, and that nothing can exonerate it from such responsibility. Failure to meet this obligation is all the more unacceptable as, under legislation, working prisoners in the institutions visited contribute to the cost of feeding themselves and their fellow-prisoners. ... 85. In the light of the above, the CPT recommends that the Moldovan authorities: ... -ensure that each prisoner in correctional facility nos.", "4 and 15 has his own bed with the necessary bedding (mattress, sheets, blankets) and that all windows are glazed; -remove the screens from the windows in the cells in unit 1 of correctional facility no. 15 to allow for the proper entry of natural light and fresh air; -commence the refurbishment of the sanitary equipment in correctional facility nos. 4 and 15 and in the Re-education Correctional Facility for Minors forthwith, in the light of the remarks made above; -immediately guarantee that inmates in Prison nos. 3, ... 4 and 15, as well as in all other affected prisons, receive adequate food served in accordance with the basic rules of hygiene; -take all requisite measures to ensure adequate water, electricity and fuel supplies in correctional facility nos. 4 and 15, as well as in all other affected prisons; ...” 14.", "The relevant parts of the report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment concerning his visit to Moldova from 4 to 11 July 2008 (The United Nations Human Rights Council, document A/HRC/10/44/Add.3, 12 February 2009) read as follows: “B. Conditions in places of detention Institutions under the Ministry of Justice 30. Undoubtedly, progress has been achieved in improving conditions of detention. [1] However, some of the institutions visited by the Special Rapporteur were heavily overcrowded. The authorities themselves pointed out that Institution No.", "13 in Chişinău was severely overcrowded - on the day of the visit it held 931 persons with the official capacity being 600 (see also appendix). The Special Rapporteur was informed of Government plans to close down this institution. 31. Common problems at all pre- and post-trial prisons are the poor hygienic conditions, restricted access to health care and lack of medication as well as risk of contamination with tuberculosis and other diseases. Whereas the Special Rapporteur notes that the minimum norms regarding nutrition of detainees (Government Decision n. 609 of 29 May 2006) are checked on a daily basis and that, according to the financial plan of the Penitentiary Department, the food budget for 2008 had almost doubled in comparison to 2004 and is set to rise further, he also received consistent allegations regarding the poor quality and quantity of food.", "...” 15. In its report for 2009 (page 117 – “Conditions of detention”), the Centre for Human Rights in Moldova (“the Human Rights Centre”, which also acts as the Moldovan Ombudsman) found, inter alia, that: “Regarding personal hygiene, clothing and bedding, despite [the fact that] Government decision no. 609 (29 May 2006) concerning minimum daily food requirements and the issuing of items of personal hygiene provides for the issuing of soap to detainees for bathing and other sanitary-hygienic needs, this has remained unfulfilled during 2009.” 16. In its report for 2010 (page 142 et seq. – “Conditions of detention”) the Human Rights Centre found, inter alia, that: “... [T]he Prisons Department informed the Ombudsman that meat and fish products are provided [to detainees] whenever possible.", "At the same time, that authority stated that, owing to the difficult financial situation, during 2010 the detainees in prison no. 17 in Rezina received 75% and 80% of their normal quotas of meat and fish products respectively. In this connection, the Minister of Justice submitted information concerning the expenditure on prisoners’ food in 2010. The cost amounted to MDL 24.05 million, whereas the budgetary need for the same year was, according to the Ministry of Finance’s draft budget, MDL 29.05 million. The daily cost of feeding a detainee in 2010 was MDL 10.24 [approximately EUR 0.60], while the daily budgetary need was MDL 12.35.", "This statistic was often cited by prison administrations to justify why they were unable to provide detainees with meat and fish ...” 17. On 24 October 2003 Parliament adopted Decision no. 415-XV approving the National Human Rights Action Plan for 2004-2008. The Plan included a number of objectives to be achieved over a four-year period and was aimed at improving conditions of detention, including reducing overcrowding, improving medical treatment, introducing detainees to employment and encouraging their social reintegration, as well as carrying out training for personnel. Regular reports were to be submitted regarding the implementation of the Action Plan.", "On 31 December 2003 the Government adopted a decision on the principles of reorganisation of the prison system, together with the 2004-2013 Action Plan for the Reform of the Prison System, both having the aim, inter alia, of improving the conditions of detention in prisons. 18. On an unspecified date the Ministry of Justice produced a report entitled “Implementation by the Ministry of Justice of Chapter 14 of the National Human Rights Action Plan for 2004-2008, approved by Parliament Decision no. 415-XV of 24 October 2003”. On 25 November 2005 the Parliamentary Commission for Human Rights also produced a report on implementation of the National Action Plan.", "Both reports confirmed the insufficient funding of the prison system and the resulting failure to fully implement the Plan in Moldovan prisons, including prison no. 3 in Chişinău. The first of these reports stated, inter alia, that “as long as the aims and actions outlined in [the National Human Rights Action Plan] do not have the necessary financial support ... it will remain only a good intention of the State to protect human rights as described in Parliament Decision no. 415-XV of 24 October 2003 ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 19.", "The applicant complained that he had been detained in inhuman conditions, both in prison no. 3 in Chișinău and in prison no. 15 in Cricova. 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 20. The Government argued that the applicant had failed to exhaust available domestic remedies.", "In particular, under Article 4 § 2 of the Constitution, the Convention is part of the domestic legal system and has priority over other laws. Therefore, the applicant should have lodged civil proceedings with the domestic courts, relying both on the Convention directly and on various provisions of the Civil Code. 21. The applicant argued that he had no effective remedies in respect of his complaint under Article 3 of the Convention. 22.", "The Court reiterates that it has examined on numerous occasions the issue of domestic remedies in respect of poor conditions of detention in Moldova (see Sarban v. Moldova, no. 3456/05, §§ 57-62, 4 October 2005; Holomiov v. Moldova, no. 30649/05, §§ 101-107, 7 November 2006; Istratii and Others v. Moldova, nos. 8721/05, 8705/05 and 8742/05, § 38, 27 March 2007; Modarca v. Moldova, no. 14437/05, § 47, 10 May 2007; and Stepuleac v. Moldova, no.", "8207/06, § 46, 6 November 2007), and has concluded on each occasion that the remedies suggested by the Government were ineffective in respect of individuals currently held in detention. In Malai v. Moldova (no. 7101/06, §§ 42-46, 13 November 2008), it found a violation of Article 13 of the Convention on account of the lack of effective domestic remedies in respect of inhuman and degrading conditions of detention, concluding that “it has not been shown that effective remedies existed in respect of the applicant’s complaint under Article 3” concerning conditions of detention. In the present case, the applicant was still in detention at the time of lodging his complaint. The Court finds, therefore, that the application cannot be declared inadmissible for non-exhaustion of domestic remedies and accordingly the Government’s objection must be dismissed.", "23. The Court notes that in the present case the applicant made four complaints regarding the conditions of his detention: (i) insufficient medical assistance, (ii) cell overcrowding, (iii) poor hygiene, and (iv) the quality and quantity of food. The Court considers that he did not substantiate the first of these complaints. Moreover, the Government submitted specific information confirming that he had received medical assistance on numerous occasions. 24.", "As for cell overcrowding, the Court is aware of the general situation in Moldovan prisons and has found a violation in a number of cases concerning this issue. However, it appears from the Government’s submissions (the applicant having focused on overcrowding in prison no. 3), that in prison no. 15 he initially had 4 sq.m of personal space, which was later increased to 8 and even 10 sq.m (see paragraph 11 above). In the absence of any evidence to the contrary, the Court concludes that the complaint concerning overcrowding in the applicant’s cell in prison no.", "15 is unsubstantiated, since the space available to him was above the minimum of 4 sq. m recommended by the CPT. 25. The Court refers to the principles established in its case-law (see, for instance, I.D. v. Moldova, no.", "47203/06, §§ 27-29, 30 November 2010) concerning the calculation of the six-month time-limit for lodging applications concerning conditions of detention. In particular, where conditions of detention in several different places are complained of, the alleged violation may amount to a “continuing situation” if the main characteristics of the periods of detention under examination are essentially the same. Otherwise, each period of detention will be treated separately, and the complaint in respect of each such period must be lodged with the Court within six months from the end date of such detention. 26. As it follows from paragraph 24 above, there was no cell overcrowding in the applicant’s case while he was detained in prison no.", "15. Therefore, the problem of overcrowding cannot be considered to amount to a continuing situation, and any complaint in that regard concerning detention at prison no. 3 should have been lodged with the Court within six months of the applicant leaving that prison and no longer being subjected to the alleged violation. However, the applicant lodged his complaint ten months after his transfer to prison no. 15 (see paragraphs 1 and 6 above).", "It follows that this part of the complaint has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 27. The Court notes that the complaints concerning poor hygiene and food in prisons no. 3 and 15 is essentially the same, and can be considered to amount to a “continuing situation”. Therefore, this aspect of the conditions of detention in both institutions must be examined as a whole.", "The Court considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 28.", "The applicant submitted that the conditions of his detention in both prison no. 3 and no. 15 had amounted to inhuman treatment. In particular, the food served had been inedible and he had been denied his normal quota of fish, meat and dairy products. He had been held in poor sanitary conditions, the cell having been infested with vermin.", "Furthermore, the toilet had been situated only 1.5 metres from the dining table and had given off a foul odour because there had been no products to clean it with. 29. The Government submitted that in accordance with Government Decision no. 1054 (in force since 1 January 2009) hygiene products such as soap, toothbrushes and toothpaste, toilet paper and washing powder were distributed to all detainees. Bedding was changed at least once a week, after the Prisons Department bought over 20,000 different items of bedding in 2009.", "Washing machines were at the detainees’ disposal. Food corresponded to sanitary and nutritional norms; the prison doctor in both prison nos. 3 and 15 checked the quality of the food. While certain foods such as meat, fish and dairy products were provided whenever available, after 2006 the situation improved considerably and these products were provided in sufficient quantities. 30.", "As regards conditions of detention, the Court reiterates that the State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000‑XI, and Popov v. Russia, no. 26853/04, § 208, 13 July 2006). 31. In the present case, the Court notes that a number of sources, both national and international (see paragraphs 13-16 above) indicate that, at least until 2009, sanitary conditions in most of the prisons visited, including prisons nos.", "3 and 15, were substandard. It is also apparent that both the quantity and quality of food served to detainees raised serious concerns. The Court also notes that it has found the conditions of detention, notably in prison no. 3, to have been contrary to Article 3 requirements even in mid-2008, notably concerning the quality of food served there and in prison no. 15 (see Ciorap v. the Republic of Moldova (no.", "3), no. 32896/07, §§ 33-37, 4 December 2012). 32. The Government argued that significant improvements had been made in 2009, an effort which the Court appreciates. At the same time, this could not have improved the applicant’s situation from the date of his arrest in 2005 until the allegedly significant improvements had been achieved in 2009.", "33. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 3 of the Convention in the present case. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 34. The applicant complained that he did not have an effective domestic remedy in respect of his complaints under Article 3 of the Convention.", "He relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 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 36. The Government argued that it was open to the applicant to bring a civil claim for compensation for any alleged violation of Article 3 of the Convention. They relied on the cases of Gristiuc and Drugaliov, as cited in Feraru v. Moldova (no. 55792/08, § 27, 24 January 2012). 37.", "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 of the Convention 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. 38. In the present case, for the same reasons as those which have led to the dismissal of the Government’s objection concerning exhaustion of domestic remedies (see paragraph 22 above), the Court finds that there has been a violation of Article 13 of the Convention due to the absence of effective remedies in respect of complaints concerning conditions of detention in Moldova. 39.", "There has therefore been a breach of Article 13 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 40. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 41.", "The applicant claimed 20,000 euros (EUR) in compensation for the damage caused to him as a result of the violation of his rights under Articles 3 and 13 of the Convention. 42. The Government argued that no compensation was due in the absence of a violation of any Convention-protected rights. In any event, the amount claimed was excessive in view of the Court’s case-law. 43.", "Having regard to the nature of the violations found above, the Court considers that an award for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant EUR 5,000. B. Costs and expenses 44. The applicant claimed EUR 11,857 for costs.", "He submitted an itemised list detailing the hours his lawyer worked on the case (at an hourly rate ranging between EUR 30 and EUR 180). 45. The Government argued that both the number of hours worked on the case and the rates charged by the lawyer were excessive. 46. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 covering costs under all heads. C. Default interest 47. 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 (concerning poor hygiene as well as quality and quantity of food) and Article 13 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 13 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 the respondent State’s national currency 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 English, and notified in writing on 15 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Santiago QuesadaJosep CasadevallRegistrarPresident [1]. The Government indicated that a large number of prisons have undergone or are currently undergoing renovation of their heating, water supply systems, sanitary facilities or roofing (e.g. no. 1 - Taraclia, no. 3 - Leova; no.", "5 - Cahul, no. 6 - Soroca; no. 9 - Pruncul; no. 17 - Rezina; no. 18 - Branesti; some of these projects are supported by international or bilateral donors." ]

[ "FIFTH SECTION CASE OF SHANKO v. UKRAINE (Application no. 39970/02) JUDGMENT STRASBOURG 26 July 2007 FINAL 26/10/2007 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 Shanko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: MrP. Lorenzen, President,MrsS.", "Botoucharova,MrK. Jungwiert,MrV. Butkevych,MrsM. Tsatsa-Nikolovska,MrR. Maruste,MrM.", "Villiger, judges,and Mrs C. Westerdiek, Section Registrar, Having deliberated in private on 3 July 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 39970/02) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Oleg Nikolayevich Shanko (“the applicant”), on 22 October 2002. 2. The Ukrainian Government (“the Government”) were represented by their agents, Mrs. V. Lutkovska succeeded by Mr Y. Zaytsev, and by Mrs I. Shevchuk, Head of the Office of the Government Agent before the European Court of Human Rights.", "3. On 27 June 2005 the Court decided to communicate the complaint concerning the length of the proceedings to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1934 and lives in Poltava.", "He is a former manager of the State Company “Znamya” (the “Company”; Державне підприємство «Виробниче об'єднання «Знамя»). 5. In 1996 the applicant was convicted and sentenced for embezzlement of the Company funds and his conviction became final. Since then the applicant has unsuccessfully attempted to have the proceedings re-opened and the conviction repealed. 6.", "In August 1996 the Poltava Regional Prosecutors' Office, acting on behalf of the Company, brought a civil claim against the applicant for compensation of damage caused by his offence. 7. The hearings began in March 1998. Until February 2000 the court scheduled some thirteen hearings with intervals ranging from one week to six months. Seven hearings were adjourned on account of the applicant's absences or requests and four hearings on account of the absence of both parties.", "According to the applicant, most of his absences were attributable to defective notifications about the date of a hearing. The Government did not comment on this issue. 8. On 17 February 2000 the District Court allowed the claim and awarded the Company 96,682 hryvnyas[1] against the applicant. The applicant appealed.", "9. On 20 May 2000 the District Court returned the applicant's appeal as “not lodged” on account of his failure to pay the court fee. The applicant appealed, seeking to be exempted from the payment. 10. On 12 October 2000 the local municipal council exempted the applicant from paying the court fee and on 16 November 2000 the Regional Court declared his appeal admissible.", "11. On 7 December 2000 the Regional Court quashed the judgment of 17 February 2000. 12. Between January 2001 and May 2002 the District Court scheduled three hearings (in April and November 2001 and March 2002). One hearing was adjourned on account of the judge's sickness and two other hearings on account of the parties' failure to appear.", "13. On 22 May 2002 the District Court left the claim without consideration due to the parties' second failure to appear for the hearings. This decision was not appealed against within the statutory time-limit and became final. 14. On 11 December 2002 the Prosecutor's Office applied to the District Court for leave to appeal out of time against the decision of 22 May 2002 maintaining, that it had not been informed of this decision within the time-limit for lodging an appeal.", "The application was granted on 17 January 2003. 15. On 15 May 2003 the Regional Court allowed the appeal and re-opened the proceedings, having found that the parties had not appeared as the District Court had not duly notified them about the dates of the hearings. The applicant lodged a cassation appeal against the decision to re-open the proceedings. 16.", "On 20 September 2004 the Supreme Court rejected the applicant's cassation appeal. 17. Between October 2004 and July 2005 the District Court scheduled three hearings (one in May and two in July 2005). 18. In July 2005 the plaintiff dropped the claims and on 14 July 2005 the proceedings were terminated.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 19. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, 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...” 20. The Government contested that argument. 21.", "The Court notes that the proceedings at issue were instituted in 1996. However, the period to be taken into consideration began only on 11 September 1997, when the recognition by Ukraine of the right of individual petition took effect. Nevertheless, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The period in question ended on 14 July 2005, when the plaintiff dropped the claims. It thus lasted seven years and ten months, during which period the merits of the case were examined by two levels of jurisdiction.", "A. Admissibility 22. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 23. The 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). 24. Turning to the facts of the present case, the Court finds that the domestic authorities are largely responsible for delays in the civil proceedings at issue (notably, for the prolonged periods of inactivity and defective communication practices, such as failures to inform the parties of the hearing dates and to notify the plaintiff about the decision of 22 May 2002 in due time).", "The Court has already found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see e.g., Moroz and Others v. Ukraine, no. 36545/02, § 59, 21 December 2006 and, mutatis mutandis, Sukhorubchenko v. Russia, no. 69315/01, §§ 53-56, 10 February 2005). 25. 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. 26. There has accordingly been a breach of Article 6 § 1. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 27.", "The applicant also complained about breach of his rights set forth by Articles 5, 6, 7 and 13 of the Convention in the course of the criminal proceedings against him and about infringement of the guarantees of Article 2 of Protocol No. 7 on account of the authorities' refusal to review his final conviction. He further stated that the civil proceedings against him were unfair contrary to Article 6 § 1. Lastly, the applicant invoked Articles 3, 14 and 17 of the Convention to the facts of the present case. 28.", "Having carefully examined the applicant's submissions in the light of all the material in its possession, and insofar 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. 29. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 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.” A. Damage 31. The applicant claimed 1,281,351,008 dollars (1,084,328,517 euros (EUR)) in respect of pecuniary and 91,000 dollars (EUR 77,007) in respect of non-pecuniary damage. 32. The Government contested these claims.", "33. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage. However, the amount claimed is excessive. Ruling on an equitable basis, the Court awards him EUR 2,400 under that head.", "B. Costs and expenses 34. The applicant also claimed 7,000 dollars (EUR 5,924) in legal fees incurred by him in connection with the criminal proceedings and 300 dollars (EUR 254) for postal, translation, and other costs and expenses. 35. The Government contested these claims.", "36. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court recalls that the legal fees claimed by the applicant were incurred not in connection with the civil proceedings at issue in the present case. It further notes that the applicant presented no receipts or other evidence of postal and other expenses claimed. Having regard to the information in its possession and the Court's case-law, the Court dismisses the claim under this head.", "C. Default interest 37. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the excessive length of the civil proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,400 (two thousand four hundred euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 26 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident [1]. EUR 15,924." ]

[ "FOURTH SECTION CASE OF GRYZIECKA and GRYZIECKI v. POLAND (Application no. 46034/99) JUDGMENT STRASBOURG 6 May 2003 FINAL 06/08/2003 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 Gryziecka and Gryziecki v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrsE. Palm,MrsV.", "Strážnická,MrM. Fischbach,MrJ. Casadevall,MrR. Maruste,MrL. Garlicki, judges,and Mr M. O’Boyle, Section Registrar, Having deliberated in private on 8 April 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 46034/99) against the Republic of Poland lodged on 30 January 1998 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 Polish nationals, Danuta Gryziecka and Henryk Gryziecki (“the applicants”). 2. The applicants were represented by Mrs Koczorowska, a lawyer practising in Szczecin, Poland. The Polish Government (“the Government”) were represented by their Agent, Mr Krzysztof Drzewicki, of the Ministry of Foreign Affairs.", "3. The applicants alleged that their right to a “hearing within a reasonable time” had not been respected. 4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No.", "11). 5. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of the Court. 6.", "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 (Rule 52 § 1). 7. By a decision of 10 January 2002 the Court declared the application admissible. THE FACTS 8.", "The applicants, Danuta Gryziecka (“the first applicant”) and Henryk Gryziecki (“the second applicant”), were born in 1950 and 1949 respectively, and live in Niedźwiedź, Poland. 9. On 31 August 1981 J.P. (“the plaintiff”) sued the applicants in the Szczecin Regional Court (Sąd Wojewódzki) seeking repayment of the money he had invested in the applicants’ hen house. 10. On 11 September 1981 the case was transferred to the Stargard Szczeciński District Court (Sąd Rejonowy) as the court competent to decide it.", "11. On 11 November 1981 the applicants filed their pleadings with the court. They acknowledged the plaintiff’s claim in respect of 728,000 old Polish zlotys. 12. On 17 March 1982 the court stayed the proceedings because the plaintiff had not complied with a certain court order.", "On 30 September 1982 the plaintiff’s lawyer requested to resume the proceedings. On 7 March 1983 the court resumed the proceedings. 13. On 22 March 1983 the court held the first hearing. Subsequently, from that date to 9 February 1989 the court held approximately nine hearings.", "In the meantime the plaintiff had modified his claim. 14. On an unknown date in 1984 the applicants transferred the sum of 728,000 old Polish zlotys to the plaintiff’s account. 15. In July 1984 the plaintiff died.", "Subsequently, his wife and daughter (“the plaintiffs”) joined the proceedings as his legal successors. 16. On 9 February 1989 the court held a hearing. The witness did not appear. The court decided to obtain evidence from a bank.", "17. On an unknown date in 1989 the plaintiffs modified their claim. 18. From that date to 9 November 1992 the court held a number of hearings. It obtained three expert reports, held one view of the site and heard some witnesses.", "The plaintiffs again modified their claim. 19. On 9 November 1992 the court decided to obtain fresh expert evidence in order to determine the value of certain construction works made by the second applicant. The expert report was submitted to the court on 22 December 1992. 20.", "On 27 May 1993 the expert report was served on the applicants’ lawyer. On 3 June 1993 the applicants submitted their observations on it. On 19 April 1994 the plaintiffs asked the court to set a date for a hearing. 21. On 7 July and on 11 August 1994 respectively the court ordered the parties to produce the evidence in support of their submissions.", "22. On 19 May 1995 the court held a hearing and heard evidence from certain witnesses. It also ordered the plaintiffs’ lawyer to specify their claim and to produce the marriage certificate of the late plaintiff. On 5 April 1996 the plaintiffs specified the value of the claim. 23.", "On 10 and on 21 May 1996 respectively, the plaintiffs requested the court to list a hearing. In the meantime, the case had been assigned to a new judge. 24. On 20 August 1996 the court decided that fresh expert evidence be obtained, in order to determine the value of the land on which the hen house had been constructed. On 12 November 1996 the expert report was submitted to the court.", "On 11 December 1996 it was served on the applicants. On 27 December 1996 they submitted their observations on the report. 25. On 14 January 1997 the plaintiffs’ lawyer requested the court to list a hearing. On 18 March 1997 the applicants filed their pleadings with the court.", "26. On 24 March 1997 the court held a hearing. The applicants requested that the court index the repayment of their bank loan and the payment made to the original plaintiff in 1984. The applicants also requested to obtain documentary evidence from the land register. The court fixed a one-month time-limit for the parties to produce the evidence.", "Subsequently, the parties filed their pleadings with the court on 22 April 1997. On 22 May 1997 the applicants filed additional pleadings. 27. On 2 June and on 14 July 1997 respectively the court held hearings. On both occasions a certain witness did not appear before the court.", "The court fined him. On 16 September 1997 the plaintiffs again modified their claim. 28. On 17 September 1997 the court held a hearing and heard evidence from one witness. The applicants requested the court to obtain expert evidence in order to determine an indexed value of the repayment of their bank loan and the payment made by the applicants in 1984.", "29. In the meantime the case had been assigned to a new judge. Subsequently, on 22 January 1998 the court held a hearing. 30. On 12 March 1998 the court held a hearing.", "The plaintiffs withdrew their claims against the first applicant. The court closed the proceedings. It did not obtain any expert report even though the applicants had secured money for such a report. 31. On 26 March 1998 the court gave judgment.", "It partly granted the claim of the original plaintiff’s daughter against the second applicant and dismissed the claim of the original plaintiff’s wife. The court discontinued the proceedings in respect of the first applicant. None of the parties submitted a notice of appeal. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 32.", "The applicants complained that the length of the proceedings in their case exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention which, in its relevant part, reads: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 33 The Government contested this view. A. Period to be taken into consideration 34. The proceedings started on 31 August 1981, when the plaintiff sued the applicants in the Szczecin Regional Court. However, the period to be taken into consideration began not on that date, but on 1 May 1993, when the declaration whereby Poland recognised the right of individual petition for the purposes of former Article 25 of the Convention took effect.", "The proceedings ended on 26 March 1998, the date of the Stargard Szczecinski District Court’s judgment. The total length of the applicants’ case at the date of the adoption of this judgment accordingly amounts to 16 years, 6 months and 26 days, of which the period of 4 years, 10 months and 25 days falls within the Court’s jurisdiction ratione temporis. 35. The Court notes that in order to assess the reasonableness of the length of time in question, regard must be had to the stage reached in the proceedings on 1 May 1993 (see, among other authorities, Humen v. Poland [GC], no. 26614/95, §§ 58-59, 15 October 1999, unreported).", "B. Reasonableness of the length of the proceedings 36. The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what was at stake for the applicant in the litigation (see, for instance, Humen v. Poland cited above, § 60; and Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 1. Complexity of the case 37.", "The Government submitted that the case itself had not been complex. However, it had been rendered complex by the fact that the court had to obtain expert opinions in order to determine the value of certain construction works carried by the second applicant, the value of the land and the amount of money the plaintiffs had invested in the property. Furthermore, the Government maintained that on two occasions the plaintiffs had modified their claim, which added to the complexity of the case. 38. The applicants disagreed with the Government and argued that the case had not been complex.", "39. The Court considers that, even though the case involved a degree of complexity on account of the need to obtain extensive evidence, it cannot be said that this in itself justified the length of the proceedings. It further considers that the remaining grounds invoked by the Government can also not justify the length of the proceedings. 2. Conduct of the applicants 40.", "The Court notes that it is common ground that the applicants’ conduct did not contribute to the length of the proceedings. 3. Conduct of the judicial authorities and what was at stake for the applicants 41. The Government considered that after 1 May 1993 the relevant courts had acted with due diligence in handling the applicants’ case. However, they acknowledged that the “reasonable time” requirement had not been respected by the authorities prior to that date.", "In addition, the Government pointed out that the fact that the case had been twice assigned to new judges had contributed to the delay in the proceedings. Lastly, the Government argued that what was at stake in the litigation in issue was solely of pecuniary nature. Thus, special diligence was not required of the authorities in the present case. 42. The applicants submitted that the courts had failed to handle their case with due diligence.", "In this regard, they referred to the following delays: from 1 May 1993 to 19 May 1995, from 19 May 1995 to 20 August 1996 and from 20 August 1996 to 24 March 1997. Furthermore, they stated that the fact that the plaintiffs had withdrawn their claims against the first applicant had facilitated the proceedings. The applicants concluded that there had been a violation of Article 6 § 1 of the Convention. 43. The Court notes that on 1 May 1993, the date when Poland recognised the right of individual petition, the proceedings before the District Court had already lasted 11 years, 7 months and 20 days (see paragraphs 10-20 above).", "It took this court another 4 years, 10 moths and 25 days to determine the claim (see paragraphs 20-31 above). 44. The Court observes that the judge rapporteur in this case was changed twice, a fact which undoubtedly contributed to the length of the proceedings (see paragraphs 23 and 29 above). 45. Leaving aside the question whether the respondent State can be held responsible for every delay in the proceedings, it is to be noted that after 1 May 1993 there were periods of inactivity attributable to the authorities.", "The Court draws attention to the delay of over a year between 3 June 1993 and 7 July 1994 (see paragraphs 20 and 21 above). It further observes that there was a delay of almost two years, between 19 May 1995 and 24 March 1997, when no hearing took place (see paragraphs 22-26 above). The Court notes that the trial court waited almost one year for the plaintiffs’ lawyer to specify the claim (see paragraph 22 above). The Court considers that the Government’s observations do not explain these delays. 46.", "Furthermore, the Court recalls that Article 6 § 1 imposes on Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements, including the obligation to decide cases within a reasonable time (see, among other authorities, the Duclos v. France judgment of 17 December 1996, Reports 1996-VI, pp. 2180–81, § 55 in fine). Therefore the delays in the proceedings must be mainly attributed to the national authorities. 47. Having regard to the circumstances of the case and taking into account the overall duration of the proceedings, the Court finds that the “reasonable time” requirement laid down in Article 6 § 1 of the Convention was not complied with in the present case.", "There has therefore been a violation of that provision. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 48. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 49.", "The applicants did not claim any pecuniary damage. However, under the head of non-pecuniary damage, they sought an award of PLN 25,000 to compensate for their moral damage suffered as a result of the protracted proceedings. 50. The Government did not address the applicants’ claim. 51.", "The Court accepts that the applicants have certainly suffered non-pecuniary damage, such as distress and frustration, resulting from the undue prolongation of their case. Making its assessment on equitable basis, the Court awards the applicants EUR 6,250 under this head. B. Costs and expenses 52. The applicants also claimed PLN 13,267.30 by way of legal costs and expenses incurred in the preparation and defence of their case before the Court.", "This included 65 hours’ work at an hourly rate of PLN 200 and an amount of PLN 267.30 spent on registered mail. 53. The Government did not address the applicants’ claim. 54. Having regard to equitable considerations, the Court awards the applicants EUR 1,500 together with any value-added tax that may be chargeable.", "C. Default interest 55. 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 (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 applicants, 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 6,250 (six thousand two hundred and fifty 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; (ii) EUR 1,500 (one thousand five hundred euros) in respect of costs and expenses, plus any tax that may be chargeable; (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; 3. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 6 May 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O’BoyleNicolas BratzaRegistrarPresident" ]

[ "THIRD SECTION CASE OF LITVINCHUK v. RUSSIA (Application no. 5491/11) JUDGMENT STRASBOURG 14 March 2017 This judgment is final but it may be subject to editorial revision. In the case of Litvinchuk v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Luis López Guerra, President,Dmitry Dedov,Branko Lubarda, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 21 February 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 5491/11) 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 Anna Nikolayevna Litvinchuk (“the applicant”), on 31 December 2010.", "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 complained inter alia of the quashing of binding and enforceable judgments in their favour by way of supervisory review, as existed between 2008 and 2012. 4.", "On 27 March 2013 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1941 and lives in Staryy Oskol, Belgorod Region. 6.", "On 6 May 2005 the applicant concluded a preliminary sale agreement with Mr N. regarding a plot of land with a small house under construction situated in the Belgorod Region. After the signature of this agreement, the applicant started using the plot of land, she finalised the construction of the house and beautified the plot of land. 7. On 3 July 2006 Mr N. died. 8.", "On 10 October 2008 the son of the deceased, Mr N. junior, sold the plot of land to another person, who registered her property right. 9. Later, the applicant sought to register her property right over the plot of land and found that it already had another registered owner. She then sued Mr N. junior before courts. A.", "First round of proceedings 10. On 9 April 2009 the Starooskolskiy Town Court of the Belgorod Region declared the sale contract of 10 October 2008 null and void. Mr N. junior was declared the owner of the plot of land and of the house. 11. On 17 June 2009 the Town Court granted the applicant’s claims against Mr N. junior and awarded her 613,280 Russian roubles (RUB) for unjust enrichment and damages corresponding to different sums invested by the applicant in the plot of land and the house as well as the reimbursement of cost and expenses.", "12. On 4 August 2009 the Belgorod Regional Court partly modified this judgment. It decreased the amount of damages to RUB 246,569, notably quashing the part relating to unjust enrichment. 13. On unspecified date the applicant lodged a supervisory review application.", "14. On 17 December 2009 the Presidium of the Belgorod Regional Court partly quashed the judgment of 4 August 2009 and sent the case for consideration anew before the second instance court. The Presidium considered that the Belgorod Regional Court misapplied the provisions of the Civil Code on unjust enrichment and miscalculated the amount of damages to which the applicant was entitled to. It concluded that these were significant violations of substantive or procedural law which influenced the outcome of the proceedings and must be corrected in order to restore and protect the applicant’s right to a fair trial as guaranteed by Article 46 § 1 of the Constitution, Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.", "B. Second round of proceedings 15. On 19 January 2010 the Belgorod Regional Court restored the judgment of 17 June 2009. 16. On 11 May 2010 Mr N.’s son lodged a supervisory review application.", "17. On 8 July 2010 the Presidium of the Belgorod Regional Court rejected the supervisory review application lodged by Mr N.’s son, considering that the arguments it contained were limited to a different assessment of evidence. It however quashed the judgment of 19 January 2010 and restored the judgment of 4 August 2009 on its own motion, considering that: “In the interest of lawfulness and taking into account the principle of legal certainty recognised by the Russian Federation the Presidium considers it possible and necessary to go beyond the arguments developed in the supervisory review application. As repeatedly indicated the European Court (Ryabykh v. Russia, no. 52854/99, §§ 51‑53, ECHR 2003‑IX, Khotuleva v. Russia, no.", "27114/04, 30 July 2009) in order to preserve the aforementioned principle final judgments shall remain unchanged. The mere existence of two points of view on the same matter does not justify the reopening of the case. Legal certainty presupposes that it is not permissible to have a second examination of the once decided case in the absence of fundamental errors. Taking into account the aforementioned principle, the final decision in the present case should be the judgment of the Belgorod Regional Court of 4 August 2009 which granted certain damages to the claimant and rejected her claims for the rest, including as regards unjust enrichment. In the course of the new examination by the cassation court the principles above have not been taken into account, this omission resulted in a violation of the principle of legal certainty provided by Article 6 § 1 of the Convention and undermined the stability of a binding judicial act.", "The claimant’s argument that the judgment of 19 January 2010 was lawful is not deemed to be sufficient by the Presidium to disregard the aforementioned principles. The fact that the Presidium of the Regional Court disagreed with the aforementioned judicial decision does not constitute in itself a ground for quashing of a final and binding judgment and for reopening of the proceedings. In view of the above, the judgment of 19 January 2010 subject to the present application shall be quashed and the judgment of 4 August 2009 restored.” 18. On 3 November 2010 a single judge at the Supreme Court refused the applicant’s supervisory review application. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 19. The supervisory review procedure in force since 7 January 2008 is summarised in the Court’s recent decision in the case of Martynets (Martynets v. Russia (dec.), no. 29612/09, 5 November 2009). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No.", "1 TO THE CONVENTION ON ACCOUNT OF THE QUASHING OF A JUDGMENT IN THE APPLICANT’S FAVOUR 20. The applicant complained of a violation of Article 6 of the Convention on account of the quashing by way of supervisory review of the binding and enforceable judgment in her favour. She further complained of a violation of Article 1 of Protocol No. 1 to the Convention in relation to the same facts. Both provisions, insofar as relevant, read as follows: Article 6 § 1 of the Convention “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal ...” Article 1 of Protocol No.", "1 to the Convention “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 21. 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 22. The Government indicated that the quashing of the judgment of 19 January 2010 by which the Belgorod Regional Court restored the judgment of 17 June 2009 delivered in the applicant’s favour did not impaired her right to a court because it was justified by the principle of legal certainty and aimed at restoring the rights of the other party to the proceedings since the prior quashing of the final judgment delivered in this party’s favour was not justified by fundamental grounds within the meaning of the Court’s case-law. 23. The applicant, on the contrary, considered that the misapplication of the domestic law in her case constituted a fundamental error.", "The lower courts failed to properly apply the domestic legislation, thus depriving her of the opportunity to receive a substantial part of damages. 24. The Court reiterates that it is not its task to question the interpretation of domestic law by the national courts, save in the event of evident arbitrariness (see, mutatis mutandis, Ādamsons v. Latvia, no. 3669/03, § 118, 24 June 2008), in other words, when it observes that the domestic courts have applied the law in a particular case manifestly erroneously or so as to reach arbitrary conclusions and/or a denial of justice (see, Bochan v. Ukraine (no. 2) [GC], no.", "22251/08, § 61, ECHR 2015 with further references, and, mutatis mutandis, albeit in the context of Article 1 of Protocol No. 1 to the Convention, Svetlana Vasilyeva v. Russia, no. 10775/09, § 34, 5 April 2016). 25. In the present case, the applicant’s case was examined twice in supervisory review by the Presidium of the Belgorod Regional Court, first time on 17 December 2009 upon her own application and second time on 8 July 2010 upon an application lodged by her opponent.", "While the Presidium first considered that the incorrect application of the domestic legislation governing unjust enrichment was a fundamental error justifying the quashing of the second instance court judgment and a new examination of the case, in the subsequent proceedings it decided exactly the opposite. The Court does not discern any element or fact which could explain this volte-face made by the supervisory review court, acting of its own motion and without this argument had even being raised by the appellant party. As regards the Government’s assertion that the second quashing was justified by the principle of legal certainty and necessary to restore the other party’s rights, this is not of relevance to the case which should be distinguished from other previous cases already delivered by the Court in relation to the supervisory review procedure on account of the element of arbitrariness disclosed in the judgment of 8 July 2010 of the Presidium of the Belgorod Regional Court. The Court is particularly struck by the fact that both times, the Presidium relied on exactly the same grounds and referred to exactly the same domestic and Convention provisions to justify its decisions. In any event, and more fundamentally, it remains unclear how the fact that the appeal court judgment delivered as a result of the first quashing was subsequently quashed on a further application for supervisory review could be said to improve legal certainty (see Ryabykh v. Russia (dec.), no.", "52854/99, 21 February 2002). 26. There has consequently been a violation of Article 6 § 1 of the Convention. 27. The Court further notes that as a result of such an arbitrary application of domestic procedural rules by the supervisory review court, the applicant was deprived of the possibility to receive a substantial amount of money awarded to her by the appeal court.", "28. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention. 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. Damage 30. The applicant claimed 8,610 euros (EUR) in respect of pecuniary. According to her, this sum corresponded to the difference between what was granted to her by the judgment of 17 June 2009 restored by the judgment of 19 January 2010 and what she had effectively received in accordance with the judgment 4 August 2009 restored by the judgment of 8 July 2010. She further claimed EUR 5,000 in respect of non-pecuniary damage.", "31. The Government contested the applicant’s claim, considering that there was no violation of her Convention rights in the present case. They further indicated that the amount in respect of non-pecuniary damage was excessive. 32. The Court accepts that the applicant must have sustained some pecuniary and non-pecuniary damage as a result of the quashing of final domestic judgments in her favour.", "However, her claims in this respect appear to be excessive. Having regard to the principles developed in its case-law on determination of compensation in similar cases (see, for instance, Kovalenko and Others, §§ 42-43, cited above, Goncharova and Others and 68 other “Privileged Pensioners” cases v. Russia, nos. 23113/08 and 68 others, §§ 22‑24, 15 October 2009), the Court considers it reasonable and equitable to award the applicant a total of EUR 5,000 to cover all heads of damage. B. Costs and expenses 33.", "The applicant also claimed 7,000 Russian roubles (RUB) for the costs and expenses incurred in the domestic proceedings. She submitted a copy of an agreement for providing legal services and a copy of the receipt. 34. The Government objected observing that neither the agreement for legal services nor the receipt indicated contained any details demonstrating that the costs and expenses claimed were incurred in relation to the domestic proceedings complained of. 35.", "Regard being had to the documents in its possession, the Court cannot but agree with the Government. It consequently rejects the claim for costs and expenses. C. Default interest 36. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months EUR 5,000 (five thousand euros) 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 the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 14 March 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıLuis López GuerraDeputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF LEONOV v. RUSSIA (Application no. 77180/11) JUDGMENT STRASBOURG 10 April 2018 FINAL 10/07/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Leonov v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Helena Jäderblom, President,Luis López Guerra,Helen Keller,Dmitry Dedov,Alena Poláčková,Georgios A. Serghides,Jolien Schukking, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 17 October 2017 and 13 March 2018, Delivers the following judgment, which was adopted on the latter date: PROCEDURE 1. The case originated in an application (no.", "77180/11) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Sergey Aleksandrovich Leonov (“the applicant”), on 9 December 2011. 2. The applicant was represented by Ms S. Krasovskaya (Kharchenko), a lawyer practising in the Moscow Region. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3.", "The applicant alleged, in particular, that the refusal to make a residence order in his favour in respect of his son, and the interim measure as regards contact rights applied while the proceedings had been pending, had violated his right to respect for his family life and the principle of equality of spouses, and had, moreover, amounted to discrimination on grounds of sex. 4. On 26 May 2015 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1983 and lives in Moscow. 6. On 21 August 2007 the applicant’s wife, Ch., gave birth to a son, A. 7. The family lived at the applicant’s flat, where A. had his registered residence.", "He received ongoing paediatric care at the neighbourhood children’s clinic and attended a neighbourhood nursery school. 8. In November 2009 Ch. decided to leave the applicant. She moved back to her parents’ residence and took A. with her.", "A. has been living with her ever since. 9. On 9 March 2010 the applicant applied to the Justice of the Peace of the 339th Court Circuit of the Vostochnoe Dergunino District of Moscow for a residence order under which A. would live with him. He was instructed to make corrections to his claim, which he did on 8 April 2010. On the same day the case was transferred to the Timiryazevskiy District Court of Moscow.", "It registered the case on 26 April 2010 and scheduled the first hearing for 13 May 2010. 10. On 26 April 2010 Ch. lodged a counterclaim, asking for a residence order under which A. would live with her, and for an interim measure pending the proceedings. She claimed, in particular, that there was a risk that the applicant might kidnap A. and take him to Belarus, where his stepfather had a house.", "She stated that he had already tried to take A. away from her and had in particular attempted to pick him up from the boy’s nursery school. 11. On the same day, 26 April 2010, the Timiryazevskiy District Court allowed Ch.’s request for an interim measure and forbade the applicant from contacting A. or picking him up from the nursery school without Ch.’s prior permission. It held as follows: “The subject matter of the case is the residence of a child [A.] born in 2007.", "The parents have been unable to come to an agreement on this matter. The child is now living with his mother [Ch.]. The court therefore considers that the requested interim measure would be proportionate to the claim. Otherwise, failure to take interim measures might complicate or make impossible the execution of the forthcoming judgment.” 12. The applicant learned of the interim measure on 30 April 2010.", "On that day he came to visit A. at the nursery school and the teachers refused to let him see the boy, citing the interim order. 13. In April and May 2010 the Lyublino and Dergunino childcare authorities examined the applicant’s and Ch.’s flats and found their living conditions satisfactory and suitable for a small child. 14. The first hearing was scheduled for 20 May 2010 but it was adjourned until 24 May 2010 at the applicant’s request.", "The next hearing was scheduled for 9 June 2010 but it was also adjourned until 23 June 2010 for the purposes of “obtaining evidence”. 15. On 22 June 2010 the Lyublino childcare authority issued its report on the case. It considered that, by reason of his very young age, A. should reside with his mother. The childcare authority considered that it was particularly important for a child to be raised by the mother until the age of five or six.", "A lack of maternal care during that period, and in particular during the behavioural crises that a three-year-old typically undergoes, could result in the child developing negative character traits, such as stubbornness, surliness, hysterical reactions and inadequate social adaptation. The residence arrangements could be reconsidered after A. had reached the age of five or six years. 16. On 29 June 2010 the Timiryazevskiy District Court ordered an expert psychological examination and adjourned the proceedings. The experts were asked their opinion on what residence arrangements would be in A.’s best interests.", "17. On 6 July 2010 the applicant lodged an appeal with the Moscow City Court against the decision of 29 June 2010 ordering an expert examination. The appeal hearing was scheduled for 29 July 2010 but was adjourned until 17 August 2010 because the parties did not appear. On 17 August 2010 the Moscow City Court upheld on appeal the decision of 29 June 2010. The case file was sent to the experts on 8 September 2010.", "18. Meanwhile, as Ch. had prevented him from seeing A., the applicant applied to the childcare authority for a contact order. On 15 July 2010 the childcare authority rejected the application, referring to the interim measure imposed by the Timiryazevskiy District Court. 19.", "On 9 August 2010 the District Court received by post the applicant’s appeal, dated 6 May 2010, against the decision of 26 April 2010 ordering the interim measure. The applicant submitted that there had been no justification for the interim measure, which had been motivated solely by the prevailing belief that a child should be raised by the mother rather than the father. He further submitted that the interim measure was contrary to A.’s best interests. A lack of contact with his father and the paternal family – A.’s grandparents, uncle, aunt and cousins – to whom he was very attached might cause A. psychological trauma. It might, moreover, result in A.’s estrangement from his father or, given his very young age, even his forgetting his father altogether.", "It also created a risk that Ch. might turn A. against his father. It might in turn mean that the results of any future expert examinations – and, by extension, any future judicial decision on the child’s residence – would be biased against the applicant. Lastly, the applicant submitted that the interim measure breached his right to maintain contact with his son. 20.", "On 17 September 2010 the Justice of the Peace of the 133th Court Circuit of the Mytichshinskiy District of the Moscow Region convicted Ch. of assault and battery, a criminal offence under Article 116 of the Criminal Code. In particular, the court found it established that on 20 June 2010 the applicant had approached Ch. and A. while they were playing at the local public beach and had hugged his son. Ch.", "had immediately snatched the boy away from him and had hit the applicant at least two times, causing him bodily injuries, before carrying the boy away. A fine was imposed on her. 21. On 11 November 2010 the experts issued their report. They found that it would be beneficial for A. to maintain contact with both parents.", "He was equally attached to both of them. Both parents were equally capable of raising the child. The serious conflict currently persisting between the parents could negatively affect A.’s psychological development. 22. On 12 November 2010 the proceedings were resumed.", "Hearings were scheduled for 24 November and 7 December 2010 but could not take place because some of the participants did not appear. 23. On 23 December 2010 the Dergunino childcare authority issued its report on the case. It found that A. should reside with his mother, referring to A.’s young age and the fact that he had lived with his mother for some time already and was attending a neighbouring nursery school. 24.", "During the hearing of 24 December 2010 the applicant lodged an objection against the judge of the Timiryazevskiy District Court, submitting that she (that is to say the judge) had stated on several occasions that she would rule against the applicant because according to the established practice of the Timiryazevskiy District Court a residence order was always made in favour of the mother. The judge dismissed the applicant’s objection. 25. On 18 January 2011 the Timiryazevskiy District Court allowed a request lodged by the applicant for the proceedings to be stayed; it accordingly stayed the residence order proceedings pending the criminal proceedings against Ch. 26.", "On 26 January 2011 the Mytishchi City Court upheld Ch.’s criminal conviction on appeal. The conviction acquired binding force. 27. On 8 February 2011 the Moscow City Court quashed on appeal the decision of 26 April 2010 ordering the interim measure. It found that the interim measure had been unconnected to the subject matter of the case and had therefore been disproportionate.", "There had been no evidence that the execution of the forthcoming judgment might be complicated or impossible. By applying the interim measure, the judge had prejudged the case. The City Court remitted Ch.’s request for an interim measure for fresh examination by the Timiryazevskiy District Court, which rejected it on 1 April 2011 as unsubstantiated. 28. Meanwhile, on 16 March 2011 the childcare authority instructed Ch.", "that she should stop preventing A. from seeing his paternal family. 29. On 30 March 2011 the Timiryazevskiy District Court granted the divorce of the applicant and Ch. 30. On 7 April 2011 the Moscow City Court, acting by way of supervisory review, quashed the judgment of 26 January 2011 upholding Ch.’s conviction and remitted the criminal case for fresh examination by the appellate court.", "31. On 12 April 2011 the Timiryazevskiy District Court resumed the residence order proceedings and held a hearing. 32. During the hearings the applicant stated that he possessed a comfortable flat in a safe and ecologically clean neighbourhood, with parks and schools in the vicinity. Before the applicant’s separation from his former wife, A. had attended a nursery school in that neighbourhood.", "The applicant also had a countryside residence. Being the owner of his own business, he had flexible working hours and could therefore devote a lot of time to his son. He had always paid child maintenance and his income permitted him to give the child a good education. There was a strong personal attachment between the applicant and his son; A. was also very attached to his paternal family – especially his cousin, who was of the same age. The applicant had positive character references: he was calm, polite and affectionate towards his son.", "By contrast, Ch. was aggressive and irresponsible. She had physically assaulted him in front of A. and had been criminally convicted in connection with that incident. She had also been convicted of the administrative offence of leaving the scene of a road accident and had had her driving licence suspended for a year. As could be seen from the documents submitted by the applicant to the court, she lived in a severely polluted and criminally unsafe neighbourhood in the vicinity of an oil refinery plant and a prison.", "Moreover, Ch. shared her flat with her mother, who smoked and abused alcohol and could therefore have a bad influence on A. Until recently, Ch. had prevented the applicant and his relatives from seeing A., and currently she allowed occasional contact only. 33.", "The applicant’s mother and sister stated that Ch. prevented them from seeing A. Ch. was often aggressive and occasionally abused alcohol. All her family smoked, even in the child’s presence. A. was very attached to his father and obviously suffered from their forced separation.", "34. Ch. stated that the applicant would have no time to take care of the child as he was managing a business, was following a distance-learning course at a university and had earlier stated his intention of building a countryside residence. Ch. had a higher education and was working.", "The alleged defects in her character and behaviour to which the applicant had referred had been confirmed by his relatives only. 35. A teacher from A.’s current nursery school stated that she had seen the applicant once and that he had made a bad impression on her. On 30 April 2010 he had come to the nursery school and had told her that he wanted to take A. home with him. When she had refused to let him in, referring to the court order prohibiting any contact between them, he had become agitated and had talked about taking A. away with him when the children went out for a walk.", "36. The director of the nursery school gave a similar description of the incident. She said that the applicant had become angry when he had learned of the court decision ordering the interim measure, had asked for a copy of that measure and had called his lawyer. 37. The following documents were submitted by the parties for the court’s examination: (i) the applicant’s and Ch.’s pay statements, (ii) documents showing that the district where Ch.", "lived was among the most polluted districts of Moscow, (iii) documents from the criminal case file against Ch., and (iv) documents relating to A.’s medical history and A.’s pre-school education both at the applicant’s place of residence prior to his parents’ separation and at the mother’s place of residence after the separation. 38. On 12 April 2011 the Timiryazevskiy District Court granted Ch.’s application for a residence order in her favour and dismissed a similar application by the applicant. It held as follows: “Having examined the entirety of the evidence, the court finds that there is a very serious conflict between the parties as regards the child’s residence arrangements, ... which has a negative impact on the child by creating a psychologically unhealthy and tense atmosphere around him. At the same time, each parent, taken alone, possesses moral, personal and other qualities rendering each of them capable of raising a small child.", "According to the expert report, the child is equally attached to both of them. It also follows from the expert report that the parents’ improper behaviour towards each other may have negative psychological consequences for the child. The court notes that [Ch.’s] criminal conviction for assaulting [the applicant] has not yet acquired binding force. It however takes into account the criminal charges brought against her. It is clear that the incident was prompted by the personal hostility [between the applicant and Ch.]", "caused by a disagreement on the issue of their son’s residence and education. In the court’s opinion, these charges cannot constitute a decisive reason for making a residence order in favour of the father. There is an accumulation of reasons on the basis of which the court considers that the child should live with the mother. In the present case the court is guided by the best interests of child [A. ], who at the moment of the judgment has not yet reached the age of four years old and who has an established way of life.", "For a long time the child has lived with his mother at her place of residence and has attended a nursery school there. Given his age, a change of residence and a separation from the mother will have a negative impact on the child’s general and psychological state. The court considers that [the applicant’s] arguments that the district where [Ch.] lives is polluted and that close members of her family smoke cannot serve as a basis for making a residence order in favour of the father because, as mentioned above, a change of residence will have a negative impact on the child. [The applicant’s] arguments that he has better living conditions and a better financial situation than [Ch.]", "are not decisive for granting a residence order to the father either. The childcare authorities are unanimous that it is in [A.’s] interests to live with the mother. The court agrees with that finding. The court also finds that [the applicant’s] request for a residence order is at the moment premature. [The applicant] is entitled to apply for a reconsideration of the issue after A. has reached a more conscious age [по достижению сыном более сознательного возраста].” 39.", "The applicant appealed, repeating the arguments he had raised before the District Court. He relied, in particular, on the right to equality between spouses. 40. On 30 June 2011 the Moscow City Court upheld the judgment of 12 April 2011 on appeal, finding that it had been lawful, well-reasoned and justified. 41.", "On 6 December 2011 the Lyublinskiy District Court of Moscow found it established that Ch. was preventing the applicant and his family –namely his mother, brother and sister – from seeing A. It held that A. was entitled to maintain contact with his father and his paternal family and determined the contact schedule as follows. The applicant should be able to have contact with A. (i) on the first and third weekend of each month from 10 a.m. on Saturday until 8 p.m. on Sunday at the applicant’s place of residence, in the mother’s absence and with the right to attend outdoor activities for children, and (ii) for two weeks during the summer and two weeks during the winter on dates agreed with the mother, provided that the child is in good health, with the right to leave Moscow and to go abroad.", "The applicant’s mother, brother and sister should be able to have contact sessions with A. from 11 a.m. until 1 p.m. on the first and third Saturdays of each month at the applicant’s place of residence. 42. On an unspecified date the Moscow City Court upheld that judgment on appeal. 43. On 2 February 2012 the Mytischy Town Court upheld Ch.’s conviction for assault and battery on appeal.", "II. RELEVANT DOMESTIC LAW 44. The Family Code provides that in the event of the parents’ separation, a child’s residence arrangements shall be determined by an agreement between them. If no such agreement can be reached, the child’s residence arrangements are determined by a court order, having regard to the child’s best interests and his/her opinion on the matter. In particular, the court must take into account the child’s attachment towards each of the parents and siblings, the relationship between the child and each of the parents, the child’s age, the parents’ moral and other personal qualities and the possibilities each of them have for creating conditions for the child’s upbringing and development (in the light of such considerations as each parent’s occupation, employment schedule, and financial and family situation) (Article 65).", "45. The parent residing separately from the child is entitled to maintain contact with the child and to participate in his or her upbringing and education. The parent with whom the child resides may not hinder the child’s contact with the other parent, unless such contact undermines the child’s physical or psychological health or moral development. The parents may reach a written agreement about the manner of exercise of parental authority by the parent residing separately from the child. If the parents are unable to come to an agreement, any dispute between them shall be decided by a court after an application by the parents (or one of the parents), with the participation of the childcare authorities.", "If one of the parents does not comply with the court decision, measures provided by the civil procedural law may be taken against him or her. If that parent systematically refuses to comply with the court decision, a court may, after an application by the parent residing separately from the child, transfer the child’s residence to that parent, taking into account the child’s interests and the child’s opinion (Article 66, as in force at the material time). 46. A child is entitled to maintain contact with his parents, grandparents, brothers, sisters and other relatives. The parents’ divorce or separation or the annulment of their marriage shall have no bearing on the child’s rights.", "In particular, in the event of the parents residing separately, the child is entitled to maintain contact with both of them (Article 55 § 1). 47. A child is entitled to express his opinion on all family matters concerning him or her, including in the course of any judicial proceedings. The opinion of a child over ten years old must be taken into account, except where it is contrary to his or her interests (Article 57). 48.", "The 2002 Code of Civil Procedure (hereafter “the CCP”), as in force at the material time, provided that a judge might apply interim measures at the request of participants in the proceedings. Interim measures might be applied in a case where the failure to take such measures might complicate or make impossible the execution of the forthcoming judgment (Article 139). 49. Possible interim measures might include a prohibition on undertaking specific actions (Article 140 § 1). Interim measures had to be proportionate to the claim in question (Article 140 § 3 of the CCP) 50.", "A request for interim measures had to be examined on the day of its receipt by the court, without notifying the respondent or other participants to the proceedings (Article 141 of the CCrP). THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 51. The applicant complained that the granting of a residence order in respect of his son in favour of the boy’s mother and the interim measure prohibiting him from contacting his son pending the residence order proceedings had violated his right to respect for his family life. He relied on Article 8 of the Convention, which reads as follows: “1.", "Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 52. The Government submitted that the complaint about the interim measure fell outside the Court’s competence ratione materiae. They referred to the decision in the case of B.R.", "v. Poland ((dec.), no. 43316/98, 7 June 2001), in which the Court had found that interlocutory proceedings relating to an interim measure concerning the provisional regulation of the applicant’s contacts with his daughter pending the main divorce proceedings did not involve the determination of the applicant’s civil rights or obligations within the meaning of Article 6 § 1 of the Convention. 53. The Court reiterates that mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention (see, among many others, S.I. v. Slovenia, no.", "45082/05, § 68, 13 October 2011, and Gobec v. Slovenia, no. 7233/04, § 128, 3 October 2013, which both concerned interim decisions setting out provisional contact arrangements). It therefore considers that Article 8 was applicable to the interim order proceedings concerning contact between the applicant and his son. The respondent Government’s objection ratione materiae is accordingly dismissed. 54.", "The Court further notes that it is not open to it to set aside the application of the six-month rule solely because a Government have not made a preliminary objection to that effect (see Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006‑III). Therefore, the fact that the Government did not raise any alleged failure by the applicant to comply with the six-month rule does not prevent the Court from ruling on the issue (see Fábián v. Hungary [GC], no. 78117/13, § 90, ECHR 2017 (extracts). The Court will therefore examine whether the applicant’s complaint relating to the interim measure complied with the six-month rule even though the Government did not raise an objection as to non-compliance with the six‑month rule.", "55. The Court notes that the interim measure was quashed on appeal on 8 February 2011 and that the interim measure proceedings were finally discontinued on 1 April 2011. The applicant lodged his application with the Court on 9 December 2011, that is to say more than six months later. The Court considers that, with regard to the interim measure, the applicant did not comply with the six-month time-limit. 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.", "56. The Court furthermore notes that the complaint about the residence order 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. Submissions by the parties (a) The applicant 57. The applicant submitted that the domestic courts had granted a residence order in favour of his ex-wife despite the fact, confirmed by the evidence examined at the hearing, that she had a lower income, lived in a polluted and criminally unsafe district and had bad character references. In particular, she had been convicted of a criminal offence for assaulting the applicant; the assault had happened in front of the child. She had, moreover, prevented the applicant from seeing his son for many months.", "Her mother, who lived together with her, smoked and abused alcohol, as confirmed by witnesses, who had been warned about criminal liability in the event of perjury. It was also significant that, as confirmed by the documents produced at the hearing, the applicant had flexible working hours and could therefore devote more time to A. than the boy’s mother, who had no flexibility in her working hours. By disregarding those factors, the domestic courts had taken a decision which had not been based on the best interests of the child. The applicant claimed that the sole reason for granting a residence order in favour of the mother had been the judge’s belief, evident from her statements at the hearings, that a small child should be raised by the mother rather than by the father. 58.", "The applicant also argued that the possibility, which the domestic courts referred to, of reconsidering the residence arrangements after the child had reached “a more conscious age” was illusory. Given that the child’s continuing residence with the mother had been one of the main reasons invoked by the domestic courts for their decision to grant the residence order in favour of the mother, that reason would only get stronger with the passage of time. 59. Lastly, the applicant submitted that the total length of the residence order proceedings had been excessive. The proceedings had lasted for one year and eight months.", "The applicant had in no way contributed to their length. By lodging motions and by appealing against some procedural decisions, he had exercised his procedural rights with the aim of effectively presenting his case and ensuring its fair and thorough examination. As regards his request for the proceedings to be suspended pending the criminal proceedings against A.’s mother, he considered that the outcome of the criminal proceedings had been relevant to the issue of A.’s residence. (b) The Government 60. The Government accepted that granting a residence order in favour of the mother in respect of the applicant’s son had constituted an interference with his right to respect for his family life.", "However, the interference had been lawful, had pursued a legitimate aim and had been necessary in a democratic society. 61. As regards the length of the residence order proceedings, the Government submitted that the proceedings had lasted for about one year and two months. There had been no periods of inactivity attributable to the authorities. By contrast, the applicant had contributed to the length of the proceedings by lodging his claim with the wrong court, by lodging appeals against various procedural decisions and by requesting a suspension of the proceedings pending the criminal proceedings against his wife.", "In total, the length of the proceedings had been shorter than in the cases examined by the Court (they referred to Ribić v. Croatia, no. 27148/12, 2 April 2015, where the proceedings had lasted for seven years and eight months; Mihailova v. Bulgaria, no. 35978/02, 12 January 2006, where the proceedings had lasted for about two years and a half and where the Court had found no violation of Article 8; Ahrens v. Germany, no. 45071/09, 22 March 2012, where the proceedings had lasted for three years and seven months and where the Court had not found a violation of Article 8 either; and Diamante and Pelliccioni v. San Marino, no. 32250/08, 27 September 2011, where the proceedings had lasted for three years).", "Moreover, the present case was different from Ribić, where the applicant had seen his son for three times only during the proceedings, by the end of which he had reached the age of majority. In the applicant’s case the proceedings had ended when the child was three years and eight months old; it could not therefore be said that the passage of time had resulted in a de facto determination of the matter. 62. Lastly, as regards the decision to grant the residence order in favour of the mother, the Government submitted that it had been lawful and had been based on the best interests of the child. As the parents had been unable to agree about the child’s residence arrangements, the domestic courts had had no choice but to grant the residence order in favour of one or other of them.", "The judge had ordered an expert psychological report and had also taken into account the opinion of the relevant childcare authorities. The judge had also examined the parents’ income, living conditions and working schedule. The applicant had not proved that his financial situation had been better than that of his ex-wife or that his working schedule had been indeed flexible. His arguments regarding his superior living conditions (because he lived in a less polluted district of Moscow than his ex-wife) were unconvincing as, in the Government’s opinion, all districts in Moscow were equally polluted. The applicant’s and his ex-wife’s flats were comparable in size and were both suitable for a small child.", "The applicant’s allegations regarding the dissolute behaviour of his ex-wife’s family had been confirmed only by the applicant’s mother and sister, who were witnesses with an interest in the proceedings. By contrast, the applicant’s unsatisfactory behaviour towards the teacher at A.’s nursery school had been confirmed by independent witnesses. The Government further submitted that in 2014 and 2015 the applicant had been fined for traffic offences several times. As regards his ex-wife’s criminal conviction, which had not been final at the time, the judge had considered that it could not constitute a decisive reason for granting a residence order in favour of the applicant. The judge’s decision not to wait until the conviction became final had been justified by the need to settle the child’s residence arrangements as quickly as possible.", "The applicant’s allegations that the judges had been biased against him were unfounded. The judge had found that each of the parents had been capable of taking care of the child and that the child had been equally attached to both of them. The main reasons for granting the residence order in favour of the mother had been the child’s extremely young age – three years – and the fact that he had already lived with his mother for some time and had an established way of life. A change in that way of life and a separation from the mother could be traumatic for him. The applicant’s procedural rights had been respected.", "63. The Government further submitted that the decision to grant the residence order in favour of the mother had not restricted the applicant’s parental authority or his right to participate in the child’s upbringing and education. As mentioned by the domestic courts, he was entitled to apply for a reconsideration of the residence arrangements after the child had reached a “more conscious age”; in particular, the child’s opinion had to be taken into account after the child had reached the age of ten years old. The applicant and his family had been granted contact rights by a judicial order. Russian law provided for a mechanism to deal with situations where a judicial contact order had not been complied with (see paragraph 45 above).", "There was, however, no evidence that the applicant’s wife had not complied with the judicial contact order. According to the statement that she had given in July 2015, her relationship with the applicant had improved and contact between A. and his father and his paternal family had been even more frequent than that ordered by the court. The domestic authorities had therefore taken all reasonable measures to ensure that he could maintain his relationship with his son. 2. The Court’s assessment (a) General principles 64.", "In determining whether the refusal of custody or access was justified under Article 8 § 2 of the Convention, the Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient. Undoubtedly, consideration of what lies in the best interests of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding child custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see Sahin v. Germany [GC], no. 30943/96, § 64, ECHR 2003‑VIII; Sommerfeld v. Germany [GC], no.", "31871/96, § 62, ECHR 2003‑VIII (extracts); C. v. Finland, no. 18249/02, § 52, 9 May 2006; and Z.J. v. Lithuania, no. 60092/12, § 96, 29 April 2014). To that end the Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the child (see Neulinger and Shuruk v. Switzerland [GC], no.", "41615/07, § 139, ECHR 2010, and Antonyuk v. Russia, no. 47721/10, § 134, 1 August 2013). 65. 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. Thus, the Court has recognised that the authorities enjoy a wide margin of appreciation, in particular when deciding on custody.", "However, stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of access, 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. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed (see Sahin, cited above, § 65, and Sommerfeld, cited above, § 63). 66. Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents 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. In particular, a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development (see Sahin, cited above, § 66, and Sommerfeld, cited above, § 64).", "67. The Court cannot satisfactorily assess whether the reasons advanced by the domestic courts were “sufficient” for the purposes of Article 8 § 2 without at the same time determining whether the decision-making process, seen as a whole, was fair (see Sahin, cited above, § 68, and Sommerfeld, cited above, § 66). While Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect for the interests safeguarded by Article 8. The Court must therefore determine whether, having regard to the circumstances of the case and notably the importance of the decisions to be taken, the applicant has been involved in the decision-making process to a degree sufficient to provide him with the requisite protection of his interests (see Z.J. v. Lithuania, cited above, § 100, with further references).", "68. Lastly, the Court considers that in conducting its review in the context of Article 8 it may also have regard to the length of the local authority’s decision-making process and of any related judicial proceedings. In cases of this kind there is always the danger that any procedural delay will result in the de facto determination of the issue submitted to the court before it has held its hearing. And an effective respect for family life requires that future relations between parent and child be determined solely in the light of all relevant considerations and not by the mere passage of time (see W. v. the United Kingdom, 8 July 1987, § 65, Series A no. 121; Sylvester v. Austria, nos.", "36812/97 and 40104/98, § 69, 24 April 2003; and Z.J. v. Lithuania, cited above, § 100). (b) Application to the present case 69. The Court considers that the decision to make a residence order in favour of the mother amounted to an interference with the applicant’s right to respect for his family life (see Antonyuk v. Russia, no. 47721/10, § 119, 1 August 2013; see also G.B.", "v. Lithuania, no. 36137/13, § 87, 19 January 2016). It has not been disputed between the parties that the interference had a basis in national law and pursued the legitimate aim of protecting the rights of others, namely of A. and Ch. It remains to be examined whether the interference was “necessary in a democratic society”. 70.", "Before turning to the analysis of the reasons advanced by the domestic courts, it is important to note that the scope of the order was limited to determining where A. would live; it did not affect A.’s legal relationship with the applicant, and nor did it take away the applicant’s parental authority. It is also significant that the applicant was subsequently granted contact rights. 71. The Court accepts that in reaching decisions on child-care measures, national authorities and courts are often faced with a task that is extremely difficult. It does not lose sight of the fact that the national authorities had no other choice but to make a residence order in favour of one of the two separated parents, as the domestic law does not provide for the possibility to make a shared residence order (see Antonyuk, cited above, § 121).", "72. Having examined the domestic courts’ decisions at issue (see paragraphs 38 and 40 above), the Court finds nothing to doubt that they were based on the best interests of the child. The domestic courts found that A. had not yet reached four years of age and had lived with his mother at her place of residence for a long time and attended a nursery school there. They considered that, given his young age, a change of residence and a separation from the mother would have a negative impact on his psychological state. There is nothing to indicate that the findings reached by the domestic courts, which had the benefit of direct contact with all the persons concerned, were unreasonable and thus fell outside their wide margin of appreciation.", "Given that the national authorities are in principle better placed than an international judge to evaluate the evidence before them, it is not the Court’s task to take their place in establishing and assessing the facts and deciding what is in the best interests of the child in the present case. 73. The Court is not convinced by the applicant’s argument that the residence order was based on the judge’s belief that a small child was to be always raised by the mother. It notes that the residence order was based on an assessment of the particular circumstances of the case. 74.", "The Court further notes that the decision at issue was reached following adversarial proceedings in which the applicant was placed in a position enabling him to put forward all arguments in support of his application for a residence order in his favour and he also had access to all relevant information that was relied on by the courts. 75. As regards the applicant’s complaint about the allegedly excessive length of proceedings, the Court considers the applicant’s own procedural activity influenced the overall duration of proceedings (see, for similar reasoning, Gobec, cited above, § 144). He lodged an appeal against the decision ordering an expert examination, thereby delaying its commencement. He also asked for the proceedings to be stayed pending the criminal proceedings against his ex-wife.", "It is true that there were also several delays in the proceedings attributable to the authorities (in particular, an unexplained three-month delay in obtaining an expert opinion after the decision ordering it had been upheld on appeal and a three-month delay in resuming the proceedings after Ch.’s criminal conviction entered into force). However, the Court considers that overall the domestic courts appear to have dealt with the proceedings, which lasted slightly less than one year and four months at two levels of jurisdiction, with the requisite diligence. 76. The Court concludes from the above that the decision-making process was fair in so far as it allowed the applicant to present his case fully and that the reasons advanced by the domestic courts were relevant and sufficient. Accordingly, by making a residence order in favour of the mother, the domestic courts did not overstep their wide margin of appreciation.", "77. There has been therefore no violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN IN CONJUNCTION WITH ARTICLE 8 78. The applicant further complained that the decision to grant a residence order in respect of his son in favour of the boy’s mother amounted to discrimination on grounds of sex.", "He relied on Article 14 of the Convention, taken in conjunction with Article 8. Article 14 reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. Admissibility 79. As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of them.", "The prohibition of discrimination enshrined in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide. This principle is well entrenched in the Court’s case-law (see, among many other authorities, E.B. v. France [GC], no. 43546/02, §§ 47-48, 22 January 2008).", "80. It has not been disputed between the parties that the case falls within the ambit of Article 8 of the Convention. Indeed, the Court has found that the contested decisions amounted to an interference with the applicant’s right to respect for his family life (see paragraph 69 above). It follows that Article 14 of the Convention, taken in conjunction with Article 8, is applicable in the present case 81. 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 82.", "The applicant submitted that the issuance of a residence order in respect of his son in favour of the boy’s mother – despite the fact that she had a criminal record, bad living conditions and a dissolute close family – had shown the inequality between men and women in the sphere of childcare which prevailed in Russia. He claimed that there existed an assumption in favour of mothers which was very difficult to rebut, as had been evident from the judge’s statements at the hearings (see paragraph 24 above). 83. The Government submitted that both parents had equal rights under Russian law; the mother had not been entitled to any preferential treatment. In particular, both parents had had the right to apply for a residence order and the courts had had to decide the issue on the basis of the best interests of the child.", "There were many examples in domestic practice of a residence order being granted in favour of the father (they referred, in particular, to the case of Gruzdeva v. Russia (dec.), no. 13553/09, § 71, 8 July 2014). In the present case the domestic courts had examined all the circumstances of the case and decided that it was in the best interest of the child to live with the mother. They had found that, given the child’s young age and the fact that he had lived with his mother for some time, a separation from the mother would have a negative impact on his psychological state. 2.", "The Court’s assessment 84. It is the Court’s established case-law that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in relevantly similar situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background, but the final decision as to the observance of the Convention’s requirements rests with the Court (see Burden v. the United Kingdom [GC], no.", "13378/05, § 60, and Konstantin Markin v. Russia [GC], no. 30078/06, §§ 125 and 126, ECHR 2012 (extracts)). 85. Very weighty reasons need to be put forward before a difference in treatment on the ground of sex can be regarded as compatible with the Convention (see Schuler-Zgraggen v. Switzerland, 24 June 1993, § 67, Series A no. 263; Zaunegger v. Germany, no.", "22028/04, § 51, 3 December 2009; and Buchs v. Switzerland, no. 9929/12, § 67, 27 May 2014). 86. In the case at hand, the applicant complained that he had been discriminated against on account of his sex, in breach of Articles 8 and 14 of the Convention, in that the residence order in respect of his child had been made in favour of the child’s mother. 87.", "The Court observes at the outset that Russian law does not make any distinction between the sexes, both men and women being equally eligible to obtain a residence order in respect of their child, irrespective of the child’s age. The domestic courts must evaluate all the relevant circumstances and the parties’ parenting abilities in order to find the most appropriate solution in the child’s best interests (see paragraph 44 above). The applicant, however, argued that the decisions in his case had been based on a general assumption prevailing in Russia that it was in the interest of children under a certain age to reside with the mother rather than the father (see paragraphs 24 and 82 above). 88. The Court notes that the residence order was based on an assessment of the best interests of the child in the particular circumstances of the case, rather than on a general assumption in favour of mothers.", "In particular, the domestic courts found that the child had lived with his mother at her place of residence for a long time. They considered that, given his young age and the length of his residence with the mother, a change to his established way of life would have a negative impact on his psychological state. 89. The Court is therefore satisfied that, as regards the examination of the application for a residence order, no difference of treatment on account of sex existed either in the law or in the decisions applying it in the applicant’s case. 90.", "There has accordingly been no violation of Article 14 of the Convention, taken together with Article 8. III. ALLEGED VIOLATION OF ARTICLE 5 OF PROTOCOL No. 7 91. The applicant further complained that the decision to grant a residence order in respect of his son in favour of the boy’s mother had violated his right to equality between spouses.", "He relied on Article 5 of Protocol No. 7, which reads as follows: “Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.” 92. The Government submitted that the applicant had not exhausted domestic remedies regarding his claim under Article 5 of Protocol No. 7 because he had not invoked that Article before the domestic courts.", "93. The Court observes that the applicant relied on the right to equality between spouses in his appeal submissions (see paragraph 39 above). Accordingly, the Court rejects the Government’s objection as to the non-exhaustion of domestic remedies. 94. The Court reiterates that it has previously decided that Article 5 of Protocol No.", "7 essentially imposes a positive obligation on States to provide a satisfactory legal framework under which spouses have equal rights and obligations concerning such matters as their relations with their children. It is not concerned with the way in which the national courts applied it (see Iosub Caras v. Romania, no. 7198/04, §§ 56 and 57, 27 July 2006, with further references). 95. In the present case, the applicant does not question the legislative framework.", "His criticism only concerns the way in which the national courts applied it. The Court finds no indication that the law in question violates the equality clause provided in Article 5 of Protocol No. 7 (see paragraph 87 above). 96. It follows that this complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 and 4 of the Convention.", "FOR THESE REASONS, THE COURT 1. Declares, by a majority, the complaints that the decision to grant the residence order in respect of the applicant’s son in favour of the boy’s mother had violated his right to respect for his family life and had, moreover, amounted to discrimination on grounds of sex admissible and the remainder of the application inadmissible; 2. Holds, by six votes to one, that there has been no violation of Article 8 of the Convention; 3. Holds, by six votes to one, that there has been no violation of Article 14 of the Convention taken in conjunction with Article 8. Done in English, and notified in writing on 10 April 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Fatoş AracıHelena JäderblomDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Serghides is annexed to this judgment. H.J.F.A. DISSENTING OPINION OF JUDGE SERGHIDES 1. This case concerns a child-residence dispute. The applicant complains about the making of a residence order in respect of his son (A.)", "in favour of the boy’s mother (Ch.). He also complains about the interim order prohibiting him from contacting his son pending the residence proceedings. He relies on Article 8 of the Convention, Article 14 of the Convention in conjunction with Article 8, and Article 5 of Protocol No. 7 to the Convention. To my regret, the complaint regarding the interim order under Article 8 and the complaint under Article 5 of Protocol No.", "7 were dismissed by the Court (by a majority) as manifestly ill-founded, and thus inadmissible, leaving no room for an examination on their merits. 2. I agree with the majority that the decision to make a resident order in favour of the mother amounted to an interference with the applicant’s right to respect for his family life (see paragraph 69 of the judgment). 3. Where I respectfully disagree with them, however, is that, under the circumstances of the case, there has been no violation of Article 8 and of Article 14 read in conjunction with Article 8.", "I. Complaint under Article 8 of the Convention 4. It is important to note that the scope of the residence order in favour of the mother (Ch.) was limited to determining where A. would live; it did not affect A.’s legal relationship with the applicant, nor did it take away the applicant’s parental authority. It is also significant that the applicant was subsequently granted contact rights.", "5. According to the Court’s case-law, in reaching decisions on child‑care measures, national authorities and courts are often faced with a task that is extremely difficult. Equally, the Court does not lose sight of the fact that the national authorities had no other choice but to grant a residence order in favour of one of the two separated parents, as the domestic law does not provide for the possibility of granting a shared residence order (see Antonyuk v. Russia, no. 47721/10, § 121, 1 August 2013). 6.", "It is not the Court’s task to take the place of the domestic authorities in deciding in whose favour a residence order should be given in respect of a child of divorced parents. However, in this sphere, the Court’s review is not limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith; it must determine whether the reasons adduced by the domestic courts in child residence proceedings were relevant and sufficient (see Gruzdeva v. Russia (dec.), no. 13553/09, § 71, 8 July 2014). In particular, the Court has competence to ascertain whether the domestic courts, when taking such a decision, conducted an in‑depth examination of the entire family situation and a whole series of relevant factors and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the child (see the case-law cited in the General Principles section of the judgment). A failure to make a sufficiently thorough examination will amount to a violation of Article 8 (see Antonyuk, cited above, § 146).", "By contrast, if the domestic courts examined the question at issue with care and in line with the principles laid down by the Court’s case-law, the Court would require very strong reasons to substitute its own assessment for that of the domestic courts. 7. In line with the principles and case-law outlined above, I will therefore examine whether the domestic authorities in the present case made an in-depth examination of the entire family situation and of all relevant factors. The domestic authorities, while noting that both parents possessed moral, personal and other qualities rendering them capable of raising a small child and that the child was equally attached to both of them (see paragraphs 21 and 38 of the judgment), gave two reasons for their decision to grant a residence order in favour of the mother. They considered, firstly, that by reason of his very young age, A. should live with his mother.", "Secondly, they referred to the fact that A. had lived with his mother for some time and that a change to his established way of life would have a negative impact on his psychological state. I will examine the two reasons in turn. 8. As regards the first argument that a child below a certain age should live with the mother, this was most fully set out in the childcare authority’s report of 22 June 2010 (see paragraph 15 of the judgment). The report stated that it was particularly important for a child to be raised by the mother until the age of five or six and that a lack of maternal care during that period could result in the child developing “stubbornness, surliness, hysterical reactions and inadequate social adaptation”.", "It is significant that the report was formulated on the basis of general assumptions, without any reference to the particular circumstances of the case and without any consideration of the situation of the family in question or the needs of A., the child in question. Although they based their decision on that report to a significant degree, the domestic courts failed to assess it and merely endorsed its findings. They made no meaningful attempts to verify whether the report had been prepared after a thorough examination of the entire family situation and of all relevant factors. 9. Nor did the domestic courts themselves (see paragraphs 38 and 40 of the judgment), while advancing A.’s young age as the main reason for the decision to grant the residence order to the mother, refer to any circumstances of a factual, emotional, psychological, material or medical nature specifically concerning A. and confirming his stronger attachment to the mother or her better parental abilities.", "They limited their examination of this issue to stating that the applicant’s request for a residence order was premature because the child had not reached “a conscious age”. It is also revealing that even before beginning its examination of the case, in its decision on the interim measure, the district court forbade the applicant from contacting his son, finding that such contact “might complicate or make impossible the execution of the forthcoming judgment” (see paragraph 11 of the judgment). I cannot but conclude that the domestic courts simply assumed from the very outset that women were able to take better care of small children and that it was therefore always in the interests of small children to reside with the mother rather than the father. Such an assumption fails to take into account the variety of family situations and their relevance for the assessment of the best interest of the child, and moreover indicates differing treatment on the basis of sex. Article 8 cannot, however, be interpreted as granting a preferential right to obtain child custody to one or other of the parents (see Donát v. the Czech Republic (dec.), no.", "43252/98, 19 October 1999), irrespective of the child’s age. 10. I will now turn to the second reason advanced by the childcare authorities and the courts – namely that a change of residence could have a negative impact on A.’s psychological state because he had lived with his mother at her place of residence for some time and attended a nearby nursery school (see paragraphs 23 and 38 of the judgment). It is to be noted that the domestic authorities did not rely on any psychological or other expert evidence in support of their finding that a change of residence would be traumatic for A. It is significant that the experts found that after living with the mother, and separately from the father, for some time A. was still equally attached to both parents (see paragraph 21 of the judgment).", "Nor did the domestic authorities refer to any evidence showing that A. was more socially integrated at the mother’s place of residence (where he had recently moved after his parents’ separation) than at the father’s place of residence (where he had lived and attended a nursery school during the first years of his life). It therefore appears that the domestic authorities judged that there was a risk of psychological trauma solely on the basis of the mere passage of time spent with the mother after the separation and while the residence order proceedings were pending. As the Court has held on many occasions, effective respect for family life requires that future relations between parent and child should not be determined by the mere passage of time (see the case-law cited in the General Principles section of the judgment). However this is what happened in the present case (compare Jucius and Juciuvienė v. Lithuania, no. 14414/03, § 32, 25 November 2008).", "11. As the Court has also held in many cases concerning a person’s relationship with his or her child, the procedural requirements implicit in Article 8 establish a duty to exercise exceptional diligence in view of the risk that the passage of time owing to a procedural delay may result in the de facto determination of the matter (see, inter alia, W. v. the United Kingdom, 8 July 1987, § 65, Series A no. 121; Hoppe v. Germany, no. 28422/95, § 54, 5 December 2002; Süß v. Germany, no. 40324/98, § 100, 10 November 2005; and Gobec v. Slovenia, no.", "7233/04, § 142, 3 October 2013). 12. In my view, the present case should have been treated with particular urgency, given the ongoing lack of contact between the applicant and his son. Indeed, in the previous cases examined by the Court the lack of contact weighed heavily in favour of the finding that a procedural delay – even a relatively short one – amounted to a violation of the exceptional diligence requirement of Article 8 (see, for example, W. v. the United Kingdom, cited above, § 69, where the delay was about four months; Sylvester v. Austria, nos. 36812/97 and 40104/98, § 69, 24 April 2003, where the delay was slightly more than five months; Eberhard and M. v. Slovenia, no.", "8673/05 and 9733/05, § 139, 1 December 2009; K. v. Slovenia, no. 41293/05, § 117, 7 July 2011; S.I. v. Slovenia, no. 45082/05, § 72, 13 October 2011; Ribić v. Croatia, no. 27148/12, §§ 99 and 100, 2 April 2015; and, by contrast, Süß, cited above, §§ 101-03; Diamante and Pelliccioni v. San Marino, no.", "32250/08, § 189, 27 September 2011; and Gobec, cited above, § 144, all three of which concerned situations where regular contact was maintained). 13. I do not consider that complexity alone could explain the length of the proceedings in the present case, in which only ten hearings were scheduled. There were several delays for which the Government have not submitted any satisfactory explanation. Thus, it took the domestic authorities almost three months to obtain an expert opinion (compare Sylvester, cited above, § 69).", "The proceedings were also stayed for three months at the applicant’s request pending criminal proceedings against his ex-wife. It is to be noted that the fact that the civil court was awaiting the criminal court’s judgment before deciding on the residence order did not release the domestic authorities, including the criminal court, from their obligation to examine the case promptly (see K., cited above, § 117). It should be noted, in particular, that the criminal conviction entered into force eight days after the proceedings had been stayed. The Government did not explain why it took the district court almost three months to resume the proceedings. I find it noteworthy that the proceedings were ultimately resumed five days after the conviction had been quashed on supervisory review and the criminal proceedings had become pending again.", "14. Given that the risk of psychological trauma in the event of a change of residence was assumed by the domestic authorities in the light of the mere passage of time, and taking into account the fact that the domestic authorities bore at least partial responsibility for that situation through the procedural delays attributable to them, the fact that A. had lived with his mother while the residence order proceedings were pending, although relevant, cannot in itself be regarded as sufficient grounds for deciding in favour of the mother, in the absence of other valid reasons. 15. No other reasons were advanced by the domestic authorities. The applicant submitted a number of documents to the courts concerning his ex‑wife’s criminal conviction and his and his ex-wife’s respective incomes, living conditions, working schedules and character references.", "The domestic courts found that the mother’s criminal conviction was not decisive and dismissed all the other factors as irrelevant (see paragraph 38 of the judgment). 16. As regards Ch.’s criminal conviction, the domestic courts merely stated that the incident had been prompted by the personal hostility between the applicant and Ch., caused by a disagreement on the issue of their son’s residence and education. They therefore considered that Ch.’s criminal conviction, not final at the relevant time, was not a sufficient reason for making a residence order in favour of the applicant (see paragraph 38 of the judgment). It is not the Court’s task to give a final ruling on the matter.", "However, one must note that Ch. was convicted of a violent criminal offence. It was established that she had physically assaulted the applicant in front of their child and, in particular, that she had snatched the child by force from the applicant before starting to hit the applicant (see paragraph 20 of the judgment). It is also significant that this incident was one of the manifestations of Ch.’s persistent refusal to allow any contact between the applicant and his son. Given the seriousness of the situation and the fact that it was directly relevant to the best interests of the child, the Court considers that it required a more thorough analysis and examination than can be found in the decisions of the domestic courts (see, for similar reasoning, M.S.", "v. Ukraine, no. 2091/13, §§ 81 and 82, 11 July 2017). 17. Turning to the other factors mentioned by the applicant, it is to be noted that the Government disputed the applicant’s assertions regarding his superior personal qualities, income, living conditions and working schedule. It is not the Court’s task to take the place of the national authorities and to establish the disputed facts.", "I observe, however, that the applicant submitted a number of documents to the domestic courts in support of his arguments. Nevertheless, the domestic courts rejected them in summary fashion without making any meaningful attempt to analyse the applicant’s and Ch.’s respective incomes, living conditions or working schedules in the light of the adduced evidence, finding that those factors were irrelevant for their assessment. It is my humble view that these factors might have been relevant for determining the best interests of the child (see Antonyuk, cited above, § 134, and, mutatis mutandis, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 139, ECHR 2010). Accordingly, the domestic courts failed to safeguard the Convention right in question adequately, by omitting to duly consider factors that were relevant under the Convention (see, by contrast, Gruzdeva v. Russia (dec.), no.", "13553/09, §§ 72-77, 8 July 2014, and Malinin v. Russia, no. 70135/14, § 71, 12 December 2017, where the domestic courts had carefully assessed those and other factors in their decisions). 18. I conclude from the above that the domestic courts did not conduct an in-depth examination of the entire family situation and of all relevant factors and that their decisions were based to a significant degree on a general assumption in favour of mothers, and also on the mere passage of time while the residence-order proceedings were pending, flawed as they were with delays. It follows that the decision-making process was deficient and did not therefore allow the best interests of the child to be established.", "I accordingly propose that the domestic authorities did not adduce relevant and sufficient reasons for their decision to grant a residence order in favour of the child’s mother. 19. Lastly, as regards the Government’s argument that the applicant was entitled to apply for a reconsideration of the residence arrangements after the child had reached “a more conscious age”, my view is that decisions taken on matters of child custody or residence may well prove to be irreversible. Thus, where a residence order has been made in favour of one of the parents, the child in question may in the course of time establish a routine involving that parent and have his personal bond with the other parent weakened. It might not be in his interests to disturb his established way of life by reversing a previous residence order.", "It follows that this is a domain in which there is an even greater call than usual for protection against arbitrary interferences (see, mutatis mutandis, W. v. the United Kingdom, cited above, § 62). I am not therefore convinced that a highly uncertain possibility of a future change in residence arrangements could absolve the domestic authorities from complying with their Convention obligation to conduct an in-depth examination of the situation before deciding on a child’s residence arrangements. 20. In view of the above, and notwithstanding the domestic authorities’ margin of appreciation, I find that the interference was not proportionate to the legitimate aim pursued. 21.", "Consequently, I find that there has been a violation of Article 8 of the Convention on account of the making of a residence order in respect of the applicant’s son in favour of the boy’s mother, for the reasons explained above. II. Complaint under Article 14 of the Convention, taken in conjunction with Article 8 22. The applicant also complained that the decision to grant a residence order in respect of his son in favour of the boy’s mother amounted to discrimination on grounds of sex. His complaint is based on Article 14 of the Convention, taken in conjunction with Article 8.", "23. The issue here is whether the enjoyment of the applicant’s right to respect for his family life as set forth in Article 8 of the Convention was secured without discrimination on a ground of sex, contrary to Article 14 of the Convention. In assisting the Court in interpreting and applying the provisions of these Articles, the principle of effectiveness, which is inherent in the Convention, should be employed as a tool. According to this principle, the interpretation and application of the Convention provisions should be made in a practical and effective manner, based on their texts and according to their scopes and purposes. Bearing this principle in mind, as I also did when examining the complaint under Article 8, I will now examine the complaint under Article 14 taken in conjunction with the former Article.", "24. It is the Court’s established case-law that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in relevantly similar situations (see Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008). I must therefore first examine whether the applicant suffered a difference in treatment. 25.", "In the instant case it is to be noted that the domestic childcare authorities, and then the courts, based their decision to make a residence order in favour of the child’s mother on two main grounds. 26. Firstly, with regard to the domestic authorities’ finding that, by reason of his very young age, A. should live with his mother, it should be observed that the difference in treatment complained of does not arise from the wording of the domestic provisions. Russian law does not make any distinction between the sexes, both men and women being equally eligible to obtain a residence order in respect of their child, irrespective of the child’s age. The difference in treatment at issue was allegedly based on what was described by the applicant as a well-established practice, according to which a residence order in respect of a small child was almost always made in favour of the mother.", "As the Court has already found, difference in treatment potentially contrary to the Convention does not have to be based on the domestic legal provisions; it may result from a de facto situation, such as established practice (see E.B. v. France [GC], cited above, § 74, and Zarb Adami v. Malta, no. 17209/02, §§ 75-76, ECHR 2006‑VIII). 27. It should be observed that the Government, on whom the burden of proof lay, did not produce statistical information on the frequency of the reliance on a child’s young age as the decisive reason for making a residence order in favour of the mother; this alone could have provided an accurate picture of administrative and judicial practice and established the absence of a difference in treatment between mothers and fathers as regards very young children (compare E.B.", "v. France [GC], cited above, § 74). 28. It is also significant that the domestic authorities in the present case clearly based their decision on a general assumption that it was in the interests of small children to reside with the mother rather than the father, without any reference to the particular circumstances of the case in question and without any consideration of the particular family situation (for a detailed analysis of this ground, see §§ 8-9 of this opinion). The crucial point is that it was prima facie considered to be in the interest of any small child to live with the mother (compare Zaunegger v. Germany, no. 22028/04, § 46, 3 December 2009).", "29. As regards the second ground – that the child had lived with his mother for some time and that a change to his established way of life would have a negative impact on his psychological state – this had nothing to do with any consideration relating to the applicant’s sex. It referred to a de facto situation and its anticipated consequences for the best interests of the child (for a detailed examination of this ground, see §§ 10-14 of this opinion). 30. Nonetheless, these two main grounds form part of an overall assessment of the child’s situation.", "For this reason, I propose that they should not be considered alternatively, but concurrently. Consequently, the illegitimacy of one of the grounds has the effect of contaminating the entire decision (see E.B. v. France [GC], cited above, § 80). 31. It is to be noted that the childcare authorities’ report of 22 June 2010 relied on one ground only – the child’s young age – in respect of its recommendation that the child should live with the mother.", "That ground alone was therefore considered to be sufficient for the mother to be preferred to the father. It was not until 23 December 2010 that the second ground was relied on for the first time by the childcare authorities, in addition to the child’s age. In my view, the manner in which the childcare reports, and in particular the report of 22 June 2010, were phrased was revealing in that the child’s age was a determining factor. 32. The domestic courts in turn relied on both grounds, without it being possible to conclude, on the basis of the texts of the judicial decisions, that one of them was predominant or that one of them alone would have been sufficient for them to decide in favour of the mother.", "It is, however, clear that the child’s young age was at the centre of the deliberations of the domestic courts, which reached their decisions in the light of the recommendations made by the childcare authorities. That ground was therefore omnipresent at every stage of the proceedings (compare E.B. v. France [GC], cited above, §§ 82-88). 33. It should be stressed that the reference to the applicant’s sex was, if not explicit, at least implicit.", "By relying on the child’s young age as one of the reasons for making a residence order in favour of the mother, the domestic courts assumed that women were able to take better care of small children than men. The influence of the applicant’s sex on the assessment of his application for a residence order has therefore been established and, having regard to the foregoing, was a significant factor leading to the decision to grant the residence order in favour of the mother. 34. The Court has already found that, while differences may exist between a mother and father in their relationship with their child, as far as the role of taking care of the child during the period corresponding to parental leave – that is, on expiry of the period of maternity leave, which is intended to enable the woman to recover from childbirth and to breastfeed her baby if she so wishes – is concerned, men and women are “similarly placed” (see Konstantin Markin v. Russia, no. 30078/06, § 132, 7 October 2010).", "This is a fortiori true for the period after the end of the parental leave, as in the present case. 35. The applicant (the father) therefore suffered a difference in treatment on account of his sex, as compared to a person in a relevantly similar situation (the mother). 36. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.", "The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background, but the final decision as to the observance of the Convention’s requirements rests with the Court (see Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008, and Konstantin Markin, cited above, §§ 125 and 126). 37. The Government did not provide any justification for a difference in treatment in the present case.", "38. The Court has repeatedly held that the advancement of gender equality is today a major goal in the member States of the Council of Europe and very weighty reasons would have to be put forward before such a difference in treatment could be regarded as compatible with the Convention (see, among many other cases, Schuler-Zgraggen v. Switzerland, 24 June 1993, § 67, Series A no. 263; Zaunegger, cited above, § 51; and Buchs v. Switzerland, no. 9929/12, § 67, 27 May 2014). In particular, references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on grounds of sex.", "States may not impose traditional gender roles and gender stereotypes. In particular, it is significant that contemporary European societies have moved towards a more equal sharing between men and women of responsibility for the upbringing of their children and that men’s caring role has gained recognition. Gender stereotypes, such as the perception of women as primary child-carers and men as primary breadwinners, cannot therefore, by themselves, be considered to amount to sufficient justification for a difference in treatment, any more than similar stereotypes based on race, origin, colour or sexual orientation (see Konstantin Markin, cited above, §§ 127 and 140-43). 39. In view of the foregoing, I consider that the decision to make a residence order in favour of the mother on the grounds of the child’s young age cannot be said to be reasonably or objectively justified.", "Finally, I conclude that this difference in treatment, of which the applicant was a victim, amounted to discrimination on grounds of sex. 40. Consequently, I find that there has been a violation of Article 14 taken in conjunction with Article 8. III. General conclusion 41.", "I conclude that there has been a violation of Article 8 and Article 14 taken in conjunction with Article 8 of the Convention. This conclusion would have led me to award the applicant an amount in respect of non‑pecuniary damage for the violation of the above provisions, as well as an amount for costs and expenses; nevertheless, as I am in the minority, the estimation of such amounts would be purely theoretical, and so I will refrain from speculating on them." ]

[ "SECOND SECTION CASE OF ZOLTÁN NÉMETH v. HUNGARY (Application no. 29436/05) JUDGMENT STRASBOURG 14 June 2011 FINAL 14/09/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Zoltán Németh v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,David Thór Björgvinsson,Dragoljub Popović,Giorgio Malinverni,András Sajó,Guido Raimondi,Paulo Pinto de Albuquerque, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 24 May 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "29436/05) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr Zoltán Németh (“the applicant”), on 4 August 2005. 2. The applicant was represented by Ms M. Regász, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice. 3.", "On 14 February 2008 the President of the Second 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 4. The applicant was born in 1958 and lives in Szigetszentmárton.", "1. Measures taken by the domestic courts 5. On 23 June 1998, following the pronouncement of the divorce of the applicant and his wife, the Budapest IV/XV District Court placed the applicant’s child – born in July 1993 – with the mother. 6. The applicant was thereafter not able to see his son due to the mother’s reluctance to hand over the child.", "7. The parents managed to reach a settlement about the father’s access rights concerning visits until the summer of 1999, which was approved by the Budapest Regional Court on 8 January 1999. According to the arrangement, the applicant was allowed to see his son every second Saturday from 9 am until 6 pm, the day after Easter at the same hours and during the summer holidays from 7 until 14 July and from 1 until 14 August. 8. Until 26 May 2000 the applicant managed to see his son only rarely, since the mother refused to comply with the arrangement on most occasions.", "From this date onwards he was fully denied access to the child by his former wife. 2. Measures taken by the local guardianship authorities 9. The applicant repeatedly complained to the local guardianship authority as from that date and requested it to take effective measures in order for him to be able to exercise his access rights. 10.", "On 16 June and 18 July 2000 the competent Budapest XV District Guardianship Authority heard both parents, warned the mother to allow the applicant to see his son and imposed fines on her. However, these fines were later cancelled. 11. In January 2001 the case was transferred to the Budapest XIII District Guardianship Authority. Since a warning issued in July 2001 was to no avail, it fined the mother 10,000 Hungarian forints (HUF) (approximately 37 euros (EUR)) on 13 August 2001 and a further HUF 30,000 (EUR 110) on 18 October 2001.", "12. Furthermore, in December 2001 the Budapest XV District Guardianship Authority discontinued the proceedings, initiated ex officio by the Budapest XIII District Guardianship Authority, to place the child under protection (“védelembe vétel”), finding no reason for it. The child welfare service contacted the parents in an attempt to find a solution to the situation. It prepared an environment study at the mother’s home, establishing that it was ideal for the upbringing of the child, who was in a loving relationship with his mother. However, it emphasised the importance of and need for a balanced contact between the child and his father.", "13. As the applicant had had no contact with his child since May 2000, he lodged complaints with various authorities, but to no avail. 14. The Guardianship Authority then contacted a child upbringing counsellor (“nevelési tanácsadó”) who recommended the assistance of a foundation specialised in facilitating visits. It therefore ordered that the regular visits scheduled for the period between 16 February and 11 May 2002 be held at the foundation’s premises.", "It appears that there was therefore some contact between the applicant and his son in this period. The applicant’s relationship with his son was examined and found to be harmonious. Subsequently, the Guardianship Authority invited both parents to a reconciliatory meeting on 10 June 2002. This, however, proved to be unsuccessful. The father’s environment was also examined, and it was established that the conditions were appropriate to hold the visits there.", "The authority recommended a gradual extension of the duration of the contact between the father and the child. 15. The Guardianship Authority drew up a new access schedule on 16 August 2002 and warned the parents once again to respect these arrangements. However, the mother continued to deny access to the child. 16.", "Following the applicant’s repeated complaints to various authorities about the failure to take adequate action to enforce his rights, on 30 March 2004 the Budapest XI District Guardianship Authority again warned the mother and took nine separate decisions concerning the visits not ensured in 2003, imposing a series of fines on her in the total amount of HUF 260,000 (EUR 975). On 23 June 2004 it initiated the child’s placement under protection. Subsequently, on 15 September 2004 the Guardianship Authority imposed a further fine of HUF 100,000 (EUR 375) for the overdue visits from 1999 until 2003. 17. The Guardianship Authority also ordered police assistance twice in 2004.", "Afterwards, the applicant managed to see his son until the following year. 3. Court proceedings to change custody of the child 18. Meanwhile, the applicant initiated an action before the Budapest IV/XIV District Court in February 2002, seeking a change of custody and requesting the temporary placement of the child with him as an interim measure. Since no measures were taken thereafter, he submitted a petition to the ombudsman, asking for his assistance.", "19. Eventually, the Budapest Regional Court, acting as a second-instance court, rejected the maintenance of contact with the child via the foundation mentioned in paragraph 14 above, and dismissed the applicant’s action on 23 March 2005. 4. Decision of the Ministry 20. In April 2005 the Ministry of Youth, Family and Social Matters quashed the decisions of the Budapest XI District Guardianship Authority described in paragraph 16 above, thereby withdrawing the fines imposed and the order to initiate the child’s placement under protection, without the possibility to appeal against the decision.", "The Ministry established that the decisions of the guardianship authority had been unlawful and it discontinued the administrative proceedings concerning the exercise of the applicant’s access rights prior to 1 March 2004. It nevertheless ordered the Guardianship Authority to take effective measures to ensure the applicant’s rights by using the range of measures at its disposal and not only through the imposition of fines. The Ministry pointed out, inter alia, that: “... [t]he fact that the administration of minor A.N.’s case concerning access got to a guardianship authority that instantly sanctions the mother for the overdue visits is good, but other measures would be required as well, as it seems that the fines do not lead to any result, the goal being to enable Zoltán Németh to exercise his visiting rights regarding his son. That is why the guardianship authority should initiate the placement of the child under protection and consider intervening in the custody proceedings on the side of the father. This should have been done already by the previous guardianship authority.", "The placement of the child under protection was initiated once by the Budapest XIII District Guardianship Authority, but the proceedings were discontinued by the Budapest XV District Guardianship Authority on the ground that the child’s care may be provided through basic service. The guardianship authority did not request the review of the decision despite the fact that the failure of care in basic service had been fully manifest. ... Overall, it can be established that the first-instance guardianship authorities were not controlling the situation, revoking the fines imposed on formal grounds. ...", "The Budapest Guardianship Authority was a “spectator” to the situation, hindered the enforcement proceedings several times; on the basis of the appeal even it could have clarified whether the visits took place, or could have requested the first-instance guardianship authority to hear the parties, once they made the mistake of transferring the case file to the court without having made copies of at least the proceedings pending preceding the transfer. ... The second-instance guardianship authority also omitted [to fulfil its obligations] in that when the father had not received his son for months and the competent guardianship authority did not assist the enforcement, it did not take over the case. It is not an acceptable solution to settle cases that, instead of solving the professional problems, the second-instance guardianship authority repeatedly assigns new acting organ. This practice is unlawful ...", "It is indisputable that the first instance guardianship authority and the second instance guardianship authority made omissions between 1999 and 2004 by not effectively promoting the enforcement of the contacts ...” 21. The applicant initiated the review of the Ministry’s decision before the Chief Prosecutor’s Office. On 25 August 2005 this Office established that the decision in question had been unlawful and informed the Ministry about its findings. 22. However, the applicant was not able to exercise his access rights after the Ministry’s decision had been adopted.", "He initiated several enforcement proceedings, following which a few penalties in the sum of the statutory maximum were imposed on the mother. 23. It appears that the applicant has been unable to have any contact with his son since then. 5. Criminal proceedings against the mother 24.", "Meanwhile, as it had become impossible for the applicant to meet his child, he lodged a criminal complaint against the mother for endangering a minor, on 10 January 2004. The Pest Central District Court found the mother guilty and imposed a criminal fine on her on 5 September 2007. In its reasoning, the court emphasised that: “[a] child’s moral development can be endangered not only by so-called immoral conduct ... but also by depriving the child of the opportunity of healthy moral development. Thus, by the conduct of the mother, who, having knowledge of the fact – of which the child also had knowledge – that the father was to exercise his access rights at a given date, knowingly violated this right by organising for that date an attractive programme for the child in the countryside, at a location far from the father ... The mother involved the child in her conflict with the father, informed him of the court actions brought against or by him and made disparaging remarks about the father, thereby exerting emotionally negative influence on the child living under a common roof with her and thus being to an increased degree dependent on her.” However, it also noted that the applicant: “... [h]imself did not dispute that on certain occasions contact with the child became frustrated because of his own omission.” 25.", "No further information was provided by the parties as to the development of the criminal case before the appellate court. II. RELEVANT DOMESTIC LAW 26. The relevant rules concerning the enforcement of contact orders can be found in Government Decree no. 149/1997 (IX.", "10.) on Guardianship Authorities, Child Protection Procedure and Guardianship Procedure, which provides as follows: Section 33 “(1) The development of the child is endangered if the parent ... wilfully and repeatedly fails to comply with a final contact order. (2) If non-compliance with the contact order on the part of the parent ... is a fault of his/her own, the guardianship authority shall warn him/her about the consequences of such conduct. The decision shall contain an injunction ordering the parent ... to terminate the unlawful conduct and a warning about the legal consequences of continuing the unlawful conduct. (3) If the measures provided for under subsection (2) are of no effect and one year has not elapsed from the receipt of the warning, the guardianship authority shall apply the rules governing enforcement of the Act on Public Administration Procedure with the exceptions set forth in this Decree.", "... (5) If the maintenance of contact entails conflicts, is continuously frustrated by obstacles, or there are disturbances in the communication between the parents [in force since 15 February 2003], the guardianship authority may initiate the involvement of the child welfare service’s contact centre, the ordering of taking the child into protection, or the institution of the child protection mediation procedure. (6) If it is proved that the parent ... brings up the child by continuously turning him/her against the person entitled to contact, and despite enforcement measures fails to comply with the contact order, an action to change custody may be brought before the court.” 27. Moreover, section 72 of Act no. 31 of 1997 on the Protection of Children and Child Welfare Administration provides for the possibility temporarily to place the child with the other parent living apart, if the child’s emotional development is seriously threatened by his or her family environment and his or her immediate placement is necessary. Such serious threat may be established in case of risk of substantial and irreversible damage to the emotional development of the child.", "28. Other measures at the authorities’ disposal are listed in the Act on Public Administration Procedure, providing for police assistance for the enforcement of administrative decisions and the imposition of procedural fines. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 29. The applicant complained about the continuing lack of access to his son and about the insufficient measures taken by the public authorities to enforce his access rights, in violation of his right under Article 8 of the Convention.", "The Court observes that some of the complaints raised by the applicant which referred to Article 6 § 1 (see paragraphs 31 to 35 below) also concerned in substance the issues raised under Article 8 of the Convention. It deems it appropriate to examine these arguments in the context of the latter provision (see Kutzner v. Germany, no. 46544/99, §§ 56 and 57, ECHR 2002-I; and V.A.M. v. Serbia, no. 39177/05, § 115, 13 March 2007).", "Article 8 of the Convention, in its relevant part, provides: “1. Everyone has the right to respect for his ... family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... 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 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. A. The parties’ submissions 1. The applicant 31. The applicant alleged that the steps taken by the national authorities had not been effective and had contributed to the current situation.", "The domestic authorities continued to tolerate the unacceptable behaviour of the mother, who tried to do everything possible to prevent contact and obstruct the development of a loving relationship between him and his son. 32. He also pointed out that the guardianship authorities had made use of only two measures at their disposal, namely warning the mother and the imposition of fines. They therefore had not availed themselves of the possibility of temporarily placing the child with the applicant, initiating mediation proceedings or even providing police assistance to ensure the visits. With the ministerial decision, the authorities had even annulled the minimal achievements made.", "33. He contended that the annulment of the fines by the Ministry would not have been necessary on the ground that the liability for the failure of the visits could not be established unambiguously, had the authorities complied with their obligation to respect the deadlines. 34. In the applicant’s view, the lack of any coercive measure had legalised the mother’s unlawful conduct. He also argued that the child upbringing counsellor and the foundation proposed by the authorities had been of no help, as they did not have any power to compel the mother to cooperate.", "35. The applicant further emphasised that he had taken all possible legal steps to enforce his visiting rights. He finally highlighted the fact that his son had not opposed the meetings, which were hindered only by the mother. 2. The Government 36.", "The Government submitted that the guardianship authorities had applied almost all available measures to enforce the applicant’s access rights. They had warned the mother and imposed penalties on several occasions, involved a foundation and a child upbringing counsellor and also forwarded the father’s letter seeking to take the child into protection to the guardianship authority. They nevertheless acknowledged that these measures had later been annulled by the Ministry’s decision in 2005, partially due to the fact that subsequently, the liability for the failure of visits could not be established unambiguously. 37. They pointed out that some of the fines imposed on the mother after March 2005 had later been enforced, notwithstanding the fact that the collection of such penalties limited the resources for the child’s maintenance and was therefore not frequently applied.", "38. In any event, the applicant’s own conduct was open to criticism, as some visits had not taken place due to his omission. Moreover, on several occasions he had failed to request the enforcement of fines or had revoked the motion for their enforcement. They further highlighted that the use of coercion must be limited to the absolutely necessary degree. Finally, the Government emphasised that the applicant had not been completely barred from seeing his son.", "39. In sum, the Government maintained that the authorities had done everything necessary and reasonable in order to comply with their positive obligation under Article 8 of the Convention. B. The Court’s assessment 1. General principles 40.", "The Court notes, firstly, 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 other authorities, Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005). 41. The Court reiterates that 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 and the implementation of specific steps (see, amongst other authorities, Glaser v. the United Kingdom, no. 32346/96, § 63, 19 September 2000). In both the negative and positive contexts, regard must be had to the fair balance which has to be struck between the competing interests of the individual and the community, and the State’s margin of appreciation (see, amongst other authorities, Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290). 42.", "Article 8 includes a 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 such measures. This also applies to cases where contact disputes concerning children arise between parents (see mutatis mutandis, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299‑A). 43. The Court observes that whilst national authorities must do their utmost to facilitate such co-operation, any obligation to apply coercion in this area must be limited, since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention.", "Where contacts with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance between them (see Olsson v. Sweden (no. 2), 27 November 1992, § 90, Series A no. 250). 44. What is decisive is whether the national authorities have taken all necessary steps to facilitate reunion as can reasonably be demanded in the special circumstances of each case (see Glaser v. the United Kingdom, cited above, § 66).", "45. In this context, 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 Ignaccolo-Zenide v. Romania, no. 31679/96, § 102, ECHR 2000‑I). 46. Finally, the Court has held that although coercive measures against the children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent with whom the child lives (see Ignaccolo-Zenide, cited above, § 106).", "2. Application of the above principles to the present case 47. Turning to the particular facts of the case, the Court acknowledges the efforts made by the national authorities to enforce the applicant’s visiting rights, and is aware that the difficulties in arranging access were in large measure due to the animosity between the parents. Nonetheless, the Court does not accept that responsibility for the failure of the relevant decisions or measures in actually bringing about contacts can be attributed to the applicant. 48.", "The Court considers that the present case is to be distinguished from the cases of Szegő v. Hungary (no. 21647/93, Commission decision of 16 January 1996) and Kálló v. Hungary ((dec.), no. 70558/01, 14 October 2003). In the former case, an administrator accompanied the applicant to the visits several times, imposed fines and envisaged further coercive measures to be taken. Similarly, in the latter case, the authorities took a variety of measures to secure the applicant’s access rights, including assistance by officials, granting of requests for interim measures, issuing of warnings and the imposition of fines of significant amounts.", "Furthermore, the children were also reluctant to meet their fathers, as opposed to the present case where the relationship between the father and his son was found to be harmonious (see paragraph 14 above). 49. On the other hand, the Court finds that this case shows certain similarities with the case of Eberhard and M. v. Slovenia (nos. 8673/05 and 9733/05, 1 December 2009). In both cases, most of the fines imposed were never executed or the related decisions were ultimately quashed on procedural grounds.", "50. It is true that the authorities took some measures to enforce the applicant’s visiting rights, including warnings, the assistance of a child upbringing counsellor, the organisation of a reconciliatory meeting, the conduct of criminal proceedings against the mother and the imposition of fines. However, these measures proved to be ineffective or not sufficiently prompt, resulting in a situation where the father was not able to see his son for several years, between May 2000 and February 2002 and from May 2002 until March 2004. 51. The Court would reiterate that in general, the national authorities are better positioned to consider the procedure to follow in such situations, and the Court, as a rule, will find a violation of Article 8 only where the inefficiency of the measures applied is manifest.", "However, the State authorities will fail to fulfil their obligations where the national authorities themselves admit that the procedures applied were not satisfactory and they failed to remedy such shortcomings, or where they contributed to the non-execution of otherwise appropriate measures. The Court is not satisfied that the authorities made efficient use of the arsenal of measures at their disposal despite the Ministry’s express instructions concerning the steps to be taken (see paragraph 20 above). It notes in particular that they did not place the child with the applicant temporarily, nor did they initiate mediation proceedings or intervene in the proceedings which concerned the change of the child’s custody (see paragraphs 18 and 19 above); moreover, the authorities revoked the fines which were, in principle, capable of contributing to the enforcement of the applicant’s visitation rights (see paragraphs 20 and 21 above) and, apart from two occasions, they did not provide police assistance to enforce the visits. 52. The Court is mindful of the fact that coercion in this field must be limited.", "However, the only period in which the exercise of the applicant’s rights seems to have been undisturbed ran from March 2004 until April 2005, when the authorities twice provided police assistance for the visits. 53. The Court further notes that only in September 2004 did the competent guardianship authority decide on the sanctions for the failure of certain visits between 1999 and 2003, therefore breaching their obligation to act sufficiently promptly. 54. The only time when the situation appears to have improved was when the case was transferred to the Budapest XI District Guardianship Authority in 2004.", "It imposed several fines, initiated the placement of the child under protection and provided assistance for the visits. However, the Ministry of Youth, Family and Social Matters quashed these measures in April 2005 (see paragraph 20 above), perpetuating a situation where the applicant is unable to have contact with his child. 55. From the foregoing the Court cannot but conclude, bearing in mind the interests involved, that the competent authorities did not act sufficiently promptly or make reasonable efforts to facilitate reunion. On the contrary, the inaction of the authorities placed the burden on the applicant to have constant recourse to a succession of time-consuming and ultimately ineffective remedies to enforce his rights.", "Over the years, they tolerated the mother’s unlawful actions which they were under a duty to prevent. 56. Accordingly, the Court concludes that, notwithstanding the margin of appreciation enjoyed by the competent authorities, the non-enforcement of the applicant’s right of access constituted a breach of his right to respect for his family life under Article 8 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 57.", "The applicant contended, relying on Article 13 of the Convention, that no effective remedy was available against the Ministry’s decision brought in April 2005. 58. The Court observes, however, that the applicant availed himself of a complaint to the Chief Prosecutor’s Office, which established the unlawfulness of the decision in question. The Court therefore considers that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected, pursuant to Article 35 § 4 of the Convention. 59.", "The applicant also claimed that the authorities’ attitude towards him and the decisions they had taken amounted to discrimination against him based on his gender, in violation of the prohibition of discrimination enshrined in Article 14 of the Convention. 60. The Court finds that, insofar as this complaint may be considered as a separate issue from the complaint under Article 8 of the Convention, there is nothing in the case file indicating discrimination against the applicant based on his gender. The Court therefore concludes that this complaint is likewise manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected, pursuant to Article 35 § 4 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 61. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 62. The applicant claimed 40,000 euros (EUR) in respect of non-pecuniary damage. 63.", "The Government contested this claim. 64. The Court considers that the applicant must have suffered distress as a result of the non-enforcement of his access rights and awards him, on an equitable basis, EUR 20,000 for non-pecuniary damage. B. Costs and expenses 65.", "The applicant also claimed EUR 5,000 for the costs and expenses incurred before the domestic courts and the Court, without providing any particulars of this claim. 66. The Government observed that the applicant’s claim was not supported by any evidence and requested the Court to reject it. 67. 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 applicant did not produce any documentary evidence in support of his claim. The Court therefore rejects it. C. Default interest 68. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaint concerning Article 8 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 8 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 20,000 (twenty thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into Hungarian forints at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 14 June 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stanley NaismithFrançoise TulkensRegistrarPresident" ]

[ "FIRST SECTION CASE OF KHALIKOV v. RUSSIA (Application no. 66373/13) JUDGMENT STRASBOURG 26 February 2015 FINAL 06/07/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Khalikov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro, President,Julia Laffranque,Paulo Pinto de Albuquerque,Linos-Alexandre Sicilianos,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 3 February 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "66373/13) 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 an Uzbek national, Mr Sokhib Umarovich Khalikov (“the applicant”), on 22 October 2013. 2. The applicant was represented by Ms Y. Ryabinina and Ms D. Trenina, lawyers 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 that in the event of his extradition or administrative removal to Uzbekistan he risked being subjected to torture and ill-treatment, that there was no effective remedy for that complaint, and that his detention pending administrative removal had been unlawful and not subject to periodic judicial review. 4. On 23 October 2013 the Acting President of the First Section decided to indicate to the Russian Government, under Rule 39 of the Rules of Court, that the applicant should not be expelled and/or extradited to Uzbekistan for the duration of the proceedings before the Court. The Acting President also decided to grant the case priority under Rule 41 of the Rules of Court 5. On 19 March 2014 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1983 and is currently detained in Moscow. A. Criminal proceedings against the applicant in Uzbekistan 7.", "Until 2011 the applicant lived with his wife and three children in Urgut in the Republic of Uzbekistan. 8. According to the applicant, in July 2011 a friend with whom he used to “discuss religious topics” was arrested. Shortly thereafter several plain-clothed officers searched the applicant’s apartment, taking away a number of his books. Shortly afterwards the applicant left Uzbekistan and moved to Moscow, where he apparently lost his passport soon after arriving.", "9. On 1 February 2012 the Uzbek authorities charged the applicant with attempting to overthrow the constitutional order and membership of Hizb ut-Tahrir, a radical Islamic organisation banned both in Uzbekistan and Russia which calls for the overthrow of non-Islamic governments and the establishment of an Islamic Caliphate. On the same day the applicant was put on the wanted list. 10. On 2 February 2012 the Samarkand Town Criminal Court issued an arrest warrant in absentia against the applicant, citing the above charges.", "B. The applicant’s arrest and detention pending extradition 11. On 17 April 2013 the Russian police, acting pursuant to the warrant of 2 February 2012, arrested the applicant in Moscow. 12. The next day a public prosecutor interviewed the applicant regarding his background and the circumstances of his arrival in Moscow.", "The applicant submitted that he was aware of the charges laid against him by the Uzbek authorities and had crossed into Russia in order to avoid prosecution and find a job. It was specifically noted in the interview record that the applicant had no passport on him. 13. On 19 April 2013 the Cheremushkinskiy District Court of Moscow, referring to the charges against the applicant in Uzbekistan and the absence of a registered residence and a job in Russia, authorised the applicant’s detention pending extradition until 17 May 2013. No appeal was lodged against that detention order.", "14. On 13 May 2013 the Deputy Prosecutor General of Uzbekistan submitted an extradition request. It included diplomatic assurances that the applicant would not be charged with any further crimes or handed over to a third State without the Russian authorities’ consent. It also contained assurances that the applicant would be afforded a fair trial and provided with legal aid and the necessary medical assistance, and that he would not be subjected to torture or inhuman or degrading treatment. 15.", "Following receipt of the above request, on 17 May 2013 the Cheremushkinskiy District Court extended the applicant’s detention pending extradition until 17 October 2013 referring to the same grounds as in the order of 19 April 2013, and noting in addition that the applicant had absconded from the Uzbek authorities. The applicant did not appeal against the extension order. 16. It appears that the extradition proceedings are still pending before the competent Russian authorities. C. The administrative removal (expulsion) proceedings 17.", "On 17 October 2013 a deputy prosecutor requested the Moscow police to check whether the applicant’s stay in Russia complied with the relevant legislation. Among other things he enquired as to “the date of the actual expulsion [of the applicant] from [the territory of] the Russian Federation and the date of his actual handing over to the competent authorities of the Republic of Uzbekistan”. 18. On the same day the applicant was taken to a prosecutor’s office, where the deputy prosecutor ordered his release as the time-limit for his detention pending extradition had expired. Immediately upon release the applicant was brought to a police station, where he was charged with an infringement of the Russian immigration legislation (an administrative offence punishable by expulsion) and arrested again.", "An administrative detention order and an administrative violation report were drafted there and then. In addition to those documents, the applicant gave a written statement entitled “Explanations”, which reads as follows: “In 2011 I left the Republic of Uzbekistan because I was being prosecuted on grounds of my religious beliefs. I consider that the opening of this administrative case is unlawful because ... an administrative violation report must be drafted immediately after an infringement has been established. That infringement was established [by the authorities] at the time of my arrest on 17 April 2013. ... My [administrative] removal to Uzbekistan would mean that I would be handed over to the authorities of that country, which would infringe my right not to be subjected to torture and violate the absolute prohibition of expulsion of persons who are at risk of torture.", "Furthermore, I consider the opening of the administrative case to be unlawful as the proceedings regarding my extradition to Uzbekistan are pending at the present time... The purpose of the administrative detention is to hand me over to the Uzbek authorities and in the event of my expulsion I would actually end up in Uzbekistan. Accordingly, my deprivation of liberty does not serve a legal aim. I would like to point out that the decision to return me to the Republic of Uzbekistan would irreparably infringe my rights as guaranteed by Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. I am being prosecuted in Uzbekistan on grounds of my [religious] beliefs, [therefore] I am a member of a vulnerable group for whom the risk of torture is particularly high.” 19.", "On 18 October 2013 the Zyuzinskiy District Court of Moscow examined the above charges. During the hearing the applicant acknowledged that he had violated the immigration rules, but claimed that an administrative removal would amount to an actual extradition in the present case, because he would be handed over to the Uzbek authorities in any event. He referred to the high risk of ill-treatment and cited international reports (in particular, a report which was submitted to the District Court by the Russian office of the UNHCR and specifically stated that the applicant’s return to the country of his origin would violate his rights under international law) and the Article 3 case-law of the Court regarding extraditions to Uzbekistan. Without any assessment of these allegations, the District Court found the applicant guilty of infringing the immigration legislation, sentenced him to a fine and ordered his administrative removal from Russia. Pending expulsion, he was to be detained in the Moscow Centre for Detention of Foreign Nationals.", "The applicant appealed, reiterating his allegations of the risk of ill-treatment, noting that his expulsion would be unlawful as the examination of his application for refugee status (see below) was still under way, and that his detention pending expulsion would violate Article 5 of the Convention as the expulsion order had set no time-limits and no periodic judicial review of his detention was possible. 20. On 22 November 2013 the Moscow City Court upheld the first-instance judgment. Like the District Court, it did not analyse the applicant’s arguments about the risk of ill-treatment. As to the refugee-status proceedings, the City Court noted: “Notwithstanding the applicant’s position, his application for asylum in Russia and the examination of his request [for refugee status] under the relevant legal procedure do not affect [the existence of] the actus reus of the administrative offence [committed by the applicant].", "Besides, as can be seen from the reply to the Moscow City Court judge’s request on 14 October 2013 Mr Khalikov’s request for asylum was rejected.” D. The refugee-status proceedings 21. On 1 July 2013 the applicant lodged a request seeking refugee status. In the same terms as in the aforementioned expulsion proceedings, he referred to the risk of being tortured and cited international reports and the Article 3 case-law of the Court regarding extraditions to Uzbekistan. 22. On 14 October 2013 the Moscow branch of the Federal Migration Service rejected the application and on 9 December 2013 the Federal Migration Service upheld that decision.", "On 18 January 2014 the applicant challenged the refusal before the courts. 23. On 20 March 2014 the Basmanniy District Court of Moscow found that the applicant had not produced sufficient evidence of the risk of persecution and dismissed his appeal. The court found that the applicant “was not being prosecuted, had no criminal record and did not hold membership of any political, religious, [or] military organisations”. It further observed that the acts the applicant was charged with were also criminal under Russian criminal law.", "The District Court observed that the applicant had applied for asylum only after his arrest in Russia rather than immediately after arriving in Russia. The applicant appealed to the Moscow City Court. 24. On 28 July 2014 the Moscow City Court, relying on essentially the same reasons as the District Court, upheld the first-instance judgment on appeal. The text of the appeal judgment did not mention the applicant’s arguments regarding the risk of ill-treatment or assess that risk, but rather stated that the applicant was afraid of being “subjected to a[n] [allegedly] fabricated prosecution for the religious convictions imputable to him” in the event of his return to Uzbekistan.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 25. Pursuant to section 34(5) of the Foreigners Act (Law no. 115-FZ of 25 July 2002), foreign nationals subject to administrative removal who have been placed in custody pursuant to a court order are detained in special facilities pending execution of the decision on administrative removal. 26.", "Article 3.10 § 1 of the Code of Administrative Offences defines administrative removal as the forced and controlled removal of a foreign national or a stateless person across the Russian border. Under Article 3.10 § 2, administrative removal is imposed by a judge or, in cases where a foreign national or a stateless person has committed an administrative offence upon entry to the Russian Federation, by a competent public official. Under Articles 3.10 § 5, 27.1 § 1 and 27.19 § 2 of that Code, for the purposes of execution of the decision on administrative removal a judge may order the placement of the foreign national or the stateless person in a special facility which they are not allowed to leave at will. 27. Under Article 31.9 § 1, a decision imposing an administrative penalty ceases to be enforceable after the expiry of two years from the date on which the decision became final.", "28. Article 3.9 provides that an administrative offender can be punished with administrative detention only in exceptional circumstances, and for a maximum term of thirty days. 29. In decision no. 6-R of 17 February 1998 the Constitutional Court stated, with reference to Article 22 of the Constitution concerning the right to liberty and personal integrity, that a person subject to administrative removal could be placed in detention without a court order for a term not exceeding forty-eight hours.", "Detention for over forty-eight hours was permitted only on the basis of a court order and provided that the administrative removal could not be effected otherwise. The court order was necessary to guarantee protection not only from arbitrary detention of over forty-eight hours, but also from arbitrary detention as such, while the court assessed the lawfulness of and reasons for the placement of the person in custody. The Constitutional Court further noted that detention for an indefinite term would amount to an inadmissible restriction on the right to liberty as it would constitute punishment not provided for in Russian law and which was contrary to the Constitution. III. REPORTS ON UZBEKISTAN BY INTERNATIONAL HUMAN RIGHTS ORGANISATIONS 30.", "For the most recent relevant reports on Uzbekistan by international human rights NGOs, see Egamberdiyev v. Russia, no. 34742/13, §§ 31-34, 26 June 2014. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 31. The applicant alleged that if he were returned to Uzbekistan he would run a real risk of being subjected to torture and ill-treatment in breach of Article 3 of the Convention, which provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Submissions by the parties 1.", "The Government 32. The Government submitted that in the course of the extradition proceedings the competent Russian authorities had duly examined the applicant’s situation with regard to his return to Uzbekistan, where he would be prosecuted. In the Government’s opinion, the diplomatic assurances given by the Uzbek authorities were sufficient and compatible with the relevant provisions of international law. 33. The Government further submitted that the applicant’s allegations about the risk of ill-treatment in the event of execution of the expulsion order of 18 October 2013 were speculative and “could not be considered by the [domestic] court during the administrative proceedings”.", "Nevertheless, they had been thoroughly reviewed and found to be unsubstantiated by the Moscow City Court. In any event, the expulsion order did not specify that the applicant was to be expelled to Uzbekistan, but merely stated that he was to be removed from the territory of the Russian Federation. The Government concluded that a risk of treatment contrary to Article 3 of the Convention had not been convincingly established. 2. The applicant 34.", "Firstly, the applicant submitted that he had raised the issue of the risk of his being subjected to ill-treatment if returned to Uzbekistan in the extradition, expulsion and refugee-status proceedings, advancing a number of specific arguments, such as an increased risk of ill-treatment of persons who, like the applicant, were accused of participation in a banned religious activity and those who were suspected of crimes against State security, as had been reliably demonstrated by the international organisations’ reports on the situation in Uzbekistan and the Court’s judgments regarding that matter. However, the Russian courts had failed to analyse the nature of the charges against the applicant, had disregarded the link between the charges and the risk of ill-treatment and had not examined the information from various international organisations or the Court’s case-law. 35. As to the Russian Government’s reliance on the diplomatic assurances provided by Uzbekistan in the context of the extradition proceedings, the applicant considered them to be insufficient. He referred, in particular, to Abdulkhakov v. Russia, no.", "14743/11, §§ 149-50, 2 October 2012, in this connection. 36. Lastly, the applicant contested the Government’s argument that the decision on administrative removal did not necessarily mean that he would be expelled to Uzbekistan. He stated that the expulsion proceedings had been initiated by the Moscow deputy prosecutor’s request of 17 October 2013 which mentioned “the date of his actual handing over to the competent authorities of the Republic of Uzbekistan”, and that no other possibility had ever been discussed in the course of those proceedings. The applicant further submitted that there existed an administrative practice of substituting expulsion for extradition which was based on an unpublished order of the Moscow Region prosecutor, no.", "86/81 of 3 July 2009, which provided that whenever a detained individual was released on the grounds that his extradition was impossible, it was mandatory to decide on his administrative expulsion from Russia. The applicant therefore maintained that his expulsion had been ordered to secure his rendition to the Uzbekistani authorities and thus to prevent him from being released and to secure either his expulsion or his extradition. B. The Court’s assessment 1. Admissibility 37.", "The Court observes firstly that as Uzbekistan’s extradition request is pending before the competent Russian authorities, it is only called upon to examine the applicant’s complaint under Article 3 of the Convention in relation to the expulsion proceedings. 38. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits 39. The Court will examine the merits of the applicant’s complaint under Article 3 in the light of the applicable general principles set out in, among others, Umirov v. Russia (no. 17455/11, §§ 92-100, 18 September 2012, with further references). 40.", "In the recent cases against the Russian Federation examined under Article 3 concerning the extradition of applicants to Uzbekistan and Tajikistan, the Court has identified the critical elements to be subjected to searching scrutiny (see, among many other authorities, Savriddin Dzhurayev v. Russia, no. 71386/10, ECHR 2013 (extracts); Kasymakhunov v. Russia, no. 29604/12, 14 November 2013; Abdulkhakov v. Russia, cited above; and Iskandarov v. Russia, no. 17185/05, 23 September 2010). Consideration must first be given to whether an applicant has provided the national authorities with substantial grounds for believing that he faces a real risk of ill‑treatment in the destination country.", "Secondly, the Court will examine whether the claim was adequately assessed by the competent national authorities, discharging their procedural obligations under Article 3 of the Convention, and whether their conclusions were sufficiently supported by relevant material. Lastly, having regard to all the substantive aspects of a case and the available relevant information, the Court will assess the existence of a real risk of suffering torture or treatment incompatible with the Convention standards. (a) Existence of substantial grounds for believing that the applicant faced a real risk of ill-treatment 41. At the outset, the Court reiterates that for more than a decade the United Nations human rights bodies and relevant agencies and international non-governmental organisations have issued alarming reports concerning the situation in the criminal justice system in Uzbekistan, the use of torture and ill‑treatment techniques by law-enforcement agencies, severe conditions in detention facilities, systemic persecution of political opposition, and harsh treatment of certain religious groups. 42.", "The Court has previously had the task of examining many cases concerning the forced return from Russia to Uzbekistan of persons accused by the Uzbek authorities of criminal, religious and political activities (see, most recently, Egamberdiyev cited above; Akram Karimov v. Russia, no. 62892/12, 28 May 2014; and Nizamov and Others v. Russia, nos. 22636/13, 24034/13, 24334/13 and 24528/13, 7 May 2014, with further references). It has been the Court’s constant position that individuals whose extradition was sought by the Uzbek authorities on charges of religiously or politically motivated crimes constituted a vulnerable group, running a real risk of treatment contrary to Article 3 of the Convention in the event of their transfer to Uzbekistan. 43.", "In the present case, the applicant consistently and specifically argued – in the extradition, expulsion and refugee-status proceedings – that he had been prosecuted for religious extremism and crimes against the State and therefore was a member of the above-mentioned vulnerable group. This was borne out by the extradition documents which were produced by the requesting Uzbekistani authority. The basis for the arrest warrant and extradition request submitted by the Uzbek authorities was clear: the applicant was wanted for prosecution in Uzbekistan on charges of religious and political extremism. These allegations regarding his criminal conduct and its nature remained unchanged throughout the relevant proceedings in the Russian Federation. 44.", "This fact alone, taken in the context of the international reports regarding the systemic ill-treatment of those accused of religious and political crimes, was sufficient to place the applicant definitively within the group of individuals at a severe risk of ill-treatment in the event of their removal to Uzbekistan. 45. In the light of the above considerations, the Court is satisfied that the Russian authorities had before them a sufficiently corroborated claim that the applicant faced a real risk of ill-treatment if returned to Uzbekistan. (b) Duty to assess adequately claims of a real risk of ill-treatment relying on sufficient relevant material 46. The Court will next examine whether the Russian authorities discharged their obligation to undertake an adequate assessment of the applicant’s claim that he risked being subjected to ill-treatment in the event of his return.", "47. As regards the refugee-status proceedings, the Court observes that the decisions by the immigration authorities and the courts appear to give preponderant weight to the fact that the applicant had waited for too long before applying for refugee status, and that he had failed to substantiate his claim that he risked political or religious persecution. On the first point the Court reiterates that, whilst a person’s failure to seek asylum immediately after arrival in another country may be relevant for the assessment of the credibility of his or her allegations, the domestic authorities’ findings as regards the failure to apply for refugee status in due time do not, as such, refute his allegations under Article 3 of the Convention (see Ermakov v. Russia, no. 43165/10, § 196, 7 November 2013). On the second point, the Court emphasises that the criteria laid down for granting refugee status are not identical to those that are used for assessing the risk of treatment contrary to Article 3 of the Convention.", "The applicant made detailed submissions about the risk of being subjected to ill-treatment if he were returned to his home country, relying on information from various international organisations and on the judgments of this Court. However, the domestic decisions only mentioned those submissions in passing and did not analyse them in any detail. 48. As to the proceedings concerning the applicant’s administrative expulsion, the Court notes that the scope of the review by the domestic courts was largely confined to establishing the fact that the applicant’s presence in Russia had been illegal. In this connection the Court reiterates that, in view of the absolute nature of Article 3, it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion (see Abdolkhani and Karimnia v. Turkey, no.", "30471/08, § 91, 22 September 2009). Therefore, the domestic courts’ findings as regards the applicant’s failure to abide by Russian laws do not, as such, refute his allegations under Article 3 of the Convention. 49. Having regard to the foregoing, the Court is not persuaded that the applicant’s allegations that he risked ill-treatment were duly examined by the domestic authorities. It must, accordingly, assess whether there exists a real risk that the applicant would be subjected to treatment proscribed by Article 3 if he were to be removed to Uzbekistan.", "(c) Existence of a real risk of ill-treatment 50. The Court notes that the Government pointed out in their observations that the decision on the applicant’s expulsion did not specify that he was to be expelled to Uzbekistan, but merely stated that he was to be removed from the territory of Russia. However, they did not provide information regarding any other country willing to accept him. The Court observes, moreover, that the expulsion proceedings were initiated by the prosecutor’s request directly referring to the “date of [the applicant’s] actual handing over to the competent authorities of the Republic of Uzbekistan” (see paragraph 17 above). In such circumstances, the Court cannot but accept the applicant’s argument that no possibility of his expulsion to another country was discussed in the course of the expulsion proceedings.", "Accordingly, it concludes that the decision on the applicant’s administrative removal presupposed that he would be expelled to Uzbekistan. 51. The Court has had occasion to deal with a number of cases raising the issue of a risk of ill-treatment in the event of extradition or expulsion to Uzbekistan from Russia or another Council of Europe member State. It has found, with reference to material from various sources, that the general situation with regard to human rights in Uzbekistan is alarming, that reliable international material has demonstrated the persistence of a serious issue of ill-treatment of detainees, the practice of torture against those in police custody being described as “systematic” and “indiscriminate”, and that there is no concrete evidence to demonstrate any fundamental improvement in that area (see Egamberdiyev, Akram Karimov, Kasymakhunov, Ermakov, Umirov, all cited above; see also Garayev v. Azerbaijan, no. 53688/08, § 71, 10 June 2010; Muminov v. Russia, no.", "42502/06, §§ 93-96, 11 December 2008; and Ismoilov and Others v. Russia, no. 2947/06, § 121, 24 April 2008). 52. As regards the applicant’s personal situation, the Court notes that he was wanted by the Uzbek authorities on charges related to his alleged membership of a Muslim extremist movement and threats to State security. Those charges constituted the basis for the extradition request and the arrest warrant issued in respect of the applicant.", "Thus, his situation is no different from that of other Muslims who, on account of practising their religion outside official institutions and guidelines, are charged with religious extremism or membership of banned religious organisations and, on that account, as noted in the reports and the Court’s judgments cited above, are at an increased risk of ill-treatment (see, in particular, Ermakov, cited above, § 203). 53. The Court is bound to observe that the existence of domestic laws and international treaties guaranteeing respect for fundamental rights is not in itself sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities that are manifestly contrary to the principles of the Convention (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 128, ECHR 2012). It has also been the Court’s established position that the diplomatic assurances are likewise incapable, on their own, to prevent the risk of ill-treatment from materialising and that the national authorities need to treat with caution the assurances against torture given by a State where torture is endemic or persistent (see Yuldashev v. Russia, no.", "1248/09, § 85, 8 July 2010, with further references). Furthermore, the domestic authorities, as well as the Government in their submissions before the Court, used summary and non-specific reasoning in an attempt to dispel the allegations of a risk of ill-treatment on account of the above considerations. 54. In view of the above, the Court considers that substantial grounds have been shown for believing that the applicant would face a real risk of treatment proscribed by Article 3 of the Convention if deported to Uzbekistan. 55.", "The Court therefore concludes that the enforcement of the expulsion order against the applicant would give rise to a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION, TAKEN IN CONJUNCTION WITH ARTICLE 3 56. The applicant contended under Article 13 of the Convention that no effective remedies were available to him in respect of his allegations of possible ill-treatment in the event of his return to Uzbekistan. 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.” 57.", "The Court considers that the gist of the applicant’s claim under Article 13, which it finds admissible, is that the domestic authorities failed to carry out a rigorous scrutiny of the risk of ill-treatment that the applicant would face in the event of his forced removal to Uzbekistan. The Court has already examined that submission in the context of Article 3 of the Convention. Having regard to its findings above, the Court considers that there is no need to examine this complaint separately on its merits (see, for a similar approach, Gaforov v. Russia, no. 25404/09, § 144, 21 October 2010; Azimov v. Russia, no. 67474/11, § 145, 18 April 2013; and, most recently, Akram Karimov, cited above, § 137).", "III. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION 58. The applicant complained that his detention pending expulsion after 17 October 2013 had been in breach of Article 5 § 1 (f) of the Convention. He further complained, under Article 5 § 4 of the Convention, that he had been unable to obtain a judicial review of that detention. The relevant parts of Article 5 provide 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 to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. ... 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 59.", "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. Merits 60.", "The Court will consider firstly whether there existed a possibility of effective supervision of the applicant’s detention and secondly whether the applicant’s detention was compatible with the requirements of Article 5 § 1 (f) (see Kim v. Russia, no. 44260/13, § 38, 17 July 2014, and Azimov, cited above, § 146 et seq.) 1. Compliance with Article 5 § 4 of the Convention 61. The Government submitted that the applicant had been able to take part in all the hearings concerning his detention and to put forward his arguments about alleged violations of Article 5 of the Convention.", "62. The applicant emphasised that both the Zyuzinskiy District Court and the Moscow City Court had failed to consider his arguments relating to Article 5 of the Convention and that no time-limit for his detention had been stipulated in the expulsion order. With reference to the Court’s previous findings (in particular, in the case of Azimov, cited above, §§ 153‑54), he maintained that Russian law did not provide for a periodic review of the lawfulness of detention following a decision on administrative expulsion. 63. The Court reiterates that the purpose of Article 5 § 4 is to guarantee to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected.", "A remedy must be made available during a person’s detention to allow that person to obtain speedy judicial review of its lawfulness. That review should be capable of leading, where appropriate, to release. The existence of the remedy required by Article 5 § 4 must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see Muminov, cited above, § 113, and Ismoilov and Others v. Russia, cited above, § 145, with further references). 64. The Court notes at the outset that a judicial review of the kind required under Article 5 § 4 cannot be said to be incorporated in the initial expulsion order of 18 October 2013.", "The thrust of the applicant’s complaint under Article 5 § 4 was not directed against the initial decision placing him in custody but rather against his inability to obtain a judicial review of his detention after a certain lapse of time. Detention under Article 5 § 1 (f) lasts, as a rule, for a significant period and depends on circumstances which are subject to change over time. Given that since the delivery of the City Court’s appeal judgment of 22 November 2013 the applicant has spent more than a year in custody, new issues affecting the lawfulness of the detention might have arisen during that period. In such circumstances the Court considers that the requirement under Article 5 § 4 was neither incorporated in the initial detention order of 18 October 2013 nor fulfilled by the appeal court (see Rakhimov v. Russia, no. 50552/13, § 147).", "65. The Court reiterates that, since its Azimov judgment, which concerned a similar complaint (see Azimov, cited above, § 153), it has found a violation of Article 5 § 4 in a number of cases against Russia on account of the absence of any domestic legal provision which could have allowed the applicant to bring proceedings for judicial review of his detention pending expulsion (see Kim, cited above, §§ 39-43; Rakhimov, cited above, §§ 148-150; Akram Karimov, cited above, §§ 199-204; and also Egamberdiyev, cited above, § 64). In the Kim case, the Government acknowledged a violation of Article 5 § 4 and, having regard to the recurrent nature of the violation, the Court directed that the Russian authorities should “secure in [their] domestic legal order a mechanism which allows individuals to institute proceedings for the examination of the lawfulness of their detention pending removal in the light of the developments in the removal proceedings” (see Kim, cited above, § 71). 66. As the applicant has not had at his disposal a procedure for a judicial review of the lawfulness of his detention, the Court finds that there has been a violation of Article 5 § 4 of the Convention.", "2. Compliance with Article 5 § 1 (f) of the Convention (a) The parties’ submissions 67. The Government submitted that the applicant’s detention pending both extradition and expulsion conformed to the relevant domestic provisions and the guarantees of Article 5 § 1 of the Convention. 68. The applicant did not question before the Court the lawfulness of his detention in the extradition proceedings from 17 April to 17 October 2013.", "As regards the detention imposed in the expulsion proceedings, he admitted that he had violated the immigration rules and failed to register his residence in Russia within the statutory time-limit, but claimed that the authorities had become aware of that fact on 17 April 2013, when he was arrested and found not to have a passport. However, it was not until six months later that the prosecutor instituted expulsion proceedings against him. The applicant claimed that the real purpose of the expulsion proceedings was to keep him under the authorities’ control in order to organise by any means his return to the country which sought his extradition. Other than the requirement that the expulsion order be executed within the two-year time-limit, the Code of Administrative Offences did not contain any provisions governing the length of detention pending expulsion and therefore lacked legal certainty. Moreover, the relevant provisions were open to the interpretation that by the expiry of that two-year time-limit the applicant would again be liable to expulsion and, consequently, to detention on that ground.", "Lastly, the applicant claimed that such a long stay in detention significantly exceeded the maximum custodial sentence permissible under the Code of Administrative Offences and that his detention pending expulsion was of a punitive, rather than preventive, nature. (b) The Court’s assessment 69. The Court observes that the applicant’s complaint refers to the period from 18 October 2013 to the present day, in which he has been detained with a view to his administrative removal (“expulsion”) from Russia (see paragraphs 17-20 above). Since administrative removal amounts to a form of “deportation” within the meaning of Article 5 § 1 (f) of the Convention, that provision is applicable in the instant case. 70.", "The Court reiterates that deprivation of liberty under Article 5 § 1 (f) of the Convention must 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. The notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that deprivation of liberty may be lawful in terms of domestic law but still arbitrary, and thus contrary to the Convention. To avoid being branded as arbitrary, detention under Article 5 § 1 (f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention must be appropriate; and the length of the detention must not exceed that reasonably required for the purpose pursued (see Azimov, cited above, § 161, and Rustamov v. Russia, no. 11209/10, § 150, 3 July 2012, with further references).", "71. It is common ground between the parties that the applicant had been residing illegally in Russia before his arrest and, therefore, had committed an administrative offence punishable by expulsion. The Court is satisfied that on 18 October 2013 his detention pending expulsion was ordered by a court with jurisdiction in the matter and in connection with an offence punishable by expulsion. On 22 November 2013 the City Court upheld that decision on appeal. The Court accordingly concludes that the authorities acted in compliance with the letter of the national law.", "72. In so far as the applicant claimed that the real purpose of the expulsion proceedings was to keep him in custody pending the outcome of the extradition proceedings, the Court reiterates that detention may be unlawful if its stated purpose differs from the real one (see Khodorkovskiy v. Russia, no. 5829/04, § 142, 31 May 2011; Čonka v. Belgium, no. 51564/99, § 42, ECHR 2002‑I: and Bozano v. France, 18 December 1986, Series A no. 111, § 60).", "The Court reiterates that in Azimov it found that a decision ordering the applicant’s detention pending expulsion had served to circumvent the maximum time-limits laid down in the domestic law for detention pending extradition (see Azimov, cited above, § 165). However, it does not need to determine whether the same is true in the instant case because even where the purpose of detention is legitimate, its length should not exceed that reasonably required for the purpose pursued (see Azimov, cited above, § 166, and Shakurov v. Russia, no. 55822/10, § 162, 5 June 2012). 73. In the present case, before the authorities ordered the applicant’s detention pending expulsion he had already been in detention with a view to extradition for six months.", "When deciding to keep the applicant in custody pending expulsion, the courts did not set a specific time-limit for his detention. Under Article 31.9 § 1 of the Code of Administrative Offences, an expulsion decision must be enforced within two years (see paragraph 27 above). Thus, after the expiry of such a period, a detainee should be released. This may happen in the present case; however, the possible implications of Article 31.9 § 1 of the Code of Administrative Offences for the applicant’s detention are a matter of interpretation, and the rule limiting the duration of detention of an illegal alien is not set out clearly in the law. It is also unclear what will happen after the expiry of the two-year time-limit, since the applicant will clearly remain in an irregular situation in terms of immigration law and will again be liable to expulsion and, consequently, to detention on that ground (see Egamberdiyev, § 62, and Azimov, § 171, both cited above).", "74. The Court further notes that the maximum penalty in the form of deprivation of liberty for an administrative offence under the Code of Administrative Offences in force is thirty days (see paragraph 28 above), and that detention with a view to expulsion should not be punitive in nature and should be accompanied by appropriate safeguards, as established by the Russian Constitutional Court (see paragraph 29 above). In the present case the “preventive” measure was, paradoxically, much heavier than the “punitive” one (see Azimov, cited above, § 172). 75. Lastly, the Court reiterates that there are no provisions of Russian law which could have allowed the applicant to bring proceedings for judicial review of his detention pending expulsion, and no automatic review of his detention at regular intervals (see Azimov, cited above, § 153).", "76. In view of the above considerations, the Court concludes that there has been a violation of Article 5 § 1 (f) of the Convention. IV. RULE 39 OF THE RULES OF COURT 77. The Court notes 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; (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.", "78. The Court notes that the applicant is currently detained in Russia and is still formally liable to administrative removal pursuant to the final judgments of the Russian courts in this case. Having regard to the finding that he would face a serious risk of being subjected to torture or inhuman or degrading treatment in Uzbekistan, 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 further notice. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 79. 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 80. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage on account of distress and frustration caused by his detention pending expulsion, as well as on account of anxiety in view of the prospect of being returned to a country where he would be exposed to a risk of ill-treatment. 81. The Government pointed out that, in so far as the applicant’s claim concerns the risk of ill-treatment upon return to Uzbekistan, Article 41 of the Convention does not allow for just satisfaction to be awarded for violations that have not yet been committed. Therefore, in their view, no compensation should be awarded to him.", "As regards the other issues in the present case, the Government considered that the fact of finding a violation would in itself constitute sufficient just satisfaction for any non-pecuniary damage suffered by the applicant. 82. The Court observes that no breach of Article 3 of the Convention has yet occurred in the present case. However, it has found that the applicant’s forced return to Uzbekistan would, if implemented, give rise to a violation of that provision. The Court considers that its finding regarding Article 3 amounts in itself to adequate just satisfaction for the purposes of Article 41.", "83. The Court has found other violations of the Convention in the present case. It accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. It therefore awards the applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable. B.", "Costs and expenses 84. The applicant also claimed EUR 7,440 for the costs and expenses incurred before the domestic courts and the Court. This included Ms Trenina’s and Ms Ryabinina’s work in representing the applicant in the domestic proceedings and before the Court. According to the table submitted by the applicant, Ms Trenina’s work consisted of forty-nine hours of work at an hourly rate of EUR 120, amounting to EUR 5,880, whereas Ms Ryabinina worked for thirteen hours at the same hourly rate, amounting to EUR 1,560. 85.", "The Government noted that the applicant had provided a breakdown of the work performed by his representatives, but had submitted no agreement concerning legal assistance, or other documents setting out their hourly rates. 86. 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 5,000, covering costs under all heads plus any tax that may be chargeable to the applicant, and rejects the remainder of the claims under this head. C. Default interest 87.", "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 the forced return of the applicant to Uzbekistan would give rise to a violation of Article 3 of the Convention; 3. Holds that there is no need to examine the complaint under Article 13 of the Convention; 4.", "Holds that there has been a violation of Article 5 § 4 of the Convention; 5. Holds that there has been a violation of Article 5 § 1 (f) of the Convention in respect of the applicant’s detention in the context of the expulsion proceedings; 6. Decides to maintain the indication to the Government under Rule 39 of the Rules of Court until such time as the present judgment becomes final, or until further notice; 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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 8. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 26 February 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle BerroRegistrarPresident" ]

[ "FIRST SECTION CASE OF PETROVIĆ v. CROATIA (Application no. 38292/02) JUDGMENT STRASBOURG 12 April 2007 FINAL 12/07/2007 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 Petrović v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrL. Loucaides, President,MrsN.", "Vajić,MrA. Kovler,MrK. Hajiyev,MrD. Spielmann,MrS.E. Jebens,MrG.", "Malinverni, judges, and Mr S. Nielsen, Section Registrar, Having deliberated in private on 22 March 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 38292/02) 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 Nikola Petrović (“the applicant”), on 4 October 2002. 2. The applicant was represented by Mr M. Mihočević, a lawyer practising in Zagreb.", "The Croatian Government (“the Government”) were represented by their Agents, first Mrs L. Lukina-Karajković and subsequently Mrs Š. Stažnik. 3. On 3 December 2003 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 I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1934 and lives in Zagreb. 5. On 8 August 1992 the applicant's house in Samobor, was blown up by unknown perpetrators. 6.", "On 23 November 1992 the applicant brought a civil action against the State in the Samobor Municipal Court (Općinski sud u Samoboru) seeking damages. He relied on section 180 of the Civil Obligations Act. 7. On 3 February 1996 the Amendment to the Civil Obligations Act (“the 1996 Amendment”) entered into force. It provided that all proceedings concerning actions for damages resulting from terrorist acts or acts of violence were to be stayed pending the enactment of new legislation on the subject.", "8. On 2 February 1999 the Samobor Municipal Court stayed the proceedings pursuant to the 1996 Amendment. 9. On 31 July 2003 the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (“the 2003 Liability Act”) entered into force. 10.", "Pursuant to the 2003 Liability Act, on 8 January 2004 the Municipal Court resumed the proceedings. 11. On 4 March 2004 the court declared the applicant's action inadmissible finding that it no longer had jurisdiction in the matter. The applicant appealed to the Velika Gorica County Court (Županijski sud u Velikoj Gorici). It would appear that the proceedings are currently pending before that court.", "12. Meanwhile, on 22 April 2002 the applicant lodged a constitutional complaint under section 63 of the Constitutional Court Act complaining about the length of the above civil proceedings and the lack of access to a court. On 24 February 2005 the Constitutional Court accepted the applicant's complaint. Relying on the Court's case law (Kutić v. Croatia, no. 48778/99, ECHR 2002‑II), it found violations of the applicant's constitutional rights to a hearing within a reasonable time and of access to a court.", "It ordered the County Court to give a decision in the applicant's case within a year and awarded him compensation in the amount of 7,800 Croatian kunas (HRK). II. RELEVANT DOMESTIC LAW 13. The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette, nos. 53/91, 73/91, 3/94, 7/96 and 112/99) provided as follows: Section 180(1) “Liability for loss caused by death or bodily injury or by damage or destruction of another's property, when it results from acts of violence or terrorist acts or from public demonstrations or manifestations, lies with the ... authority whose officers were under a duty, according to the laws in force, to prevent such loss.” 14.", "The relevant part of the Act Amending the Civil Obligations Act (Zakon o izmjeni Zakona o obveznim odnosima, Official Gazette no. 7/1996 – “the 1996 Amendment”) reads as follows: Section 1 “Section 180 of the Civil Obligations Act (the Official Gazette nos. 53/91, 73/91 and 3/94) shall be repealed.” Section 2 “Proceedings for damages instituted under section 180 of the Civil Obligations Act shall be stayed. The proceedings referred to in sub-section 1 of this section shall be resumed after the enactment of special legislation governing liability for damage resulting from terrorist acts.” 15. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos.", "53/91, 91/92, 58/93, 112/99, 88/01 and 117/03) provides: Section 212 “Proceedings shall be stayed: ... (6) where another statute so prescribes.” 16. The Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette no. 117/2003 – “the 2003 Liability Act”) provides, inter alia, that the State is to compensate only damage resulting from bodily injuries, impairment of health or death. All compensation for damage to property is to be sought under the Reconstruction Act. Section 10 provides that all proceedings stayed pursuant to the 1996 Amendment are to be resumed.", "17. Article 29 § 1 of the Constitution (Ustav Republike Hrvatske, Official Gazette no. 41/2001 of 7 May 2001) reads as follows: “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” 18. The relevant part of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows: Section 63 “(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant's rights and obligations or a criminal charge against him or her within a reasonable time ... (2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits... (3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ...", "The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 19. The applicant complained that Parliament's enactment of the 1996 Amendment violated his right of access to a court as 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 ... by [a] ... tribunal...” A. Admissibility 20. The Government submitted that the applicant could no longer claim to be a victim within the meaning of Article 34 of the Convention since on 31 July 2003 the Liability Act entered into force, which provided that the proceedings stayed under the 1996 Amendment were to be resumed. Moreover, the Constitutional Court had accepted the applicant's constitutional complaint, found a violation of his constitutional right of access to a court, and awarded him compensation.", "The violation complained of had, therefore, been remedied before the domestic authorities and the applicant had lost his victim status. 21. The applicant submitted that, in spite of the Constitutional Court's decision of 24 March 2004, he was still a “victim” within the meaning of Article 34 of the Convention. He argued that the amount of compensation was insufficient and significantly lower than amounts awarded by the Court in similar cases (see Kutić v. Croatia, no. 48778/99, § 39, ECHR 2002‑II).", "22. The Court recalls that in the Tomašić case (see Tomašić v. Croatia, no. 21753/02, §§ 26-36, 19 October 2006), it found manifestly unreasonable the amount of compensation, which was approximately 15 % of what the Court was generally awarding in similar Croatian cases. While it is true that the applicant in the present case received a somewhat higher amount, the Court considers that his situation does not significantly differ from that in the Tomašić case and finds no reason to depart from its conclusion therein. Accordingly, the applicant can still claim to be a “victim” of a breach of his right of access to a court, and the Government's objection must therefore be dismissed.", "23. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 24. The Court has frequently found violations of the applicants' right of access to a court under Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Kutić v. Croatia, cited above, and Multiplex v. Croatia, no. 58112/00, 10 July 2003). 25. 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.", "There has accordingly been a breach of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 26. The applicant also complained that Parliament's enactment of the 1996 Amendment also violated his right to an effective remedy as guaranteed 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.” 27. The Government contested that argument.", "28. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 29. 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 also been a violation of Article 13 since its requirements are less strict than, and are here absorbed by, those of Article 6 § 1 (see, for example, Dražić v. Croatia, no. 11044/03, § 43, 6 October 2005).", "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 EUR 71,477.50 in respect of pecuniary damage and HRK 300,000 in respect of non-pecuniary damage.", "32. The Government deemed the amounts claimed by the applicant excessive. 33. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 34.", "As to the non-pecuniary damage sought, the Court reiterates that where an applicant had resorted to an available domestic remedy and thereby obtained a finding of a violation and was awarded compensation, but can nevertheless still claim to be a “victim”, the amount to be awarded under Article 41 may be less than the amounts the Court was awarding in similar cases. In that case an applicant must be awarded the difference between the amount obtained from the Constitutional Court and an amount that would not have been regarded as manifestly unreasonable compared with the amounts awarded by the Court (see, mutatis mutandis, Cocchiarella v. Italy [GC], cited above, §§ 139-140). 35. The Court recalls that the applicant was awarded approximately EUR 1,100 by the Constitutional Court. Having regard to the circumstances of the present case, the characteristics of the constitutional complaint as well as the fact that, notwithstanding this domestic remedy, the Court has found a violation, it considers, ruling on an equitable basis, that the applicant should be awarded EUR 700 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.", "B. Costs and expenses 36. The applicant also claimed HRK 30,000.50 for the costs and expenses incurred the Court. 37. The Government contested that claim.", "38. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 for costs and expenses, plus any tax that may be chargeable on that amount. 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. 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 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 according to Article 44 § 2 of the Convention, the following amounts which are to be converted into the national currency of the respondent State at a rate applicable at the date of settlement: (i) EUR 700 (seven hundred euros) in respect of non-pecuniary damage; (ii) EUR 1,500 (one thousand five 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 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 April 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenLoukis LoucaidesRegistrarPresident" ]

[ "FIFTH SECTION CASE OF SHABELNIK v. UKRAINE (No. 2) (Application no. 15685/11) JUDGMENT STRASBOURG 1 June 2017 FINAL 01/09/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Shabelnik v. Ukraine (No.", "2), The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President,Ganna Yudkivska,André Potocki,Faris Vehabović,Yonko Grozev,Carlo Ranzoni,Mārtiņš Mits, judges,and Milan Blaško, Deputy Section Registrar, Having deliberated in private on on 25 April 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 15685/11) 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 Dmitriy Grigoryevich Shabelnik (“the applicant”), on 28 February 2011. 2. The applicant was represented by Mr A. Bushchenko, a lawyer practising in Kyiv.", "The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna, of the Ministry of Justice. 3. The applicant complained of the unfairness of the proceedings in which the Supreme Court had upheld his conviction following the Court’s judgment in his previous case, Shabelnik v. Ukraine (no. 16404/03, 19 February 2009). 4.", "On 6 April 2011 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1979 and is currently in detention in Zhytomyr, Ukraine. A.", "Criminal proceedings against the applicant 6. In October 2001 Ms K. was found murdered in her flat. In December 2001 Ms S., a minor, was kidnapped and murdered. 7. On 10 December 2001 the applicant was arrested on suspicion of kidnapping S. in order to extort money from her parents and of S.’s murder.", "On 17 December 2001 the applicant was provided with a lawyer in connection with those charges. 8. On 25 December 2001 Mr K., the deceased Ms K.’s son, was questioned as a witness and confessed to the murder of his mother. The next day he retracted his confession. 9.", "On 15 February 2002, purportedly at his own request, the applicant, was questioned as a witness about the circumstances of K.’s death. During the questioning, which took place without a lawyer, the applicant confessed to K.’s murder. The applicant said that he had read an advertisement in a local newspaper that K. wanted to buy a flat in Zhytomyr. He had decided to rob her, on the assumption that she had savings at home for the purchase of a flat. The victim had allowed him to enter her flat.", "During their conversation, the victim had told the applicant that she had a conflict with a neighbour about a sausage business the neighbour was running from the building. She also had tense relations with her daughter-in-law. When the applicant had threatened her and demanded money she had told him that she had none because she had placed the advertisement at the request of a friend who lived in another town and wanted to buy a flat in Zhytomyr. To conceal his attempted robbery the applicant had then murdered the victim. 10.", "The transcript of the applicant’s questioning recorded that he was told about his duty to state everything he knew about the case, that he could face criminal liability for refusal to testify and for giving false statements and about the constitutional provision guaranteeing the privilege against self-incrimination. 11. On 16 February 2002 the applicant, still acting as a witness, participated without a lawyer in an on-site reconstruction of the attack on K. On 18 and 22 February 2002 he was again questioned, without a lawyer, about the attack. 12. On 22 February 2002 the investigator in the case requested an opinion from psychiatrists on a number of questions, namely: (i) whether the applicant was suffering from a psychiatric condition; (ii) whether the applicant was sane at the time of the commission of the acts he was accused of and at the time of the assessment; (iii) if the experts established that the applicant had been suffering from a psychiatric condition or a temporary disruption of his mental capacities at the time of commission of the act, whether he had been conscious of the meaning of his actions and whether he could control them; and (iv) whether the applicant was in need of compulsory psychiatric treatment.", "13. On 25 February 2002 the investigating prosecutor instituted criminal proceedings against the applicant for the murder of K. and joined them with the criminal case concerning the kidnapping and murder of S. It appears from the applicant’s submissions that on the same day he was given the procedural status of an accused and was allowed for the first time to consult a lawyer in connection with the charges related to the attack on K. Article 142 of the Code of Criminal Procedure required that procedural rights had to be explained to a person who acquired the status of an accused, including the right to remain silent and to have a lawyer. 14. On 5 March 2002 a panel of psychiatric experts examined the applicant and produced a report on his mental state, concluding that he had been sane at the time of the alleged crimes and was sane at the time of the assessment. According to the report, in the course of the interview with the experts the applicant gave a description of K.’s murder that was identical to the one he had given to the investigator (“обстоятельства его подготовки и убийства... излагает так, как излагал в ходе следствия”).", "The experts added that in doing so the applicant had been speaking as if reciting a text memorised by heart and had remained silent when interrupted and asked for details or clarifications. The experts concluded that the applicant was sane. 15. The applicant stood trial at the Zhytomyr Regional Court of Appeal, which was competent to act as a trial court (“the trial court”) because the applicant was accused of aggravated murder, a crime carrying a potential life sentence. In the course of the trial the applicant stated that he was innocent of both murders but pleaded guilty to kidnapping S. He stated that on the day of K.’s murder he had met an old childhood acquaintance, M., in the street.", "M. had told him that he had killed K. To check M.’s story the applicant had gone to K.’s flat and had seen her dead body there. He had had nothing to do with the robbery and murder. 16. On 11 July 2002 the trial court convicted the applicant of kidnapping, extortion and the murder of S. He was also convicted of the robbery and murder of K. The court sentenced him to life imprisonment. In convicting the applicant of K.’s robbery and murder the trial court relied in particular on: (i) the applicant’s initial confessions; (ii) the crime scene report, which showed that the layout of the victim’s flat, the placement of furniture and the position of her body matched the applicant’s confessions; (iii) medical evidence that the victim’s clothing and injuries matched the applicant’s confessions; (iv) the statement of Ms O.K., the victim’s friend, who said she had asked the victim to place an advertisement for the purchase of a flat on her behalf; (v) the testimony of Ms V.S., the victim’s neighbour, who stated at the trial that she had run a sausage business from the victim’s block of flats and that she had had a conflict with the victim over that matter; (vi) the testimony of the victim’s son and daughter-in-law that relations between the victim and the daughter-in-law had been tense; (vii) evidence from an expert to the effect that it could not be ruled out that the victim’s injuries had been caused by a knife found at the applicant’s home.", "17. On 10 October 2002 the Supreme Court, sitting as a court of cassation, upheld the applicant’s conviction. B. The applicant’s first case before the Court 18. On 2 April 2003 the applicant lodged an application with the Court (no.", "16404/03), alleging that his conviction for the murder of K. had been based on incriminating evidence that had been obtained in violation of his right to remain silent and the privilege against self-incrimination and that he had been hindered in the effective exercise of his right to defence when questioned at the pre-trial stage of the proceedings. 19. On 19 February 2009 the Court declared the application partly admissible and found a violation of Article 6 §§ 1 and 3 of the Convention. The Court found in particular that: “58. The Court reiterates that in particular where a deprivation of liberty is at stake, the interests of justice in principle call for legal representation (see Benham v. the United Kingdom, no.", "19380/92, § 61, 10 June 1996). Furthermore, the Court notes that Ukrainian legislation provides for obligatory legal representation of persons who could expect life imprisonment if convicted. This was the applicant’s situation, in that he was already charged with a murder and being accused of the second murder made a sentence of life imprisonment a possibility... The Court considers that the legal representation of the applicant during the period in question was required in the interests of justice. 59.", "Furthermore, ... the circumstances of the case suggest that his statements were obtained in defiance of his will. Although the applicant failed to substantiate any physical coercion by the investigators, the fact that another person within the same proceedings also confessed to the murder of Mrs K. and retracted his statement, alleging coercion by the same investigator, could raise reasonable doubts as to the practices of the investigator in the present case. In addition, the applicant, having been warned about criminal liability for refusal to testify and at the same time having been informed of his right not to testify against himself, could have been confused, as he alleged, about his liability for refusal to testify, especially in the absence of legal advice during that interview. It should be further noted that although the applicant had retracted his statements during the court hearings the domestic authorities based his conviction for the murder of Mrs K. to a decisive extent, if not solely, on these self‑incriminating statements. The statements did not in fact contain any information which was not already known to the investigators (in contrast to the case of the kidnapping and murder of S., in which the applicant showed the police where the corpse had been hidden) and had been received in unclear circumstances and in clear violation of the applicant’s right to defence.” (Shabelnik, cited above) 20.", "The Shabelnik judgment (cited above) became final on 19 May 2009. C. Re-examination of the applicant’s case following the first Shabelnik judgment 1. Stage one: reopening of proceedings 21. The applicant’s lawyer (Mr Bushchenko), lodged an application with the Supreme Court for a review of the applicant’s criminal case in view of the first Shabelnik judgment (cited above). He asked the Supreme Court to quash the trial court’s judgment and its own 2002 decision upholding the original conviction.", "He asked that he and the applicant be present during the examination of the request. 22. The prosecutor’s office also applied to the Supreme Court for a review. They asked the court to amend the trial court’s judgment and the Supreme Court’s 2002 decision by striking out references to the records of the questioning of the applicant as a witness about K.’s murder and the result of the on-site reconstruction of that murder. 23.", "On 30 April 2010 the Supreme Court, sitting in a formation composed of all the judges of the criminal and military chambers of the court, allowed the above applications in part, quashed its own 2002 decision and remitted the case for fresh examination in cassation proceedings by a panel of three judges of the Supreme Court. 2. Stage two: new cassation proceedings before the Supreme Court 24. Hearings before the Supreme Court panel were scheduled and rescheduled several times and the applicant was informed of this accordingly. The case was finally scheduled for hearing on 9 September 2010 and the applicant and Mr Bushchenko were informed of this by letter on 30 July 2010.", "Neither the applicant nor Mr Bushchenko requested that the applicant be escorted from his prison to the hearing before the Supreme Court panel. 25. On 9 September 2010 the Supreme Court examined the case in the absence of the applicant but in the presence of his lawyer and a prosecutor. The lawyer made submissions to the court and a written summary of his remarks was submitted to the Supreme Court. 26.", "According to the summary, after reiterating that the applicant’s confessions and the reconstruction reports should be ruled inadmissible, the lawyer presented his analysis of the remaining evidence in the file. He dealt with the question of the evidence of the applicant’s involvement in the attack on K., seeking to show that it was either inadmissible or unreliable. In particular, he made the following arguments: (i) the psychiatric report, in so far as it provided a record of the applicant’s alleged statements about K.’s murder, was unspecific and constituted a judgment by the experts about the applicant’s statements which the experts had been unqualified to make, as opposed to an accurate record of those statements. In any case, it was improper to use that report since the psychiatrists had never been examined by the defence. Moreover, the applicant’s supposed statements to the experts were inadmissible because they were marred by the same problems as the confessions that had been obtained in breach of his Convention rights; (ii) as to the other evidence, in particular the crime scene examination report and the witness evidence, it only had evidentiary value as corroboration for the applicant’s statements, but as those statements had to be ruled inadmissible to give effect to the first Shabelnik judgment (cited above), the other witness evidence could also not be used to support a finding of the applicant’s guilt; (iii) certain circumstances, such as the fact that no traces of the applicant’s presence had been found in K.’s flat, pointed to the applicant being innocent of the murder.", "27. On the same day the Supreme Court delivered its decision. It excluded the applicant’s original confessions from the body of evidence. However, it found that the rest of the evidence in the case file was sufficient to support the trial court’s finding that the applicant had murdered K. while trying to cover up an attempted robbery. 28.", "In particular, the Supreme Court approved of the trial court’s reliance on: (i) evidence from the expert that it could not be ruled out that the victim’s injuries had been caused by the knife found at the applicant’s home, and (ii) the statements of the witnesses O.K., V.S. and “others” concerning the applicant’s supposed motive for the murder (see paragraph 16 above). 29. In support of its findings the Supreme Court also referred to material and circumstances on which the trial court had not explicitly relied: (i) the fact that “in the course of psychiatric assessment [the applicant], told the experts about [K.’s murder] under the circumstances established by the [trial] court”; (ii) the applicant’s admission in court that he had visited the victim’s flat; and (iii) the testimony of Ms G., the victim’s neighbour, that she had seen the applicant in the victim’s block of flats. The Supreme Court concluded that, other than the breaches which led to the exclusion of the applicant’s original confessions, there had been no other breaches of the rules of criminal procedure which would put in doubt the correctness of the conclusions of the trial court (the Court of Appeal) concerning his guilt or legal qualification of his actions.", "The investigation authorities and the trial court examined all the circumstances of the case which could be relevant to correctly decide the case. The trial court’s conclusions were based on admissible and sufficient evidence. II. RELEVANT DOMESTIC LAW A. Reopening of proceedings following a judgment by the Court 30.", "The relevant provisions of domestic law concerning the procedure for reopening criminal proceedings on the basis of judgments by the Court can be found in Yaremenko v. Ukraine (no. 2) (no. 66338/09, §§ 34-36, 30 April 2015). B. Cassation proceedings 31. At the relevant time the Code of Criminal Procedure of 1960 required Courts of Appeal to act as trial courts in cases where possible punishment was life imprisonment, as in the applicant’s case.", "In such cases the Supreme Court served as the court of first and last appeal, both on matters of fact and law. The relevant provisions read as follows: Article 383. Court decisions which may be reviewed in cassation proceedings “Cassation proceedings may be instituted in respect of: 1) judgments, decisions and rulings made by an appeal court acting as a first‑instance court; ...” Article 386. Time-limits for lodging cassation appeals and introduction of cassation pleadings “Cassation appeals and pleadings with respect to the court decisions listed in paragraph 1 of Article 383 of the present Code may be lodged within one month of the date of delivery of the judgment or pronouncement of the decision or ruling which is being appealed against; a convicted defendant who is held in custody [may lodge an appeal] – within the same time-limit from the date of receipt of a copy of the judgment or decision. ...” Article 391.", "Persons participating in the cassation proceedings “... A request by a convicted defendant who is held in custody to be summoned to submit observations in the course of the cassation review of a court decision listed in paragraph 1 of Article 383 of the present Code shall be binding on the cassation court, if submitted within the time-limit for lodging a cassation appeal. Participants in the court proceedings who appear at the court hearing shall have the right to make oral submissions.” Article 395. Scope of review of the case by the cassation court “The cassation court shall review the lawfulness and reasonableness of the court judgment in the light of the materials on file and additionally submitted materials, within the limits of the appeal. ...” Article 396. Results of the case review by the cassation court “Following review of the case in cassation proceedings, the court shall take one of the following decisions: 1) to uphold the judgment, decision or ruling and dismiss the cassation appeal or pleadings; 2) to quash the judgment, decision or ruling and remit the case for a new investigation or trial or an appellate review; 3) to quash the judgment, decision or ruling and discontinue the proceedings; 4) to amend the judgment, decision or ruling; ...” Article 398.", "Grounds for quashing or amending the judgment, decision or ruling A judgment, decision or ruling shall be quashed or amended on the following grounds: 1) a substantial breach of the law of criminal procedure; 2) incorrect application of the criminal law; 3) incompatibility of the punishment imposed with the gravity of the offence or the character of the convicted defendant. A judgment given by an appeal court acting as a first-instance court may be quashed or amended on account of bias, an incomplete inquiry, pre-trial or judicial investigation, or where the conclusions of the court stated in the judgment are incompatible with the factual circumstances of the case. ...” THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 32. The applicant complained that the Supreme Court, in the course of re-examining his case in cassation proceedings, had breached a number of provisions of Article 6 of the Convention, which reads, in so far as relevant, as follows: “1.", "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time 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; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him...” 33. As the requirements of Article 6 § 3 constitute specific aspects of the right to a fair trial guaranteed under Article 6 § 1, the Court will examine the applicants’ complaints under Article 6 § 1 or Article 6 § 3 under those provisions taken together (see, for example, Gäfgen v. Germany [GC], no. 22978/05, § 169, ECHR 2010). A. Admissibility 34.", "The Court notes that in contrast to the case of Yaremenko (no. 2) (cited above, §§ 38-56) the procedure before the Supreme Court followed two stages. In the first stage, a plenary formation of the Supreme Court, on the basis of the Court’s first Shabelnik judgment (cited above), quashed the Supreme Court’s 2002 decision upholding the applicant’s conviction and remitted the case for fresh consideration in new cassation review proceedings. At the second stage, a different formation of the Supreme Court examined the applicant’s case in cassation review proceedings under the standard rules of criminal procedure. 35.", "The applicant’s complaints concern the second stage of the proceedings only. The parties do not dispute the applicability of Article 6 to that stage. Moreover, as the Court has had occasion to remark, at the relevant time the Supreme Court in such proceedings had jurisdiction to deal with questions of law and fact and was empowered to examine evidence in the file and additional materials submitted by the parties. That meant it could uphold, quash or amend a first-instance judgment, or remit the case for a retrial (see, for example, Sobko v. Ukraine, no. 15102/10, § 76, 17 December 2005, and paragraph 31 above).", "36. There is no doubt therefore as to the applicability of Article 6 under its criminal limb to the cassation proceedings before the Supreme Court. 37. 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 (a) The applicant (i) Alleged violation of Article 6 §§ 1 and 3 (c) and (d) on account of the Supreme Court’s reliance on the psychiatrists’ report and other remaining evidence in the file 38. The Supreme Court, even though it had ostensibly struck the applicant’s confessions from the body of evidence, had in fact implicitly relied on the information contained in those confessions to support its findings.", "In particular, the Supreme Court had upheld as correct the trial court’s factual findings about K.’s murder, which could only have been based on the applicant’s statements with respect to which the Court had found a violation of Article 6 §§ 1 and 3 in its first Shabelnik judgment (cited above, § 58). Relying on the Court’s judgment in Allan v. the United Kingdom (no. 48539/99, ECHR 2002-IX) and the United States Supreme Court’s decision in Estelle v. Smith (451 U.S. 454 (1981)), the applicant argued that the Supreme Court’s reliance on the psychiatrists’ report had undermined the very essence of his right to remain silent and to legal representation. In particular, he had only been advised by a lawyer in respect of the charge of murdering K. for the first time on 3 April 2002, after the psychiatric examination had been completed. Therefore, he had had no practical opportunity to obtain legal advice prior to that examination.", "Moreover, he had not been advised of his right to remain silent in the course of that psychiatric examination. Accordingly, the applicant maintained that the Supreme Court had breached Article 6 §§ 1 and 3 (c). 39. The Supreme Court had relied on the untested statements in the psychiatric report and on the statement of witness G. even though the experts and G. had not been examined by the defence. According to the applicant, the Supreme Court in fact had had no power under domestic procedural law to call and examine witnesses so an examination of those witnesses had required a retrial.", "For the applicant the Supreme Court’s reliance on those statements had amounted to a breach of Article 6 §§ 1 and 3 (d). (ii) Alleged violation of Article 6 § 1 on account of the applicant’s absence from the hearing 40. The applicant submitted that the principle of equality of arms had been breached because he had not been present at the Supreme Court’s hearing. He submitted that his representative had asked the Supreme Court to conduct a reopening hearing before its plenary formation (stage one of the procedure before that court) in the applicant’s presence. The Supreme Court had therefore had no reason to assume that the applicant had not wished to participate in the second stage of proceedings before that court.", "(iii) Alleged violation of Article 6 § 1 and Article 6 §§ 3 (a) and (b) on account of the Supreme Court allegedly following a procedure not envisaged by domestic law without warning to the applicant 41. The applicant submitted that the Supreme Court not merely assessed the validity of the trial court’s judgment in the light of the first Shabelnik judgment (cited above) but had also engaged in a re-assessment of the entire body of evidence, and had arrived at it its own, fresh conclusion about the applicant’s guilt, which it had had no power to do under domestic law. According to the applicant, in cassation proceedings the Supreme Court could only examine the validity of the trial court’s findings. If it had found those findings unreliable in the light of the need to strike the applicant’s confessions out of the body of evidence, it had to remit the case for a retrial. It could not substitute its own factual findings for those of the trial court.", "The applicant had had no prior warning that the Supreme Court would adopt such a procedure rather than remit the case for a retrial. Accordingly, the applicant alleged that the Supreme Court had not been a “tribunal established by law” within the meaning of Article 6 § 1 and that Article 6 §§ 3 (a) and (b) had been breached. (b) The Government 42. The Government contested the applicant’s arguments and maintained that none of the violations of the Convention alleged by the applicant had been committed. 43.", "In particular, as to the complaints under Article 6 §§ 1 and 3 (d), the Government submitted that the applicant had failed to request the examination of any witnesses at the Supreme Court’s hearing even though, contrary to the applicant’s submissions, that court had had the power to call and examine them. 44. The Government submitted that the applicant had failed to submit a request to attend the Supreme Court’s cassation proceedings hearing in person and, in any event, he had been represented at the hearing by his lawyer. Therefore, the equality of arms between the parties had been respected. 45.", "As to the complaints under Article 6 §§ 1 and 3 (a) and (b), the Government submitted that the Supreme Court had upheld the applicant’s conviction without any change in the charges of which he had been convicted in the original proceedings. The applicant should have been aware that the Supreme Court would examine the case in its totality at the second stage of its procedure. The applicant, therefore, had had sufficient time and opportunity to prepare and present his case, which he had used, as evidenced by the content of his lawyer’s remarks (see paragraph 26 above). 2. The Court’s assessment 46.", "The Court observes that in Yaremenko (no. 2) (cited above) it was confronted with a procedure before the Supreme Court following a judgment by the Court in the applicant’s favour in a criminal case. In that case it held (cited above, § 66): “The Supreme Court... decided that the applicant’s initial confession had been the only irregularity of the applicant’s criminal case and that the exclusion of that evidence would have no impact on the conclusiveness of the remaining evidence in the case. In the Court’s opinion, this latter issue in itself would require a thorough examination of the evidence in the present case in a full retrial instead of the very limited review as carried out by the Supreme Court.” 47. The Court observes that in the present case the Supreme Court excluded the applicant’s confessions from the body of evidence but came to the conclusion that the remaining evidence was sufficient to find the applicant guilty of the robbery and murder of K. 48.", "However, the Court is conscious of the fact that in the present case the procedure before the Supreme Court had significant differences with that examined in Yaremenko (no. 2) (cited above). In particular, while in the previous case the Supreme Court continued to explicitly rely on confessions by the applicant obtained in violation of his Convention rights (ibid., §§ 32 and 66), in the present case the Supreme Court made no explicit reference to any of the applicant’s own statements to law enforcement officers when upholding his conviction. The Supreme Court’s reliance on his supposed statements to the psychiatrists (see paragraphs 14 and 29 above) is a separate matter which the Court will examine below. 49.", "Moreover, unlike in Yaremenko (no. 2) (ibid., §§ 31 and 32), in the present case the procedure unfolded in two very distinct stages, the second one being cassation proceedings, which were conducted according to the standard rules of criminal procedure in which the Supreme Court in principle had broad authority to examine questions of law and fact (see paragraph 35 above). 50. However, the way in which that procedure was conducted in the present case did not meet the requirements of Article 6 of the Convention for the following reasons. 51.", "The Court observes that the applicant argued before the Supreme Court that the crime scene examination reports and the statements of witnesses, which tended to corroborate the applicant’s account of the attack on K. given in his confessions, could not serve as the basis for upholding his conviction once those confessions were removed from the body of evidence because the only evidentiary value those reports and witness evidence had had was to corroborate the applicant’s account found only in his now‑excluded confessions (see paragraph 26 (ii) above). 52. However, the Supreme Court panel still relied on those reports and that witness evidence, without providing any response to the applicant’s argument, even though it was specific and, in the circumstances of the case, highly pertinent and important. 53. As to the Supreme Court’s reliance on the psychiatric report, the Court observes that the psychiatrists limited themselves to observing that the applicant, speaking as if reciting from a memorised text, repeated to them the description of K.’s murder he had given to the investigator and had remained silent when asked for details or clarifications (see paragraph 14 above).", "The Supreme Court, without remitting the case for a full retrial, used those statements of the psychiatrists to establish the fact that the applicant had committed the actus reus, the objective act, of the offence he was accused of, despite the fact that the scope of the expert examination in question had been limited to his sanity and his state of mind at the relevant time. What is more, the Supreme Court considered it fit to rely on the experts’ somewhat vague restatements, made in a different context, to establish the fact that the applicant committed the murder of K. The decision to rely on the psychiatric evidence in this way breached the requirements of a fair trial. 54. The Court considers that the Supreme Court’s reasoning and the procedure it followed did not meet the requirements of fairness inherent in Article 6 § 1 of the Convention. 55.", "There has, accordingly, been a violation of Article 6 § 1 of the Convention. 56. In view of the above conclusions the Court considers that its finding in Yaremenko (no. 2) (cited above) (see paragraph 46 above) is also pertinent to the present case in that only a full retrial could have provided, in the particular circumstances of the case, an appropriate forum for an adequate examination of the impact of the exclusion of the applicant’s confessions on the conclusiveness of the remaining evidence about the attack on K. 57. In the light of the above conclusions, the Court considers it unnecessary to examine the applicant’s other submissions concerning the fairness of the proceedings before the Supreme Court.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 58. 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 59. The applicant claimed EUR 10,000 in respect of non‑pecuniary damage.", "60. The Government considered that there was no causal link between the alleged violations and the non-pecuniary damage claimed. 61. The Court notes that where an individual has been convicted by a court in proceedings which did not meet the Convention requirement of fairness, a retrial, reopening or review of the case in accordance with the Convention, if requested, represents in principle an appropriate way of redressing the violation (see, for example, Yaremenko (no. 2), cited above, § 71).", "In the instant case the proceedings under examination concerned a review of the applicant’s criminal case following a judgment by the Court in the applicant’s favour. That review, however, as established above, did not comply with the requirements of Article 6. In those circumstances, the Court considers that the finding of a violation does not constitute sufficient just satisfaction under Article 41 of the Convention for the non-pecuniary damage suffered by the applicant. Ruling on the basis of equity, it awards the applicant EUR 5,000 under this head. 62.", "Furthermore, the possibility of a retrial, as envisaged under Ukrainian law, is available to the applicant, if requested. Such a retrial must observe the substantive and procedural safeguards enshrined in Article 6 of the Convention and must fully take into account the Court’s conclusions in the present case and in the first Shabelnik judgment (cited above). B. Costs and expenses 63. The applicant also claimed EUR 8,064 for the costs and expenses incurred before the domestic courts and EUR 5,376 for those incurred before the Court.", "64. The Government stated that the costs incurred in the domestic proceedings were irrelevant as they had concerned enforcement of a previous judgment by the Court and, subsequently, efforts to have the applicant acquitted, as opposed to efforts to prevent or redress a violation. The Government further maintained that the amount claimed for the applicant’s representation before the Court was excessive. They argued that the claims under this head must be rejected as well. 65.", "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 6,000 covering costs under all heads. C. Default interest 66. 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 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 6,000 (six 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 1 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Milan BlaškoAngelika NußbergerDeputy RegistrarPresident" ]

[ "CASE OF OĞUR v. TURKEY (Application no. 21594/93) JUDGMENT STRASBOURG 20 May 1999 In the case of Oğur v. Turkey, The European Court of Human Rights, sitting, in accordance with Article 27 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), as amended by Protocol No. 11[1], and the relevant provisions of the Rules of Court2, as a Grand Chamber composed of the following judges: MrL. Wildhaber, President,MrA. Pastor Ridruejo,MrG.", "Bonello,MrJ. Makarczyk,MrP. Kūris,MrJ.-P. Costa,MrsF. Tulkens,MrsV. Strážnická,MrM.", "Fischbach,MrV. Butkevych,MrJ. Casadevall, MrsN. Vajić,MrsH.S. Greve,MrA.B.", "Baka,MrR. Maruste,MrsS. Botoucharova, MrF. Gölcüklü, ad hoc judge, and also of Mr P.J. Mahoney and Mrs M. de Boer-Buquicchio, Deputy Registrars, Having deliberated in private on 3 February and 22 April 1999, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.", "The case was referred to the Court, as established under former Article 19 of the Convention[3], by the European Commission of Human Rights (“the Commission”) on 15 December 1997, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention. It originated in an application (no. 21594/93) against the Republic of Turkey lodged with the Commission under former Article 25 by a Turkish national, Mrs Sariye Oğur, on 16 March 1993. The Commission’s request referred to former Articles 44 and 48 and to the declaration whereby Turkey recognised the compulsory jurisdiction of the Court (former 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 2 of the Convention.", "2. In response to the enquiry made in accordance with Rule 33 § 3 (d) of former Rules of Court A[2], the applicant stated that she wished to take part in the proceedings and designated the lawyer who would represent her (former Rule 30). The lawyer was given leave by the President of the Court at the time, Mr R. Bernhardt, to use the Turkish language in the written procedure (former Rule 27 § 3). 3. In the meantime Mr R. Ryssdal, Mr Bernhardt’s predecessor as President of the Court, acting through the Registrar, had consulted the Agent of the Turkish Government (“the Government”), the applicant’s lawyer and the Delegate of the Commission on the organisation of the written procedure.", "Pursuant to the order made in consequence on 9 February 1998, the Registrar received the applicant’s memorial on 23 March 1998 and the Government’s memorial on 4 June 1998, and subsequently, on 23 November 1998, an addendum to the applicant’s claims under Article 41 of the Convention and, on 4 December 1998, the Government’s observations on those claims. 4. After the entry into force of Protocol No. 11 on 1 November 1998 and in accordance with the provisions of Article 5 § 5 thereof, the case was referred to the Grand Chamber of the Court. The Grand Chamber included ex officio Mr R. Türmen, the judge elected in respect of Turkey (Article 27 § 2 of the Convention and Rule 24 § 4 of the Rules of Court), Mr. L. Wildhaber, the President of the Court, Mrs E. Palm, Vice-President of the Court, and Mr J.-P. Costa and Mr M. Fischbach, Vice-Presidents of Sections (Article 27 § 3 of the Convention and Rule 24 §§ 3 and 5 (a)).", "The other members appointed to complete the Grand Chamber were Mr A. Pastor Ridruejo, Mr G. Bonello, Mr J. Makarczyk, Mr P. Kūris, Mrs F. Tulkens, Mrs V. Strážnická, Mr V. Butkevych, Mr J. Casadevall, Mrs H.S. Greve, Mr A.B. Baka, Mr R. Maruste and Mrs S. Botoucharova (Rule 24 § 3 and Rule 100 § 4). Subsequently Mrs N. Vajić, substitute judge, replaced Mrs Palm, who was unable to take part in the further consideration of the case (Rule 24 § 5 (b)). 5.", "On 19 November 1998 Mr Wildhaber exempted Mr Türmen from sitting; the latter had withdrawn following a decision taken by the Grand Chamber under Rule 28 § 4. On 17 December 1998 the Government informed the Registrar of the appointment of Mr F. Gölcüklü as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 6. At the Court’s invitation (Rule 99), the Commission delegated one of its members, Mr M.A. Nowicki, to take part in the proceedings before the Grand Chamber.", "7. In accordance with the decision of the President, who had also given the applicant’s counsel leave to address the Court in Turkish (Rule 34 § 3), a hearing took place in public in the Human Rights Building, Strasbourg, on 3 February 1999. There appeared before the Court: (a)for the GovernmentMrsD. Akçay, Co-Agent,MrE. Genel,MrM.", "Soysal,MrsA. Günyakti,MrsM. Gülşen,MrB. Caliskan, Advisers,MrsS. Güzel,Expert; (b)for the applicantMrH.", "Kaplan, of the Istanbul Bar,Counsel; (c)for the CommissionMrM.A. Nowicki,Delegate. The Court heard addresses by Mr Nowicki, Mr Kaplan and Mrs Akçay. THE FACTS I. the circumstances of the case A. The applicant 8.", "The applicant is a Turkish national born in 1923 and she lives in Sarıyaprak, a district in the province of Siirt, where a state of emergency is in force. She lost her son during an operation by the security forces, which is described below. B. The facts 9. On 24 December 1990 the security forces carried out an armed operation at a site belonging to a mining company some six kilometres from the village of Dağkonak.", "The applicant’s son, Musa Oğur, who worked at the mine as a night-watchman, was killed at about 6.30 a.m. as he was about to come off duty. 10. According to the Government, the scene of the incident had been used as a shelter by four terrorists who were members of the PKK (Workers’ Party of Kurdistan), including the applicant’s son. Musa Oğur had been hit by bullets from warning shots fired by the security forces. According to the applicant, her son had merely been one of the guards at the mining company’s site and he had been shot dead by the security forces without warning.", "11. On the day of Musa Oğur’s death his employer, Mehmet Zeyrek, reported the incident to the Şırnak public prosecutor. He stated that his employee had been shot by the security forces and the village guards, whose identity he did not know. 12. On 26 December 1990 the public prosecutor’s office issued a decision in which it recorded the following: “On the date of the incident an operation was conducted by the security forces and the village guards, acting on information that an injured terrorist belonging to the PKK had taken refuge and was being cared for in a shelter near Mehmet Zeyrek’s mine.", "When, during the operation, the victim, Musa Oğur, one of the watchmen at the mine who guarded the mechanical shovels and bulldozers at the site belonging to Mehmet Zeyrek, left the shelter and the other watchmen and squatted in order to defecate, the security forces gained the impression that the suspect was escaping and they opened fire and killed him. The public prosecutor carried out an investigation and gathered the initial evidence.” The prosecutor’s office pointed out that the actions of the security forces under the orders of the governor of a region in which the state of emergency was in force were subject to the rules governing prosecutions of civil servants and accordingly declared that it had no jurisdiction, and, by a letter of 26 December 1990, forwarded the file to the Administrative Council of the province of Şırnak. 13. On 15 August 1991 the Administrative Council delivered its decision, which was signed by the deputy governor and the directors of the various government departments of the province but not served on the applicant’s lawyer. The Council concluded that no proceedings should be brought in the criminal courts against the civil servants of the security forces which had taken part in the operation on 24 December 1990.", "In its view, the victim, who was regarded as a suspect, had died after warning shots had been fired during the operation in question. Neither the evidence in the file nor taking statements from witnesses would make it possible, however, to identify with any certainty the person who had fired. 14. On 19 September 1991 the Supreme Administrative Court, to which the case had automatically been referred by the operation of law, upheld the decision of 15 August 1991 in the following terms: “Offences committed by civil servants acting in the course of their duties or in their official capacity are subject to the procedures governing prosecutions of civil servants …, an administrative investigating officer responsible for conducting the investigation is appointed by means of an order … In order that an investigation may be conducted in respect of a civil servant, the civil servant concerned must first of all be accurately identified. Failing any accurate identification, no investigation can be carried out, no investigation report can be drawn up and no court with competence in the matter may give judgment.", "The information in the investigation file has not made it possible to determine who committed the alleged offence; consequently, that investigation should not have been commenced. However, an investigation file was compiled by the appointed investigating officer and, on the basis of that file, the Administrative Council of the province decided that there was no case to answer, on the ground that the persons responsible were unknown and that it was impossible to investigate the case. The Supreme Administrative Court decides unanimously, for the aforementioned reasons, to uphold the decision of the Administrative Council and to send the case back.” 15. In a letter of 20 January 1993 the applicant’s lawyer enquired of the chairman of Şırnak Administrative Council about the progress of the proceedings, since during the administrative investigation the file had been inaccessible to the victim’s close relatives and they had had no means of learning what was in it. On 3 February 1993 the Şırnak provincial governor’s office sent him a copy of the decision of 15 August 1991 that there was no case to answer.", "The Supreme Administrative Court’s judgment was served on him on 15 March 1993. C. The evidence gathered by the Commission 1. Written evidence 16. Those appearing before the Court submitted various documents concerning the investigation following Musa Oğur’s death. (a) Statement made to the prosecutor’s office by Musa Oğur’s employer, Mehmet Zeyrek, on 24 December 1990 17.", "Musa Oğur’s employer alleged that the victim had been shot dead by the security forces and the village guards, whose identity, however, he did not know. He did not know the reasons for the murder but surmised that it might have been carried out by persons whose interests might have been affected by the mine he owned, where the victim worked as a night-watchman. (b) Incident report of 24 December 1990 signed by six members of the security forces (who had taken part in the operation) and approved by the lieutenant of the infantry regiment 18. This document contains a detailed description of the incident of 24 December 1990 by six members of the infantry squad and their lieutenant, İsmail Çağlayan, all of whom took part in the operation. The events as they describe them took place as follows: “On 23 December 1990, following a report to the effect that a terrorist wounded during a clash with the security forces had taken refuge in a shelter on a hill six kilometres from the village of Dağkonak, three infantry squads …[3] went to the scene of the incident.", "At 4.30 a.m. the area was placed under the control of the soldiers, who began to observe the shelter using infra-red sights. When movements were noted in this area at about 5 a.m., we approached the shelter under cover of heavy snowfall and fog. As we approached the shelter, we shouted to those inside that they were surrounded, that escape was impossible and that they should come out of the shelter within five minutes, leaving their weapons behind them. As nothing had happened after five minutes, we fired warning shots into the air. Someone came out of the shelter shooting and began to move away.", "After warnings which were ignored we fired, but the person we had glimpsed disappeared ... We waited until day broke and pinpointed the shelter ... We again told them to come out and three people emerged from the shelter. We told them to approach and we questioned them. We then went into the shelter, where we found three shotguns, food and medicines. ... outside, fifteen metres from the shelter, we found a wounded man, but he died while we were taking him to a safer place. We discovered three trenches twenty, fifty and eighty metres away from the shelter.", "We found shotgun cartridges, five of which smelt of smoke, as did one of the shotguns. When we searched the surrounding area, we found several footprints, but we were not able to follow them as they were covered by the falling snow. We concluded that the footprints probably belonged to the wounded terrorist and the accomplices who had come to his aid ... We inspected the medicines, namely hydrogen peroxide, ..., two cloths, ... and some penicillin powder. The incident was immediately reported to the brigade, we awaited the arrival of the inspection team, we made the sketch and this report was drawn up by those whose signatures appear below.” (c) Plan of the scene with a manuscript description of the events drawn up by Lieutenant İsmail Çağlayan on 24 December 1990 (the “sketch”) 19. This document contains a detailed sketch of the topography of the scene of the incident and the positions of the actors in it.", "It shows that the security forces and village guards split into three groups, one to the left of the shelter, one to its right and one in front of it. These fired several shots in the direction of the shelter and behind it. Some shots were fired from the shelter towards the group of armed forces on the left of the shelter. (d) Report of the inspection of the scene of the incident and findings made on Musa Oğur’s body, drawn up by the Şırnak public prosecutor, Ali İhsan Demirel, on 24 December 1990 20. The Şırnak public prosecutor reported the facts as follows: “Having been informed this morning at about ten o’clock that there had been a confrontation with the security forces near Mehmet Zeyrek’s coal mine at Araköyü-Şırnak, that a person had been wounded and had subsequently died after the confrontation and that the body was at the scene of the incident, we – Ali İhsan Demirel, public prosecutor, Namik Demiralay, pathologist, Yahya Bahsis, court registrar, and Bilgin Yilmaz, the pathologist’s assistant – decided to go to the scene at about 11.30 a.m. ... We found the body, covered with a blanket, at a hidden spot on a hill at Mehmet Zeyrek’s coal mine.", "... The post-mortem carried out on the undressed body revealed that rigor mortis had not yet set in, that the body was partly cold, that the stains and marks had not yet turned bluish, that the bullet had entered the back of the skull about four finger-breadths from the nape of the neck, making a hole five centimetres in diameter, that it had exited from the upper part of the forehead at the hairline, shattering the bone and making an irregular three-centimetre hole. Bleeding was found where the bullet had entered and exited, the face was covered in blood, and there was white brain tissue where the bullet had exited ... The pathologist, Namik Demiralay, stated: ‘The wound due to the bullet which entered the occipital part of the cranium and exited through the frontal part caused the destruction of the brain and was therefore the cause of death. Since the gunshot wound was the certain cause of death and no other finding was made that could suggest any other cause, it was not considered necessary to carry out a full post-mortem.’ As Musa Oğur’s death, which occurred this morning in the course of an armed operation by the security forces in the region, was caused by a gunshot wound, as was recorded by the pathologist who examined the body, it is unnecessary to carry out a full post-mortem.", "The body has been released to the family ... A reconstruction of the events was carried out at the scene of the incident in the presence of the eyewitnesses, in order to determine the circumstances of the incident. Gendarmerie Warrant Officer Aydın Gülsen, acting as commander of Şırnak central gendarmerie station, was appointed as the technical expert ... The scene of the incident was identified and checked. One of the witnesses, Naif Zeyrek, who was questioned by a gendarmerie officer, stated: ‘This morning, at about 6.30 a.m., at the spot where we are standing at the moment, there were four of us watchmen employed by the Zeyrek mining company to guard the company’s bulldozers and mechanical shovels. A bulldozer had been set on fire once before.", "After that incident, in order to keep watch on the plant, we kept guard in this shelter that we had built and in the dugouts around it. Four of us were responsible for keeping watch here during the night. This morning, dawn had broken. We were in this shelter near the vehicles. We got up and said our prayers.", "The victim, Musa Oğur, had heard partridges up there and said he was going to go shooting. I told him not to go shooting, and in the end he did not go out. A few moments later, he crossed the threshold of the door and went towards that hill that I have already shown you. An instant later we heard shots. Shots ringing out from everywhere.", "I wanted to fire my shotgun but my mate stopped me. Then I saw the soldiers and shouted out to them to stop firing. When the firing stopped, we went outside. I heard Musa Oğur, he was wounded. As he was wounded, we removed him from the spot where he lay, which I have shown you, and carried him away.", "But he died in the process, so we put the body down.’ Another witness, Salih Oğur, who was questioned by a gendarmerie officer, stated: ‘Like my three mates, I was responsible for guarding the vehicles belonging to the Zeyrek mining company at the spot I have shown you. In order to guard the vehicles, we keep watch during the night in this shelter I built and in the dugouts we made near it. When we got up this morning, the victim, Musa Oğur, who is a relative of mine, said he had heard partridges and was going to go shooting. We stopped him from doing so. Then he did go out – I don’t know what for.", "Perhaps to relieve himself. A moment later we heard shots coming from different directions. It was snowy and a bit misty. Dawn was only just breaking. We did not go outside because of the firing.", "We tried to see what was going on outside through a door on the other side. As it became light, I could see that there were soldiers outside. While we were watching, we saw a soldier in the distance. We called out to him, telling him who we were. The soldiers asked us to come out of the shelter.", "We started walking to where they had told us to go. I heard Musa Oğur calling “Uncle!” We could not go to him immediately. We could not go and see him until the soldiers came up. He was wounded and could not speak. We took him from the place I showed you up to there for him to be treated.", "But as he did not survive the distance, we put him down where he had died. We did not fire any shots. As for Musa, he was unarmed when he went out. In order to guard the vehicles, we keep watch at night in the dugouts nearby. The spent cartridges in the first dugout are two or three days old.", "When we shoot, we do not leave spent cartridges in the dugouts. None of us fired a shot today.’ Another witness, Salih Zeyrek, who was questioned by a gendarmerie officer, stated: ‘I worked as a watchman with my mates. This morning, Musa Oğur went out to relieve himself. He was unarmed. A second later we heard shots.", "Musa called out “Uncle!” We did not go outside because of the firing. We looked out and saw soldiers. Then we called out to say who we were. At the time of the incident it was snowing and it was also foggy. Later, two of my mates and I left the shelter and walked towards the soldiers.", "Then we learned that Musa had been shot and wounded and we went to him. He was wounded and could not speak. We could hear him breathing. In order to get him to a doctor, we lifted him and carried him. While we were carrying him, he stopped breathing and we realised that he was dead.", "We left him where he had died. None of us fired a shot.’ An inspection of the scene of the incident was carried out in the presence of the witnesses and the technical expert. We made the following findings at the scene: Mehmet Zeyrek’s mining operation was spread over a large area; there were three mechanical shovels and bulldozers five or six metres from the shelter; the shelter, which was made of stone and built right into the mountainside, was a covered, concealed shelter which blended in with the landscape, and inside there were things belonging to the watchmen and a stove. We inspected the spot where, according to the witnesses, the dead man was wounded and the spot from which the shot might have been fired. We combed likely areas, looking for spent cartridges but not finding any.", "We examined the spot where the dead man was originally wounded. We walked about ten or fifteen paces down the hill. In the area referred to, we noted the presence of large quantities of blood and found a red turban (worn rolled round the head), which we presumed to be the dead man’s. There were two holes in the turban where the bullet had entered and exited. We took the turban away and mentioned it in the report.", "We examined two separate dugouts near the shelter, which we were told were the watchmen’s. In the dugouts we found eight spent shotgun cartridges. The cartridges were taken away and mentioned in the report. The technical expert ... stated: ‘I inspected the scene of the incident and listened to what the witnesses had to say; I recorded the locations of the shelter, the vehicles, the wounded man and the dugouts individually on simple sketches; I examined the spent cartridges and photographed the scene of the incident from various angles. I will hand these sketches and photographs over to you when the latter have been developed.", "When I examined the spent cartridges, I found that they were not recent but must have been two or three days old. When I examined the watchmen’s shotguns, which had been given into my care and two of which were Hoglus, I found and smelt powder on them. However, it is impossible to say whether it was fresh powder or not. There was no powder on the other two shotguns, nor did they smell of fresh powder.’ The three shotguns found in the shelter were recorded and taken for examination ...’ The medical expert was questioned about the medical supplies shown to him. He stated that they were used to treat grazes and wounds ...", "The witnesses were then questioned about the medical supplies. Salih Zeyrek volunteered the following information: ‘About ten days ago I fell here during working hours and injured my finger. I had these things bought to treat my finger. They belong to me. As the injury to my finger was slight, I treated it myself.’ He then showed us his injury.", "We noted a slight injury to the upper part of the third finger of his left hand. The pathologist, a medical expert, examined the wound and stated: ‘My observations allow me to conclude that the scratch on the witness’s hand is an old wound which became slightly infected and which has obviously been treated.’ Following the questioning of the eyewitnesses and the inspection of the scene of the incident, the technical expert was given ten days to develop his photographs and put his sketches into their final form. As there were no other verifications to be made at the scene, we decided to terminate the investigation. We decided to return to the office and then signed this report together, at 2.15 p.m. on 24.12.1990.” Later the same day, the public prosecutor interviewed Mehmet Zeyrek concerning his statement implicating the security forces and the village guards (see paragraph 17 above). (e) Record of the objects found near Musa Oğur, drawn up by the Şırnak public prosecutor, Ali İhsan Demirel, on 25 December 1990 21.", "This document lists “the objects found at or near the spot where the victim died”: eight shotgun cartridges and a turban (kefi) “with a red and white pattern, in which there were two holes where a bullet had entered and exited”. (f) Expert report on the confrontation with the security forces and the incident of 24 December 1990, drawn up by Aydın Gülsen, commanding officer of Şırnak central gendarmerie station, on 1 January 1991 22. Aydın Gülsen, a gendarmerie warrant officer acting as commander of Şırnak central gendarmerie station and appointed as technical expert by the public prosecutor during his inspection of the scene of the incident, established the facts as follows: “I examined the wound which had caused the death of Musa Oğur, who was fatally wounded in an armed confrontation between the security forces and members of the PKK terrorist movement at Mehmet Zeyrek’s coal mine ... when the security forces went to the scene to check the accuracy of information they had received. I recorded the place in which he had been sheltering and the surrounding area in sketches, both of individual details and of the general scene. When the public prosecutor, Ali İhsan Demirel, went to inspect the scene of the incident, I made sketches to record the location of evidence found at the scene, traces of blood and the victim’s possessions and noted all other discoveries.", "During these inspections of the scene I noted, inter alia: 1. At 6.30 a.m. on the day of the confrontation, 24 December 1990, it was misty and was snowing heavily and visibility was no more than five metres in places. 2. The confrontation occurred at a spot where watchmen employed to guard the machinery belonging to the Zeyrek mine were working. The place, which was built into the hillside on two sides and had stone walls on the other two, like a hideout, was difficult to appraise and surround owing to the bad weather.", "During an exchange of fire between the security forces and members of the PKK terrorist movement who were firing from the shelter and seeking to escape, Musa Oğur was wounded in the head there, fell to the ground and rolled ten or twelve metres. After a warning had been given, the other persons in the shelter came out unarmed and gave themselves up. 3. At different places near the shelter, and at different distances from it, four dugouts had been constructed in which there were spent shotgun cartridges. 4.", "The spent cartridges were between one and three days old. An examination of the guns found in the shelter suggested that they had been used. 5. Musa Oğur was wounded and died when caught in crossfire, the security forces responding to fire from the shelter in bad weather which appreciably reduced visibility. 6.", "The security forces had approached the scene of the incident and examined the dugouts in which the shotgun cartridges were found. They noted that these dugouts were identical to those used by PKK members to take refuge and hide arms. 7. The manner in which the shelter had been built gave [the security forces] the impression that it was a hideout; it was misty and was snowing heavily and there were dugouts scattered across the landscape; in such a situation a shot – even from a shotgun – could very easily mislead the security forces and it must be pointed out that the security forces had no means of distinguishing between the shots fired by the persons in the shelter and those fired by the PKK members. 8.", "Regard being had to the statements made by both sides at the time of the incident, the conclusion is that the victim, Musa Oğur, died as a result of a head wound, that he was not killed intentionally but was caught in crossfire; that is the conclusion I have reached for the purposes of this expert report.” (g) Schedule drawn up on 3 January 1991 of the documents in the case file prepared by the public prosecutor 23. This schedule lists the documents available to the public prosecutor, Ali İhsan Demirel, when he was drafting the decision of 26 December 1990 (see paragraph 12 above). Essentially, it comprises the report of the inspection of the scene of the incident and the autopsy performed on Musa Oğur, a record of medical supplies seized as evidence on 24 December 1990, the statements made by Naif Zeyrek, Salih Zeyrek and Salih Oğur on 24 December 1990 and a record of the objects found near Musa Oğur’s body on 25 December 1990 and seized as evidence. On 16 January 1991 the Şırnak central gendarmerie headquarters sent the incident report and the “sketch” (see paragraphs 18 and 19 above) to the Şırnak public prosecutor’s office, for information. (h) Documents from the investigation carried out by the investigating officer, Celal Uymaz 24.", "On 3 January 1991 the governor of Şırnak province wrote to Celal Uymaz, a gendarmerie lieutenant-colonel, instructing him to carry out, as investigating officer, the preliminary investigation into the events of 24 December 1990 and sending him the case file. On 22 January 1991 the governor sent him further documents. On 30 April 1991 the deputy governor wrote to Lt.-Col. Uymaz asking him to expedite the matter. On 3 August 1991 the investigating officer took evidence from the witnesses Salih Zeyrek and Salih Oğur. Mr Zeyrek’s statement, made through an interpreter, was recorded as follows: “I and my friends were the watchmen at the Zeyrek mine.", "On the morning of the day of the incident Musa Oğur went out to relieve himself. I was awake. So I saw him go out. He said he was going out to relieve himself. A few seconds later we heard shots.", "We were scared and did not go out of the shelter straight away. Looking outside, we saw the soldiers. We called out and said who we were. It was foggy and it was snowing. We left the shelter and went up to the soldiers.", "They told us that Musa was wounded. He was lying on the ground. He could not speak. He was breathing slowly. We immediately set off to find the doctor but Musa died on the way.", "The prosecutor and the pathologist examined him afterwards. None of us fired a shot during the incident.” In his statement Salih Oğur said: “... On the day of the incident Salih Zeyrek, Musa Oğur (the deceased), Naif Zeyrek and I were on the mine premises to guard the machinery. We slept in a shelter and at night we kept watch in the trenches around the site. We woke up at 6.30 a.m. Musa Oğur, who is a relative of mine, said that he had heard a partridge and that he wanted to take a look outside. We told him not to.", "He went out, saying that he was going to relieve himself. Just after that we heard shots. It was raining and it was foggy. We did not go out straight away. As it was light, I thought it might be soldiers.", "Looking outside, I saw a soldier. We called out and said who we were. The soldiers told us to come out of the shelter. We came out and walked towards the soldiers. It was then that we heard Musa Oğur’s voice.", "He was calling ‘Uncle’. We didn’t go to him straight away. The soldiers came up to us and we all went to see him together. He was wounded. He could not speak.", "We tried to carry him to a hospital but he died. We left him at the scene. None of us fired a shot during the incident. Musa was unarmed when he went out. Our job is to spend the night in the trenches and guard the machinery.", "The cartridges found in the first trench had been there for two days. We always leave spent cartridges where they fall.” (i) The investigating officer’s report, filed on an unspecified date in August 1991 25. In his report the investigating officer records the facts as follows: “In the course of carrying out an operation in the region where the incident occurred, the internal security forces noticed a person behaving suspiciously and fired warning shots in his direction. Witness statements: (a) Salih Oğur: I was in the shelter. I came out when the shooting stopped.", "I saw that Musa Oğur had been hit. He died shortly afterwards. I do not know who fired. (b) Salih Zeyrek: I did not see who shot Musa Oğur. The soldiers were at the scene of the incident.", "I do not know them. I did not see who fired. It is not known who shot Musa Oğur or how he shot him. I propose that no (criminal) proceedings should be brought, seeing that it is not known who shot Musa Oğur or how he shot him.” (j) Schedule of the documents in the Şırnak Administrative Council’s case file 26. This schedule lists the documents available to the Administrative Council when it was drawing up its decision of 15 August 1991 that there was no case to answer (see paragraph 13 above).", "Essentially, it comprises – apart from the public prosecutor’s decision of 26 December 1990 that he had no jurisdiction and the documents in his office’s case file (see paragraph 12 above) – the “sketch” (see paragraph 19 above), the incident report of 24 December 1990 (see paragraph 18 above) and the expert report of 1 January 1991 (see paragraph 22 above). 2. Oral evidence 27. On 4, 5 and 6 October 1995 three delegates of the Commission took the following statements in Ankara. (a) Ali İhsan Demirel 28.", "In 1990 this witness (born in 1960) was the public prosecutor in Şırnak. On the morning of 24 December 1990 he went to the scene of the incident with a doctor and other officials. He found that Musa Oğur had been hit by a bullet which had entered his body at the back of his neck and exited through his forehead. There were no cartridges or cartridge cases near the body. He questioned Musa Oğur’s employer, Mehmet Zeyrek, and the other mine watchmen.", "The watchmen said that they had not used their guns. 29. His account of the events was as follows. The weather had been bad (fog and falling snow) and the terrain was hilly, so that it had been difficult to see the shelter where the victim was. An informer had told the security forces that there were PKK members in the area.", "An armed squad of about thirty to fifty men had gone to the spot to arrest them. After the usual warnings had been given, someone had come out of the shelter and run away while warning shots were being fired; then the incident had occurred. The security forces must have been below the shelter, about thirty to fifty metres away from the victim. The security forces had not surrounded the shelter. The incident had occurred while they were moving towards the shelter.", "30. According to the witness, there were shotguns and spent shotgun cartridges at the scene; some of the spent cartridges were recent but he had not been able to establish with certainty whether they had been fired that day or earlier. No forensic examination of the guns had been requested. The witness had not taken down the identities of the members of the security forces which had conducted the operation, nor had he taken evidence from them; he maintained that since they were civil servants, the Administrative Council alone had power to do so. He had not been notified of the Administrative Council’s decision.", "(b) Mehmet Zeyrek (statement taken over the telephone) 31. This witness (born in 1958) was the owner of the mine where the incidents took place. He stated that he knew Musa Oğur. On 24 December 1990 he went to the scene of the incident and was questioned by the public prosecutor. He said that he stood by the terms of the statement he had made at that time.", "He stated that the security forces had been acting on a tip-off from an informer. He asserted that in his statement he had given the names of the persons who had told the security forces that PKK terrorists were using the shelter. He said that those persons had been motivated by a desire for personal revenge on his own family. The idea was to pursue a feud going back more than fifty years by misleading the security forces. According to the witness, none of the mine watchmen had a gun except Naif Zeyrek, his nephew, who had a shotgun.", "His nephew had not fired any shots, however. (c) Mehmet Akay 32. At the material time this witness (born in 1966) was doing his national service and was a sergeant in the infantry. He had been serving in the Şırnak region for fifteen months. As a member of the squad which carried out the operation, he was an eyewitness and one of the six people who signed the incident report of 24 December 1990 (see paragraph 18 above).", "33. He stated that after being tipped off that there were terrorists in the area round the village of Devran, his squad of seventeen or eighteen men had taken up position round the shelter during the night. The squad had split into two as a precaution. Owing to the weather (snow) and the darkness, the only thing they had been able to see was a light about two hundred metres ahead of them. They did not know that they were on a mining site.", "They had been fired on for two or three minutes. He had not been able to tell where the shots came from. He remembered that they came under fire from Kalashnikovs and shotguns. The squad commander, İsmail Çağlayan, an infantry lieutenant, had ordered his men to fire warning shots in response, and the whole squad had done so. About three or four series of warning shots had been fired.", "No verbal warning by loud hailer had been given. They had thought they were up against terrorists. When day broke, the witness, his lieutenant and two other members of the squad had approached the shelter. They had then seen the presumed terrorist lying dead on the ground. The body was about fifteen to twenty metres away from the shelter.", "There was no gun beside it. They had then enquired by radio if anyone had shot at this man and were told that no one had. In the shelter, they had found three shotguns, a large number of cartridges from those guns, medical supplies (dressings and bandages) and provisions (rice, sugar and flour). The witness emphasised that there had been a large quantity of these supplies and foodstuffs (enough to last a family for about two years), as was the case in PKK militants’ hideouts in the Cudi mountains. 34.", "According to the witness, no member of the squad could have shot the victim. In support of that assertion he cited the distance between the squad members and the victim (about two hundred metres), the weather (snow) and the rules governing such operations, which forbade shooting to kill. None of the squad had admitted firing in the direction of the victim. The witness stated that the squad had had infra-red sights, which were used to locate moving targets in the dark. 35.", "The witness said that he had not been informed that there were coal-mines at the location or that night-watchmen were on duty there. He deduced from this that the persons who had tipped them off about the presence of terrorists had wanted to have the army blamed. He explained that the Cudi mountains were one of the PKK’s favourite haunts. In his view, there was no difference between the mine watchmen’s shelter and those habitually used as hideouts by the PKK. He added that revealing the identities of the soldiers who had taken part in such operations could put their lives at risk.", "(d) Ahmet Şerif Aka 36. At the material time this witness (born in 1969) was doing his national service and was a corporal. He was in his thirteenth or fourteenth month of military service. As a member of the squad which carried out the operation, he was an eyewitness and one of the six people who signed the incident report of 24 December 1990. 37.", "The witness stated that, following a tip-off, his squad had gone on an operation in the mountains to try to ambush some PKK members before daybreak. The squad had comprised eighteen men under Lieutenant İsmail Çağlayan, a regular soldier. The men had seen light coming from a shelter. Before dawn his fellow squad members had seen a man come out of the shelter and run off. Lieutenant Çağlayan had shouted to him to surrender.", "Shotgun and Kalashnikov fire had broken out. The witness had left his position, climbed a hill and found himself in a small wood. He had looked up and the man who had been running away had fired a Kalashnikov at him. The witness had fled, then pulled himself together and returned to his position with his squad. He stated that another member of the squad had pointed his loaded gun at him and that he had had to call out to make him lower it.", "There had been more gunfire. Lieutenant Çağlayan had given further verbal warnings in the terrorists’ direction and two or three men had come out of the shelter. One of the terrorists had been killed or wounded. In the shelter they had found large quantities of medicines, dressings, etc. 38.", "According to the witness, only one member of the squad had fired a warning shot into the air, on the commanding officer’s orders. Asked about Mr Akay’s statement that all the members of the squad had fired warning shots, the witness said that it was possible and that he did not remember exactly who had fired. Nor could he remember whether the commanding officer had used a loud hailer. He stated that he himself did not hear the order to fire warning shots, as the soldiers, who were lying on the ground, were more than fifty metres apart. The whole squad was spread out in a line made up of eighteen soldiers, each fifty metres apart.", "He was told by his nearest colleague in person, not by radio, that a warning shot had been fired. The distance between the soldiers and the shelter was about 800 to 1,000 metres. 39. The witness did not remember whether the victim had been armed. He had a vague recollection of a shotgun being found either near the victim or in the shelter.", "He was not sure whether there had been other weapons in the shelter. They had not found any Kalashnikovs at the scene but had thought that the terrorists had taken them with them when they fled. The witness said that he would not recognise the sound of a Kalashnikov but that officers would. Nor did the witness know what bullet had hit the victim. He stated that any warning shots fired by the military could not have hit the victim, because they had been fired into the air.", "According to him, it was certain that shots had been fired from the area of the shelter as they were tracer bullets, so that he had been able to see them and determine where they were coming from. The witness said that it was not until daybreak that he had seen the industrial plant and realised that he was on the site of a coal-mine. (e) Celal Uymaz 40. This witness (born in 1946) is a lieutenant-colonel in the gendarmerie and at the material time was the head of intelligence and public safety at the gendarmerie headquarters in the town of Şırnak. He said that he had been appointed by the governor as investigating officer to carry out an investigation some two weeks after the incident had taken place.", "41. His account of the events was as follows. The security forces had been informed that a wounded PKK terrorist had taken refuge in the area. They had fired warning shots in the direction of Musa Oğur, whom they believed to be a terrorist. Then the security forces, together with aboutfifty-four of the security guards employed to protect the Şırnak coal-mines, who were on the site, had opened fire.", "However, they had had no intention of killing the victim, or else he would have been hit by more than one bullet. Their intention had been to arrest a suspect whom they believed to be trying to escape. It was an accident that the victim had been hit by one of the warning shots. The victim was hit in the back of the neck, that is to say, according to the witness, where someone would be hit if running away in defiance of warnings. The security forces were spread out to the right and left of the shelter and in front of it.", "42. According to the witness, in circumstances such as those in the case in question, the security forces were under orders to give a suspect at least three verbal warnings; they used a loud hailer to warn him orally and to order him to stop. If the suspect failed to obey, he had to be neutralised without the use of a firearm, by means of a rifle butt, bayonet or physical restraint. In the instant case there had been a considerable distance between the suspect and the security forces, and the latter had accordingly been compelled to fire warning shots into the air to make him stop. The witness acknowledged that the public prosecutor had recorded that shots had been fired at the victim with the intention of stopping him.", "His response was that the shot had not been intended to kill. He asserted that in the circumstances in which the incident had occurred (snow, fog and darkness) it was technically impossible to hit a target without night sights. He acknowledged that infantry units like the ones that had been deployed were equipped with infra-red field glasses enabling them to see in the dark. According to him, these were used to observe the terrain, however, and not to pinpoint targets. The witness stated that the security forces, the security guards from the Şırnak coal-mines and the mine watchmen were armed with G3 rifles.", "They were also entitled to shotguns. According to him, none of the shotguns found at the scene had been entered in the gun-licence register. 43. The witness stated that he had carried out his investigation on the basis of the documents drawn up for the purposes of the preliminary investigation (the incident report, the public prosecutor’s decision that he had no jurisdiction, the post-mortem report, etc.) and the oral evidence of two of the mine watchmen, Salih Zeyrek and Salih Oğur, whom the governor had identified.", "He did not visit the scene of the incident. He said that he had not considered it necessary to identify the members of the security forces who had taken part in the operation. He had not questioned any of them, because there had been so many of them and, in addition, village guards and fifty-four other members of the security service of the Şırnak coal-mines. Nor had he considered it necessary to interview the people who had signed the incident report, although he admitted that that report gave the name or number of the squads participating in the operation and that he could have called the members of those squads in for questioning by applying to the gendarmerie brigade commander. He had not identified the village guards who had taken part in the operation.", "He had not requested ballistic tests, because he had relied on the incident report and because about two weeks had elapsed since the events. The witness admitted that the finding in his report that warning shots had been fired had been based on the incident report. He had not seen any need to interview the six members of the security forces who had signed the incident report because, although he acknowledged that they had been eyewitnesses, he had thought that there was no point in questioning them since it had still not been proved that they had fired. (f) Nurettin Güven 44. This witness (born in 1952) was in post at Siirt in December 1990.", "In 1991, as deputy governor of Şırnak, he chaired, in place of the governor, the Şırnak Administrative Council which on 15 August 1991 decided that the members of the security forces had no case to answer. He did not himself visit the scene of the incident. 45. The witness described as follows the rules governing the prosecution of civil servants. The governor appointed an investigating officer, who gathered all the evidence and submitted his findings to the Administrative Council.", "The case was considered at a meeting of the Administrative Council, during which each member of the Council made comments. The investigating officer did not attend that meeting. The decision whether or not criminal proceedings should be brought was taken by a majority. That decision was referred to the Supreme Administrative Court, which upheld or quashed it after studying the case file. The special rules governing criminal proceedings against civil servants applied in regions in which a state of emergency was in force.", "A state of emergency was declared by due democratic process, by a majority vote in the National Assembly. 46. The witness admitted that it was possible to find out the names of the commanders of squads carrying out such operations. He said that the security forces open fire only in self-defence. (g) Cengizhan Uysal 47.", "In 1991 this witness (born in 1949) was Director of Public Health for Şırnak. He was a member of the Şırnak Administrative Council which on 15 August 1991 decided that there was no case to answer. He did not himself visit the scene of the incident. 48. The witness did not remember the particular circumstances of the case.", "He said that such incidents had been frequent at the time and that it had been the Administrative Council’s practice to conclude that it was impossible to identify those responsible. He explained that the Administrative Council based its decisions on the documents already placed in the case file by the investigating officer (appointed by the governor) and was not strictly empowered to carry out its own investigation. It was the governor who had the duty and the power to investigate. The members of the Administrative Council were all subordinate to the governor. The Administrative Council generally met once a month, although sometimes there was no meeting.", "In that event the governor distributed the draft decision to the Council members for signature. When the Council did meet, it was chaired by the governor or his representative. The Council Secretary read out the case file. The members of the Council could examine the documents in the file. They were then invited to make comments and to sign the draft decision.", "In theory they could disagree with the conclusions proposed by the governor. Those who were not persuaded of the correctness of the conclusions could ask for further inquiries to be made. But ultimately the procedure was based on trust in the governor. Either the members were convinced and signed the decision or they were replaced by others who were willing to sign it. In practice, it was out of the question for the decision in the form proposed by the governor not to be signed.", "49. The witness acknowledged that the decision in the instant case had not been a ruling that there was no case to answer but rather a decision not to bring criminal proceedings against civil servants and not to transfer the case file to the prosecutor for further investigations to be carried out with a view to identifying the probable culprits. He had not been informed of the outcome of the case. He stated that the gendarmerie knew the identity of the commanding officer of every operation carried out by the security forces at the coal-mines. (h) Other witnesses summoned 50.", "The following witnesses were also summoned by the Commission but did not appear: Mrs Sariye Oğur, the applicant and the victim’s mother; Mr Naif Zeyrek, Mr Salih Zeyrek and Mr Salih Oğur, watchmen at the mine; and other members of the security forces who had taken part in the operation on 24 December 1990. II. relevant domestic law A. Criminal prosecutions 51. Under the Criminal Code all forms of homicide (Articles 448 to 455) and attempted homicide (Articles 61 and 62) constitute criminal offences.", "The authorities’ obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or members of the security forces as well as to public prosecutors’ offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151). If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152).", "By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor’s office an offence of which he has become aware in the course of his duty is liable to imprisonment. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure). 52. If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor’s jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local Administrative Council (for the district or province, depending on the suspect’s status), which is chaired by the governor, to conduct the preliminary investigation and, consequently, to decide whether to prosecute.", "In the instant case the presiding governor had under his command the security forces that carried out the operation in issue. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. An appeal to the Supreme Administrative Court lies against a decision of the Council. If a decision not to prosecute is taken, the case is automatically referred to that court. 53.", "By virtue of Article 4, paragraph (i), of Legislative Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law (see paragraph 52 above) also applies to members of the security forces under the governor’s authority. 54. If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus if it is a “military offence” under the Military Criminal Code (Law no.", "1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9-14 of Law no. 353). The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person’s life by disobeying an order (Article 89).", "In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 51 above) or with the offender’s superior. B. Civil and administrative liability arising out of criminal offences 55. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them.", "If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. 56. Article 125 §§ 1 and 7 of the Constitution provides: “All acts or decisions of the authorities shall be subject to judicial review. ... The authorities shall be liable to make reparation for all damage caused by their acts or measures.” That provision establishes the State’s strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people’s lives or property, without it being necessary to show a tortious act attributable to the authorities.", "Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons. 57. Article 8 of Legislative Decree no. 430 of 16 December 1990 specifies in this connection: “No criminal, financial or legal liability may be asserted against … the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.” Additional section 1 of Law no.", "2935 of 25 October 1983 on the state of emergency provides: “… actions for damages in respect of the exercise of powers conferred by this statute shall be brought against the administrative authorities in the administrative courts.” 58. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages for pecuniary loss (Articles 41-46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant’s guilt (Article 53). However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations).", "That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative” act or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim’s right to bring an action against the authority on the basis of its joint liability as the official’s employer (Article 50 of the Code of Obligations). PROCEEDINGS BEFORE THE COMMISSION 59. The applicant applied to the Commission on 16 March 1993. She alleged that the security forces had killed her son during the operation on 24 December 1990, contrary to Article 2 of the Convention.", "60. The Commission declared the application (no. 21594/93) admissible on 30 August 1994. In its report of 30 October 1997 (former Article 31 of the Convention), it expressed the opinion by thirty-two votes to one that there had been a violation of Article 2. The full text of the Commission’s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment[4].", "FINAL SUBMISSIONS TO THE COURT 61. In her memorial the applicant requested the Court to hold that there had been a violation of Article 2 of the Convention and to award her just satisfaction. 62. In their memorial the Government asked the Court to declare that the applicant had not exhausted domestic remedies and that there had not been a violation of Article 2. THE LAW I. alleged violation of Article 2 of the convention A.", "The Government’s preliminary objections 1. Failure to exhaust domestic remedies 63. As they had done before the Commission, the Government maintained before the Court that the applicant had not exhausted the domestic remedies afforded her by Turkish law. In the first place, the applicant could not be said to have exhausted the available criminal remedies, since the complaint that had given rise to the investigation undertaken in the case had been lodged not by the applicant herself but by the victim’s employer. It would be difficult to equate the employer’s action with a remedy used by the applicant, seeing that it had had a quite different aim, namely to have it officially established that the victim’s death was the result of an industrial accident and therefore could not render the employer liable for negligence or a culpable act on his part.", "The applicant’s first reaction, the request for information from the chairman of the Şırnak Administrative Council, occurred only on 20 January 1993 (see paragraph 15 above), that is to say more than three years after the events, although Mr Kaplan, the applicant’s lawyer, had been instructed by her as far back as 28 December 1990. Furthermore, the applicant had, the Government continued, omitted to avail herself of the other remedies available in Turkish law, notably in civil and administrative matters. As regards, in particular, an action in administrative law under Article 125 of the Constitution, the Government referred to the abundance of case-law with which they had supplied the Court, which in their view demonstrated the remedy’s effectiveness. Relying on the judgments delivered by the Court in the cases of Cardotv. France (19 March 1991, Series A no.", "200), Ahmet Sadık v. Greece (15 November 1996, Reports of Judgments and Decisions 1996-V) and Aytekin v. Turkey (23 September 1998, Reports 1998-VII), the Government accordingly submitted that the application was inadmissible for failure to exhaust domestic remedies. 64. The applicant asserted that after the death of her son she had asked the Şırnak public prosecutor to open an investigation. She consequently considered that she had exhausted domestic remedies. 65.", "In its decision on admissibility the Commission expressed the opinion that the applicant had satisfied the requirement that domestic remedies should be exhausted. 66. The Court points out that in its judgment of 2 September 1998 in the case of Yaşa v. Turkey it held that the applicant was not required to bring the same civil and administrative proceedings as those relied on by the Government in the instant case (Reports 1998-VI, p. 2432, § 75). It noted, first of all, that a plaintiff in a civil action for redress for damage sustained through illegal acts or patently unlawful conduct on the part of State agents had, in addition to establishing a causal link between the tort and the damage he had sustained, to identify the person believed to have committed the tort. As in the instant case (see paragraph 14 above), however, those responsible for the acts complained of by the applicant remained unknown (see the judgment cited above, p. 2431, § 73).", "Secondly, as regards the administrative-law action provided in Article 125 of the Constitution, the Court noted that this was a remedy based on the strict liability of the State, in particular for the illegal acts of its agents, whose identification was not, by definition, a prerequisite to bringing such an action. However, the investigations which the Contracting States were obliged by Articles 2 and 13 of the Convention to conduct in cases of fatal assault had to be able to lead to the identification and punishment of those responsible (see paragraph 88 below). That obligation accordingly could not be satisfied merely by awarding damages. Otherwise, if an action based on the State’s strict liability were to be considered a legal action that had to be exhausted in respect of complaints under Articles 2 or 13, the State’s obligation to seek those guilty of fatal assault might thereby disappear (see the judgment cited above, p. 2431, § 74). The Court sees no reason to depart from those conclusions in the instant case.", "67. As to the fact that in the instant case the criminal proceedings were instituted not by the applicant herself but by the victim’s employer (see paragraph 11 above), the Court reiterates that the purpose of the rule that domestic remedies must be exhausted is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those violations are submitted to the Court (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999-I). In the instant case the requirement was satisfied, seeing that the complaint lodged by the victim’s employer had the same effect as one that could have been lodged by the applicant, namely that a criminal investigation was opened. 2.", "Estoppel 68. The Government also submitted that the applicant was “estopped from making her allegations” as she had not appeared before the Commission’s delegation responsible for taking statements from the witnesses in Ankara, although she had been invited to do so. 69. The Court notes that the Government could themselves be regarded as estopped from raising this objection before it, since they did not do so before the Commission. As to the merits of the issue, the Court considers that in principle the fact that an applicant has not appeared personally before the Convention institutions does not affect the validity of complaints he has raised before them in good time, provided that he maintains his application, as the applicant manifestly did in the instant case.", "70. In conclusion, the Government’s preliminary objections must be dismissed. B. Merits 71. The applicant alleged that the members of the security forces had killed her son during the operation on 24 December 1990 and that an effective judicial investigation had not been made into the circumstances of his death.", "She complained of a violation of Article 2 of the Convention, 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. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” 72.", "The Government rejected that contention, whereas the Commission accepted it in substance. 1. The death of the applicant’s son 73. The applicant alleged that her son, Musa Oğur, had been killed by a bullet fired by the security forces without any warning, when he emerged alone from the night-watchmen’s refuge. In her submission, the witnesses’ statements deprived the Government of any credibility in maintaining that the victim was a member of the PKK and that the security forces had been obliged to counter an attack from the night-watchmen’s refuge.", "74. The Commission regarded it as established that the security forces did not have to counter any attack, whether by members of the PKK, the victim or the other occupants of the shelter; that the victim had not been running away; that no loud-hailer warning had been given before firearms were used; and that Musa Oğur could have been fatally wounded by a shot from the security forces that was not a warning shot. 75. The Government submitted that the original aim of the members of the security forces had been to apprehend a terrorist, in accordance with information and instructions they had been given. When they came under fire, they had had to fire warning shots, one of which had unfortunately fatally wounded the applicant’s son, who was running away.", "The fact that someone had been hit by a warning shot was explained by the special circumstances surrounding the incident: visibility was poor and the ground was sloping, so that the firing angle was substantially reduced. No intention to kill on the part of the security forces had been established. It was thanks to their considerable numbers that, despite a major armed attack, further, even more serious incidents had been avoided, a fact that showed the operation had been well organised, notwithstanding very adverse weather and terrain. It had by no means been proved that the use of force by the security forces had not been absolutely necessary. Furthermore, the Government contested in particular the value of the evidence given by Mr Cengizhan Uysal (see paragraphs 47 et seq.", "above), who they said was a PKK sympathiser. 76. The Court reiterates that under the Convention system before the entry into force of Protocol No. 11 on 1 November 1998, the establishment and verification of the facts was primarily a matter for the Commission (see former Articles 28 § 1 and 31). Only in exceptional circumstances will the Court exercise its own powers in this area.", "However, it is not bound by the Commission’s findings of fact and remains free to make its own assessment in the light of all the material before it (see the Yaşa judgment cited above, p. 2437, § 93). In the absence of any fresh evidence submitted by those appearing before it, the Court will rely on the evidence gathered by the Commission, but will assess its weight and effects. 77. The Court notes, first of all, that none of those appearing before it disputed that the victim had been killed by a bullet fired by the security forces. The disagreement related solely to whether that bullet came from a warning shot or from a shot fired at the victim, and to the circumstances in which the shot was fired.", "78. The Court, further, reiterates that the exceptions delineated in paragraph 2 of Article 2 of the Convention indicate that this provision extends to, but is not concerned exclusively with, intentional killing. The text of Article 2, read as a whole, demonstrates that paragraph 2 does not primarily define instances where it is permitted intentionally to kill an individual, but describes the situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than “absolutely necessary” for the achievement of one of the purposes set out in sub-paragraphs (a), (b) or (c). In this respect the use of the term “absolutely necessary” in Article 2 § 2 indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraph 2 of Articles 8 to 11 of the Convention.", "In particular, the force used must be strictly proportionate to the achievement of the aims set out in sub-paragraphs 2 (a), (b) and (c) of Article 2. In keeping with the importance of this provision in a democratic society, the Court must, in making its assessment, subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of the agents of the State who actually administer the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination (see the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, p. 46, §§ 148-50). 79. The Court must therefore now consider whether in the instant case the force used against the victim by the security forces could be said to be absolutely necessary and therefore strictly proportionate to the achievement of one of the aims set out in paragraph 2 of Article 2, the only relevant ones of which, in the circumstances of the case, are the “defence of any person from unlawful violence” and “effect[ing] a lawful arrest”.", "80. In this connection, it should be remembered that, according to the Government, the objective of the members of the security forces had been to apprehend the victim, who was thought to be a terrorist. On that occasion they had had to face a “major armed response”, to which they had replied with warning shots, one of which had hit Musa Oğur, who had allegedly been running away. That accident was explained, in particular, by the poor visibility at the scene of the events, due to fog and the lie of the land, which was sloping. 81.", "Like the Commission, the Court notes, however, that of all the witnesses interviewed, only the members of the security forces stated that they had been the target of an armed attack (see paragraphs 33, 37 and 41 above). Admittedly, the technical expert appointed by the Şırnak public prosecutor also noted in his report “an exchange of fire between the security forces and members of the PKK terrorist movement who were firing from the shelter and seeking to escape”, but he gave no indication of the facts on which that statement was based (see paragraph 22 above). On the other hand, in its decision of 26 December 1990 the public prosecutor’s office made no mention of any attack on the security forces, noting merely that when Musa Oğur left the shelter and squatted down to answer a call of nature, “the security forces gained the impression that the suspect was escaping and they opened fire and killed him” (see paragraph 12 above). The night-watchmen who were with the victim just before the incident all stated that he had gone out of the shelter alone, to answer a call of nature, and that neither before nor after the shot which fatally wounded Musa Oğur had they used the shotguns that were in the shelter (see paragraphs 20 and 24 above). In this connection, the Court notes that, according to the Şırnak public prosecutor, there were no cartridges or cartridge cases at the spot where the victim’s body lay (see paragraph 20 above); that was a finding which the prosecutor confirmed orally (see paragraph 28 above).", "Only eight spent shotgun cartridges were found by the prosecutor in the dugouts, but they were two or three days old (see paragraph 20 above). Three shotguns were apparently also found in the shelter, but it was only a matter of surmise that the night-watchmen had used them against the security forces (see paragraphs 20 and 30 above). Lastly, it would appear that no member of the security forces was wounded during the operation in question. The Court consequently considers that there is insufficient evidence to establish that the security forces came under any armed attack at the scene of the incident. 82.", "The Court notes, further, that according to Celal Uymaz, the gendarmerie lieutenant-colonel appointed by the governor as investigating officer in the case, the security forces are under instructions, in circumstances such as those of the instant case, to give at least three verbal warnings to the suspects by loud hailer (see paragraph 42 above). In the Court’s view, such precautions are all the more necessary where, as in this instance, the operations take place in darkness and fog, on hilly ground. Only one of the witnesses questioned, however, stated that verbal warnings had been given on this occasion (see paragraph 37 above), while another indicated that no warning had been given and a third witness said that he could not remember what had happened (see paragraphs 33 and 38 above). The Court concludes that there is not sufficient evidence to establish that the security forces gave the warnings usual in such cases. 83.", "Several witnesses explained the death of the applicant’s son as having been caused by a warning shot (see paragraphs 29, 33-34, 38 and 41-42 above), and the Government added, in their memorial, that as the shot had struck Musa Oğur in the nape of the neck, he had been running away. The Court points out that, by definition, warning shots are fired into the air, with the gun almost vertical, so as to ensure that the suspect is not hit (see paragraph 39 above). That was all the more essential in the instant case as visibility was very poor. It is accordingly difficult to imagine that a genuine warning shot could have struck the victim in the neck. In this context, it should also be noted that according to one of the members of the security forces, the men had taken up position fifty metres apart from each other but were not linked by radio; that must necessarily have made it difficult to transmit orders and to control the operations (see paragraph 38 above).", "The Court consequently considers that, even supposing that Musa Oğur was killed by a bullet fired as a warning, the firing of that shot was badly executed, to the point of constituting gross negligence, whether the victim was running away or not. 84. In sum, all the deficiencies so far noted in the planning and execution of the operation in issue suffice for it to be concluded that the use of force against Musa Oğur was neither proportionate nor, accordingly, absolutely necessary in defence of any person from unlawful violence or to arrest the victim. There has therefore been a violation of Article 2 on that account. 2.", "The investigations by the national authorities 85. The applicant stated that the Administrative Council – composed of persons who are not lawyers and are answerable to the executive – did everything to protect those responsible for the incident of 24 December 1990, relying on the law governing the prosecution of civil servants (see paragraph 52 above). In her submission, the administrative authorities’ efforts to protect those responsible for the crime were obvious. In that connection, she referred to several witness statements, including that of the investigating officer, who had said that he had not considered it necessary to identify and question the members of the security forces who had taken part in the operation (see paragraph 43 above), and the one made by Mehmet Akay, according to which revealing the identity of the soldiers in question could have put their lives at risk (see paragraph 35 above). 86.", "The Commission considered that the investigation carried out at national level into the death of the applicant’s son had not been conducted by independent authorities, had not been thorough and had taken place without the applicant’s being able to take part. In the Commission’s view, such a situation amounted to a breach by the State of its obligation to “protect the right to life by law”. 87. The Government did not make any observations on the circumstances in which the investigation into Musa Oğur’s death was carried out. 88.", "The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force, in particular by agents of the State. This investigation should be capable of leading to the identification and punishment of those responsible (see, among other authorities, the Yaşa judgment cited above, p. 2438, § 98, and the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports 1998-VIII, p. 3290, § 102). 89. The Court observes that when he inspected the scene of the incident, the Şırnak public prosecutor confined himself to noting findings in respect of the victim’s body, making an inspection and a sketch of the scene, reconstructing the events and interviewing three witnesses, all of them night-watchmen colleagues of the victim (see paragraph 20 above). In his report the prosecutor indicated, in particular: “Since the gunshot wound was the certain cause of death and no other finding was made that could suggest any other cause, it was not considered necessary to carry out a full post-mortem” (see paragraph 20 above).", "It should be pointed out here, however, that in a case of this kind a proper post-mortem examination – if it had been carried out – could have provided valuable information about the approximate positions of the person who fired and the victim, and the distance between them, at the moment of the shot. The same report merely mentions the discovery of eight cartridges, three shotguns and a quantity of powder, but none of that evidence was subsequently subjected to detailed examination. On the subject of the cartridges the report does no more than state that they “must have been two or three days old”; in respect of the powder, it states that it was “impossible to say whether it was fresh powder or not” (see paragraph 20 above). Here too a proper examination, in particular a ballistic test, could have revealed exactly when those items had been used. As to the witnesses questioned at the scene by the prosecutor, they were all members of the night-watchmen’s team.", "No member of the security forces that took part in the operation was interviewed on that occasion. Lastly, the expert report prepared at the prosecutor’s request contains information that is very imprecise and findings mostly unsupported by any established facts. 90. The subsequent investigation carried out by the administrative investigation authorities scarcely remedied the deficiencies noted above in that, again, no post-mortem or other forensic examination, notably in the form of ballistic tests, was ordered and no members of the security forces that took part in the operation were questioned, although their names were known (see paragraphs 43 and 49 above). Thus no serious attempt to identify the person who had fired the fatal shot was made, although several of the witness statements indicated that the shot came from the security forces.", "91. At all events, serious doubts arise as to the ability of the administrative authorities concerned to carry out an independent investigation, as required by Article 2 of the Convention. The Court notes that the investigating officer appointed by the governor was a gendarmerie lieutenant-colonel and, as such, was subordinate to the same chain of command as the security forces he was investigating. As to the Administrative Council, whose responsibility it was to decide whether proceedings should be instituted against the security forces concerned, it was composed of senior officials from the province and was chaired by the governor, who in this instance was administratively in charge of the operation by the security forces. In this connection, the evidence of one of the members of the Şırnak Administrative Council should be noted, according to which, in practice, it was not possible to oppose the governor: either the members signed the decision prepared by him or they were replaced by other members who were willing to do so (see paragraph 48 above).", "92. It must be noted, lastly, that during the administrative investigation the case file was inaccessible to the victim’s close relatives, who had no means of learning what was in it (see paragraph 15 above). The Supreme Administrative Court ruled on the decision of 15 August 1991 on the sole basis of the papers in the case, and this part of the proceedings was likewise inaccessible to the victim’s relatives. Nor was the decision of 15 August 1991 served on the applicant’s lawyer, with the result that the applicant was deprived of the possibility of herself appealing to the Supreme Administrative Court. 93.", "In conclusion, the investigations in this case cannot be regarded as effective investigations capable of leading to the identification and punishment of those responsible for the events in question. There has therefore been a violation of Article 2 on this account also. II. application of article 41 of the Convention 94. The applicant sought just satisfaction under Article 41 of the Convention, which 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 95. In respect of the damage she had sustained, the applicant claimed 500,000 French francs (FRF), of which FRF 400,000 was for pecuniary damage and FRF 100,000 for non-pecuniary damage. She pointed out that she had had no means of support since the death of her son, who had maintained the family by working as a night-watchman. 96. The Government submitted that no compensation was due to the applicant as she had not exhausted domestic remedies or been the victim of a breach of Article 2.", "In the alternative, the Government submitted that the applicant’s claims should first be brought in the Turkish administrative courts, which could allow them if appropriate. The Court should therefore not give a ruling. At all events, the claims in question were unconscionable, excessive and wholly without foundation, in the absence of sufficient particulars concerning the assessment of the pecuniary and non-pecuniary damage and the socio-economic circumstances of the applicant and of her region. 97. The Delegate of the Commission wished to leave the matter to the Court’s discretion.", "98. The Court has already held that if a victim, after exhausting the domestic remedies in vain before complaining to the Convention institutions of a violation of his rights, were obliged to do so a second time before being able to obtain just satisfaction from the Court, the total length of the procedure instituted by the Convention would scarcely be in keeping with the idea of the effective protection of human rights. Such a requirement would lead to a situation incompatible with the aim and object of the Convention (see the De Wilde, Ooms and Versyp v. Belgium judgment of 10 March 1972 (Article 50), Series A no. 14, p. 9, § 16). Having regard to its conclusions as to compliance with Article 2 and to the fact that the events complained of took place more than eight years ago, the Court considers that it is required to rule on the applicant’s claim for just satisfaction.", "As regards pecuniary damage, the file contains no information on the applicant’s son’s income from his work as a night-watchman, the amount of financial assistance he gave the applicant, the composition of her family or any other relevant circumstances. That being so, the Court cannot allow the compensation claim submitted under this head (Rule 60 § 2). As to non-pecuniary damage, the Court considers that the applicant undoubtedly suffered considerably from the consequences of the double violation of Article 2. She not only lost her son but also had to witness helplessly a flagrant lack of diligence on the part of the authorities in their conduct of the investigation. On an equitable basis, the Court assesses that non-pecuniary damage at FRF 100,000.", "B. Costs and expenses 99. In respect of the costs and expenses relating to her representation before the national authorities and then before the Convention institutions, the applicant claimed FRF 240,000. That sum would also cover the expenses occasioned by the witness hearings in Ankara and Strasbourg – for which the applicant’s lawyer was assisted by three advisers – and substantial costs for translating documents emanating from Strasbourg. 100.", "The Government considered this a “colossal” sum that was unsupported by any voucher worthy of the name. 101. The Delegate of the Commission wished to leave the matter to the Court’s discretion. 102. The Court notes that the applicant gave no breakdown of the number of hours of work for which her lawyer sought payment.", "Under Rule 60 § 2 of the Rules of Court, it therefore cannot allow the claim as it stands. Making its assesment on an equitable basis, it awards FRF 30,000 in respect of costs and expenses, from which FRF 18,830 received by the applicant in legal aid must be deducted. C. Default interest 103. The Court considers it appropriate to adopt the statutory rate of interest applicable in France at the date of adoption of the present judgment, namely 3.47% per annum. FOR THESE REASONS, THE COURT 1.Dismisses unanimously the Government’s preliminary objections; 2.Holds by sixteen votes to one that there has been a violation of Article 2 of the Convention as regards the planning and execution of the operation that led to the death of the applicant’s son; 3.Holds unanimously that there has been a violation of Article 2 of the Convention as regards the investigations carried out by the national authorities; 4.Holds by sixteen votes to one (a) that the respondent State is to pay the applicant, within three months, the following sums, to be converted into Turkish liras at the rate applicable at the date of settlement: (i) 100,000 (one hundred thousand) French francs for non-pecuniary damage; (ii) 30,000 (thirty thousand) French francs for costs and expenses, plus any amount which may be due in value-added tax, less 18,830 (eighteen thousand eight hundred and thirty) French francs; (b) that simple interest at an annual rate of 3.47% shall be payable on those sums from the expiry of the above-mentioned three months until settlement; 5.Dismisses by sixteen votes to one 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 20 May 1999. Luzius WildhaberPresident Paul MahoneyDeputy Registrar In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) partly dissenting opinion of Mr Bonello; (b) partly dissenting opinion of Mr Gölcüklü. L.W.P.J.M. PARTLY DISSENTING OPINION OF JUDGE BONELLO In this case the Court has found a multiple violation of the fundamental right to life, in that the Turkish authorities are to be held responsible both for the measures that led to the death of the applicant’s son and for failing to conduct any serious investigation into that killing by the security forces. The Court awarded the dead man’s mother some compensation for non‑pecuniary damage, but refused to consider the claim for pecuniary damage in the following terms: “As regards pecuniary damage, the file contains no information on the applicant’s son’s income from his work as a night-watchman, the amount of financial assistance he gave the applicant, the composition of her family or any other relevant circumstances.", "That being so, the Court cannot allow the compensation claim submitted under this head (Rule 60 § 2).” I am profoundly distressed by such reasoning. This was a particularly appalling case of State homicide. At best, a callous lesson in reckless killing, followed by an impertinent cover-up that masqueraded as an investigation. The majority reacted to this outrage by finding refuge in the arms of what, to me, appear as infelicitous legalisms. Often there is nothing like the by-products of law to pervert the course of justice.", "The applicant’s son was 30 years old when he was killed, and worked regularly as a night-watchman at a mine. According to a statement which the Government did not contest, “his family lived on the income he earned... No indemnity was paid to the applicant (his mother) out of the Social Security Fund (after his death) ...”[5]. The mother of the dead victim claimed 500,000 French francs for pecuniary damage in the present proceedings. She received zero French francs. It is unchallenged that the applicant failed to provide “itemised particulars of all claims made, together with the relevant supporting documents or vouchers” as required by Rule 60 § 2 of the Rules of Court.", "But I do not believe that this should, in the circumstances, have led to a total rejection of the applicant’s claim. Firstly, the rule in question lays down that, in default of proper documentation in support of the claim, the Court “may reject the claim in whole or in part”. This makes it clear that the Court enjoys an absolute discretion whether to allow the claim or not. In this particularly shocking case the Court of Human Rights did exercise that discretion. It exercised it in favour of the violator of human rights, and against the victim of that violation.", "Secondly, the same rule empowers the Court, at any stage of the proceedings, to “invite any party to submit comments on the claim for just satisfaction”[6]. I believe that, having noticed a deficiency in the evidence relating to pecuniary damage, the Court could, and ought to, have invited the applicant to submit details of her claim. It would certainly not have been the first time that the Court left the determination of “just satisfaction” to a later stage, after judgment on the merits. Many, many times in its history, when the Court considered that the file contained insufficient data on the damage suffered by the victim, it either made a finding that “the question of the application of Article 50 [now Article 41] is not ready for decision” or proceeded to assess the damages “on an equitable basis”. The Court could have followed these numerous precedents, but failed to do so.", "In fact, I believe that the majority were clearly in a position to assess, on an equitable basis, the compensation due to the applicant in respect of pecuniary damage. Courts make findings derived from two inputs: evidence and presumptions. In this case, in the absence of evidence, the Court could, and ought to, have presumed that the dead man was earning at least the legal minimum wage current in south-east Turkey. That was a safe and reasonable presumption which stared the majority in the face, one that shifted onto the Government the burden of proving otherwise. Contrary to what the judgment says, the record shows that the dead man’s family “lived on the income he earned”.", "The practice of assessing damages “on an equitable basis”, so often resorted to by the Court, would surely have suffered no lethal harm had the Court relied on the legal minimum wage the applicant’s son must necessarily have been earning before his tragic death as the basis for its calculations. As recently as last year, in a case in which the applicants had failed to produce evidence on the pecuniary damage alleged, the Court dealt with the matter in a manner diametrically opposed to the way it employed in the present case: it assessed the amount to be awarded for pecuniary damage of its own motion “on principles of equity”. The Court said: “… [S]ince the applicants have not substantiated their claim as to the quantity and value of their lost property with any documentary or other evidence ... the Court’s assessment of the amounts to be awarded must, by necessity, be speculative and based on principles of equity.”[7] The Court awarded the applicants approximately 40,000 pounds sterling. I fail to see why the Court should now suddenly turn its case-law inside out, or why the “principles of equity” should be enlisted when they favour some and be scrapped when they favour others. After all, the Court has repeatedly, in the absence of data to substantiate an applicant’s claim for pecuniary damage, resorted to its own quantification of pecuniary damage on an equitable basis.", "In a recent case, an architect lamented that the length of administrative proceedings had damaged his professional reputation, and that this had resulted in a loss of clients. Like Mrs Oğur, he too claimed for unevidenced pecuniary damage. Like Mrs Oğur, he too failed to substantiate his claim. But unlike Mrs Oğur, he was awarded compensation for pecuniary damage on “an equitable basis”[8]. I will try hard not to conclude that, in the eyes of the majority, loss of life is less worthy of empathy than loss of clients.", "In this case, a State which had solemnly undertaken to cherish the right to life, has wantonly plucked and tossed away the being of a young man, paying the price of a small car – almost an entertainment tax on homicide. In the Strasbourg market it seems that life comes cheap, and killing is a tremendous bargain. Partly dissenting opinion of JUDGE GÖLCÜKLÜ (Translation) I agree with and confine myself to the findings and reasoning of the majority of the Court as to the inadequacy of the investigations carried out at national level into the death of the applicant’s son. To my great regret, however, I cannot share the opinion of the majority as to the particular circumstances of the death of the applicant’s son, Musa Oğur, or agree with the conclusions they reach on the basis of the facts as established and assessed by the Commission. I consider that it was open to the Court, even if it adopted the Commission’s findings as to the facts, to interpret these differently and in that way to reach a different conclusion from that of the Commission.", "I must point out at the outset that the Commission itself accepted that “… having regard to the above findings (see in particular paragraphs 117 and 134), … the circumstances surrounding the death of the applicant’s son are far from clear” (Commission’s report, paragraph 146). Given such a statement, how is it possible to reach the conclusion that “the use of force against Musa Oğur was neither proportionate nor, accordingly, absolutely necessary in defence of any person from unlawful violence or to arrest the victim” (paragraph 84 of the judgment)? In my opinion, there was no “use of force” against Musa Oğur; it was quite legitimate and absolutely necessary for the security forces to organise an operation against the PKK terrorists in a region where the PKK’s growing, reckless terrorism has cost the lives of tens of thousands of innocent human beings. The facts and circumstances surrounding Musa Oğur’s death must therefore be assessed against the general background of events and the particular situation in south-east Turkey. In its judgment in the case of McCann and Others v. the United Kingdom, the Court held: “… the use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 of the Convention may be justified under this provision where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken.", "To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others. It follows that, having regard to the dilemma confronting the authorities in the circumstances of the case, the actions of the soldiers do not, in themselves, give rise to a violation of this provision.” (judgment of 27 September 1995, Series A no. 324, pp. 58-59, § 200) Mutatis mutandis, those considerations are as valid and as relevant in the instant case. Even if the facts disputed by the parties are left out of account, it is certain that the bad atmospheric and geographical conditions – hilly, sloping ground, darkness at daybreak, thick fog, snowstorm, etc.", "– further complicated the operation, which was already a high-risk operation. Allowance must also be made for the fact that the Cudi mountains are one of the areas most commonly frequented by members of the PKK (see paragraphs 33, 35, 75, 80, 82 and 85 of the judgment). In sum, the Court did not take sufficient account of the particular circumstances in which the alleged events occurred or of the findings made in the national investigation, which were in no way contradicted by the Commission’s investigation. In any event, the Commission’s investigation could not yield the expected results, since none of the eyewitnesses summoned by the applicant party appeared before the Commission or, therefore, was examined. The applicant was wholly absent throughout the proceedings both before the Commission and before the national authorities (Commission’s report, paragraph 87).", "A final point which is also of importance in the case: the total absence of any initiative by the applicant, who, although represented from the outset by a lawyer, did not avail herself of any domestic remedies, preferring to remain inactive and to wait. On this point I should like to recall to mind the Aytekin v. Turkey judgment of 23 September 1998, in which the Court penalised a party who had failed to exhaust all the existing domestic remedies, despite taking part in the proceedings. If, in the Aytekin case, the Court was able to find that domestic remedies had not been exhausted it should a fortiori in the Oğur case have been much more demanding and categorical, since it was not found that the applicant party had made any attempt to exhaust those remedies. I therefore consider that, in the light of these facts, it is not possible to maintain that the use of force within the meaning of Article 2 of the Convention was not absolutely necessary and proportionate to the aim pursued and that there was therefore a violation. As to the application of Article 41 of the Convention, the Court assessed non-pecuniary damage at FRF 100,000.", "That seems to me to be difficult to justify because when, in similar cases, the (old) Court found a violation of a violation of Article 2 of the Convention, the compensation awarded under the head of non-pecuniary damage amounted to about FRF 50,000 to 60,000, which was an equitable sum in view of the cost of living in the country and the purchasing power of the Turkish lira. The Court, for instance, awarded GBP 6,000 in the Yaşa v. Turkey case (judgment of 2 September 1998), FRF 50,000 in the Güleç v. Turkey case (judgment of 27 July 1998) and GBP 6,000 in the Ergi v. Turkey case (judgment of 28 July 1998). [1]Notes by the Registry -2. Protocol No. 11 and the Rules of Court came into force on 1 November 1998.", "[3]3. Since the entry into force of Protocol No. 11, which amended Article 19, the Court has functioned on a permanent basis. [2]. Note by the Registry.", "Rules of Court A applied to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and from then until 31 October 1998 only to cases concerning States not bound by that Protocol. [3]1. The names of the infantry squads in question are given in full in the report. [4].", "Note by the Registry. For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry. [5]1. Applicant’s memorial of 23 March 1998. [6].", "Rule 60 § 3. [7]. Selçuk and Asker v. Turkey judgment of 24 April 1998, Reports of Judgments and Decisions 1998-II, p. 915, § 106. [8]. Doustaly v. France judgment of 23 April 1998, Reports 1998-II.", "There are various other recent cases on record in which the Court, in the absence of a quantified claim, awarded pecuniary damages “on an equitable basis”: see Allenet de Ribemont v. France, 10 February 1995; Hentrich v. France (Article 50), 3 July 1995; Gaygusuz v. Austria, 16 September 1996; Canea Catholic Church v. Greece, 16 December 1997; Estima Jorge v. Portugal, 21 April 1998; and Vasilescu v. Romania, 22 May 1998." ]

[ "THIRD SECTION CASE OF GHIREA v. MOLDOVA (Application no. 15778/05) JUDGMENT STRASBOURG 26 June 2012 FINAL 26/09/2012 This judgment is final but it may be subject to editorial revision. In the case of Ghirea 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,Nona Tsotsoria,Kristina Pardalos, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 5 June 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 15778/05) 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 Ion Ghirea (“the applicant”), on 28 April 2005.", "2. The applicant was represented by Mr A. Briceac, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. 3. On 18 October 2010 the Court decided to give notice of the application to the Government.", "It was also decided that the Chamber would examine the merits of the application at the same time as its admissibility (Article 29 § 1 of the Convention). 4. Following the resignation of Mihai Poalelungi, the judge elected in respect of the Republic of Moldova (Rule 6 of the Rules of Court), the President of the Chamber decided to appoint Ján Šikuta to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1956 and lives in Chişinău. 6. On 6 December 1999 the applicant, a former customs officer, was accused of accepting bribes. On 7 December 1999 his home was searched. According to the applicant, several of his possessions that were seized during the search subsequently disappeared.", "7. On 22 December 2000 the Ciocana District Court acquitted the applicant. 8. Following an appeal by the public prosecutor, the Chişinău Regional Court (Tribunalul Chişinău) upheld the first-instance judgment on 19 September 2001. 9.", "On 25 September 2001 the public prosecutor appealed on points of law. 10. On 13 December 2001 the Chişinău Court of Appeal upheld the appeal on points of law and quashed the judgments of 22 December 2000 and 19 September 2001, remitting the case to the lower courts. 11. On 27 June 2003 the Ciocana District Court again acquitted the applicant.", "12. On 14 July 2003 the Ciocana public prosecutor’s office informed the District Court that the prosecutor dealing with the case was on leave from 14 July to 26 August 2003 and wished the examination of the case to be adjourned until his return. 13. On 17 July 2003 the registry of the Ciocana District Court informed the Ciocana public prosecutor’s office that the reasoned judgment had been filed with the registry. 14.", "On 26 August 2003 the public prosecutor appealed against the judgment of 27 June 2003. 15. On 4 November 2003 the Chişinău Court of Appeal dismissed the appeal as being out of time. It held: “[The appeal] was lodged only on 26 August 2003, whereas the prosecutor ... had been informed of the finalisation of the judgment on 17 July 2003. Accordingly, the time-limit laid down in Article 402 of the Code of Criminal Procedure for appealing has not been observed.", "The Court of Appeal finds that the reason given by the public prosecutor, namely being on ordinary leave, is unjustified. ...” 16. On 31 December 2003 the public prosecutor appealed on points of law against the Court of Appeal’s decision. 17. On 4 February 2004 the Supreme Court of Justice examined the admissibility of the appeal as a bench of three judges.", "On 17 February 2004 it sent the case back to the Chişinău Court of Appeal, holding in particular: “... it appears from the case file that the Ciocana public prosecutor’s office was informed that the file had been received at the registry ... on 17 July 2003. In an official letter dated 14 July 2003, the deputy prosecutor ... had informed the Ciocana District Court that the prosecutor [dealing with the case] would be on leave from 14 July to 25 August 2003. The public prosecutor’s appeal was registered at the Ciocana District Court on 26 August 2003, the day after he returned from leave. In accordance with Article 401 of the Code of Criminal Procedure, [only] the public prosecutor who has participated in the trial is entitled to appeal ... In the specific circumstances, [the Supreme Court of Justice] considers that the Court of Appeal erred in finding that the prosecutor’s absence on ordinary leave was not a valid reason for reopening the time allowed for an appeal.", "...” 18. On 20 May 2004 the Chişinău Court of Appeal accepted that the appeal by the public prosecutor had been lodged within the statutory time-limit, found the applicant guilty and sentenced him to a fine of 70,000 Moldovan lei (MDL) (4,915.04 euros (EUR) at the time), in addition to disqualifying him from holding posts in the customs department for five years. Addressing the question of the date on which the public prosecutor’s appeal had been lodged, it held as follows: “An examination of the case file shows that the trial court acquitted [the applicant] on 27 June 2003 ... on account of the fact that the acts committed by him did not entail the constituent elements of the offence, and in an official letter dated 8 July 2003 the public prosecutor asked to be informed about the date on which the full version of the judgment would be finalised. In another official letter dated 14 July 2003, the deputy prosecutor ... informed the Ciocana District Court that the prosecutor [dealing with the case] would be on leave from 14 July until 26 August 2003. Accordingly, the prosecutor’s annual leave is a valid reason for finding that his appeal was lodged within the time-limit ...” 19.", "The applicant appealed on points of law against that decision, relying in particular on the fact that the public prosecutor’s appeal had been lodged out of time. 20. On 3 November 2004 the Supreme Court dismissed the applicant's appeal on points of law. 21. In a letter of 6 December 2011 the applicant informed the Court of his intention to make an application to the national authorities under Law no.", "87 of 1 July 2011 on compensation by the State for damage caused by the excessive length of proceedings or failure to execute a judicial decision within a reasonable time. II. RELEVANT DOMESTIC LAW 22. The relevant provisions of the Code of Criminal Procedure in force at the material time were worded as follows: Article 401. Persons entitled to lodge an appeal “1.", "An appeal may be lodged by: (1) the public prosecutor, as regards the criminal and civil aspects of the case; ...” Article 402. Time-limits for lodging an appeal “1. Unless the law provides otherwise, the time-limit for appealing shall be fifteen days from the date on which the full version of the judgment is finalised or delivered. 2. For a defendant in detention, the time-limit for appealing shall run from the date on which he or she is handed a copy of the finalised judgment, and for the parties not present at the delivery of the judgment, from the date on which they are notified in writing that the judgment has been finalised ...” THE LAW I.", "COMPLAINTS UNDER ARTICLE 6 CONCERNING THE REOPENING OF THE CRIMINAL PROCEEDINGS 23. The applicant complained, firstly, that the appeal lodged out of time by the public prosecutor had been accepted by the Chişinău Court of Appeal, thus entailing a breach of the principle of legal certainty. He further submitted that the Supreme Court of Justice’s interpretation of the rule that only the prosecutor who had participated in the trial was entitled to lodge an appeal had infringed the principle of equality of arms in his case. He relied on Article 6 § 1 of the Convention which provides: “In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …” A. Admissibility 1. The parties’ submissions 24.", "The Government objected that domestic remedies had not been exhausted. They argued that the applicant had not raised his complaints under Article 6 § 1 of the Convention, even in substance, before the domestic courts. 25. The applicant contested that argument. He submitted that the relevant provisions of the Code of Criminal Procedure required the Supreme Court of Justice to examine of its own motion any issues relating to the admissibility of an appeal on points of law, including whether it had been lodged outside the time-limit.", "He further noted that he had complained that the prosecutor’s appeal had been out of time both in his appeal on points of law to the Supreme Court of Justice and in an extraordinary appeal (recurs în anulare) lodged on 22 December 2004. 2. The Court’s assessment 26. The Court notes that in his appeal on points of law against the Chişinău Court of Appeal’s judgment of 20 May 2004, the applicant explicitly submitted that the public prosecutor’s appeal of 26 August 2003 had been lodged out of time and sought the quashing of the Chişinău Court of Appeal’s judgment in which that appeal had been allowed. In the light of that fact, the Court finds that the applicant has at least raised in substance the complaints he has brought before the Court.", "It therefore dismisses the objection raised by the Government in that regard. 27. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits 1. The parties’ submissions 28. The applicant contended that the appeal lodged by the public prosecutor on 26 August 2003 had been allowed by the Chişinău Court of Appeal on 20 May 2004 without a valid reason. The unlawful reopening of the time allowed for appealing had breached the principles of legal certainty and equality of arms as safeguarded by Article 6 § 1 of the Convention.", "He submitted that in a previous interlocutory judgment the Court of Appeal had acknowledged that the appeal was out of time. 29. The Government disputed those arguments. They submitted that the domestic courts had rightly upheld the public prosecutor’s appeal by referring to Article 401 of the Code of Criminal Procedure (see paragraph 22 above). They further contended that according to the Supreme Court of Justice’s interpretation of that Article, only the prosecutor dealing with the case was entitled to lodge an appeal.", "The appeal could have been declared inadmissible for failure to comply with the formal requirements if it had been lodged by another prosecutor. 2. The Court’s assessment 30. The Court reiterates 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.", "This applies in particular to the interpretation by courts of rules of a procedural nature such as the prescribed manner and time for lodging an appeal. The Court’s role is confined to ascertaining whether the effects of such interpretation are compatible with the Convention in general and with the principle of legal certainty in particular (see Platakou v. Greece, no. 38460/97, § 37, ECHR 2001-I, and Dacia SRL v. Moldova, no. 3052/04, § 75, 18 March 2008). 31.", "The Court further reiterates that the principle of equality of arms, which is one of the elements of the broader concept of a fair trial, requires each party to be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. Lastly, the Court notes that the application of the rules on procedural time-limits may infringe the principle of equality of arms, where the different parties do not have the same opportunity to put their arguments forward (see Varnima Corporation International S.A. v. Greece, no. 48906/06, § 27, 28 May 2009; Ben Naceur v. France, no. 63879/00, § 32, 3 October 2006; and Wynen and Centre hospitalier interrégional Edith-Cavell v. Belgium, no. 32576/96, § 32, ECHR 2002-VIII).", "32. In the present case, the procedural law in force at the relevant time provided that the time allowed for lodging an appeal was fifteen days from the date on which the parties were notified of the full, finalised version of the judgment (see Article 402 of the Code of Criminal Procedure, cited in paragraph 22 above). It was not disputed that the period of fifteen days had begun to run 17 July 2003, when the registry of the Ciocana District Court had informed the public prosecutor’s office that the reasoned judgment had been filed with the registry. As no appeal was lodged within the time allowed, the judgment of 27 June 2003 in the applicant’s favour became final on 1 August 2003. The public prosecutor appealed on 26 August 2003, justifying the delay of twenty-five days by the fact that he had been on leave from 14 July to 25 August 2003.", "33. In allowing the belated appeal, the Supreme Court of Justice held the fifteen-day time-limit had been suspended in a manner benefiting the State on the grounds that the prosecutor dealing with the case was on leave. It quashed the Court of Appeal’s decision and sent the case back for a fresh examination. The Chişinău Court of Appeal then endorsed the Supreme Court’s arguments in allowing the prosecutor’s appeal as having been lodged within the statutory time-limit, overturned the applicant’s acquittal at first instance and convicted him. 34.", "In the Court’s view, the applicant was thus placed at a substantial disadvantage vis-à-vis the public prosecutor, who could extend at will the statutory time allowed for appealing, thereby securing a review of the final judgment given in the applicant’s favour. Even assuming that the preferential treatment accorded to the public prosecutor was justified in the interests of the proper administration of justice, the Court would highlight the lack of any regulations or judicial practice limiting the use of such an extension. The Court observes that in the Platakou judgment (cited above, §§ 45-48), concerning an administrative dispute, it held that the fact that time ceased to run against the State during the period of the judicial vacation contravened the principle of equality of arms. Having regard to what was at stake for the applicant in the appeal in the present case and reiterating that in the sphere of criminal law the requirements of a “fair hearing” are stricter (see, mutatis mutandis, Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 32, Series A no. 274), the Court finds that the suspension of the time allowed for appealing, on the grounds that the prosecutor dealing with the case was on leave, cannot be accepted as compatible with the principle of equality of arms.", "35. The Court further considers that the domestic courts’ interpretation of the statutory provisions applicable in the present case had an effect that was incompatible with the principle of legal certainty as safeguarded by Article 6 of the Convention. The domestic courts’ interpretation allowed the State, represented by the public prosecutor’s office, to lodge an appeal even though the time allowed for doing so had expired. The courts examined the public prosecutor’s appeal and convicted the applicant, thus altering a legal situation that had become final. The reopening of the proceedings, leading to the quashing of a final decision in the applicant’s favour, undermined the principle of legal certainty (see Dacia SRL, cited above, § 77).", "36. There has therefore been a violation of Article 6 § 1 of the Convention. II. COMPLAINT UNDER ARTICLE 6 § 1 CONCERNING THE LENGTH OF THE PROCEEDINGS 37. The applicant alleged that his case had not been examined within a “reasonable time” as required by Article 6 § 1 of the Convention, which provides: “In the determination of … any criminal charge against him, everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …” 38.", "The Court takes note of the applicant’s intention to make use of the remedy introduced by Law no. 87 of 1 July 2011 on compensation by the State for damage caused by the excessive length of proceedings or failure to execute a judicial decision. It observes that it has already considered this new remedy and found it to be effective (see Balan v. Moldova (dec.), no. 44746/08, 24 January 2012, and Manascurta v. Moldova (dec.), no. 31856/07, 14 February 2012).", "39. It follows that the applicant’s complaint that the length of the criminal proceedings was excessive is premature and must be rejected for failure to exhaust domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention. III. OTHER ALLEGED VIOLATIONS 40. Relying on Article 6 of the Convention, the applicant further complained that the proceedings had not been fair.", "In particular, he submitted that the courts had not examined all the evidence adduced. Relying on Article 6 § 3 (b), the applicant also alleged that the public prosecutor’s office had not complied with its legal obligation to conduct an objective examination of the evidence for and against the accused. 41. In the light of all the information in its possession, and to the extent that it has jurisdiction to consider the allegations put forward, the Court finds no appearance of a violation of the rights secured under Article 6 of the Convention. 42.", "Relying on Article 1 of Protocol No. 1, the applicant complained that some of the possessions that had been seized during the search of his home on 7 December 2000 had subsequently disappeared. 43. The Court observes, however, that the applicant has not brought any proceedings in the domestic courts to secure redress for the alleged disappearance of his possessions. 44.", "Accordingly, this part of the application must be rejected pursuant to Article 35 §§ 1, 3 and 4 of the Convention. IV. 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 EUR 30,000 in respect of non-pecuniary damage. 47. The Government submitted that there was no causal link between the alleged violation and the non-pecuniary damage claimed. As a subsidiary argument, they contended that the sum claimed was excessive. 48.", "The Court considers that the applicant necessarily sustained non-pecuniary damage, particularly on account of the acceptance of the public prosecutor’s appeal out of time and the quashing of the final judgment acquitting him. Nevertheless, it finds that the amount claimed by the applicant is excessive. Making its assessment on an equitable basis, it finds it appropriate to award him EUR 3,600 in respect of non-pecuniary damage. B. Costs and expenses 49.", "The applicant also claimed EUR 2,000 for costs and expenses incurred before the Court. Under the contract signed with his lawyer, the applicant was required to pay a specified amount to the latter should the application to the Court be successful. The amount consisted of the lawyer’s fees for thirty hours’ work at an hourly rate of EUR 70. 50. The Government contended that the number of hours claimed was excessive.", "Above all, they emphasised that the fees for the five hours that the lawyer claimed to have spent “drafting and lodging the application” were unjustified, because the lawyer had not intervened in the proceedings until after the Government had been given notice of the application. 51. According to the Court’s settled case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and are also reasonable as to quantum (see, among other authorities, Konstantin Markin v. Russia [GC], no. 30078/06, § 171, ECHR 2012 (extracts)). 52.", "In the present case, having regard to the documents in its possession and the fact that the applicant’s lawyer did indeed intervene in the proceedings before the Court after the Government had been given notice of the application, the Court considers it reasonable to award the applicant EUR 1,000 under this head. C. Default interest 60. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible as regards the complaints under Article 6 § 1 concerning the acceptance of the public prosecutor’s appeal out of time and inadmissible as to the remaining complaints; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 3,600 (three thousand six 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 French, and notified in writing on 26 June 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident" ]

[ "FOURTH SECTION CASE OF FAZIA ALI v. THE UNITED KINGDOM (Application no. 40378/10) JUDGMENT STRASBOURG 20 October 2015 FINAL 20/01/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Fazia Ali v. the United Kingdom, 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,Faris Vehabović,Yonko Grozev, judges,and Françoise Elens-Passos, 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.", "40378/10) 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 Fazia Ali (“the applicant”), on 15 July 2010. 2. The applicant was born in 1980 and lives in Birmingham. She is represented before the Court by Mr M. McIlvaney of the Community Law Partnership, a solicitor practising in Birmingham. 3.", "The United Kingdom Government (“the Government”) were represented by their Agent, Ms R. Tomlinson of the Foreign and Commonwealth Office. 4. On 7 November 2012 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant, a parent of two young children, is a homeless person in priority need of accommodation within the meaning of Part VII of the Housing Act 1996 (“the 1996 Act”). 6. Birmingham City Council (“the Council”) is a local housing authority within the meaning of the 1996 Act and is required, under Part VII of that Act, to perform statutory functions in relation to homeless persons in its area. 7. The applicant applied as a homeless person to Birmingham City Council for assistance in October 2006.", "By letter dated 7 November 2006 the Council determined that the applicant was homeless, eligible for assistance, in priority need and not intentionally homeless. The authority therefore accepted that it owed the applicant the “main housing duty” to provide accommodation to her and her family. On 8 November 2006 the authority made the applicant an offer of accommodation which she refused because she was unhappy with the location. The authority told the applicant that in its view the accommodation was suitable but following a review of that decision, which was determined in the applicant’s favour, they agreed to make her another offer. 8.", "On 14 March 2007 a Housing Officer informed the applicant by telephone that another offer was being made, that a viewing had been arranged and that a letter would follow. The authority claims that on that same day a written offer of accommodation at 16 Bromford Lane, Birmingham was sent to the applicant. That letter contained a statement to the effect that if the applicant refused the offer without good cause the authority would consider that it had discharged its duty to her under Part VII of the 1996 Act. However, the applicant denied receiving the letter; instead, she claimed that she had to telephone the housing office to obtain the address and arrange the viewing appointment. She viewed the property on 19 March 2007 but declined the offer as she was not happy with the condition of the communal area.", "9. By letter dated 21 March 2007 the Council notified the applicant that, by reason of her rejection of its offer, pursuant to section 193 of the Housing Act its duty to her under Part VII of the 1996 Act had been discharged. By letter dated 29 March 2007 the applicant notified the Council that she had not received an offer in writing and requested that the Council review its decision. 10. While the applicant’s case was pending before the review panel, a further offer of accommodation was made to her pursuant to a different scheme, namely the scheme for the provision of housing accommodation under Part VI of the 1996 Act.", "She did not accept this offer. 11. On 1 May 2007 a Homelessness Review Officer employed by the Council conducted a telephone interview with the applicant to establish her reasons for refusing the offer of accommodation at 16 Bromford Lane. The Officer claimed that in the course of this conversation the applicant accepted that she had in fact received the offer letter but refused the offer of accommodation because there was no lift and the entrance to the property was dirty, which could put her youngest son’s health at risk. However, the applicant claims that at the time she had thought she was being questioned about the subsequent offer of accommodation, in respect of which she did not deny having received a letter.", "12. By letter dated 2 May 2007 the Homelessness Review Officer upheld the decision that the applicant’s refusal of the offer of accommodation had discharged the Council’s main housing duty to her under section 193(2) of the 1996 Act. In particular, the Officer found that the applicant had been sent an offer letter from the Council which complied with the mandatory requirements of section 193 of the 1996 Act prior to her refusal and there was no reason to believe that she had not received it. In any case, she noted that the applicant had not refused the accommodation because she had not received a written offer but because she did not consider the accommodation to be suitable for her family’s needs. 13.", "The applicant appealed to Birmingham County Court under section 204 of the 1996 Act, which allowed for an appeal on a point of law only. The jurisdiction exercised by the County Court under section 204 was that of judicial review. In her grounds of appeal the applicant claimed that the Council, in reaching its decision, had taken into account irrelevant considerations and/or acted under a fundamental mistake of fact; that the Council had acted unlawfully as it had failed to make adequate inquiries to enable it to reach a lawful decision; that its decision was one which no rational Council would have made; that it had fettered its discretion; and that it had acted in breach of natural justice. 14. The appeal was heard on 29 August 2007, on which date the judge noted that the only ground of appeal argued before him was that the letter of offer had failed to arrive.", "The applicant submitted that the County Court should hear evidence on the matter so that it could determine it for itself. However, although the judge accepted that the Homelessness Review Officer was not an independent or impartial tribunal, he found that the decision whether or not the letter had been received was properly and fairly to be made by her and he declined to hear evidence on the point. Although it was not specifically stated in the correspondence between the Council and the applicant, the judge appeared to consider whether or not the Council had discharged its duty under section 193(7) (see paragraph 25 below). 15. The applicant subsequently appealed to the Court of Appeal and then to the Supreme Court.", "At each level, the grounds of appeal were that the decision taken by the Council’s Homelessness Review Officer had constituted a determination of the applicant’s civil rights for the purposes of Article 6 § 1 of the Convention; that the Officer had not been an independent or impartial tribunal as required by Article 6 § 1; that the decision of the Officer had turned on the resolution of a simple question of disputed primary fact, involving no application of specialist knowledge; that pursuant to Tsfayo v. the United Kingdom, no. 60860/00, 14 November 2006, Article 6 § 1 required that the applicant be able to appeal that simple factual determination; and, alternatively, that the restriction of all statutory appeals to points of law, no matter what the nature of the decision, was incompatible with Article 6 § 1. 16. Both the Court of Appeal and the Supreme Court decision on the applicant’s appeal followed the decision of the House of Lords in Runa Begum v. London Borough of Tower Hamlets [2003] UKHL 5. In Runa Begum the House of Lords found that judicial review of a Homelessness Review Officer’s decision that a claimant had been unreasonable in rejecting the accommodation offered to her provided “sufficiency of review” for the purposes of Article 6 § 1.", "The House of Lords stressed that although the Officer had been called upon to resolve some disputed factual issues, these findings of fact were “only staging posts on the way to the much broader judgments” concerning local conditions and the availability of alternative accommodation, which the Officer had the specialist knowledge and experience to make. Although the Officer could not be regarded as independent, since she was employed by the Council which had made the offer of accommodation which the claimant had rejected, statutory regulations provided substantial safeguards to ensure that the review would be independently and fairly conducted, free from improper external influences. Any significant departure from the procedural rules would have afforded a ground of appeal. 17. The applicant submitted that the present case could be distinguished from that of Runa Begum because it concerned the simple question of a finding of primary fact rather than an evaluative judgment, such as a qualitative assessment of “suitability”.", "A. The judgment of the Court of Appeal 18. On 7 November 2008 the Court of Appeal dismissed the applicant’s appeal. In doing so, it proceeded on the assumption that the case involved the determination of the applicant’s civil rights for the purposes of Article 6 § 1 of the Convention. In relation to the question whether the decision of the Homelessness Review Officer had turned on the resolution of a simple question of primary fact, or whether it required the application of specialist knowledge, Thomas LJ stated that: “i) It is far from easy to draw the distinction advanced in practice.", "A finding of suitability is itself a finding based on conclusions of primary fact ... ii) There would be considerable complexity in administering a scheme with these distinctions. A scheme which enabled certain factual issues to be subject to a full right of appeal and others which would not be so subject would be too uncertain and too complex ... iii) ... [I]f the extent of the review by the court was determined by the answer to the questions of whether a finding of fact was a primary finding, or whether that finding required expertise or whether that finding was determinative, the room for argument and uncertainty would be considerable ... .... v) The additional review which would be provided by the suggested full right of appeal on fact would not in practice be very wide ... vi) The full right of appeal sought from a review officer on fact might have to be significantly different from an appeal from a court ... the procedure adopted by the reviewing officer in reaching findings of fact is informal and there are no transcripts of evidence. .... viii) There would therefore clearly be significant implications for not only the statutory scheme but for the court and tribunal system, if this court were to hold that a full right of appeal was required on findings of primary fact or on issues of primary fact where the finding was determinative ... The statutory scheme for housing and the statutory scheme for the method of appeals in respect of courts and tribunals are determined by Parliament; funds are provided for their finance by Parliament ... ix) The present scope of the appeal provides a real measure of protection for homeless appellants. It is clear from the careful judgments of Judge MacDuff QC and Judge McKenna that both considered that the housing authority had fairly treated both appellants in cases where the determinative issue was a question of fact.", "This conclusion reinforces the view I have expressed that the review by the County Court in cases of this kind was sufficient and that there is no reason to attempt to find that it is outside the scope of the decision in Runa Begum. It demonstrates, as Lord Bingham observed at paragraph 11, that the scheme properly operated should ensure fair treatment. I consider that it does whether the decision turns on a simple issue of primary fact or a conclusion of fact based on primary facts (such as a conclusion on suitability).” 19. Thomas LJ therefore concluded that the decision of the House of Lords in Runa Begum applied to all County Court appeals under section 204 of the 1996 Act, no matter whether the decision turned on a simple issue of primary fact or not. He further held that the decision in Tsfayo, which concerned the housing benefit scheme, did not affect appeals brought in homelessness cases: “34.", "... In the first place the Strasbourg Court relied on the decision in Runa Begum in reaching its conclusion and said nothing that cast doubt on the correctness of the decision. Secondly, the decisions in Runa Begum and Tsfayo each turned on a careful examination of the whole of the statutory scheme relevant to the particular case. Thirdly, it is apparent from the details of the scheme considered in Tsfayo that whereas in the case of prospective benefit, central government reimbursed the local authority 95% of what it was required to pay, it only reimbursed 50% of backdated awards (see paragraph 19 of the decision); this fact had been heavily relied upon in argument (see paragraph 37 of the decision) for the powerful contention that the hearing had taken place before a tribunal consisting of members of an authority which would be required to pay 50% of the benefit if it made an award in the applicant’s favour; the HBRB was not independent of the parties. Finally when the housing benefits scheme was looked upon as a whole, it was readily apparent that a conclusion could be reached, in contradistinction to the scheme under Part VII of the Housing Act, that the particular scheme was not compliant with Article 6.1.” B.", "The judgment of the Supreme Court 20. On 17 February 2010 the Supreme Court dismissed the applicant’s appeal, finding that the determination by the Council, that its duty to secure accommodation for the applicant had ceased, was not a determination of her civil rights within the meaning of Article 6. Lord Hope of Craighead with whom Baroness Hale and Lord Brown agreed, stated that: “... I would be prepared now to hold that cases where the award of services or benefits in kind is not an individual right of which the applicant can consider himself the holder, but is dependent upon a series of evaluative judgments by the provider as to whether the statutory criteria are satisfied and how the need for it ought to be met, do not engage article 6(1). In my opinion they do not give rise to ‘civil rights’ within the autonomous meaning that is given to that expression for the purposes of that article.” 21.", "In supporting that conclusion Lord Hope looked to what the relevant provisions within Part VII of the 1996 Act were intended to achieve. He observed that: “... It provides a right to assistance if the relevant conditions are satisfied. But this is not a pecuniary right, nor is the benefit that is to be provided defined by the application of specific rules laid down by the statute. Even where the full homelessness duty arises under section 193, the content of the statutory duty lacks precise definition.", "There is no private law analogy. The duty is expressed in broad terms – to secure that ‘accommodation is available’ – which leaves much to the discretionary administrative judgment of the authority.” 22. He continued, following a review of the jurisprudence of the Court, by noting that: “43. There are however ... a number of straws in the wind since Runa Begum that suggest that a distinction can indeed be made between the class of social security and welfare benefits that are of the kind exemplified by Salesi v Italy whose substance the domestic law defines precisely and those benefits which are, in their essence, dependent upon the exercise of judgment by the relevant authority ...” 23. Later in his judgment, Lord Hope, for completeness, set out some observations on whether the scheme of decision-making was Article 6‑compliant.", "He commented that the possibility, foreshadowed in argument, of separating simple, formal questions of “gateway” facts, such as the letter issue, from the expert assessment of suitability would needlessly complicate a scheme which was designed to be simple to administer. 24. The court went on to observe that the fact that a County Court did not have a full fact-finding jurisdiction when hearing an appeal under section 204 of the 1996 Act did not mean that the applicant was deprived of what was required to satisfy the guarantees of Article 6 of the Convention. In this connection, Lord Hope said this: “54. ... For ease of administration the review is entrusted to a single officer who is equipped to deal with issues as to the suitability of the accommodation that has been declined.", "An answer to the question whether or not the letters were received was incidental to a more searching and judgmental inquiry into the accommodation’s suitability. ... These cases are quite different from Tsfayo, where no broad questions requiring professional knowledge or experience had to be addressed once the question whether there was good cause had been answered. In these circumstances I would hold that the ratio of the decision in Runa Begum should be applied and that the absence of a full fact-finding jurisdiction in the court to which an appeal lies under section 204 does not deprive it of what it needs to satisfy the requirements of article 6(1).” 25. Unlike the County Court, the Supreme Court appeared to consider whether or not the Council had discharged its duty to the applicant under section 193(5); however, it appeared to accept that a formal letter of offer was required by that subsection.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Housing Act 1996 26. Section 193 in Part VII of the Housing Act 1996 (“the 1996 Act”), as amended by the Homelessness Act 2002 (“the 2002 Act”), which deals with the duty on local authorities to persons with priority need who are not homeless intentionally, provides as follows: “(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.... (2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant. (3) The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section.", "... (5) The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section. ... (7) The local housing authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation refuses a final offer under Part 6. (7A) An offer of accommodation under Part 6 is a final offer for the purposes of subsection (7) if it is made in writing and states that it is a final offer for the purposes of subsection (7).” 27. Section 202(1), as amended by the 2002 Act, entitles an applicant to request a review of the decision of council under Part VII of the 1996 Act. 28.", "The Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (SI 1999/71) provide that the officer shall be someone who was not involved in the original decision and who is senior to the officer who made the original decision. The reviewer is required to consider any representations made to him. If he considers that there is a deficiency or irregularity in the original decision, or the manner in which it was made, but is minded nevertheless to make a decision which is against the interests of the applicant on one or more issues, he must notify the applicant that he is so minded and the reasons why he is of that view in order that the applicant, or someone on their behalf, may make representations. 29. Section 204(1) of the 1996 Act provides that, if an applicant is dissatisfied with the decision on review, he may appeal to the County Court on any point of law arising from the decision or, as the case may be, the original decision.", "No provision is made for an appeal against the facts found by the homelessness review officer. 30. Pursuant to section 206(1), the council may discharge its functions under Part VII in one of the following three ways: (a) by securing that suitable accommodation provided by them is available to the applicant; (b) by securing that the applicant obtains suitable accommodation from some other person; or (c) by giving the applicant such advice and assistance as will secure that suitable accommodation is available from some other person. B. Judicial consideration of Part VII of the Housing Act 1996 1.", "Adan v. Newham London Borough Council [2002] 1 WLR 306 31. In Adan v. Newham London Borough Council the Council had decided that an applicant for Part VII accommodation was ineligible because she was not habitually resident in the United Kingdom. The Homelessness Review Officer confirmed the decision and the applicant appealed to the County Court. The judge allowed the appeal on the ground of irrationality. The Council’s decision was quashed and the matter remitted to it for a fresh review.", "However, the judge was concerned that the Council, when conducting the fresh review, should not infringe the applicant’s right under Article 6 to have her civil rights determined by an “independent and impartial tribunal established by law”. He therefore directed that the review should be conducted by a different officer who, in respect of independence and impartiality, complied with Article 6. 32. The Court of Appeal set aside the judge’s direction on the ground that he had no jurisdiction to make the order. However, having allowed the appeal on that ground, the court went on, in an extended obiter dictum, to consider the effect of Article 6 on decisions under Part VII.", "In doing so, it proceeded on the assumption that the Council’s decision had determined a “civil right”. In this regard, Hale LJ opined that the right to accommodation under section 193 “is more akin to a claim for social security benefits than it is a claim for social or other services, where the authorities have a greater degree of discretion and resource considerations may also be relevant”. 33. In respect of the question whether the original Homelessness Review Officer, employed by the Council, was an independent and impartial tribunal, it was conceded that he was not. The third question was whether, notwithstanding the lack of independence of the Officer, the composite procedure of his decision subject to an appeal on law to an independent County Court was sufficient to satisfy Article 6.", "34. The Court of Appeal considered that in practice the composite procedure would in most cases be sufficient. It would not, however, be adequate if the Homelessness Review Officers had to “resolve a dispute of fact which [was] material to the decision”. 2. Runa Begum v. London Borough of Tower Hamlets [2003] UKHL 5 35.", "In the case of Runa Begum v. London Borough of Tower Hamlets, in which the contested questions of fact went to the larger issue of the “suitability” of the accommodation offered, the House of Lords considered whether the review mechanism under section 202 of the 1996 Act complied with Article 6 of the Convention. 36. Their Lordships accepted that the Homelessness Review Officer was not independent of the Council. Lord Hoffmann of Chedworth, giving the leading opinion, concluded that: “50. ...", "It seems to me sufficient to say that in the case of the normal Part VII decision, engaging no human rights other than article 6, conventional judicial review such as the Strasbourg court considered in the Bryan case (1995) 21 EHRR 342 is sufficient. ... 52. In this case the subject matter of the decision was the suitability of accommodation for occupation by Runa Begum; the kind of decision which the Strasbourg court has on several occasions called a ‘classic exercise of an administrative discretion’. The manner in which the decision was arrived at was by the review process, at a senior level in the authority’s administration and subject to rules designed to promote fair decision-making.... ... 56. The key phrases in the judgments of the Strasbourg court which describe the cases in which a limited review of the facts is sufficient are ‘specialised areas of the law’ (Bryan’s case, at p 361, para 47) and ‘classic exercise of administrative discretion’ (Kingsley’s case, at p 302, para 53).", "... It seems to me that what the court had in mind was those areas of the law such as regulatory and welfare schemes in which decision-making is customarily entrusted to administrators. And when the court in Kingsley spoke of the classic exercise of administrative discretion, it was referring to the ultimate decision as to whether Kingsley was a fit and proper person and not to the particular findings of fact which had to be made on the way to arriving at that decision. In the same way, the decision as to whether the accommodation was suitable for Runa Begum was a classic exercise of administrative discretion, even though it involved preliminary findings of fact. ... 59.", "... In my opinion the question is whether, consistently with the rule of law and constitutional propriety, the relevant decision-making powers may be entrusted to administrators. If so, it does not matter that there are many or few occasions on which they need to make findings of fact.” 37. While not relevant to the disposal of the appeal, Lord Millett of St Marylebone in the City of Westminster, without expressing a settled decision, set out some thoughts in connection with the issue of whether Runa Begum’s case involved the determination of a “civil right”. He made the observation that the case-law of the Court, as it related to social security, was still in a process of development.", "At paragraph 91, he noted the significant differences between the case of Runa Begum and previous decisions of the Court: “The present case undoubtedly goes further still. It has four features which take it beyond the existing case law: (i) it is concerned with a benefit in kind; (ii) it therefore involves priority between competing claimants. There is only a finite amount of housing stock, whether it belongs to the local housing authority or is bought in; and if one applicant is allowed to remain on the unintentionally homeless register it will be to the detriment of other homeless persons; (iii) the housing authority has a discretion as to the manner in which it will discharge its duties; and (iv) ultimately the question for determination calls for an exercise of judgment: whether the applicant has behaved reasonably in refusing an offer of accommodation, having regard to all the circumstances, and in particular housing conditions in the area. ... 93. It is not difficult to conclude that the nature of the dispute in her case makes it inappropriate for determination by the ordinary judicial process.", "But it is more difficult, at least in principle, to justify withdrawing it from the protection of Article 6(1)....” C. Judicial consideration of “full jurisdiction” under Article 6 38. The leading domestic decision on this concept is that of the House of Lords in R (Wright and Others) v. Secretary of State for Health [2009] UKHL 3. Baroness Hale of Richmond fully and concisely summarises the state of the law at paragraph 23: “It is a well-known principle that decisions which determine civil rights and obligations may be made by the administrative authorities, provided that there is then access to an independent and impartial tribunal which exercises ‘full jurisdiction’: Bryan v United Kingdom (1995) 21 EHRR 342. ... It does not always require access to a court or tribunal even for the determination of disputed issues of fact.", "Much depends upon the subject-matter of the decision and the quality of the initial decision-making process. If there is a ‘classic exercise of administrative discretion’, even though determinative of civil rights and obligations, and there are a number of safeguards to ensure that the procedure is in fact both fair and impartial, then judicial review may be adequate to supply the necessary access to a court, even if there is no jurisdiction to examine the factual merits of the case.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 39. The applicant complains that her inability to appeal to an independent and impartial tribunal in respect of the relevant factual finding amounted to a violation 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 an independent and impartial tribunal established by law.” 40. The Government contested that argument.", "A. Admissibility 41. 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. Applicability of Article 6 § 1 (a) The applicant’s submissions 42. The applicant submitted that the determination of her entitlement to accommodation under Part VII of the 1996 Act was a determination of a civil right for the purposes of Article 6 § 1 of the Convention. 43. In this regard, she argued that there had been a determination of a civil right because once the qualifying conditions were met, the Council’s duty under section 193 of the 1996 Act was mandatory, not discretionary.", "As such, there was a legally enforceable entitlement on her part to be provided with subsidised public housing which derived from a specific statutory scheme under Part VII of the 1996 Act. Moreover, the applicant was affected by the Council’s determination in a personal, individual and private capacity. As a homeless person in priority need of accommodation, the right to accommodation was critically important – and of direct economic benefit – to her. 44. The applicant noted that for a particular right to amount to a “civil right”, it was sufficient for it to be an individual, economic right flowing from specific rules laid down in a statute (see, for example, Salesi v. Italy, 26 February 1993, § 19, Series A no.", "257‑E). It was well-established that the right to social security or welfare benefit was a civil right (see, for example, Tsfayo v. the United Kingdom, cited above, § 40, Feldbrugge v. the Netherlands, 29 May 1986, Series A no. 99, Deumeland v. Germany, 29 May 1986, Series A no. 100 and Schuler-Zgraggen v. Switzerland, 24 June 1993, Series A no. 263) and the fact that section 193 provided for a right to accommodation rather than any financial payment or subsidy should not alter the established position.", "The applicant submitted that it would be irrational to distinguish between housing benefit, which falls within Article 6, and the even more fundamental right to housing on the basis that the latter was a benefit in kind. 45. The applicant further argued that the Court had previously found a right to accommodation to be a civil right (see, for example, Teteriny v. Russia, no. 11931/03, §§ 5 – 7 and 41 – 144, 30 June 2005, Shpakovskiy v. Russia, no. 41307/02, §§ 5 – 9 and 28 – 31, 7 July 2005, Tarasov v. Russia, no.", "13910/04, §§ 5 and 20 – 23, 28 September 2006, Sypchenko v. Russia, no. 38368/04, §§ 6 – 14 and 36 – 45, 1 March 2007 and Nagovitsyn v. Russia, no. 6859/02, §§ 5, 15 – 22, 42 – 45 and 51 – 58, 24 January 2008). 46. Finally, the applicant challenged the Supreme Court’s conclusion that the right was not a “civil right” on the following grounds: first, that the mere fact that evaluative judgments were required in reaching a decision did not take the case outside of Article 6 § 1; secondly, the fact that there was discretion as to how and what accommodation was provided did not affect the substance of the right but rather related to the performance of the right; thirdly, the fact that there were a number of hurdles that had to be overcome (eligibility, priority need and intentionality) which might involve an evaluative judgment in no way detracted from the fact that once those hurdles had been overcome, there was a discrete right to accommodation in existence which was a civil right and which continued until the Council’s duty was discharged in one of the ways outlined in section 206 of the 1996 Act.", "(b) The Government’s submissions 47. The Government submitted that in the present case there was no “civil right” for the purposes of Article 6 § 1 because the Court had limited its interpretation of “civil rights” to rights which were related to individual economic rights enforceable through the courts; any “right” under section 193 of the 1996 Act was subject to a large number of judgmental decisions by the Council as to whether it arose; the duty on the Council under section 193 was merely to “secure that accommodation is available” and therefore further judgment had to be exercised in order to determine how that “right” should be delivered; and the subject matter of the duty or “benefit” was “in kind” and was subject to a range of judgmental issues such as the size and nature of the accommodation, its location and its tenure. 48. In particular, the Government argued that this Court had always stopped short of recognising that a right to non-contributory welfare benefits in kind amounted to a “civil right”. In fact, in each case in which non-contributory welfare benefits had been recognised as falling within the scope of Article 6 § 1, the critical feature was that the applicant had “suffered an interference with her means of subsistence and was claiming an individual, economic right flowing from specific rules laid down in a statute” (see, for example, Salesi v. Italy, cited above, § 19).", "In so far as the Court in Tsfayo had found that a non-contributory housing benefit gave rise to a civil right, it went no further than the principle in Salesi. 49. In relation to benefits in kind, the Government submitted that there was normally no readily identifiable and specific benefit to which an individual could be said to have a pre-existing right. Thus, in the present case the applicant only had a general right to be housed; she could not point to a specific property to which she had any right. This was in contrast to the provision of a financial benefit, where both the entitlement and the amount were determined by a clear set of conditions.", "50. The Government further submitted that the determination of any right under section 193 involved a series of evaluative judgments both in terms of whether the criteria for entitlement were met and, once the Council had decided that such a duty was owed, a further judgment had to be made as to how it was to be met. A decision-making process with a series of judgments, including as to the very nature of the benefit to be given, militated strongly against there being a “civil right” and was quite different from any of the situations found by the Court to have given rise to “civil rights” (see, for example, Mennitto v. Italy [GC], no. 33804/96, §§ 25 and 27, ECHR 2000‑X and Wos v. Poland (dec.), no. 22860/02, ECHR 2005‑IV).", "51. The Government contended that the Russian cases relied on by the applicant as authority for the proposition that Article 6 § 1 could be engaged where there was a right to social housing all concerned the enforceability of judgments made by the courts in respect of that housing. The Court had not considered the nature of the right in issue; instead, it had focused on the difficulties with enforcing the domestic courts’ judgments. Thus, there was no consideration of whether a duty to provide social housing itself would engage Article 6 § 1 and whether the case-law in Salesi should be extended so far. 52.", "Finally, the Government noted that in Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, ECHR 2006‑VI the Court found that there had to be an “assertable” right for Article 1 of Protocol No. 1 to be engaged. One of its reasons for finding that non-contributory benefits did fall within Article 1 of Protocol No. 1 was the fact that, under the Court’s existing case-law, such benefits would fall within the ambit of Article 6 § 1.", "Thus, the Grand Chamber had recognised that it was important for the clarity and consistency of the approach of the Court that the tests for engagement of Article 6 § 1 and Article 1 of Protocol No. 1 remain on the same or closely related analysis. If the Court were to find that there was a “civil right” in the present case, rights under Article 6 § 1 and Article 1 of Protocol No. 1 would be out of step. (c) The Court’s assessment (i) General principles 53.", "The Court reiterates that for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute (“contestation” in the French text) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is protected under the Convention. The dispute must be genuine and serious; it may relate to the actual existence of a right in the first place as well as to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, among other authorities, Micallef v. Malta [GC], no. 17056/06, § 74, 15 October 2009). Lastly, the right must be a “civil right” (Mennitto v. Italy [GC], no. 33804/96, § 23, ECHR 2000‑X).", "54. Article 6 § 1 does not guarantee any particular content for civil “rights and obligations” in the substantive law of the Contracting States: the Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see, for example, Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no. 294‑B, and Roche v. the United Kingdom [GC], no. 32555/96, § 119, ECHR 2005‑X). The starting-point must be the provisions of the relevant domestic law and their interpretation by the domestic courts (see Masson and Van Zon v. the Netherlands, 28 September 1995, § 49, Series A no.", "327-A, and Roche, cited above, § 120). This Court would need strong reasons to differ from the conclusions reached by the superior national courts by finding, contrary to their view, that there was arguably a right recognised by domestic law (ibid.). 55. In carrying out this assessment, it is necessary to look beyond the appearances and the language used and to concentrate on the realities of the situation (see Van Droogenbroeck v. Belgium, 24 June 1982, § 38, Series A no. 50; Roche, cited above, § 121; and Boulois v. Luxembourg [GC], no.", "37575/04, § 92, 3 April 2012). (ii) Application of the general principles to the facts of the present case 56. In the case of Runa Begum the House of Lords accepted that section 193(2) of the 1996 Act imposed a duty on the Council to secure that accommodation was available for occupation by Ms Begum. Thus, a duty was owed which was enforceable by Ms Begum and which related to a matter of acute concern for her. In the present case the Council acknowledged in its letter of 7 November 2006 to the applicant that it owed her the “main housing duty” to provide accommodation to her and her family (see paragraph 7 above).", "The Government also accept that she had a general right to be housed (see paragraph 48 above), although the applicant could not point to any property to which she had any right. 57. The Court is satisfied that in the present case the applicant had a legally enforceable right by virtue of section 193 of Part VII of the 1996 Act to be provided with accommodation, albeit that this was a right that could cease to exist in certain conditions (see paragraph 25 above). Moreover, the court proceedings in question clearly concerned a “dispute” over the continuing existence, if not the content, of that right; the dispute was genuine and serious; and the result of the proceedings was directly decisive for the right in question. It therefore falls to the Court to decide whether or not the right in question was a “civil right” for the purposes of Article 6 § 1 of the Convention.", "58. It is now well-established that disputes over entitlement to social security or welfare benefits generally fall within the scope of Article 6 § 1 of the Convention (see, for example, Tsfayo v. the United Kingdom, cited above, § 40, Feldbrugge v. the Netherlands, 29 May 1986, Series A no. 99, Deumeland v. Germany, 29 May 1986, Series A no. 100 and Schuler‑Zgraggen v. Switzerland, 24 June 1993, Series A no. 263).", "The Court has even recognised a right to a non-contributory welfare benefit as a civil right (see, for example, Salesi v. Italy, cited above, § 19, and Tsfayo v. the United Kingdom, cited above, § 40). However, the present case differs from previous cases concerning welfare assistance, as the assistance to be provided under section 193 of the 1996 Act not only was conditional but could not be precisely defined (compare, for example, Tsfayo, in which the dispute concerned a fixed financial amount of housing benefit). It concerns, as the Government noted, a “benefit in kind” and the Court must therefore consider whether a statutory entitlement to such a benefit may be a “civil right” for the purposes of Article 6 § 1. In this regard, the Court agrees with the Government that the Russian authorities relied upon by the applicant are of little assistance as they concerned the enforceability of pre-existing domestic judgments on the right to housing and, as such, no consideration was given to the question before the Court in the present case. 59.", "It is true that accommodation is a “benefit in kind” and that both the applicant’s entitlement to it and the subsequent implementation in practice of that entitlement by the Council were subject to an exercise of discretion. Nonetheless, the Court is not persuaded that all or any of these factors necessarily militate against recognition of such an entitlement as a “civil right”. For example, in Schuler-Zgraggen v. Switzerland, 24 June 1993, Series A no. 263, in which the applicant’s entitlement to an invalidity pension depended upon a finding that she was at least 66.66% incapacitated, the Court accepted that Article 6 § 1 applied. In any case, the “discretion” in the present case had clearly defined limits: once the initial qualifying conditions under section 193(1) had been met, pursuant to section 206(1) the Council was required to secure that accommodation was provided by one of three means, namely by providing accommodation itself; by ensuring that the applicant was provided with accommodation by a third party; or by giving the applicant such advice and assistance to ensure that suitable accommodation was available from a third party.", "In this regard, the Court agrees with Hale LJ in Adan v. Newham London Borough Council, in which she opined that the right to accommodation under section 193 “is more akin to a claim for social security benefits than it is a claim for social or other services, where the authorities have a greater degree of discretion and resource considerations may also be relevant”. 60. In light of the above, as far as the applicability of Article 6 § 1 is concerned, the Court sees no convincing reason to distinguish between the applicant’s right to be provided with accommodation, as acknowledged by the Council in its letter of 7 November 2006 (see paragraph 7 above), and the right to housing benefit asserted by the applicant in Tsfayo. Article 6 § 1 therefore applies and, as such, the applicant had a right to a fair hearing before an independent and impartial tribunal. 2.", "Compliance with Article 6 § 1 (a) The applicant’s submissions 61. The applicant submitted that, on the simple facts of her case, the lack of a full merits review by an independent and impartial tribunal of the decision that she was no longer entitled to accommodation violated her rights under Article 6 § 1 of the Convention. 62. The applicant referred the Court to Runa Begum, in which the House of Lords held that a Homelessness Review Officer hearing a statutory appeal under section 202 of the 1996 Act was not an “independent and impartial tribunal” for the purposes of Article 6 § 1 of the Convention. The applicant submitted that this reasoning was entirely correct.", "63. The applicant accepted that the initial lack of independence and impartiality could be cured if the decision were subject to the control of a court or tribunal which had “full jurisdiction” to consider the case (see, for example, Albert and Le Compte v. Belgium, 10 February 1983, § 29 , Series A no. 58). In Runa Begum, the House of Lords had held that the decision of the Homelessness Review Officer was subject to the control of such a court. However, the applicant sought to distinguish that case on the ground that it was confined to decisions of the Homelessness Review Officer which related to suitability, or those which involved policy considerations and which required specialist expertise.", "Following Tsfayo, the applicant submitted that Article 6 § 1 required that the County Court have power to re-open findings of fact made by a Homelessness Review Officer. 64. In this regard, the applicant did not accept that the distinction between primary findings of fact and findings of fact which were merely ancillary or “staging posts” en route to a broader discretionary judgment was one which was likely to be difficult to draw in practice. 65. The applicant therefore submitted that the determination in her case was directly analogous to the decision considered in Tsfayo and, as such, her limited right of appeal to the County Court under section 204 of the 1996 Act – which she described as being limited to “irrationality” grounds - did not enable the court adequately to deal with the disputed factual issues.", "On the contrary, “irrationality” was such a high hurdle that the practical effect was that the applicant was stuck with whatever finding of fact was made by the Homelessness Review Officer. Consequently, the court had not possessed “full jurisdiction” for the purposes of Article 6 § 1 and could not cure the lack of independence and impartiality of the Homelessness Review Officer. (b) The Government’s submissions 66. The Government argued that the issues which arise under Article 6 § 1 need to be considered as a whole and different aspects of the right claimed should be balanced against each other. Therefore, if a wide approach is taken to the scope of Article 6 § 1, then a more flexible approach should be taken to the question of breach.", "67. The Government relied on the recent case of Sigma Radio Television Ltd v. Cyprus, nos. 32181/04 and 35122/05, 21 July 2011 as authority for the proposition that it is not the role of Article 6 § 1 to give access to a level of jurisdiction which can substitute its opinion for that of the administrative authorities; on the contrary, respect should be accorded to decisions taken by administrative authorities on grounds of “expediency” and which often involved specialised areas of law. 68. In deciding what level of judicial scrutiny is necessary to comply with Article 6 § 1, the Government argued that the Court should consider whether the right in question was on the margins of what would be a civil right; whether the issues to be decided were policy issues, pure questions of fact or questions which called for professional expertise; the degree to which those questions were appropriately ones for the administrative body rather than a court or tribunal; and whether or not the alleged breach was fundamental, either because of a complete denial of the right to make representations or a lack of independence.", "69. First, the Government argued that in the present case the right claimed emanated purely from public law and therefore had no impact on any private rights asserted. Further, it was one which involved a high level of evaluative judgment. In these circumstances the level of judicial scrutiny required should be lower. 70.", "Secondly, the Government asserted that the present case involved a decision whether or not the Council had an ongoing duty to provide housing, which was an exercise of administrative discretion involving professional expertise and experience. In this regard, the Government submitted that the question whether or not the applicant had received a letter was a staging post in the determination of whether or not the housing duty had been met. It was therefore one element in the overall consideration under section 193 of the 1996 Act. In Tsfayo, on the other hand, the decision as to “good cause” for the late claim was determinative. 71.", "Thirdly, it was unrealistic and unworkable in practice to distinguish between cases which concern a “primary fact” and those which raise issues of judgment. For example, questions about “suitability” and “intentional homelessness” may involve both disputes of fact and of judgment. Both types of question might arise at the outset or what starts out as a purely factual issue may quickly merge into arguments about judgment. In many, if not most, cases, such factual findings will be staging posts on the way to the final determination under Part VII of the 1996 Act. Thus, an appeal system which rested on drawing such distinctions would be likely to result in a large amount of litigation and argument simply about the nature of the appeal before the substantive issues were ever dealt with.", "72. Finally, the Government submitted that the alleged breach in the present case was not fundamental. Where a lack of independence or impartiality was alleged, it was necessary to look at the safeguards that existed to determine whether the lack of impartiality or independence had any real content. In this regard, there were a number of critical distinctions from the position in Tsfayo: the Homelessness Review Officers had professional expertise in the area of housing; they were employed under a contract of employment; and they had no democratic or financial responsibility for the Council. Hence, the critical factors which led to the Court finding a lack of impartiality in Tsfayo did not exist in the present case.", "73. Moreover, there were further procedural safeguards in the present case: the statute provided for an internal review of any decision; if carried out by Council officers it had to be by a more senior officer; and there was an appeal to the County Court on a point of law. (c) The Court’s assessment 74. The Court notes at the outset that the Homelessness Review Officer in the present case was an officer of the Council which was alleged to owe the duty to the applicant and, as such, her role was to conduct an internal review to determine the extent of the Council’s statutory obligations. Although there is no reason to doubt the Officer’s impartiality (compare, for example, the position in Tsfayo, where the members of the Housing Benefit Review Board had a direct financial interest in the outcome of the review), the Court does not consider that she can be regarded as an “independent tribunal” within the meaning of Article 6 § 1 of the Convention.", "Indeed, the Court recalls that this was the conclusion reached by the House of Lords in Runa Begum (see paragraph 36 above) and that conclusion was not in dispute before the domestic courts in the present case. 75. The Court recalls that even where an adjudicatory body determining disputes over “civil rights and obligations” does not comply with Article 6 § 1 in some respect, no violation of the Convention can be found if the proceedings before that body are subject to subsequent control by a judicial body that has “full jurisdiction” and does provide the guarantees of Article 6 § 1 (Albert and Le Compte v. Belgium, 10 February 1983, § 29, Series A no. 58 and Sigma Radio Television Ltd, cited above, § 151). 76.", "Both the Commission and the Court have acknowledged in their case-law that the requirement that a court or tribunal should have “full jurisdiction” (“pleine juridiction” in French) will be satisfied where it is found that the judicial body in question has exercised “sufficient jurisdiction” or provided “sufficient review” in the proceedings before it (see, amongst many authorities, Zumtobel v. Austria, 21 September 1993, §§ 31-32, Series A no. 268‑A; Bryan, cited above, §§ 43-47; Müller and others v. Austria (dec.), no. 26507/95, 23 November 1999; and Crompton v. the United Kingdom, no. 42509/05, §§ 71 and 79, 27 October 2009). 77.", "In adopting this approach the Convention organs have had regard to the fact that in administrative-law appeals in the Member States of the Council of Europe it is often the case that the scope of judicial review over the facts of a case is limited and that it is the nature of review proceedings that the reviewing authority reviews the previous proceedings rather than taking factual decisions. It can be derived from the relevant case-law that it is not the role of Article 6 of the Convention to give access to a level of jurisdiction which can substitute its opinion for that of the administrative authorities. In this regard, particular emphasis has been placed on the respect which must be accorded to decisions taken by the administrative authorities on grounds of “expediency” and which often involve specialised areas of law (for example, planning – Zumtobel, §§ 31 and 32, and Bryan, § 47, both cited above; environmental protection – Alatulkkila and Others v. Finland, no. 33538/96, § 52, 28 July 2005; regulation of gaming – Kingsley v. the United Kingdom [GC], no. 35605/97, § 32, ECHR 2002-IV).", "78. As has been explained in previous case-law (for example, Sigma Radio Television Ltd, cited above, § 154), in assessing the sufficiency of a judicial review available to an applicant, the Court will have regard to the powers of the judicial body in question (see for example, Gradinger v. Austria, 23 October 1995, § 44, Series A no. 328‑C; Bryan, §§ 44-45, cited above; Potocka and Others v. Poland, no. 33776/96, § 55, ECHR 2001‑X; and Kingsley, § 32, cited above), and to such factors as (a) the subject‑matter of the decision appealed against, in particular, whether or not it concerned a specialised issue requiring professional knowledge or experience and whether it involved the exercise of administrative discretion and if so, to what extent; (b) the manner in which that decision was arrived at, in particular, the procedural guarantees available in the proceedings before the adjudicatory body; and (c) the content of the dispute, including the desired and actual grounds of appeal (see, inter alia, Bryan, §§ 44, 45 and 47, and Crompton §§ 71 – 73 and 77, both cited above). 79.", "It is therefore necessary for the Court to examine the whole of the legislative scheme in question, including the safeguards offered to individual claimants, in order to determine whether the procedure provided for resolution of disputes over the “civil rights and obligations” thereby created is compliant with Article 6 § 1; including, in particular, for the purposes of the present case, whether the adjudicatory process by which the applicant’s “civil rights” were “determined”, taken as a whole, provided a due enquiry into the facts. 80. In the present case the Homelessness Review Officer conducted the enquiry into the facts. However, the Court does not consider this enquiry to have been a purely factual one as the Officer was tasked with determining whether or not there were legal grounds for holding that the Council had discharged its duty to the applicant under Part VII of the 1996 Act. 81.", "The Court is satisfied that there existed sufficient factual grounds for the Officer to conclude that the applicant had received a letter of offer that complied with the mandatory requirements of section 193 of the 1996 Act (see paragraph 12 above). In any case, on the facts of the present case the Court notes that there is no question of any injustice or unfairness as it is clear that, even if the applicant did not receive the disputed letter, she had been well aware of the offer of accommodation, had viewed the property and had turned it down for reasons wholly unrelated to the Council’s alleged failure to issue her with a formal written offer (see paragraphs 8 and 11-12 above). Moreover, the applicant subsequently refused yet a further offer of accommodation made by the Council under another part of the 1996 Act (see paragraph 10 above). 82. Furthermore, the enquiry before the Homelessness Review Officer was accompanied by a number of significant procedural safeguards.", "Thus, the Officer was required to be senior in rank to the original decision-maker; the Officer could not have been involved in the original decision; the applicant was entitled to make representations, which the Officer was obliged to consider; the applicant was entitled to be represented; the Officer was required to give reasons for any decision adverse to the applicant; and the applicant had to be informed of her right of appeal to the County Court. 83. Although the County Court did not have jurisdiction to conduct a full rehearing of the facts, the appeal available to the applicant did permit it to carry out a certain review of both the facts and the procedure by which the factual findings of the Officer were arrived at. In particular, the applicant could – and initially did – argue that in reaching the decision the Officer had taken into account irrelevant considerations and/or acted under a fundamental mistake of fact; that the Council had failed to make adequate inquiries to enable it to reach a lawful decision; that the decision was one which no rational Council could have made; that it fettered its discretion; and that it acted in breach of natural justice (see paragraph 13 above). 84.", "In considering whether the legislative scheme, taken as a whole, provided a due enquiry into the facts, the Court must also have regard to the nature and purpose of that scheme. Indeed, in relation to administrative-law appeals, the question whether the scope of judicial review afforded was “sufficient” may depend not only on the discretionary or technical nature of the subject‑matter of the decision appealed against and the particular issue that the applicant wishes to ventilate before the courts as being the central issue for him or her, but also, more generally, on the nature of the “civil rights and obligations” at stake and the nature of the policy objective pursued by the underlying domestic law. 85. The scheme at issue in the present case was designed to provide housing to homeless persons. It was therefore a legislative welfare scheme covering a multitude of small cases and intended to bring as great a benefit as possible to needy persons in an economical and fair manner.", "The Court considers that with regard to the “determination” of rights and obligations deriving from such a social welfare scheme, when due enquiry into the facts has already been conducted at the administrative adjudicatory stage, Article 6 § 1 of the Convention cannot be read as requiring that the judicial review before a court should encompass a reopening with a rehearing of witnesses. As was said by Thomas LJ in the Court of Appeal (see paragraph 18 above), such a reading of Article 6 § 1 would have significant implications for both the statutory scheme and the court and tribunal system. 86. The determination made in the present case and the underlying legislative scheme are not, as the applicant submitted, analogous to those that were before this Court for consideration in Tsfayo (that case, cited above, being concerned with payment of a housing benefit), but rather, in the Court’s view, lend themselves more to the national courts’ analysis of decisions by Homelessness Review Officers in Runa Begum (see Lord Hoffmann in the House of Lords, paragraph 36 above). Strikingly, there is no question in the present case, as in Tsfayo, of “a fundamental lack of objective impartiality” on the part of the pre-judicial reviewing entity such as to “infect the independence of its judgment in relation to the finding of primary fact which could not be adequately scrutinised or rectified by judicial review” (see Tsfayo, cited above, §47).", "87. In light of the above, taking as a whole the legislative welfare scheme by virtue of which the applicant, as a homeless person, derived her “civil right” to be provided with accommodation, the Court considers that the appeal to the courts open to her afforded her adequate protection as regards the judicial “determination” of that “civil right”. In other terms, it finds that the decision by the Council that it had discharged its duty to her under Part VII of the 1996 Act was subject to judicial scrutiny of sufficient scope to satisfy the requirements of Article 6 § 1 of the Convention. 88. Accordingly, no violation of Article 6 § 1 of the Convention can be found in the circumstances of the present case.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been no violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 20 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosGuido RaimondiRegistrarPresident" ]

[ "FIFTH SECTION CASE OF YAVOROVENKO AND OTHERS v. UKRAINE (Application no. 25663/02 and 30 others – see list appended) JUDGMENT This version was rectified on 2 March 2015 under Rule 81 of the Rules of Court. STRASBOURG 17 July 2014 This judgment is final. It may be subject to editorial revision. In the case of Yavorovenko and others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Boštjan M. Zupančič, President,Ann Power-Forde,Helena Jäderblom, judges,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 24 June 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in 31 applications 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 and Russian (application no. 54769/08) nationals as well as companies based in Ukraine, Cyprus (application no. 23581/03) and Romania (application no. 22422/05). The details of the applicants are specified in the appended table (“the applicants”).", "2. In application no. 34384/05 the applicant died in course of the proceedings before the Court. The next of kin of the applicant expressed the wish to maintain the application of their deceased family member. 3.", "In application no. 54769/08 one of the applicants, Ms Klavdiya Nikolayevna Galayda, died in course of the proceedings before the Court. No one expressed the wish to maintain her application. 4. In application no.", "26330/09 a court decision was delivered in favour of the applicant’s deceased father in law. The applicant, providing documents in support, claims to be his lawful successor in title. 5. In application no. 30843/08 the court decisions were delivered in favour of the legal entity which was later liquidated.", "The applicant company, providing documents in support, claims to be its lawful successor in title. 6. On 10 April 2012 the Court, having accepted the unilateral declarations of the Government in applications nos. 23056/07 and 24245/10, decided to strike these applications out of its list of cases. 7.", "On various dates following the decision to strike out the applications nos. 23056/07 and 24245/10, the applicants informed the Court that Government had paid the compensation amount, but had failed to enforce the judgments of the domestic courts. In particular, in application no. 23056/07 the applicant complains of non-enforcement of the judgment of the Shevchenkivskyy District Court of Kyiv dated 4 February 2005 and in application no. 24245/10 the applicant complains of non-enforcement of the judgment of the Oleksandriya Court dated 22 October 2010.", "8. The applicants requested, therefore, to restore their applications in the Court’s list of cases. 9. The applicants’ letters were sent to the respondent Government for comments. In their replies the Government confirmed that the relevant judgments of the domestic courts remained unenforced.", "According to information provided by the Government in their letter dated 19 September 2013 and in view of the judgment of the Shevchenkivskyy District Court of Kyiv adopted on 9 July 2013 and annexed to that letter, the enforcement proceedings which were the subject matter of application no. 23056/07 were terminated on 17 April 2013 (decision fully enforced). [1] 10. On 28 May 2013 (in application no. 23056/07) and on 17 December 2013 (in application no.", "24245/10) the Court decided to grant the requests of the applicants and to restore the applications to the Court’s list of cases in accordance with Rule 43 § 5 of the Rules of Court. 11. The applications listed in the Appendix to the present judgment were communicated to the Government on various dates. 12. The Government were represented by their Agent.", "13. The Cypriot and Romanian Governments, having been informed of their right to intervene in the proceedings in respect of the applicants in applications nos. 23581/03 (lodged by a legal entity registered in Cyprus) and 22422/05 (lodged by a legal entity registered in Romania), indicated that they did not wish to exercise that right. THE FACTS THE CIRCUMSTANCES OF THE CASE 14. On the dates set out in the appended table domestic courts delivered decisions according to which the applicants were entitled to various pecuniary amounts or to have certain actions taken in their favour.", "The decisions became final and enforceable. However, the applicants were unable to obtain the enforcement of the decisions in due time. 15. Some of the applicants also made submissions concerning factual and legal matters unrelated to the above non-enforcement issues. THE LAW I. JOINDER OF THE APPLICATIONS 16.", "In view of the similarity of the applications set out in the Appendix in terms of the principal legal issues raised, the Court finds it appropriate to join them. II. AS TO THE LOCUS STANDI OF THE APPLICANTS IN APPLICATIONS Nos. 26330/09 AND 34384/05 17. The Court notes that applications nos.", "26330/09 and 34384/05 concern a property right which is in principle transferable to the heirs. In these circumstances the Court considers that the applicants or their next of kin have standing to continue the present proceedings in their stead (see, among other authorities, Mironov v. Ukraine, no. 19916/04, § 12, 14 December 2006). III. AS TO THE LOCUS STANDI OF THE APPLICANT IN APPLICATION No.", "30843/08. 18. The Court notes that application no. 30843/08 concerns a property right which is in principle transferable to the successors. In these circumstances the Court considers that the applicant company – being a lawful successor of the liquidated creditor company - has standing to initiate the present proceedings instead of it (see, among other authorities, Mironov v. Ukraine, no.", "19916/04, § 12, 14 December 2006). IV. AS TO THE LOCUS STANDI OF Mr VADYM YEVGENOVYCH MYKHAYLENKO (THE SECOND APPLICANT IN APPLICATION No. 18330/05) 19. In application no.", "18330/05 the applicants, a legal entity Galon, TOV (first applicant) and Mr Vadym Yevgenovych Mykhaylenko (second applicant), complain about the lengthy non-enforcement of the judgment of the Higher Arbitration Court dated 26 December 2000. The domestic court allowed the claim of the first applicant. On 27 June 2003, on 1 August 2003 and on 29 October 2003 the Kyiv City Commercial Court modified the enforcement of the judgment dated 26 December 2000 and obliged the Ministry of Defence to pay the first applicant UAH 701,926[2]. On 16 May 2006 the amount was transferred to the bank account of the first applicant. The decision was enforced after 5 years and 4 months.", "20. In their observations the Government, inter alia, informed the Court that Mr Mykhaylenko (second applicant) was not a party in the domestic Court proceedings and he could not, therefore, claim to be a victim of the alleged violations of the Convention. 21. The Court agrees with the Government and declares this application as concerns the complaints of Mr Vadym Yevgenovych Mykhaylenko (second applicant) inadmissible pursuant to Article 35 § 3 (a) of the Convention. V. STRIKE OUT OF THE APPLICATION LODGED BY Ms KLAVDIYA MYKOLAYIVNA GALAYDA (ONE OF THE APPLICANTS IN APPLICATION No.", "54769/08) 22. By letter dated 12 July 2011 the Court was informed that Ms Klavdiya Mykolayivna Galayda, one of the applicants in application no. 54769/08, had died after lodging the application before this Court. No person expressed the wish to support her application. 23.", "In view of the above the Court decides to strike out from its list of cases the application lodged by Ms Klavdiya Mykolayivna Galayda, since the applicant died and there are no persons wishing to pursue the application. Furthermore, in accordance with Article 37 § 1 in fine, there are no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the complaints. VI. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 24.", "The applicants listed in the Appendix complained about the lengthy non-enforcement of the decisions given in their favour, as specified in the Appendix, and about the lack of the effective domestic remedies in respect of those complaints. Expressly or in substance they relied on Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1. 25. The Court notes that the above complaints (with the exception of the complaints raised by Ms Klavdiya Mykolayivna Galayda, one of the applicants in application no.", "54769/08 and by Mr Mykhaylenko, second applicant in application no. 18330/05, see paragraphs 17-19 above) 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. 26.", "The Court finds that the decisions in the applicants’ favour were not enforced in due time, for which the State authorities were responsible. 27. Having regard to its well-established case-law on the subject (see Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, §§ 56-58 and 66-70, 15 October 2009) the Court finds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of the prolonged non-enforcement of the decisions in the applicants’ favour.", "It also considers that there has been a violation of Article 13 of the Convention in that the applicants did not have an effective domestic remedy to redress the damage created by such non-enforcement. VII. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 28. Some of the applicants raised other complaints under the Convention, which the Court has examined carefully. 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.", "29. It follows that those complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. VIII. 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 Court notes that application nos. 23056/07 and 24245/10 were initially struck out of the Court’s list of cases by two separate decisions on 10 April 2012 in the light of unilateral declarations in which the Government, as well as acknowledging a violation of the Convention and offering to pay 1,020 euros (EUR) in application no. 23056/07 and 540 euros (EUR) in application no. 24245/10, “expressed their readiness to enforce the judgments which [had] not been enforced yet” (application no. 23056/07) and “declared that they were ready to pay to the applicants the outstanding judgment debts” (application no.", "24245/10). Those cases were restored to the Court’s list of cases at the applicants’ request as the underlying judgment debts were not paid, although the compensation payments had been duly effected. The Government accepted that the judgment had not been enforced in application no. 23056/07, and referred to “technical errors” which had taken place in application no. 24245/10.", "They did not contend that the judgment debts did not fall to be enforced, for example because they had been enforced in the interim. In these circumstances, the Court considers that the “failed” unilateral declaration process should not be taken into consideration in determining any Article 41 award which should be made in these two applications, and will deal with them in the same manner as the remaining applications in the present case, that is, without deduction of the amounts already paid. 32. The Court considers it reasonable and equitable (see Kononova and Others v. Ukraine [Committee], no. 11770/03 and 89 other applications, § 24, 6 June 2013; Tsibulko and Others v. Ukraine [Committee], no.", "65656/11 and 249 other applications, § 19, 20 June 2013; Pysarskyy and Others v. Ukraine [Committee], no. 20397/07 and 164 other applications, § 24, 20 June 2013) to award 2,000 euros (EUR) to each of the applicants (except Ms Klavdiya Mykolayivna Galayda, one of the applicants in application no. 54769/08; in application no. 18330/05 only to the first applicant, Galon, TOV). This sum is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses.", "32. The Court further notes that the respondent State has an outstanding obligation to enforce the decisions which remain enforceable. 33. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Decides to join the applications set out in the Appendix; 2. Declares the complaints of the applicants listed in the Appendix (in application no. 18330/05 only with regard to the first applicant, Galon, TOV) under Article 6 § 1 and Article 13 of the Convention and Article 1 of Protocol No. 1 about the lengthy non-enforcement of the decisions given in their favour and about the lack of effective domestic remedies in respect of those complaints admissible and the remainder of their applications inadmissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No.", "1; 4. Holds that there has been a violation of Article 13 of the Convention; 5. Holds (a) that within three months the respondent State is to enforce the domestic decisions in the applicants’ favour which remain enforceable, and is to pay EUR 2,000 (two thousand euros) to each applicant (or his or her estate) listed in the Appendix (except Ms Klavdiya Mykolayivna Galayda, one of the applicants in application no. 54769/08; in application no. 18330/05 only to the first applicant, Galon, TOV) in respect of pecuniary and non-pecuniary damage, and costs and expenses, plus any tax that may be chargeable to the applicants on the above amounts, which are to be converted into the national currency at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6.", "Decides to strike application no. 54769/08 in part lodged by Ms Klavdiya Mykolayivna Galayda out of its list of cases. Done in English, and notified in writing on 17 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsBoštjan M. Zupančič Deputy RegistrarPresident APPENDIX No. Application no.", "and date of introduction Applicant name date of birth place of residence Relevant domestic decision 25663/02 21/06/2002 Mykola Mykhaylovych YAVOROVENKO 05/01/1949 Vinnytsya 1) Zamostyanskyy District Court of Vinnytsya, 01/03/2004 2) Leninskyy District Court of Vinnytsya, 28/03/2006 3) Zamostyanskyy District Court of Vinnytsya, 16/10/2006 4) Zamostyanskyy District Court of Vinnytsya, 06/04/2007 5) Leninskyy District Court of Vinnytsya, 27/11/2006 23581/03 16/06/2003 LINDSELL ENTERPRISES LIMITED 1) Odesa Regional Commercial Court, 14/12/2000 as rectified by the Odesa Regional Commercial Court on 23/04/2001 2) Odesa Regional Commercial Court, 17/12/2001 as amended by the Odesa Commercial Court of Appeal on 20/01/2003, on 11/02/2004 and on 12/05/2004 4097/04 17/12/2003 GRIG Simferopol Crimea Commercial Court, 17-21/04/2003 17556/04 05/04/2004 Vadym Volodymyrovych VASKO 03/05/1972 Kyiv Pecherskyy District Court of Kyiv, 04/12/2000 in the light of the judgment of the Golosiyivskyy District Court of Kyiv, 13/10/2003 27218/04 21/04/2004 AKVATON, TOV Rivne Cherkasy Regional Commercial Court, 18/03/2003 10000/05 25/02/2005 Raisa Vladimirovna TKACHOVA 24/05/1951 Chornomorsk Yelena Vasilyevna PETLYAK 08/07/1966 Chornomorsk Valentina Nikolayevna IYEVLEVA 29/06/1960 Chornomorsk Tatyana Anatolyevna VETROVA 10/01/1962 Chornomorsk Yelena Alekseyevna KLIMENKO 02/10/1964 Chornomorsk 1) Chornomorskyy District Court of Crimea, 13/11/2002 as amended by the Court of Appeal of Crimea, 31/03/2003 2) Chornomorskyy District Court of Crimea, 21/04/2006 3) Chornomorskyy District Court of Crimea, 26/12/2007 18330/05 13/05/2005 GALON, TOV Kyiv Vadym Yevgenovych MYKHAYLENKO[3] 21/03/1964 Kyiv Higher Arbitration Court, 26/12/2000 in the light of the ruling of the Kyiv City Commercial Court of 27/06/2003 21463/05 30/04/2005 Mykola Prokopovych KOROL 05/06/1943 Polilnya Zhytomyr Regional Court of Appeal, 31/01/2005 21954/05 27/05/2005 ZODIAK, ZAT Sumy 1) Donetsk Regional Commercial Court, 19/12/2000 as amended by the Donetsk Regional Commercial Court on 17/04/2001 2) Enforcement writ of Sumy private notary Olga Areshyna, 26/04/2001 3) Order no. 4251 - 12/270 of the Sumy Regional Commercial Court, 26/05/2003 4) Order no. 9/254 of the Sumy Regional Commercial Court, 18/09/2003 22422/05 10/06/2005 INDUSTRIALEXPORT S.A. Kyiv International Commercial Arbitration Court at the Ukrainian Chamber of Commerce, 20/02/1997 in light of the judgment of the Kyiv City Commercial Court dated 29/08/2007 30706/05 04/08/2005 Lenina Abramivna MAREKHBEYN 04/11/1944 Lviv Frankivskyy District Court of Lviv, 10/07/2003 34384/05 10/09/2005 Yevgeniy Petrovich ORLOV 26/01/1937 Dneprodzerzhynsk Bagliyskyy District Court of Dniprodzerzhynsk, 26/01/2004 41082/05 02/11/2005 Oleg Mykolayovych GRISHYN 28/06/1952 Cherkasy Cherkasy Regional Court of Arbitration, 20/05/1998 3093/06 21/12/2005 Irina Vladislavovna MARKOVA 03/01/1962 Simferopol Yelena Petrovna MONASHOVA 08/10/1940 Simferopol Viktor Ivanovich SHYBAYEV 21/09/1950 Simferopol Crimea Court of Appeal, 28/10/2003 16021/06 11/04/2006 Borys Oleksandrovych YELETSKYY 25/08/1949 Kyiv Kyiv City Commercial Court, 21/02/2005, as amended by the Kyiv Commercial Court of Appeal on 31/05/2005 and by the Higher Commercial Court on 13/10/2005 25186/06 19/05/2006 Petr Mikhaylovich KORZHIKOV 12/07/1947 Chernigiv Desnyanskyy District Court of Chernigiv, 28/04/2001 29072/06 05/07/2006 Sergey Nikolayevich SIDORENKO 06/03/1961 Chyguyev Chuguyev Court 13/12/2002 23056/07 23/04/2007 Maria Leonidovna SEREDA 10/02/1935 Kyiv Shevchenkivskyy District Court of Kyiv, 04/02/2005 49871/07 08/11/2007 Nikolay Aleksandrovich YAMPOLSKIY 01/02/1962 Georgiyivka Leninskyy District Court of Lugansk, 05/06/2006 54469/07 03/12/2007 Viktor Alekseyevich RASPOPOV 20/10/1935 Kyiv 1) Pecherskyy District Court of Kyiv, 17/04/2006 2) Pecherskyy District Court of Kyiv, 05/03/2007 3) Pecherskyy District Court of Kyiv, 12/02/2007 2316/08 04/01/2008 Vasyl Mykolayovych MUZYCHENKO 06/05/1956 Kyiv Minskyy District Court of Kyiv, 19/11/1998 10908/08 20/02/2008 Petro Oleksiyovych DZYUBKO 01/09/1947 Kyiv Vyshgorodskyy District Court of the Kyiv Region, 01/10/2002, upheld by the Supreme Court on 22/01/2004 19939/08 28/03/2008 ANIS, FERMERSKE GOSPODARSTVO Petrovske Dnipropetrovsk Commercial Court of Appeal, 16/11/2001 30843/08 20/03/2008 UKRENERGOSTROY, TOV Dnipropetrovsk 1) Zaporizhzhya Regional Commercial Court, 05/02/2002 2) Zaporizhzhya Regional Commercial Court, 12/02/2002 35948/08 21/07/2008 Mariya Oleksiyivna DOBROVOLSKA 18/08/1954 Kyiv Mykola Tarasovych DOBROVOLSKYY 27/11/1949 Kyiv Applicant 1: 1) Kyiv Commercial Court of Appeal, 29/01/2003 2) Kyiv City Commercial Court, 13/07/2006 Applicant 1 and Applicant 2: 2) Podilskyy District Court of Kyiv, 26/06/2008 54769/08 31/10/2008 Engels Ivanovych NOVOKHATKO 15/08/1925 Lugansk Sergiy Oleksiyovych KALININ 26/07/1956 Klimovsk Mykhaylo Oleksandrovych TARASOV 19/08/1956 Kovrov Volodymyr Mykolayevych SYURYAYEV 09/12/1945 Orenburg Yuriy Petrovych GALAYDA 19/06/1974 Lugansk Klavdiya Mykolayivna GALAYDA[4] 22/05/1945 Lugansk 1) Leninskyy District Court of Lugansk, 18/08/2004, 2) Leninskyy District Court of Lugansk, 28/04/2007 23057/09 07/04/2009 Galyna Mykolayivna DONETS 05/10/1963 Lviv Lviv Circuit Administrative Court, 30/12/2008 26330/09 04/03/2009 Dmitriy Vladimirovich VOLNA 03/05/1973 Mykolayivka Slovyansk Court, 31/01/2000 55864/09 09/10/2009 NAIRI, IPP Protopopivka Kirovograd Regional Commercial Court, 14/05/2004 16112/10 01/03/2010 Nikolay Aleksandrovich KOCHEGAROV 26/02/1951 Novogrodovka 1) Novogorodivka Court, 10/02/1999 2) Novogorodivka Court, 24/03/1999 3) Novogorodivka Court, 05/05/1999 4) Novogorodivka Court, 22/03/2000 5) Novogorodivka Court, 25/01/2001 24245/10 20/04/2010 Volodymyr Ivanovych KRAVCHENKO 01/02/1949 Marto-Ivanivka Court order of the Oleksandriya Court, 22/10/2008 [1]. Rectified on 2 March 2015: the third sentence has been added. [2].", "equivalent of about EUR 70,000 as to February 2014 [3]. The complaints of the second applicant, Mr Vadym Yevgenovych Mykhaylenko, are inadmissible ratione personae. [4]. The application of Klavdiya Mykolayivna Galayda was struck out of the Court's list of cases as the applicant died on 26/01/2011 and no persons expressed their wish to support the application." ]

[ "FIFTH SECTION CASE OF D.P. v. SLOVENIA (Application no. 49994/14) JUDGMENT STRASBOURG 23 July 2015 This judgment is final but it may be subject to editorial revision. In the case of D.P. v. Slovenia, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Angelika Nußberger, President,Boštjan M. Zupančič,Vincent A.", "De Gaetano, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 30 June 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 49994/14) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Ms D.P. (“the applicant”), on 3 July 2014. The President of the Section acceded to the applicant’s request not to have her name disclosed (Rule 47 § 4 of the Rules of Court).", "2. The Slovenian Government (“the Government”) were represented by their Agent, Mrs T. Mihelič Žitko, State Attorney. 3. On 3 September 2014 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1970 and lives in Ljubljana. A. Contentious proceedings before the Kranj District Court (I P 509/2004) 5. On 29 July 2003 the applicant instituted proceedings before the Ljubljana District Court against the State claiming non-pecuniary damages inflicted on her by involuntary confinements in the Ljubljana Psychiatric Hospital in December 1999 and between July and September 2000.", "6. At the first hearing held on 3 May 2005 the applicant lodged a request to delegate territorial jurisdiction to another court. 7. On 24 June 2005 the Supreme Court upheld her request and delegated jurisdiction to the Kranj District Court. 8.", "On 16 March 2006 the Kranj District Court held the first main hearing. 9. On 26 March 2006 the applicant lodged a request with the Kranj District Court a motion to have the presiding judge excluded. 10. On 5 May 2006 the Vice-President of the District Court upheld the applicant’s request.", "11. Between August 2006 and March 2008 the court held further four hearings. 12. On 12 May 2007 the applicant lodged a second request to have the then presiding judge excluded and a request to transfer the case to another court with the subject-matter jurisdiction. 13.", "On 31 May 2007 the Supreme Court dismissed the applicant’s request to transfer the case to another court. 14. On 28 September 2007 the President of the District Court dismissed the applicant’s request for the exclusion of the presiding judge. 15. On 18 March 2008 the applicant lodged a request to have the president of the District Court and the presiding judge excluded.", "16. On 9 April 2008 the President of the Ljubljana Higher Court dismissed the applicant’s request to have the President of the Kranj District Court excluded. 17. On 21 April 2008 the President of the Kranj District Court dismissed the applicant’s request to have the presiding judge excluded. 18.", "In the meantime, on 5 April 2008, the Kranj District Court imposed a fine of 500 euros (EUR) on the applicant for abuse of her procedural rights by having lodged the requests concerning the exclusion of the presiding judge. The applicant appealed. 19. On 5 November 2008 the Ljubljana Higher Court upheld the applicant’s appeal and annulled the order to fine the applicant. The court held that the district court failed to establish that by lodging the requests the applicant had abused her procedural rights.", "20. On 16 September 2009 the applicant lodged a supervisory appeal. On 6 October 2009 the President of the Kranj District Court replied that a hearing would be scheduled for 22 October 2009. 21. A further hearing was held on 22 February 2010.", "22. On 9 March 2011 the Kranj District Court issued a judgment in which it upheld the applicant’s claim in part. Both parties appealed. 23. On 18 January 2012 the Ljubljana Higher Court upheld the appeals, quashed the judgment of the lower court and modified it by dismissing the claim in respect of the confinement in December 1999 as time-barred and decided that the claim for non-pecuniary damages in respect of the confinement between July and September 2000 was well-founded but that the first instance court needed to decide on the amount of compensation in a new set of proceedings.", "24. The applicant lodged a motion for leave to file an appeal on points of law in respect of the question whether her claim for damages due to the December 1999 confinement was time-barred. 25. On 19 July 2012 the Supreme Court allowed the applicant’s appeal on points of law. 26.", "On 31 January 2013 the Supreme Court granted the applicant’s appeal on points of law and quashed the respective part of the decision of the higher court. 27. On 13 March 2013 the Ljubljana Higher Court quashed the decision of the district court in respect of the 1999 confinement and remitted the case back to the district court. 28. On 30 January 2014 the applicant lodged a further supervisory appeal which was dismissed on 14 February 2014.", "29. On 10 February 2014 the Kranj District Court held the first main hearing after the remittal and postponed the hearing for an indefinite period in order to obtain an expert opinion on the applicant’s mental health at the time of the confinement. 30. On 14 March 2014 the applicant lodged a motion for a deadline with the Ljubljana Higher Court. 31.", "On 25 March 2014 the Ljubljana Higher Court granted the applicant’s motion for a deadline and ordered the district court to deal with the case with priority. 32. The proceedings are still pending before the Kranj District Court which still needs to decide on the applicant’s claim in respect of the confinement in 1999 and on the amount of compensation in respect of the 2000 confinement. B. Proceedings concerning the claim for non-pecuniary damages on account of the alleged delays in the above proceedings (P 771/2007‑III) 33.", "On 24 March 2006 the applicant amended her claim in the above proceedings by claiming further non-pecuniary damages due to the length of proceedings. This part of the claim was separated from the main claim and referred to the Ljubljana District Court. 34. On 18 March 2009 the applicant raised the claim to EUR 5,000. 35.", "On 21 May 2009 the Ljubljana District Court dismissed the applicant’s claim as premature since the main proceedings were still pending. The applicant appealed. 36. On 20 January 2010 the Ljubljana Higher Court dismissed the applicant’s appeal. The applicant lodged a motion to file an appeal on points of law.", "37. On 30 September 2010 the Supreme Court allowed the applicant’s appeal on points of law in respect of the question whether it was possible to claim compensation for a violation of one’s right to a trial without undue delay before the termination of the main proceedings. 38. On 27 September 2012 the Supreme Court held that even though the proceedings had been instituted before 1 January 2007 when the Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”) became operational, the latter was applicable to the applicant’s case and therefore it was not possible to claim compensation before the termination of the main proceedings. It further held that since the appeal on points of law was explicitly excluded as a legal remedy in the proceeding under the 2006 Act, the applicant’s appeal on points of law should be rejected on procedural grounds as not allowed.", "The applicant lodged a constitutional complaint. 39. On 27 December 2013 the Constitutional Court dismissed the applicant’s constitutional complaint by reference to Section 55.b of the Constitutional Court Act. II. RELEVANT DOMESTIC LAW 40.", "For relevant domestic law see Žunič v. Slovenia ((dec.), no. 24342/04, §§ 16-26, 18 October 2007). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 41. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...” A. Admissibility 42.", "The Government raised an objection, arguing that the applicant had not exhausted the domestic remedies available to her. The Court considers that the question whether the requirement that an applicant must exhaust domestic remedies has been satisfied in the instant case is closely linked to the complaint concerning the existence of an effective remedy within the meaning of Article 13 of the Convention. It therefore considers that this objection raised by the Government under Article 6 § 1 of the Convention should be joined to the merits of the complaint under Article 13 of the Convention. It further notes that this part of 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. It must therefore be declared admissible.", "B. Merits 43. The Court considers that the period to be taken into consideration began on 23 July 2003, when the applicant instituted civil proceedings before the Ljubljana District Court, and has not yet ended. The relevant period has therefore so far lasted almost twelve years at three levels of jurisdiction. 44.", "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). 45. Applying the criteria, the Court observes that the proceedings appear to be of some complexity. 46.", "Examining the applicant’s behaviour, the Court observes that she lodged repeated requests for exclusion of the presiding judge. It recalls in this respect that while an applicant is entitled to make use of his or her procedural rights, he or she must bear the consequences when his or her exercise leads to delays (see, inter alia, Malicka-Wąsowsa v. Poland (dec.), no. 41413/98, 5 April 2001, and Peryt v. Poland, no. 42042/98, 2 December 2003). It however notes that the applicant once succeeded with her request and that the Ljubljana Higher Court annulled the decision on fining the applicant for delaying the proceedings by her requests.", "The Higher Court held that it had not been proven that the applicant had been abusing her procedural rights. Moreover, the decisions on the applicant’s requests were always issued within a couple of weeks. In the circumstances of this case the Court therefore finds that while the applicant’s conduct might have slightly delayed the proceedings it did not have a decisively adverse effect on the overall length of the proceedings. 47. On the other hand, the Court observes in respect of the conduct of the domestic courts that in the initial set of the proceedings, alone the proceedings before the first instance court lasted almost eight years and that following a remittal of the case back to the first instance court after the Supreme Court had upheld in part the applicant’s appeal on points of law, the proceedings have been pending before the first instance court for more than two years.", "48. In this context, the Court reiterates that it is for the State to organise its legal system in such a way to enable its courts to comply with the requirement of Article 6 § 1 of the Convention (see, mutatis mutandis, Tusa v. Italy, 27 February 1992, § 17, Series A no. 231‑D and Jama v. Slovenia, no. 48163/08, § 36, 19 July 2012). 49.", "Finally, the Court cannot agree with the Government’s suggestion that what has been at stake for the applicant is not of particular importance since the case concerns the applicant’s claim for non-pecuniary damages allegedly sustained due to her involuntary confinement in a psychiatric hospital and hence also an alleged violation of the applicant’s rights under the Convention. 50. Having examined all the material submitted to it and having regard to its case-law on the subject (see Žolger v. Slovenia, no. 75688/01, §§ 17‑19, 30 March 2006; Puž v. Slovenia, no. 76199/01, §§ 20-22, 30 March 2006; Cekuta v. Slovenia, no.", "77796/01, §§ 19-21, 6 April 2006; and Bitenc v. Slovenia, no. 3474/06, §§ 38-42, 30 January 2014), the Court, for the reasons set out above, considers that in the instant case the overall length of the proceedings has been excessive and has failed to meet the “reasonable time” requirement. 51. There has accordingly been a breach of Article 6 § 1. II.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 52. The applicant also complained of the absence of effective domestic remedies in respect of the excessive length of the proceedings. This complaint falls to be examined under Article 13, 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 53. The Court finds 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.", "B. Merits 54. The applicant argued that there has not been any remedy available for her in order to accelerate the proceedings or to obtain compensation for their undue length. 55. The Government argued that the applicant has had the remedies provided for by the 2006 Act, in particular that the applicant will have the opportunity to claim just satisfaction after the final resolution of the case, as provided for in the 2006 Act.", "56. 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). 57. The Court further reiterates that remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are “effective” within the meaning of Article 13 of the Convention if they “[prevent] the alleged violation or its continuation, or [provide] adequate redress for any violation that [has] already occurred” (ibid., § 158).", "Article 13 therefore offers an alternative: a remedy is “effective” if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (ibid., § 159). The same is necessarily true of the concept of an “effective” remedy within the meaning of Article 35 § 1 (see Mifsud v. France (dec.) [GC], no. 57220/00, ECHR 2002-VIII). 58. In the case of Grzinčič v. Slovenia (no.", "26867/02, 3 May 2007), followed by the decision in Korenjak v. Slovenia (no. 463/03, 15 May 2007), the Court, basing itself on an assessment of the legislative provisions of the 2006 Act, found that the aggregate of remedies provided for in cases involving excessively long proceedings pending at first and second instance was effective in the sense that the remedies were, in principle, capable of both preventing the continuation of the alleged violation of the right to a hearing without undue delay, and of providing adequate redress for any violation that has already occurred (Grzinčič, cited above, § 98). 59. In the subsequent case of Žunič (cited above), the Court specified that it was indispensable that the proceedings, which had already lasted a long time, should be finally resolved particularly promptly following the exhaustion of the acceleratory remedies (ibid., § 50). Moreover, it emphasised that the national authorities should have ensured that the aggrieved party had prompt access to the compensatory remedy once he or she had made use of the acceleratory remedies (ibid., § 53).", "60. In the case of Jama v. Slovenia (no. 48163/08, 19 July 2012) the Court found that in the circumstances of that case both the acceleratory remedies and the compensatory remedy had proven to be ineffective, since no significant progress had been made after the applicant had availed himself of the acceleratory remedies, and he also had not been afforded prompt access to the compensation claim with respect to damages sustained owing to the unreasonable length of the proceedings (ibid., §§ 47-49; see also Beltram and Beltram Cerovšek v. Slovenia, no. 10017/10, §§ 51-51, 10 October 2013). 61.", "The Court observes that even after the applicant had lodged the acceleratory remedies, no swift progress had been made in the case. After she had lodged her first supervisory appeal in September 2009, when the case had already been pending before the first instance for more than six years, it took the court further eighteen months to issue a judgment. Moreover, even though the Ljubljana Higher Court in March 2014 upheld the applicant’s motion for a deadline in respect of the remitted proceedings and ordered the Kranj District Court to deal with the case with priority, more than a year later the proceedings are still pending before that court. 62. The Court further notes that as a consequence of the system provided for by the 2006 Act, whereby access to a compensation claim is dependent on the termination of the proceedings, the applicant also has not been afforded prompt access to just satisfaction claim for the undue delay after having exhausted the acceleratory remedies.", "63. In view of the above, the Court finds that under the circumstances of the present case the two avenues available have not shown to have been effective. 64. Accordingly, the Court concludes that there has been a violation of Article 13 of the Convention on account of the lack of an effective remedy. In view of this conclusion, it also rejects the Government’s objection concerning the exhaustion of domestic remedies as to Article 6 § 1 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 65. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 66. The applicant claimed EUR 35,000 in respect of non-pecuniary damage.", "67. The Government argued that the claim was exaggerated. 68. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 9,600 under that head.", "B. Costs and expenses 69. The applicant also claimed EUR 2,328.45 for the costs and expenses incurred before the domestic courts and EUR 300 for those incurred before the Court. 70. The Government left the matter to the Court’s discretion.", "71. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually necessarily incurred and are reasonable to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 covering costs under all heads. C. Default interest 72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Joins to the merits the Government’s preliminary objection concerning the non-exhaustion of domestic remedies and dismisses it; 2. Declares the application admissible; 3. Holds that there has been a violation of Articles 6 § 1 and 13 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts: (i) EUR 9,600 (nine thousand six 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; 5.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 23 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoAngelika NußbergerDeputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF TAMÁS KOVÁCS v. HUNGARY (Application no. 67660/01) JUDGMENT STRASBOURG 28 September 2004 FINAL 28/12/2004 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 Tamás Kovács v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka,MrL.", "Loucaides,MrC. Bîrsan,MrK. Jungwiert,MrM. Ugrekhelidze,MrsA. Mularoni, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 7 September 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 67660/01) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr Tamás Kovács (“the applicant”), on 29 September 2000. 2. The Hungarian Government (“the Government”) were represented by their Agent, Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice. 3.", "On 20 March 2003 the Court decided to communicate the application to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS 4. The applicant was born in 1955 and lives in Budapest. (1) Criminal proceedings instituted in 1993 5.", "On 18 February 1993 the applicant, an examiner at the Road Authority, was arrested by officers of the Veszprém County Police Department. He was charged with having issued false certificates in his role as a member of an organised group involved in the legalisation of unlawfully acquired cars. He was in pre-trial detention between 22 February and 7 May 1993 and interrogated on 19 and 24 February, 9 and 26 March, 7 May and 29 June 1993. The investigations were closed on 13 December 1993. By then, more than 100 suspects and 250 witnesses had been heard, house searches were carried out and expert opinions were obtained.", "6. On 9 June 1994 the Veszprém District Public Prosecutor's Office preferred a bill of indictment against the applicant and 88 other defendants. 7. Between 22 November 1994 and 1 December 1995 the Veszprém District Court held 68 hearings. The District Court heard the defendants and 77 witnesses.", "The case-file of the trial amounted to 2,000 pages. It delivered and read out its 245-page long judgment on 1 and 14 December 1995 and on 30 January 1996. The District Court convicted the applicant of charges of bribery, forgery and misuse of fire arms and ammunition, and sentenced him to 2 years and 6 months' imprisonment. The applicant appealed, together with numerous other defendants. 8.", "The competent Veszprém County Regional Court held six hearings. On 9 February 1997 it quashed the District Court's judgment in respect of eleven defendants, including the applicant, and remitted the case to the first-instance court. On 16 July 1998 the Veszprém District Public Prosecutor's Office preferred a supplementary bill of indictment extending the charges against the applicant to an offence of receiving stolen goods of considerable value. 9. In the resumed proceedings, the District Court held hearings on 6 and 7 October 1998, 25 February, 15 June, 7 July, 26 October and 16 November 1999.", "On 15 December 1999 it delivered a judgment. The applicant was convicted of charges of bribery, forgery of official documents, receiving stolen goods and abuse of fire-arms. Despite the applicant's conviction for a further offence, the Regional Court reduced his sentence to 2 years' imprisonment, suspended for a 4-year probationary period. The Regional Court emphasised that the reduction of the sentence was exclusively due to the “unreasonably long duration of the proceedings”. 10.", "The applicant appealed. On 12 October 2000 the Regional Court upheld his conviction. This judgment was served on the applicant on 12 June 2001. (2) Criminal proceedings instituted in 1994 11. On 9 May 1994 another set of criminal proceedings was instituted against the applicant in Budapest.", "In January 1996 the Budapest XIV District Public Prosecutor's Office preferred a bill of indictment charging the applicant with offences committed in a context similar to that under (1) above. 12. On 2 April, 9 September and 10 December 1997, 31 March, 10 September and 2 November 1998 and 5 January 1999, the Pest Central District Court held hearings in the case. On 25 January 1999 the District Court delivered a judgment. It convicted the applicant of bribery and forgery of official documents, and sentenced him to a fine and 1 year and 2 months' imprisonment.", "The execution of the prison sentence was suspended for 4 years. 13. The applicant appealed. On 11 February 2000 the Budapest Regional Court upheld his conviction. The judgment was served on the applicant on 21 March 2000.", "The Government submitted the reception notice which was stamped at the despatching Budapest Post Office on 21 March 2000. The handwritten note showing its receipt by the addressee bears the same date. (3) Labour law proceedings 14. On 10 May 1993 disciplinary proceedings were instituted against the applicant on account of the criminal proceedings brought against him. On 10 June 1993 the applicant's employer terminated his employment as a disciplinary measure.", "The applicant challenged this decision before the Budapest Labour Court on 24 June 1993. 15. The Labour Court held hearings on 20 October 1993, 30 March and 6 May 1994. On the latter date, the Labour Court allowed the applicant's challenge. The applicant's employer appealed.", "16. The Regional Court held hearings on 22 March and 1 November 1995. On 17 November 1995 the Budapest Regional Court modified the Labour Court's decision and dismissed the applicant's claim. On 16 January 1996 the applicant pursued a petition for review. 17.", "On 26 June 1996 the Supreme Court quashed the Labour and Regional Courts' decisions and remitted the case to the first-instance court, holding that the outcome of the criminal proceedings should be taken into account when delivering the judgment. 18. On 29 April 1997 the applicant requested the postponement of a hearing scheduled for 11 June 1997 and requested that the proceedings be suspended. On 11 June 1997 the Labour Court suspended the proceedings pending the outcome of the criminal case and ordered the parties to submit all relevant documents without delay when the latter was concluded. 19.", "On 12 April 2001 the applicant informed the Labour Court that his legal counsel had ceased to represent him. He failed to mention that, meanwhile, the criminal proceedings had ended. 20. On 15 February 2002 the defendant submitted the final judgment convicting the applicant and requested that the case be continued. 21.", "In the resumed proceedings, on 27 February 2002, the Labour Court ordered the parties to submit their motions for evidence. At the hearing on 24 June 2002 the Labour Court repeatedly ordered the applicant to submit his motion for evidence. The applicant complied with the order on 16 September 2002. 22. On 21 October 2002 the Labour Court dismissed the applicant's action.", "The judgment was served on the applicant on 4 November 2002 and became final on 22 November 2002. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 23. 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 or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 24. The Government contested that argument.", "As regards the first proceedings, they claimed that the applicant could not be regarded as a victim for the purposes of Article 34 of the Convention. In this respect they pointed out, that the domestic courts not only accepted that the proceedings exceeded a reasonable time but they significantly reduced his sentence solely on this ground. As regards the second proceedings, the Government submitted that they ended with the service of the final decision more than six months prior to the introduction of the application. As to the third proceedings, they claimed that the applicant contributed to the protraction of the case to a great extent. 25.", "The periods to be taken into consideration began on 18 February 1993, 9 May 1994 and 10 May 1993 and ended on 12 June 2001, 21 March 2000 and 4 November 2002, respectively, with the service of the judgments. They thus lasted 8 years and 4 months, 5 years and 10 months and 9 years and 8 months, respectively. A. Admissibility 26. As regards the first proceedings, the Court recalls that the Regional Court held that the duration of the proceedings had been excessive and reduced the applicant's sentence from 2 years and 6 months' to two years' imprisonment, suspended for a 4-year probationary period. It emphasized that the mitigation of the sentence was solely due to the unreasonable length of the proceedings.", "Against this background, the Court finds that the applicant obtained adequate redress for the alleged violation of his right under Article 6 § 1 of the Convention to a hearing within a reasonable time. Accordingly, he can no longer claim to be a victim, for the purposes of Article 34, of a violation of Article 6 § 1. This complaint must therefore be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention (see Lie and Bernsten, (dec.), no. 25130/94). 27.", "As regards the second proceedings, the Court recalls that Article 35 § 1 of the Convention stipulates that: “The Court may only deal with the matter ... within a period of six months from the date on which the final decision was taken.” 28. The Government have provided evidence to support their submission that the decision was served on 21 March 2000. In particular, they have asserted that the reception notice was stamped at the despatching Budapest Post Office on 21 March 2000, and the handwritten note showing its receipt by the addressee bears the same date. 29. In these circumstances, the Court considers that the service of the final decision took place on 21 March 2000.", "Accordingly, the six-month time-limit must be taken to have run from that date. However, the applicant lodged his application only on 29 September 2000, i.e. more than six months later. It follows that this complaint has been introduced outside the six-month time-limit prescribed by Article 35 § 1 and must be rejected pursuant to Article 35 § 4 of the Convention. 30.", "As regards the applicant's complaint concerning the third proceedings, the Court considers that it 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 31.", "The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities 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). 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, 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.", "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 requested the Court to establish the amount of his non-pecuniary damage. 36.", "The Government did not express an opinion on the matter. 37. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, and having regard to the delays attributable to the applicant, it awards him EUR 5,000 under that head. B.", "Costs and expenses 38. The applicant did not enumerate his costs and expenses. The Court therefore makes no award under this head. 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 1. Declares by 6 votes to 1 the complaint concerning the excessive length of the labour law proceedings admissible and the remainder of the application inadmissible; 2. Holds by 6 votes to 1 that there has been a violation of Article 6 § 1 of the Convention; 3. Holds by 6 votes to 1 (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Done in English, and notified in writing on 28 September 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléJ.-P. CostaRegistrarPresident" ]

[ "FOURTH SECTION CASE OF PRALICA v. BOSNIA AND HERZEGOVINA (Application no. 38945/05) JUDGMENT STRASBOURG 27 January 2009 FINAL 27/04/2009 This judgment may be subject to editorial revision In the case of Pralica v. Bosnia and Herzegovina, 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 Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 6 January 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 38945/05) against Bosnia and Herzegovina lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a citizen of Bosnia and Herzegovina, Mr Sretko Pralica (“the applicant”), on 14 October 2005. 2.", "The applicant was represented by Mr S. Bereta, a lawyer practising in Prijedor. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović. 3. On 11 October 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).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1938 and lives in the vicinity of Prijedor. 5. Prior to the dissolution of the former Socialist Federal Republic of Yugoslavia (“the SFRY”) the applicant deposited foreign currency in his bank accounts at the then Privredna banka Sarajevo Filijala Prijedor.", "In Bosnia and Herzegovina, as well as in other successor States of the former SFRY, such savings are commonly referred to as “old” foreign-currency savings (for the relevant background information see Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005-...). 6. Following several unsuccessful attempts to withdraw his funds, the applicant instituted proceedings, seeking the recovery of his entire “old” foreign-currency savings and accrued interest. 7.", "By a decision of the Prijedor Court of First Instance of 4 September 1995 the Prijedorska banka (the legal successor of the Privredna banka Sarajevo Filijala Prijedor) was ordered to pay the applicant 254,725.85 German marks (DEM) and legal costs in the amount of 2,000 dinars (approximately DEM 770 on the date of the judgment). The judgment entered into force on 11 March 1996. On 26 December 1997 the Prijedor Court of First Instance issued a writ of execution (rješenje o izvršenju). 8. Although domestic authorities took over the judgment debt, the judgment has not yet been enforced.", "II. RELEVANT LAW AND PRACTICE 9. For relevant law and practice see the admissibility decision in Jeličić, cited above; the judgment in Jeličić v. Bosnia and Herzegovina, no. 41183/02, ECHR 2006‑...; and Pejaković and Others v. Bosnia and Herzegovina, nos. 337/04, 36022/04 and 45219/04, 18 December 2007.", "THE LAW 10. The applicant complained of the non-enforcement of a final and enforceable judgment in his favour. He relied on Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. Article 6, in so far as relevant, provides: “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 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.” I. ADMISSIBILITY 11. The Government indicated two recent decisions of the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) finding violations of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention in circumstances similar to those in the present case (decision no.", "CH/03/10999 of 9 May 2007 and decision no. AP 158/06 of 18 October 2007). While the Constitutional Court awarded compensation for non-pecuniary damage in the amount of approximately 300 euros in one case (decision no. CH/03/10999), it rejected a similar request in the other case (decision no. AP 158/06).", "The Government claimed that those decisions had been enforced on 31 August 2007 and 14 March 2008 respectively. Given the developments in the Constitutional Court’s case-law, the Government submitted that an appeal to that court should now be considered an effective remedy within the meaning of Article 35 § 1 of the Convention in respect of the non-enforcement of judgments ordering the release of “old” foreign-currency savings. Accordingly, they invited the Court to declare the present application inadmissible on non-exhaustion grounds, by reason of the applicant’s failure to use that remedy. 12. The applicant raised doubts as to the effectiveness of that remedy without going into any details.", "13. The general principles concerning the rule of exhaustion of domestic remedies were outlined in Mirazović v. Bosnia and Herzegovina ((dec.), no. 13628/03, 16 May 2006). It should be reiterated above all that, although there may be exceptions justified by the particular circumstances of each case, the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with it (see Baumann v. France, no. 33592/96, § 47, ECHR 2001‑V, and Babylonová v. Slovakia, no.", "69146/01, § 44, ECHR 2006‑...). 14. In the present case, the Court does not see any reason to depart from the above principle (see, by contrast, Brusco v. Italy (dec.), no. 69789/01, ECHR 2001‑IX; Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002-VIII; Andrášik and Others v. Slovakia (dec.), nos.", "57984/00, 60226/00, 60237/00, 60242/00, 60679/00, 60680/00 and 68563/01, ECHR 2002-IX; and Michalak v. Poland (dec.), no. 24549/03, § 36, 1 March 2005). Since at the time when the applicant brought his application to the Court an appeal to the Constitutional Court offered no reasonable prospects of success in respect of his complaints (see Pejaković and Others, cited above, § 22), he was not required to make use of that remedy. The Government’s objection is thus dismissed. 15.", "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. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 3 above), the Court will immediately consider the merits of the case. II.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 16. The Court notes that the present case is practically identical to Jeličić (cited above) and Pejaković and Others (cited above) in which the Court found a violation of Article 6 of the Convention as well as a violation of Article 1 of Protocol No. 1 to the Convention. Considering the length of the period of non-enforcement of the judgment in issue in the present case (more than six years after the date of ratification of the Convention by Bosnia and Herzegovina), and having examined all relevant circumstances, the Court does not see any reason to depart from its previous case-law.", "There has accordingly been a breach of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 17. 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 18. 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. 19. It must, however, be noted that a judgment in which the Court finds a violation of the Convention or of its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found (see Apostol v. Georgia, no.", "40765/02, §§ 71-73, ECHR 2006, and Marčić and Others v. Serbia, no. 17556/05, §§ 64-65, 30 October 2007). 20. Having regard to its finding in the instant case, and without prejudice to any other measures which may be deemed necessary, the Court considers that the respondent State must secure the enforcement of the judgment of 4 September 1995 by way of paying the applicant 130,632 euros (EUR) plus any tax that may be chargeable (see Jeličić, cited above, § 53, and Pejaković and Others, cited above, § 31). 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; 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 secure the enforcement of the judgment of 4 September 1995 by way of paying the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 130,632 (one hundred and thirty thousand six hundred and thirty two euros), plus any tax that may be chargeable, to be converted into convertible marks at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.", "Done in English, and notified in writing on 27 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıNicolas BratzaDeputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF KOSTOVSKA v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA (Application no. 44353/02) JUDGMENT STRASBOURG 15 June 2006 FINAL 15/09/2006 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 Kostovska v. the former Yugoslav Republic of Macedonia, 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 the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 44353/02) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Macedonian national, Ms Nada Kostovska (“the applicant”), on 2 November 2002. 2. The applicant was represented by Mrs V. Dangova, a lawyer practising in Skopje.", "The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska. 3. The applicant alleged that contrary to Article 6 § 1 of the Convention, the civil proceedings had not been heard within a reasonable time and that she had no effective remedy, contrary to Article 13 of the Convention, in respect of the length of those proceedings. She also complained that the public prosecutor had wrongly refused her application for lodging with the Supreme Court a request for the protection of legality. 4.", "The application was allocated to the Fifth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5. The applicant and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS 6.", "The applicant, Ms Nada Kostovska, is a national of the former Yugoslav Republic of Macedonia, who was born in 1920 and lives in Skopje. 7. The applicant and her close family shared a plot of building land with the family of the applicant’s niece and nephew, Mrs M.F.Z. and Mr J.F. Both families have constructed their own family houses on it.", "A small house and a shed existed on the plot, ownership of which was disputed in the proceedings complained of. 8. On 9 March 1982, the applicant and her husband instituted civil proceedings against Mrs M.F.Z. and Mr J.F. for determination of the ownership over the house and the shed and for recognition of the usus rights over the land.", "9. On 19 June 1984 the Skopje I Municipality Court (Општински Суд Скопје I) partly upheld the applicant’s and her husband’s claim and awarded them ownership title over the house and the shed and the right to use the land. 10. On 31 January 1985 the then Skopje District Court (Окружен Суд Скопје) quashed the lower court’s decision and remitted the case for re-examination as the latter had erroneously established the facts and had wrongly applied domestic law. 11.", "On 19 May 1988 the Skopje I Municipal Court partly upheld the applicant’s and her husband’s claim. 12. On 8 July 1989 the Skopje District Court quashed this decision and ordered a retrial. 13. On 19 November 1991 the Skopje I Municipal Court granted the applicant’s and her husband’s claims.", "14. On 24 September 1992 the Skopje District Court quashed the decision and remitted the case for re-examination. 15. On 28 May 1993 the Skopje I Municipal Court dismissed the applicant’s and her husband’s civil action. 16.", "On 25 November 1993 the Skopje District Court upheld the applicant’s and her husband’s appeal and ordered a retrial. 17. On 31 March 1994 the Skopje I Municipal Court dismissed the applicant’s and her husband’s claim. 18. On 28 October 1994 the Skopje District Court upheld the lower court’s decision.", "19. On 27 March 1996 the Supreme Court (Врховен Суд) upheld the applicant’s appeal on points of law (ревизија) and set aside the decisions of the lower courts. 20. After the death of the applicant’s husband, her daughter and son, Mrs L.M. and Mr V.K., joined the proceedings.", "The inheritance proceedings concerning the property of the applicant’s husband lasted from 9 October 2001 until 20 December 2001 when the Skopje Court of First Instance declared Mrs L.M. and Mr V.K. heirs. 21. Following the adoption of the Courts’ Act in 1995 (Закон за судовите), the Skopje I Municipality Court became the Skopje I Court of First Instance (Основен Суд Скопје I) and the Skopje District Court became the Skopje Court of Appeal (Апелационен Суд Скопје).", "22. On 2 July 1997 the Skopje I Court of First Instance dismissed the applicant’s and her children’s claim against Mrs M.F.Z. and Mr J.F. The court established that the applicant had built the house and the shed with the permission of Mrs M.F.Z. and Mr J.F.", "It was supposed to serve a purpose of a home for their late mother. 23. On 20 May 1998 the Skopje Court of Appeal upheld the applicant’s and her children’s appeal and quashed the lower court’s decision. It instructed the court below to re-assess the evidence and to obtain new evidence; to examine the parties; to clarify in favour of whom the house and the shed had been built; and to establish when and how the applicant had obtained possession over the property at issue. 24.", "After fifteen hearings scheduled and attended by the applicant (except the hearing of 5 February 2001 which was adjourned due to the strike of the court’s staff), on 2 November 2001, the Skopje I Court of First Instance finally dismissed the applicant’s and her children’s claim as ill-founded. The hearings of 23 October and 1 December 2000 were adjourned at the applicant’s request. 25. On 23 May 2002 the Skopje Court of Appeal upheld the lower court’s decision. 26.", "On 8 October 2002 the applicant lodged with the Supreme Court an appeal on points of law (ревизија). 27. On 9 October 2002 the applicant required the public prosecutor (Јавен Обвинител) to lodge with the Supreme Court a request for the protection of legality (барање за заштита на законитост). 28. Оn 23 October 2002 the public prosecutor refused her application.", "29. On 19 February 2003 the Supreme Court rejected the appeal on points of law as the value of the claim fell below the statutory threshold. 30. During the proceedings, four trial judges examined the applicant’s case. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 31. 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: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 32. 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 33. The Court notes that the civil proceedings started on 9 March 1982 when the applicant filed her claim with the then Municipal Court of Skopje. 34. However, the period which falls within the Court’s jurisdiction did not begin on that date, but on 10 April 1997, after the Convention entered into force in respect of the former Yugoslav Republic of Macedonia (see Horvat v. Croatia, no.", "51585/99, § 50, ECHR 2001‑VIII). 35. In assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings on 10 April 1997 (see, among other authorities, Foti and Others v. Italy, judgment of 10 December 1982, Series A no. 56, p. 18, § 53; Styranowski v. Poland, no. 28616/95, § 46, ECHR 1998-VIII).", "In this connection the Court notes that at the time of the entry into force of the Convention in respect of the former Yugoslav Republic of Macedonia the proceedings had lasted fifteen years one month and one day. 36. The Court observes that the proceedings on the merits were concluded on 23 May 2002 when the Court of Appeal had finally dismissed the applicant’s appeal. The time elapsed for the subsequent proceedings before the Supreme Court which ended on 19 February 2003 by rejecting the applicant’s appeal on points of law should not be taken into consideration, as that remedy was without prospect of success. The Court’s view is that the applicant could not have been unaware that her claim was below the statutory threshold, in particular as she had been represented by a lawyer (see Rezgui v. France (dec.), no.", "49859/99, ECHR 2000‑XI). 37. The proceedings therefore lasted for more than twenty years of which five years one month and thirteen days fall to be examined by the Court. 38. The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what is at stake for the applicant in the litigation (see, among other authorities, Frydlender v. France [GC], no.", "30979/96, § 43, ECHR 2000-VII; the Humen v. Poland [GC], no 26614/95, § 60, unreported, and the Comingersoll S.A. v. Portugal [GC], no. 35382/97, ECHR 2000-IV; the Philis v. Greece (no. 2), judgment of 27 June 1997, Reports of Judgments and Decisions 1997‑IV, § 35). 39. The Government submitted that the proceedings complained of should not be considered as one single set, but as seven sets, of proceedings, which each commenced after the higher court (the Appellate or Supreme Court) had set aside the lower court’s decision and had ordered a retrial.", "They averred that the period which had lapsed before the entry into force of the Convention should not be taken into consideration. As regards the conduct of the authorities, the Government maintained that the civil courts were generally restricted in their decision-making by the demands and conduct of the parties and could not take procedural steps on their own initiative. In this respect they argued that the courts had proceeded with the case with due diligence and in accordance with domestic law; in particular, the scheduled hearings had been held without any interruption and delays. They submitted that the applicant had contributed to the length. For instance, she should have submitted all the supporting evidence at the initial stage of the proceedings instead of lodging them subsequently and the courts had been repeatedly asked to have witnesses re-examined and to order expert opinions.", "The Government also asserted that the applicant had not attended all the hearings and by availing herself of the ordinary and extraordinary remedies had extended the proceedings. They also submitted that the proceedings had been prolonged pending the outcome of the inheritance proceedings concerning the applicant’s late husband’s property after which the applicant’s children joined the proceedings. 40. The applicant contested the Government’s argument that the proceedings should not be considered as one single procedure, pointing out that the courts had dealt throughout with the same subject-matter. She argued that the repeated examination of the witnesses, the number of experts summoned and the on-site inspections had been ordered by the trial courts as four trial judges had been replaced during the proceedings and each of them needed to acquaint himself/ herself with the case.", "She also denied that she had contributed to the inordinate length of the proceedings arguing that she had attended all the hearings scheduled. She pointed out that the inheritance proceedings concerning her late husband’s property started on 9 October 2001 and ended on 2 December 2001 and as such their duration had not been of decisive influence on the length of the proceedings. She therefore concluded that the delays in the proceedings had been wholly attributable to the domestic authorities. 41. The Court recalls that it is for the Contracting States to organise their legal systems in such a way that their courts can guarantee everyone’s right to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time (see, among other authorities, the Muti v. Italy, judgment of 23 March 1994, Series A no.", "281‑C, § 15; Horvat, cited above, § 59). 42. The Court considers that, although the case was of some factual complexity, in particular as it concerned the determination of facts that happened long time ago, this cannot alone justify the length of proceedings. 43. As regards the conduct of the domestic authorities, the Court notes that, prior to the entry into force of the Convention, the proceedings had already been pending for over fifteen years.", "Furthermore, in the period to be taken into consideration, the proceedings lasted over five years during which there were two trial court decisions and one decision of the Court of Appeal. The Court notes that it took nearly three and a half years for the Skopje Court of First Instance to decide the applicant’s claim after the Court of Appeal had referred the case back for re-examination, although it had already been pending for nineteen years and eight months. The Court finds that the proceedings complained of should be considered as one single procedure, as the courts were considering the same-subject matter throughout. 44. As to the applicant’s behaviour, the Court considers that she did not significantly contribute to length of the proceedings, as her request for adjourning two hearings in 2000 did not add much to their length.", "She attended the hearings as scheduled and the fact that she used the remedies available under domestic law cannot be considered as contributing the excessive length of the proceedings. 45. In these circumstances, the Court cannot regard as \"reasonable\" a lapse of time of more than twenty years, over five years of which falls within the Court’s ratione temporis competence. Therefore, taking into account the overall duration of the proceedings, the Court considers that the length of the proceedings in the instant case was excessive and failed to satisfy the “reasonable time” requirement (see Brigandi v. Italy, judgment of 19 February 1991, Series A no. 194-B, § 30).", "46. There has accordingly been a violation of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 47. The applicant also complained that she had no effective remedy whereby she could raise the issue of the excessive length of the proceedings in her case.", "She alleged that there had accordingly been a violation of 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.” 48. The Government admitted that the national legal system had not provided for an effective remedy in respect of the length-of-proceedings complaints. They also stated that the right to a hearing within a reasonable time was not explicitly enshrined in the Constitution and that as such it could not be invoked before the national authorities. 49. The applicant did not comment.", "50. The Court recalls that the correct interpretation of Article 13 of the Convention is that this provision guarantees an effective remedy before a national authority for an alleged violation 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). 51. As established in its case-law, it reiterates that the remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are “effective”, within the meaning of Article 13 of the Convention if they “[prevent] the alleged violation or its continuation, or [provide] adequate redress for any violation that [has] already occurred” (see Kudla cited above § 158).", "Article 13 therefore offers an alternative: a remedy is “effective” if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (see Kudla, cited above § 159). 52. The Court notes that the Government acknowledged the lack of an effective remedy in respect of the length of proceedings in the domestic legal system. 53. Accordingly, the Court finds that in the present case there has been a violation of Article 13 of the Convention in so far as the applicant had no domestic remedy whereby she could enforce her right to a “hearing within a reasonable time”, as guaranteed by Article 6 § 1 of the Convention.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 54. The applicant complained in substance that the public prosecutor had wrongly refused her application to lodge with the Supreme Court a request for the protection of legality on the ground that the statutory time-limit had expired. 55. Even assuming that the applicant complained under Article 6 that she had been denied the right of access to court, the Court considers that there is no appearance of a violation of the Convention.", "56. It follows that this complaint 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 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 40,000 in respect of non-pecuniary damage as the protracted proceedings had significantly affected her emotional life. 59. The Government contested these claims as unsubstantiated. They invited the Court to consider that the eventual finding of a violation would constitute in itself sufficient compensation for any damage in the present case.", "As an alternative, they asked the Court to assess the amount of just satisfaction to be awarded on the basis of its case-law and the economic situation of the State. 60. The Court accepts that the applicant suffered damage of a non-pecuniary nature as a result of the inordinate length of the proceedings complained of. Making its assessment on an equitable basis and having regard to the circumstances of the case, in particular the overall duration of the proceedings and the personal characteristics of the applicant and her age, the Court awards the applicant EUR 1,600. B.", "Costs and expenses 61. The applicant requested EUR 6,000 for the lawyer’s fees incurred in the proceedings before the Court, for the copying and mailing of documents. 62. According to the Court’s case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum (see, among other authorities, Arvelakis v. Greece, no. 41354/98, § 34, 12 April 2001; Nikolova v. Bulgaria [GC], no.", "31195/96, § 79, ECHR 1999-II). The number of hours claimed to have been spent by the lawyer on the case appears excessive. In the present case, on the basis of the information in its possession and its case-law in length-of-proceedings cases and making its assessment on an equitable basis, the Court awards the applicant EUR 1,500 for the legal costs and expenses incurred before it. C. Default interest 63. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints concerning the length of the proceedings and the lack of an effective remedy admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 (in respect of the length of proceedings) and Article 13 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 1,600 in respect of non-pecuniary damage; (ii) EUR 1,500 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; Done in English, and notified in writing on 15 June 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia Westerdiek Peer LorenzenRegistrarPresident" ]

[ "FOURTH SECTION CASE OF SARKIZOV AND OTHERS v. BULGARIA (Applications nos. 37981/06, 38022/06, 39122/06, and 44278/06) JUDGMENT STRASBOURG 17 April 2012 FINAL 24/09/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sarkizov and Others v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Lech Garlicki, President,David Thór Björgvinsson,Päivi Hirvelä,George Nicolaou,Ledi Bianku,Zdravka Kalaydjieva,Nebojša Vučinić, judges,and Lawrence Early, 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 four applications (nos.", "37981/06, 38022/06, 39122/06, and 44278/06) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Bulgarian nationals, Mr Dimitar Alexandrov Sarkizov, Mr Vasil Petrov Vasilev, Mr Dimitar Petkov Petkov, and Mr Kiril Dimitrov Marinkov (“the applicants”), on 5 September 2006, 31 August 2006, 18 September 2006, and 12 September 2006, respectively. 2. The applicants were represented by Mr V. Stoyanov, a lawyer practising in Pazardzhik. The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice. 3.", "The applicants alleged, in particular, that their conviction had been based to a decisive extent on anonymous witness testimony, and that their defence rights had been unacceptably restricted, in breach of Article 6 §§1 and 3 (d) of the Convention. The second and the fourth applicants alleged furthermore that the travel bans imposed on them following their release from prison had been unjustified and that they had not had effective domestic remedies in this respect, in breach of Articles 8 and 13 of the Convention and Article 2 §§ 2 and 3 of Protocol No. 4 to the Convention. 4. By a decision of 1 June 2010 the Court decided to join the applications, communicated the above-mentioned complaints to the Government and declared the remainder of the applications inadmissible.", "Under the provisions of Article 29 § 1 of the Convention, it decided to rule on the admissibility and merits of the communicated complaints at the same time. The case was later transferred to the Fourth Section of the Court, following the re-composition of the Court’s sections on 1 February 2011. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1973, 1974, 1978 and 1967 respectively.", "The first, the second and the third applicants live in Pazardzhik. The fourth applicant lives in Lozen. A. The criminal proceedings against the applicants 1. The preliminary investigation 6.", "On 12 October 2004 a preliminary investigation was opened against the applicants in respect of sexual procurement. 7. From 13 to 18 October 2004 the witnesses Mr Zh.M., Mr N.P., Ms R.M. and Ms D.M. were questioned before a judge.", "Neither the applicants nor their lawyers participated in the questioning. 8. Mr Zh.M. stated that the fourth applicant had owed him money and therefore in March 2004 had offered him the sexual services of one of the prostitutes controlled by him in lieu of payment. Mr Zh.M.", "had accepted. Later the fourth applicant had proposed to “sell” him the same woman for 2,000 euros (“EUR”). 9. Mr N.P. stated that in July 2004 he had seen two women standing on a main road, had stopped his car and had asked them who was their boss.", "They had replied that it was the fourth applicant. Then Mr N.P. had called the fourth applicant, who was an acquaintance of his, and the fourth applicant had confirmed that the women were working for him. 10. Ms R.M.", "stated that in the beginning of 2003 the fourth applicant had suggested that she work for him as a prostitute. She had accepted and the fourth applicant had bought her clothes and a bus ticket to France. There a woman named I. had met her and had found her a hotel. Ms R.M. had been instructed to give the money she earned to Ms I. who would forward it on to the first, the second and the fourth applicants through companies providing money transfer services.", "After some time the fourth applicant had sent Ms R.M. to Belgium, where the second applicant had met her. Later on, Ms R.M. had returned to Bulgaria and had prostituted herself along the main roads. One day in July 2004 another procurer had stopped his car and had suggested that she work for him.", "She had told him that she had worked for the fourth applicant, and had given him the latter’s phone number. He had called the fourth applicant and had then left. 11. Ms D.M. stated that in February 2004 she had been contacted by the third and the fourth applicants who had suggested that she work for them as a prostitute.", "She had refused. 12. On an unspecified date the Pazardzhik District Public Prosecutor’s Office decided that the identity of three other witnesses should be kept secret. 13. On 21 October 2004 witnesses with ID nos.", "15 and 16 were questioned before a judge. Before the interviews the judge verified the two witnesses’ identity. 14. Witness no. 15 stated that she had dated the third applicant in the past.", "According to her statements, in February 2004, while she was still under age, the third applicant took her to a hotel in the town of P. where he left her in a room with an unknown man. Then the man had told her that he had paid the third applicant to have sex with her. She spent about an hour with him. On another day witness no. 15 had met the third applicant who had introduced her to the fourth applicant and a woman named D. The third and the fourth applicants had suggested to witness no.", "15 and Ms D. that they work for them as prostitutes. Witness no. 15 had accepted. Afterwards, on a number of occasions from February to April 2004 witness no. 15 had been sent either by the third or the fourth applicants to meet their clients in different towns in Bulgaria.", "In April 2004 witness no. 15 had informed the third and the fourth applicants that she no longer wished to work for them. 15. Witness no. 16 stated that in February 2004 she had already been engaged in prostitution when the fourth applicant had contacted her and had suggested that she work for him.", "She had agreed and the first, the second and the fourth applicants had made arrangements for her to travel to Denmark, France and other countries in order to work as a prostitute. She had sent them money by using money transfer services or through third parties. After some time she had told them that she no longer wished to work for them. 16. Immediately after the interviews the records of the witnesses’ statements were presented to the applicants and their lawyers, and they were given the opportunity to put questions.", "The applicants and their lawyers stated in writing that they had acquainted themselves with the records and had no questions to put to the anonymous witnesses. 17. On 27 October 2004 the witness with ID no. 17 was questioned before a judge who verified her identity. The first, the second and the fourth applicants and the lawyers of the second and the fourth applicants participated in the interview but the witness’ identity was protected.", "The third applicant and his lawyer, as well as the first applicant’s lawyer, although duly summoned, were absent. Witness no. 17 stated that in the summer of 2003 she had accepted to work as a prostitute for the first, the second and the fourth applicants. They had arranged her travel to and stay in Denmark, Norway and France, and she had sent money to individuals specified by them. After some time she had informed the fourth applicant that she no longer wished to work for him.", "18. The District Court invited the applicants and their lawyers to put questions to witness no. 17. The first, the second and the fourth applicants expressly stated in writing that they had no questions for her. 19.", "On 4 November 2004 the District Court ordered three banks to inform the prosecution and the police authorities of the international money transfers ordered or received by certain individuals suspected of having been involved in the applicants’ sexual procurement activities. On 24 November 2004 the District Public Prosecutor issued a similar order in respect of two other banks. 20. On an unknown date the applicants were accused of having induced into prostitution, procured or transported, individually or in complicity with each other, the three anonymous witnesses and other women. 21.", "The applicants were also apparently subject to special means of surveillance for an unknown period of time. 2. The trial stage 22. On 22 April 2005 the District Public Prosecutor’s Office filed an indictment against the applicants. On an unknown date the District Court decided that the public should be excluded from the trial.", "23. On 5 July 2005 the District Court held a hearing in the case. The anonymous witnesses and nine other witnesses did not appear. The court adjourned the hearing because of irregularities in the summoning of witnesses. 24.", "The next hearing was held on 21 September 2005. Witness no. 15 was present, but the other two anonymous witnesses and ten other witnesses did not appear. The District Court adjourned the hearing because of irregularities in the summoning of witnesses. 25.", "On 4 November 2005 the District Court held a further hearing. The anonymous witnesses and eleven other witnesses did not appear. The Prosecutor’s Office submitted written statements by two of the anonymous witnesses that they were aware of the criminal proceedings and did not wish to attend the hearing. The applicants’ lawyers requested that the anonymous witnesses be found and questioned. The District Court held that the anonymous witnesses had been the victims of the crimes of which the applicants had been accused, and therefore were free to decide whether they wished to attend the hearing.", "It questioned seven witnesses, who stated that they did not know or did not remember anything about the case. However, two of the witnesses, Mr A.D. and Mr I.S., admitted that they had received international money transfers, and Mr A.D. specified that he had thus done the fourth applicant who had had no identity card a favour. The Public Prosecutor requested that the records of the witnesses’ statements before the investigator be read out in court. However, the applicants did not give their consent and the District Court dismissed that request. 26.", "The next hearing was held on 20 December 2005. The anonymous witnesses and several other witnesses were again absent. The Prosecutor’s Office submitted a police report attesting to the fact that one of the anonymous witnesses was abroad. The District Court ordered that the anonymous witnesses and the other absent witnesses be found and brought before it. It further questioned four witnesses, including the witness R.M.", "After that it read out R.M.’s testimony given before a judge at the pre-trial stage (see paragraph 10 above), finding that there was inconsistency in her statements. Another witness, Ms Ts.V., stated that in October 2004 the fourth applicant had suggested that she work for him as a prostitute but she had refused. 27. The next hearing was held on 20 February 2006. The District Court examined one witness and admitted the evidence obtained from the use of special means of surveillance.", "The anonymous witnesses and several other witnesses once again did not appear. The Prosecutor’s Office stated that two of the anonymous witnesses were abroad and that the third could not be found. The applicants’ lawyers insisted that the anonymous witnesses be found and questioned, and asserted that anonymity was not justified as the applicants knew the identity of those witnesses. The District Court again ordered that the anonymous witnesses and the other missing witnesses be found and brought before it. 28.", "A further hearing was held on 28 March 2006. The anonymous witnesses and several other witnesses did not appear. A police report was submitted, stating that two of the anonymous witnesses had left the country and the third one had not been found. The applicants’ lawyers insisted that the anonymous witnesses be found and questioned, and expressed doubts about the efforts of the prosecution authorities to ensure their presence at the trial. They further requested the cancellation of the witness protection measures, stating that the applicants were already aware of their identity.", "The District Court found that the reasons for protecting the anonymous witnesses persisted. Noting that the anonymous witnesses were abroad, it read out their statements given at the pre-trial stage and admitted them. It did the same with the testimony of Mr Zh.M. (see paragraph 8 above), who appeared but stated that he did not remember anything about the case, and with the testimony of three other witnesses who had been questioned before a judge at the pre-trial stage, including Mr N.P. and Ms D.M.", "(see paragraphs 9 and 11 above), who could not be found and summoned. The District Court also read out and admitted a number of documents, such as reports on international money transfers, police reports, and the information obtained through the secret surveillance of the applicants. The applicants’ lawyers unsuccessfully requested the recusal of the panel. 29. In a judgment of 28 March 2006 the District Court convicted the applicants, individually or in complicity with each other, of having induced or attempted to induce into prostitution, procured or transported the three anonymous witnesses and the witnesses Ms R.M., Ms D.M.", "and Ms Ts.V. Mr Sarkizov was sentenced to three years’ imprisonment and a fine, Mr Vasilev – to three years’ imprisonment and a fine, Mr Petkov – to three years and two months’ imprisonment and a fine, and Mr Marinkov – to five years’ imprisonment and a fine. The District Court found that the victims’ statements, including those of the anonymous witnesses, had been corroborated by the other evidence in the case, such as other witness statements, reports on international money transfers, reports from the border control authorities, and the information obtained through the secret surveillance of the applicants. 30. Following an appeal by the applicants, on 4 July 2006 the Pazardzhik Regional Court held a hearing.", "It dismissed the applicants’ request that the anonymous witnesses be questioned, finding that this was not necessary. 31. In a judgment of 17 July 2006 the Regional Court upheld the sentence of 28 March 2006. It fully endorsed the findings and conclusions of the District Court. 32.", "The judgment of 17 July 2006 was not subject to an appeal on points of law and became final. 33. On an unknown date the applicants requested the reopening of the criminal proceedings. In a judgment of 30 May 2007 the Supreme Court of Cassation dismissed the request. It held that there had been no procedural breaches in the examination of the anonymous witnesses at the pre-trial stage, and that the applicants had been acquainted with the examination records and had explicitly stated that they had no questions to put to those witnesses.", "The court further emphasised that the anonymous witnesses’ testimony had not been the sole or decisive evidence for the applicants’ conviction, but had been corroborated by a wealth of other evidence. B. Subsequent restriction on the second and the fourth applicants’ leaving the country 1. The second applicant 34. The second applicant was conditionally released from prison on 26 April 2007 with a six-month supervision period, which expired, apparently, in October 2007.", "35. On 4 June 2007 the Pazardzhik Regional Police Directorate prohibited him from leaving the country pending his rehabilitation (see paragraph 46 below). He appealed against the order, arguing that he had no employment in Bulgaria and that the prohibition did not contribute to his social re-integration, was excessive and unnecessary. In a final judgment of 28 January 2008 the Supreme Administrative Court dismissed the appeal. The court held that the prohibition had been imposed in compliance with the law, on the grounds of the second applicant’s conviction for an offence subject to public prosecution, and that the ratio legis behind the prohibition was to prevent criminally active individuals from travelling abroad until they had proved that they had been reformed.", "2. The fourth applicant 36. On an unknown date the fourth applicant was released from prison. 37. On 7 April 2008 the Pazardzhik Regional Police Directorate prohibited him from leaving the country pending his rehabilitation.", "He appealed against the order, arguing that he had served his sentence, that there were no pending criminal proceedings against him, that his work as a football manager required frequent travel abroad and that he had to accompany his son for medical treatment abroad. In a final judgment of 18 December 2008 the Supreme Administrative Court dismissed the appeal, holding that the assessment of the administrative body was not subject to judicial control. The court further held that the police authorities were not obliged to state any reasons for their decision to impose the ban. 3. Duration of the travel bans and their cancellation in respect of the second and the fourth applicants 38.", "Seeing that the travel bans were contingent on the judicial rehabilitation of the second and the fourth applicants, these measures apparently would have lasted at least until October 2010 for the second applicant and until an unknown date in 2011 for the fourth applicant (see paragraph 46 below). However, in October 2009 the Bulgarian Identity Papers Act was amended to the effect that convicted individuals who had served their sentences could no longer be prohibited from leaving the country. As a result, all travel bans imposed before that amendment ceased to have effect as from July 2010 (see Nalbantski v. Bulgaria, no. 30943/04, § 25, 10 February 2011). II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Anonymous witnesses 39. Pursuant to Articles 97a and 98 of the 1974 Code of Criminal Procedure (“the 1974 CCP”), in force until 29 April 2006, measures for the protection of a witness had to be taken where there were sufficient grounds to believe that his testimony had caused or could have caused a real risk to his life, health or property or that of his close relatives or other individuals with whom he had very close ties. The decision that a witness should be protected had to specify the reasons for the protection and its type. The pre‑trial authorities and the court had a direct access to the protected witness and were obliged to verify his identity before the interview.", "A copy of the record of the interview with a protected witness had to be presented immediately to the accused and his lawyer who were entitled to put questions to the witness. The measures for protection could be discontinued at the request of the protected witness or where they were no longer necessary. 40. Pursuant to Article 99a of the 1974 CCP, the charges and the conviction could not be based exclusively on the testimony of anonymous witnesses. 41.", "These provisions were superseded by Articles 123, 124 and 141 of the 2006 CCP, in force since 29 April 2006, which repeat their text almost verbatim. 42. In a binding interpretative decision (тълк. реш. № 2 от 16 юли 2009 г. на ВКС по тълк.д.", "№ 2/2009 г., ОСНК) of 16 July 2009 the Plenary Meeting of the Criminal Chambers of the Supreme Court of Cassation resolved a number of contentious issues relating to the construction of various provisions of the Criminal Code and the 2006 CCP on the prosecution of human trafficking. In point 5 of the decision it held that the victim of a human trafficking offence could participate in the criminal proceedings as an anonymous witness. It held that the accused’s defence rights could be subjected to reasonable restrictions, including by granting anonymity status to the testifying victim, in order to protect the latter’s rights. However, a strict judicial control had to be exercised over the reasons for granting anonymity to testifying victims and over the procedures aimed at counterbalancing the restriction of the defence rights. According to the Supreme Court of Cassation, in cases of anonymous witnesses the legislation provided three procedural safeguards against the risk of manipulating the evidence in favour of the prosecution: (1) the direct contact between the judge and the anonymous witness, which guaranteed, at the very least, that such a witness indeed existed; (2) the right of the accused and his lawyer to put questions to the anonymous witness immediately after his questioning; and (3) the limited probative importance the legislation attached to anonymous testimony (see paragraph 40 above).", "The court made reference to the case-law of this Court and concluded that the rules of fair trial would not be breached if the above procedures were strictly complied with, and notably, if the accused has been given the opportunity to put questions to the anonymous witness immediately after the questioning of the latter. B. Questioning of witnesses before a judge at the pre-trial stage and reading out their testimony in court 43. The possibility to interview a witness before a judge, in cases where it is likely that the witness would not be able to attend the trial due to illness, absence or other reasons, or where his testimony would be of “exceptional importance for the establishment of objective truth”, was provided for in Article 210a of the 1974 CCP. The provision was inserted with effect from 1 January 2000 with the aim of creating a possibility to use evidence collected at the pre-trial stage of the proceedings, while at the same time conforming to the principle of immediacy of judicial proceedings.", "Article 210a § 2 specifically provided that the investigator or prosecutor in charge of the interview had to ensure the witness’s presence and “a possibility” for the accused and his counsel to take part in the interview. 44. Article 279 of the 1974 CCP allowed the statement of a witness given at the pre-trial stage to be read out in court if, inter alia, there was a considerable discrepancy between that statement and the witness’ testimony given at the trial; if the witness had not been found and summoned or was unable to appear in court; or if he had appeared but had refused to testify at trial or had stated that he did not remember anything. If the accused was not represented, the court had to inform him that the testimony thus read out would be used for the determination of the criminal charges against him. Where the statement had been made before a judge, pursuant to Article 210a of the 1974 CCP, there was no requirement for the court examining the case to obtain the consent of the parties (Article 279 § 1).", "C. Travel ban on convicted individuals pending their rehabilitation 45. The relevant domestic law and practice concerning travel bans on convicted individuals pending their rehabilitation are set out in the Court’s judgment in the case of Nalbantski, cited above, §§ 25-29. D. Rehabilitation of convicted offenders 46. Under Article 87 § 1 of the 1968 Criminal Code, a convicted individual may benefit from judicial rehabilitation. Such rehabilitation may be granted by the court which convicted him or her, if more than three years have elapsed since the serving of the sentence, and the individual concerned has not committed another offence punishable with imprisonment, has demonstrated good behaviour and, in the case of offences committed with intent, has made good any damage done.", "The latter requirement may be disregarded by the court if there is good reason (Article 87 § 2). E. The 1988 State and Municipalities Responsibility for Damage Act 47. Section 1 of the 1988 State and Municipalities Responsibility for Damage Act (“the SMRDA”), as in force since July 2006, provides as follows: “The State and the municipalities shall be liable for damage caused to individuals and legal persons by unlawful decisions, actions or omissions by their organs and officials, committed in the course of or in connection with the performance of administrative action.” 48. Pursuant to the consistent case-law of the domestic courts, for the impugned conduct to be considered unlawful, it must be in breach of national law. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (d) OF THE CONVENTION 49. The applicants complained that their conviction had been based to a decisive extent on anonymous witness testimony. They also complained that they had not been given the opportunity to participate in the questioning of the anonymous witnesses. They relied on Article 6 §§ 1 and 3 (d) of the Convention, which provide, as relevant, as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 3. Everyone charged with a criminal offence has the following minimum rights: ... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” A.", "The parties’ submissions 50. The Government contested these arguments and maintained that the applicants had been given the opportunity to put questions to these witnesses immediately after their questioning before a judge at the pre-trial stage, but had expressly refused to do so. They submitted copies of written statements of the applicants and their lawyers to this effect. They further argued that the granting of anonymity to witnesses nos. 15, 16 and 17 had been necessary for their protection and had not affected the applicants’ procedural rights.", "The Government also contended that the applicants’ conviction had not been based to a decisive extent on the testimony of the anonymous witnesses, as their statements had been corroborated by other evidence, such as the testimony of other witnesses and the results from the secret surveillance of the applicants. 51. The applicants argued that it had not been necessary to grant anonymity to witnesses nos. 15, 16 and 17 because they had already been aware of their identity. They further stated that the anonymous witnesses and the other witnesses who had testified at the pre-trial stage had given their statements under pressure by the investigating authorities.", "They complained that the prosecution authorities and the trial court had made no efforts to summon the anonymous witnesses despite the applicants’ requests because they had feared that the witnesses would change their testimony, as other witnesses had done. B. Admissibility 52. 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. C. Merits 53.", "A statement of the general principles concerning the use of incriminating statements made by absent witnesses may be found in the Court’s recent judgment in Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 120-147, 15 December 2011. In that judgment the Court recalled that the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings In making this assessment the Court will look at the proceedings as a whole having regard to the rights of the defence but also to the interests of the public and the victims that crime is properly prosecuted and, where necessary, to the rights of witnesses. The Grand Chamber recalled in this context that the admissibility of evidence is a matter for regulation by national law and the national courts and that the Court’s only concern is to examine whether the proceedings have been conducted fairly.", "Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings (see § 118 of Al-Khawaja and Tahery [GC], cited above). 54. There are two requirements which follow from the above general principle. First, there must be a good reason for the non-attendance of a witness.", "Second, when a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence may be restricted to an extent that is incompatible with the guarantees provided by Article 6 (the so-called “sole or decisive rule”) (ibid., § 119). As regards the application of the latter rule, the Grand Chamber concluded that where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. At the same time where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case (ibid., § 147).", "55. The Grand Chamber further noted that while the problems raised by anonymous and absent witnesses are not identical, the two situations are not different in principle, since each results in a potential disadvantage for the defendant. The underlying principle is that the defendant in a criminal trial should have an effective opportunity to challenge the evidence against him. This principle requires not merely that a defendant should know the identity of his accusers so that he is in a position to challenge their probity and credibility but that he should be able to test the truthfulness and reliability of their evidence, by having them orally examined in his presence, either at the time the witness was making the statement or at some later stage of the proceedings (ibid., § 127). 56.", "Applying those principles to the present case, the Court notes that the parties did not submit the decision of the pre-trial authorities granting anonymity to witnesses nos. 15, 16 and 17. Thus, it is unable to examine how the authorities assessed the necessity of this measure. However, it is prepared to accept that as victims of sexual procurement, the anonymous witnesses must have reasonably feared reprisals at the hands of their procurers. Furthermore, the applicants’ objections in this respect were examined and dismissed by the District Court (see paragraph 28 above).", "As to the applicants’ argument that they managed to discover the anonymous witnesses’ identity, the Court considers it irrelevant because it does not support the applicants’ thesis that the anonymity status limited their opportunity to test those testimonies. 57. The Court further considers that in the circumstances of the present case the difficulties encountered by the defence in connection with the anonymity granted to those witnesses were sufficiently counterbalanced by the procedures followed by the judicial authorities. In particular, the anonymous witnesses were questioned at the pre-trial stage before a judge in compliance with Article 210a of the 1974 CCP (see paragraphs 13-17 and 43 above). Immediately after the interviews, the applicants and their lawyers were given the opportunity to put questions to those witnesses and to cast doubt on the credibility of their testimony.", "However, they expressly refused to put questions and therefore can be considered to have waived their right to challenge these statements (see, mutatis mutandis, Zdravko Petrov v. Bulgaria, no. 20024/04, § 38, 23 June 2011, with further references). The applicants, who were represented by lawyers, should have been aware that the testimony thus obtained could be used as evidence by the courts. Therefore the Court is unable to share the applicants’ view that they were denied an adequate and proper opportunity to challenge and question the anonymous witnesses at the time when they made their statements. 58.", "The Court notes that the applicants’ conviction was not based solely or to a decisive extent on the anonymous witnesses’ testimonies. The domestic courts had before them a mass of other evidence, such as reports on money transfers, information from the border control database, results from the use of special surveillance measures, and statements of other witnesses, that permitted them to make a fair and proper assessment of the reliability of the anonymous witnesses’ testimonies, and the applicants – to challenge or rebut them by giving evidence themselves. The courts based the applicants’ conviction on a thorough analysis of all those pieces of evidence and found that they corroborated the anonymous witnesses’ account of the events. It is true that even where the evidence of an absent witness has not been sole or decisive, the Court has still found a violation of Article 6 §§ 1 and 3 (d) when no good reason has been shown for the failure to have the witnesses examined (see, for example, in Lüdi v. Switzerland, 15 June 1992, Series A no. 238, Mild and Virtanen v. Finland, no.", "39481/98 and 40227/98, 26 July 2005, Bonev v. Bulgaria, no. 60018/00, 8 June 2006; and Pello v. Estonia, no. 11423/03, 12 April 2007). This is because as a general rule witnesses should give evidence during the trial and that all reasonable efforts will be made to secure their attendance (see Al‑Khawaja and Tahery [GC], cited above, § 120). The applicants have criticised the failure of the authorities to make reasonable efforts to secure the attendance of the anonymous witnesses.", "However, the Court notes that the domestic courts made reasonable efforts to have those witnesses located and summoned and that their efforts cannot be dismissed as inadequate (see paragraphs 26 and 27 above). Furthermore, it does not lose sight of the fact that the domestic courts are best placed to assess whether it is appropriate to call a witness, and finds that their decision not to persist in their efforts to find those witnesses was neither unreasonable nor arbitrary in the circumstances, seeing that the applicants were already given ample opportunity to examine them and, moreover, under conditions which did not place them at a substantial disadvantage vis à vis the prosecuting authorities (see paragraphs 16-18 above, compare S.N. v. Sweden, no. 34209/96, § 49, ECHR 2002‑V). 59.", "For these reasons, the Court finds that the applicants’ rights under Article 6 were not unacceptably restricted and that they were able to participate effectively in the proceedings. 60. It follows that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention in the applicants’ case. II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No.", "4 TO THE CONVENTION 61. The second and the fourth applicants complained under Article 2 of Protocol No. 4 about the travel ban which had been imposed on them following their release from prison. This provision reads, in so far as relevant, as follows: “... 2. Everyone shall be free to leave any country, including his own.", "3. No restrictions shall be placed on the exercise of [that right] other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ...” A. The parties’ arguments 62. The Government submitted that the second and the fourth applicants had failed to exhaust domestic remedies, as they had not requested their rehabilitation, which, if granted by the courts, would have automatically put an end to their travel bans, and they had not sought damages.", "On the merits, the Government maintained that the travel bans had been imposed in compliance with the domestic legislation and had been necessary for the prevention of crime, in view of the nature of the offences committed by the applicants. 63. The second and the fourth applicants contended that the police authorities had not provided reasons for the travel bans and the national courts had carried out only a formalistic review of those bans. The travel bans had been arbitrary. B.", "The Court’s assessment 1. Admissibility 64. Regarding the Government’s objection that the second and the fourth applicants could have requested their rehabilitation, the Court notes that under Article 87 § 1 of the 1968 Criminal Code rehabilitation was not possible during the first three years which followed the serving of a sentence (see paragraph 46 above). Therefore this opportunity was not available to the second and the fourth applicants after their release from prison. In any event, the Government have not argued that the lawfulness and justification of a travel ban could be subject to examination in rehabilitation proceedings.", "Therefore the Government’s first objection should be rejected. As to the possibility of the second and the fourth applicants claiming damages, the Court notes that such a claim could not result in the lifting of the travel bans. Furthermore, one of the prerequisites for a successful claim under the SMRDA is the establishment of the unlawfulness of the act causing the damage (see paragraphs 47-48 above). However, the domestic courts dismissed the appeals by the second and the fourth applicants against the travel bans, finding them lawful under national law (see paragraphs 35 and 37 above). Accordingly, the Government’s second objection should also be dismissed.", "65. The Court further notes that the above complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and are not inadmissible on any other grounds. They must therefore be declared admissible. 2. Merits 66.", "The Court cannot exclude that, having regard to the nature of the offences committed by the second and fourth applicants, who were apparently involved in running a prostitution ring in various European countries, a ban on them leaving the country for a certain period after the end of their prison terms could be found to be justified under Article 2 of Protocol No. 4 (see examples of travel bans found to be justified in paragraph 65 of the Court’s judgment in Nalbantski (cited above)). 67. The Court notes, however, that in the present case the police and the domestic courts applied the same automatic approach, criticised by the Court in Nalbantski (cited above, §§ 62 and 66-67): they gave no reasons for the travel bans, and failed to examine the applicants’ individual situation and the question of proportionality. Furthermore, as in Nalbantski (ibid., §§ 26, 56 and 66), the courts were only competent to review the formal lawfulness of the ban and not the need for such a measure, which was deemed to fall exclusively within the discretionary power of the police authorities (see paragraphs 35 and 37 above).", "68. In these circumstances, in the absence of reasons and proper judicial review of the question of proportionality by the domestic authorities, the Court cannot speculate as to whether or not there were grounds that could have justified the travel ban imposed on the second and fourth applicants. 69. The authorities’ approach was as such incompatible with Article 2 §§ 2 and 3 of Protocol No. 4, which imposes a duty on the authorities to ensure that a restriction of an individual’s right to leave his or her country is, from the outset and throughout its duration, justified and proportionate.", "That assessment should normally be subject to review by the courts, since they offer the best guarantees of independence, impartiality and lawfulness of the procedures. The scope of their review should enable them to take account of all the factors involved (see Gochev v. Bulgaria, no. 34383/03, § 50, 26 November 2009, with further references). 70. As that was not done in the present case, the Court finds that there has been a breach of Article 2 of Protocol No.", "4 in respect of the second and the fourth applicants. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 71. The second and fourth applicants complained that they had not had any effective domestic remedies available to them in respect of the travel bans and that their personal and business lives had been affected by that measure. They relied on Articles 8 and 13 of the Convention.", "72. In view of its findings above under Article 2 of Protocol No. 4, the Court finds that the above complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and are not inadmissible on any other grounds. They must therefore be declared admissible. 73.", "The Court considers, however, that in the circumstances of the present case no separate issue arises under Articles 8 and 13. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION A. Damage 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.", "Each of the second and the fourth applicants claimed 25,000 euros (EUR) in damages generally, for violations of the Convention in their case. 76. The Government argued that the claims were excessive. 77. The Court considers that in the circumstances of the present case the finding of a violation constitutes sufficient just satisfaction for any non‑pecuniary damage which the second and the fourth applicants may have suffered.", "B. Costs and expenses 78. The second and the fourth applicants also claimed EUR 3,000 for twenty-seven hours of legal work by their lawyer in the proceedings before the domestic courts and the Court. In support of their claim they presented contracts and time sheets. 79.", "The Government considered these amounts excessive and unsubstantiated. 80. 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 rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award jointly to the second and the fourth applicants the sum of EUR 1,000 for the proceedings before the Court. C. Default interest 81.", "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 admissible the applicants’ complaints under Article 6 §§ 1 and 3 (d) and the complaints of the second and the fourth applicants under Article 2 of Protocol No. 4 and Articles 8 and 13 of the Convention, and the remainder of the application inadmissible; 2. Holds that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention in respect of the applicants; 3.", "Holds that there has been a violation of Article 2 of Protocol No. 4 in respect of the second and the fourth applicants; 4. Holds that no separate issues arise under Articles 8 and 13 of the Convention; 5. Holds that the finding of a violation of Article 2 of Protocol No. 4 constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the second and the fourth applicants; 6.", "Holds (a) that the respondent State is to pay jointly to Mr Vasilev and Mr Marinkov, 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 to them, in respect of costs and expenses, to be converted into Bulgarian levs 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; 7. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 17 April 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyLech GarlickiRegistrarPresident" ]

[ "FIRST SECTION CASE OF KOROBOV AND OTHERS v. RUSSIA (Application no. 67086/01) JUDGMENT STRASBOURG 27 March 2008 FINAL 27/06/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Korobov and Others 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,Sverre Erik Jebens,Giorgio Malinverni, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 6 March 2008, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no.", "67086/01) 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 three Russian nationals, Mr Anatoliy Yuryevich Korobov, Mr Oleg Yuryevich Savelyev and Mr Dmitriy Vladimirovich Tsyplov (“the applicants”), on 10 August 2000. 2. The applicants, who had been granted legal aid, were represented by Ms K. Kostromina, a lawyer with the International Protection Centre in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicants alleged, in particular, that the conditions of their detention amounted to a violation of Article 3 of the Convention. 4. By a decision of 2 March 2006 the Court declared the application partly admissible. 5. The Government, but not the applicants, filed further written observations (Rule 59 § 1).", "THE FACTS 6. The applicants were born in 1979 and live in Ivanovo. A. Criminal proceedings against the applicants 7. On 1 February 1998 criminal proceedings were brought against the applicants on suspicion that they had beaten up and robbed a passer-by.", "On 4 February 1998 their detention pending trial was ordered. 8. By a final judgment of the Ivanovo Regional Court of 18 June 1998 the applicants were convicted of aggravated robbery and sentenced to various terms of imprisonment. On 3 December 1999 the judgment was quashed and the case remitted to the police for a fresh investigation. The fresh examination of the case ended with the applicants’ being convicted of aggravated robbery by the Regional Court’s judgment of 4 May 2000, which was varied by the same court on 23 March 2001 by reclassifying the applicants’ actions as affray and theft.", "The applicants were released from prison in 2001 and 2002. B. Conditions in detention facility IZ-37/1 1. Duration of detention and cell space per inmate 9. Mr Korobov and Mr Savelyev were held in pre-trial detention facility IZ-37/1 in Ivanovo in seven different cells from 4 February to 14 July 1998, from 14 December 1999 to 23 May 2000 and from 3 to 5 April 2001.", "Mr Tsyplov was kept in the same detention facility in six different cells from 4 February to 13 July 1998 and from 28 December 1999 to 23 May 2000. 10. According to the applicants, they were kept in cells measuring 20 to 25 sq. m, in which 32 inmates were held at the same time. According to Mr Savelyev, he was also held in cells measuring 15 and 19 sq.", "m which had 10 and 12 beds and held 24 and 27 detainees respectively. It follows from the applicants’ information that there was 0.6 to 0.7 sq. m per person in their cells. 11. According to the Government, the number of detainees was equal to the number of beds.", "It therefore follows from the Government’s detailed information on the surface area and the number of beds in each cell that there was from 1 to 2.2 sq. m per person in the applicants’ cells at any given time. 2. Other observations 12. According to the applicants, the cells had no proper ventilation.", "Being surrounded by heavy smokers, Mr Korobov, who did not smoke, was forced to become a passive smoker. The windows had no glass on them and in winter the prisoners had to cover them with blankets. It was very cold in winter and stuffy in summer. The floor was concrete. The toilet was not separated from the rest of the area and the detainees themselves had to partition it off with a curtain.", "There was fungus in the cells. They were infested with cockroaches, bugs and lice. No bedding was provided and the applicants had to obtain it from their families. The food was of poor quality. 13.", "According to the Government, the minimum duration of the detainees’ daily exercise outside their cells was one hour. They could have a shower once a week and were given individual bedding, though between 1998 and 2000, owing to a shortage of funds, they were allowed to obtain missing items of bedding from their families. Ventilation, lighting and heating complied with the relevant standards. In winter the heating was sometimes cut off for short periods, not exceeding twelve hours, owing to malfunctioning of the municipal heating system. The cells were cleaned daily and disinfected weekly.", "All the inmates underwent a medical examination on arrival. There were no complaints about insects in the cells at the material time. The toilet in each cell was separated by a brick partition between 1.2 and 1.8 m high. It was not completely separated, in order to prevent suicides and sexual offences. The windows in the cells had glass in them.", "Between 1998 and 2000 the windows were fitted on the outside with shutters made of steel plates welded at an angle of forty-five degrees to ensure sound and visual insulation. On the inside they were fitted with steel bars. In January and February 2003 the shutters were removed throughout the detention facility. 3. Punishment cell 14.", "According to Mr Korobov, he was disciplined by the prison authorities and placed for seven days in a punishment cell in February 2000. The temperature outside was about minus 27 to minus 30oC and the cell was not heated. It measured 1.5 by 5 metres and was poorly lit. The floor was concrete. A pail, emptied once a day, served as a toilet.", "The bench was fastened to the wall during the day, so that he could neither lie nor sit. The applicant fell ill with a cold and had a fever. No medical treatment was provided despite his requests. 15. According to the Government, it was impossible to establish whether the applicant had indeed been placed in a punishment cell, as the relevant records had been destroyed on expiry of the three-year statutory storage period.", "All the punishment cells in the detention facility had central heating, water supply and a sewerage system. The temperature was no lower than 18oC. The cells measured 5.4 sq. m. The walls and the floor were concrete. A metal bunk bed with a wooden cover was lifted and locked to the wall for the period between 6 a.m. and 10 p.m. Bedding was provided for the night’s sleep.", "According to the relevant medical records, Mr Korobov did not request any medical treatment in February 2000. Under the relevant legislation, detainees were placed in punishment cells on the basis of an order from the prison governor and an opinion from a prison medical officer. Compliance with the legislation was supervised by the prosecutor’s office. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 16.", "The applicants complained under Article 3 of the Convention about the conditions of their detention in pre-trial detention facility IZ-37/1. Mr Korobov also complained about the conditions in the IZ-37/1 punishment cell in which he had allegedly been placed in February 2000. The applicants relied on Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 17. The Government claimed that the conditions of the applicants’ detention in facility IZ-37/1, as described by them, did not amount to a violation of Article 3. 18.", "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, among other authorities, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000‑IV). However, to fall under Article 3, ill-treatment must attain a minimum level of severity. The assessment of this minimum level of severity 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 Valašinas v. Lithuania, no.", "44558/98, §§ 100-01, ECHR 2001-VIII). 19. 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 Labzov v. Russia, no. 62208/00, § 42, 16 June 2005). Measures depriving a person of his liberty may often involve such an element.", "Nevertheless, under this provision 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 do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI). 20. 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).", "21. The Court notes that it can only examine the applicants’ situation after 5 May 1998, the date on which the Convention came into force in respect of Russia. As the applicants were placed in detention facility IZ-37/1 three months earlier, the major part of their detention, namely seven months and twenty days in respect of Mr Korobov and Mr Savelyev and seven months in respect of Mr Tsyplov, took place after that date. 22. The parties disagreed as to the specific conditions of the applicants’ detention.", "Some of the applicants’ allegations, for example Mr Korobov’s complaints concerning the punishment cell, are not supported by sufficient evidence and, therefore, cannot be proved “beyond reasonable doubt”, which is the Court’s normal standard of proof (see Trepashkin v. Russia, no. 36898/03, § 85, 19 July 2007). However, in the present case the Court does not consider it necessary to establish the truthfulness of each and every allegation made by the applicants, because it finds that there has been a violation of Article 3 on the basis of the facts which have been presented or undisputed by the respondent Government, for the following reasons. 23. The main allegation, which the parties have in principle agreed upon, is that the cells were overpopulated.", "It follows from the Government’s information that there was 1 to 2.2 sq. m per person in the applicants’ cells. 24. The Court observes further that the applicants had one hour’s exercise each day outside their cells and access to bathing facilities once a week. For the rest of the time they were confined to their cells.", "The Government argued that the applicants had spent most of their time outside their cells since they had been taken to court hearings and investigation actions, as well as for their meetings with lawyers, families, prison administration and medical examinations. The Court does not find this argument convincing since it is not supported by any evidence as to the applicants’ specific situations. 25. The Court has frequently found a violation of Article 3 of the Convention on account of the lack of personal space afforded to detainees (see, in particular, Kalashnikov v. Russia, no. 47095/99, §§ 97 et seq., ECHR 2002-VI; Labzov, cited above, §§ 44 et seq.", "; Mayzit v. Russia, no. 63378/00, §§ 39 et seq., 20 January 2005; Khudoyorov v. Russia, no. 6847/02, §§ 104 et seq., 8 November 2005; Novoselov v. Russia, no. 66460/01, §§ 41 et seq., 2 June 2005; and Popov v. Russia, no. 26853/04, §§ 215 et seq., 13 July 2006).", "In those cases the Court considered the extreme lack of space to be the focal point for its analysis of compatibility of the conditions of applicants’ detention with Article 3. It found that the fact that an applicant was obliged to live, sleep, and use the toilet in the same cell with 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 arouse in him feelings of fear, anguish and inferiority capable of humiliating and debasing him. 26. The Court reiterates that irrespective of the reasons for the overcrowding, it is incumbent on the respondent Government 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 Mamedova v. Russia, no. 7064/05, § 63, 1 June 2006, and Benediktov v. Russia, no.", "106/02, § 37, 10 May 2007). 27. 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. 28. Furthermore, the applicants’ situation was aggravated by the fact that the cell windows had been covered with metal shutters which blocked access to fresh air and natural light.", "29. The foregoing considerations are sufficient to enable the Court to conclude that the applicants’ conditions of detention went beyond the threshold tolerated by Article 3. 30. Therefore, there has been a violation of Article 3 of the Convention on account of the conditions of the applicants’ detention in remand facility IZ-37/1 in Ivanovo. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 31. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 32. On 8 March 2006, after the present application had been declared partly admissible, the Court invited the applicants to submit their claims for just satisfaction. They did not submit any such claims within the required time-limit. On 15 November 2006 the Court again wrote to the applicants pointing out that they had not submitted claims.", "It was not until 28 April 2007 that the applicants’ counsel replied to the Court stating that the applicants had no further observations. 33. In these circumstances the Court makes no award. FOR THESE REASONS, THE COURT UNANIMOUSLY Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicants’ detention in remand facility IZ‑37/1 in Ivanovo. Done in English, and notified in writing on 27 March 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FIFTH SECTION CASE OF KOSTYUKOV v. UKRAINE (Application no. 18282/18) JUDGMENT This version was rectified on 22 March 2019 under Rule 81 of the Rules of Court. STRASBOURG 21 February 2019 This judgment is final but it may be subject to editorial revision. In the case of Kostyukov v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Síofra O’Leary, President,Mārtiņš Mits,Lado Chanturia, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 31 January 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 3 April 2018.", "2. The applicant was represented by Mr M.O. Tarakhkalo and Ms V.P. Lebid, lawyers practising in Kyiv[1]. 3.", "Notice of the application was given to the Ukrainian Government (“the Government”). THE FACTS 4. The applicant’s details and information relevant to the application are set out in the appended table. 5. The applicant complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION 6. The applicant complained that the length of the criminal proceedings in question had been incompatible with the “reasonable time” requirement and that he had no effective remedy in this connection. He relied on Article 6 § 1 and Article 13 of the Convention, which read as follows: Article 6 § 1 “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 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 applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Pélissier and Sassi v. France [GC], no.", "25444/94, § 67, ECHR 1999‑II, and Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII). 8. In the leading case of Merit v. Ukraine, (no. 66561/01, 30 March 2004), the Court already found a violation in respect of issues similar to those in the present case.", "9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to 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 proceedings was excessive and failed to meet the “reasonable time” requirement. 10. The Court further notes that the applicant did not have at his disposal an effective remedy in respect of these complaints.", "11. These complaints are therefore admissible and disclose a breach of Article 6 § 1 and of Article 13 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 12. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 13.", "Regard being had to the documents in its possession and to its case‑law (see, in particular, Bevz v. Ukraine, no. 7307/05, § 52, 18 June 2009), the Court finds it reasonable to award the sum indicated in the appended table. 14. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the application admissible; 2. Holds that it discloses a breach of Article 6 § 1 and Article 13 of the Convention concerning the excessive length of criminal proceedings; 3. Holds (a) that the respondent State is to pay the applicant, within three months, the amount 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 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 21 February 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtSíofra O’Leary Acting Deputy RegistrarPresident APPENDIX Application raising complaints under Article 6 § 1 and Article 13 of the Convention (excessive length of criminal proceedings and lack of any effective remedy in domestic law) Application no.", "Date of introduction Applicant’s name Date of birth Start of proceedings End of proceedings Total length Levels of jurisdiction Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[2] 18282/18 03/04/2018 Maksim Anatolyevich Kostyukov 14/12/1978 27/05/2009 pending More than 9 years, 7 months and 14 days 3 levels of jurisdiction 2,400 [1] Rectified on 22 March 2019: the text was: “The applicant was represented by Mr M.O. Tarakhkalo, a lawyer practising in Kyiv.” [2]. Plus any tax that may be chargeable to the applicant." ]

[ "FIRST SECTION CASE OF KAMALIYEVY v. RUSSIA (Application no. 52812/07) JUDGMENT (Merits) STRASBOURG 3 June 2010 FINAL 03/09/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kamaliyevy 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,Sverre Erik Jebens, 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.", "52812/07) 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 Mr Abdugani Kamaliyev, a national of Uzbekistan, and his wife Mrs Maymuna Kamaliyeva, a national of Russia (“the applicants”), on 3 December 2007. On 20 August 2008 the second applicant died, and the application is continued on her behalf by the first applicant. 2. The applicants were represented by Mrs Ryabinina and Mr Koroteyev, lawyers practising in Moscow. The Russian Government (“the Government”) were represented by Mrs V. Milinchuk, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their new Representative, Mr G. Matyushkin.", "3. The applicants alleged, in particular, that the first applicant's expulsion to Uzbekistan would subject him to a risk of ill-treatment, that he would be tried there in flagrant denial of justice, and that his expulsion would violate their right to respect for their family life. They referred to Articles 3, 6 and 8 of the Convention, as well as Article 2 of Protocol No. 2. 4.", "On 3 December 2007 the President of the Chamber decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to expel the first applicant to Uzbekistan pending the Court's decision. On 5 December 2007 the first applicant was deported to Uzbekistan. 5. On 20 May 2008 the President of the First Section decided to give notice of the application 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.", "It was also decided at that time that the interim measure should remain in force. 6. The Court decided on 11 May 2010 to lift the interim measure. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7.", "The first applicant was born in 1958. He is currently serving a prison sentence in Uzbekistan. His representatives have had no contact with him since his expulsion. The second applicant was born in 1958 and lived in the Tyumen Region, Russia. She died in August 2008.", "A. The applicants' marriage and the acquisition by the first applicant of a Russian passport 8. According to the first applicant, then named Tursinov, he arrived in Russia from Uzbekistan in 1997. The Government disputed the date of the first applicant's arrival in Russia, pointing to the absence of any documents in connection with it. 9.", "On 29 November 2000 he obtained Russian internal identity papers (“the passport” in question). 10. On 28 December 2000 the first applicant married the second applicant and took her surname, Kamaliyev. On 16 February 2001 he obtained a new passport, containing his new name. 11.", "In their submissions of September and December 2008 the Government stated that at the relevant time the first applicant had been in a valid marriage concluded in Uzbekistan in 1979, from which he had four children. They submitted a copy of the certificate of the first applicant's marriage, issued by the Namangan Department of the Ministry of Justice of Uzbekistan in April 2008. 12. On 10 January 2004 a new Russian internal passport was issued to the first applicant, who had reached the age of forty-five. 13.", "On 10 February 2006 the Federal Migration Service (FMS), following an internal investigation, established that the first applicant's passport had been issued in breach of the lawful procedure and declared it invalid. The FMS found that the first applicant had obtained a Russian identity document without having properly obtained Russian nationality and that his name had not been entered in the relevant registers. The first applicant had never applied for, or received Russian nationality and the identity document in question could not be held as proof to the contrary. The head of the police unit which had issued the passport had been subjected to disciplinary measures for breaching the relevant legislation. 14.", "In February 2006 the police, aided by the FMS, seized the applicant's internal passport. It appears that after that the first applicant remained in Russia without obtaining any other residence documents. 15. On 6 March 2006 the Prosecutor's Office of the Central District of Tyumen found that the archives of the passport service which had issued the first applicant's passport in 2000 had been destroyed in January 2005, in line with instructions issued at the time. It concluded that there were no reasons to open a criminal investigation into the actions of the officers of that department.", "B. Attempted extradition of the first applicant 16. On 16 March 1999 the deputy prosecutor of the Namangan Region in Uzbekistan issued a decision to charge and detain the first applicant for attempted subversion of the constitutional regime. It appears that some time later an international search warrant was issued. 17.", "On 31 October 2005 the head of the police department of the Namangan Region in Uzbekistan informed his counterpart in the Tyumen Region that the first applicant was being sought in Uzbekistan for a breach of State security and asked him to locate the applicant. The same letter indicated the first applicant's address in Tyumen and stated that he had unlawfully obtained a Russian passport. 18. On 9 February 2006 the applicant was arrested with a view to extradition and placed in the Tyumen Region temporary detention centre no. IZ-72/1 (ФГУ ИЗ-72/1).", "19. On 23 March 2006 the deputy Prosecutor General of Uzbekistan requested the applicant's extradition on the ground that he was charged with belonging to an extremist religious organisation, known as “Wahhabi”, incitement of religious hatred and attempted subversion of the constitutional regime. The crimes had been committed in 1990-1993. 20. On 5 May 2006 the Kalininskiy District Court examined a request by the Tyumen Regional Prosecutor to have the applicant placed in detention with a view to his extradition to Uzbekistan, where he was accused of inciting racial, national or religious hatred, attempted subversion of the constitutional regime, and the creation and leadership of extremist organisations of a religious, separatist, fundamentalist nature, or other prohibited organisations, crimes which were defined by Articles 156 § 2 (d), 159 § 3 (b) and 244 § 2 respectively of the Criminal Code of Uzbekistan.", "21. The court, having noted that those acts were also punishable under Articles 282 § 2, 280 and 282-1 of the Criminal Code of the Russian Federation and that the applicant was an Uzbek citizen, ordered that the applicant be placed in detention pending extradition. The court noted that the applicant had unlawfully obtained a Russian passport. 22. On 20 December 2006 the Deputy General Prosecutor refused to extradite the first applicant because the acts with which he had been charged did not constitute a crime under Russian law and because the prescription period for other acts had expired.", "23. On 26 December 2006 the Tyumen Regional Prosecutor ordered the applicant's release. C. Application for refugee status 24. On 1 August 2006 the first applicant requested the Tyumen Regional Department of the FMS to grant him refugee status. In his application he indicated that he had Uzbek nationality, but that in 2000 he had received a Russian passport and had married the second applicant.", "The first applicant gave the unstable economic and political situation and absence of work as the reasons for his departure from Uzbekistan. He denied that he had ever committed a crime in Uzbekistan. 25. On 11 November 2006 he was questioned by officials of the FMS about the details of his claim. In the questionnaire the first applicant indicated his nationality as Uzbek and submitted details of his national identity papers.", "He also submitted that he had divorced his first wife in 1996 in Uzbekistan. As regards his Russian passport, the first applicant submitted that a relative of his wife had helped him to obtain the documents. That man, whose name he could not recall, had died in 2002. As to his fear of persecution in Uzbekistan, the first applicant explained that he had learned of the criminal proceedings pending against him there when he was detained in Russia in February 2006. He denied having any connection to the charges brought against him and stated that he did not believe that he would have a fair trial in Uzbekistan.", "The first applicant also stated that he feared for his safety in that country. 26. The outcome of this request is unclear. The first applicant did not refer to this application in the subsequent proceedings. D. The first applicant's expulsion to Uzbekistan 27.", "On 23 November 2007, during an identity check, the applicant was arrested in Tyumen as an unlawfully resident alien. 28. On the same day the Tsentralnyy District Court of Tyumen reviewed the applicant's administrative offence case. According to the transcript of the hearing, the first applicant stated that he had lived in Russia since 1997, had traded in fruit and then married. He stated that in 2006 his Russian passport had been taken away from him as part of the procedure for obtaining nationality, but that he did not know the outcome of that procedure.", "He denied having committed any violations of the Russian legislation. When asked by the judge whether he had been aware that a search warrant had been issued for him in Uzbekistan, the first applicant replied that he had not committed any crimes. He also stated that he had changed his family name because of his marriage. The District Court found the first applicant guilty of a violation of the residence rules for aliens, in that he had failed to take any steps to get a residence permit or to obtain nationality by legal means. It imposed a fine of 2,000 Russian roubles (RUB) and ordered that the first applicant be expelled from Russia.", "29. On 30 November 2007 the applicant's lawyer lodged an appeal against the decision of 23 November, arguing that the extradition would sever the applicant's ties with his Russian family, in view of the ensuing five-year ban on re-entering the country. He therefore asked the Regional Court to alter the sentence and not to order the first applicant's deportation. 30. On 3 December 2007, on instructions from the first applicant, “Civil Assistance” (Комитет “Гражданское содействие”) an NGO which specialises in providing assistance to refugees from Central Asia, submitted to the European Court of Human Rights a request for suspension of the first applicant's extradition to Uzbekistan.", "They stated that the first applicant had been charged in Uzbekistan with crimes against the state security and membership of a religious organisation, that he would certainly be detained upon arrival and that the risk of torture for this category of persons was recognised by all available international sources. In that letter the representative indicated that the next flight from Tyumen to Uzbekistan was scheduled for 2 a.m. on 5 December 2007 (4 December 2007, 10 p.m. CET). There is a two-hour difference between Moscow and CET and another two-hour difference between Tyumen and Moscow. 31. On the same day, on 3 December 2007, the Court indicated to the Russian Government that, under Rule 39 of the Rules of Court, it was adopting an interim measure for suspension of the extradition.", "The letter to the Government, indicating the application of a preliminary measure, was received by the Office of the Representative at 7.50 p.m. CET. According to the Government, on 4 December 2007 the information about the application of the interim measure was forwarded to the Ministry of the Interior and the FMS. 32. The applicants' representative submitted that on 4 December 2007 she had forwarded a copy of the Court's letter of 3 December 2007 indicating the preliminary measure to the office of the Tyumen Prosecutor's Office and the Main Department of the Interior of the Tyumen Region. 33.", "On 4 December 2007 the Tyumen Regional Court held a hearing in the absence of the first applicant and his legal counsel. The court established that the applicant was a citizen of Uzbekistan, that the Russian passport had been issued in breach of the relevant provisions, that the applicant had not submitted a request for naturalisation to the competent police department and that, according to the consular register of the Ministry of Foreign Affairs, he had not obtained Russian nationality. Equally, between 10 February 2006, the date on which his passport had been confiscated, and 23 November 2007, the day on which his identity papers were checked, the applicant had been unlawfully present on the territory of Russia and had taken no steps to declare his residence. The court held that the argument with regard to the potentially lengthy separation of the applicant and his wife and that alleging the applicant's lack of fault in the issue of the Russian passport were incidental. The court upheld the decision of 23 November 2007.", "34. The applicants' representative informed the Court of that decision on the same day. On 4 December 2007 the Court forwarded an additional letter to the Office of the Representative, alerting them to the decision of the Tyumen Regional Court and drawing their attention to the fact that the first applicant's expulsion from Tyumen had been scheduled for 5 December 2007, 2 a.m. local time. This letter reached the Office in Moscow at 10.30 p.m. 35. On 5 December 2007 at 2.25 a.m. local time the first applicant was deported to Uzbekistan.", "E. Subsequent events 36. According to the applicants, upon his arrival in Tashkent the first applicant was arrested and charged with the crimes for which his extradition had been sought from Russia earlier. The second applicant informed the Court in February 2008 that in January 2008 she had received a phone call from her husband's relatives in Uzbekistan. They claimed that he had been detained at the Namangan Detention Facility and that he had been subjected to torture. After that she was unable to reach the first applicant's relatives by phone.", "37. In response to the Court's request, in December 2008 the Government submitted that they had obtained unofficial information that on 26 February 2008 the first applicant had been tried and found guilty in Namangan. He was sentenced to eleven years in prison for incitement to racial hatred, attempts to overthrow the constitutional regime and participation in prohibited religious organisations. The Government had no further information about the first applicant's whereabouts from the Uzbek authorities. They indicated that as the first applicant had been a national of Uzbekistan and did not have Russian nationality, there were no legal grounds for the Russian authorities to intervene on his behalf.", "The applicants' representatives had no way of contacting him in detention. It appears that in 2008 he was serving his sentence in the Tashkent Region. 38. On 20 August 2008 the second applicant died. II.", "RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE 39. For a summary of the relevant Russian law and practice on issues of detention, extradition and expulsion of foreign nationals, see Muminov v. Russia (no. 42502/06, §§ 45-62, 11 December 2008). 40. For a review of the situation in Uzbekistan at the relevant time, see Muminov (cited above, §§ 67-72) and Ismoilov and Others v. Russia (no.", "2947/06, §§ 74-79, 24 April 2008). THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 6 OF THE CONVENTION 41. The applicants complained that the first applicant's deportation to Uzbekistan had been in violation of Articles 3 and 6 of the Convention, which read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 6 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ...” A.", "Arguments of the parties 42. The Government argued that the applicants' claim should be dismissed for failure to exhaust domestic remedies. They stressed that in the proceedings before the district and regional courts adjudicating on his deportation, the first applicant had not raised his fear of being subjected to torture or inhuman and degrading treatment, or a flagrant denial of justice, as arguments against his deportation. They argued that the domestic courts were the relevant authority before which these complaints should have been raised and produced a number of recent court decisions from the Tyumen region and from other regions whereby the sanction of administrative deportation had been lifted or the proceedings discontinued in view of various personal circumstances of the defendants. The Government further pointed to the fact that the Uzbek authorities denied the allegations of systematic torture of detainees.", "43. The applicants requested the Court to dismiss this objection. They submitted that the first applicant had effectively been prevented from raising his complaints under Articles 3 and 6. He had only had a limited possibility to argue his case before the judge of the Centralnyy District Court of Tyumen, since he had been unrepresented. Later, in the Tyumen Regional Court, neither he nor his lawyer had been present.", "Furthermore, the effectiveness of the alleged remedy had not been proved by the respondent Government, which had failed to demonstrate that the courts could have discontinued the administrative proceedings on the grounds of the alleged threat of torture in the country of destination. The applicants relied on international reports which pointed out that torture and ill-treatment of prisoners, especially of those suspected of political or religious crimes, had been systematic. They argued that the judiciary in Uzbekistan had been criticised by outside observers as lacking independence and unable to issue impartial decisions. B. The Court's assessment 44.", "It is recognised by the parties, and follows from the documents reviewed by the Court, that in the proceedings before the Centralnyy District Court and the Tyumen Regional Court the first applicant did not raise, either expressly or in substance, the complaints under Articles 3 and 6 of the Convention that he has brought before this Court. The applicant and the Government dispute the effectiveness of the remedy in question. 45. The Court reiterates that the rule of exhaustion of domestic remedies in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the European Court for their acts before they have had an opportunity to put matters right through their own legal system. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time, namely, that the remedy was accessible, capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see T. v. the United Kingdom [GC], no.", "24724/94, 16 December 1999, § 55). Article 35 must also be applied to reflect the practical realities of the applicant's position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention (Hilal v. the United Kingdom (dec.), no. 45276/99, 8 February 2000). 46. More specifically, where the applicant seeks to prevent his removal from a Contracting State, a remedy will only be effective if it has suspensive effect (Jabari v. Turkey (dec.), no.", "40035/98, 28 October 1999). Judicial review, where it is available and where the lodging of an application for judicial review will operate as a bar to removal, must be regarded as an effective remedy which in principle applicants will be required to have recourse to before lodging an application with the Court or indeed requesting interim measures under Rule 39 of the Rules of Court to delay a removal. 47. As a general rule, applicants are required to raise in substance and in due form in the domestic proceedings the complaints addressed to the Court, including the procedural means that might have prevented a breach of the Convention (see Barberà, Messegué and Jabardo v. Spain, 6 December 1988, § 59, Series A no. 146).", "48. Turning to the circumstances of the present case, the Court notes that the first applicant was removed from Russia to Uzbekistan by way of administrative expulsion imposed as a sanction for the breach of the residence regulations. This happened eleven months after the Russian authorities had refused to extradite him on charges of involvement in subversive activities in Uzbekistan. The relevant provisions of the Code of Administrative Offences provided that a breach of residence regulations was punishable by a fine, which could be accompanied by administrative expulsion. The determination of the offence and of the sanction lay within the competence of the district court judge and was subject to appeal to the regional court.", "The appeal had a suspensive effect on deportation. 49. Thus, the Court is satisfied that the judicial procedure related to the administrative offence was, in the circumstances, a proper remedy for the purposes of Article 35. The examples concerning the practice of administrative removal supplied by the Government support this assertion and bear on the possible prospects of success of that remedy. 50.", "The first applicant claims that even if the remedy was effective in principle, he had been prevented from using it. He indicated that he had been unrepresented at the hearing at the district court and had been unable to plead in person or through his counsel before the regional court. 51. The Court notes that, as it follows from the transcript of the hearing at the Central District Court of 23 November 2007, the first applicant had stated that he had fully understood Russian and that he did not require legal representation or an interpreter. These points were not raised in the appeal submitted by the first applicant's counsel on 30 November 2007.", "The only grounds for appeal were the first applicant's family ties and the modalities under which his Russian passport had been found invalid (see paragraphs 28-29 above). 52. In such circumstances, the Court finds that the first applicant has not come up with any plausible explanation for his failure to raise his grievances in substance before the domestic courts, which represented, in the present case, the remedy to be used. 53. Finally, the Court reiterates that the Convention is intended to guarantee rights that are not theoretical or illusory, but practical and effective (see, mutatis mutandis, Matthews v. the United Kingdom [GC], no.", "24833/94, § 34, ECHR 1999-I). Exceptionally, and in view of the absolute prohibition of treatment contrary to Article 3, the Court has previously considered whether an applicant's claim about the existence of a real risk of torture had received an adequate assessment by the authorities even if brought to their attention outside of the judicial challenge to the removal order. However, the first applicant did not pursue his application for refugee status lodged in 2006 and did not refer to it in the proceedings at issue. This case should therefore be distinguished from Muminov v. Russia, where the Court attached a great weight to the fact that the applicant, in violation of the domestic law, was deported for a breach of residence regulations while the determination of his asylum application was pending (Muminov, cited above, § 87). 54.", "In these circumstances, the Court finds that the first applicant failed to exhaust domestic remedies in respect of his complaints under Articles 3 and 6 of the Convention. Consequently, the Court rejects this part of the application for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 55. The applicants complained that the first applicant's deportation to Uzbekistan had been in 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. Admissibility 56. 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. Arguments of the parties 57. The Government submitted that the marriage between the applicants had been invalid from the start.", "They alleged that when marrying the second applicant, the first applicant had failed to produce a divorce certificate from his first marriage in Uzbekistan, as required by the Russian legislation. In any event, assuming that there had been an interference with the applicants' family life, the Government argued that it was lawful, pursued legitimate aims and was proportionate, given that the first applicant had failed to take steps to regularise his stay in Russia over a lengthy period of time. The illegally obtained Russian passport could not have served as a basis for that stay, and in any event that document had been seized in February 2006. In November 2007 the first applicant had nevertheless been found to be residing in Russia unlawfully. The Government considered that the first applicant should have been fully aware of the illegal nature of his stay by that time and of the consequences of it.", "In respect of the proportionality of the interference, the Government stressed that in his submissions before the national courts the first applicant had failed to argue clearly that his marriage to the second applicant was an impediment to deportation, referring rather broadly to his “family situation”, without submitting any supporting documents. As a final argument, the Government did not consider that the first applicant's deportation constituted an obstacle to the continuity of the applicants' family life, since the second applicant could have easily adapted to life in Uzbekistan, in view of her Tatar ethnic origin and the similarity of the Uzbek and Tatar languages. 58. The applicants argued that they had lived as a married couple since 2000 and that their marriage had not been found null. In the administrative proceedings the first applicant referred to his marriage in Russia as a reason not to deport him to Uzbekistan.", "The deportation was an interference with their family life. The applicants argued that the first applicant's Russian nationality made that deportation unlawful. Adversely, they argued that if the Court found that the first applicant was not a Russian national, the interference should be considered disproportionate. They stressed that the domestic courts had failed to balance their interests against the perceived aims of the deportation and that their arguments had been summarily dismissed. They also remarked that the Government's assertion about the second applicant's possible integration in Uzbekistan was irrelevant, since the authorities had been aware of the criminal charges pending against the first applicant in that country and the fact that he would most probably be arrested upon arrival.", "2. The Court's assessment 59. Turning to the present case, the Court, firstly, finds it established that the first applicant does not hold Russian nationality. It follows from the note issued by the FMS in February 2006 that the first applicant had never applied for or received Russian nationality and that his name was not entered into any of the relevant registers, but rather that he had obtained a passport, presumably through illegal means (see paragraph 13 above). By the same decision disciplinary measures were imposed on the officer who had issued it.", "That passport was seized in February 2006 and the first applicant did not contest that decision. In March 2006 the Prosecutor's Office considered opening criminal proceedings against the officers who had issued the passport to the first applicant but did not, in view of the fact that the relevant archives had been destroyed (see paragraph 15). The first applicant himself referred to his nationality as Uzbek in the documents related to his refugee status and in the proceedings related to his extradition. In the questionnaire filled in on 11 November 2006 the first applicant stated that he had obtained the passport through an intermediary, whose name he could not recall and who had allegedly died in 2002 (see paragraph 25). Thus, contrary to the applicants' assertion before this Court, it follows from the documents submitted by the parties that the first applicant did not hold Russian nationality.", "The Court also finds that at least after February 2006 he could no longer have been unaware of the fact that he had no valid residence papers. 60. Next, the Court observes that the applicants married in December 2000. Notwithstanding the Government's challenge to the validity of that alliance, the Court notes that the marriage was officially recognised by the respondent State and thus is prepared to assume that the applicants were engaged in a genuine family relationship. The Court also finds that the interference was in accordance with the law, namely Article 18.8 of the Code of Administrative Offences, and that it pursued legitimate aims, such as the economic well-being of the country and the prevention of disorder and crime.", "61. The key question for the Court is whether the measure was necessary in a democratic society. The relevant criteria that the Court uses to assess whether an expulsion measure is necessary in a democratic society have recently been summarised as follows (see Üner v. the Netherlands [GC], no. 46410/99, §§ 57-58, ECHR 2006-XII): “57. Even if Article 8 of the Convention does not therefore contain an absolute right for any category of alien not to be expelled, the Court's case-law amply demonstrates that there are circumstances where the expulsion of an alien will give rise to a violation of that provision (see, for example, the judgments in Moustaquim v. Belgium, Beldjoudi v. France and Boultif v. Switzerland, [cited above]; see also Amrollahi v. Denmark, no.", "56811/00, 11 July 2002; Yılmaz v. Germany, no. 52853/99, 17 April 2003; and Keles v. Germany, 32231/02, 27 October 2005). In the case of Boultif the Court elaborated the relevant criteria which it would use in order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued. These criteria, as reproduced in paragraph 40 of the Chamber judgment in the present case, are the following: - the nature and seriousness of the offence committed by the applicant; - the length of the applicant's stay in the country from which he or she is to be expelled; - the time elapsed since the offence was committed and the applicant's conduct during that period; - the nationalities of the various persons concerned; - the applicant's family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple's family life; - whether the spouse knew about the offence at the time when he or she entered into a family relationship; - whether there are children of the marriage, and if so, their age; and - the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled.” 62. Turning to the circumstances of the present case, the Court first notes that the offence for which the first applicant was expelled consisted of a breach of the registration rules for foreign nationals.", "This offence is punishable under the Code of Administrative Offences by a fine of RUB 500 to 1,000 (about 11 to 23 euros (EUR)) and possible administrative removal. While this offence does not appear to be particularly serious, the authorities noted that in February 2006 the first applicant had been found to be in possession of an invalid Russian identity document, and that after that he had taken no steps to regularise his stay. Thus, his stay in Russia was illegal for a long period of time and certainly after the document in question had been seized. Nevertheless it did not appear that the first applicant had taken any steps to regularise his status. The domestic courts attached particular weight to this fact when deciding on the first applicant's expulsion.", "63. The Court further notes that the first applicant pleaded not to be expelled in view of his marriage to a Russian national before the district court and, through his lawyer, before the appeal court. These arguments were examined and dismissed by the courts, which concluded that, in the circumstances of the case, the applicants' family situation did not outweigh the interest of public order. 64. Furthermore, the Court notes that the applicants raised no additional arguments related to their family or social ties which, in accordance with the Court's case-law cited above, could have influenced the balancing exercise.", "65. In such circumstances, the Court concludes that in striking a balance between achieving the legitimate aim and the applicants' protected interests, the State did not exceed the margin of appreciation which it enjoys in the area of immigration matters. Consequently, there was no violation of Article 8 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No.", "4 OF THE CONVENTION 66. The first applicant argued that the seizure of the Russian passport in February 2006 had constituted an interference with his right to freedom of movement. Article 2 of Protocol No. 4 provides: “1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.", "...” 67. The Court has already found that the first applicant had not possessed Russian nationality and that he could not claim to have resided there lawfully at the time when the passport had been seized. Consequently, Article 2 of Protocol No. 4 is not applicable in the instant case and this complaint is inadmissible for being incompatible ratione materiae, pursuant to Article 35 §§ 3 and 4 of the Convention. IV.", "ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 68. The applicants' representative complained that by expelling the first applicant on 5 December 2007 despite the measure indicated by the Court under Rule 39 of the Rules of Court, Russia had failed to comply with its undertaking under Article 34 of the Convention not to hinder the applicant in the exercise of his right of individual application. Article 34 of the Convention 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.” Rule 39 of the Rules of Court provides: “1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it.", "2. Notice of these measures shall be given to the Committee of Ministers. 3. The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.” A. Arguments of the parties 69.", "The Government admitted that the first applicant's deportation to Uzbekistan had occurred in breach of Rule 39 of the Rules of Court. They referred, however, to the objective impediments which had prevented the authorities from complying with the interim measure in question. These impediments arose in view of the short notice involved and the difference in time between Strasbourg, Moscow and Tyumen. They submitted that the Court's letter of 3 December 2007 had reached their office in the evening of that day, after working hours. They further explained that on 4 December 2007, after they had been notified of the Court's indication under Rule 39, they had sent the relevant requests to the Ministry of the Interior and the Federal Migration Service of Russia.", "On the same day the appropriate territorial body of the FMS had been identified. The information in question was not transferred in time in view of further time difference between Moscow and Tyumen, from where the deportation was scheduled. The Government cited the need to contact the federal ministries which in turn requested information from the local authorities. The preparation of these inquiries, their posting and the obtaining of necessary information required some time. Late at night on 4 December 2007 information arrived about the first applicant's deportation by plane from Tyumen, at 2. a.m. local time on 5 December 2007.", "The Court's second letter of 4 December 2007 about the scheduled flight had arrived after the deportation had already occurred. 70. The applicants disputed the relevance of the difficulties cited by the Government. They pointed out that taking into account the time difference, more than 24 hours elapsed between the notification of the respondent Government of the interim measure and the deportation. They also pointed out that Mrs Ryabinina, the applicants' counsel, had on 4 December 2007 notified the law-enforcement authorities in Tyumen by fax of the Court's ruling.", "They argued that the Russian authorities had deported the first applicant in full knowledge of the interim measure to the contrary imposed by the Court. B. The Court's assessment 1. General principles 71. The Court reiterates that, by virtue of Article 34 of the Convention, Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of an individual applicant's right of application.", "72. In cases such as the present one where there is plausibly asserted to be a risk of irreparable damage to the enjoyment by the applicant of one of the core rights under the Convention, the object of an interim measure is to maintain the status quo pending the Court's determination of the justification for the measure. As such, being intended to ensure the continued existence of the matter that is the subject of the application, the interim measure goes to the substance of the Convention complaint (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 108, ECHR 2005‑I; Shamayev and Others v. Georgia and Russia, no. 36378/02, § 473, ECHR 2005‑III; and Aoulmi v. France, no.", "50278/99, § 103, ECHR 2006‑I (extracts)). 73. Thus, indications of interim measures given by the Court permit it not only to carry out an effective examination of the application but also to ensure that the protection afforded to the applicant by the Convention is effective; such indications subsequently allow the Committee of Ministers to supervise execution of the final judgment. Such measures thus enable the State concerned to discharge its obligation to comply with the final judgment of the Court, which is legally binding by virtue of Article 46 of the Convention (see Mamatkulov and Askarov, cited above, § 125; Shamayev, cited above, § 473; and Aoulmi, cited above, § 108). 74.", "Article 34 will be breached if the authorities of a Contracting State fail to take all steps which could reasonably have been taken in order to comply with the interim measure indicated by the Court (Paladi v. Moldova [GC], no. 39806/05, § 88, ECHR 2009‑...). In examining a complaint under Article 34 concerning the alleged failure of a Contracting State to comply with an interim measure, the Court will not re-examine whether its decision to apply interim measures was correct. It is for the respondent Government to demonstrate to the Court that the interim measure was complied with or, in an exceptional case, that there was an objective impediment which prevented compliance and that the Government took all reasonable steps to remove the impediment and to keep the Court informed about the situation (Paladi, cited above, § 92). 2.", "Application of the above principles to the present case 75. The Court observes that the Government did not dispute their obligation under Article 34 of the Convention to comply with the measure indicated by the Court. Rather, they contended that the competent authorities had done everything in their power to comply with that measure; however, in view of the short notice and the difference in time between Strasbourg, Moscow and Tyumen the information had failed to reach the intended recipients before the expulsion had occurred. 76. The Court notes that the letter concerning the application of Rule 39 was published on its secure website at 9.50 p.m. Moscow time on 3 December 2007.", "The Government do not indicate when they actually acquainted themselves with its content, but presumably no later than on the morning of 4 December 2007. They then forwarded the information to the Ministry of the Interior and to the relevant territorial branch of the FMS. Moreover, on 4 December 2007 the applicants' representative herself forwarded the Court's notification to the Tyumen Prosecutor's Office and the local department of the Ministry of the Interior. In the course of the same day, the representative learnt of the Tyumen Regional Court's decision to uphold the deportation order on appeal and alerted the Court. She also indicated that the next flight to Uzbekistan from Tyumen was scheduled for 5 December 2007, 2 a.m. local time (midnight in Moscow and 10 p.m. CET).", "By a second letter, published on its secure website on 4 December 2007 at 10.30 p.m. Moscow time, the Court informed the Government of these developments (see paragraphs 31-35 above). 77. To sum up, the first applicant was put on a plane about 26 hours after the notification of the interim measure to the respondent Government. This time-period included one full working day, when all the relevant offices had been open and no difficulties in communication had been reported. The Court is cognisant of the inevitable difficulties which arise when differences in time are involved; however in the present case they clearly were not of such nature as to explain the failure to transmit the message to the service responsible (compare with Muminov, cited above, § 135).", "Indeed, in the first letter of 3 December 2007 the Court had already indicated the first applicant's place of detention and it should have been relatively simple to identify the responsible body. The Court also remarks that in the case under examination, the first applicant's deportation was upheld by the Tyumen Regional Court and the necessary formalities to carry it out were completed in an even shorter period of time. 78. The Government relied on the need to contact various ministries in Moscow and to obtain information from the local services before any steps could be ordered. The working day of 4 December 2007 was thus, they argued, not sufficient to comply with the measure indicated by the Court.", "The Court does not find such an excuse compatible with the nature of urgent requests aimed at preventing a person's imminent deportation. By their definition, these decisions are not complex to implement, since all that is needed is to inform the local authority responsible for carrying out the deportation and/or the administration of the detention centre about the temporary ban on the person's removal from the territory of the contracting State. In view of all the information in its possession, the Court is not satisfied that the Government in the present case took all reasonable steps to comply with the Court's ruling. 79. In the light of the above, the Court concludes that the Government have not shown that there was an objective impediment to compliance with the interim measure indicated under Rule 39 of the Rules of Court.", "Accordingly, there has been a violation of Article 34 of the Convention. V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 80. The first applicant also complained that the seizure of his Russian passport in February 2006 had violated his right to be presumed innocent. He stated that the procedure under which his expulsion had been decided had been unfair. He invoked Article 6 of the Convention.", "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 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. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 81. 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.” 82.", "The representative claimed, on the first applicant's behalf, monetary compensation in respect of non-pecuniary damage, leaving the amount to be awarded to the Court's discretion. She also invited the Court “to recognise the detriment to the applicant's 'life plan'... caused by his unlawful removal from Russia in violation of the Convention”. She further requested that the respondent Government be required to undertake, via their diplomatic contacts in Uzbekistan, measures aimed at re-establishing contact with the first applicant and his relatives, commuting his sentence by way of amnesty or pardon, securing his eventual release and facilitating his departure for a country which would be willing to accept him. The applicants' representatives also claimed a total of 16,264 euros (EUR) in reimbursement of costs and expenses. 83.", "The Court has previously found that as a result of a failure by a country to comply with its obligations under Article 34 of the Convention the applicants can suffer a non-pecuniary damage which cannot be repaired solely by such a finding (see Mamatkulov and Askarov, cited above, § 134). 84. The Court observes, however, that that the second applicant died in 2008 and the first applicant is currently serving a sentence of imprisonment in Uzbekistan. His representatives have had no contact with him lately. Thus, the Court considers that the question of the application of Article 41 is not ready for decision.", "Accordingly, it should be reserved and the subsequent procedure fixed, having regard to any agreement which might be reached between the Government and the applicant (Rule 75 § 1 of the Rules of Court). FOR THESE REASONS, THE COURT 1. Declares unanimously the complaint under Article 8 of the Convention admissible and the remainder of the application inadmissible; 2. Holds by four votes to three that there has been no violation of Article 8 of the Convention; 3. Holds unanimously that there has been a violation of Article 34 of the Convention; 4.", "Holds unanimously that the question of the application of Article 41 is not ready for decision; accordingly (a) reserves the question; (b) invites the Russian Government and the applicant 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 3 June 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos Rozakis RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Rozakis, Steiner and Spielmann is annexed to this judgment. S.N.C.L.R. PARTLY DISSENTING OPINION OF JUDGES ROZAKIS,STEINER AND SPIELMANN 1.", "The majority have found no violation of Article 8 of the Convention. 2. We are unable to agree with this finding. 3. The first applicant arrived in Russia from Uzbekistan and got married to Mrs Maymuna Kamaliyeva in 2000.", "Notwithstanding their failure to have him extradited to Uzbekistan in 2006, the Russian authorities did not hesitate to expel the first applicant in 2007, thus failing to comply with a decision of the Court under Rule 39 and hence in violation of Article 34 of the Convention. This was an administrative expulsion, for a minor offence, in contravention of the proportionality requirement under Article 8 of the Convention. 4. Indeed, as the Court has rightly accepted, both applicants were in a genuine family relationship (see paragraph 60). The Court also found that the offence for which the first applicant had been expelled (breach of the registration rules for foreign nationals, punishable by a fine of about 11 to 23 euros (EUR)), does not appear to be a particularly serious one (see paragraph 62).", "5. The majority have justified their decision by the fact that the domestic courts dismissed the arguments raised by the first applicant (see paragraph 63). This should not have been decisive. In our view, the mere fact that the domestic courts examined the first applicant's arguments should not lead the Court to conclude that the applicants' family situation did not outweigh the interests of public order, in the absence of a detailed analysis of the proportionality requirement. Once again, and regrettably so, the Court has had the reflex action of applying the concept of the margin of appreciation to the circumstances of the case without examining whether the domestic courts complied with the Üner criteria, reiterated in paragraph 61 of the judgment.", "6. In our view, the application of those criteria should have led the Court to conclude that the expulsion violated Article 8 of the Convention. Indeed, applying those criteria, we would like to emphasise that the offence committed by the first applicant was a petty one, that he stayed for many years in Russia, that he was married to a Russian national and behaved well during his stay. Moreover, the expulsion should also be seen in context. The authorities knew that the first applicant was under the threat of prosecution in Uzbekistan for offences for which extradition had previously been refused by the Deputy General Prosecutor (paragraph 22).", "The mere fact that the first applicant had not taken any steps to regularise his status (paragraph 62) should not have been decisive. 7. Under those circumstances, and for these reasons, we are of the opinion that Article 8 of the Convention has been violated." ]

[ "SECOND SECTION CASE OF BABAT AND OTHERS v. TURKEY (Application no. 44936/04) JUDGMENT STRASBOURG 12 January 2010 FINAL 12/04/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Babat and Others 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 8 December 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "44936/04) 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 three Turkish nationals, Mr Aziz Babat, Ms Azime Babat and Ms Marifet Akgün (Babat), (“the applicants”), on 3 September 2004. 2. The applicants were represented by Mr A. Baba, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3.", "On 21 November 2008 the President of the Second Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1954, 1954 and 1978 respectively and live in Tunceli and Istanbul respectively. 5.", "The first and the second applicants’ son and the third applicant’s brother, Önder Babat, was a fourth-year student at the Law Faculty of Istanbul University. Önder Babat had been the subject of disciplinary investigations at the University and at the time of the events had criminal proceedings pending against him for participating in an illegal demonstration. The applicants maintained that he was Kurdish, Alawite, and had strong left-wing political views. 6. According to the witness statements given to the public prosecutor on 22 March 2004 by Mr E.Ö., Mr B.Y.", "and Ms P.A., the events unfolded as follows: On 3 March 2004 Önder Babat and his three friends went to watch a documentary film at the French Cultural Centre at Istiklal Street in Taksim, Istanbul. Afterwards they visited the office of the Devrimci Hareket Dergisi (Revolutionary Movement Magazine), a magazine with left-wing political views located in Imam Adnan Street right next to Istiklal Street. Immediately after they left the office, at approximately 6.50 p.m., Önder Babat suddenly collapsed in the street bleeding heavily from the head. His friends, with the help of other people, took him to Taksim Ilkyardım Hospital where Önder Babat died. He was twenty-five years old.", "7. According to a report drafted by two police officers and signed by Mr B.Y., one of Önder Babat’s friends, the police received information about the incident at 7.20 p.m. and arrived at Taksim Ilkyardım Hospital where, after taking oral statements from Önder Babat’s friends, the police, with Mr B.Y., returned to the scene of the incident. They noted blood trails on the ground. The police were told by people in the vicinity that they had not witnessed anything unusual and that the injured person had been taken to the hospital by his friends. 8.", "At approximately 8.10 p.m. a second group of police officers from the Beyoğlu police headquarters arrived at the scene of the incident to make a preliminary investigation on behalf of the public prosecutor, who had been notified of the incident by telephone. A sketch was made of the scene of incident and seven sets of photographs were taken. The police noted a 10 x 10 cm stone on the floor approximately 1.80 metres from the blood trail. They considered that the stone might have caused his death by falling on his head from one of the surrounding buildings. They collected the stone and blood samples for the criminal laboratory.", "In the report drafted by the police the weapon is stated as unidentified. The police left the scene at 9.40 p.m. The officers in charge of the preliminary investigations issued an incident report. It was noted in this report that a hole of 5 cm x 5 cm was found on the upper left side of Önder Babat’s head and an ecchymotic lesion of 2 cm was observed around his right eyebrow. 9.", "On the same date between 8.00 p.m. and 8.40 p.m. officers from the Beyoğlu police headquarters took statements from Önder Babat’s three friends who had been with him at the time of the incident and from a waiter who worked at a nearby café. They all affirmed that they had no idea what had caused Önder Babat’s injuries. 10. On 4 March 2004 at 11.30 a.m. Önder Babat’s cousin gave a statement to officers from the Beyoğlu police headquarters, where he stated that Önder Babat did not have any enemies. 11.", "On the same day a post-mortem examination was carried out on Önder Babat’s body. The doctor concluded that an autopsy had to be carried out to determine the cause of death. 12. On the same date an autopsy was carried out on Önder Babat’s body on the orders of the Beyoğlu public prosecutor. In the autopsy report drafted on 1 April 2004 and signed by four doctors from the Forensic Medicine Institute, a bullet entry hole was observed on the left front parietal region and a 9 mm calibre cartridge was found in the right cerebellum.", "The doctors indicated that the cause of death was a fracture of the cranium and cerebral haemorrhage due to the gunshot wound, and that the gun had been fired at long range. 13. On 8 March 2004 the Istanbul provincial criminal police laboratory carried out a ballistic examination of the cartridge found in Önder Babat’s head. The experts concluded that the bullet had been fired from a 9 mm Parabellum-type pistol. 14.", "On 9 March 2004 the police superintendent (Başkomiser) at the Beyoğlu police headquarters informed the Beyoğlu public prosecutor that the cartridge could not be matched with bullets fired from other weapons which had been used in previous criminal incidents involving unknown perpetrators, and that since the bullet was not deformed it was highly unlikely that it had ricocheted off any other target. 15. On 22 March 2004 the public prosecutor heard evidence from Mr E.Ö., Mr B.Y. and Ms P.A. Two of them stated that they had heard a sound which they considered to be probably the sound of Önder Babat’s collapse on the street but that they had not heard any gunshots.", "16. On 6 May 2004 the Beyoğlu public prosecutor put a question to the Forensic Medicine Institute as to whether the findings of the autopsy report could shed light on the angle and the distance of the shot. 17. On 24 September 2004 the Forensic Medicine Institute drafted a report concerning the public prosecutor’s question, in which they declared that the shot had been fired from a long distance, namely further than 35‑40 cm. They did not, however, state an opinion as to the angle from which the shot had been fired, as such a finding was medically impossible due to the mobile nature of the target in question.", "18. In the meantime, on 12 July 2004 the applicants lodged an application with the Beyoğlu public prosecutor. They claimed that they had received an anonymous call from a police officer who had alleged that during the ballistic examination carried out at the criminal police laboratory the cartridge found in Önder Babat’s head had been discovered to have been defaced and scraped in an attempt to render the weapon used in the incident unidentifiable. These findings had not however been included in the ballistic report. The applicants requested an in-depth investigation regarding this allegation.", "19. On 15 December 2004 the Beyoğlu public prosecutor ordered the Forensic Medicine Institute to examine the cartridge in accordance with the applicants’ request. 20. On 5 January 2005 the Forensic Medicine Institute issued a report where they held that the microscopic examination of the cartridge had not revealed any traces of defacement or scrapings as alleged by the applicants. 21.", "In the meantime, on 3 August 2004 the applicants lodged a criminal complaint with the Beyoğlu public prosecutor against the officials carrying out the preliminary investigation into Önder Babat’s death, and requested that the persons responsible be charged with breach of duty. The applicants claimed in particular that the authorities had attempted to cover up the real cause of Önder Babat’s death by insisting that the death had been caused by a stone that fell on his head, that they had not drawn up a proper sketch plan of the scene of the incident, and that they had not sought witness statements from, or questioned persons in the vicinity of, the crime scene. They claimed that certain officials had even gone so far as to tell them that there was nothing suspicious in Önder Babat’s death which would necessitate informing the public prosecutor or which would require the performance of an autopsy. The applicants moreover alleged that the investigation had been limited to a comparative study with evidence in other “unknown perpetrator killings”, but no match had been attempted with any weaponry which had been recorded as being in the possession of the law enforcement officers or other licensed users. 22.", "On 8 November 2004 the Beyoğlu public prosecutor, referring to the steps undertaken in the preliminary investigation and to the fact that the investigation was ongoing, issued a decision not to prosecute (takipsizlik kararı) due to a lack of evidence indicating a breach of duty. 23. On 24 December 2004 the applicants objected to the public prosecutor’s decision. 24. On 2 February 2005 the Istanbul Assize Court rejected the applicants’ objection.", "25. On 17 March 2005 the Beyoğlu public prosecutor instructed the Beyoğlu police headquarters to pursue its investigation and to arrest the suspects or, if it was unable to do so, to issue a progress report every three months. 26. According to the information in the case file, the investigation into Önder Babat’s death is still pending. The case file reveals much correspondence between the prosecutor and the police regarding the investigation.", "THE LAW I. ADMISSIBILITY 27. The Government asked the Court to dismiss the application as being inadmissible for failure to comply with the six-month rule (Article 35 § 1 of the Convention) because the applicants had failed to lodge their application within six months of the date on which the Istanbul Assize Court had rendered its decision. 28. The applicants did not specifically comment on this point. 29.", "Having regard to the subject matter of the case before the Istanbul Assize Court and the applicants’ complaints submitted before it, the Court considers that the decision of the Istanbul Assize Court of 2 February 2005 cannot be held to be a decision on the merits of the applicants’ complaints so as to be considered a final decision in the process of exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention. In any event, the Court would point out that the applicants had lodged their application with the Court on 3 September 2004, prior to the above decision referred to by the Government. It therefore rejects the Government’s objection under this head. 30. Moreover, the applicants’ complaint under this head is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "The Court notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. II. ALLEGED VIOLATION OF ARTICLES 2 AND 13 OF THE CONVENTION 31. The applicants complained that Önder Babat had been killed by State agents or with their connivance and that no effective investigation had been conducted into his death, in breach of Articles 2 and 13 of the Convention.", "32. The Court considers that the applicants’ complaint falls to be examined under Article 2 alone, the relevant part of which provides as follows: “Everyone’s right to life shall be protected by law.” A. The parties’ submissions 33. The Government maintained, firstly, that there was no State involvement in the killing of Önder Babat and, secondly, that the authorities could not have known the latter would be a victim of a bullet while walking down the street. Moreover, referring to the steps taken with regard to the investigation into Önder Babat’s death, they considered that an effective investigation had been conducted in the present case and that the authorities were still actively pursing their investigation to catch those responsible for the killing.", "34. The applicants maintained that Önder Babat’s death was politically motivated and was perpetrated within the context of psychological warfare by some units of the Turkish security forces, namely JITEM (the Gendarmerie Anti‑Terrorist Intelligence Branch). In this connection, they submitted that, even if the State had not directly committed the crime, they had done nothing to stop the activities and crimes of these semi-official organisations[1]. The applicants pointed out that a number of killings perpetrated by unknown assailants had taken place in various parts of Turkey in the same week as Önder Babat’s death. As regards the investigation, the applicants noted that, despite heavy media coverage and written inquiries submitted by 23 members of parliament to the Turkish Grand National Assembly, the prosecutor remained inactive and the investigation conducted into the incident was full of flaws and omissions.", "B. The Court’s assessment 35. The Court reiterates the basic principles laid down in its judgments concerning a State’s obligations under Article 2 of the Convention under both its substantive and procedural limbs (see, in particular, McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-147, Series A no. 324; Buldan v. Turkey, no. 28298/95, §§ 73-75, 20 April 2004; Ülkü Ekinci v. Turkey, no.", "27602/95, §§ 135-136, 16 July 2002; Shanaghan v. the United Kingdom, no. 37715/97, §§ 85-92, 4 May 2001; Finucane v. the United Kingdom, no. 29178/95, §§ 67-71, ECHR 2003‑VIII; Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 321, ECHR 2007‑..., and Dölek v. Turkey, no. 39541/98, §§ 70-75, 2 October 2007).", "It will examine the present case in the light of those principles and in the light of the documentary evidence adduced by the parties, in particular the documents furnished by the parties in respect of the judicial investigations carried out into the impugned incident, and the parties’ written observations on the merits. 36. As regards the killing of Önder Babat, the Court observes that the applicants made serious allegations about involvement of State agents in his death. In this connection, the applicants pointed out the existence of semi‑official organisations in Turkey which were known to commit extra‑judicial killings to suit their own purposes. They considered that Önder Babat was a victim of such a killing.", "The Court, having regard to the undisputed information provided by the applicants that a number of unknown perpetrator killings had taken place in various parts of Turkey the very week Önder Babat was killed, does not find that the applicants’ claims under this head are completely untenable. 37. However, for the Court, the required evidentiary standard of proof for the purposes of the Convention is that of “beyond reasonable doubt”, and such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, among other authorities, Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, no. 41964/98, § 79, 27 June 2006). In the instant case, apart from a newspaper article where allusions are made to the possibility that a certain Hakan Saraylıoğlu might have killed Önder Babat, there is no cogent evidence before the Court concerning the supposed identity of the gunman who shot and killed Önder Babat.", "Moreover, aside from a police superintendent’s affirmation that the bullet had not ricocheted off any other target (see paragraph 14 above), there is also no evidence to conclude with certainty that Önder Babat was the ultimate target or that his killing was politically motivated. In this connection, the Court observes that, while it transpires from the case file that Önder Babat was a politically active student and had criminal proceedings pending against him, there is also no indication that he was a prominent figure or, more decisively, that he had been threatened by anyone, or had reason to believe that his life was at risk prior to his death. 38. In view of the above, the Court considers that the material in the case file does not enable it to conclude beyond all reasonable doubt that Önder Babat was killed by any State agent or person acting on behalf of the State authorities. It follows that there has been no violation of Article 2 on that account.", "39. As to the investigation into the circumstances surrounding Önder Babat’s death, the Court reiterates that the nature and degree of scrutiny which satisfies the minimum threshold of an investigation’s effectiveness depends on the circumstances of each particular case. It must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work (see Velikova v. Bulgaria, no. 41488/98, § 80, ECHR 2000‑VI, and Ülkü Ekinci, cited above, § 144). It further repeats that a State’s procedural obligation under Article 2 of the Convention is not an obligation of result, but of means (see among others Gongadze v. Ukraine, no.", "34056/02, § 176, ECHR 2005‑XI). In this connection, it is undisputed that a number of steps were taken by the investigating authorities in order to ascertain the circumstances surrounding Önder Babat’s death. Moreover, the Court admits that the manner in which Önder Babat was killed – a single gun shot by an unknown perpetrator – and the place of the killing – a very popular and busy street in Istanbul – must have adversely affected the investigation into his killing and have presented the authorities with a particular difficult task in ascertaining the circumstances in which the incident took place and of trying to establish the identity of those responsible. 40. Nonetheless, after having examined the scarce documentation contained in the case file, the Court is not persuaded that, in the instant case, the authorities have taken all reasonable steps to secure the evidence concerning the incident.", "On the contrary, it finds that the investigative authorities could be construed as having displayed a somewhat passive attitude in this respect. For example, the Court observes that the search for evidence at the scene of incident took place only once and at a time when the police had had no idea as to the cause of Önder Babat’s collapse on the street. The next day, however, it became clear that he had been killed by a gunshot. Despite this new development, the prosecutor never asked the police to revisit the scene of the incident in order to reconstruct the events with a view to establishing where the shooter could have been positioned and, although the Court does not rule out that the scene was most likely contaminated in the meantime, at least to attempt to find additional forensic evidence, if any. More decisively, however, the prosecutor was content to hear evidence only from Önder Babat’s friends and a waiter who was present at the scene of the incident.", "No attempts were made to secure the testimonies of locals who worked or resided on that street. Nor were any calls made to the public to come forward if they had witnessed the incident that day. Finally, the Court observes that no significant steps have been taken in the investigation since January 2005. 41. In the light of the foregoing, the Court concludes that the State authorities did not take all the measures which could be reasonably expected of them to carry out an effective investigation into the facts surrounding the killing of Önder Babat and that therefore the State was in breach of its procedural obligations to protect the right to life.", "42. It follows that there has been a violation of Article 2 under its procedural limb. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 43. The applicants alleged that both Önder Babat’s death and the ineffectiveness of the ensuing investigation had been motivated by the fact that he was Kurdish and had strong left-wing political views.", "They relied on Article 14 of the Convention, which provides as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 44. Having regard to the facts of the case, the submissions of the parties and its finding of a violation of Article 2 under its procedural limb 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 remaining complaint under Article 14 of the Convention (see, for example, Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007, and Abdullah Yılmaz v. Turkey, no. 21899/02, § 77, 17 June 2008).", "IV. 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 first and the second applicants, who are the parents of the deceased and live in an impoverished village in Tunceli, claimed 9,000 euros (EUR) and EUR 11,500 respectively for pecuniary damages.", "The third applicant, who is the sister of the deceased and who supported her brother’s education by providing shelter and assuming related costs, claimed EUR 8,500 in respect of pecuniary damages. The above sums corresponded to the financial support the applicants considered that they would have been expected to receive from Önder Babat until the latter’s retirement from a legal profession at the age of sixty-five had he not been unlawfully killed. 47. The first and the second applicants each claimed EUR 20,000 in respect of non-pecuniary damage. The third applicant claimed EUR 15,000 for non-pecuniary damage.", "48. The Government contested the amounts. In particular, they found the applicants’ pecuniary damage claims unsubstantiated. 49. As regards pecuniary damages, the Court reiterates that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention and that this may, in appropriate cases, include compensation in respect of loss of earnings (see, among other authorities, Tanış and Others v. Turkey, no.", "65899/01, § 231, ECHR 2005‑VIII). However, the Court finds no causal link between the matters held to constitute violation of the Convention – the absence of an effective investigation – and the pecuniary damage alleged by the applicants (see, for example, Toğcu v. Turkey, no. 27601/95, § 155, 31 May 2005). Consequently, it dismisses the applicants’ claim under this head. 50.", "As to non-pecuniary damage sustained by the applicants, the Court notes that it has found a violation of Article 2 of the Convention under its procedural limb. Having regard to the circumstances of the case and ruling on an equitable basis, the Court awards, jointly, EUR 15,000 to Mr Aziz Babat and Ms Azime Babat, and EUR 5,000 to Ms Marifet Akgün (Babat). B. Costs and expenses 51. The applicants also claimed 2,500 Turkish liras (approximately EUR 1,183) in respect of legal fees due to their lawyer for the proceedings before the Court.", "In this connection, they referred to the Turkish Bar Association’s scale of fees. 52. The Government contested the amount. 53. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "In the present case, the Court observes that the applicants did no more than refer to the Turkish Bar Association’s scale of fees and failed to submit any supporting documents in support of their claim. The Court therefore makes no award under this head. 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 application admissible; 2. Holds that there has been no violation of Article 2 of the Convention on account of the killing of Önder Babat; 3. Holds that there has been a violation of Article 2 of the Convention on account of the ineffectiveness of the criminal investigation into Önder Babat’s death; 4. Holds that there is no need to examine separately the complaint under Article 14 of the Convention; 5. Holds (a) that the respondent State is to pay the applicants, within three months of the date on which the judgment becomes final according to 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 15,000 (fifteen thousand euros), jointly, to Mr Aziz Babat and Ms Azime Babat, and EUR 5,000 (five thousand euros) to Ms Marifet Akgün (Babat) in respect of non-pecuniary damage; (ii) 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; 6.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 12 January 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosFrançoise TulkensDeputy RegistrarPresident [1]. The applicants submitted a number of newspaper clippings on the issue of semi‑official organisations. In one of the articles, reference is made to a certain Hakan Saraylıoğlu who had been killed by the DHKP-C for treason in 2006.", "He had allegedly said, under questioning, that the organisation had shot someone from the office of a businessman, a member of MHP, for training purposes, and that this person was Önder Babat." ]

[ "GRAND CHAMBER CASE OF HÄMÄLÄINEN v. FINLAND (Application no. 37359/09) JUDGMENT STRASBOURG 16 July 2014 In the case of Hämäläinen v. Finland, The European Court of Human Rights, sitting as a Grand Chamber composed of: Dean Spielmann, President,Josep Casadevall,Guido Raimondi,Ineta Ziemele,Mark Villiger,Isabelle Berro,Khanlar Hajiyev,Danutė Jočienė,Päivi Hirvelä,András Sajó,Linos-Alexandre Sicilianos,Erik Møse,Helen Keller,André Potocki,Paul Lemmens,Valeriu Griţco,Faris Vehabović, judges,and Johan Callewaert, Deputy Grand Chamber Registrar, Having deliberated in private on 16 October 2013 and 11 June 2014, Delivers the following judgment, which was adopted on the last- mentioned date: PROCEDURE 1. The case originated in an application (no. 37359/09) 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 Heli Maarit Hannele Hämäläinen (“the applicant”), on 8 July 2009. Having originally been designated by the initial H., the applicant subsequently agreed to the disclosure of her name.", "2. The applicant was represented by Mr C. Cojocariu, a lawyer practising in London. The Finnish Government (“the Government”) were represented by their Agent, Mr A. Kosonen, of the Ministry of Foreign Affairs. 3. The applicant alleged, in particular, under Articles 8 and 14 of the Convention that her right to private and family life had been violated when the full recognition of her new gender was made conditional on the transformation of her marriage into a registered partnership.", "4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 13 November 2012 a Chamber, composed of Lech Garlicki, President, Päivi Hirvelä, George Nicolaou, Ledi Bianku, Zdravka Kalaydjieva, Nebojša Vučinić and Vincent A. De Gaetano, judges, and Lawrence Early, Section Registrar, delivered its judgment. It decided, unanimously, to declare the complaints concerning Articles 8, 12 and 14 of the Convention admissible and the remainder of the application inadmissible, and held that there had been no violation of Article 8 of the Convention, no violation of Article 14 of the Convention taken in conjunction with Article 8, and that there was no need to examine the case under Article 12 of the Convention.", "5. On 13 February 2013 the applicant requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention. A panel of the Grand Chamber accepted the request on 29 April 2013. 6. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24.", "At the final deliberations, Danutė Jočienė continued to sit in the case following the expiry of her term of office (Article 23 § 3 of the Convention and Rule 24 § 4). 7. The applicant and the Government each filed further observations on the merits (Rule 59 § 1). In addition, third-party comments were received from Amnesty International and Transgender Europe, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). 8.", "A hearing took place in public in the Human Rights Building, Strasbourg, on 16 October 2013 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMrA. Kosonen, Director, Ministry of Foreign Affairs,Agent,MsS. Silvola, Senior Adviser, Ministry of Justice,MsM. Faurie, Senior Officer, Ministry of Social Affairs and Health,MsK.", "Fokin, Legal Officer, Ministry of Foreign Affairs,Advisers; (b) for the applicantMrC. Cojocariu, Lawyer, Interights,Counsel,MsV. Vandova, Legal Director, Interights,Adviser. The applicant was also present. The Court heard addresses by Mr Kosonen, Mr Cojocariu and Ms Silvola, as well as their replies to questions put by Judges Hirvelä, Sajó and Lemmens.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1963 and lives in Helsinki. 10. The applicant was born male.", "She always felt that she was a female in a male body but decided to cope with the situation. In 1996 she married a woman and in 2002 they had a child. 11. The applicant started feeling worse in 2004, and decided in 2005 to seek medical help. In April 2006 she was diagnosed as a transsexual.", "Since that time, she has lived as a woman. On 29 September 2009 she underwent gender reassignment surgery. 12. On 7 June 2006 the applicant changed her first names and renewed her passport and driver’s licence but she could not have her identity number changed. The identity number still indicates that she is male, as does her passport.", "A. Proceedings to have her identity number changed 13. On 12 June 2007 the applicant requested the local registry office (maistraatti, magistraten) to confirm her status as female and to change her male identity number to a female one as it no longer corresponded to the reality. 14. On 19 June 2007 the local registry office refused the applicant’s request.", "It found that, under sections 1 and 2 of the Transsexuals (Confirmation of Gender) Act (laki transseksuaalin sukupuolen vahvistamisesta, lagen om fastställande av transsexuella personers könstillhörighet), confirmation of such status required that the person was not married or that the spouse gave his or her consent (see paragraph 29 below). As the applicant’s wife had not given her consent to the transformation of their marriage into a registered partnership (rekisteröity parisuhde, registrerat partnerskap), the applicant’s new gender could not be recorded in the population register. 15. On 6 July 2007 the applicant instituted proceedings in the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen) complaining, inter alia, that her wife’s decision not to give her consent, which she was perfectly entitled to withhold as they both preferred to remain married, meant that the applicant could not be registered as female. A divorce would be against their religious convictions.", "A registered partnership did not provide the same security as marriage and would mean, among other things, that their child would be placed in a different situation from children born in wedlock. 16. On 5 May 2008 the Helsinki Administrative Court dismissed the applicant’s complaint on the same grounds as the local registry office. Moreover, it found, inter alia, that the impugned decision of 19 June 2007 was not contrary to Article 6 of the Finnish Constitution as same-sex partners had the possibility, by registering their relationship, to benefit from family-law protection in a manner partially comparable to marriage. Similarly, sections 1 and 2 of the Transsexuals (Confirmation of Gender) Act did not violate the constitutional rights of the applicant’s child.", "17. On 8 May 2008 the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltnings-domstolen), reiterating the grounds submitted before the local registry office and the Helsinki Administrative Court. She also asked the court to make a request for a preliminary ruling to the Court of Justice of the European Communities, in particular on the interpretation of Article 8 of the Convention. Referring to Articles 8 and 14 of the Convention, the applicant claimed that the State should not tell her that a registered partnership was appropriate for her, especially when this required that her wife become a lesbian. Their sexual identity was a private matter which could not be a condition for confirmation of gender.", "Transgenderism was a medical condition falling within the scope of private life. The State was violating her right to privacy every time the male identity number revealed that she was a transsexual. Moreover, she claimed that if her marriage were turned into a registered partnership, it would mean that she could no longer be a legal father to her child and could not be her mother either, as a child could not have two mothers. 18. On 3 February 2009 the Supreme Administrative Court refused the applicant’s request to apply for a preliminary ruling to the Court of Justice of the European Communities and dismissed her appeal.", "It found that by enacting the Transsexuals (Confirmation of Gender) Act the legislature had not intended to change the fact that only a man and a woman could marry and that same-sex partners could have their relationship judicially confirmed by registering it. The European Court of Human Rights had found, under Article 12 of the Convention, that there were no acceptable grounds for denying transsexuals the right to marry but that the margin of appreciation in this respect was wide. It was not possible under Finnish law for persons of the same sex to marry, but in such a case they could enter into a registered partnership. As to its legal and economic consequences, a registered partnership was essentially comparable to marriage. The question of transforming the institution of marriage into a gender-neutral one brought significant ethical and religious values into play and required the enactment of an Act of Parliament.", "The current state of the law was within the margin of appreciation afforded to the State by the Convention. B. Extraordinary proceedings 19. On 29 October 2009 the applicant lodged an extraordinary appeal with the Supreme Administrative Court, requesting it to overturn its previous decision of 3 February 2009. She stated that she had undergone gender reassignment surgery on 29 September 2009 and that she could no longer prove that she had been male as indicated by her identity number and passport.", "Even though, for marriage purposes, she would still be considered as male, the fact remained that she should not be discriminated against on account of her gender. 20. On 18 August 2010 the Supreme Administrative Court dismissed the extraordinary appeal. C. Other proceedings 21. On an unspecified date the applicant also lodged a complaint with the Ombudsman for Equality (Tasa-arvovaltuutettu, Jämställdhets-ombudsmannen), complaining, inter alia, that she had the wrong identity number.", "22. On 30 September 2008 the Ombudsman for Equality stated that she could not take a stand on the identity number issue as the matter had already been dealt with by the Administrative Court and the Ombudsman was not competent to supervise the courts. Moreover, the matter was pending before the Supreme Administrative Court. II. RELEVANT DOMESTIC LAW A.", "The Finnish Constitution 23. Article 6 of the Finnish Constitution (Suomen perustuslaki, Finlands grundlag; Law no. 731/1999) provides as follows. “Everyone is equal before the law. No one shall, without an acceptable reason, be treated differently from other persons on the ground of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person.", "Children shall be treated equally and as individuals and they shall be allowed to influence matters pertaining to themselves to a degree corresponding to their level of development. Equality of the sexes shall be promoted in society and working life, especially in the determination of pay and other terms of employment, as provided for in more detail by an [implementing] Act.” B. The Marriage Act 24. Section 1 of the Marriage Act (avioliittolaki, äktenskapslagen; Law no. 411/1987) provides that marriage is between a woman and a man.", "25. Section 115 of the same Act (as amended by Law no. 226/2001) provides as follows: “A marriage concluded between a woman and a man in a foreign State before an authority of that State shall be valid in Finland if it is valid in the State in which it was concluded or in a State of which either spouse was a citizen or in which either spouse was habitually resident at the time of conclusion of the marriage.” C. The Registered Partnerships Act 26. Under section 1 of the Registered Partnerships Act (laki rekisteröidystä parisuhteesta, lagen om registrerat partnerskap; Law no. 950/2001), a partnership between two persons of the same sex and over 18 years of age may be registered as provided by the Act.", "27. Section 8(1) of the same Act provides: “The registration of the partnership shall have the same legal effects as the conclusion of marriage, unless otherwise provided.” D. The Transsexuals (Confirmation of Gender) Act 28. Section 1 of the Transsexuals (Confirmation of Gender) Act (laki transseksuaalin sukupuolen vahvistamisesta, lagen om fastställande av transsexuella personers könstillhörighet; Law no. 563/2002) provides that it shall be established that a person belongs to the opposite sex to the one noted in the population register if he or she “(1) provides medical certification that he or she permanently feels that he or she belongs to the opposite gender and lives in the corresponding gender role and that he or she has been sterilised or is for some other reason incapable of reproducing; (2) is over 18 years of age; (3) is not married or in a registered partnership; and (4) is a Finnish citizen or is resident in Finland.” 29. Section 2 of the Act provides for exceptions from the marital-status requirement.", "A marriage or registered partnership does not prevent the confirmation of gender if the spouse or the partner personally gives his or her consent to it before a local registry office. Where membership of the opposite sex is confirmed, a marriage is turned automatically, without further action, into a registered partnership and a registered partnership into a marriage. This change is noted in the population register. 30. The travaux préparatoires of the Transsexuals (Confirmation of Gender) Act (Government Bill HE 56/2001 vp) state, inter alia, that established paternity cannot be annulled solely on the ground that the man has subsequently become a woman.", "Similarly, a woman who has given birth legally remains the child’s mother even if she subsequently becomes a man. The duties of custody, care and maintenance of a child are primarily based on parenthood. The change of gender of a parent does not therefore affect those rights and obligations. III. COMPARATIVE LAW 31.", "From the information available to the Court, it would appear that ten member States of the Council of Europe permit same-sex marriage (Belgium, Denmark, France, Iceland, the Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom (England and Wales only)). 32. It would also appear that twenty-four member States (Albania, Andorra, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Estonia, Georgia, Greece, Latvia, Liechtenstein, Lithuania, Luxembourg, the Republic of Moldova, Monaco, Montenegro, Poland, Romania, Russia, Serbia, Slovakia, Slovenia and the former Yugoslav Republic of Macedonia) have no clear legal framework for legal gender recognition or no legal provisions that specifically deal with the status of married persons who have undergone gender reassignment. The absence of legal regulations in these member States leaves a number of questions unanswered, among which is the fate of a marriage concluded before gender reassignment surgery. In six member States (Italy, Hungary, Ireland, Malta, Turkey and Ukraine) relevant legislation on gender recognition exists.", "In these States the legislation specifically requires that a person be single or divorced, or there are general provisions in the civil codes or family-law provisions stating that after a change of sex any existing marriage is declared null and void or dissolved. Exceptions allowing a married person to gain legal recognition of his or her acquired gender without having to end a pre-existing marriage exist in only three member States (Austria, Germany and Switzerland). 33. It would thus appear that, where same-sex marriage is not permitted, only three member States permit an exception which would allow a married person to gain legal recognition of his or her acquired gender without having to end his or her existing marriage. In twenty-four member States the position is rather unclear, given the lack of specific legal regulations in place.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 34. The applicant complained under Article 8 of the Convention that her right to private and family life had been violated when the full recognition of her new gender was made conditional on the transformation of her marriage into a registered partnership. 35. Article 8 of the Convention reads as follows: “1.", "Everyone has the right to respect for his private and family life, his home and his correspondence. 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 Chamber judgment 36. In its judgment of 13 November 2012, the Chamber found that the facts of the case fell within the ambit of Article 8 of the Convention and within the scope of the concept of “private life”.", "There had been an interference with the applicant’s right to respect for her private life in that she had not been granted a new female identity number. This interference had a basis in national law, namely, in section 2(1) of the Transsexuals (Confirmation of Gender) Act. The interference was thus “in accordance with the law” and pursued the legitimate aim of protecting “health and morals” and the “rights and freedoms of others”. 37. As to whether the impugned measures were necessary in a democratic society, the Chamber noted that the applicant and her spouse were lawfully married under domestic law and that they wished to remain married.", "In domestic law, marriage was only permitted between persons of opposite sex and same-sex marriages were not permitted. The applicant could obtain a new identity number as a woman only if her spouse consented to their marriage being turned into a registered partnership. If no such consent was obtained, the applicant had a choice between remaining married and tolerating the inconvenience caused by the male identity number, or divorcing her spouse. 38. The Chamber considered that there were two competing rights which needed to be balanced against each other, namely, the applicant’s right to respect for her private life by obtaining a new female identity number and the State’s interest in maintaining the traditional institution of marriage intact.", "Obtaining the former while remaining married would imply a same-sex marriage between the applicant and her spouse, which was not allowed by the current legislation in force in Finland. The Chamber reiterated that, according to the Court’s case-law, Article 12 of the Convention did not impose an obligation on Contracting States to grant same-sex couples access to marriage. Nor could Article 8, a provision of more general purpose and scope, be interpreted as imposing such an obligation. The Court had also held that the matter of regulating the effects of the change of gender in the context of marriage fell within the appreciation of the Contracting State. 39.", "The Chamber noted that consensus on same-sex marriages was evolving in the European context, and that some Council of Europe member States had already included such a possibility in their domestic legislation. In Finland, however, this possibility did not exist, although it was currently being examined by Parliament. On the other hand, the rights of same-sex couples were currently protected by the possibility to register a partnership. While it was true that the applicant faced daily situations in which the incorrect identity number created inconvenience for her, the Chamber considered that the applicant had a genuine possibility to change that state of affairs: her marriage could be turned at any time, ex lege, into a registered partnership with the consent of her spouse. If no such consent was obtained, the applicant had the possibility to divorce.", "40. For the Chamber, it was not disproportionate to require that her spouse give consent to such a change as her rights were also at stake. Nor was it disproportionate that the applicant’s marriage be turned into a registered partnership as the latter was a genuine option which provided legal protection for same-sex couples that was almost identical to that of marriage. Moreover, although there was a child from the marriage, there was no suggestion that this child, or any other individual, would be adversely affected if the applicant’s marriage were turned into a registered partnership. The applicant’s rights and obligations arising either from paternity or parenthood would not be altered if her marriage were turned into a registered partnership.", "The Chamber therefore considered that the effects of the Finnish system had not been shown to be disproportionate and that a fair balance had been struck between the competing interests. There had accordingly been no violation of Article 8 of the Convention. B. The parties’ submissions 1. The applicant 41.", "The applicant argued that, under the domestic law, she was forced to choose between two fundamental rights recognised under the Convention, namely, her right to sexual self-determination and her right to remain married, with the result that she was effectively compelled to forego one of them. Such legislation placed her in a quandary. She referred in that respect to a judgment of the Federal Constitutional Court of Germany of 27 May 2008. The object of her application was not to extend marriage rights to same-sex couples but only to preserve her pre-existing marriage to her spouse. In her case, same-sex marriage was an unintended and accidental outcome of legal gender recognition.", "She sought protection of a pre-acquired right and not the presumptive right to marry a woman. 42. The applicant claimed that there was an interference with both her private life and family life. Following the Court’s line of reasoning in Parry v. the United Kingdom ((dec.), no. 42971/05, ECHR 2006‑XV) and Dadouch v. Malta (no.", "38816/07, 20 July 2010), the family-life aspect of the case could not be excluded. The margin of appreciation should be narrower where a particularly important facet of an individual’s existence or identity was at stake. In her submission, the Court should narrow it down even further and move towards removing the divorce requirement in the legal gender recognition context. The margin of appreciation could not extend so far as to allow States to terminate a marriage at their discretion. 43.", "The applicant submitted that the divorce requirement imposed by the Transsexuals (Confirmation of Gender) Act was an unnecessary and disproportionate interference with her Article 8 rights. The balancing act carried out by the Chamber had been fundamentally flawed for several reasons. 44. Firstly, the Chamber had failed to weigh up in the balancing exercise the applicant’s and her wife’s acquired right to be married. If the applicant had chosen legal gender recognition, this would have terminated her marriage either through divorce or by conversion into a registered partnership.", "Both scenarios involved termination of the marriage. Conversion into a registered partnership was akin to divorce as the consequences of the conversion only applied for the future. As the spouse’s consent was needed, divorce in these circumstances was “forced” by the State. The compulsory termination of the applicant’s marriage would have substantially undermined her rights under the Convention as well as the rights of her spouse and daughter. Such dissolution of a valid marriage would have contradicted the underlying commitment to permanence in marriage, distinguishing it from other relationships.", "Marriage continued to qualify for the highest degree of protection under Article 8 of the Convention. The applicant and her wife had been married for seventeen years, still lived together and had had a child together. The survival of their relationship, despite the gender reassignment of one spouse, demonstrated a high degree of mutual commitment between the spouses. Important distinctions remained between marriage and a registered partnership: when the female partner in a registered partnership gave birth, both parents did not automatically become parents as in the case of marriage. Nor was adoption possible if neither of the parents was a biological parent of the child to be adopted.", "The applicant and her family would have lost these rights, which were not insignificant, if they had agreed to enter into a registered partnership. It was also doubtful to what extent the legal parent-child relationship between the applicant and her daughter would have survived as there were no provisions to that effect in the Transsexuals (Confirmation of Gender) Act. The spouses had contracted marriage on the understanding, inspired by their strong religious beliefs, that it would last for life. They were not willing to relinquish their marriage under any circumstances. The applicant’s gender reassignment did not necessarily transform the couple into a homosexual couple.", "The applicant’s wife, who had entered into the heterosexual relationship seventeen years ago, continued to be heterosexual. Accordingly, the downgrading of the applicant’s relationship to a registered partnership did not reflect the reality of the applicant’s wife’s position. She was forced to make an impossible choice between supporting the applicant or preserving their marriage. Their child’s situation would be similar to that of children born out of wedlock. 45.", "Secondly, the applicant claimed that the Chamber had not given sufficient weight to her right to sexual self-determination. The lack of legal recognition of the applicant’s female gender had had profound implications for her daily life. She had effectively been forced to reveal her transsexual condition to complete strangers in daily situations that most people took for granted. For example, the applicant travelled extensively in connection with her job but her passport still indicated that she was a man. When she travelled on her current passport, she was forced to buy airline tickets with the title “Mr”.", "Her appearance with female characteristics at the airport, carrying a passport which stated her gender as male, had inevitably led to intrusive questioning, delays, embarrassment and distress. As Finland had allowed the applicant to change her first names to correspond to her female identity, it was illogical to deny her legal gender recognition at this juncture, thus leaving her stranded in the territory between two sexes for a potentially indeterminate period. The applicant had not chosen to become transsexual and should therefore not be punished by being deprived of her marriage. The express requirement that legal gender recognition was contingent on the termination of marriage did not allow the Finnish courts to make an individualised assessment taking into account the applicant’s circumstances. In Schlumpf v. Switzerland (no.", "29002/06, 8 January 2009), the Court had found a violation in similar circumstances. The domestic courts had also failed to consider other alternatives that did not require the termination of marriage. 46. Thirdly, the applicant argued that the Chamber’s assumption that the State’s interest in protecting marriage would be fatally undermined if transsexuals were allowed to marry was inaccurate. The Chamber had wrongly assumed that the only interest of public value involved in the case was protecting the heterosexual character of marriage.", "The applicant did not specifically challenge the importance of preserving heterosexual marriage but claimed that forcing her to divorce in order to achieve legal gender recognition was an unnecessary and disproportionate means of achieving the State’s objective. Allowing transsexuals to marry would only marginally affect heterosexual marriage as such cases were extremely rare. De facto or de jure same-sex marriages might already exist in Finland as the marriage of persons in the same situation as the applicant created the appearance of same-sex marriage. Moreover, legal gender recognition obtained in a foreign State was also valid in Finland. 47.", "Moreover, the applicant claimed that the Chamber had failed to take due account of the recent international trends towards abandonment of the compulsory divorce requirement, legalisation of same-sex marriage and divorce by free consent. Abandoning compulsory divorce requirements was achieved by either explicitly allowing transsexuals to marry or by legalising same-sex marriage. The applicant referred to comparative-law studies concerning legal gender recognition and marital-status requirements. 48. In Finland there had also been a trend towards abolishing the compulsory divorce requirement.", "The Ombudsman for Equality had suggested in 2012 that equal marriage rights for all could be a solution which would allow the continuation of marriage where one spouse was transgender. The Commissioner for Human Rights of the Council of Europe had also called for abolition of the divorce requirement following his visit to Finland in 2012. In that context, the Finnish Government had committed themselves to establishing a working group to examine the possibility of reforming the impugned legislation. There was also a European and international trend towards allowing same-sex marriages. Ten European States currently allowed same-sex marriage.", "The situation in Finland was also expected to change in the near future. In February 2013 the Parliamentary Law Committee had voted down a draft bill to that effect by a narrow majority of nine votes to eight. Public support for same-sex marriage had also grown from 45% in 2006 to 58% in March 2013. 2. The Government 49.", "The Government agreed with the Chamber’s reasoning and conclusion to the effect that there had been no violation of Article 8 of the Convention in the present case. They noted that the impugned legislation had been passed in order to prevent inequality caused by varying administrative practices throughout the country and in order to set coherent preconditions for legal gender recognition. The bill had initially required that the person requesting legal gender recognition be unmarried or not in a registered partnership and had not allowed his or her marriage or registered partnership to continue in another legally recognised form. This had been seen as unreasonable during the legislative procedure and therefore the conversion mechanism had been introduced into the provision. Since the entry into force of the Transsexuals (Confirmation of Gender) Act, at least fifteen marriages had been turned into registered partnerships and sixteen registered partnerships into marriages.", "In nine cases the spouses had had children together and in none of these cases had the legal parent-child relationship changed. 50. The Government noted that the applicant had on many occasions in her observations erroneously referred to compulsory divorce legislation. However, if the spouse’s consent was received, the marriage turned automatically, ex lege, into a registered partnership. The expression “turns into” in section 2 of the Transsexuals (Confirmation of Gender) Act had been explicitly used to illustrate the fact that the legal relationship continued with only a change of title and minor changes to the content of the relationship.", "This continuity preserved certain derived rights, such as a widower’s pension, and did not create a right or obligation to divide the property between the spouses. The length of the partnership was calculated from the beginning of the relationship, not from the change of title of it. Moreover, the rights and obligations pertaining to parenthood did not depend on the gender of the parent. Consequently, there was no obligatory divorce in Finland but, on the contrary, the possibility of divorcing was at the applicant’s own discretion. Finnish legislation offered the chance to reconcile both the right to sexual self-determination and the right to marry, in the form of a registered partnership.", "51. The Government pointed out that the only differences between marriage and registered partnership appeared in two areas: establishment of paternity on the basis of marriage did not apply to registered partnerships, nor did the provisions of the Adoption Act or the Names Act regarding the family name of the spouse. However, a registered partner could adopt the other partner’s child. Those exceptions were applicable only to those cases in which parenthood had not been established beforehand. Paternity presumed on the basis of marriage or established paternity could not be annulled on the ground that the man later underwent gender reassignment and became a woman.", "Nor did the father’s gender reassignment have any legal effects on his responsibility for the care, custody or maintenance of a child as such responsibility was based on parenthood, irrespective of sex or form of partnership. The applicant was not even claiming that her legal rights and obligations would be reduced were her marriage turned into a registered partnership, but rather relied on the social and symbolic significance of marriage. The Government stressed that the applicant’s legal rights and obligations vis-à-vis her child arising either from paternity or parenthood would not be altered and the applicant had not produced any evidence to the contrary. Finnish law did not impose compulsory divorce on the applicant, nor annulment or dissolution of marriage. Nor was there any evidence of possible implications for the applicant’s private or family life as she could continue her family life without any interference.", "52. The Government noted that, while the Federal Constitutional Court of Germany, in its judgment of 27 May 2008, had found a similar situation to be unconstitutional, it had left it to the legislature to decide by what means to remedy the situation. According to that court, a marriage could be transformed into a registered civil partnership or a legally secured civil partnership sui generis but the rights acquired by the couple and the duties imposed on them by the marriage had to remain intact. The Finnish provisions were thus in line with the said judgment of the Federal Constitutional Court of Germany. 53.", "The Government concluded that there was still no European consensus on allowing a transsexual’s marriage to subsist following post-operative legal gender recognition or on allowing same-sex marriages. Consequently, the State’s margin of appreciation should be wide and it should be able to regulate the effects of the change of gender on pre-existing marriages. 3. Third-party observations (a) Amnesty International 54. Amnesty International noted that all human rights treaties should, as far as possible, be interpreted in harmony in order to give rise to a single set of compatible obligations.", "It was well-established in international human rights law that the general prohibition of discrimination included a prohibition of discrimination on the ground of sexual orientation. Both gender identity and sexual orientation related to highly subjective notions of self. Often, discrimination based on sexual orientation or gender identity found its expression in relation to family relationships. In the vast majority of those cases, the adjudicating bodies concluded that the States had not put forward reasonable, convincing, objective or weighty arguments to justify discrimination against individuals on the ground of their sexual orientation. Stereotypes constituted a form of discrimination when they resulted in differentiated treatment that nullified or impaired the enjoyment of human rights or fundamental freedoms.", "Many differences in treatment based on sexual orientation had their roots in stereotypes about gender roles. 55. Same-sex relationships were gaining legal recognition equal to that of different-sex couples in many jurisdictions but the laws in many countries still made many distinctions. If two individuals in a couple identified as women, they were assumed to be lesbian. This conflation affected a person’s dignity and rights by forcing a gender definition that might not align with the individual’s sense of self.", "Such conflation was also unnecessary if the law conferred the same status and rights on all couples. States could not impose one particular vision of rights on those who did not share that vision. Traditions and values could not justify a limitation of rights even if these traditions and values were shared by the majority of society. (b) Transgender Europe 56. Transgender Europe submitted in its observations comparative information regarding the situation in different Council of Europe member States as far as legal recognition of the new gender of transgender persons was concerned.", "In some Council of Europe member States transgender persons could not obtain any legal recognition of their gender, while in other member States legal gender recognition was dealt with in a variety of different ways. Some of the member States either allowed same-sex couples to marry or offered the option of a registered partnership. Of the States which offered the option of a registered partnership, some States currently required mandatory termination of marriage while some other States did not. Generally, there was a strong tendency among the Council of Europe member States to review their approach as a result of Recommendation Rec(2010)5 of the Committee of Ministers on measures to combat discrimination on grounds of sexual orientation or gender identity, adopted on 31 March 2010. Most of the new laws, revisions and current political discussions showed that member States took greater account of the right to self-determination of transgender individuals when designing legislation.", "C. The Court’s assessment 1. Applicability of Article 8 of the Convention 57. In the instant case the applicant formulated her complaint under Article 8 of the Convention and the Government did not dispute the applicability of that provision. 58. The Court notes that the applicant sought to have her identity number changed from a male to a female one because, having undergone male-to-female gender reassignment surgery, her old male identity number no longer corresponded to the reality.", "59. The Court has held on numerous occasions that a post-operative transsexual may claim to be a victim of a breach of his or her right to respect for private life contrary to Article 8 of the Convention on account of the lack of legal recognition of his or her change of gender (see, for example, Grant v. the United Kingdom, no. 32570/03, § 40, ECHR 2006‑VII, and L. v. Lithuania, no. 27527/03, § 59, ECHR 2007‑IV). In the present case it is not disputed that the applicant’s situation falls within the notion of “private life” within the meaning of Article 8 of the Convention.", "60. The Court notes that the present case also involves issues which may have implications for the applicant’s family life. Under the domestic law, the conversion of the applicant’s existing marriage into a registered partnership requires the consent of her wife. Moreover, the applicant and her wife have a child together. Accordingly, the Court is of the view that the applicant’s relationship with her wife and child also falls within the notion of “family life” within the meaning of Article 8 of the Convention.", "61. Article 8 of the Convention therefore applies to the present case under both its private-life and family-life aspects. 2. Whether the case involves a positive obligation or an interference 62. While the essential object of Article 8 is to protect individuals against arbitrary interference by public authorities, it may also impose on a State certain positive obligations to ensure effective respect for the rights protected by Article 8 (see, among other authorities, X and Y v. the Netherlands, 26 March 1985, § 23, Series A no.", "91, and Söderman v. Sweden [GC], no. 5786/08, § 78, ECHR 2013). 63. The Court has previously found that Article 8 imposes on States a positive obligation to secure to their citizens the right to effective respect for their physical and psychological integrity (see, for example, Nitecki v. Poland (dec.), no. 65653/01, 21 March 2002; Sentges v. the Netherlands (dec.), no.", "27677/02, 8 July 2003; Odièvre v. France [GC], no. 42326/98, § 42, ECHR 2003‑III; Glass v. the United Kingdom, no. 61827/00, §§ 74‑83, ECHR 2004‑II; and Pentiacova and Others v. Moldova (dec.), no. 14462/03, ECHR 2005‑I). In addition, this obligation may involve the adoption of specific measures, including the provision of an effective and accessible means of protecting the right to respect for private life (see Airey v. Ireland, 9 October 1979, § 33, Series A no.", "32; McGinley and Egan v. the United Kingdom, 9 June 1998, § 101, Reports of Judgments and Decisions 1998‑III; and Roche v. the United Kingdom [GC], no. 32555/96, § 162, ECHR 2005‑X). Such measures may include both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights and the implementation, where appropriate, of these measures in different contexts (see A, B and C v. Ireland [GC], no. 25579/05, § 245, ECHR 2010). 64.", "The Court observes that it is common ground between the parties that there has been an interference with the applicant’s right to respect for her private life in that she was not granted a new – female – identity number. The Chamber also examined the case from that point of view. The Grand Chamber, however, is of the opinion that the question to be determined by the Court is whether respect for the applicant’s private and family life entails a positive obligation on the State to provide an effective and accessible procedure allowing the applicant to have her new gender legally recognised while remaining married. The Grand Chamber therefore considers it more appropriate to analyse the applicant’s complaint with regard to the positive aspect of Article 8 of the Convention. 3.", "General principles applicable to assessing a State’s positive obligations 65. The principles applicable to assessing a State’s positive and negative obligations under the Convention are similar. Regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, the aims in the second paragraph of Article 8 being of a certain relevance (see Gaskin v. the United Kingdom, 7 July 1989, § 42, Series A no. 160, and Roche, cited above, § 157). 66.", "The notion of “respect” is not clear cut, especially as far as positive obligations are concerned: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 72, ECHR 2002‑VI). Nonetheless, certain factors have been considered relevant for the assessment of the content of those positive obligations on States. Some of them relate to the applicant. They concern the importance of the interest at stake and whether “fundamental values” or “essential aspects” of private life are in issue (see X and Y v. the Netherlands, cited above, § 27, and Gaskin, cited above, § 49), or the impact on an applicant of a discordance between the social reality and the law, the coherence of the administrative and legal practices within the domestic system being regarded as an important factor in the assessment carried out under Article 8 (see B. v. France, 25 March 1992, § 63, Series A no.", "232‑C, and Christine Goodwin, cited above, §§ 77‑78). Other factors relate to the impact of the alleged positive obligation at stake on the State concerned. The question here is whether the alleged obligation is narrow and precise or broad and indeterminate (see Botta v. Italy, 24 February 1998, § 35, Reports 1998‑I), or about the extent of any burden the obligation would impose on the State (see Rees v. the United Kingdom, 17 October 1986, §§ 43-44, Series A no. 106, and Christine Goodwin, cited above, §§ 86-88). 67.", "In implementing their positive obligations under Article 8, the States enjoy a certain margin of appreciation. A number of factors must be taken into account when determining the breadth of that margin. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will be restricted (see, for example, X and Y v. the Netherlands, cited above, §§ 24 and 27, and Christine Goodwin, cited above, § 90; see also Pretty v. the United Kingdom, no. 2346/02, § 71, ECHR 2002‑III). Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (see X, Y and Z v. the United Kingdom, 22 April 1997, § 44, Reports 1997-II; Fretté v. France, no.", "36515/97, § 41, ECHR 2002-I; and Christine Goodwin, cited above, § 85). There will also usually be a wide margin of appreciation if the State is required to strike a balance between competing private and public interests or Convention rights (see Fretté, cited above, § 42; Odièvre, cited above, §§ 44-49; Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007‑I; Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007‑V; and S.H. and Others v. Austria [GC], no.", "57813/00, § 94, ECHR 2011). 68. The Court has already examined several cases relating to the lack of legal recognition of gender reassignment surgery (see, for example, Christine Goodwin, cited above; Van Kück v. Germany, no. 35968/97, ECHR 2003‑VII; Grant, cited above; and L. v. Lithuania, cited above, § 56). While affording a certain margin of appreciation to States in this field, it has held that States are required, in accordance with their positive obligations under Article 8, to recognise the change of gender undergone by post-operative transsexuals through, inter alia, the possibility to amend the data relating to their civil status, and the ensuing consequences (see, for example, Christine Goodwin, cited above, §§ 71-93, and Grant, cited above, §§ 39-44).", "4. Application of the general principles to the applicant’s case 69. The Court notes first of all that the applicant and her spouse were lawfully married under domestic law in 1996 and that they wish to remain married. Under domestic law, marriage is only permitted between persons of opposite sex. Same-sex marriages are not, for the time being, permitted in Finland although that possibility is currently being examined by Parliament.", "On the other hand, the rights of same-sex couples are currently protected by the possibility of contracting a registered partnership. 70. The Court is mindful of the fact that the applicant is not advocating same-sex marriage in general but merely wants to preserve her own marriage. However, it considers that the applicant’s claim, if accepted, would in practice lead to a situation in which two persons of the same sex could be married to each other. As already stated above, no such right currently exists in Finland.", "Therefore, the Court must first examine whether the recognition of such a right is required in the circumstances by Article 8 of the Convention. 71. The Court reiterates its case-law according to which Article 8 of the Convention cannot be interpreted as imposing an obligation on Contracting States to grant same-sex couples access to marriage (see Schalk and Kopf v. Austria, no. 30141/04, § 101, ECHR 2010). The Court has also held that the regulation of the effects of a change of gender in the context of marriage falls to a large extent, though not entirely, within the margin of appreciation of the Contracting State (see Christine Goodwin, cited above, § 103).", "Furthermore, the Convention does not require that any further special arrangements be put in place for situations such as the present one. The Court found in 2006 in the case in Parry (cited above) that, even if same-sex marriage was not allowed at the time in English law, the applicants could continue their relationship in all its essentials and could also give it a legal status akin, if not identical, to marriage, through a civil partnership which carried with it almost all the same legal rights and obligations. The Court thus regarded civil partnerships as an adequate option. 72. The Court observes that the present case involves issues which are subject to constant developments in the Council of Europe member States.", "It will therefore examine the situation in other Council of Europe member States in respect of the issues at stake in the present case. 73. From the information available to the Court (see paragraph 31 above), it appears that, currently, ten member States allow same-sex marriage. Moreover, in the majority of the member States not allowing same-sex marriage there is either no clear legal framework for legal gender recognition or no legal provisions specifically dealing with the status of married persons who have undergone gender reassignment. Only in six member States which do not allow same-sex marriage does relevant legislation on gender recognition exist.", "In those States either the legislation specifically requires that a person be single or divorced or there are general provisions stating that after a change of sex any existing marriage is declared null and void or dissolved. Exceptions allowing a married person to gain legal recognition of his or her acquired gender without having to end a pre-existing marriage seem to exist in only three member States (see paragraphs 31-33 above). 74. Thus, it cannot be said that there exists any European consensus on allowing same-sex marriages. Nor is there any consensus in those States which do not allow same-sex marriages as to how to deal with gender recognition in the case of a pre-existing marriage.", "The majority of the member States do not have any kind of legislation on gender recognition in place. In addition to Finland, such legislation appears to exist in only six other States. The exceptions afforded to married transsexuals are even fewer. Thus, there are no signs that the situation in the Council of Europe member States has changed significantly since the Court delivered its latest rulings on these issues. 75.", "In the absence of a European consensus and taking into account that the case at stake undoubtedly raises sensitive moral or ethical issues, the Court considers that the margin of appreciation to be afforded to the respondent State must still be a wide one (see X, Y and Z v. the United Kingdom, cited above, § 44). This margin must in principle extend both to the State’s decision whether or not to enact legislation concerning legal recognition of the new gender of post-operative transsexuals and, having intervened, to the rules it lays down in order to achieve a balance between the competing public and private interests. 76. Turning now to the domestic system, the Court finds that Finnish domestic law currently provides the applicant with several options. First of all, she can maintain the status quo of her legal situation by remaining married and tolerating the inconvenience caused by the male identity number.", "The Court finds it established that in the Finnish system a legally contracted marriage between a different-sex couple is not annulled or dissolved on account of the fact that one of the spouses has undergone reassignment surgery and is thus subsequently of the same sex as his or her spouse. Contrary to the situation in some other countries, in Finland a pre-existing marriage cannot be unilaterally annulled or dissolved by the domestic authorities. Accordingly, nothing prevents the applicant from continuing her marriage. 77. Secondly, if the applicant wishes both to obtain legal recognition of her new gender and to have her relationship with her wife legally protected, Finnish legislation provides for the possibility to convert their marriage into a registered partnership, with the consent of the applicant’s wife.", "Under the domestic law, if the spouse’s consent to the change of gender is received, a marriage turns automatically, ex lege, into a registered partnership and a registered partnership into a marriage, depending on the situation. 78. The third option provided by the domestic law is the option of divorce. As for any other married couple, this option is also open to the applicant if she so wishes. Contrary to the applicant’s assertions, the Court considers that there is nothing in the Finnish legal system which can be understood as implying that the applicant must divorce against her will.", "On the contrary, the Court finds that in the Finnish legal system the possibility of divorcing is at the applicant’s own discretion. 79. Leaving aside the options of maintaining the status quo or divorcing, the applicant’s complaint is primarily directed at the second option: providing legal recognition of the new gender while at the same time legally protecting an existing relationship. Thus, the key question in the present case is whether the Finnish system currently fulfils the positive obligation on the State in this respect or whether the applicant should be allowed to remain married while at the same time obtaining legal recognition of her new gender, even if that option would imply a same-sex marriage between the applicant and her spouse. 80.", "The Court notes that, contrary to the majority of the Council of Europe member States, there exists a legal framework in Finland designed to provide legal recognition for the change of gender. The Court observes that the aim of the impugned legislation, as explained by the Government, was to unify the varying practices applied in different parts of the country and to establish coherent requirements for legal gender recognition. If the consent of the spouse is received, the system provides both for legal recognition of the new gender and legal protection of the relationship. The system works both ways, thus providing not only for a marriage to be converted into a registered partnership, but also for a registered partnership to be converted into a marriage, depending on whether the gender reassignment surgery has the effect of turning the existing relationship into a same-sex or a heterosexual partnership. According to the information received from the Government, thirty-one such conversions have occurred so far concerning both the above-mentioned situations in almost equal measure.", "81. In devising this legal framework, the Finnish legislature has opted for reserving marriage to heterosexual couples, this rule being capable of no exceptions. It therefore remains for the Court to determine whether, in the circumstances of the case, the Finnish system currently strikes a fair balance between the competing interests and satisfies the proportionality test. 82. One of the applicant’s concerns relates to the requirement of the spouse’s consent, which she sees as a “forced” divorce.", "However, the Court considers that as the conversion is automatic under the Finnish system, the spouse’s consent to the registration of a change of gender is an elementary requirement designed to protect each spouse from the effects of unilateral decisions taken by the other. The requirement of consent is thus clearly an important safeguard which protects the spouse who is not seeking gender recognition. In this context, it is worth noting that consent is also needed when a registered partnership is to be converted into a marriage. This requirement thus applies also for the benefit of the institution of marriage. 83.", "Also of concern to the applicant are the differences between a marriage and a registered partnership. As the Government explained, these differences concern the establishment of paternity, adoption outside of the family and the family name. However, these exceptions are applicable only to the extent that those issues have not been settled beforehand. They are therefore not applicable to the present case. Consequently, the Court considers that the differences between a marriage and a registered partnership are not such as to involve an essential change in the applicant’s legal situation.", "The applicant would thus be able to continue enjoying in essence, and in practice, the same legal protection under a registered partnership as that afforded by marriage (see, mutatis mutandis, Schalk and Kopf, cited above, § 109). 84. Moreover, the applicant and her wife would not lose any other rights if their marriage were converted into a registered partnership. As convincingly explained by the Government, the expression “turns into” in section 2 of the Transsexuals (Confirmation of Gender) Act is explicitly used to illustrate the fact that the original legal relationship continues with only a change of title and minor changes to the content of the relationship. The length of the partnership is thus calculated from the date on which it was contracted and not from the change of its title.", "This may be important in situations in which the length of the relationship is relevant in the domestic legislation, for example when calculating a widower’s pension. The Court cannot therefore uphold the applicant’s complaint that the conversion of a marriage into a registered partnership would be akin to a divorce. 85. Furthermore, the Court considers that the effects of the conversion of the applicant’s marriage into a registered partnership would be minimal or non-existent as far as the applicant’s family life is concerned. The Court stresses that Article 8 also protects the family life of same-sex partners and their children (see Schalk and Kopf, cited above, §§ 91 and 94).", "It does not therefore matter, from the point of view of the protection afforded to family life, whether the applicant’s relationship with her family is based on marriage or a registered partnership. 86. The family-life aspects are also present in the applicant’s relationship with her daughter. As the applicant’s paternity of her daughter has already been validly established during the marriage, the Court is satisfied that under current Finnish law the subsequent conversion of the marriage into a registered partnership would not have any effect on the paternity of the applicant’s child. She would thus continue to be considered to have been born in wedlock.", "Moreover, as the Government noted, in the Finnish system paternity presumed on the basis of marriage or established paternity cannot be annulled on the ground that the man later undergoes gender reassignment and becomes a woman. This is confirmed by the fact that, as the Government have observed, in none of the cases in which conversion has already taken place in Finland has the legal parent-child relationship changed. Nor does the father’s gender reassignment have any legal effects on the responsibility for the care, custody or maintenance of a child as in Finland that responsibility is based on parenthood, irrespective of sex or form of partnership. The Court therefore finds it established that the conversion of the applicant’s marriage into a registered partnership would have no implications for her family life, as protected by Article 8 of the Convention. 87.", "While it is regrettable that the applicant faces daily situations in which the incorrect identity number creates inconvenience for her, the Court considers that the applicant has a genuine possibility of changing that state of affairs: her marriage can be converted at any time, ex lege, into a registered partnership with the consent of her spouse. If no such consent is obtained, the possibility of divorce, as in any marriage, is always open to her. In the Court’s view, it is not disproportionate to require, as a precondition to legal recognition of an acquired gender, that the applicant’s marriage be converted into a registered partnership as that is a genuine option which provides legal protection for same-sex couples that is almost identical to that of marriage (see Parry, cited above). The minor differences between these two legal concepts are not capable of rendering the current Finnish system deficient from the point of view of the State’s positive obligation. 88.", "In conclusion, the Court considers that the current Finnish system as a whole has not been shown to be disproportionate in its effects on the applicant and that a fair balance has been struck between the competing interests in the present case. 89. Accordingly, there has been no violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 12 OF THE CONVENTION 90.", "The applicant did not initially rely on Article 12 of the Convention in her application to the Court. However, on 23 March 2010 the Chamber decided, of its own motion, to give notice of the application under Article 12 of the Convention as well. 91. Article 12 of the Convention reads as follows: “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.” A. The Chamber judgment 92.", "In its judgment of 13 November 2012, the Chamber observed that the issue at stake in the present case did not as such involve any issue under Article 12 of the Convention, which guaranteed a right to marry. The applicant had been legally married since 1996. The issue at stake rather concerned the consequences of the applicant’s change of gender for the existing marriage between her and her spouse, which had already been examined under Article 8 of the Convention. In view of those findings, the Chamber found it unnecessary to examine the facts of the case separately under Article 12 of the Convention. B.", "The parties’ submissions 1. The applicant 93. The applicant claimed that the Chamber had adopted a “pick and choose” approach to Article 12 of the Convention. An analysis under Article 12 would have been important as it required a different test from Article 8, namely whether the compulsory termination of marriage affected “the substance of the right to marry” in line with the Court’s case-law. It could also have corrected the failure to consider the applicant’s family rights under Article 8 of the Convention.", "94. The applicant claimed that Article 12 of the Convention should either be interpreted restrictively to cover only the contracting of marriage or more broadly to cover also the continued existence of a marriage. In the former case, Article 12 would not be relevant to the applicant’s situation as her marriage to her wife had been contracted when they were a different-sex couple. In the latter case, however, the test whether the “forced” divorce injured “the very substance of the right to marry” would have to be satisfied. In the applicant’s submission, the latter interpretation applied since the Government’s ability to interfere with a marriage in a manner such as in the present case would render the right to marry largely ineffective.", "Thus construed, Article 12 of the Convention would apply to the present case and require an examination under that Article. 2. The Government 95. The Government shared the Chamber’s view that it was unnecessary to examine the facts of the case separately under Article 12 of the Convention. The Court’s case-law did not protect the applicant’s wish to remain married to her female spouse after the confirmation of her new gender, and the matter of how to regulate the effects of the gender change fell within the margin of appreciation of the Contracting State.", "The Supreme Administrative Court had found in the present case that the domestic legislation did not aim to change the fact that only a man and a woman could marry but rather allowed the relationship to continue as a registered partnership that was legally protected and comparable to marriage. Transformation of the institution of marriage into a gender-neutral one required the enactment of an Act of Parliament. C. The Court’s assessment 1. General principles 96. The Court reiterates that Article 12 of the Convention is a lex specialis for the right to marry.", "It secures the fundamental right of a man and woman to marry and to found a family. Article 12 expressly provides for regulation of marriage by national law. It enshrines the traditional concept of marriage as being between a man and a woman (see Rees, cited above, § 49). While it is true that some Contracting States have extended marriage to same-sex partners, Article 12 cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples (see Schalk and Kopf, cited above, § 63). 2.", "Application of the above-mentioned principles to the present case 97. The issue at stake concerns the consequences of the applicant’s change of gender for the existing marriage between her and her spouse. The Grand Chamber finds, as did the Chamber, that this question has already been examined above under Article 8 of the Convention and resulted in the finding of no violation of that Article. In these circumstances, the Court considers that no separate issue arises under Article 12 of the Convention and accordingly makes no separate finding under that Article. III.", "ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLES 8 AND 12 98. The applicant complained under Article 14 of the Convention that by refusing to give her a female identity number which corresponded to her actual gender, the State was discriminating against her. The fact that she had been denied a female identity number revealed the confidential information that she was a transsexual because, unlike any other person, she had to explain this difference whenever the identity number was required. 99. Article 14 of the Convention reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A.", "The Chamber judgment 100. In its judgment of 13 November 2012, the Chamber noted that Article 14 of the Convention taken in conjunction with Article 8 was applicable. 101. The Chamber noted that the applicant’s complaints under Article 14 of the Convention related to the impossibility of obtaining a female identity number. The applicant compared her situation to that of any other person, including cissexuals and unmarried transsexuals.", "For the Chamber, these situations were not sufficiently similar to be compared with each other. The applicant could not therefore claim to be in the same situation as the other category of persons relied on. 102. Moreover, the Chamber noted that in essence the problem in the present case was caused by the fact that Finnish law did not allow same-sex marriages. According to the Court’s case-law, Articles 8 and 12 of the Convention did not impose an obligation on Contracting States to grant same-sex couples access to marriage.", "Nor could Article 14 of the Convention taken in conjunction with Article 8 be interpreted as imposing an obligation on Contracting States to grant same-sex couples a right to remain married. Therefore, it could not be said that the applicant had been discriminated against vis-à-vis other persons when she had been unable to obtain a female identity number, even assuming that she could be considered to be in a similar position to them. The Chamber found that there had been no violation of Article 14 of the Convention taken in conjunction with Article 8. B. The parties’ submissions 1.", "The applicant 103. The applicant argued under Article 14 of the Convention that she had been discriminated against on two counts. 104. Firstly, she had to comply with an additional requirement of terminating her marriage in order to obtain legal gender recognition. She had therefore been discriminated against vis-à-vis cissexuals, who obtained legal gender recognition automatically at birth without any additional requirement.", "She had been facing daily problems on account of that difference in treatment. 105. Secondly, the applicant, her wife and their child had received less protection than persons in heterosexual marriages owing to stereotypical views associated with the applicant’s gender identity. Cissexuals’ marriages did not run the risk of “forced” divorce in the way that the applicant’s marriage did. However, gender identity was now commonly recognised as a ground that attracted protection for the purposes of prohibiting discrimination.", "2. The Government 106. The Government agreed that Article 14 of the Convention was applicable here as the case fell within the scope of Article 8, but argued that there was no separate issue under Article 14. Were the Court to have a different opinion, the Government pointed out that cissexuals were not in a similar situation to the applicant because they were not applying for a change of their gender. In any event, there had been an objective and reasonable justification.", "The Finnish legal system prohibited discrimination based on transsexualism. C. The Court’s assessment 1. General principles 107. The Court notes that Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions.", "Although the application of Article 14 does not presuppose a breach of those provisions, and to this extent it is autonomous, there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, for instance, E.B. v. France [GC], no. 43546/02, § 47, 22 January 2008, and Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 72, ECHR 2013). 108.", "The Court has established in its case-law that in order for an issue to arise under Article 14 there must be a difference in treatment of persons in relevantly similar situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (see Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008). 109.", "On the one hand, the Court has held repeatedly that differences based on gender or sexual orientation require particularly serious reasons by way of justification (see Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 90, ECHR 1999‑VI; L. and V. v. Austria, nos. 39392/98 and 39829/98, § 45, ECHR 2003‑I; Karner v. Austria, no. 40016/98, § 37, ECHR 2003‑IX; Konstantin Markin v. Russia [GC], no. 30078/06, § 127, ECHR 2012; X and Others v. Austria [GC], no.", "19010/07, § 99, ECHR 2013; and Vallianatos and Others, cited above, § 77). On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy, for example (see, for instance, Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 52, ECHR 2006‑VI). The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States (see Petrovic v. Austria, 27 March 1998, § 38, Reports 1998‑II). 2.", "Application of the above-mentioned principles to the present case 110. It is undisputed in the present case that the applicant’s situation falls within the notion of “private life” and “family life” within the meaning of Article 8 of the Convention as well as within the scope of Article 12. Consequently, Article 14 of the Convention taken in conjunction with Articles 8 and 12 applies. 111. The Court notes that the applicant’s complaints under Article 14 of the Convention relate to her request for a female identity number and to the problems she has experienced in that respect.", "In her complaints, the applicant compared her situation to that of cissexuals, who obtained legal gender recognition automatically at birth and whose marriages, according to the applicant, did not run the risk of “forced” divorce in the way that hers did. 112. The Grand Chamber agrees with the Chamber that the applicant’s situation and the situation of cissexuals are not sufficiently similar to be compared with each other. The applicant cannot therefore claim to be in the same situation as cissexuals. 113.", "In conclusion, the Court finds that there has been no violation of Article 14 of the Convention taken in conjunction with Articles 8 and 12. FOR THESE REASONS, THE COURT 1. Holds, by fourteen votes to three, that there has been no violation of Article 8 of the Convention; 2. Holds, by fourteen votes to three, that there is no need to examine the case under Article 12 of the Convention; 3. Holds, by fourteen votes to three, that there has been no violation of Article 14 of the Convention taken in conjunction with Articles 8 and 12.", "Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 16 July 2014. Johan Callewaert Dean Spielmann Deputy Registrar President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Judge Ziemele; (b) joint dissenting opinion of Judges Sajó, Keller and Lemmens. D.S.J.C. CONCURRING OPINION OF JUDGE ZIEMELE 1. I voted with the majority in this case.", "However, I would like to add a few comments on the methodology used in the judgment. I find that in this case in particular the methodological choices were the tricky points. The case concerns an alleged right to remain married and a right to change one’s gender. The Chamber approached the case as a right to privacy case and examined it from the point of view of an interference with the right to privacy. It had regard to the absence of a common view in Europe on same-sex marriages when examining the proportionality of this interference.", "The Grand Chamber took note of the Chamber’s approach but decided that the case was one of positive obligations (see paragraph 64 of the present judgment). It is true that the Court has always emphasised that it is difficult to draw a clear line between negative and positive obligations. However, I wonder whether this is indeed difficult or whether it is the choice of the Court to leave the issue rather open. This case shows how the difference might be quite important, because the Grand Chamber chose to take a different approach from that of the Chamber. Recently, in another case, the Grand Chamber decided that the Chamber’s approach, which had decided the case as one of interference, should be changed to one of positive obligations (see, for example, Fernández Martínez v. Spain [GC], no.", "56030/07, ECHR 2014). 2. In the context of Article 8, the Court referred to its case-law according to which there is no obligation to grant same-sex couples access to marriage (see paragraph 71 of the present judgment). Indeed, the Court has repeatedly stated that, in view of the absence of clear practice in Europe and the ongoing debate in many European societies, it cannot interpret Article 8 as imposing such an obligation. For the purposes of this case, the Court once again ventures into an examination of the so-called European consensus.", "Has anything changed since its last case? This basically means that the Court tries to establish what the domestic law and practice is, if possible, in forty-seven member States and thus attempts to determine whether a subsequent State practice may have emerged leading to a new interpretation, or even an amendment, of a treaty (see Article 31 of the Vienna Convention on the Law of Treaties), or possibly confirming the existence of opinio juris (see I. Ziemele, “Customary International Law in the Case-Law of the European Court of Human Rights – The Method”, in The Judge and International Custom (Council of Europe, 2012), pp. 75-83). 3. However, I wonder to what extent and in what way the above-mentioned analysis was necessary for the present case.", "This analysis appears to be linked to the Court’s choice to examine the case from the perspective of positive obligations. In paragraph 79 of the present judgment, the Court reiterates that “the key question in the present case is whether the Finnish system currently fulfils the positive obligation on the State in this respect or whether the applicant should be allowed to remain married while at the same time obtaining legal recognition of her new gender, even if that option would imply a same-sex marriage between the applicant and her spouse”. The only point at which a reference to the data provided by the comparative-law study appears to be relevant is the observation that in any event Finland already belongs to a minority group of States which recognise the relevant legal consequences of a gender change. This seems to imply that Finland is rather advanced in its internal processes as compared with the other societies and probably does comply with its positive obligations in so far as they can be deduced to exist. 4.", "In this regard, the fact that Finland is not under a specific Convention obligation to provide for same-sex marriage does not assist the Court in addressing the problem in this case (see paragraph 79 of the present judgment). The applicant cannot maintain that she is entitled to remain married as a matter of Convention law. She does not argue that. Her submission is that the change imposed on her interferes with her right to privacy. However, it is not shown that her family life within the meaning of Article 8 would be somehow affected by her change of gender.", "The real task of the Court in the present case is the assessment of an interference with privacy matters and, therefore, in terms of methodology I would also have followed the line taken by the dissenting judges while disagreeing with their conclusion. I see a logical flaw in the Court’s conclusion that there has been no violation on account of the absence of a specific positive obligation to introduce legislation on same-sex marriages. If the case were about positive obligations, the Court could probably have stopped at paragraph 80 of the present judgment, in which it notes the progress made by Finland among other States. I also note that for the most part the reasoning in fact follows the arguments relevant to an assessment of the proportionality of an interference (see paragraphs 81 and 84 et seq. of the present judgment).", "Unlike the judges in the minority, I consider that the protection of morals remains a relevant justification for the interference with the applicant’s right to privacy in so far as it concerns the status of her marriage and is viewed in the context of the wide margin of appreciation left to the States. JOINT DISSENTING OPINION OF JUDGES SAJÓ, KELLER AND LEMMENS 1. To our regret, we cannot agree with the majority’s finding that there has been no violation of Article 8 of the Convention in the present case. We will concentrate our reasoning on Article 8 of the Convention. However, we believe that the case should also have been dealt with differently with regard to both Article 12 and Article 14 taken in conjunction with Article 8.", "I. Preliminary remarks 2. The starting-point for the examination of the applicant’s claim under Article 8 of the Convention is that one’s gender identity is a particularly important facet of individual existence and that States are required to recognise the change of gender undergone by post-operative transsexual individuals (see paragraphs 67-68 of the present judgment). In this context, the Court held in 2002 that, in the absence of any “concrete or substantial hardship or detriment to the public interest” arising from the legal acknowledgment of the post-transition gender of a transsexual person, “society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost” (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 91, ECHR 2002‑VI).", "On that point we agree with the majority. 3. In our view, however, the majority based its reasoning on three assumptions that we do not share. 4. Firstly, the majority held that the complaint must be analysed from the perspective of a positive obligation (see paragraphs 62-64 of the present judgment).", "This choice is important because the Court grants States a wider margin of appreciation concerning their positive obligations than their negative ones (see Fadeyeva v. Russia, no. 55723/00, § 96, ECHR 2005‑IV, and A, B and C v. Ireland [GC], no. 25579/05, §§ 248-49 and 266, ECHR 2010). However, the State’s refusal to grant the applicant a new identity card reflecting her acquired gender should, in our view, be examined as a potential breach of a negative obligation, for it neither requires any major steps by the State authorities nor entails important social or economic implications. In other words, the majority held that the interference by the State authorities should be understood simply as its refusal to unlink the issue of a new identity card from the civil status of the applicant.", "On this point, we disagree in doctrinal terms. 5. Secondly, a decisive argument for the majority’s finding is the fact that there is no consensus among the member States of the Council of Europe on issues concerning transgender persons (see paragraph 74 of the present judgment). In our view, this is not the correct approach, not least because it is contrary to the Court’s previous case-law. The Court should have recourse to general consensus as one of a set of tools or criteria for determining the width of the State margin of appreciation in a given area (see X and Others v. Austria [GC], no.", "19010/07, § 148, ECHR 2013). In other words, the existence of a consensus is not the only factor that influences the width of the State’s margin of appreciation: that same margin is restricted where “a particularly important facet of an individual’s existence or identity is at stake” (see S.H. and Others v. Austria [GC], no. 57813/00, § 94, ECHR 2011). [1] As a general rule, where a particularly important aspect of a Convention right is concerned, the Court should therefore examine individual cases with strict scrutiny and, if there has been an interference incompatible with Convention standards, rule accordingly – even if many Contracting States are potentially concerned.", "This rule applies to the present case: a particularly important facet of the applicant’s identity is at stake here, hence the narrower margin of appreciation afforded to the State. Mindful of past criticism of the consensus approach, which has been considered a potential instrument of retrogression and of allowing the “lowest common denominator” among the member States to prevail, we consider that the Court’s deference to this approach must have its limits, and find that the absence of a consensus cannot serve to widen the State’s narrowed margin of appreciation in the present case. [2] In this context, we note that proof of the existence of a consensus, when adduced, must not depend on the existence of a common approach in a super-majority of States: the Court has some discretion regarding its acknowledgment of trends (compare Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 91, ECHR 2013). [3] We also note that, in the landmark Christine Goodwin judgment (cited above), regarding the absence of a consensus on the legal acknowledgment of acquired gender among the member States, the Court held that “the lack of such a common approach among forty-three Contracting States with widely diverse legal systems and traditions is hardly surprising.", "... The Court accordingly attaches less importance to the lack of evidence of a common European approach to the resolution of the legal and practical problems posed, than to the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals.” (see Christine Goodwin, cited above, § 85) The Court went on to hold that the question of allowing legal recognition of acquired gender no longer fell within the State’s margin of appreciation (see Christine Goodwin, cited above, § 93). As concerns this “trend”, we note that legal recognition of the rights of transsexual and intersex persons is being steadily strengthened worldwide. [4] Regarding the significance of the lack of consensus among the member States, we therefore disagree with the majority from a methodological point of view. 6.", "Thirdly, the majority’s starting-point is the assumption that the applicant had a real choice between maintaining her marriage and obtaining a female identity number (see paragraphs 76-78 of the present judgment). We believe that it is highly problematic to pit two human rights – in this case, the right to recognition of one’s gender identity and the right to maintain one’s civil status – against each other. Furthermore, it is our view that the majority did not sufficiently take into account the fact that the applicant and her spouse are deeply religious (see paragraph 44 of the present judgment). The couple accordingly believes that their marriage will last for life. Lastly, the applicant’s spouse continues to identify as heterosexual.", "Given their religious background, the applicant and her spouse cannot simply change their marriage into a same-sex partnership, as this would contradict their religious beliefs. In this regard, we believe that the majority did not take important factual information sufficiently into account. 7. At this juncture, we would like to emphasise that the Court should have examined the complaint under Article 8 with regard to the particular importance of gender identity to an individual and the narrow margin of appreciation that States therefore enjoy in this field, as well as to the strong religious convictions of the applicant and her spouse in respect of their marriage. II.", "Article 8 of the Convention 8. The applicant has an interest in being granted a female identification number because otherwise she will be required to identify herself as transgender – and thus reveal an aspect of her personality belonging to her most intimate sphere – every time the discrepancy between her gender presentation and her identity card has to be explained. We believe that this amounts to more than a regrettable “inconvenience” (see paragraph 87 of the present judgment). In this connection we again refer to the judgment in Christine Goodwin, in which the Grand Chamber held that “[t]he stress and alienation arising from a discordance between the position in society assumed by a post-operative transsexual and the status imposed by law which refuses to recognise the change of gender cannot, in the Court’s view, be regarded as a minor inconvenience arising from a formality. A conflict between social reality and law arises which places the transsexual in an anomalous position, in which he or she may experience feelings of vulnerability, humiliation and anxiety.” (see Christine Goodwin, cited above, § 77) Secondly, the alternative offered to the applicant, namely the conversion of her marriage into a same-sex partnership, is – as mentioned above – not an option, because the couple, who have been married since 1996, feels united by a religious conviction which does not allow the transformation of their relationship into a same-sex partnership.", "The couple’s history of seventeen years of marriage, in which the assistance and support provided by the applicant’s wife was a crucial element not only for their relationship but also for the applicant’s difficult process of transition from male to female, gives us no reason to doubt the deep commitment of the applicant and her heterosexual spouse to the marriage. As the present judgment shows, the applicant is forced to choose between the continuation of her marriage, which falls under “family life” for the purposes of Article 8, and the legal recognition of her acquired gender identity, which falls under “private life” for the purposes of Article 8 (see paragraphs 57-61 of the present judgment). On this basis, we are unable to agree with the majority’s finding that the applicant has several acceptable options (see paragraphs 76‑77), and must conclude that she will suffer an interference with her rights under Article 8 no matter which of these “options” she chooses. 9. A classic examination of the alleged interference with the applicant’s rights under Article 8 would assess whether the interference was in accordance with the law and was necessary in a democratic society for the protection of one or more of the legitimate aims listed in Article 8 § 2.", "The first of these two requirements is certainly fulfilled. Regarding the pursuit of a legitimate aim, in the context of its case-law under Article 14 of the Convention taken in conjunction with Article 8, the Court has accepted that States have a legitimate interest in protecting marriage in the traditional sense by legally reserving marriage to heterosexual partners, and that this interest can justify a difference in treatment (see Karner v. Austria, no. 40016/98, § 40, ECHR 2003‑IX; Parry v. the United Kingdom (dec.), no. 42971/05, ECHR 2006‑XV; Schalk and Kopf v. Austria, no. 30141/04, §§ 61-62, ECHR 2010; and Vallianatos and Others, cited above, §§ 83-85).", "When examining Article 8 separately, however, the Court must examine not whether a justification for a difference in treatment exists, but whether a restriction of rights is permissible in pursuit of one of the aims listed in Article 8 § 2. As the restriction in question is clearly not necessary in order to protect Finnish national security, public safety, or economic well-being, to prevent disorder or crime, or to protect health, the only two possible grounds for restriction are the protection of the rights and freedoms of others or of morals. 10. We submit that the rights and freedoms of others would in no way be affected if the applicant and her wife were permitted to remain married despite the applicant’s legal change of gender. Their continued marital relationship would not have detrimental effects for the right of others to marry, or for existing marriages.", "11. Secondly, while we acknowledge that the protection of the traditional family may be justified by certain moral concerns, we consider that the protection of morals does not provide sufficient justification for the restriction of the applicant’s rights in this case. In order for this aim to justify the present interference with Article 8 in terms of its second paragraph, the interference must be necessary in a democratic society. The Court must accordingly determine whether the interference was justified by the existence of a pressing social need and was proportionate to the legitimate aim pursued. It must thereby determine whether a fair balance was struck between the competing interests in question, an issue which entails a certain margin of appreciation on the part of the State (see A, B and C v. Ireland, cited above, § 229).", "12. The Government have not argued that there would be significant practical difficulties if married transgender individuals were allowed to obtain legal recognition of their post-transition gender. The only interest in issue is, in plain terms, the public interest in keeping the institution of marriage free of same-sex couples. While we do not purport to deny the legitimacy of the State’s interest in protecting the institution of marriage, we do consider that the weight to be afforded to this argument is a different question and one that must be considered separately. In our view, the institution of marriage would not be endangered by a small number of couples who may wish to remain married in a situation such as that of the applicant.", "In the light of the above, we are not able to conclude that the respondent State can invoke a pressing social need to refuse the applicant the right to remain married after the legal recognition of her acquired gender. 13. With respect, more specifically, to the proportionality of the interference, we note that the State has a certain margin of appreciation regarding whether a fair balance was struck between the competing interests in question. Taking this into consideration, we nevertheless find that the Government have not shown that the danger to morals is substantial enough to warrant the interference in issue. In this vein, we note that, since the applicant and her wife continue to be married at the time of this judgment, they currently present themselves to the outside world as two individuals with female gender expression who are united in a legally valid marriage.", "In other words, they continue to live together as a married couple, perfectly in accordance with Finnish law, notwithstanding the fact that in the eyes of many people they are a same-sex couple. The applicant’s change in gender identity being a fait accompli, it is difficult to comprehend why the legal recognition of her acquired gender will have any significant (additional) impact on public morals. Furthermore, we refer to the recent judgment of the Supreme Court of India, which noted that society ill-treats transgender individuals while “forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mind-set which we have to change”. [5] As one author has put it, society’s problematic “yuk factor” concerning transgender individuals is not a normative idea that should be supported by the law. [6] 14.", "In the light of the above considerations, in examining whether the restriction of the applicant’s rights under Article 8 is justified in accordance with paragraph 2 of that provision, we cannot but conclude that the interference with these rights is not necessary in a democratic society. We therefore consider that there has been a violation of Article 8. III. Article 12 of the Convention 15. Since we conclude that there has been a violation of Article 8, we consider that there is no separate issue under Article 12.", "16. We would like to note, however, that the question of whether an issue arises under Article 12 becomes more difficult after a finding, such as that of the majority, that there has not been a violation of Article 8. We believe that the majority should have examined the issue of whether Article 12 guarantees not only a right to marry, but also a right to remain married unless compelling reasons justify an interference with the civil status of the spouses. We do not consider the gender reassignment undergone by one spouse to be a compelling reason justifying the dissolution of a marriage where both spouses expressly wish to continue in their pre-existing marital relationship. This argument is supported by Principle 3 of the Yogyakarta Principles[7] and recent judgments of the Constitutional Courts of Austria, Germany and Italy, which have all three overturned decisions requiring the dissolution of pre-existing marriages as a precondition for the legal acknowledgment of acquired gender.", "[8] IV. Article 14 of the Convention taken in conjunction with Article 8 17. Undoubtedly, the issues raised by the present case fall under the notions of both private life and family life within the meaning of Article 8 (see paragraphs 59-60 of the present judgment and paragraph 8 above). Furthermore, the applicant has been subjected to a difference in treatment on the basis of her gender (and not on the basis of her sexual orientation, which is a distinct and separate matter). The majority rightly points out that it is the Court’s well-established case-law that differences based on gender require particularly serious reasons by way of justification (see paragraph 109 of the present judgment).", "In our opinion, there is no need to refer also to the Court’s case-law on sexual orientation. 18. The difficult question in this case concerns the identification of the group to which the applicant and her spouse can be compared. The applicant argues that she has been treated differently vis-à-vis cissexuals, with regard to the refusal to issue her with a new identity card, and also vis-à-vis heterosexuals, with regard to the protection of her marriage to a heterosexual spouse. 19.", "We regret that the majority rejects these issues simply on the ground that the applicant’s situation is not similar enough to that of cissexuals (see paragraph 112 of the present judgment). The majority does not deal with the issue of whether the applicant has been subjected to discriminatory treatment vis-à-vis heterosexuals (see paragraph 105). We cannot think of any situation – other than cases of fictitious or unconsummated marriage, which are a different matter – in which a legally married cisgender heterosexual couple would be required to choose between maintaining their civil status and obtaining identity cards reflecting the gender with which they identify. While States enjoy a certain margin of appreciation in determining whether and to what extent differences in otherwise similar situations justify differential treatment (see X and Others v. Austria, cited above, § 98; Vallianatos and Others, cited above, § 76; and Konstantin Markin v. Russia [GC], no. 30078/06, § 126, ECHR 2012), it is ultimately for the Court to determine whether the requirements of the Convention have been met (see Konstantin Markin, cited above, § 126).", "Therefore, we consider that the Court should have examined this question. 20. Last but not least, we submit that the applicant and her spouse are the victims of discrimination because the authorities fail to differentiate between their situation and that of homosexual couples (see, mutatis mutandis, Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000‑IV). In fact, the national legal order treats their situation like that of homosexuals.", "However, at least at the time of their entry into marriage, the applicant and her spouse were not homosexual partners. Even after the applicant’s gender reassignment, it is an oversimplification of the situation to treat her relationship as a homosexual one. In our view, the crucial question regarding the discrimination issue is whether the State has failed to differentiate between the applicant’s situation and that of a homosexual couple by failing to introduce appropriate exceptions to the rule debarring same-sex couples from the institution of marriage (see, mutatis mutandis, Thlimmenos, cited above, § 48). We regret that this issue was not raised. V. Conclusion 21.", "To conclude, we disagree with the majority’s findings on several points. Firstly, we do not agree with the majority regarding the nature of the obligation in question, the methodology regarding the level of scrutiny, and the finding that the applicant had a real choice between continuing her marriage and obtaining legal recognition of her acquired gender. Secondly, regarding the justification of the interference with the applicant’s rights under Article 8, we argue that the legitimate aim of protecting the traditional family would not be compromised if individuals in a situation analogous to that of the applicant and her wife were permitted to remain married after the acknowledgment of the acquired gender of one of the parties to the marriage. As there was no pressing social need for the interference in question, which was accordingly not necessary in a democratic society, we consider that the applicant has suffered a violation of her rights under Article 8. Thirdly, we argue that, in the light of the majority’s conclusion under Article 8, the issues raised under Article 12 should have been examined.", "Lastly, we are not convinced that the applicant has not been subjected to discrimination contrary to Article 14 of the Convention taken in conjunction with Article 8, and consider that the Court’s examination should have gone into more depth in this regard. [1]. See Luzius Wildhaber, Arnaldur Hjartarson and Stephen Donnelly, “No Consensus on Consensus? The Practice of the European Court of Human Rights”, Human Rights Law Journal 33 (2013), pp. 248-63, at p. 252.", "[2]. Paul Martens, “Perplexity of the National Judge Faced with the Vagaries of European Consensus”, in Dialogue between Judges (Council of Europe, 2008), pp. 77-98, at p. 95. See also Eyal Benvenisti, “Margin of Appreciation, Consensus, and Universal Standards”, New York University Journal of International Law and Politics 31(4) (1999), pp. 843-54, at p. 852.", "[3]. In this regard, see the analysis of the Court’s case-law by Laurence R. Helfer and Erik Voeten, “International Courts as Agents of Legal Change: Evidence from LGBT Rights in Europe”, International Organization 68(1) (2014), pp. 77-110, at p. 93. [4]4. We note that, within the Council of Europe, the existence of a “third gender” has been acknowledged by the German federal legislature (section 22(3) of the Personenstandsgesetz (PStG), in force since 19 February 2007 (BGBl.", "I p. 122), amended by section 3 of the Law of 28 August 2013 (BGBl. I p. 3458)). Outside the Council of Europe, the Supreme Courts of some countries have come to the same conclusion (Supreme Court of Nepal, Sunil Babu Pant and Others v. Nepal, writ no. 917, judgment of 21 December 2007; High Court of Australia, NSW Registrar of Births, Deaths and Marriages v. Norrie [2014] HCA 11, judgment of 2 April 2014; and Supreme Court of India, National Legal Services Authority v. Union of India and Others, writ petition (civil) no. 400 of 2012, judgment of 15 April 2014).", "[5]. National Legal Services Authority, supra note 4. [6]. Alex Sharpe, “Transgender Marriage and the Legal Obligation to Disclose Gender History”, The Modern Law Review 75(1) (2012), pp. 33-53, at p. 39.", "[7]7. International Commission of Jurists, Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, March 2007, available at: http://www.yogyakartaprinciples.org/principles_en.htm. Principle 3, which concerns the right to recognition before the law, states among other things: “No status, such as marriage or parenthood, may be invoked as such to prevent the legal recognition of a person’s gender identity.” [8]. Constitutional Court of Austria, V 4/06-7, 8 June 2006, at IV.2; Federal Constitutional Court of Germany, 1 BvL 10/05, § 49, 27 May 2008; Constitutional Court of Italy, no. 170/2014, 11 June 2014 (the latter decision was delivered after the adoption by the Grand Chamber of the present judgment). We acknowledge, however, that the Austrian Constitutional Court considered only the fact that a legal change of gender was not possible for persons who were married, and did not examine the consequences of this change for the person’s civil status.", "The German and Italian Constitutional Courts considered that the dissolution of marriages in these cases was forbidden because – unlike in the present case – the domestic regulation provided no possibility of continuing the relationship in another form (i.e., as a registered partnership), and the rights and duties of the spouses would therefore be diminished." ]

[ "FIRST SECTION CASE OF PHINIKARIDOU v. CYPRUS (Application no. 23890/02) JUDGMENT STRASBOURG 20 December 2007 FINAL 20/03/2008 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 Phinikaridou v. Cyprus, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrsN. Vajić, President,MrL.", "Loucaides,MrA. Kovler,MrK. Hajiyev,MrD. Spielmann,MrS.E. Jebens,MrG.", "Malinverni, judges,and Mr S. Nielsen, Section Registrar Having deliberated in private on 29 November 2007, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 23890/02) against the Republic of Cyprus lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Cypriot national, Mrs Yannoula Phinikaridou (“the applicant”), on 7 June 2002. 2. The applicant, who had been granted legal aid, was represented by Mr C. Efstathiou, a lawyer practising in Nicosia.", "The Cypriot Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus. 3. The applicant alleged a violation of Articles 6 and 8 of the Convention in that the proceedings she had instituted for judicial recognition of paternity had been held to be time-barred under the applicable law. 4. By a decision of 31 August 2006, the Court declared the application partly admissible.", "5. Neither the applicant nor the Government filed further written observations on the merits of the case (Rule 59 § 1). 6. The applicant submitted her claims for just satisfaction and the Government made their comments on that matter. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1945 and lives in Nicosia. A. Background to the case 8. The applicant was born out of wedlock.", "Her biological mother abandoned her outside the house of a woman who gave her to Mrs Maria Phinikaridou. The latter brought her up. Although estranged from her biological mother, the applicant did not lose all contact with her. In December 1997, when the applicant was fifty-two years old, her biological mother, just before dying, told her the name of her biological father in the presence of the applicant's son. Her mother died in January 1998.", "9. On 24 June 1999 the applicant lodged an application with the Nicosia Family Court requesting judicial recognition of paternity on the basis of section 20(2) of the Children (Relatives and Legal Status) Law 1991 (hereinafter “the Children Law”). The respondent, whom the applicant claimed was her father, objected to the application and denied paternity. Without going into the merits of the paternity claim, he maintained that the applicant's claim was time-barred under section 22(3) of the above-mentioned Law. The applicant claimed, in reply, that the aforementioned section and, in addition, section 25(1) of the same Law setting in motion the period of limitation on the date of entry into force of the Law rather than on the date when she acquired knowledge of her father's identity, were unconstitutional.", "In particular, she argued that they were contrary to Articles 15 § 1 (the right to respect for private and family life), 28 (the principle of equality and non discrimination) and 30 § 1 (the right of access to a court) of the Constitution. The applicant contended that she had been prevented from having recourse to court and from determining through judicial proceedings whether or not she was the respondent's daughter. She had also been placed in a disadvantageous position with regard to other litigants who happened to acquire information concerning their father within the statutory time-limit. 10. On 15 September 1999 the respondent applied to the court for trial of the preliminary matter of whether the applicant's claim was statute-barred.", "On 30 October 2000 the applicant lodged an application requesting the court to refer the question to the Supreme Court. 11. On 17 May 2001 the Nicosia Family Court, following the agreement of the parties, decided to refer the issue of constitutionality of section 22(3) to the Supreme Court under Article 144 of the Constitution. B. The Supreme Court's judgment 12.", "In its judgment of 23 November 2001 the Supreme Court, by a majority (Judges Artemides, Nicolaides, Kallis, Iliades, Kramvis and Gavrielides), held that sections 22(3) and 25(1) of the Children Law complied with the relevant provisions of the Constitution and the Convention. In particular, the Supreme Court noted the following: “The applicant's lawyer suggests that the violation of Articles 15 and 30 of the Constitution is caused by the fact that the applicant learnt the identity of her natural father in 1997. It was, consequently, objectively impossible to lodge the application for her recognition within the three-year period from the date the Law came into force. Therefore, as he concludes, Article 30 § 1 of the Constitution is also violated because the applicant is deprived of access to court to assert her statutory right, a right which originates directly from Article 15 of the Constitution, which protects private and family life. A further suggestion of the applicant's lawyer, concerning unfavourable discrimination caused by the different time-limits for the exercise of other rights that are provided for by the Law, we will not deal with because it was not pursued.", "... The matters raised are extremely serious because they touch on the institution and the function of the family: the most important nucleus of society, the members of which are bound by the deepest and purest feelings of love and solidarity. The State considers self-evident the value of the institution of the family, which it also protects in its most powerful statute, the Constitution. This also regulates the whole range of family relationships – also on the basis of the criterion of their lawful functioning in society as a whole – in legislative rules which constitute the basis of the body of law known as Family Law. The basis of our discussion is Articles 15 and 30 of the Constitution, corresponding to Articles 8 and 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which was ratified by our House of Representatives by Law No.", "39/62. Accordingly, the decisions of the European Court of Human Rights and the Commission on the matters with which we are concerned illustrate the approach to be taken, as does our jurisprudence . ... In the recent decision of the Full Court of the Supreme Court in Pantelis Yiorgalla v. Soulla Hadjichristodoulou (2000) 1 A.A.D. 2060, we dealt with the provisions of section 11(1)(a) of the same Law, according to which the husband of the mother is barred from contesting paternity after one year has elapsed from the time he is informed of the birth and the circumstances from which the conception of the child resulted.", "The Family Court had also addressed the same questions with reference again to Articles 15 § 1 and 30 § 1 of the Constitution. We refer to our above decision, the reasoning of which we believe holds in the present case as well without being distinguished on any ground whatsoever. The legal principles, as discussed and adopted, are applicable here too. ... The general principle which emerges from the decisions of the European Court of Human Rights is that the right of access to court is subject to legitimate restrictions, precisely so that it can function rationally for all interested parties in the judicial process.", "The ECHR considers that time-limits on the exercise of a right serve fundamental purposes inseparably interwoven with certainty about the rights of individuals and are intended to ensure the finality of the dispute. ... Yiorgalla is distinguishable, as the applicant's lawyer submits, in a situation where the child seeking recognition by its natural father learns his identity after its right has lapsed under the Law. In such a case, the lawyer asserts, the right is time-barred, as has happened in the case of the applicant. We do not agree with this submission. In the statute of limitations on civil rights the starting point of the time-limit is not the litigant's knowledge of the particulars on the basis of which he will pursue his right, but the event which created the cause of action.", "And this is determined, in case of disagreement, by the court according to objective criteria. This principle was applied by the Commission of Human Rights in the case of X. v. Sweden.” 13. The Supreme Court laid emphasis on the decision of the European Commission of Human Rights in the case of X v. Sweden (decision of 6 October 1982, no. 9707/82, Decisions and Reports 31, p. 223), in particular the following extract: “In the opinion of the Commission it must generally be accepted in the interest of good administration of justice that there are time-limits within which prospective proceedings must be instituted. It must also be accepted that the time-limit is final and that there is no possibility to institute proceedings even when new facts have arisen after the expiry of the time-limit.", "This is also true for paternity proceedings. The Commission is furthermore of the opinion that a time-limit of three years from the child's birth as in the present case, is not an unreasonable time-limit for instituting paternity proceedings. Accordingly, the Commission finds that the fact that the applicant was not permitted to institute paternity proceedings does not disclose any appearance of a violation of Article 6 of the Convention taken alone.” 14. The Supreme Court concluded that the provisions of sections 22(3) and 25(1) of the Children Law not only did not conflict with the provisions of Articles 15 and 30 of the Constitution but, on the contrary, were in line with the jurisprudence and reasoning which the Court has adopted in the operation and application of the corresponding Convention Articles. In this regard, the Supreme Court held as follows: “We also note that the entirety of the provisions of Articles 15 and 30 which have occupied our attention create not only rights but also obligations.", "Article 30 does not operate only on behalf of the person resorting to the court but also on behalf of those who are being sued. All the interested parties before the court have the right to a fair trial in accordance with paragraph 2 of the Article, and the right to present their case, adduce evidence and examine witnesses, as provided for in paragraph 3 of the same Article. The right of protection of private and family life is provided for in paragraph 1 of Article 15; in accordance with paragraph 2, however, interference with that right in accordance with the law is permitted for the protection of the rights and freedoms which the Constitution guarantees to any other person. The principle of proportionality and balance of the rights is also based on the spirit and letter of those provisions, as is discussed in the passages we have cited above. In the particular question before us, it should not be overlooked that in the period which will have elapsed between the birth of the child born out of wedlock and the submitting of the application for paternal recognition, the putative father could have created his own family.", "The submitting of an application for paternal recognition and indeed when the putative father is advanced in age will without doubt cause upheaval in his family life. Therefore the recognition of the right to submit an application without time-limits may, on the one hand, have as a consequence the creation of a family for the child but, on the other, lead also to the break-up of another family, the family of the putative father. It is for this reason that the principle of proportionality must play the decisive role. Its correct and commensurate application dictates that the exercise of the relevant right be time-barred after a reasonable time has elapsed since the child's birth.” 15. Lastly, in view of the interesting and novel legal matter raised before it, the Supreme Court did not make an order for costs.", "16. However, a minority of the Supreme Court judges dissented (Judges Pikis, Nikitas, Konstandinides, Nicolaou and Hadjihambis). The minority found that section 22(3) of the Children Law was contrary to and incompatible with the provisions of Articles 15 § 1 and 30 §§ 1 and 2 of the Constitution since it extinguished the exercise of the family right to recognition of paternity. They therefore considered that the application could not be considered time-barred. 17.", "The minority, following the Supreme Court's judgment in Yiorgalla v. Hadjichristodoulou ((2000) 1 A.A.D. 2060), considered that the setting of a time-limit for the exercise of the civil right to recognition of paternity was acceptable provided that it was not oppressive and left a reasonable margin for the exercise of the right. The creation of an institution for the incorporation into the family of a child born out of wedlock was an obligation of the State that was imposed by both Article 15 of the Constitution and Article 8 § 1 of the Convention. 18. They further observed that it was indisputable that the right of recognition of paternity constituted an integral aspect of the family life of the individual which Article 15 § 1 of the Constitution safeguarded.", "It was equally certain in their view that the exercise of this right by the child might be subject to reasonable time-limits. The crucial question was whether a time-limit for the exercise of the right could be set irrespective of the knowledge of the facts that constituted the right or even the possibility, viewed objectively, of the holder of the right acquiring knowledge of that right. 19. The minority also examined the Limitation Law, Cap. 15, and in this context stated the following: “In civil law the setting of time-limits is related, as a rule, to the moment the cause of action arises.", "The Limitation Law, Cap. 15, provides for this. ... This principle is subject to two categories of exceptions, namely: the impossibility of exercise of the right by persons affected by an impediment – minority (under the age of 18), mental disturbance, prohibition from administering the individual's affairs or absence from the country; and the action is for relief from the consequences of a mistake. In both cases the time-period for the exercise of the right is suspended for as long as the ignorance or impediment exists.", "The spirit by which the Limitation Law is inspired is that the ignorance of or the impossibility of defending rights suspends, within the framework we have explained, the time-limits. The subject of paternity belongs to established civil rights which touch on the existence of the individual. The recognition of paternity takes effect against all and marks the framework of the family of the individual (see Nicolaides v. Yerolemi ((1984) 1 C.L.R. 742). The question in the present case is whether the right which the person concerned is ignorant of – and, objectively, could not have ascertained – can lapse before it comes to the knowledge of the person entitled to exercise it.", "The right under discussion is protected as a fundamental human right by the Constitution. The question arises whether the extinction of the right, independently of the knowledge or the possibility of acquiring knowledge of its existence, is compatible with the respect for the right to family life, which Article 15 § 1 of the Constitution safeguards and of the right of recourse to court, which Article 30 §§ 1 and 2 of the Constitution safeguard. Taking the question further: is elimination ever possible of a fundamental right, the existence of which the person concerned does not know and about which he does not have the means of being informed?” 20. The minority considered that the decision of the Commission of Human Rights in X. v. Sweden (cited above) did not touch directly on the matter before them, which revolved round respect for the right to family life. They did, however, find that it indirectly shed some light on the point in issue to the extent that it maintained that the separate regulation of the claim by the child for recognition of paternity was a right of a peculiar character which was connected to the particularities of the quest for paternity by the child itself.", "The Court's judgment in the case of Kroon and Others v. The Netherlands (judgment of 27 October 1994, Series A no 297‑C, p. 43), in which it was held that the limitations imposed by Dutch law on the recognition of paternity constituted a violation of the right to family life, was directly relevant to the facts of the applicant's case. 21. The minority finally underlined that: “The facts which relate to the paternity of a child relate to the time before its birth, in reality to the time which relates to its conception. Objectively, the child does not know, nor has it the means of discovering the facts surrounding its conception. The only persons who have authentic knowledge of these facts are the parents, each of them, primarily the mother.", "Chance knowledge, to the extent that the possibility of the paternity of a child is thought likely, may be acquired by third persons to the extent that the facts concerning the paternity of a child are rumoured, without it ever being certain that such possibility will come to the knowledge of the person affected. The setting of a time-limit for the exercise of the right to recognition of paternity, regardless and independent of the knowledge of facts that constitute it, reduces the right to the point of extinction. The core of the right to family life is violated and the right provided becomes only a right by law, and does not obtain respect.” 22. Following the Supreme Court's judgment, the applicant withdrew her application before the Family Court on 3 April 2002. 23.", "The applicant's putative biological father died on an unspecified date in 2004. II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Constitution 1. The right to respect for private and family life 24.", "Article 15 of the Constitution provides: “1. Every person has the right to respect for his private and family life. 2. There shall be no interference with the exercise of this right except such as is in accordance with the law and is necessary only in the interests of the security of the Republic or the constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the rights and liberties guaranteed by this Constitution to any person.” 2. The right to equality and prohibition of discrimination 25.", "Article 28 §§ 1 and 2 provide: “1. All persons are equal before the law, the administration and justice and are entitled to equal protection thereof and treatment thereby. 2. Every person shall enjoy all the rights and liberties provided for in this Constitution without any direct or indirect discrimination against any person on the ground of his community, race, religion, language, sex, political or other convictions, national or social descent, birth, colour, wealth, social class, or on any ground whatsoever, unless there is express provision to the contrary in this Constitution.” 3. The right of access to court 26.", "Article 30 §§ 1 and 2 provide: “1. No person shall be denied access to the court assigned to him by or under this Constitution. The establishment of judicial committees or exceptional courts under any name whatsoever is prohibited. 2. In the determination of his civil rights and obligations or of any criminal charge against him, every person is entitled to a fair and public hearing within a reasonable time by an independent, impartial and competent court established by law ... .” 4.", "Referral of questions of constitutionality to the Supreme Court 27. Article 144 reads as follows: “1. A party to any judicial proceedings, including proceedings on appeal, may, at any stage thereof, raise the question of the unconstitutionality of any law or decision or any provision thereof material for the determination of any matter at issue in such proceedings and thereupon the Court before which such question is raised shall reserve the question for the decision of the Supreme Constitutional Court and stay further proceedings until such question is determined by the Supreme Constitutional Court. 2. The Supreme Constitutional Court, on a question so reserved, shall, after hearing the parties, consider and determine the question so reserved and transmit its decision to the court by which such question has been reserved.", "3. Any decision of the Supreme Constitutional Court under paragraph 2 of this Article shall be binding on the court by which the question has been reserved and on the parties to the proceedings and shall, in case such decision is to the effect that the law or decision or any provision thereof is unconstitutional, operate as to make such law or decision inapplicable to such proceedings only.” B. The Children (Relatives and Legal Status) Law 1991 (Law no. 187/91, as amended) 1. Limitations on challenging paternity Section 11(1)(a) “Challenging paternity is excluded: (a) for the husband of the mother, when one year has passed since the date he was informed of the child's birth and the circumstances from which it emerges that the mother did not conceive by him, and, in every case five years after the birth... .” 2.", "Voluntary and judicial recognition of paternity of a child born out of wedlock Section 13 (1) “A child that is born out of wedlock acquires retrospectively after its birth the legal status and the rights of a child born in wedlock as against its parents and their relatives if the parents subsequently marry and the child had been recognised or after the marriage the child is recognised voluntarily or by judicial decision as the child of the husband. (2) The voluntary recognition as provided in paragraph (1) may be challenged on the grounds that the husband of the mother is not the father in accordance with the provisions of section 18.” Section 15 “The paternal recognition of a child who is born out of wedlock is effected by (a) voluntary recognition or (b) recognition by judicial decision.” Section 16 (1) “The father can recognise a child born out of wedlock as his own provided that the mother consents to this. (2) If the mother has died or does not have the capacity to enter legal relations, the recognition is effected by the sole declaration of the father. (3) If the father has died or does not have the capacity to enter into legal relations, the recognition may be given by the paternal grandfather or grandmother. (4) If the child has died the recognition takes effect for the benefit of its descendants.” Section 17(5) “If the consent of the mother is given in accordance with the provisions of this section, the recognition is considered to have been carried out and the appropriate changes are made in the official registers.” Section 20 (1) “The mother has the right to apply to the court for recognition of the paternity of her child that was born out of wedlock with its father”.", "(2) The child also has the right referred to in paragraph (1) above. (3) If the mother refuses her consent as provided for by paragraph (1) of section 16, the father also has the right to apply for recognition by judicial decision and in the case of paragraph (3) of section 16 that right vests in the paternal grandfather and grandmother.” Section 21 “(1) The application of the mother for recognition by judicial decision is brought against the father or his heirs. (2) The application of the child for recognition by judicial decision is brought against the parent who has not proceeded with the necessary declaration for voluntary recognition or his heirs. (3) The application of the father or of his parents for recognition by judicial decision is brought against the mother or her heirs.” 3. Limitation periods and extinction of the right to judicial recognition 28.", "Section 22 sets maximum time-limits after which it is not legally permissible for the mother, child or father, as the case may be, to seek judicial recognition of paternity. Unless exercised within the periods of limitation specified in the section, the legal right to seek judicial recognition lapses. Section 22 “(1) The right of the mother to seek recognition by judicial decision of the paternity of her child shall lapse five years after the child's birth. (2) If the mother was married at the crucial period of the child's conception, her right to ask for recognition by judicial decision of the paternity of her child by the biological father shall lapse five years after the day when the decision upholding the challenge to paternity in accordance with the provisions of section 8 becomes final. (3) The right of the child to seek its recognition by judicial decision shall lapse three years after it has attained its majority.", "(4) The right of the father or of his parents to seek recognition by judicial decision shall lapse three years after the mother has refused to give her consent to voluntary recognition. (5) In the case of section 13 the right to recognition by judicial decision shall not lapse.” 4. Effects of recognition of paternity Section 23 “In the case of voluntary recognition or recognition by judicial decision the child acquires from its birth the legal status and the rights of a child born in wedlock as against both its parents and their relatives.” 5. Computation of limitation periods – transitional provision 29. By virtue of section 25(1), in the case of applications for judicial recognition of paternity where majority has been attained before the Law entered into force, the three-year limitation period is set in motion on the date of entry into force of the Law, that is, 1 November 1991, and not on the earlier date of attaining majority as referred to in section 22(3): Section 25(1) “In cases where reference is made in this Law to time-limits within which a person may exercise his rights or take the measures provided for in this Law , these time-limits shall begin to run from the date when this Law came into effect.” 30.", "Therefore, the limitation period provided for in section 22(3) is not retroactively applied. C. The Parent-Child Relations Law((Law no. 216/90, as amended) 31. The relevant provisions of Law 216/90 on parent-child relations provide: Section 5(1)(a) and (b) “(a) The care of a child who is a minor (“parental care”) is the duty and right of the parents, who shall exercise it jointly. (b) Parental care includes the determination of a name, the supervision of the person, the administration of the property and the representation of the child in each matter or legal transaction which relate to its person or property.” Section 33(1) and (2) “(1) The parents have the obligation to maintain jointly their child who is a minor, each according to his capabilities.", "(2) By a decision and relevant arrangement by the court, the obligation of the parents by virtue of paragraph (1) may continue after the child attains its majority in cases where special circumstances demand this, such as in cases of incapacity or disability of the child or service in the National Guard or study at an educational institution or professional training school.” D. Case-law 32. In the case of Yiorgalla v. Hadjichristodoulou (cited above) the Supreme Court, sitting as a full bench, examined the constitutionality of the one-year limitation period set by section 11(1)(a) of the Children Law in respect of applications contesting paternity. Under this provision, the limitation period starts to run from the time the mother's husband is informed of the birth and the circumstances from which the conception of the child resulted. The question whether this time bar was in line with Articles 15 and 30 § 1 of the Constitution was referred to the Supreme Court by the Family Court. 33.", "The Supreme Court held that the protection of family life, which was safeguarded as a fundamental right by Article 15 § 1 of the Constitution and, in parallel, by Article 1 of the Convention, also extended to the procedural means which were provided for the constitution of the family and the relations between its members. Rights interwoven with family life were “civil rights” within the meaning of Article 30 of the Constitution and Article 6 § 1 of the Convention. Article 30 § 1 of the Constitution secured access to court for the exercise of civil rights. The setting of a time-limit for the exercise of civil rights was acceptable provided that the restriction which was set was not oppressive and left a reasonable margin for the exercise of the right. Furthermore, the time-limit had to correlate with the purpose which it aimed to serve.", "An objective purpose of time-limits was the securing of certainty as regards the rights of the individual. The repudiation of paternity was by nature a civil right, the exercise of which could be subject to time-limits. The creation of an institution for the incorporation into the family of a child born out of wedlock was an obligation imposed by Article 8 § 1 of the Convention on the State. 34. The Supreme Court noted that since the father had had knowledge of the material facts concerning the presumption of paternity from the day of the child's birth, the time-limit of one year was sufficiently long for the purposes of seeking judicial determination of his rights.", "35. Accordingly, the Supreme Court held that the time-limit was in conformity with the Constitution. THE LAW III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 36. The applicant complained under Article 8 of the Convention that the statutory three-year limitation period had prevented her from instituting proceedings for the judicial recognition of paternity.", "The aforementioned provision provides as follows, in so far as relevant: Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The parties' submissions 1.", "The Government 37. The Government first submitted that when the applicant had lodged her application with the Family Court for judicial recognition of paternity, her claim had been time-barred since 1 November 1994. By virtue of section 25(1) of the Children Law , the three-year limitation period had begun to run from 1 November 1991, that is, the date the above Law entered into force, since the applicant had attained the age of majority before that date. The Law afforded claimants, such as the applicant, who had not found out their father's identity before attaining majority, a three-year period during which they could take steps to discover their father's identity and institute proceedings in that respect. The purpose of the Law was to ensure that children attaining majority before it entered into force were on the same footing as children attaining majority after its entry into force with regard to the right to seek judicial recognition of paternity.", "However, the applicant had claimed in the domestic proceedings that she had first acquired knowledge of the identity of her father in December 1997 after her right had become time-barred. 38. The Government argued that the setting of the limitation period for the child at three years from attaining majority was reasonable. They noted that by virtue of the Parents and Children Relations Law 1990 (Law no. 216/90, as amended), parental care was a right and duty of both parents.", "In the case of children born out of wedlock the mother took on parental care and, in the event that the child was recognised, it was also taken on by the father. Parental care under the Law included the administration by the parent of the child's property, representation of the child by the parent and child maintenance. Since a child could not institute legal proceedings before attaining its majority, the Children Law provided for the mother to institute judicial paternity proceedings within five years from the birth of the child (section 22(1) - see paragraph 28 above). If, however, for any reason the mother did not do so, the child was afforded its own separate right to seek judicial recognition upon attaining the age of majority, provided that it did so before reaching the age of twenty-one. Thus, the child had three years during which it had the opportunity to make enquiries and take any necessary steps to ascertain and gain information as to its father's identity.", "39. The Government emphasised that the three-year limitation period served several important purposes. Firstly, it intended to provide finality and legal certainty and to prevent stale claims from coming to court. A period of twenty-one years from the date of birth constituted a substantial amount of time bearing in mind that the courts would have to examine material events and evidence directly concerning the issue of paternity, which would go back to the child's birth. The limitation period thus served to prevent injustice that could arise if courts had to decide upon events that had taken place in the past based on evidence that might have become unreliable and incomplete due to the passage of time (here the Government relied on Stubbings and Others v. the United Kingdom, judgment of 22 October 1996, Reports of Judgments and Decisions 1996‑IV, pp.", "1502-03, § 51, and X v. Sweden, cited above). Furthermore, the Government noted that the time bar pursued the legitimate aim of protecting defendants from claims that could be vexatious and unfounded. Amongst other things, it prevented fabrication of the date on which knowledge of the father's identity had allegedly been acquired but also as to facts instrumental to the substance of the case. The Government noted that the time-limit ensured that the putative father's rights and obligations and those of his family and heirs did not remain undetermined ad infinitum and were protected. At the same time, the existence of the limitation period encouraged claimants to pursue their rights diligently and avoid the uncertainty and absence of finality that would ensue as to the rights and obligations of third parties.", "40. In the light of the above, the Government maintained that the three-year limitation period running from the age of majority, or in cases such as the instant one, from the date of entry into force of the Law, did not contravene Article 8 of the Convention. They considered that the time bar pursued a legitimate aim and that a balance had been struck between the aim sought to be achieved and the means employed for achieving it, in line with the principle of proportionality. Furthermore, the Government accepted that they had an obligation under that provision to enable the applicant to determine her paternity and thus her identity. By granting the applicant the right to institute judicial proceedings for recognition of paternity the State had fulfilled this obligation.", "The applicant, however, was in fact claiming that the Government should afford her the right to institute paternity proceedings at any time. In the Government's opinion, Article 8 imposed no such obligation on States. In conformity with the principle of proportionality, a fair balance had to be struck between securing the applicant's right to have her personal identity determined and ensuring that the freedoms of others were protected. The time-limit set by the Children Law satisfied the above requirements and did not violate the applicant's right guaranteed by this provision. 41.", "The Government stressed that in the instant case the applicant had in reality had the opportunity to take steps to discover her father's identity from 1963 when she had reached the age of majority. Furthermore, she had been afforded an additional three years from 1 November 1991 through the transitional provisions of the Children Law. Accordingly, the fact that she could no longer exercise her right was not attributable to the provisions of the Law as such, which had given her ample time in this respect, but to her own inertia in failing to take steps that could have led her to discover her father's identity before her right lapsed. 2. The applicant 42.", "The applicant contested the Government's arguments that she had deliberately acted or omitted to bring paternity proceedings within the prescribed time-limit. The applicant argued that she could not be blamed for the fact that she had been given the chance to identify her father only at the age of fifty-two. She had been deprived of her right to seek judicial recognition of paternity. In her opinion, the Law in question was disproportionate since her above right had been extinguished before it had been created. Hence, she submitted that there had been a violation of her rights under Article 8 of the Convention.", "B. The Court's assessment 1. Applicability of Article 8 of the Convention 43. It is not disputed between the parties that Article 8 is applicable. 44.", "In this connection the Court notes that the applicant, a child born out of wedlock, sought by means of judicial proceedings to determine her legal relationship with the person she claimed was her father, through the establishment of the biological truth. 45. The Court reiterates that birth, and in particular the circumstances in which a child is born, forms part of a child's, and subsequently the adult's, private life guaranteed by Article 8 of the Convention (see Odièvre v. France [GC], no. 42326/98, § 29, ECHR 2003‑III). Respect for private life requires that everyone should be able to establish details of their identity as individual human beings and that an individual's entitlement to such information is of importance because of its formative implications for his or her personality (see, for example, Mikulić v. Croatia, no.", "53176/99, §§ 53-54, ECHR 2002‑I, and Gaskin v. the United Kingdom, judgment of 7 July 1989, Series A no. 160, p. 16, §§ 36-37, 39). This includes obtaining information necessary to discover the truth concerning important aspects of one's personal identity, such as the identity of one's parents (see Jäggi v. Switzerland, no. 58757/00, § 25, ECHR 2006‑...; Odièvre, § 29; and Mikulić, §§ 54 and 64; both cited above). 46.", "Accordingly, the facts of the case fall within the ambit of Article 8 of the Convention. 2. Compliance with Article 8 47. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by public authorities. There may in addition be positive obligations inherent in ensuring effective “respect” for private or family life.", "These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see Kroon, cited above, § 31, and Mikulić, cited above, § 57). However, the boundaries between the State's positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49, and Kroon, cited above).", "48. The Court reiterates that its task is not to substitute itself for the competent domestic authorities in regulating paternity disputes at the national level, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see, inter alia, Różański v. Poland, no. 55339/00, § 62, 18 May 2006; Mikulić, cited above, § 59, and Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55). The Court will therefore examine whether the respondent State, in handling the applicant's action for judicial recognition of paternity, has complied with its positive obligations under Article 8 of the Convention.", "49. At the outset, the Court observes that the applicant did not dispute that the impossibility of bringing an action for judicial recognition of paternity was “in accordance with the law”. Indeed, she complained that the time-limit imposed by the Children Law (see paragraphs 28-30 above) prevented her from having the possibility of obtaining judicial recognition of paternity before the domestic courts in violation of Article 8 of the Convention. 50. In this connection it can be observed that the Children Law introduced the right of a child to institute proceedings for judicial recognition of paternity in the domestic legal system in 1991.", "This right is subject to a three-year time-limit which starts to run from the moment the child reaches the age of majority (see paragraph 28 above). However, for persons such as the applicant, who have attained their majority before the date the above Law came into force, that is, 1 November 1991, the time-limit commences on that date (see paragraph 29 above). Thus, in the instant case the applicant had until 1 November 1994 to institute paternity proceedings. The applicant, however, instituted such proceedings subsequent to the expiration of the time-limit as she claimed that she had not found out her father's identity until December 1997. Her application was then found to be time-barred (see paragraphs 12-14 above).", "51. The Court has previously accepted that the introduction of a time-limit for the institution of paternity proceedings was justified by the desire to ensure legal certainty and finality in family relations (see, for example, Mizzi v. Malta (no. 26111/02, § 88, ECHR 2006‑... (extracts), and Rasmussen v. Denmark, judgment of 28 November 1984, Series A no. 87, p. 15, § 41). Furthermore, as submitted by the Government (see paragraph 40 above), the time-limit imposed by the Children Law for actions concerning recognition of paternity intends to protect the interests of presumed fathers from stale claims and prevent possible injustice if courts were required to make findings of fact that went back many years (see, inter alia, Mizzi, cited above, § 83; Shofman v. Russia, no.", "74826/01, § 39, 24 November 2005; and, mutatis mutandis, Stubbings, cited above, § 51). 52. Accordingly, the existence of a limitation period per se is not incompatible with the Convention. What the Court needs to ascertain in a given case is whether the nature of the time-limit in question and/or the manner in which it is applied is compatible with the Convention. 53.", "When deciding whether or not there has been compliance with Article 8 of the Convention, the Court must determine whether on the facts of the case a fair balance was struck by the State between the competing rights and interests at stake (see paragraph 47 above). Apart from weighing the interests of the individual vis-à-vis the general interest of the community as a whole, a balancing exercise is also required with regard to competing private interests. In this connection, it should be observed that the expression “everyone” in Article 8 of the Convention applies to both the child and the presumed father. On the one hand, people have a right to know their origins, that right being derived from a wide interpretation of the scope of the notion of private life (see Odièvre, cited above, § 42). Persons in the applicant's situation have a vital interest, protected by the Convention, in receiving the information necessary to uncover the truth about an important aspect of their personal identity and eliminate any uncertainty in this respect (see Mikulić, cited above, §§ 64 and 65).", "On the other hand, as stated above, a presumed father's interest in being protected from stale claims concerning facts that go back many years cannot be denied (see paragraph 51 above). Finally, in addition to that conflict of interest, other interests may come into play, such as those of third parties, essentially the presumed father's family. 54. While performing the “balancing of interests test” in the examination of cases concerning limitations on the institution of paternity claims, the Court has taken a number of factors into consideration. For instance, the particular point in time when an applicant becomes aware of the biological reality is pertinent, that is, the Court will examine whether the circumstances substantiating a particular paternity claim are met before or after the expiry of the applicable time-limit (see, for instance, the cases of Shofman, §§ 40 and 43, and Mizzi, §§ 109-11, concerning disavowal of paternity claims; both cited above).", "Furthermore, the Court looks into whether or not an alternative means of redress exists in the event the proceedings in question are time-barred. This would include for example the availability of effective domestic remedies to obtain the reopening of the time-limit (see, for example, Mizzi, cited above, § 111) or exceptions to the application of a time-limit in situations where a person becomes aware of the biological reality after the time-limit has expired (see Shofman, cited above, § 43). 55. The yardstick against which the above factors are measured is whether a legal presumption has been allowed to prevail over biological and social reality and if so whether, in the circumstances, this is compatible, having regard to the margin of appreciation left to the State, with the obligation to secure effective “respect” for private and family life, taking into account the established facts and the wishes of those concerned (see Kroon, cited above, § 40). 56.", "For example, the Court has found that rigid limitation periods or other obstacles to actions contesting paternity that apply irrespective of a putative father's awareness of the circumstances casting doubt on his paternity, without allowing for any exceptions, violated Article 8 of the Convention (see, Shofman, cited above, §§ 43-45; see also, mutatis mutandis, Mizzi, cited above, §§ 80 and 111-13; Paulík v. Slovakia, no. 10699/05, §§ 45-47, ECHR 2006‑... (extracts); and Tavlı v. Turkey, no. 11449/02, §§ 34-38, 9 November 2006). 57. In connection with the above, the Court further reiterates that the choice of the means calculated to secure compliance with Article 8 in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States' margin of appreciation.", "In this connection, there are different ways of ensuring “respect for private life”, and the nature of the State's obligation will depend on the particular aspect of private life that is at issue (see Odièvre, cited above, § 46, and X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 12, § 24). 58. A comparative examination of the Contracting States' legislation on the institution of actions for judicial recognition of paternity reveals that there is no uniform approach in this field. Unlike proceedings by fathers for the establishment or denial of paternity (see Shofman, cited above, § 37), a significant number of States do not set a limitation period for children to bring an action aiming to have paternity established.", "Indeed, a tendency can be ascertained towards a greater protection of the right of the child to have its paternal affiliation established. 59. In the States in which a limitation period for bringing such proceedings exists, the length of the applicable periods varies significantly, the time-limit varying between one and thirty years. Furthermore, although there is a difference in the dies a quo of the limitations periods, in the majority of these States the relevant period is calculated from either the majority of the child, the birth, or the existence of a final judgment denying paternity irrespective of the child's awareness of the facts surrounding its paternal affiliation and without providing any exceptions. Only a small number of legal systems seem to have produced solutions to the problem which arises when the relevant circumstances become known only after the expiry of the time-limit, for instance, by providing for the possibility of bringing an action after the time-limit has expired if there was a material or moral impossibility of lodging it within that period or if there were good reasons for the delay.", "60. In the present case the applicant claimed before the domestic courts that she did not know who her biological father was until her mother's death in 1997 by which time the statutory time-limit had already expired. This has not been disputed by the Government who maintained that the applicant failed to take steps that could have led her to discover her father's identity within the time afforded to her before her right lapsed (see paragraph 41 above). 61. The Court notes that the provisions of the Children Law adequately secure the interests of a child who learns about his father's identity within the period provided for by the Law.", "They do not however make any allowance for children in the applicant's situation who did not acquire knowledge of the material facts pertaining to paternity until after the three-year period had elapsed. 62. The Court has difficulties in accepting the inflexible limitation period with time running irrespective of a child's awareness of the circumstances surrounding its father's identity and without providing any exceptions to the application of that period (see, mutatis mutandis, Shofman, cited above, § 43). The main problem therefore is the absolute nature of the time-limit rather than its dies a quo as such. In view of the fact that in the present case the presumed father denied paternity, judicial proceedings before the Family Court were the only avenue by which the applicant could establish whether or not he was her biological father.", "As a result of this rigid time-limit, as upheld by the Supreme Court, the applicant was deprived of the possibility of obtaining judicial determination of paternity. She was deprived of this right even though she was in a situation where she had not had any realistic opportunity to go to court at any earlier stage. 63. In the Court's view, a distinction should be made between cases in which an applicant has no opportunity to obtain knowledge of the facts and, cases where an applicant knows with certainty or has grounds for assuming who his or her father is but for reasons unconnected with the law takes no steps to institute proceedings within the statutory time-limit (see, mutatis mutandis, Yildirim v. Austria (dec.), no. 34308/96, 19 October 1999, and Rasmussen v. Denmark, cited above, p. 7, §§ 8 and 10).", "Furthermore, the case of Stubbings (cited above) relied on by the Government can be distinguished from the present case in view of the nature of the claim in that case and the availability of an alternative procedure (§§ 65-66). Moreover, although the present case differs from the situation examined by the Court in Kroon (cited above) given that in the latter case the parents were in agreement about the paternity, while in the present case the presumed father contested the applicant's paternity claim, as in Kroon, the family relationship at stake in the instant case is regulated by an irrefutable presumption in the form of a time-limit with no consideration of the material facts and the social reality surrounding such situations, in particular the difficulties faced by a child in acquiring knowledge of the facts surrounding its conception. Finally, in reply to the Government's argument concerning the prevention of fabricated claims (see paragraph 39 above), the Court considers that the genuineness of a paternity claim in any given case is a matter to be decided by the trial court when examining the claim. 64. It is clear from the Supreme Court's judgment that the general interest as well as the competing rights and interests both of the presumed father and his family were accorded greater weight than the applicant's right to find out her origins (see paragraph 14 above).", "The Court, however, does not consider that such a radical restriction of the applicant's right to institute proceedings for the judicial determination of paternity was proportionate to the legitimate aim pursued. In particular, it has not been shown how the general interest in protecting legal certainty of family relationships or the interest of the presumed father and his family outweighed the applicant's right to have at least one opportunity to seek judicial determination of paternity. In this connection the Court reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, p. 12-13, § 24). 65.", "Hence, even having regard to the margin of appreciation left to the State, the Court considers that the application of a rigid time-limit for the exercise of paternity proceedings, regardless of the circumstances of an individual case and, in particular, the knowledge of the facts concerning paternity, impairs the very essence of the right to respect for one's private life under Article 8 of the Convention. 66. In view of the above, and in particular having regard to the absolute nature of the limitation period, the Court considers that a fair balance has not been struck between the different interests involved and, therefore, that the interference with the applicant's right to respect for her private life was not proportionate to the legitimate aims pursued. 67. Accordingly, the Court finds that there has been a violation of Article 8.", "IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 68. The applicant complained under Article 6 Convention that she had been barred from instituting paternity proceedings due to the statutory three-year limitation period. The aforementioned provision provides as follows, in so far as relevant: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] ... tribunal...” A. The parties' submissions 1.", "The Government 69. The Government repeated the same arguments as those advanced with regard to Article 8 of the Convention (see paragraphs 37-41 above). In addition, the Government relied on the Commission's decision in the case of X. v. Sweden (cited above) and the Court's judgment in the case of Stubbings (cited above). They contended that the three-year limitation period commencing from the date of entry into force of the Law, rather than the date of acquiring knowledge of the father's identity after attaining majority, did not restrict or reduce the applicant's access to court in such a way or to such an extent as to impair the essence of her right. 2.", "The applicant 70. The applicant submitted the same arguments as those advanced with regard to Article 8 of the Convention (see paragraph 42 above). B. The Court's assessment 71. In view of the grounds on which it has found a violation of Article 8 of the Convention (see paragraphs 61-67 above), the Court considers that no separate issue arises under this provision.", "V. 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 submitted that she had suffered both pecuniary and non-pecuniary damage but did not claim a specific sum in this respect. With regard to pecuniary damage she submitted that as a result of the violation of her Convention rights she had been deprived of her inheritance rights to her father's estate.", "In this connection, she noted that she could submit evidence concerning her father's estate. Furthermore, she argued that the denial of her rights to seek judicial recognition of paternity had caused her suffering and distress. 74. The Government contested these claims. In particular, they submitted that the applicant's claims as to pecuniary damage were speculative since it could not be said that she would have been able to prove her paternity claim.", "As regards the applicant's claim in respect of non-pecuniary damage, the Government were of the opinion that the finding of a violation would constitute in itself sufficient just satisfaction. 75. The Court does not discern any causal link between the violation found and the pecuniary damage alleged. It notes in this respect that her claim under this head is purely speculative as it is based on the assumption that she would have been successful in the paternity proceedings if they had not been time-barred. The Court therefore rejects this claim.", "However, it considers that the applicant must have suffered feelings of frustration and distress which cannot be compensated solely by the finding of a violation. Making an assessment on an equitable basis, as required by Article 41, the Court awards the applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount. B. Costs and expenses 76. The applicant claimed 1,437.50 Cyprus pounds (CYP) for the costs and expenses incurred before the domestic courts.", "This sum included CYP 500 for the proceedings before the Family Court, CYP 750 for those before the Supreme Court and CYP 187.50 in VAT at a rate of 15 % on the above amounts. She provided the Court with an invoice in this respect. The applicant, who received legal aid from the Council of Europe for her representation in the present case for the proceedings before the Court, did not seek reimbursement of the relevant costs. 77. The Government contested the applicant's claim for costs and expenses incurred before the domestic courts.", "In this respect, they submitted that the applicant had not furnished evidence of the legal costs actually incurred and of their amount. They considered that the invoice was not sufficient in this respect. 78. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).", "This may include domestic legal costs actually and necessarily incurred to prevent or redress the breach of the Convention (see, for example, I.J.L. and Others v. the United Kingdom (just satisfaction), nos. 29522/95, 30056/96 and 30574/96, § 18, 25 September 2001). 79. In the present case the Court observes that the invoice refers to a lump sum for each set of domestic proceedings, with no indication of the rate charged and the time spent by the lawyer or any details concerning in- and out-of-court expenses.", "Notwithstanding this, it is clear that the applicant did incur costs concerning the domestic proceedings. The Court considers, having regard to the nature of these proceedings, that the amount claimed is reasonable as to quantum. Accordingly, it awards the sum claimed in full. C. Default interest 80. 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 8 of the Convention; 2. Holds that it is not necessary to examine separately the applicant's complaint under Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,000 (six thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount; (b) EUR 2,496.41(two thousand four hundred and ninety-six euros and forty-one cents) in respect of costs and expenses; (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 20 December 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenNina VajićRegistrarPresident" ]

[ "FIFTH SECTION CASE OF KOLESNIK v. UKRAINE (Application no. 20824/02) JUDGMENT STRASBOURG 10 April 2008 FINAL 29/09/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kolesnik v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Karel Jungwiert,Volodymyr Butkevych,Renate Jaeger,Mark Villiger,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska, judges,and of Claudia Westerdiek, Section Registrar. Having deliberated in private on 18 March 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 20824/02) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Viktor Vasilyevich Kolesnik (“the applicant”), on 24 April 2002. 2. The applicant was represented by Mr I. Pogasiy, a lawyer practising in Kirovograd. The Ukrainian Government (“the Government”) were represented by their Agent, Mrs Valeriya Lutkovska.", "3. On 9 September 2004 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 1959 and currently resides in Kirovograd. A. Proceedings concerning retirement benefits 5. In January 2001 the applicant, a former military serviceman brought proceedings against A-0981 military unit, where he had served before retirement, seeking recovery of redundancy pay and compensation for his uniform. On 12 February 2001 the Military Court of Cherkassy Garrison (Військовий суд Черкаського гарнізону) found for the applicant and awarded him a total of 2,935 Ukrainian hryvnias (UAH)[1].", "6. On 20 March 2001 the military unit concerned paid the applicant UAH 2,420[2]. 7. On 17 May 2001 the Bailiffs’ Service of the Leninskiy District of Kirovograd (Відділ державної виконавчої служби Ленінського районного управління юстиції м. Кіровограда, hereafter “the Leninskiy Bailiffs’ Service”) instituted enforcement proceedings in respect of UAH 515[3], the outstanding amount of the court award. 8.", "Although the property and accounts of the military unit were frozen by the Leninskiy Bailiffs’ Service the funds obtained were insufficient for the payment of the amount due to the applicant. 9. On 26 March 2003 the Leninskiy Bailiffs’ Service forwarded the applicant’s writ of execution together with the enforcement case-file to the Bailiffs’ Service of the Oleksandrivskiy district of Kirovograd region (Відділ державної виконавчої служби Олександрівського районного управління юстиції Кіровоградської області, hereafter “the Oleksandrivskiy Bailiffs’ Service”). 10. According to a bank transfer order produced by the Government, on 30 November 2004 the Oleksandrivskiy Bailiffs’ Service sent UAH 2,073[4] via postal transfer to an unspecified recipient or recipients.", "This sum corresponds to the total amount of the remaining debts owed to the applicant and Mr Mayadnnyk, the applicant in case no. 20826/02. 11. On 1 December 2004 the Oleksandrivskiy Bailiffs’ Service terminated the proceedings in the applicant’s enforcement case on the grounds that the judgment of 12 February 2001 had been executed in full. The applicant stated that he had not been informed of the transfer and had not received any money as a result of it.", "12. On 21 June 2007 the Oleksandrivskiy Bailiffs’ Service made a postal transfer in the applicant’s name of the remaining amount. On the same day the applicant collected this money. B. Proceedings concerning compensation for bailiffs’ inactivity 13.", "On 4 March 2003 the applicant brought proceedings against the Leninskiy Bailiffs’ Service claiming moral damages for its alleged inactivity and compensation for the devaluation of the sum awarded to him. On 28 July 2003 the Leninsky District Court of Kirovograd (Ленінський районний суд м. Кіровоград, hereafter “the Leninskiy Court”) granted this claim in part and awarded the applicant UAH 1,000[5] in compensation for non-pecuniary damage incurred as the result of the Leninskiy Bailiffs’ Service’s failure to perform in time its duties set forth in the Law of 21 April 1999 “on Enforcement Proceedings”. 14. On 30 October 2003 the Leninskiy Court granted the Leninskiy Bailiffs’ Service leave to appeal out of time against this judgment. On 13 November 2003 the Leninskiy Bailiffs’ Service filed an appeal.", "Having sought and received the applicant’s written comments on this appeal, on an unspecified date the Leninskiy Court referred it to the Kirovograd Regional Court of Appeal (Апеляційний суд Кіровоградської області). 15. On 9 February 2004 the Leninskiy Bailiffs’ Service opened the enforcement proceedings in respect of the judgment of 28 July 2003 and immediately terminated them on the ground that appeal proceedings were under way in respect of the judgment concerned. Despite several requests of the Court, neither the applicant nor the Government furnished any information on the course or the outcome of these proceedings. II.", "RELEVANT DOMESTIC LAW 16. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004). 17. Article 40-1 of the Law of Ukraine of 21 April 1999 “on Enforcement Proceedings” provides the following: “The writ of execution, which has been accepted by the bailiff for processing, shall be returned to the court which had issued it if the court has granted a request for appeal out of time against the judgment in respect of which this writ had been issued...", "The decision to return the writ of execution can be appealed against to a court.” THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 18. The applicant complained about the non-execution of the judgments of 12 February 2001 and 28 July 2003 given in his favour. He relied on Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No.", "1, which provide, in so far as relevant, as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ....” A. Admissibility 1.", "Alleged non-enforcement of the judgment of 12 February 2001 19. The Government argued that the applicant lost his victim status after the execution of the Military Court of Cherkassy Garrison’s judgment of 12 February 2001. 20. The applicant disagreed. 21.", "The Court notes that this objection is similar to that which the Court has already dismissed in a number of judgments (see, for example, Voytenko v. Ukraine, no. 18966/02, §§ 27-35, 29 June 2004 and Romashov v. Ukraine, no. 67534/01, §§ 26-27, 27 July 2004). The Court considers that the present objection must be rejected for the same reasons. 22.", "The Court notes that the applicant’s complaints concerning the non-enforcement of the Military Court of Cherkassy Garrison’s judgment of 12 February 2001 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. 2. Alleged non-enforcement of the judgment of 28 July 2003 23. The Government maintained that as the Leninskiy Bailiffs’ Service, the defendant in these proceedings was granted leave to appeal out of time against the judgment at issue, there was no obligation on the State to ensure the enforcement of this judgment.", "24. The applicant disagreed. 25. The Court notes that on 30 October 2003 the Leninskiy Court granted the Leninskiy Bailiffs’ Service’s request for leave to appeal out of time. Pursuant to Article 40-1 of the Law “on Enforcement Proceedings”, a bailiff dealing with the applicant’s enforcement case decided to return the writ of execution to the Leninskiy Court.", "The applicant did not appeal against this decision. 26. The Court, theretofore, finds that the applicant has failed to show that there was a final and binding court judgment, the lengthy non-enforcement of which could give rise to a breach of Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1. This part of the application, therefore, should be rejected in accordance with Article 35 §§ 1 and 4 of the Convention as being manifestly ill-founded.", "B. Merits 27. In their observations, the Government contended that there had been no violation of Articles 6 § 1 and 13 of the Convention or Article 1 of Protocol No. 1 (as in the cases of Romashov, cited above, § 37, and Voytenko, cited above § 37). They also maintained that the overall length of the proceedings was reasonable in the circumstances.", "28. The applicant disagreed 29. The Court observes that, according to the Government, the judgment in the applicant’s favour was enforced in full on 30 November 2004, when the outstanding amount of the award was sent to the applicant via postal transfer. However, the applicant stated that he was not informed of any such transfer, nor did he receive any money thus sent. 30.", "The Court notes in this respect that apart from a copy of a bank order, which does not bear any name of the recipient or recipients of the transferred amount, the Government did not produce any document to prove that the alleged transfer was actually made to the applicant or that the applicant was informed of it. The Court, therefore, considers that the debt to the applicant was paid to him in full on 21 June 2007 when he received the outstanding amount via the postal transfer. 31. Accordingly, the final judgment of the Military Court of Cherkassy Garrison of 12 February 2001 remained unenforced for six years and three months. 32.", "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 example Voytenko, cited above, §§ 43, 48, 55 and Vodopyanovy v. Ukraine, no. 22214/02, § 37, 17 January 2006). 33. 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. 34. The Court does not find it necessary in the circumstances to examine the same complaint under Article 13 of the Convention (see Derkach and Palek v. Ukraine, nos. 34297/02 and 39574/02, § 42, 21 December 2004).", "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 435.69 Euros (EUR) in respect of pecuniary and EUR 8,000 in respect of non-pecuniary damage.", "As regards the former he referred to the statutory default interest and loss of income. 37. The Government contended that the applicant’s claim for pecuniary damage was not supported with any documents and that his claim for non-pecuniary damage was unsubstantiated and exorbitant. 38. The Court makes no award in respect of pecuniary damage as the applicant has not substantiated any such loss.", "However, it considers that the applicant has suffered some non-pecuniary damage as a result of the violations found which cannot be made good by the Court’s finding of a violation alone. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 2,000. B. Costs and expenses 39. The applicant also claimed EUR 261.5 for the costs and expenses incurred before the domestic courts and EUR 383.1 for those incurred before the Court.", "40. The Government maintained that the applicant has failed to show that the claimed amounts were actually incurred and that these costs were necessary. 41. 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 in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and were reasonable as to quantum (see, among many other authorities, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII).", "42. The Court considers that these requirements have not been met in the instant case. In particular, it notes that the case was not particularly complex and the applicant was dispensed from the general obligation to be legally represented. However, the applicant may have incurred some costs and expenses for his representation and the proceedings before the Court. 43.", "Regard being had to the information in its possession and to the above considerations, the Court awards the applicant EUR 300 for costs and expenses. 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 the complaint concerning non‑enforcement of the Military Court of Cherkassy Garrison’s judgment of 12 February 2001 admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No. 1; 4. Holds that there is no need to examine the complaint under Article 13 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand Euros) in respect of non-pecuniary damage and EUR 300 (three hundred Euros) in respect of costs and expenses, plus any tax that might be chargeable to the applicant; (b) that the aforementioned sums shall be converted into the national currency of Ukraine 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; 6.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 April 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident [1]. Approximately 574 Euros (EUR). [2].", "Approximately EUR 502 [3]. Approximately EUR 100 [4]. Approximately EUR 415 [5]. Approximately EUR 166" ]

[ "THIRD SECTION CASE OF SAVIĆ AND OTHERS v. SERBIA (Applications nos. 22080/09, 56465/13, 73656/14, 75791/14, 626/15, 629/15, 634/15 and 1906/15) JUDGMENT STRASBOURG 5 April 2016 This judgment is final but it may be subject to editorial revision. In the case of Savić and Others v. Serbia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: George Nicolaou, President,Branko Lubarda,Pere Pastor Vilanova, judges,and Marialena Tsirli, Deputy 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 eight applications (nos. 22080/09, 56465/13, 73656/14, 75791/14, 626/15, 629/15, 634/15 and 1906/15) against Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).", "The applicants were all Serbian nationals and their further personal and other relevant details and are set out in the appendix to this judgment. 2. The Serbian Government (“the Government”) were represented by their Agent, Ms Vanja Rodić. 3. On 9 March 2015 the applications were communicated to the Government.", "4. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it. THE FACTS THE CIRCUMSTANCES OF THE CASE 5. The applicants complained of the excessive length of different criminal and civil proceedings under Article 6 § 1 of the Convention.", "6. All applicants obtained decisions of the Constitutional Court of Serbia, which found a violation of their right to a hearing within reasonable time and awarded them certain sums in respect of the non-pecuniary damage suffered (see appendix to this judgment). THE LAW I. JOINDER OF THE APPLICATIONS 7. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 8. The applicants complained that the length of the criminal and civil proceedings in question had been incompatible with the “reasonable time” requirement. They relied on Article 6 § 1 of the Convention, which reads as follows: Article 6 § 1 “In the determination of his civil rights and obligations or of any criminal charge against him... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” A. Admissibility 9. The Government submitted that the applicants could not claim to be victims of the alleged violation (see paragraph 12 below). 10.", "The Court considers that the Government’s objection is closely linked to the substance of the applicants’ complaint and therefore must be joined to the merits. 11. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 12. The Government submitted that as all the applicants obtained decisions from the Constitutional Court they had therefore lost their victim status. In the Government’ s opinion, the finding of a violation and the awarding of compensation for the non-pecuniary damage suffered constituted sufficient redress for the breach of the applicants’ right to a hearing within a reasonable time. 13.", "The applicants disagreed. 14. The Court recalls that an applicant’s status as a “victim” within the meaning of Article 34 of the Convention depends on the fact whether the domestic authorities acknowledged, either expressly or in substance, the alleged infringement of the Convention and, if necessary, provided appropriate redress in relation thereto. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Vidaković v. Serbia (dec.) no. 16231/07, § 24 May 2011; Cocchiarella v. Italy [GC], no.", "64886/01, § 71, ECHR 2006‑V; and Cataldo v. Italy (dec.), no. 45656/99, 3 June 2004). 15. In this respect, the Court notes that the Constitutional Court found that the applicants’ right to a hearing within a reasonable time had been violated (see paragraph 6 above), thereby acknowledging the breach complained of and, effectively, satisfying the first condition laid down in the Court’s case law. 16.", "The applicants’ victim status then depends on whether the redress afforded was adequate and sufficient having regard to just satisfaction as provided for under Article 41 of the Convention (see Dubjaková v. Slovakia (dec.), no. 67299/01, 19 October 2004). 17. In this connection, the Court recalls that in length-of-proceedings cases one of the characteristics of sufficient redress which may remove a litigant’s victim status relates to the amount awarded. This amount depends, in particular, on the characteristics and effectiveness of the remedy.", "Thus, States which, like Serbia, have opted for a remedy designed both to expedite proceedings and afford compensation are free to award amounts which – while being lower than those awarded by the Court – are not unreasonable (see Cocchiarella v. Italy [GC], cited above, §§ 96, 97). 18. In the present cases, the Constitutional Court, in addition to the said finding of a violation, declared that the applicants were entitled to different amounts of non-pecuniary damages sought (specified in the appendix to this judgment). 19. Turning to the actual sums awarded to the applicants, the Court notes that compensations granted in the present cases are significantly lower compared with the sums awarded for comparable delays in the Court’s case-law.", "It would emphasise, in this respect, the importance of a reasonable amount of just satisfaction being awarded in the domestic system for the remedy in question to be considered as effective under the Convention. Whether the amount awarded may be regarded as reasonable, however, falls to be assessed in the light of all the circumstances of the case. These include not merely the duration of the proceedings in the specific case but the value of the award judged in the light of the standard of living in the State concerned, and the fact that under the national system compensation will in general be awarded and paid more promptly than would be the case if the matter fell to be decided by the Court under Article 41 of the Convention. 20. In the light of the material in the files and having regard to the particular circumstances of the cases, the Court considers that the sums awarded to the applicants cannot be considered sufficient and therefore amount to appropriate redress for the violations suffered.", "21. The Court therefore concludes that the applicants did not lose their status as victims within the meaning of Article 34 of the Convention. The Government’s objection in this regard must therefore be rejected. 22. In view of the above and in particular the Court’s finding regarding the victim status of the applicants the Court concludes that in the present cases the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "23. There has accordingly been a violation of Article 6 § 1 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 24. Some applicants also raised other complaints under various Articles of the Convention.", "25. The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or the Protocols thereto. 26. It follows that this part of the applications 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 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 applicants claimed various amounts in respect of the non-pecuniary damage suffered by each of them. The sums requested are indicated in the appended table. The applicants also requested various sums in respect of pecuniary damage and for the legal costs incurred in the proceedings before the Court.", "29. The Government considered the sums requested to be excessive. 30. The Court finds that the applicants did not demonstrate that the alleged pecuniary damage had actually been caused by the length of the proceedings before the domestic courts and does not discern a causal link between the violation found and the pecuniary damage alleged. It therefore rejects the applicants’ claims for pecuniary damage.", "31. The applicant Ms Dragica Kostić (application no. 56465/13) made no claim for non-pecuniary damage. She, however, claimed EUR 1,000 in respect of the costs and expenses incurred before the Court. Having regard to the foregoing, the Court considers that she should be awarded costs and expenses only.", "32. Regard being had to the documents in its possession and to its case‑law (see Nemet v. Serbia, no. 22543/05, 8 December 2009), the Court considers it reasonable to award the sums indicated in the appended table in respect of non-pecuniary damage and costs and expenses, less any and all amounts which may have already been paid in that regard at the domestic level. B. Default interest 33.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Joins to the merits the Government’s objection as to the applicant’s victim status, and dismisses it; 3. Declares the complaints concerning the excessive length of civil/criminal proceedings admissible, and the remainder of the applications inadmissible; 4.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 5. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table in respect of non-pecuniary damage and costs and expenses, plus any tax that may be chargeable on these amounts, which are to be converted into the currency of the respondent State at the rate applicable at the date of settlement, after the deduction of any amounts which may have already been paid on this basis; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. 6. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 5 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Marialena TsirliGeorge NicolaouDeputy RegistrarPresident APPENDIX No. Application no. Date of introduction Applicant name date of birth place of residence Represented by Start of the proceedings End of the proceedings Total length and number of instances since 3 March 2004 (the date on which the Convention came into force) Constitutional Court decision details; just satisfaction awarded Non-pecuniary damage requested in euros Amounts awarded for non-pecuniary damage and costs and expenses per applicant in euros (Plus any tax that may be chargeable to the applicants. )[1] 22080/09 14/04/2009 Vidan SAVIĆ 03/01/1963 Smederevo - 03/03/2004 (23/12/2002) 06/06/2012 8 years and 3 months 2 levels of jurisdiction Už-6732/2012 of 30 October 2014 400 Euros 15,000 2,200 56465/13 30/08/2013 Dragica KOSTIĆ 07/10/1944 Bor Vesna Petra MAKSIMOVIĆ 03/03/2004 (10/11/2003) 20/02/2013 8 years and 11 months 2 levels of jurisdiction Už-3383/2010 of 28 February 2013 600 Euros See paragraph 31 of the Judgment. 500 73656/14 04/11/2014 Gordana KURLAGIĆ 12/05/1964 Užice Verica DULOVIĆ-ĆULAFIĆ 14/07/2005 02/02/2012 6 years and 6 months 2 levels of jurisdiction Už-5848/2011 of 17 April 2014 300 Euros 10,000 2,800 75971/14 27/11/2014 Romeo VUČENOV 03/04/1980 Futog Dejana SPASOJEVIĆ IVANČIĆ 03/03/2004 (17/09/2003) 26/05/2010 6 years and 2 months 2 levels of jurisdiction Už-4180/2011 of 11 July 2014 400 Euros 3,000 2,500 626/15 10/12/2014 Rodoljub GRUJIĆ 26/06/1955 Čačak Radenko GLAVONJIĆ 05/08/2004 23/09/2011 7 years and 1 month 2 levels of jurisdiction Už-6019/2011 of 29 May 2014 300 Euros 1,000 1,500 629/15 10/12/2014 Vlajko STIŠOVIĆ 15/05/1963 Čačak Radenko GLAVONJIĆ 05/08/2004 23/09/2011 7 years and 1 month 2 levels of jurisdiction Už-6019/2011 of 29 May 2014 300 Euros 1,000 1,500 634/15 10/12/2014 Slavko PANIĆ 14/02/1964 Čačak Radenko GLAVONJIĆ 05/08/2004 23/09/2011 7 years and 1 month 2 levels of jurisdiction Už-6019/2011 of 29 May 2014 300 Euros 1,000 1,500 1906/15 10/12/2014 Boriša JOVANOVIĆ 08/01/1953 Čačak Radenko GLAVONJIĆ 06/07/2005 23/09/2011 6 years and 2 months 2 levels of jurisdiction Už-6019/2011 of 29 May 2014 300 Euros 1,000 1,500 [1] Less any amounts which may have already been paid on this basis at the domestic level" ]

[ "FOURTH SECTION CASE OF REMUSZKO v. POLAND (Application no. 1562/10) JUDGMENT STRASBOURG 16 July 2013 FINAL 16/10/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Remuszko 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 Françoise Elens-Passos, Section Registrar, Having deliberated in private on 25 June 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "1562/10) 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, Stanisław Remuszko (“the applicant”), on 22 December 2009. 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 complained about a refusal to publish paid advertisements for his book by a newspaper.", "He relied on Article 10 of the Convention. 4. On 12 April 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1948 and lives in Warsaw. A. Background to the case 6. In 1999 the applicant, who is a journalist, published a book entitled “Gazeta Wyborcza.", "Beginnings and Beyond” (Gazeta Wyborcza. Początki i okolice). The book relates, in an unfavourable light, the story of the founding of Gazeta Wyborcza, one of the best known Polish daily newspapers with a nationwide distribution. The newspaper was founded in 1989 in the wake of the so-called Round Table talks between the communist government and the heads of the then democratic opposition which ultimately led to the first semi‑free elections in Poland since 1945 and to the ultimate dismantling of the communist regime by the end of 1989. 7.", "The second edition of the applicant’s book was published in 2003. No reviews of the book were published in the press. 8. Subsequently, the applicant requested seven daily and weekly newspapers to publish an identical paid advertisement for the book. The text of the proposed advertisement reads as follows: “It does not make for pleasant reading for [the editor-in-chief] of Gazeta Wyborcza, friends.", "The truth about Gazeta Wyborcza. Previously unseen documents and new witnesses. Stanisław Remuszko, a former journalist [at the newspaper], today working freelance, has written the first ever book in Poland, Europe and the world about Gazeta Wyborcza and its background. Do you have the faintest idea where the wealth of Gazeta Wyborcza comes from? Information available at www.remuszko.pl.” 9.", "All the newspapers (Nasz Dziennik, Wprost, Metropol, Newsweek, Polityka and Rzeczpospolita) refused to publish the advertisement. Gazeta Polska was the first to agree to publish it and they signed a contract with the applicant. However, shortly afterwards the editor changed his mind, refused publication and reimbursed the money paid by the applicant. 10. On 12 June 2003 the applicant lodged seven identical claims with the Warsaw Regional Court against the newspapers.", "He requested that the court order the defendant newspapers to publish the advertisements. The applicant referred to section 36 of the Press Act 1984 (see paragraph 34 below), arguing that nothing in the advertisement as proposed could reasonably be construed as being in breach of the law or third parties’ personal rights, or contrary to the editorial policy of the defendants, unless they considered that their editorial policy included a duty to protect the interests of Gazeta Wyborcza, its editor-in-chief and publisher. The applicant referred to Article 54 of the Constitution and to section 1 of the Press Act. 11. The Warsaw Regional Court, by judgments dated 23 January 2004, 11 May 2005, 26 May 2005, 28 January 2004 and 28 March 2006 dismissed his actions against Nasz Dziennik, Wprost, Metropol, Newsweek and Polityka respectively.", "12. The applicant appealed. 13. By judgments of 14 December 2005 and 23 June 2006 the Warsaw Court of Appeal allowed his appeals and ordered the defendant newspapers Wprost and Metropol to publish the advertisement concerned. No appeal was lodged against those judgments.", "14. During the appellate proceedings against Nasz Dziennik the Warsaw Court of Appeal decided on 15 October 2004 to make use of Article 391 § 1 of the Code of Civil Procedure and put a legal question to the Supreme Court concerning the interpretation of Article 36 of the Press Act. The Supreme Court refused to reply to this question by way of a decision of 14 October 2004 (CZP 67/05) (see “Relevant domestic law and practice” below). 15. On 7 March 2005 the Warsaw Court of Appeal rejected the applicant’s appeal against Newsweek on formal grounds (failure to pay the court fee).", "16. By a judgment of 25 April 2006 the Warsaw Court of Appeal dismissed the applicant’s appeal against Polityka. 17. By a judgment of 13 July 2004 the Warsaw Regional Court allowed the claim against Gazeta Polska. The editors appealed.", "The parties settled the case before the Court of Appeal. The applicant submits that ultimately the advertisement was not published. B. The proceedings against Rzeczpospolita 18. The present case concerns the proceedings against Rzeczpospolita and its editor‑in‑chief.", "19. By a judgment of 30 March 2004 the Warsaw Regional Court dismissed the applicant’s claim. It referred to section 36 of the Press Act, noting that the only requirements that paid advertisements to be published in the press had to comply with were the laws and principles of social co‑existence (zasady współżycia społecznego). The editors of Rzeczpospolita had been aware of the content of the book. Publishing the advertisement could have been regarded as endorsing that content, which, in turn, could have been seen as breaching the personal rights of third parties.", "This could have given rise to civil liability on their part. Not only were the editors allowed to refuse publication of an advertisement in breach of third parties’ rights; they were even obliged to do so. 20. The applicant appealed, referring to his right to freedom of expression. He also argued that the first-instance court had failed to provide any explanation as to why and how the advertisement breached third parties’ rights.", "21. The Warsaw Court of Appeal, by a judgment of 4 November 2004, allowed his appeal and remitted the case for re‑examination. The court first held that publication of advertisements was not covered by freedom of expression. 22. It further accepted the applicant’s argument about the lower court’s failure to give adequate reasons for its judgment.", "That court had held that the text of the advertisement was in breach of the law and third parties’ personal rights without adducing any arguments or reasons for that view. The court further observed that the lower court had made its assessment with reference to the content of the book concerned. This was not correct as under section 36 of the Press Act lawfulness and/or respect for third parties’ personal rights had to be examined with reference to the content of the advertisement only, and not of the advertised service or the merchandise. The content of the book was irrelevant in the case at hand. 23.", "By a judgment of 30 January 2007 the Warsaw Regional Court dismissed the applicant’s claim. The court was of the view that the advertisement was incompatible with the newspaper’s editorial profile. It further reiterated that the publication of the advertisement could have been understood as an endorsement of the applicant’s views expressed in the book. This circumstance alone was sufficient to justify the refusal to publish the advertisement. Moreover, Rzeczpospolita and Gazeta Wyborcza were competitors in the press market.", "The publication of the advertisement could have given rise to a suspicion that the editors of the former were trying to denigrate the latter in the eyes of the public. Further, the editors were not obliged by law to endorse the dissemination of views and statements which they did not accept. 24. The court concluded that the advertisement did not meet the requirements laid down by section 36 of the Press Act. 25.", "The court further stated, referring to the views expressed by the Supreme Court in its judgments of 18 January 2007 given in other cases brought by the applicant and concerning refusals to publish the same advertisement (see paragraph 30 below), that the principle of commercial and contractual freedom dictated that a publisher was not under a legal obligation to publish all advertisements submitted to it because it did not have a monopoly on the market. 26. The applicant appealed, reiterating his earlier arguments. He expressly relied on Article 10 of the Convention. 27.", "On 7 February 2008 the Warsaw Court of Appeal dismissed his appeal, essentially endorsing the view expressed by the Regional Court. 28. The applicant’s lawyer submitted a cassation appeal against that judgment to the Supreme Court, relying on the right to freedom of expression guaranteed by the Constitution and by Article 10 of the Convention. 29. By a judgment of 26 March 2009, served on the applicant on 24 June 2009, the Supreme Court dismissed the cassation appeal.", "30. The court referred to its judgments given in other cases initiated by the applicant: CZP 67/05 (the Nasz Dziennik case – in which it refused to answer a legal question, see paragraph 35 below; I CSK 351/06 and 376/06 (the Polityka case). It observed that the press market was governed by business and commercial freedom. It resulted therefrom that publishers of newspapers could not be held to be obliged to publish all advertisements simply at the request of clients. The court referred to the Court’s judgment in the case of Appleby and Others v. the United Kingdom, no.", "44306/98, ECHR 2003‑VII. It shared the Court’s view that the principles governing the exercise of the freedom of expression were also applicable to commercial speech. However, it did not necessarily result therefrom that in horizontal relations this freedom could not be limited in compliance with the constitutional principle of proportionality. 31. Whereas it was true that section 36 paragraph 4 of the Press Act could not be said to be fully consistent with other provisions of that Act, it could validly be relied on by publishers wishing to refuse the publication of an advertisement if they were of the view that the advertisement as proposed was not compatible with the newspaper’s profile.", "32. The Supreme Court concluded that the contested judgment was ultimately in conformity with the law. II. RELEVANT DOMESTIC LAW AND PRACTICE 33. Article 54 of the Constitution provides: “1.", "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.” Article 31 of the Constitution reads: “1. Freedom of the person shall receive legal protection. 2.", "Everyone shall respect the freedoms and rights of others. No one shall be compelled to do that which is not required by law. 3. Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.” 34.", "Section 36 of the Press Act 1984 reads as follows: “1. The press may publish paid advertisements and notices. 2. Press advertisements shall not be in breach of the laws or of the principles of social co-existence. 3.", "Advertisements shall be put in such a form as to make it clear that they are not to be identified with the editorial content. 4. The publisher and editor shall have the right to refuse the publication of an advertisement if its content or form is incompatible with the editorial profile or character of the newspaper.” 35. In a decision of 14 October 2004 (CZP 67/05) the Supreme Court examined a legal question submitted to it by the Warsaw Court of Appeal in the applicant’s case against Nasz Dziennik. In its request the Court of Appeal summarised the difficulties arising in connection with the interpretation of section 36 of the Press Act.", "On the one hand, section 36 provided, in paragraph 1, that newspaper publishers had a right to publish advertisements. This formulation suggested that they were free to decide on the choice of advertisement to be published. 36. On the other hand, the provisions of paragraphs 2 and 4 of that section, in so far as they defined situations where a publisher could refuse to publish an advertisement, suggested that such refusal was possible only where that advertisement as proposed failed to meet the requirements laid down in those provisions. Otherwise, publishers were obliged under the provisions to publish an advertisement as long as it had been duly paid for.", "This conclusion was further strengthened by the fact that under paragraph 2 of section 44 of the Act publishers did not bear any legal responsibility for the content of paid advertisements. 37. The Court of Appeal noted in its question that the freedom of expression of the person trying to place an advertisement had to be weighed against the publisher’s commercial freedom. It further observed that if decisive weight was given to the publisher’s freedom to choose the advertisements to be published, a form of unlimited control of content by private commercial entities could result, comparable to preventive censorship. 38.", "The Supreme Court endorsed the reasoning of the requesting court that section 36 of the Press Act could, and indeed did, give rise to discrepancies in its judicial interpretation. A literal interpretation a contrario indicated that a refusal to publish an advertisement was justified only when one of the four conditions laid down in paragraphs 2 and 4 was not fulfilled. Had the legislator accepted that publishers were completely free in deciding whether to publish an advertisement or to refuse its publication, it would have been redundant to list the requirements that an advertisement had to comply with in order to be published. Hence, the majority of legal writers were of the view, which was apparently also shared by the requesting Court of Appeal, that this provision of the Press Act limited the publisher’s freedom in respect of commercial advertisements. 39.", "The Supreme Court expressed the view that it was difficult to accept such an opinion. It observed that many arguments could be adduced in support of a contrary opinion. However, in the circumstances of the case it was not necessary for that court to give a reply to the legal question posed by the Court of Appeal as such a reply was not necessary for a decision on the merits of the case. The outcome of the case pending before the Court of Appeal hinged only on that court’s assessment of whether the advertisement as proposed was in breach of the applicable law, not on the clarification of the scope of the publisher’s duty to publish a paid advertisement. 40.", "The Supreme Court made similar observations as to the interpretation of section 36 of the Press Act in its two judgments given on 18 January 2007 concerning the applicant’s cases (I CSK 351/6 and 376/06). The applicant’s claim to have the advertisement published was rejected in both cases. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 41. The applicant complained that the refusal to publish a paid advertisement by Rzeczpospolita which was subsequently upheld by the courts breached his right to freedom of expression as protected by 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.", "Exhaustion of domestic remedies 42. The Government argued that the applicant had failed to exhaust domestic remedies in that he had not availed himself of a constitutional complaint. In their view, he should have challenged section 36 §§ 2 and 4 of the Press Act as to its compatibility with the Constitution. 43. The applicant disagreed.", "He submitted that a constitutional complaint was not a proper remedy in his case. There were no grounds on which to contest the constitutionality of the provisions concerned. It was merely their interpretation by the courts in his case which he contested. 44. The Court has held on numerous occasions that in Poland a constitutional complaint is an effective remedy for the purposes of Article 35 § 1 of the Convention where the alleged violation of the Convention results 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). 45. Turning to the circumstances of the instant case, the Court notes that the alleged violation originated in the judicial interpretation of section 36 of the Press Act. The Court points to the established jurisprudence of the Constitutional Court, which provides that constitutional complaints based solely on an allegedly wrong interpretation of a legal provision are excluded from its jurisdiction; as a result, such a complaint cannot be deemed an effective remedy within the meaning of Article 35 § 1 of the Convention. It is precisely such an interpretation and divergences in that interpretation which lie at the core of the present case.", "Therefore the constitutional complaint cannot be regarded as an effective remedy in the applicant’s case (see, among many other authorities, Palusiński v. Poland (dec.), no. 62414/00, ECHR 2006-...; Ciesielczyk v. Poland, no. 12484/05, § 28, 26 June 2012; and Sosinowska v. Poland, no. 10247/09, § 55, 18 October 2011). 46.", "For these reasons, the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed. 2. Alleged incompatibility ratione personae with the provisions of the Convention 47. The Government further argued that the application should be declared incompatible ratione personae because it concerned horizontal relations between private parties. 48.", "The applicant submitted that the refusal to publish the advertisement for his book had been endorsed by the courts acting in the name of the State and that therefore the State had to be held responsible for the content of the judgments and for the outcome of the proceedings. 49. The Court observes that this objection is a matter which goes to the merits of the case and will be addressed as a question of substance. 3. The applicant’s victim status 50.", "The Government further argued that the applicant could not claim to be the victim of a breach of the Convention because he had not been negatively affected by the decisions complained of. He had launched his own website on the Internet and had been able, despite the publishers’ refusals to publish the paid advertisements, to disseminate information about his book and to sell it. It appeared from information he had made available on that website that the third edition of the book had already sold out by 2010. 51. The Court reiterates that it falls firstly to the national authorities to redress any violation of the Convention.", "A decision or measure favourable to the applicant is not, in principle, sufficient to deprive him of his status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see, inter alia, Eckle v. Germany, 15 July 1982, § 66, Series A no. 51; Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006‑V; and Ladent v. Poland, no. 11036/03, § 36, 18 March 2008).", "The notion of “victim” is to be interpreted autonomously (see Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 35, ECHR 2004‑III). Importantly, it does not imply the existence of prejudice (Brumărescu v. Romania [GC], no. 28342/95, § 50, ECHR 1999‑VII). 52.", "In the present case no domestic decision was ever given which was designed for and capable of alleviating the negative impact on the applicant’s rights of the decisions complained of. Since his situation has not been remedied in any way, this objection of the Government must be dismissed. 4. Lack of significant disadvantage 53. The Government further submitted that the applicant had not suffered a significant disadvantage because he had not been negatively affected by the decisions complained of.", "He had been able to advertise his book on the Internet and to sell it. 54. The Court is of the view that this argument amounts to a mere rephrasing of the submissions which the Government made with regard to the applicant’s victim status (see paragraph 51 above). 55. This objection must therefore also be dismissed.", "5. Conclusion 56. 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. Applicability of Article 10 of the Convention 57. The Government acknowledged that advertisements and other forms of commercial expression may fall within the scope of Article 10 of the Convention. However, this provision was not applicable to the circumstances of the present case because it concerned a dispute between private parties, whereas the rights and freedoms enshrined in the Convention were of a vertical nature, in that they concerned relations between the State and individuals.", "58. The applicant disagreed. He was of the view that Article 10 was applicable to the circumstances of the case. 59. The Court has held on a number of occasions that this provision is applicable to advertising and commercial speech (see Casado Coca v. Spain, 24 February 1994, § 35-36, Series A no.", "285‑A; and markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, § 26, Series A no. 165). It fails to see grounds on which to hold otherwise in the present case. 60. The Court reiterates that it is in the first place for the national authorities, and in particular the courts of first instance and appeal, to construe and apply the domestic law (see, for example, Iglesias Gil and A.U.I.", "v. Spain, no. 56673/00, § 61, ECHR 2003-V; Slivenko v. Latvia [GC], no. 48321/99, § 105, ECHR 2003‑X; and Włoch v. Poland, no. 27785/95, § 110, ECHR 2000‑XI). However, this does not exempt the State from its general obligation under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in ... [the] Convention”.", "The responsibility of a State may then be engaged as a result of not observing its obligation to enact domestic legislation or of applying existing domestic legislation in a manner incompatible with the Convention standards. 61. The Court reiterates the key importance of freedom of expression as one of the preconditions for a functioning democracy. The Court also reminds the pre-eminent role of the press in a State governed by the rule of law (for example, Goodwin v. the United Kingdom, 27 March 1996, § 39, Reports 1996‑II). The case-law of Court has stressed on numerous occasions the function of the press as purveyor of information and public watchdog.", "The press plays a special role in imparting information and ideas on political issues just as on those in other areas of public interest. Freedom of the press affords among others the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. (Castells v. Spain, judgment of 23 April 1992, Series A no. 236, § 43). 62.", "Genuine, effective exercise of the freedom of expression does not depend merely on the State’s duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals see Fuentes Bobo v. Spain, no. 39293/98, § 38, 29 February 2000; and Wojtas-Kaleta v. Poland, no. 20436/02, § 43, 16 July 2009, concerning the obligation on the State to protect freedom of expression in the employment context; or Appleby and Others v. the United Kingdom, no. 44306/98, ECHR 2003‑VI, where the Court examined the scope of the State’s positive obligations in the regulation of the effective exercise of the freedom of expression in horizontal relations between private parties). Positive measures of protection may be required especially vis-à-vis journalists and newspapers (see Özgür Gündem v. Turkey, no.", "23144/93, §§ 42-46, ECHR 2000-III, where the Turkish State was found to be under a positive obligation to take investigative and protective measures where a pro‑PKK newspaper and its journalists and staff had been the victims of a campaign of violence and intimidation. 63. In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which is inherent throughout the Convention. The scope of this obligation will inevitably vary, having regard to the diversity of situations obtaining in Contracting States and the choices which must be made in terms of priorities and resources. Nor must such an obligation be interpreted in such a way as to impose an impossible or disproportionate burden on the authorities (see, inter alia, Özgür Gündem v. Turkey, cited above, § 43, and Frăsilă and Ciocîrlan v. Romania, no.", "25329/03, § 55, 10 May 2012). The boundaries between the State’s positive and negative obligations under the Convention do not lend themselves to precise definition (see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 82, ECHR 2009). In both situations – whether the obligations are positive or negative – the State enjoys a certain margin of appreciation (see, for example, Mouvement raëlien suisse v. Switzerland [GC], no.", "16354/06, § 50, ECHR 2012 (extracts)). 64. The breadth of such a margin of appreciation varies depending on a number of factors, among which the type of speech at issue is of particular importance. Whilst there is little scope under Article 10 § 2 of the Convention for restrictions on political speech (see, among many other authorities, Sokołowski v. Poland, no. 75955/01, § 41, 29 March 2005, and Kaperzyński v. Poland, no.", "43206/07, § 64, 3 April 2012), a wider margin of appreciation is generally available to the Contracting States when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion (see Murphy v. Ireland, no. 44179/98, § 67, ECHR 2003‑IX (extracts), and Mouvement raëlien suisse v. Switzerland [GC], cited above, § 61). It is especially relevant for the assessment of the present case that the States have a broad margin of appreciation in the regulation of speech in commercial matters or advertising (see markt intern Verlag GmbH and Klaus Beermann v. Germany, cited above, § 33, Series A no. 165, and Casado Coca v. Spain, cited above, § 50, Series A no. 285‑A).", "65. In the determination of the existence and scope of the positive obligations of the State arising under Article 10 of the Convention, the Court has had regard to the subject matter of the case, to its capacity to contribute to the public debate, to the nature and scope of restrictions imposed on the exercise of freedom of expression, and to the availability of alternative means by which that liberty could be exercised, as well as to the weight to be given to the competing rights of other persons or of the general public (see Appleby and Others, cited above, §§ 42-43 and 47-49). 2. Compliance with Article 10 of the Convention (a) The parties’ submissions 66. The Government submitted that in the event that the Court was minded to find Article 10 applicable to the case, the State’s authorities would be responsible only in respect of their positive obligations arising under that provision and not for any direct interference with the applicant’s rights.", "In the present case these obligations had been fully complied with. In the Polish legal system all individuals were free to express their views. Private parties were free to create and shape their relations in compliance with the principle of freedom of economic activity that governed commercial relations in the free market in a democratic society. 67. The Government considered that the measures taken in the present case had served the legitimate aim of protection of the rights of others, namely the publishers of the newspapers concerned.", "68. As to the lawfulness of the restrictions imposed on the applicant, the Government stressed that they had a legal basis in section 36 §§ 2 and 4 of the Press Act. The domestic courts, when examining the newspaper’s refusal to publish the advertisement, had examined its legal grounds. They had found that the refusal was in compliance with the said provision, given that the proposed advertisement was incompatible with the newspaper’s editorial profile. 69.", "The Government further opined that the difficulties in the interpretation of this provision referred to in the Supreme Court’s decision of 2005 and judgments of 2007 had had no impact on the lawfulness of the refusal in the present case. Those difficulties had arisen essentially because prior to the cases brought before the courts by the applicant there had been no judicial practice concerning the interpretation to be given to section 36 of the Press Act. The applicant’s cases were the first occasion for the domestic courts to examine what balance should be struck between, on the one hand, the economic freedom of newspaper publishers and, on the other, private parties’ freedom of expression in the context of information of a commercial nature. This absence of relevant judgments had resulted in doubts as to whether publishers were obliged to accede to each and every request to publish a paid advertisement in a newspaper or had a right to refuse to do so. The Supreme Court had developed its jurisprudence in this matter solely on the basis of the cases brought by the applicant.", "That case‑law should be regarded as established and would serve in the future as a basis for decisions in further cases of the same kind. 70. They further argued that the applicant should have known that publishers were allowed to refuse to publish an advertisement subject to the requirements that it was contrary to the law or the principles of social co‑existence, or incompatible with a publication’s editorial profile. These requirements had never been doubted, either by legal scholarship or the judiciary. Rzeczpospolita’s refusal to publish the applicant’s advertisement had been based on two of these requirements, namely inconsistency with the editorial profile and the character of the newspaper.", "The Government concluded that the relevant law was formulated with sufficient precision for the applicant to foresee the consequences of his actions, namely that the publication of his advertisement could be refused on legal grounds. 71. As to the issue of necessity in a democratic society, the Government argued that it was essential to balance the applicant’s freedom of expression against the freedom of expression of the press and the publishers’ freedom of economic activity. The refusal of the newspaper Rzeczpospolita to publish the applicant’s advertisement had not prevented him from either advertising or selling his book. There had been other easily accessible means of informing the public about his product, such as Internet advertising, setting up his own Internet website, launching an Internet blog, signing up with social networks, printing and distributing leaflets and posters, organising meetings with the public, or launching his own newspaper or other publication.", "Hence, the general public had been informed of the book despite the refusal to publish the applicant’s advertisement. 72. The Government submitted that the reasons given by the courts in the present case had been relevant and sufficient. They had found that the proposed advertisement was incompatible with Rzeczpospolita’s editorial profile as a serious newspaper dealing with legal, economic and social issues, and which was politically neutral and objective, conveying information in a proper and respectful manner and avoiding the publication of scandalous and sensationalist texts. The courts had observed that the advertisement concerned the editor-in-chief and the publisher of a rival newspaper.", "Publishing the advert could have created the impression that Rzeczpospolita shared the author’s views and could thus have called its objectivity into question. 73. The Government further asserted that publishing the advertisement would have been not only contrary to the law but also in breach of professional ethics. The courts had further been of the view that imposing on the newspaper the obligation to publish it would also have infringed the publisher’s right to decide on its editorial content. 74.", "The Government concluded that the measures complained of had been justified by a pressing social need and were proportionate and therefore compatible with the requirements of Article 10 of the Convention. 75. The applicant submitted that the refusal to publish a paid advertisement by Rzeczpospolita, which had subsequently been endorsed by the courts, had breached his right to freedom of expression guaranteed by Article 10 of the Convention. His book concerned issues of public concern and interest, given that Gazeta Wyborcza was a powerful newspaper which played an important role in shaping the political views and attitudes of its numerous readers. The book aimed to present the general public with significant facts concerning the manner in which that newspaper had been created and how it had risen to its position of significance and power.", "No reviews of his book had ever been published in the printed media. The applicant was of the view that this was most likely to be because the book had been embarrassing for the publishers of Gazeta Wyborcza, who had been sufficiently feared and respected to be able to prevent anything hostile to it being published in the press. For an effective exercise of the freedom of expression and for a genuine political debate among citizens it was important that views and facts ignored or silenced by the mainstream media would be allowed to see the light of day. The applicant had been prevented from publishing the advertisement in Rzeczpospolita and also in a number of other newspapers. The fact that he had been silenced in that way breached both the Constitution and the Convention.", "(b) The Court’s assessment 76. The applicant complains that the refusal to publish a paid advertisement by Rzeczpospolita, breached his right to the freedom of expression guaranteed by Article 10 of the Convention. The Court observes that the applicant could not publish an advertisement in the Rzeczpospolita newspaper, owned by a limited liability company, as the publisher refused to publish that advertisement. Subsequently, the civil courts examined the applicant’s claim for a decision ordering that newspaper to publish the advertisement. The courts found against him.", "The Court notes at the outset that the application concerns the outcome of a dispute between two private parties. In the domestic proceedings the applicant argued that the newspaper was under a positive obligation to publish a paid advertisement. The newspaper publisher relied on its freedom from external interference in the exercise of its freedom of expression and the courts endorsed this position. The Court is of the view that in such a situation the right invoked by the applicant has to be interpreted and applied with due consideration for the rights of the press protected under Article 10 of the Convention. 77.", "The Court has previously examined cases involving access to particular venues or forums for the purposes of exercising the freedom of expression. It has held that, notwithstanding the importance of that freedom, Article 10 does not bestow any freedom of forum for the exercise of that right as regards entry to private property, or even, necessarily, to all publicly owned property (see Appleby and Others, cited above). The same finding was reiterated in Berladir and Others v. Russia, no. 34202/06, § 58, 10 July 2012, mutatis mutandis. In the examination of such cases the Court took into consideration whether the bar on access to a given forum had the effect of preventing any effective exercise of freedom of expression.", "The instant case, however, concerns not a private venue, but a media whose fundamental freedom of expression is protected under Convention. 78. The Court has examined a number of cases concerning restrictions on advertisement in television (see VgT Verein gegen Tierfabriken v. Switzerland, no. 24699/94, ECHR 2001‑VI, Animal Defenders International v. the United Kingdom [GC], no. 48876/08, 22 April 2013).", "In those cases the applicants were prevented from having their advertisements broadcast by a general prohibition imposed on certain types of political speech. The Court considered that a prohibition of an advertisement by way of a general measure could be justified under Article 10 of the Convention (see Animal Defenders International, cited above, § 106). The instant case differs from the above mentioned in that the general rules examined so far by the Court in its case-law affected directly not only the potential advertisers but also the broadcasters. In the present case the refusal to publish the advertisement sought by the applicant did not result from a general ban on broadcasting specific types of commercial speech but from a decision by the newspaper’s publisher. 79.", "The Court has already held that privately owned newspapers must be free to exercise editorial discretion in deciding whether to publish articles, comments and letters submitted by private individuals or even by their own staff reporters and journalists. The State’s obligation to ensure the individual’s freedom of expression does not give private citizens or organisations an unfettered right of access to the media in order to put forward opinions (see, mutatis mutandis, Murphy v. Ireland, no. 44179/98, § 61, 10 July 2003; Saliyev v. Russia, no. 35016/03, § 52, 21 October 2010). In the Court’s view these principles apply also to the publication of advertisements.", "An effective exercise of the freedom of the press presupposes the right of the newspapers to establish and apply their own policies in respect of the content of advertisements. It also necessitates that the press enjoys freedom to determine its commercial policy in this respect and to choose those with whom it deals. 80. In the present case it has not been argued, let alone shown, that the applicant had any difficulties in publishing his book or that the authorities tried in any way to prevent or dissuade him from publishing it, or that, more generally, the media market in Poland was not pluralistic. 81.", "The Court accepts that the issues examined in that book may contribute to a debate about the mission of the press in Polish society. The analysis of the political and institutional origins of a national newspaper, the financial dealings of its publisher and analysis and comment about that newspaper’s functioning and role in society were topics of public interest. However, the character of the issues explored by that book does not detract from the fact that the paid advertisements proposed by the applicant were essentially aimed at promoting the distribution and sales of his book. Hence, they were primarily designed to further the applicant’s commercial interests. 82.", "At no point was the applicant prevented from disseminating information about the book by any means he wished. Indeed, he created his own Internet website, through which he informed the general public about the book, its content and its potential significance for the public debate. 83. In the present case the applicant had recourse to civil proceedings. He requested the courts to order that newspaper to publish a paid advertisement for his book.", "The domestic courts examined his case under the provisions of the Press Act 1984. Hence, the domestic law provided an effective procedural framework within which the applicant could seek to have the substantive issues involved in his case determined by judicial authorities. 84. The courts were well aware of the difficulties arising in the interpretation of the relevant provisions of the Press Act 1984. They were of the view that the crux of the case lay in the necessity to adjudicate on conflicting interests and rights: the applicant’s right to disseminate ideas on the one hand and the constitutionally and internationally guaranteed rights and freedoms of the publisher, such as the right to freedom of expression and freedom of commercial activity on the other.", "As to whether the domestic courts correctly applied those provisions, the Court reiterates that the application and interpretation of the domestic law fall primarily within the competency of the domestic authorities, which are, in the nature of things, particularly well placed to settle the issues arising in this connection (compare, inter alia, Barthold v. Germany, 25 March 1985, § 48, Series A no. 90). The Warsaw Regional Court, in its judgment of 30 January 2007, had regard to the publisher’s freedom to shape the newspaper’s editorial profile. Subsequently, the Court of Appeal, in its judgment of 7 January 2008, essentially shared that view. Ultimately, the Supreme Court, when examining the applicant’s cassation appeal, observed that the press was governed by commercial freedom.", "It was of the opinion that publishers could not be held to be obliged to publish paid advertisements simply at the request of their clients. That court was of the view that the principles governing free speech were also applicable to commercial speech. The Supreme Court referred to its own judgments given in other cases brought before it by the applicant. It noted that the freedom of expression could be restricted in compliance with the principle of proportionality enshrined in the Constitution. 85.", "The Court is therefore satisfied that the courts carefully weighed the applicant’s interests against the legitimate rights of the publishers, such as their own freedom of expression and economic freedom (compare and contrast Khurshid Mustafa and Tarzibachi v. Sweden, no. 23883/06, § 48, 16 December 2008, where no such exercise was performed). In addition, the Supreme Court was aware of the human rights issues arising in the case and had recourse to the Court’s interpretation of the positive obligations arising in connection with the freedom of expression in the case of Appleby v. the United Kingdom. Furthermore, the Supreme Court had regard to the principle of proportionality enshrined in Article 31 of the Constitution, which covered all situations in which the exercise of individual rights was restricted. Hence, the Court accepts that the analysis made by the domestic courts was fully compatible with the Convention standards.", "86. The Court agrees with the analysis of the case carried out by the domestic courts. It finds that their conclusion that, in a pluralistic media market press, publishers should not be obliged to carry advertisements proposed by private parties is compatible with the freedom of expression standards under the Convention. 87. Having regard to the circumstances of the case seen as a whole, the Court is of the view that the State has not failed to comply with its obligation to secure to the applicant the freedom of expression guaranteed by Article 10 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 88. The applicant complained that his rights guaranteed in Article 6 § 1 were violated. He drew attention to the fact that the decisions of the Polish courts in several similar lawsuits he brought against different newspapers were inconsistent. 89.", "Article 6 § 1, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. The parties’ submissions 90. The Government reiterated that prior to the applicant’s cases there had been no similar cases brought to the attention of the Polish courts. Consequently, no judicial practice could have been created as regards the existence and scope of a newspaper’s obligations to publish paid advertisements. The Supreme Court examined a number of cases brought before it by the applicant and, in a number of decisions given between 2005 and 2009, consolidated its approach to the interpretation of section 36 of the Press Act 1984.", "It properly balanced the interests and freedoms involved in these cases, weighing the publisher’s freedom of expression and freedom of economic activity against the right to freedom of expression of the person wishing to publish paid advertisements in the printed media. 91. The applicant did not comment on the Government’s submissions. B. The Court’s assessment 92.", "In its recent Grand Chamber judgment in the case of Nejdet Şahin and Perihan Şahin v. Turkey ([GC], no. 13279/05, 20 October 2011), the Court reiterated the main principles applicable in cases concerning the issue of conflicting court decisions (§§ 49-58). These may be summarised as follows. (i) It is not the Court’s function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I).", "Likewise, it is not its function, save in the event of evident arbitrariness, to compare different decisions of national courts, even if given in apparently similar proceedings, as the independence of those courts must be respected (see Ādamsons v. Latvia, no. 3669/03, § 118, 24 June 2008). (ii) The possibility of conflicting court decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. Such divergences may also arise within the same court. That, in itself, cannot be considered contrary to the Convention (see Santos Pinto v. Portugal, no.", "39005/04, § 41, 20 May 2008, and Tudor Tudor, cited above, § 29). (iii) The criteria that guide the Court’s assessment of the conditions in which conflicting decisions of different domestic courts ruling at final instance are in breach of the fair trial requirement enshrined in Article 6 § 1 of the Convention consist in establishing whether “profound and long‑standing differences” exist in the case-law of the domestic courts, whether the domestic law provides for machinery for overcoming these inconsistencies, whether that machinery has been applied and, if appropriate, to what effect (see Iordan Iordanov and Others, cited above, §§ 49-50; see also Beian (no. 1), cited above, §§ 34‑40; Ştefan and Ştef v. Romania, nos. 24428/03 and 26977/03, §§ 33-36, 27 January 2009; Schwarzkopf and Taussik, cited above, 2 December 2008; Tudor Tudor, cited above, § 31; Ştefănică and Others, cited above, § 36; and Teresa Kowalczyk v. Poland, no. 23987/05, § 43, 11 October 2011).", "(iv) The Court’s assessment has also always been based on the principle of legal certainty which is implicit in all the Articles of the Convention and constitutes one of the fundamental aspects of the rule of law (see, amongst other authorities, Beian (no. 1), cited above, § 39; Iordan Iordanov and Others, cited above, § 47; and Ştefănică and Others, cited above, § 31); (v) The principle of legal certainty guarantees, inter alia, a certain stability in legal situations and contributes to public confidence in the courts. The persistence of conflicting court decisions, on the other hand, can create a state of legal uncertainty likely to reduce public confidence in the judicial system, whereas such confidence is clearly one of the essential components of a State based on the rule of law (see Paduraru v. Romania, § 98, no. 63252/00, ECHR 2005-XII (extracts); Vinčić and Others v. Serbia, nos. 44698/06 and others, § 56, 1 December 2009; and Ştefănică and Others, cited above, § 38).", "(vi) However, the requirements of legal certainty and the protection of the legitimate confidence of the public do not confer an acquired right to consistency of case-law (see Unédic v. France, no. 20153/04, § 74, 18 December 2008). Case-law development is not, in itself, contrary to the proper administration of justice since a failure to maintain a dynamic and evolutive approach would risk hindering reform or improvement (see Atanasovski v. “the Former Yugoslav Republic of Macedonia”, no. 36815/03, § 38, 14 January 2010). 93.", "Turning to the present case, the Court notes that the applicant argued that his separate cases concerning his claim to have identical advertisements about his book published had been decided differently. 94. Firstly, the Court notes that the applicant lodged seven identical claims against the publishers of various newspapers with the Warsaw Regional Court. That court, by judgments dated 23 January 2004, 11 May 2005, 26 May 2005, 28 January 2004 and 28 March 2006, dismissed his actions against Nasz Dziennik, Wprost, Metropol, Newsweek and Polityka respectively. Having regard to the uniformity of those decisions, it cannot be said that there were discrepancies in that court’s approach to identical cases.", "Following the applicant’s appeal, the Warsaw Court of Appeal ordered two of the defendant newspapers, Wprost and Metropol, to publish the advertisement concerned. Those judgments became final as no cassation appeals against them were lodged by the publishers with the Supreme Court. That court was not therefore given an opportunity to pronounce on the issues involved in them. The Court further notes that the appeal against the publisher of Newsweek was rejected on formal grounds. That case is therefore of no relevance for the assessment of the present complaint.", "95. The Court further notes noted that the Warsaw Court of Appeal, when examining the applicant’s appeal against the publishers of Nasz Dziennik, noted that the interpretation of section 36 of the Press Act 1984 could give rise to difficulties. It described those difficulties in detail in the legal question concerning Article 391 § 1 of the Code of Civil Procedure which it decided to submit to the Supreme Court (see paragraphs 35-37 above). The Court is therefore satisfied that under the provisions of the Polish civil procedure there was a mechanism available to the courts for the purposes of clarifying major interpretation difficulties and harmonising the judicial approach to those difficulties by way of a decision of the highest judicial authority, and that that mechanism was resorted to in the present case. Hence, the criteria relied on by the Court when dealing with inconsistencies in judicial practice were thereby complied with (see Iordan Iordanov and Others v. Bulgaria, no.", "23530/02, § 49-50). It is true that ultimately the Supreme Court refused to answer that question. However, as it was of the view that such an answer was not necessary for the purposes of that case, it cannot be said to have been unjustified. The Court of Appeal noted in its question that the freedom of expression of the person trying to place an advertisement had to be weighed against the publisher’s commercial freedom. It further observed that if decisive weight was given to the publisher’s freedom as to the choice of advertisements to be published, a form of unlimited control of content by private commercial entities could result, to preventive censorship.", "96. Moreover, there was no arbitrariness in the decisions given in the present case. The applicant’s concerns arising in connection with his right to freedom of expression in the context of his case against the Rzeczpospolita newspaper were examined in depth at three levels of jurisdiction, including the Supreme Court. That court accepted the applicant’s cassation appeal for an examination on the merits, a decision given only in respect of cases raising important legal issues. It is also significant that the Supreme Court in the present case relied on its own analysis of the issues involved in the interpretation of Article 36 made in the applicant’s previous cases (III 67/05, I CSK 351/06, I CSK 376/06, referred to above).", "It therefore sought thereby to ensure uniformity in its approach in similar cases. Finally, the applicant’s cases which serve as a background to the present case, and which were brought before the Supreme Court by way of cassation appeals, were decided on the merits in the same manner as the applicant’s claim to have the advertisements published and were ultimately dismissed (the cases against Nasz Dziennik I CSK 351/06 and Polityka I CSK 376/06). 97. The Court further notes the Government’s argument that the decisions concerning the existence of an obligation on newspaper publishers to publish each and every paid advertisement proposed to them was very few and that practically all of them had been given in the applicant’s cases (see paragraph 90 above). It cannot therefore be said that that there were “profound and long standing differences” in the case-law, or that distinct strands of jurisprudence had developed, leading to similar cases being decided differently (compare and contrast Iordan Iordanov and Others v. Bulgaria, referred to above).", "98. In such circumstances, it cannot be said that there were differences in the relevant case-law that had resulted in judicial uncertainty. 99. 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 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS 100. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement within the meaning of Article 6 § 1 of the Convention. 101. However, the Court notes that the applicant failed to lodge a complaint about the breach of the right to a trial within a reasonable time under the Law of 17 June 2004 on complaints about a breach of the right to an investigation conducted and supervised by a Prosecutor and to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki) (see Charzyński v. Poland (dec.) no. 15212/03, 1 March 2005).", "102. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. IV. OTHER ALLEGED VIOLATION OF THE CONVENTION 103. The applicant further complained under Article 6 of the Convention, alleging unfairness of the civil proceedings against him in that the Supreme Court had failed to address his arguments properly.", "104. The Court finds that the facts of the case do not disclose any appearance of a violation of the Convention. It follows that these complaints are manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 10 of the Convention admissible and the remainder of the application inadmissible; 2.", "Holds that there has been no violation of Article 10 of the Convention. Done in English, and notified in writing on 16 July 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosIneta ZiemeleRegistrarPresident" ]

[ "THIRD SECTION CASE OF CZARNECKI v. POLAND (Application no. 75112/01) JUDGMENT STRASBOURG 28 July 2005 FINAL 28/10/2005 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Czarnecki v. Poland, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Mr B.M. Zupančič, President,MrJ.", "Hedigan,MrsM. Tsatsa-Nikolovska,MrV. Zagrebelsky,MrL. Garlicki,MrE. Myjer,MrDavid Thór Björgvinsson, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 5 July 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 75112/01) 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 Marek Czarnecki (“the applicant”), on 11 January 2000. 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of the Foreign Affairs. 3.", "On 16 March 2004 the President of the Third Section decided to communicate the application 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 I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1965 and lives in Lublin, Poland.", "A. The pre-trial detention 5. On 3 January 1996 the applicant was arrested by the police. On 5 January 1996 the Lublin District Prosecutor charged the applicant with homicide and larceny and remanded him in custody. The prosecutor considered that the applicant's detention was necessary because there existed the danger of pressure being brought to bear on witnesses.", "In addition, the charges laid against the applicant carried a significant danger to society at large. 6. On 22 February 1996 the applicant applied for release but on 23 February 1996 the prosecutor dismissed it. 7. On 13 November 1996 the applicant was indicted before the Lublin Regional Court (Sąd Wojewódzki).", "8. On 27 October, 8 and 10 December 1997 and 15 January and 25 February 1998 the Lublin Regional Court held hearings in the applicant's case. During those hearings the court extended the applicant's pre‑trial detention. 9. On 31 March 1998 the Lublin Regional Court delivered a judgment in which it convicted the applicant as charged and sentenced him to twelve years' imprisonment.", "10. The applicant appealed against his conviction and on 13 August 1998 the Lublin Court of Appeal (Sąd Apelacyjny) quashed his conviction and remitted the case to the Lublin Regional Court. 11. On 15 September and 17 December 1998 the trial court held hearings. On 15 December 1998 the court again prolonged the applicant's detention relying on strong suspicion that the applicant committed the crime and on the gravity of charges.", "12. On 23 March 1999 the Lublin Regional Court extended the applicant's detention. The applicant appealed against this decision but his appeal was dismissed on 14 April 1999 by the Lublin Court of Appeal. The appellate court gave the following reasons for its decision: “Marek Czarnecki is charged with murder for which Article 148 § 1 of the Criminal Code provides a prison term exceeding 8 years. Therefore, according to Article 258 § 2 of the Code of Criminal Procedure the pre-trial detention can be justified by the heavy sentence: in those circumstances it is not necessary to give other grounds for the continued pre-trial detention such as the risk of flight or obstructing the proper course of proceedings.", "Furthermore, one cannot agree with the accused's submission that the evidence collected in his case does not make it probable that he committed the crime. The Court of Appeal quashed his conviction because there were errors in the proceedings before the court of first instance as a result of which it was impossible to make it 100% certain that the accused had committed the crime. The absolute certainty, which is necessary for a conviction, should be distinguished from a probability that the crime was committed. The court is of the view that the evidence collected in the case shows that there is a significant probability that the accused committed the crime with which he is charged. Accordingly, the requirement of Article 249 § 1 of the Code of Criminal Procedure is fulfilled.", "As there are no reasons for release from the pre-trial detention (259 § 1 of the Code of Criminal Procedure) it was necessary to decide as in the operative part.” 13. The applicant appealed against the decision of 14 April 1999 but his appeal was rejected on 10 May 1999 by the President of the Lublin Court of Appeal because it was not provided by the law. The applicant filed a further appeal to the Supreme Court (Sąd Najwyższy) but on 18 August 1999 it rejected his appeal for the same reason. 14. The applicant made a fresh application for release but it was dismissed on 14 September 1999 by the Lublin Regional Court.", "The court gave the following reasons for its decision: “Marek Czarnecki is charged with the commission of a crime described in Article 148 § 1 of the Criminal Code. In his application he points to the prolonged criminal proceedings against him and the necessity to provide care for his parents. The Regional Court is of the view that both arguments submitted by the accused should be dismissed. It is not the Regional Court's fault that the court proceedings are prolonged. Recently, it was the accused himself who torpedoed the proceedings which were to take place during the last hearing.", "As for the difficult situation of the accused's parents, it is not that tragic since the accused's brother has recently moved out of their flat and he would not have done it if the situation had been worrying. It should further be stated that a charge concerning the commission of a crime and a possible heavy prison sentence in themselves constitute grounds for pre‑trial detention. Taking the above into consideration the Regional Court has not found any grounds for changing the preventive measure.” 15. On 28 September 1999 the Lublin Regional Court extended the applicant's detention until 30 December 1999. The Court gave the following reasons for its decision: “Marek Czarnecki is charged with the commission of a crime which carries a prison sentence exceeding 8 years.", "The evidence collected in the case shows that there is a significant probability that the accused has committed the crime with which he is charged. Taking the above into consideration and the lack of the grounds listed in Article 259 § 1 of the Code of Criminal Procedure, as well as the necessity to secure the proper conduct of the court proceedings it was decided as in the operative part.” 16. In 1999 the trial court held several hearings at which it heard witnesses. 17. On 25 April, 12 September and 28 December 2000 as well as on 25 March, 29 May and 7 August 2001 the Lublin Regional Court further prolonged the applicant's detention repeating reasons for the detention previously given.", "18. The applicant's numerous appeals and applications for release were unsuccessful. 19. It appears that at the hearing held on 10 September 2001 the prosecutor dropped the charges of homicide against the applicant. 20.", "On 10 September 2001 the Lublin Regional Court gave judgment. It acquitted the applicant of homicide, convicted him of larceny and sentenced him to one year and six months' imprisonment. On the same date the applicant was released from the detention. B. The prison term 21.", "Between 27 February and 18 May 1997 the applicant served a prison sentence resulting from a conviction in another case. II. RELEVANT DOMESTIC LAW A. The Code of Criminal Procedure 1969 22. The Code of Criminal Procedure 1969, which remained in force until 1 September 1998, listed as preventive measures, inter alia, detention on remand, bail and police supervision.", "Article 209 of the Code, which set out general grounds justifying the imposition of preventive measures, provided as follows: “Preventive measures may be imposed in order to secure the proper course of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.” 23. Furthermore, the Code of Criminal Procedure allowed authorities a margin of discretion as to whether to continue the enforcement of preventive measures. Detention on remand was regarded as the most severe preventive measure. Article 213 of the Code provided as follows: “A preventive measure shall be immediately quashed or changed if the grounds therefore have ceased to exist or if new circumstances have arisen, which justify quashing a given measure or replacing it with one that is either more or less severe.” Article 225 of the Code provided: “Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of these measures, are considered adequate.” Article 217 § 1 of the Code, in the version after 1 January 1996, provided insofar as relevant: “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 he has no permanent abode [in Poland]; or (2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper conduct of proceedings by any other unlawful means; or Paragraph 2 of Article 217 then read: “If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years' imprisonment, or if a court of first instance has sentenced him to at least three years' imprisonment, the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.” Article 218 provided: “If there are no special reasons to the contrary, detention on remand should be lifted, in particular, if: (1)o it may seriously jeopardise the life or health of the accused; or (2) oit would entail excessively burdensome effects for the accused or his family.” 24. Until 4 August 1996, when the Code of Criminal Procedure was amended, Polish law did not set out any statutory time-limits concerning detention on remand in court proceedings but only in respect of the investigative stage.", "Article 222 of the Code of Criminal Procedure, as applicable after 4 August 1996, provided insofar as relevant: “3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning offences. In cases concerning serious offences [offences for the commission of which a person was liable to a sentence of a statutory minimum of at least 3 years' imprisonment] this period may not exceed two years. 4. In particularly justified cases the Supreme Court may, on an application made by the court competent to deal with the case, ... prolong detention on remand for a further fixed period exceeding the time-limits set in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.” Subsequently, paragraph 4 was extended to include also “other significant circumstances, which could not be overcome by the organs conducting the proceedings”.", "B. The Code of Criminal Procedure 1997 25. 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). 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.” 26. 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.” 27.", "The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant: “1. Detention on remand shall not be imposed if another preventive measure is sufficient.” Article 259, in its relevant part, reads: “1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would: (1) seriously jeopardise his life or health; or (2) entail excessively harsh consequences for the accused or his family.” 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.", "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 camnot 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, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.” On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested with the court of appeal within whose jurisdiction the offence in question has been committed. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 29. The applicant complained that the length of his detention on remand had been unreasonable. 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.” 30. The Government contested that argument.", "A. Admissibility 31. 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 32. The applicant did not comment on the period to be taken into consideration. The Government submitted that the relevant period began on 3 January 1996 and ended on 10 September 2001. However, they noted that the period between the conviction at the first-instance and the remittal of the case by the appellate court should be subtracted from the total period of time to be taken into consideration.", "33. The Court agrees that the relevant period lasted from 3 January 1996 to 31 March 1998 (when the applicant was convicted by the first‑instance court) and from 13 August 1998 (when the conviction was quashed) to 10 September 2001 (when he was released from the detention). According to the Convention organs' case-law, a person convicted at the 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).", "Furthermore, the Court notes that the period between 27 February and 18 May 1997 must also be subtracted from the total period of the applicant's detention since during this time he had been serving a sentence resulting from another conviction. 34. The period to be taken into consideration therefore lasted five years and one month. 2. The reasonableness of the length of detention (a) Arguments before the Court 35.", "The applicant submitted that the length of his pre-trial detention had been unreasonably long. The prolonged detention led to his poverty and serious health problems. 36. The Government submitted that the applicant's pre-trial detention satisfied the requirements of Article 5 § 3. It was justified by “relevant” and “sufficient” grounds.", "These grounds were, in particular, the gravity of charges against the applicant as well as the risk that he might obstruct the course of the proceedings. The Government further argued that the domestic authorities showed due diligence, as required in cases against detained persons. (b) The Court's assessment (i) Principles established under the Court's case-law 37. Under the Court's case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features.", "Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among other authorities, W. v. Switzerland, judgment of 26 January 1993, Series A no. 254‑A, p. 15, § 30, and Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‑XI). The Convention case-law has developed four basic acceptable reasons for refusing bail: the risk that the accused will fail to appear for trial; the risk that the accused, if released, would take action to prejudice the administration of justice or commit further offences or cause public disorder (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 59, ECHR 2003‑IX).", "The danger of absconding cannot be gauged solely on the basis of the severity of the possible sentence; it must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify pre-trial detention. In this context regard must be had in particular to the character of the person involved, his morals, his assets, his links with the State in which he is being prosecuted and his international contacts (see W. v. Switzerland, cited above, § 33 with further references and Smirnova, cited above, § 60). 38. 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 facts arguing 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 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 of the true facts mentioned 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. 39. 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. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no.", "26772/95, § 153, ECHR 2000‑IV, and Jablonski v. Poland, no. 33492/96, § 80, 21 December 2000). (ii) Application of the principles to the circumstances of the present case 40. The Court observes that in the present case the authorities first relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged, the very serious nature of these charges and the need to secure the proper conduct of the proceedings. They repeated those grounds in all their decisions.", "Later, the courts relied on the severity of the anticipated sentence. That, in the domestic court's opinion, warranted the continued detention of the applicant and absolved them from considering other grounds for detention (see paragraph 12 above). In consequence, during the subsequent two‑and‑half year long period of the detention, the authorities failed to advance any new grounds for prolonging the most serious preventive measure against the applicant. 41. The Court accepts that the suspicion against the applicant of having committed the offences and the need to secure the proper conduct of the proceedings might initially justify his detention.", "However, with the passage of time, these grounds became less relevant. Therefore the Court does not consider that these grounds, repeated in all the decisions, even taken with the argument of the severity of the anticipated sentence, can suffice to justify the entire period in issue. 42. The Court further notes that there is no express indication that during the entire period of the applicant's pre-trial detention the authorities did envisage the possibility of imposing on him other preventive measures – such as bail or police supervision – explicitly foreseen by the Polish law to secure the proper conduct of the criminal proceedings. In this context the Court would emphasise that under Article 5 § 3 the authorities, when deciding whether a person would be released or detained, are obliged to consider alternative measures of ensuring his appearance at the trial.", "Indeed, that Article lays down not only the right to “trial within a reasonable time or release pending trial” but also provides that “release may be conditioned by guarantees to appear for trial” (see Jablonski, cited above, § 83). 43. In the circumstances, the Court concludes that the grounds given by the domestic authorities were not “sufficient” and “relevant” to justify the applicant's being kept in detention for five years and one month. 44. Furthermore, the Court cannot but note that even though the applicant was indicted in November 1996, it took the trial court almost a year to hold the first hearing (paragraphs 8 and 9 above).", "The Government failed to provide any explanation as to this period during which the trial court apparently remained inactive. That delay should be considered significant and it cannot therefore be said that the authorities displayed “special diligence” in the conduct of the criminal proceedings against the applicant. There has therefore been a violation of Article 5 § 3 of the Convention. II. 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. Non-pecuniary damage 46. The applicant claimed 300,000 Polish zlotys in respect of non‑pecuniary damage. 47. The Government submitted that this claim was exorbitant and asked the Court to hold that finding of a violation would in itself constitute sufficient just satisfaction. 48.", "The Court accepts that the applicant has certainly suffered non‑pecuniary damage – such as distress and frustration resulting from the protracted length of his detention– which is not sufficiently compensated by the finding of violation of the Convention. Making its assessment on an equitable basis, the Court awards the applicant 5,000 euros under this head. B. Default interest 49. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the 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 according to Article 44 § 2 of the Convention, EUR 5,000 (five thousand 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 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 28 July 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerBoštjan M. ZupančičRegistrarPresident" ]

[ "FIFTH SECTION CASE OF LYUBOMIR POPOV v. BULGARIA (Application no. 69855/01) JUDGMENT STRASBOURG 7 January 2010 FINAL 07/04/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Lyubomir Popov v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Karel Jungwiert,Rait Maruste,Mark Villiger,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska, judges,Pavlina Panova, ad hoc judge,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 1 December 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "69855/01) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Lyubomir Milenkov Popov (“the applicant”), on 3 May 2000. 2. The applicant was represented by Mrs N. Sedefova, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs M. Kotseva, of the Ministry of Justice. 3.", "The applicant alleged that the authorities had failed to comply with final judgments and decisions given in the framework of restitution proceedings and had failed to duly recognise and restore his property rights to the properties in respect of which he had sought restitution. 4. On 24 October 2005 the Court 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.", "Judge Kalaydjieva, the judge elected in respect of Bulgaria, withdrew from sitting in the case. On 30 January 2009 the Government appointed in her stead Mrs Pavlina Panova as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1 of the Rules of Court). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1933 and lives in Plovdiv.", "7. In 1991 the Bulgarian Parliament adopted the Agricultural Land Act (“the ALA”, see for more detail paragraphs 83-95 below) which provided for the restitution of collectivised agricultural land. 1. Restitution of land previously owned by the applicant (a) Request for restitution of property 8. On 4 March 1992 the applicant requested from the Pazardzhik agricultural land commission (“the land commission” or “the commission”) restitution of nine plots of agricultural land which he had previously owned in the area around the village of Govedare, totalling 44,029 square metres (request no.", "12004/04.03.1992). (b) First decision of the land commission 9. By a decision of 18 December 1992 (no. 42\\3/18.12.1992) the commission recognised and restored “in actual boundaries” the property rights of the applicant in respect of seven of the plots, in particular those under nos. 1-5, 7 and 8 in his request of 4 March 1992, which totalled 41,299 square metres.", "The applicant was informed of the decision by a letter of 22 April 1993. The decision was subject to appeal within fourteen days of receipt. As no appeal was lodged against it the decision entered into force. (c) Second decision of the land commission and the appeal against it 10. Despite the aforesaid decision, the land commission issued a second decision dealing with the same subject matter, which the applicant received by a letter of 28 December 1993.", "The decision’s number was identical with that of the first decision issued by the land commission (see paragraph 9 above). 11. By this decision, however, the commission recognised and restored the property rights of the applicant in respect of only five of the plots he had requested, namely those under nos. 1-5 in his request of 4 March 1992. The commission refused to recognise the property rights of the applicant in respect of plots nos.", "7 and 8, with respective areas of 6,600 and 4,000 square metres. The grounds for the refusal were the following: “[These properties were] claimed [by means of] a certified declaration despite the existence of a [conflicting] property deed of 1954.” 12. The applicant appealed against this decision. 13. By amendment of 1995 to the Agricultural Land Act (section 14 §§ 6 and 7) agricultural land commissions were provided with the power to amend, in certain circumstances, their decisions which had entered into force (see paragraph 85 below).", "14. By a decision of 12 September 1995 the Pazardzhik District Court declared null and void the land commission’s second decision communicated to the applicant by letter of 28 December 1993 (see paragraph 10 above). The domestic court found, inter alia, that: “the [land commission] violated the law by adopting decision no. 42\\3/18.12.1992 in its version [communicated by] letter no. 668/28.12.1993, [as it] did not have the power to do so.", "The possibility for the [commission] to amend [its] decisions which have entered into force ... [was introduced] with the [latest] amendment to the [ALA]. ... [The] first administrative act [communicated by letter of 22 April 1993 had] entered into force and had [already] determined the ownership of the properties of ... the applicant, which were [recognised and] restored in their entirety.” 15. No appeal was lodged against the decision, so it entered into force on 20 September 1995. (d) Third decision of the land commission and the appeal against it 16. Despite the aforesaid decision of the District Court, the land commission adopted another decision dealing with the same subject matter.", "17. By a decision of 7 December 1995 (no. 48\\15/07.12.1995) it readopted the text of its second decision, which had been declared null and void. It expanded its reasoning for refusing to recognise the applicant’s property rights in respect of plots nos. 7 and 8 as follows: “In connection with the possibility under section 14 §§ 6 and 7 of the [ALA] and the decision of the District Court [of 12 September 1995], the [commission] confirms its refusal: [These properties were] claimed [by means of] a certified declaration despite the existence of a [conflicting] property deed of 1954.” 18.", "On an unspecified date the applicant appealed against this decision. 19. In a final judgment of 26 May 1997 the Pazardzhik District Court declared it null and void. The domestic court found that the commission had failed to justify the grounds for amending its previous decision regarding the same properties, as there had existed no new facts or documents 20. On 3 September 1997 the applicant deposited a copy of the aforementioned judgment with the land commission and insisted that it comply with its first decision of 18 December 1992, which was still in force.", "(e) Fourth decision of the land commission and the appeal against it 21. Before the appeal against the commission’s third decision was heard, the latter issued another decision dealing with the same subject matter. 22. By a decision of 20 March 1997 (no. 5-A111/20.03.1997) it apparently reiterated its refusal to recognise the applicant’s property rights in respect of plots nos.", "7 and 8. The applicant appealed against this decision. 23. On an unspecified date in the beginning of 1998, the Pazardzhik District Court heard the applicant’s appeal and declared null and void the decision of 20 March 1997. No appeal was lodged against this judgment so it entered into force on an unspecified date.", "24. On 8 May 1998 the applicant deposited a copy of the aforementioned judgment with the land commission. He demanded compliance with it and recognition of his property rights in accordance with the first decision of 18 December 1992. (f) Fifth and sixth decisions of the land commission and the appeal against them 25. Before the appeal against the fourth decision of the land commission was heard, the latter issued another decision dealing with the same subject matter.", "26. By a decision of 16 October 1997 (no. 8A055/16.10.1997) it readopted the text of its third decision of 7 December 1995, which had been declared null and void by the Pazardzhik District Court on 26 May 1997 (see paragraphs 17 and 19 above). It expanded its reasoning for refusing to recognise the applicant’s property rights in respect of plots nos. 7 and 8 by stating, in addition to the previously used reasoning, the following: “[This decision] rescinds decision no.", "48\\15/07.12.1995 ... in compliance with order no. RD-09-1200 of 28.08.1997 of the Minister of [Agriculture] for a complete revision of the land redistribution plan for the Govedare area. In compliance with [the decision of 26 May 1997] of the Pazardzhik District Court.” 27. The applicant appealed against this decision on 21 November 1997. 28.", "Instead of forwarding the appeal to the District Court the land commission issued another decision dealing with the same subject matter. 29. By decision of 1 June 1998 (no. 2B175/01.06.1998) it readopted the text of its above-mentioned fifth decision (see paragraph 26 above). It only expanded its reasoning for refusing to recognise the applicant’s property rights in respect of plots nos.", "7 and 8 by stating, in addition to the previously used reasoning, the following: “[This decision] rescinds [the] decision [of 16 October 1997] of the [land commission] in connection with appeal no. 4266/1997 lodged on the basis of § 31 of the [ALA]. The [commission] confirms the basis for its refusal. No new facts or documents have been presented.” 30. The applicant appealed against this decision on 16 September 1998.", "31. By a letter of 10 September 1998 the applicant complained to the land commission about the numerous decisions it was issuing in respect of the same properties, of its continual disregard for the judgments in his favour and the constant need for him to appeal against each of the decisions. 32. By a judgment of 8 June 1999 the Pazardzhik District Court declared null and void the fifth and sixth decisions of the land commission, dated 16 October 1997 and 1 June 1998 (see paragraphs 26 and 29 above). The court found that by adopting these two decisions the commission was, in substance, amending its first decision of 18 December 1992 which had entered into force and which it did not have the power to amend.", "33. No appeal was lodged against the judgment, so it entered into force on 1 July 1999. (g) Seventh decision of the land commission 34. Despite the aforementioned judgments of the Pazardzhik District Court the land commission issued a seventh decision dealing partly with the same subject matter. 35.", "By a decision of 16 September 1999 (no. 7B148/16.09.1999) it recognised and restored the applicant’s property rights in respect of plots nos. 6 and 9 in his request of 4 March 1992. It also recognised his property rights in respect of plots nos. 7 and 8, but refused to restore them because of the following: “The judgment [of 8 June 1999 of the Pazardzhik District Court], which recognised the [applicant’s] property rights, entered into force after the land redistribution plan had been published in the Official Journal.", "[This decision] rescinds decision no. 39\\11 of 20.11.1992. [Subject to] compensation under section 10b § 1 of the [ALA].” 36. It is unclear whether the applicant appealed against this decision. (h) Latest developments 37.", "By a decision of 23 February 2005 the Pazardzhik Agriculture and Forestry Department (the former land commission) allotted to the applicant another plot in compensation for plot no. 7 and also awarded him compensation bonds. He appears to be satisfied with the compensation received. 38. At the time of the parties’ latest communications of 2006 he had not received any compensation for plot no.", "8. 2. Restitution of land previously owned by the applicant’s father and by both of his parents (a) First request for restitution of property 39. On 4 March 1992 (request no. 12007/04.03.1992) the applicant requested from the land commission the restitution of six plots of agricultural land which had previously been owned by his father in the area around the village of Govedare, totalling 63,101 square metres.", "The parties have not specified who the heirs of the applicant’s father were; it transpires from the documents that the applicant has three siblings. (b) First decision of the land commission 40. By decision of 18 December 1992 (no. 42\\3/18.12.1992) the commission recognised and restored the property rights of the heirs of the applicant’s father in respect of four of the plots, in particular, those under nos. 1, 2, 5 and 6, in his request of 4 March 1992, which totalled 34,401 square metres.", "The commission refused to recognise the property rights of the heirs of the applicant’s father in respect of plots nos. 3 and 4, which totalled 28,700 square metres. The grounds for the refusal were: “[Refusal to] recognise the property deeds [presented by] the inheritor – [the documents] are without notary certification for the transfer of the land.” 41. On an unspecified date the applicant appealed against this decision. 42.", "In a final judgment of 29 December 1993 the Pazardzhik District Court quashed the land commission’s decision in so far as it concerned plots nos. 3 and 4. It recognised the property rights of the heirs of the applicant’s father over those two plots and held that those properties were to be restored through a land redistribution plan. The District Court found, in particular, that the applicant’s father had acquired the said properties by adverse possession, so it was immaterial whether the property deeds had been certified by a notary or not. (c) Second decision of the land commission 43.", "Before the Pazardzhik District Court had heard the applicant’s appeal against the first decision of the land commission, the latter adopted a second decision dealing with the same subject matter. 44. By decision of 17 November 1993 (no. 80\\9/17.11.1993) it rescinded its first decision, but then recognised and restored the property rights of the heirs of the applicant’s father only in respect of plots nos. 1 and 2 in his request of 4 March 1992, which totalled 20,801 square metres.", "It refused to recognise the property rights of the heirs of the applicant’s father in respect of plots nos. 3-6. The grounds for the refusal were the following: “[This decision] rescinds decision no. 42\\3 of 18.12.1992 due to the discovery of a technical error. Properties nos.", "[3 and 4] – [Refusal to] recognise the property deeds [presented by] the inheritor – [the documents] are without a notary certification for the transfer of the land. Properties nos. [5 and 6] – [These properties were] claimed [by means of] a certified declaration despite the existence of [conflicting] property deeds.” 45. The applicant was informed of the decision by letter of 20 December 1993. He apparently appealed against it on an unspecified date.", "It is unclear whether the appeal was examined by the courts. (d) Third decision of the land commission 46. By a decision of 20 April 1994 (no. 98/17/20.04.1994) the land commission rescinded its second decision (see paragraph 44 above) and recognised and restored the property rights of the heirs of the applicant’s father in respect of plots nos. 1 and 2 in his request of 4 March 1992.", "The commission recognised their property rights in respect of plots nos. 3 and 4, totalling 28,700 square metres, refused to restore those properties “in actual boundaries” and held that they were to be restored through a land redistribution plan. Furthermore, it refused again to recognise the property rights of the heirs of the applicant’s father in respect of plots nos. 5 and 6. 47.", "The grounds for the commission’s decision were the following: “1. Recognises in compliance with the judgment [of 29 December 1993 of the Pazardzhik District Court]. 2. [This decision] rescinds decision [of the PALC] no. 80\\9 of 17.11.1993.” 48.", "The applicant appealed against this decision on an unspecified date. It is unclear whether the appeal was examined by the courts. 49. Apparently, at a later stage the applicant obtained a satisfactory outcome in respect of plots nos. 5 and 6 and does not raise complaints in respect of them.", "50. Plots nos. 3 and 4 were partially restored to him in 2000 (see paragraphs 74-76 below). (e) Second request for restitution of property 51. On an unspecified date in 1997 the applicant initiated an action for a declaratory judgment against the land commission, pursuant to section 11 § 2 of the ALA.", "He petitioned the courts to recognise that, as an heir of his parents, he had the right to have his property rights restored in respect of another four properties. 52. By a declaratory judgment of 2 April 1997 the Pazardzhik District Court found partly in favour of the applicant and recognised that the heirs of his parents had the right to have their property rights restored in respect of three of the claimed properties, namely, three plots of land of 6,600, 8,000 and 9,000 square metres respectively. 53. No appeal was lodged against this judgment so it entered into force on 5 May 1997.", "54. On 17 June 1997 the applicant deposited a copy of the aforementioned judgment with the land commission and demanded compliance with it. (f) Fourth decision of the land commission 55. In response to the aforementioned judgment, the land commission issued another decision. 56.", "By a decision of 24 July 1997 (no. 7A069/24.07.1997) it rescinded its decision of 20 April 1994 (see paragraph 46 above), readopted the text of said decision and, despite the favourable judgment (see paragraph 52 above), refused to recognise and restore the property rights of the heirs of the applicant’s parents in respect of the two new plots of agricultural land of 6,600 and 8,000 square metres, now numbered 7 and 8 respectively. The grounds for the refusal were the following: “[This decision] rescinds decision [of the commission] no. 98/17 of 20 April 1994 on the basis of judgment [of 2 April 1997 of the Pazardzhik District Court] under section 11 § 2 of the [ALA] in respect of the properties under nos. 7 and 8 in the request.", "The property was restored to [those claimants with] documents dated most [recently] – declarations for entry into the [collective farm] of [the village of] Govedare in 1956 – [presented] by the successors” 57. On an unspecified date the applicant appealed against this decision. 58. In a judgment of 22 June 1999 the Pazardzhik District Court quashed the land commission’s fourth decision of 24 July 1997 in respect of the refusal to recognise and restore the property rights of the heirs of the applicant’s parents in respect of plots nos. 7 and 8.", "It found that the property rights of the heirs of the applicant’s parents in respect of these two properties had already been recognised by virtue of the judgment of 2 April 1997 of the Pazardzhik District Court (see paragraph 52 above) and that the properties at issue were to be restored through a land redistribution plan. 59. No appeal was lodged against this judgment, so it entered into force on 30 July 1999. 60. On 5 August 1999 the applicant deposited a copy of the aforementioned judgment with the land commission.", "Apparently taking into account that the revised land redistribution plan of Govedare had already been published (see paragraph 73 below), the applicant requested compensation for these two properties (nos. 7 and 8) in the form of comparable State or municipal land. 61. It is not clear whether the applicant obtained restitution of the plot of 9,000 square metres, also mentioned in the judgment of the Pazardzhik District Court of 2 April 1997. He does not raise complaints in respect of this property.", "(g) Third request for restitution of property 62. On an unspecified date in 1998 the applicant initiated another action for a declaratory judgment under section 11 § 2 of the ALA. He petitioned to the courts to recognise that, as an heir of his father, he had the right to have the property rights restored in respect of one more property, a plot of 6,000 square metres. 63. In a declaratory judgment of 19 December 1998 the Pazardzhik District Court recognised that the heirs of the applicant’s father had the right to have their property rights restored.", "64. No appeal was lodged against the judgment so it entered into force on 20 January 1999. 65. On 28 January 1999 the applicant deposited a copy of the aforementioned judgment with the land commission. (h) Fifth decision of the land commission 66.", "In an attempt to comply with the judgments of the Pazardzhik District Court of 2 April 1997 and 19 December 1998 (see paragraphs 52 and 64 above), the land commission adopted another decision dealing with the three properties in question (those under nos. 7 and 8, plus the plot of 6,000 square metres in the judgment of 19 December 1998, thereinafter referred to under no. 9). 67. By a decision of 16 September 1999 (no.", "7B148) the commission recognised the property rights of the heirs of the applicant’s parents in respect of the aforementioned properties, but refused to restore them “in actual boundaries”. 68. The commission based its refusal to restore plots nos. 7 and 8 on the judgment of 22 June 1999 of the Pazardzhik District Court (see paragraph 58 above). It reasoned as follows: “The judgment [of 22 June 1999 of the Pazardzhik District Court] which recognised the property rights [in question] entered into force after the land redistribution plan had been published in the Official Journal.” 69.", "In respect of its refusal to restore plot no. 9, the commission used similar reasoning. It indicated as follows: “The judgment [of 19 December 1998 of the Pazardzhik District Court] under section 11 § 2 [of the ALA] which recognised the property rights [in question] entered into force after the land redistribution plan had been published in the Official Journal.” 70. The applicant was informed of the decision on 28 October 1999. It is unclear whether he appealed against it.", "71. In respect of plots nos. 7 and 8, the heirs of the applicant’s parents received municipally-owned land on 23 February 2005. The applicant appears to be satisfied with the location and the size of this land. 72.", "In respect of the plot numbered under no. 9, on 6 June 2003 the land commission assigned to the heirs of the applicant’s father compensation in the form of compensation bonds with a face value of 3,680 Bulgarian levs (BGN). The applicant does not specify whether he appealed against this decision. (i) The revised land redistribution plan and the applicant’s appeal against it 73. The first land redistribution plan for Govedare was published on an unspecified date.", "It is unclear what properties were allocated to the applicant under it. For undisclosed reasons, on 28 August 1997 the Minister of Agriculture ordered the complete revision of the plan. 74. The revised land redistribution plan for Govedare was published in the Official Journal on 13 April 1999. 75.", "On 26 April 1999 the applicant appealed against the revised land redistribution plan. He complained of the size of the property that the heirs of his father had been allocated under the said plan for plots nos. 3 and 4 in his request no. 12007 of 4 March 1992 (see paragraph 39 above). He submitted a proposal for the amendment of the plan, according to which the heirs of his father were to receive a plot measuring 18,426 square metres.", "76. In a judgment of 17 January 2000 the Pazardzhik Regional Court found in favour of the applicant and amended the revised land redistribution plan in accordance with the aforementioned proposal. The applicant took possession of the new plot thus allotted to his father’s heirs on 28 September 2000. At the time of the parties’ latest communications of 2006, he had not yet received any compensation for the remaining land to be restored, totalling 10,274 square metres. 77.", "The applicant did not appeal against the judgment of the Pazardzhik Regional Court, although he was entitled to. 3. Restitution of land previously owned by the applicant’s mother 78. On an unspecified date the applicant requested from the land commission the restitution of several plots of agricultural land previously owned by his mother in the area around the village of Hadzhievo. 79.", "By a decision of 22 December 1993 (no. 86/8/22.12.1992) the commission refused to recognise the property rights of his mother’s heirs in respect of seven plots of agricultural land. 80. On an appeal by the applicant, in a final judgment of 12 June 1995 the Pazardzhik District Court quashed the aforementioned decision of the land commission and, instead, restored the property rights of the heirs of the applicant’s mother in respect of the seven plots, totalling 35,300 square metres. 81.", "On 9 November 1995 the applicant deposited a copy of the aforementioned judgment with the land commission and demanded compliance with it. 82. On 30 March 2000 the land commission adopted a decision (no. 1В171/30.03.2000) whereby it allocated to the heirs of the applicant’s mother other land in compensation for the aforementioned property. The applicant, who appears to be satisfied with the size and quality of this land, took possession of it on 23 February 2005.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. Restitution of agricultural land 1. General approach 83. The Agricultural Land Act of 1991 (“the ALA”, Закон за собствеността и ползването на земеделските земи) provides, inter alia, that persons, or their heirs, whose land has been collectivised, may request restoration of their ownership rights under certain conditions (section 10 of the ALA).", "On the basis of certain statutory criteria, such as whether or not the plot of land once owned by the claimant or his or her ancestors had remained unaffected by urban construction, restitution may be “in actual boundaries” or through a redistribution plan. 84. Two possible ways of obtaining restitution are provided for: (a) administrative proceedings, initiated within a period of seventeen months following the entry into force of ALA, through a request to the local agricultural land commission (section 11 § 1) whose decision is subject to appeal before the courts (section 14 § 3), or, (b) after the expiry of that time-limit, through a civil claim to the competent court, directed against the respective land commission (section 11 § 2 of the ALA). 2. Restitution under section 11 § 1 of the ALA 85.", "When seized with a request for restitution under section 11 § 1 of the ALA, it was the land commission’s task to establish whether the relevant statutory conditions were met and if so, to issue a decision restoring ownership. It could not revoke its decisions. Favourable decisions were not subject to appeal and were final. Following an amendment to the ALA of 1995, land commissions could modify their decisions within certain time limits in case where (1) they contained factual mistakes, or (2) with certain limitations, new facts or documents had been discovered (section 14 §§ 6 and 7). Some courts have stated that the decisions of the land commissions have characteristics similar to those of certifications in ex parte notary proceedings (opred.", "10333-2002-VAS; opred. 1020-2003-VAS). It has also been stated that land commissions’ decisions are administrative decisions (1832-93-III). 86. A claimant whose request for restitution has been refused by the competent land commission may appeal to the respective District Court (section 14 § 3 of the ALA).", "The District Court has jurisdiction to examine the matter on the merits and determine whether or not the claimant has the right to restitution under the ALA. If it finds that the relevant statutory criteria for restitution are met, the court shall set aside the land commission’s refusal and order restitution (section 14 §§ 1-3 of the ALA). The District Court’s judgment is amenable to review (cassation). 87. Land commissions, which existed until 2002, were state bodies whose members were appointed by the Minister of Agriculture (section 33 of the ALA).", "In 2002 they were replaced by Agriculture and Forestry Departments, after 2008 named Agricultural Departments, whose members are appointed by the Minister of Agriculture and Food. 88. By section 14 of the Regulations for the Implementation of the Agricultural Land Act, a restitution request concerning the property of a deceased person lodged by one of the heirs benefits all of them. 3. Restitution through general civil action under section 11 § 2 of the ALA 89.", "Persons claiming restitution of agricultural land who have missed the seventeen-month time-limit under section 11 § 1, may bring an action for a declaratory judgment against the local land commission. In these proceedings the courts determine whether or not the claimant has the right to restitution. Where the courts decide in favour of the claimant, the land commission must comply and issue the necessary restitution decision, restoring the claimant’s rights “in actual boundaries” or through a land redistribution plan. 90. In the absence of an express provision, the legal theory accepts that, similarly to the procedure under section 11 § 1 of the ALA, an action brought by one of the heirs of a deceased person benefits all of them.", "4. Restitution through land redistribution plans and compensation in lieu of restitution 91. By section 10b of the ALA, former owners whose property cannot be restored “in actual boundaries” are to receive land by means of a land redistribution plan, on the basis of which the respective land commission adopts a decision to restore the property (section 17 of the ALA). 92. Where the land in a certain area is not sufficient to satisfy fully all former owners, the land to be provided to each of them is reduced.", "For the difference, they are to be compensated with municipal land or with compensation bonds, which can be used in privatisation tenders or for the purchase of State-owned land (sections 15 §§ 2 and 3 and 35 of the ALA). 93. In preparing a land redistribution plan, the land commission takes into consideration former owners’ claims which have been presented to it prior to the publication in the Official Journal of a notification that a draft plan has been prepared. It cannot take into account claims presented to it later; in that case, former owners are to receive compensation through municipal land or bonds (section 11 § 4 of the ALA). 94.", "Appeals against land redistribution plans were, at the relevant time, to be addressed to the respective Regional Court. They had to be accompanied by a proposal for a specific amendment to the plan (section 25 § 6 of the Regulations for the Implementation of the Agricultural Land Act). The judgments of the regional courts were subject to cassation. 95. Pursuant to section 17 § 8 of the ALA, the Minister of Agriculture is authorised to order the revision of a land redistribution plan where it has been established that the original one contained an obvious factual error.", "B. The State Responsibility for Damage Act 1988 and relevant practice of the domestic courts 96. Section 1 of the State Responsibility for Damage Act of 1988 (“the SRDA”) provides that the State is liable for damage suffered by private persons as a result of unlawful acts or omissions by State bodies or civil servants, committed in the course of or in connection with the performance of their duties. Section 4 of the Act provides that compensation is due for all damage which is the direct and proximate result of the unlawful act or omission. 97.", "In some cases the domestic courts have allowed claims under section 1 of the SRDA on the basis of the authorities’ unlawful acts or omissions in restitution proceedings. In a judgment of 14 February 2008 the Supreme Court of Cassation awarded damages to the claimant, finding that the respective land commission had unnecessary delayed taking a decision on his request for restitution and had eventually unlawfully refused restitution (judgment no. 112 of 14 February 2008, case no. 1319/2007). In another judgment of 21 June 2002, the Nova Zagora District Court allowed a claim against the respective land commission, finding that the claimant had suffered damages as a result of the commission’s refusal to recognise and restore his rights to a certain property, and of its renewed failure to recognise and restore his rights after the initial refusal had been declared null and void by the courts (judgment no.", "224 of 21 June 2002, case no. 74/2002). 98. However, in a judgment of 23 November 2004 the Veliko Tarnovo Regional Court dismissed a claim for damages against the respective land commission. It found that the rescission of a decision of the commission, which had entered into force and whereby the commission had recognised the claimant’s rights over certain properties, was null and void.", "Nevertheless, it concluded that the claimant had not suffered damages as the initial decision had not sufficed to make her the owner of the property at issue (judgment 240 of 23 November 2004, case no. 773/240). 99. In a judgment of 11 January 2005 the Smolyan Regional Court allowed a claim against the relevant municipality, finding that the claimants had suffered damage as a result of the municipality’s failure to duly correct their property’s borders in the cadastral maps (judgment no. 452 of 11 January 2005, case no.", "407/2004). THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 1 OF PROTOCOL NO. 1 AND ARTICLE 6 § 1 OF THE CONVENTION 100. The applicant complained under Article 1 of Protocol No.", "1 that he could not for long periods of time have his property rights restored or obtain compensation in lieu of restitution, and under Article 6 § 1 of the Convention that the domestic authorities had failed to comply with final court decisions in his favour. 101. Article 1 of Protocol No. 1 reads: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Article 6 § 1 of the Convention, in so far as relevant, reads: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 102. The Government urged the Court to dismiss the application as inadmissible for failure to exhaust domestic remedies (Article 35 § 1 of the Convention). They pointed out that the applicant had not sought damages under the State Responsibility for Damage Act. Relying on the relevant judgments of the Nova Zagora District Court and the Smolyan Regional Court (see paragraphs 97 and 99 above), they argued that an action for damages under that Act could have effectively remedied the applicant’s grievances. 103.", "The applicant contested this argument. 104. The Court recalls that under Article 35 § 1 of the Convention the only remedies required to be exhausted are those that are effective and capable of redressing the alleged violation (see Sejdovic v. Italy [GC], no. 56581/00, § 45, ECHR 2006-II). In the present case, as regards the complaints under Article 1 of Protocol No.", "1 that the authorities failed for long periods of time to restore the applicant’s rights over the properties he claimed or to provide him with compensation, the Court notes that an action under the SRDA might, in principle, provide redress, as exemplified by the practice of the domestic courts referred to above (see paragraphs 97 and 99) and concerning similar situations. However, the Court is not convinced that these judgments, one of which was given by a district court and another by a regional court, are indicative of a constant practice. Furthermore, in a case which was in practice identical with that of the applicant, as regards the land previously owned by him, the claimant’s action was dismissed (see paragraph 98 above). 105. Moreover, the Court is of the view that the applicant, who could not have known when his property rights would be restored, or, respectively, he would receive compensation, cannot have been expected to periodically bring actions for damages in order to obtain redress for the delays (see, for comparison, Kirilova and Others, cited above, § 116).", "Had he been required to do so, this might have erected a permanent barrier to bringing matters before the Court (see, mutatis mutandis, Guzzardi v. Italy, 6 November 1980, § 80, Series A no. 39). In the specific circumstances of the case, therefore, an action under the SRDA did not represent an effective remedy, capable of redressing the alleged violation, which the applicant should have exhausted. 106. As regards the applicant’s complaints under Article 6 § 1 of the Convention, the Court observes that an action under the SRDA could not have remedied the applicant’s grievances as it could not directly compel the authorities to take the necessary actions to comply with final court judgments (see, mutatis mutandis, Iatridis v. Greece [GC], no.", "31107/96, § 47, ECHR 1999‑II, and Kirilova and Others v. Bulgaria, nos. 42908/98, 44038/98, 44816/98 and 7319/02, § 116, 9 June 2005). 107. Accordingly, the Court dismisses the Government’s preliminary objection based on non-exhaustion of domestic remedies. 108.", "Furthermore, the Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Alleged violations of Article 1 of Protocol No.", "1 109. The applicant complained that he had not been able, for long periods of time, to have his property rights restored or to obtain compensation. 110. The Government considered that the Pazardzhik land commission had acted lawfully, in good faith and in due time, in view of the complexity of the restitution process. (a) General principles 111.", "The Court reiterates that Article 1 of Protocol No. 1 comprises 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; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest The Court observes that in its established case-law it has examined the non-enforcement of a decision recognising title to property under the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see Ramadhi and Others v. Albania, no. 38222/02, §§ 75-79, 13 November 2007, with further references). (b) Application of those principles to the present case 112.", "The Court will examine separately the different restitution procedures the applicant was involved in. (i) Plot no. 9, formerly owned by the applicant’s father 113. The Court observes that in its judgment of 19 December 1998 the Pazardzhik District Court found that the heirs of the applicant’s father had the right to have their property rights restored in respect of that plot, measuring 6,000 square metres (see paragraphs 62‑63 above). This was not necessarily an entitlement to restitution “in actual boundaries” or to compensation with municipally-owned land since the relevant domestic legislation provided that former owners could also be compensated with bonds (see paragraph 93 above).", "Later on the heirs of the applicant’s father received compensation bonds for the plot (see paragraph 72 above). 114. The case does not concern existing possessions; nevertheless, the Court finds that following the above-mentioned judgment of 19 December 1998 the applicant, as an heir of his father, had a legitimate expectation to receive property or other compensation in respect of the plot in question. 115. In these circumstances the Court finds that the applicant’s legitimate expectation in respect of plot no.", "9 was realised with the receipt of bonds. It follows that there was no interference with the applicant’s rights and, accordingly, no violation of Article 1 of Protocol No. 1. (ii) The land previously owned by the applicant 116. The Court notes that the applicant never obtained plots nos.", "7 and 8 despite the Pazardzhik land commission’s decision of 18 December 1992 (see paragraph 9 above) recognising and restoring his rights “in actual boundaries”. 117. The Court notes further that the land commission’s decision at issue was given in ex parte proceedings and could be challenged either directly or indirectly, without any limitation in time, if another person claiming to have property rights over the same land brought an action under section 11 § 2 of the ALA (see paragraphs 89-90 above) or a rei vindicatio action. Having regard to the above and to the fact that the applicant’s claim to plots nos. 7 and 8 had not been the subject matter of judicial examination, the Court cannot reach the conclusion that the decision of 18 December 1992 ever acquired the stability which would give rise to a legitimate expectation on the part of the applicant to receive those plots in “actual boundaries”.", "Therefore, the Court is of the view that the legitimate expectation which arose for the applicant pursuant to the decision of 18 December 1992 could be realised either through obtaining the restitution of plots nos. 7 and 8, or through compensation in lieu thereof, as provided for in domestic law. 118. As in 2005 the applicant did obtain compensation for plot no. 7 (see paragraph 37 above) and, furthermore, does not allege that he will not receive the compensation provided for in domestic law for plot no.", "8, the Court is of the view that the issue it is called upon to examine here is about the delay in providing compensation to the applicant and thus realising the legitimate expectation that arose for him pursuant to the decision of 18 December 1992. 119. The Court considers that the delay on the part of the authorities in providing compensation to the applicant amounted to interference with his right to property, within the meaning of the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see paragraph 111 above). Furthermore, the Court accepts that this interference was lawful, as there were no special time-limits for providing compensation under the relevant legislation, and might have pursued a legitimate aim in the public interest, namely to protect the rights of others, as the authorities needed to accommodate the claims of numerous former owners in the rather complex restitution process.", "120. Turning to the question of proportionality, the Court has to examine whether the delay in awarding the compensation due meant that the applicant had to bear a special and excessive burden (see Ramadhi and Others v. Albania, cited above, § 78). 121. The Court notes that the applicant’s legitimate expectation to receive plots no. 7 and 8 or compensation thereof arose not later than in May 1993 (see paragraph 9 above).", "The compensation for plot no. 7 was received in 2005, that is twelve years later (see paragraph 37 above). As of 2006, the applicant had not received compensation for plot no. 8 (see paragraph 38 above). The delay was therefore thirteen years.", "122. The Court notes that for these considerable periods of time – twelve and thirteen years respectively – the applicant was left in a state of uncertainty as to the realisation of his property rights and was prevented from enjoying his possessions. The Court acknowledges that the relevant events happened in a period of social and economic transition in Bulgaria and that the authorities needed to take into account the claims of numerous interested parties (see Kehaya and Others v. Bulgaria, nos. 47797/99 and 68698/01, § 65, 12 January 2006, and, mutatis mutandis, 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, § 172, 15 March 2007).", "However, in the absence of any specific justifications for the delays in providing compensation to the applicant, apart from the general complexity of the restitution process referred to by the Government (see paragraph 110 above), the Court cannot but accept that the delays were unreasonable and placed an excessive burden on the applicant (see Ramadhi and Others v. Albania, cited above, § 83). 123. The Court notes, in addition, that the applicant was for a long period of time left in uncertainty as to whether he would receive plots nos. 7 and 8 in their “actual boundaries” or compensation, due to the contradictory decisions of the national authorities (see paragraphs 9-36 above). 124.", "Accordingly, the Court concludes that there has been a violation of Article 1 of Protocol No. 1 in the case. (iii) The remaining plots 125. The Court notes that in its judgment of 29 December 1993 (see paragraph 42 above) the Pazardzhik District Court recognised the rights of the heirs of the applicant’s father to receive land through a land redistribution plan for plots nos. 3 and 4, as referred to in the applicant’s request no.", "12007 of 4 March 1992 (see paragraph 39 above), totalling 28,700 square metres. The Court notes further that the heirs of the applicant’s father only received 18,426 square metres of land through the revised land redistribution plan for Govedare (see paragraphs 75-76 above). 126. The applicant, as one of his father’s heirs, remained entitled to receive compensation for the land that could not be restored through the land redistribution plan (see paragraph 93 above). He does not allege that he will not receive that compensation.", "Moreover, the Court has not been informed of any developments in the case after 2006. Therefore, similarly to its approach above (see paragraph 117), the Court is of the view that the issue it is called upon to examine here is about the delay in providing compensation to the applicant up to 2006. 127. The right of the heirs of the applicant’s father to the compensation in question was recognised in a judgment of 29 December 1993 (see paragraph 42 above). As of 2006, the applicant had still not received any compensation for 10,274 square metres of the land (see paragraph 76 above).", "The delay was therefore thirteen years. 128. Similarly, in respect of the remaining plots, namely plots nos. 7 and 8 which had formerly been owned by the applicant’s parents (see paragraphs 52-60 and 71 above, not to be confused with the plots owned by the applicant carrying the same numbers, see paragraphs 116-124 above), and the seven plots previously owned by the applicant’s mother (see paragraphs 78-82 above), the sole question to be examined by the Court is whether the delay in providing compensation to the applicant, as an heir of his parents, amounted to a violation of Article 1 of Protocol No. 1.", "129. In respect of plots nos. 7 and 8 mentioned in the preceding paragraph, the heirs of the applicant’s parents had their restitution rights recognised in a court judgment of 2 April 1997 (see paragraph 52 above). The compensation for these plots was provided in 2005 (see paragraph 71 above), that is, eight years later. Providing compensation for the seven plots previously owned by the applicant’s mother was delayed by ten years as the rights of her heirs were recognised in a court judgment of 12 June 1995 and the compensation was provided in 2005 (see paragraphs 80 and 83 above).", "130. The Court refers to its findings above that the delays in providing compensation in the present case amounted to interference with the applicant’s right to peaceful enjoyment of his possessions, and that this interference was lawful and pursued a legitimate aim in the public interest, but failed to strike a fair balance (see paragraphs 119-122 above). The Court does not see a reason to reach a different conclusion in respect of the eleven plots at issue here. 131. Accordingly, it concludes that there has been a violation of Article 1 of Protocol No.", "1 in that the authorities unjustifiably delayed providing compensation to the applicant for the eleven plots at issue. 2. Alleged violations of Article 6 § 1 of the Convention 132. Under Article 6 § 1, the applicant complained that the authorities failed to comply with final court judgments in his favour. In particular, be complained: (a) in respect of the land previously owned by him – that the Pazardzhik land commission had failed to comply with several judgments of the Pazarzhik District Court in his favour; (b) in respect of plots nos.", "3 and 4, previously owned by his father – that in its judgment of 17 January 2000 (see paragraph 76 above) the Pazardzhik Regional Court had failed to take into account the earlier judgment of the Pazardzhik District Court of 29 December 1993 (see paragraph 42 above) (c) in respect of plot no. 9, previously owned by his father – that in adopting its decision of 16 September 1999 (see paragraph 67 above) and refusing to restore to the heirs of the his father that plot, the land commission had failed to comply with the final judgment of the Pazardzhik District Court of 11 December 1998 (see paragraph 63 above); and (d) in respect of the remaining plots – that, in enforcing the final court judgments in his favour, the authorities had delayed providing him with compensation. 133. The Government argued that Article 6 § 1 was inapplicable in the case because the proceedings before the Pazardzhik agricultural land commission had been of an administrative and not a judicial character. 134.", "The Court does not deem it necessary to examine the Government’s objection based on the alleged non-applicability of Article 6 § 1, because, in view of its analysis and conclusions under Article 1 of Protocol No. 1 above (see paragraphs 117-137), it considers that no separate issues arise in the case under Article 6 § 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 135. 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 136. The applicant claimed the following amounts in respect of pecuniary damage: (a) 6,811 Bulgarian levs (BGN), the equivalent of approximately 3,500 euros (EUR), in respect of the difference between the values of plot no. 7 of his own former land and the land received as compensation, plus BGN 1,473.55, the equivalent of EUR 755, for lost rent for this property from 1992 to 2005, (b) BGN 4,128, the equivalent of EUR 2,120, for the value of plot no. 8 of the land formerly owned by the applicant, plus BGN 1,015.73, the equivalent of EUR 520, for lost rent for this property from 1992 to 2006; (c) BGN 10,603, the equivalent of EUR 5,440, which represented the value of the 10,274 square metres of land due to the heirs of the applicant’s father in respect of plots nos.", "3 and 4 in the applicant’s request no. 12007 of 4 March 1992; BGN 973.65, the equivalent of EUR 500, for lost rent for this land from 1993 to 2000; and BGN 1698.36, the equivalent of EUR 870, for lost rent from 1993 to 2000 for the 18,426 square metres, which were restored to the heirs of the applicant’s father by virtue of the Pazardzhik Regional Court’s judgment of 17 January 2000 (see paragraph 76 above); (d) BGN 2,253.82, the equivalent of EUR 1,155, for lost rent for plots nos. 7 and 8, formerly owned by the applicant’s parents, from 1997 to 2005; and (e) BGN 4,058.58, the equivalent of EUR 2,080, for lost rent for the plots formerly owned by the applicant’s mother, for the period from 1995 to 2005. In support of these claims the applicant presented valuation reports prepared by certified experts. 137.", "The Government considered that the damages claimed were not the direct and proximate result of the alleged violations. 138. The Court recalls that the violations it found under Article 1 of Protocol No. 1 only concerned the delay on the part of the authorities to provide compensation to the applicant (see paragraphs 124 and 131 above). Therefore, the Court will only grant compensation for that delay.", "It cannot however accept the basis for calculating that compensation proposed by the applicant, that is, the rent that would have been received had the properties at issue been rented out. It notes, in particular, that the violation found by it did not concern any defined right of the applicant to receive land, but the delay in providing compensation, which could also take the form of bonds. 139. The Court will also take into account the fact that some of the plots had been owned by the applicant’s parents and that the applicant is not his parents’ sole heir (see paragraph 39 above). He was not therefore the only person entitled to receive the delayed compensation for those plots.", "140. In view of the considerations above, the Court awards the applicant EUR 2,000 under this head. 2. Non-pecuniary damage 141. Leaving the determination of the exact amount to the Court, the applicant also claimed non‑pecuniary damage, arguing that he had suffered anguish and frustration during a considerable period of time.", "142. The Government did not comment. 143. The Court finds that the applicant must have suffered anguish and frustration as a result of the violations found. Judging on the basis of equity, it awards him EUR 1,000 under this head.", "B. Costs and expenses 144. The applicant claimed BGN 4,895, the equivalent of EUR 2,500, for 50 hours of work by his lawyer, Mrs N. Sedefova, after the communication of the case to the Government, at an hourly rate of EUR 50. He presented a time sheet in support of this claim. The applicant claimed another BGN 1,074, the equivalent of EUR 550, for the cost of the valuation reports he submitted and the translation of his observation and claims for just satisfaction.", "He also claimed BGN 1,200, the equivalent of EUR 615, for expenses incurred in the domestic restitution proceedings. In support of these claims he presented the relevant receipts. 145. The Government considered the claim for legal fees to be excessive and urged the Court to dismiss as unrelated to the alleged violations the claim for costs in the domestic proceedings. 146.", "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 case at hand, the Court notes that it has found violations of the Convention only in respect of some of the applicant’s complaints. In view of its findings above, the Court awards EUR 2,000 for all costs and expenses. C. Default interest 147. 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 no violation of Article 1 of Protocol No. 1 to the Convention on account of the compensation for plot no. 9 previously owned by the applicant’s father; 3.", "Holds that, in respect of plots nos. 7 and 8 previously owned by the applicant, there has been a violation of Article 1 of Protocol No. 1 to the Convention because of the lengthy uncertainty as to whether the applicant would receive the actual plots or compensation and the delay in providing compensation; 4. Holds that, in respect of the remaining eleven plots previously owned by the applicant’s parents, there has been a violation of Article 1 of Protocol No. 1 to the Convention because of the delay in providing compensation; 5.", "Holds that no separate issues arise under Article 6 § 1 of the Convention; 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, the following amounts, to be converted into Bulgarian levs 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 pecuniary and non-pecuniary damage; (ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicant’s claims for just satisfaction. Done in English, and notified in writing on 7 January 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]

[ "THIRD SECTION CASE OF BUBON v. RUSSIA (Application no. 63898/09) JUDGMENT STRASBOURG 7 February 2017 FINAL 07/05/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bubon v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Helena Jäderblom,Helen Keller,Dmitry Dedov,Branko Lubarda,Alena Poláčková,Georgios A. Serghides, judges,and Stephen Phillips, 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 an application (no.", "63898/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Konstantin Vladimirovich Bubon (“the applicant”), on 11 October 2009. 2. The applicant was represented by Mr A. Tuzov, a lawyer practising in the Khabarovsk Region. 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 applicant alleged that the authorities had denied him access to the information necessary for his scientific research. 4. On 1 July 2010 the application was communicated to the Government. 5. The parties submitted written observations on the admissibility and merits of the application.", "In addition, written submissions were received from the Open Society Justice Initiative and the Helsinki Foundation for Human Rights, organisations which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2 of the Rules of Court). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant is a lawyer who also writes articles for various Russian law journals and online legal information databases and networks. 7.", "According to the applicant, his work usually requires extensive scientific research, including in the field of law enforcement in the Khabarovsk Region. He supported his assertion with copies of contracts with well-known Russian publishing houses and owners of a number of legal magazines, including one supervised by the Secretariat of the President of the Russian Federation. Under the contracts he undertook the task of writing articles on specific topics of legal and social interest. 8. Having received an assignment to write an article on prostitution and the fight against it in the Khabarovsk Region, on 12 May 2009 the applicant wrote to the head of the Khabarovsk Region police department by registered letter, asking for statistical data for his research.", "The relevant parts read: “[I am] interested in [receiving] information for the period between 2000 and 2009, in particular: - [information on] the number of people found administratively liable under Article 6.11 of the ... Code of Administrative Offences (prostitution), with a breakdown by sex, residence (residents of the Khabarovsk Region or visitors), nationality (nationals of the Russian Federation, foreigners or stateless persons) and the year [of the offence]; - [information on] the number of criminal cases instituted during the above‑mentioned period under Articles 241, 242, 242.1 [and] 127.1 (cases related to sexual exploitation) of the ... Criminal Code, with a breakdown of the specific Articles ... and the year [the case was opened]; - [information on] the number of individuals found criminally liable under Articles 241, 242, 242.1 [and] 127.1 ... of the ... Criminal Code, with a breakdown by sex, age, educational background, permanent residence (residents of the Khabarovsk Region or visitors), nationality and period [in which the crime was committed]; - general information on sentences imposed on individuals found criminally liable under Articles 241, 242, 242.1 [and] 127.1 ... of the ... Criminal Code ‑ the types of sentences and in how many cases they were imposed, and the years [they were imposed]. ... [I] stress that I do not need any specific personal information about individuals found administratively or criminally liable; [I only need] general statistical information for writing a scientific article.” 9. It appears from an acknowledgement of receipt that the letter reached the Khabarovsk Region police department on 25 May 2009. 10. Under Russian law, State officials must provide a reply to letters from individuals within thirty days.", "In the absence of any response, on 26 June 2009 the applicant lodged a claim with the Tsentralniy District Court of Khabarovsk (“the District Court”), complaining that the police authorities had failed to provide him with the information he had requested and requesting for access. Relying on the Information Act (see below) and Article 10 of the Convention, he argued that the officials’ implied refusal to provide him with the information had been unlawful as he had not asked for access to any confidential personal information, State secrets or information related to internal police working methods. He claimed that his request had related purely to statistical data of a general nature collected by the Information Centre of the Khabarovsk Region police department (hereinafter “the Information Centre”). 11. On 18 July 2009 the applicant received a letter from the head of the Information Centre, notifying him that information as specific as he had asked for could only be collected on production of a written order issued by a deputy Minister of Internal Affairs, a head of a regional or municipal police department or their divisions or a prosecutor or investigator from a prosecutor’s office.", "The Information Centre did not collect such information at the request of private individuals. General statistical data summarised by the Information Centre was provided to the Federal Service of State Statistics and in particular its regional office for the Khabarovsk Region, to whom the applicant could apply for the statistical data. 12. On 19 July 2009 the applicant wrote to the Khabarovsk Region Service of State Statistics (hereinafter “the Statistics Service”) by registered letter, asking for the statistical data for his research. 13.", "On 23 July 2009 the head of the Statistics Service replied, stating that specific statistical information on the fight against prostitution had never been provided by the Khabarovsk Regional police department. 14. The applicant filed copies of his letters from the Information Centre and Statistics Service with the District Court. 15. On 4 August 2009 it dismissed the applicant’s claim on the grounds that the Information Centre was not authorised to process data requests from private individuals.", "Under domestic law, the Statistics Service was tasked with dissemination of official statistical data on a broad variety of subjects, including those falling within the applicant’s field of interest. It also noted that the applicant had failed to obtain the information sought from open sources, such as libraries, archives and the Internet. The District Court also stressed that the information requested did not touch upon the applicant’s rights and legitimate interests, so the authorities’ refusal to grant him access to such information had been lawful and well-founded under section 8(2) of the Information Act. 16. The applicant appealed, arguing, among other things, that the police authorities had exclusive possession of the information sought by him and that he had no other means, including through assistance from the Statistics Service, of obtaining the necessary data.", "In addition, he submitted that the fact that his rights and legitimate interests were not affected by the requested information had no bearing on the case as under Russian law, it was not only those directly concerned who were granted access to public information. 17. On 16 September 2009 the Khabarovsk Regional Court upheld the judgment of 4 August 2009. Relying on section 8(2) of the Information Act, it concluded that the authorities were not obliged to provide the applicant with the information as it did not touch upon his rights and legitimate interests. II.", "RELEVANT DOMESTIC LAW 18. The relevant provisions of the Information Act (Federal Law no. 149-FZ of 27 July 2006 “On Information, Information Technology and the Protection of Information”) read: Section 8 – Right of access to information “1. Citizens (individuals) and organisations (legal entities) are entitled to search for and receive any information in any form and from any source provided that the requirements of this [Act] and other federal laws are respected. 2.", "A citizen (an individual) is entitled to receive information directly affecting his rights and freedoms from State bodies, municipal authorities and their officials in accordance with the procedure established by the law of the Russian Federation. ... 4. Access may not be restricted to: (1) legal acts affecting the rights, freedoms and obligations of individuals and citizens, as well as identifying legal status of organisations and the authority of State bodies [and] municipal authorities; (2) environmental information; (3) information on the activities of State bodies and municipal authorities, as well as on the use of budgetary funds (except information constituting State or official secrets); (4) information collected in the open funds of libraries, museums and archives, as well as in State, municipal and other information systems created or designed to provide such information to citizens (individuals) and organisations; (5) other information the restriction of access to which is not permitted by federal law. 5. State bodies and municipal authorities are required to provide access to information about their activities ... in compliance with federal laws, laws of the constituent elements of the Russian Federation and legal acts of municipal authorities.", "A person wishing to obtain access to such information is under no obligation to explain why it is required. 6. Decisions and actions (inaction) of State bodies and municipal authorities, public associations, officials violating the right of access to information are amenable to appeal before a higher authority, a higher-ranking official or a court. ... 8. Information is provided free of charge [concerning]: (1) the activities of State bodies and municipal authorities when the information has been posted on information and telecommunications networks; (2) the rights and obligations established by the law of the Russian Federation of the person concerned; (3) [any] other information established by law.", "9. A State body or municipal authority may only impose a fee for providing information on its activities in cases and on the terms established by federal law.” Section 9 – Restrictions on access to information “1. Federal law lays down restrictions on access to information to protect constitutional order, morals, health, the rights and lawful interests of others, for ensuring national defence and security of the State. 2. It is mandatory to keep information confidential, access to which is restricted by federal law.", "3. Protection of information constituting State secrets shall be carried out in accordance with the law of the Russian Federation on State secrets. 4. Federal law lays down the conditions for classifying information as trade, official or other secrets, [and lays down] an obligation to keep such information confidential and [establish] responsibility for its disclosure...” III. RELEVANT INTERNATIONAL LAW 19.", "On 21 February 2002 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2002)2 on access to official documents (hereinafter “the Recommendation”). The relevant provisions read: I. Definitions “For the purposes of this recommendation: ... “official documents” shall mean all information recorded in any form, drawn up or received and held by public authorities and linked to any public or administrative function, with the exception of documents under preparation.” II. Scope “1. This recommendation concerns only official documents held by public authorities. However, member states should examine, in the light of their domestic law and practice, to what extent the principles of this recommendation could be applied to information held by legislative bodies and judicial authorities...” III.", "General principle on access to official documents “Member states should guarantee the right of everyone to have access, on request, to official documents held by public authorities. This principle should apply without discrimination on any ground, including that of national origin.” VI. Processing of requests for access to official documents “1. A request for access to an official document should be dealt with by any public authority holding the document. 2.", "Requests for access to official documents should be dealt with on an equal basis...” 20. The Council of Europe Convention on Access to Official Documents opened for signature on 18 June 2009. The relevant provisions read: Article 1 – General provisions “1. The principles set out hereafter should be understood without prejudice to those domestic laws and regulations and to international treaties which recognise a wider right of access to official documents. 2.", "For the purposes of this Convention: ... b. “official documents” means all information recorded in any form, drawn up or received and held by public authorities. Article 2 – Right of access to official documents “1. Each Party shall guarantee the right of everyone, without discrimination on any ground, to have access, on request, to official documents held by public authorities. 2.", "Each Party shall take the necessary measures in its domestic law to give effect to the provisions for access to official documents set out in this Convention...” Article 5 – Processing of requests for access to official documents “1. The public authority shall help the applicant, as far as reasonably possible, to identify the requested official document. 2. A request for access to an official document shall be dealt with by any public authority holding the document. If the public authority does not hold the requested official document or if it is not authorised to process that request, it shall, wherever possible, refer the application or the applicant to the competent public authority...” 21.", "The convention has not yet entered into force. Russia has not signed or ratified it. THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 22. The applicant complained that the authorities had denied him access to the information necessary for his scientific research. He relied on Article 10 of the Convention, the relevant parts of which read: “1.", "Everyone has the right to freedom of expression. This right shall include freedom ... to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. The parties’ submissions 1.", "The Government 23. The Government denied that there had been an interference with the applicant’s right under Article 10 of the Convention. In particular, they argued that the domestic authorities had not had the information sought by the applicant. According to the Government, Russian law required information centres to prepare crime statistics reports by processing statistical data cards. Data cards differed in type and covered a wide range of information related to a specific crime committed.", "The data processing carried out by the information centres was predominantly manual and not all information from the data cards was processed. Only selected types of crimes and parameters were included in crime statistics reports. 24. With respect to the first part of the applicant’s request for information, the Government submitted that the authorities only calculated the total number of persons found administratively liable for prostitution and transferred that information to the information centres. The specific parameters requested by the applicant (the offenders’ sex, residence, nationality and the year of the offence) were not taken into account.", "25. With respect to the second and third parts of the applicant’s request, the Government observed that the statistical reports produced by the information centres did not include data on the number of criminal cases instituted and individuals found guilty under Articles 241, 242, 242.1 and 127.1 (cases related to sexual exploitation) of the Criminal Code. There was no breakdown by the offenders’ sex, age, level of education, residence, nationality or the year of the offence. 26. In addition, the Government noted with respect to Article 127.1 of the Criminal Code that crimes based on criminal intent to carry out sexual exploitation were not regularly recorded in statistical data cards and thus that parameter was also not taken into account in statistical reports.", "They stressed that crime statistics reports formed by the information centres were published on the official websites of the Ministry of Interior and Federal State Statistics Service without any omissions. 27. Turning to the final part of the applicant’s request, the Government submitted that the Judicial Department of the Supreme Court collected information on sentences. The applicant had thus failed to apply to the public authority which actually held the information sought. 2.", "The applicant 28. The applicant insisted that the authorities had had the necessary information. Referring to internal police instructions on statistical data collection, he also claimed that statistical data cards produced by the relevant authorities (for example investigators) and collected by the information centres contained all the parameters asked for by him. He alleged that the information centres calculated those parameters to form crime statistics reports. 29.", "The applicant also submitted that the crime statistics reports available on the official websites of the Ministry of Interior and Federal State Statistics Service did not correspond to his needs. 30. In the alternative, the applicant argued that even if the authorities had not had every item of information he had requested, they should have provided him with all the relevant data they had. 3. The third parties’ comments (a) Helsinki Foundation for Human Rights (HFHR) 31.", "The HFHR submitted that the right of access to public information was an element of international and national legal systems of human rights protection. 32. With reference to the Court’s position in Sdružení Jihočeské Matky v. the Czech Republic (no. 19101/03, 10 July 2006) and Társaság a Szabadságjogokért v. Hungary (no. 37374/05, 14 April 2009) the HFHR advocated for a broader interpretation of the notion of the freedom to receive information.", "The HFHR took the view that the right of access to public documents fell within the scope of guarantees set forth in Article 10 § 1 of the Convention and that any decision to restrict access to documents related to a matter of public interest should be subject to a strict scrutiny in accordance with the requirements of Article 10 § 2. (b) Open Society Justice Initiative (OSJI) 33. The OSJI stressed that the right to receive information was well‑recognised in various national and international legal systems. The disclosure of information, including statistical data about the operation of the criminal justice system, contributed not only to democratic accountability in the field of law enforcement, but also to general respect for the rule of law. 34.", "The OSJI noted that the Court had long recognised a conditional right of access to State-held information in circumstances where failure to provide such information adversely affected the enjoyment of the right to respect for private and family life. 35. The OSJI reiterated that a State could not restrict a person from receiving information that others wished or might be willing to impart. It noted that the Court had recognised a right to receive information held by public authorities, relevant to public debate, irrespective of any personal interest other than an interest to contribute to public debate. 36.", "In addition, the OSJI submitted with particular respect to statistical information that both raw data and the capabilities needed to generate crime statistics tended to be, by their nature, in the exclusive possession of government agencies, granting them a real monopoly over information in that field. Such monopolies tended to improperly interfere with the free flow of information and ideas. B. The Court’s assessment 1. Admissibility 37.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) General principles 38.", "The relevant general principles were recently summarised by the Court’s Grand Chamber in the case of Magyar Helsinki Bizottság v. Hungary ([GC], no. 18030/11, §§ 149-180, 8 November 2016). (b) Application to the present case i. First three parts of the applicant’s request 39. With respect to the first three parts of the applicant’s request, in particular information on the number of people found administratively liable for prostitution, the number of criminal cases instituted and the number of people found liable under Articles 241, 242, 242.1 and 127.1 of the Criminal Code (see paragraph 8 above), the Court observes the following.", "40. The fact that the information requested is ready and available constitutes an important criterion in the overall assessment of whether a refusal to provide the information can be regarded as an “interference” with the freedom to “receive and impart information” as protected by Article 10 of the Convention (see Magyar Helsinki Bizottság, cited above § 170). 41. Accordingly, the Court has to establish whether in the present case the relevant domestic authorities were in possession of the information asked for by the applicant. 42.", "It follows from the facts of the case (see paragraph 11 above) and submissions of the parties that although the statistical data cards contained the parameters required by the applicant, only selected parameters were taken into account by the information centres and included in the publicly available crime statistics reports. Those reports, as confirmed by the parties, did not meet the requirements proposed by the applicant. 43. The Court notes that the applicant did not seek access to the statistical data cards or even final statistical reports, which were ready and available. Instead he essentially asked the domestic authorities to process and summarise information using specific parameters.", "44. The Court therefore accepts the Government’s arguments and concludes that the relevant authorities did not have information as specific as sought by the applicant. The information he was seeking was therefore not only not “ready and available”, but did not exist in the form the applicant was looking for. 45. The Court further recalls that Article 10 of the Convention does not impose an obligation to collect information upon the applicant’s request, particularly when, as in the present case, a considerable amount of work is involved (see Weber v. Germany (dec.), no.", "70287/11, §§ 25-28, 6 January 2015). The Court finds that there has been no interference with the applicant’s right to receive information as regards the first three parts of the request. ii. Final part of the applicant’s request 46. As regards the final part of the applicant’s request concerning general information on sentences imposed on individuals found criminally liable under Articles 241, 242, 242.1 and 127.1 of the Criminal Code, the Court notes that the Government did not deny that the required information existed, but submitted that it was held by the Judicial Department of the Supreme Court (see paragraph 34 above).", "47. The Court considers that there was an avenue available to the applicant to access the information, which he failed to use. In these circumstances, it cannot be said that the State interfered with or unduly restricted his right to receive information (see, mutatis mutandis, McGinley and Egan v. the United Kingdom (revision), nos. 21825/93 and 23414/94, § 90, ECHR 2000‑I). 48.", "There has accordingly been no violation of Article 10 of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been no violation of Article 10 of the Convention. Done in English, and notified in writing on 7 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stephen PhillipsLuis López GuerraRegistrarPresident" ]

[ "FIFTH SECTION CASE OF STEFAN ILIEV v. BULGARIA (Application no. 53121/99) 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 Stefan Iliev v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: MrP. Lorenzen, President,MrsS.", "Botoucharova,MrK. Jungwiert,MrR. Maruste,MrJ. Borrego Borrego,MrsR. Jaeger,MrM.", "Villiger, judges,and Mrs C. Westerdiek, Section Registrar, Having deliberated in private on 10 April 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 53121/99) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Stefan Milanov Iliev who was born in 1924 and lives in Sofia (“the applicant”), on 12 May 1999. 2. The applicant was represented by Mr I. Gruikin, a lawyer practising in Sofia.", "3. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Kotzeva, of the Ministry of Justice. 4. The applicant alleged that he had been subjected to inhuman or degrading treatment at the hands of the police and that there had been a lack of an effective investigation in response to his complaints. 5.", "By a decision of 2 February 2006 the Court declared the application partly admissible. 6. The parties did not submit further written observations on the merits (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE A.", "The applicant's detention 7. The applicant was seventy-two years old at the time of the events and had previously suffered from tuberculosis on at least three occasions. 8. On 19 December 1996 the applicant visited a café-bar where he drank and became intoxicated. On his way home, at around 6 p.m., he passed by the building of the Bulgarian national television (“BNT”), in front of which there was a demonstration.", "The applicant was carrying a beer bottle, which he either dropped or threw against the building of the BNT. He then went to a nearby café. 9. Two police officers, who were providing security in front of the BNT, approached the applicant in the café. When they saw that he was intoxicated they led him off to the security guards' duty room in the BNT.", "10. In response to the applicant's request to be informed why he was being detained he was told that it was for disturbing the peace and for throwing objects at the building of the BNT in an attempt to break its windows. 11. The applicant was kept in the security guards' duty room of the BNT until 8 p.m. He was then taken to the First District Police Station (Първо районно управление на МВР) for questioning, but, in view of his intoxicated state, was transferred to the Sobering-up Centre of the Sofia Police.", "The applicant arrived there at around 9 p.m. and remained overnight. 12. The applicant was discharged at around 9 a.m. on the next day, 20 December 1996, into the custody of the police and was taken to the Investigative Division of the First District Police Station for questioning. 13. At 11:15 a.m. on 20 December 1996 the applicant was given a written reprimand by the police to refrain from disturbing the peace, to drink with caution and not to resist inspections by the police.", "The applicant refused to be served with the written reprimand. 14. The applicant contended, which the Government did not challenge, that he was released from the police station sometime in the afternoon on 20 December 1996. B. The events upon the applicant's arrest 15.", "The applicant submitted that when he was detained by the two police officers in front of the building of the BNT he may have showed some resistance as he believed he was being wrongly detained. He contended, however, which the Government did not challenge, that while he was being led to the security guards' duty room of the BNT the police officers repeatedly hit him with a truncheon on his hands, kicked him in his ankles and punched him in the back and in the area of his kidneys. The applicant maintained that his injuries were not treated nor tended to by a doctor while he was in detention. 16. In their subsequent statements before the Prosecutor's Office, the police officers stated that the applicant was somewhat aggressive when they tried to detain him, but that they did not use any special measures to subdue him.", "17. After being released on 20 December 1996 the applicant was examined by a doctor and a special medical report for use in legal proceedings was prepared, the relevant part of which stated the following. “Preliminary data: The [patient] indicates that on 19.12.1996 at approximately 6 p.m. he was beaten by uniformed police officers. The examination established: On the back of the right hand in the area of the [bracelet] joint it is visible that a linear contusion of the skin exists of reddish-dark colour with a size of 5 cm by 2 cm. On the back of the wrist of the right hand another contusion can be seen with a size of 4 cm by 2 cm.", "On the back of the left hand in the area of the palm bone of the thumb there is a contusion and abrasion resulting from almost parallel scratches of reddish-dark colour protruding above the skin around them with a size of 3 cm by 2 cm. CONCLUSION The examination of [the patient] established: contusions and abrasions on the skin of both hands. These injuries resulted from blows by or against solid blunt objects or blunt-cornered objects, as well as from the tangential affects of such objects and [considering] their morphological characteristics [they] reasonably correspond and could have been sustained in the manner and at the time indicated by [the patient]. They caused him pain and suffering.” 18. In 1998 the applicant received treatment to ailments in his ankles and wrists.", "C. The applicant's complaints to the authorities 19. On 13 January 1997 the applicant complained to the Chief Prosecutor's Office regarding the beating by the police officers on 19 December 1996 and of being detained. On an unspecified date, he was informed that his complaint was being forwarded to the Sofia's Regional Military Prosecutor's Office. 20. On 21 March 1997 the Sofia Regional Military Prosecutor's Office refused to open a preliminary investigation because of lack of evidence of an offence.", "It based its decision on the applicant's complaint to the authorities and on statements from the police officers who arrested him and the officer on duty at the sobering-up centre. The Prosecutor's Office considered the applicant's assertions to be unfounded and unsupported by any facts other than his complaints. The applicant appealed against the decision of the Prosecutor's Office on an unspecified date. 21. By decision of 17 December 1997 the Armed Forces Prosecutor's Office upheld the decision of the Sofia Regional Military Prosecutor's Office.", "It found that the facts of the case did not warrant the opening of a preliminary investigation. The decision of 17 December 1997 stated, inter alia, the following: “From the materials [contained] in the file it [can be] ascertained that [the complaint] relates to the forced detention in a sobering-up centre of the applicant [following] a disturbance of public order [while] in an intoxicated state. The inquiries performed do not indicate that any unlawful actions [were performed] by the police. The collected data show that there was in fact a disturbance of public order – breaking of bottles, throwing objects at the building of the [Bulgarian national] television, etc. In such case quite rightly [the Sofia Regional Military Prosecutor's Office] refused to open a preliminary investigation.” 22.", "It is unclear whether a copy of the decision of the Armed Forces Prosecutor's Office was ever sent to the applicant. 23. On 30 December 1997 the applicant filed a complaint with the Chief Prosecutor's Office claiming that he had not received a response to his previous complaints. 24. On an undetermined date a prosecutor from the Armed Forces Prosecutor's Office responded, in the form of a resolution, which stated, inter alia, the following: “On 30 December 1997 a complaint was filed by [the applicant], who was not satisfied with the decision of the prosecutors from the Armed Forces Prosecutor's Office and the Sofia Regional Military Prosecutor's Office.", "I reject the complaint of [the applicant] because the Armed Forces Prosecutor's Office has already ruled on the matter and there is no necessity for it to change its position [expressed] in the decision of 17 December 1997.” 25. The Government contended that a copy of the above resolution was sent to the applicant on 14 January 1998. The applicant maintained, however, that he never received it and that he only became aware of the decisions of the Prosecutor's Office not to open a preliminary investigation on 21 November 1998. A note to that effect was inscribed in the applicant's handwriting on the copies of the decisions he provided to the Court. II.", "RELEVANT DOMESTIC LAW A. Use of force by the police 26. Section 40 (1) of the National Police Act, as in force at the relevant time, provided, as relevant: “... [P]olice [officers] may use ... force ... when performing their duties only if they [have no alternative course of action] in cases of: 1. resistance or refusal [by a person] to obey a lawful order; 2. arrest of an offender who does not obey or resists a police [officer]; ... 5. attack against citizens or police [officers]; ...” 27. Section 41 (2) provided that the use of force had to be proportionate to, in particular, the specific circumstances and the personality of the offender. 28.", "Section 41(3) imposed upon police officers the duty to “protect, if possible, the health ... of persons against whom [force was being used]”. B. Duty to investigate ill-treatment by the police 29. Articles 128, 129 and 130 of the Criminal Code make it an offence to cause a light, intermediate or severe bodily injury to another individual. 30.", "Article 131 § 1 (2) of the Criminal Code provides that if the injury is caused by a police officer in the course of or in connection with the performance of his or her duties, the offence is an aggravated one. This offence is a publicly prosecutable one (Article 161 of the Criminal Code). 31. Under the Code of Criminal Procedure (1974), as in force at the relevant time, preliminary investigations for publicly prosecutable offences could be opened only by a decision of a prosecutor or an investigator (Article 192). 32.", "The prosecutor or the investigator must open a preliminary investigation whenever he or she receives information, supported by sufficient evidence, that an offence might have been committed (Articles 187 and 190 of the Code of Criminal Procedure). 33. During the relevant period, the Code of Criminal Procedure provided that if the information provided to the authorities was not sufficiently supported by evidence, the latter had to conduct a preliminary inquiry (verification) in order to determine whether the opening of a preliminary investigation was warranted (Article 191). THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 34.", "The applicant complained, relying on numerous articles of the Convention, that he was beaten by the police officers when he was detained on 19 December 1996 and that there was a lack of an effective investigation by the authorities relating to the aforementioned. The Court finds that, considering the specific circumstances of the present case, these complaints fall to be examined under Article 3 of the Convention, which provides the following: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 35. At the admissibility stage of the proceedings the Government did not submit observations on the merits of the applicant's complaints but only raised an objection that they had been submitted out of time. In his observations in reply, the applicant restricted himself to responding to the Government's objection of inadmissibility. The Government's objection was dismissed by the Court (see Iliev v. Bulgaria (dec.), no.", "53121/99, 2 February 2006). 36. The parties did not submit further written observations (see paragraph 6 above). A. Substantive limb: alleged inhuman and degrading treatment 1.", "General principles 37. The Court reiterates that Article 3 of the Convention prohibits in absolute terms torture and inhuman or degrading treatment. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3.", "Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. The question whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account, but the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (see Labita v. Italy [GC], no. 26772/95, 6 April 2000, §§ 119-120, ECHR 2000-IV). 38.", "In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64‑65, § 161). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention.", "Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII). 39. The Court recalls in particular that where a person is injured while in detention or otherwise under the control of the police, any such injury will give rise to a strong presumption that the person was subjected to ill-treatment (see Bursuc v. Romania, no. 42066/98, § 80, 12 October 2004).", "It is incumbent on the State to provide a plausible explanation of how the injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V and Alsayed Allaham v. Greece, no. 25771/03, § 27, 18 January 2007). 2. Application of those principles to the present case 40.", "In the present case, the applicant claimed that the ill-treatment that resulted in injury took place after he was detained by the police officers in front of the BNT and while he was being led to the security guards' duty room (see paragraph 15 above). The Courts observes, in this respect, that the police officers alleged that at the time of the arrest they had not used any special measures to subdue the applicant (see paragraph 16 above). 41. In any event, the Court notes that the Government did not challenge the applicant's version of the events and they did not advance any other explanation as to the origin of his injuries (see, by contrast, Klaas v. Germany, judgment of 22 September 1993, Series A no. 269, pp.", "17‑18, §§ 29-30). Thus, the Court concludes that the Government have not established that the applicant's injuries were caused otherwise than – entirely, mainly, or partly – by the treatment he underwent while he was under the control of the police officers (see Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, p. 26, § 34 and Alsayed Allaham, cited above, § 30). 42. In particular, the ill-treatment complained of by the applicant consisted of being repeatedly beaten over the hands by the police officers who detained him on 19 December 1996 using blunt objects, such as truncheons or other similar shaped objects.", "As a result, he sustained a number of injuries to his hands, as evidenced by the medical report of 20 December 1996, and underwent medical treatment (see paragraphs 17-18 above). In the light of the above and in the absence of a satisfactory and convincing explanation by the Government, the Court considers that the injuries found on the applicant were the result of treatment for which the Government bore responsibility (see, mutatis mutandis, Toteva v. Bulgaria, no. 42027/98, § 56, 19 May 2004). 43. However, the Court notes that the applicant was intoxicated at the time of the events and showed some form of resistance to the police officers who detained him (see paragraphs 9, 15 and 16 above).", "Thus, it could be considered reasonable for the police officers to use a certain degree of physical force in order to effect the detention and to subdue him. The Court notes furthermore that no medical evidence supported the applicant's allegations insofar as the kicks in the ankles and the punches in the back in the area of his kidneys are concerned (see paragraphs 15 and 17 above). 44. In any event, the Court observes that the injuries suffered by the applicant were restricted to the area of his hands and that the degree of bruising established during the medical examination of 20 December 1996 was not particularly excessive or severe in nature. Thus, the Court does not consider, having regard to all the circumstances of the case, that the injuries were sufficiently serious to amount to inhuman and degrading treatment within the meaning of Article 3 of the Convention.", "45. Accordingly, it concludes that that there has been no violation of the substantive limb of Article 3 of the Convention. B. Procedural limb: alleged lack of an effective investigation 46. The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated by the police in breach of Article 3, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation.", "This investigation should be capable of leading to the identification and punishment of those responsible (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998‑VIII, p. 3290, § 102 and Labita [GC], cited above, § 131). 47. The Court considers that, taken together, the applicant's complaints to the Prosecutor's Office, the medical evidence of his injuries and the lack of any alternative explanation for them, other than that they were sustained on 19 December 1996 at the hands of the police, raised a reasonable suspicion that the said injuries could have been caused by the police which warranted an investigation by the authorities in conformity with the requirements of Article 3 of the Convention. 48. In the present case, however, the authorities refused to open a preliminary investigation.", "They considered that there was a lack of evidence of an offence in spite of the medical examination of 20 December 1996 attesting to the applicant's injuries to his hands. In fact, the Prosecutor's Office in its decisions failed entirely to address the medical evidence and reached conclusions which were predominantly based on the statements of the police officers involved, without at all considering what possible justification there might have been for any of them to hit the applicant's hands with a truncheon, or other similar shaped objects, at the time of the latter's arrest (see paragraphs 20, 21 and 24 above). 49. For these reasons, no effective criminal investigation can be considered to have been conducted in response to the applicant's arguable claim that he had sustained injuries at the hands of the police. Thus, the Court finds that there has been a violation of the procedural limb of Article 3 of the Convention (see, mutatis mutandis, Osman v. Bulgaria, no.", "43233/98, §§ 72-79, 16 February 2006 and Tzekov v. Bulgaria, no. 45500/99, §§ 69-73, 23 February 2006). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 50. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 51. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage for the physical and emotional pain and suffering caused by the violations of his rights under the Convention. He claimed that as a result, he had been disgraced before his family and the community, and that he been under considerable stress for a long time. 52. The Government did not submit comments on the applicant's claims in respect of non-pecuniary damage.", "53. The Court finds it reasonable that the applicant suffered non‑pecuniary damage on account of the distress and frustration resulting from the inadequacy of the investigation into his complaints. Accordingly, deciding on an equitable basis, the Court awards the sum of EUR 750. B. Costs and expenses 54.", "The applicant claimed EUR 1,840 for 23 hours of legal work by his lawyer before the Court, at an hourly rate of EUR 80. He submitted a legal fees agreement with his lawyer and a timesheet for the work performed. 55. The Government did not submit comments on the applicant's claims for costs and expenses. 56.", "The Court reiterates that according to its case-law, an applicant is entitled to reimbursement of his or her costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. Noting all the relevant factors, the Court considers it reasonable to award the sum of EUR 500 in respect of costs and expenses, plus any tax that may be chargeable on that amount. C. Default interest 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.", "Holds by four votes to three that there has been no substantive violation of Article 3 of the Convention; 2. Holds unanimously that there has been a violation of Article 3 of the Convention on account of the lack of an effective investigation into the applicant's complaints that he had sustained injuries at the hands of the police; 3. Holds unanimously (a) that the respondent State is to pay to the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable on the date of settlement: (i) EUR 750 (seven hundred and fifty euros) in respect of non-pecuniary damage; (ii) EUR 500 (five 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 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 unanimously 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.", "Claudia WesterdiekPeer LorenzenRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint partly dissenting opinion of Mr Lorenzen, Mr Jungwiert and Mr Maruste is annexed to this judgment. P.L.C.W. JOINT PARTLY DISSENTING OPINION OF JUDGES LORENZEN, JUNGWIERT AND MARUSTE We agree with the majority that the procedural requirements of Article 3 of the Convention were violated, but are for the following reasons unable to share the majority's conclusion that there has been no substantive violation of that article. In the present case the Government did not challenge the applicant's version of the events and did not advance any other explanation as to the origin of his injuries. Accordingly the Court has found it established that the applicant had been repeatedly beaten over the hands by the police officers who detained him using blunt instruments such as truncheons or other similar shaped objects.", "As a result he sustained a number of injuries to his hands and underwent medical treatment, cf. § 41 of the judgment. The Court has constantly held in its case-law that in respect of a person deprived of his liberty recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3, cf. among many authorities Assenov and Others v. Bulgaria (judgment of 28 October 1998, Reports of Judgments and Decisions 1998‑VIII, p. 3288, § 94) and most recently Barta v. Hungary (no. 26137/04, § 62, 10 April 2007).", "The injuries the applicant sustained are described in detail in the medical report issued the day after his arrest, and the doctor concluded, inter alia, that they caused him pain and suffering. Taking into account the degree of bruising established and considering also the manner in which the injuries were inflicted and the applicant's advanced age, it is our opinion that the injuries were sufficiently serious to amount to ill-treatment within the scope of Article 3 of the Convention. The question remains whether recourse to physical force in the form of repeated beating over the hands with truncheons or similar blunt instruments was strictly necessary in the circumstances of the case. It is true that the applicant was intoxicated at the time of the events and probably showed some form of resistance to the police officers who detained him. However, considering that there were at least two police officers at the scene and noting the age and behaviour of the applicant we find it unproven that it was absolutely necessary to use such physical force against him in order to effect the detention or subsequent to it.", "Moreover, the injuries to his hands do not suggest to have been sustained in the course of a possible struggle with the police officers in order to subdue him. It follows that in our opinion there has been a violation of the substantive limb of the said Article in that the applicant was subjected to inhuman and degrading treatment." ]

[ "SECOND SECTION CASE OF KARAKOÇ v. TURKEY (Application no. 28294/95) JUDGMENT (Friendly settlement) STRASBOURG 2 November 2004 This judgment is final but it may be subject to editorial revision. In the case of Karakoç v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrL. Loucaides,MrC. Bîrsan,MrK.", "Jungwiert,MrV. Butkevych,MrsW. Thomassen, judges,MrF. Gölcüklü, ad hoc judge,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 30 May 2000 and 12 October 2004, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no.", "28294/95) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Erdal Karakoç (“the applicant”), on 11 April 1995. 2. The applicant, who had been granted legal aid, was represented by Ms A. Stock, a lawyer attached to the Kurdish Human Rights Project in London. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.", "3. The applicant complained that he had been a victim of a violation of Articles 3, 5, 6, 8, 13, 14 and 18 of the Convention and Article 1 of Protocol No. 1 to the Convention. 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. On 30 May 2000, having obtained the parties' observations, the Court declared the application admissible. 5. On 12 March 2004, 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 1 April and 20 September 2004 the applicant and the Government respectively submitted formal declarations accepting a friendly settlement of the case.", "THE FACTS 6. The applicant was born in 1967 and lives in Hozat, Tunceli. A. Applicant's version of the facts 7. Until October 1994 the applicant lived in Kozluca, a village of the Hozat district in Tunceli, where he owns property.", "8. In October 1994 security forces forcibly evacuated Kozluca. They also destroyed the applicant's property. The applicant and his family then moved to Hozat, where they currently live. 9.", "On 31 October 1994 the applicant petitioned the offices of the Prime Minister, the Tunceli governor and the governor of the state of emergency region. He complained that he had been forcibly evicted from his village by the security forces. 10. On 16 November 1994 the applicant lodged a petition with the Public Prosecutor's office in Hozat and requested that an investigation be initiated against those responsible for the evacuation of his village and the destruction of his property. 11.", "On 26 January 1995 the Hozat District Governor wrote a letter in reply to the applicant stating that he could not be provided with housing as he did not fulfil the requirements of Law no. 2510 on housing. 12. The applicant did not pursue any other domestic remedy. B.", "Government's version of the facts 13. The applicant left his village on account of the terrorist activities in the region and there is no evidence indicating that his house was burned down. 14. The Hozat District Governor supplied the applicant with accommodation upon his request. He further received aid for food, heating and rent.", "However, the applicant did not apply to the authorities to receive the monetary aid which was due at the time. 15. On 11 January 1995 the Chief Public Prosecutor in Hozat, who had received the applicant's criminal complaints concerning his eviction from his village and destruction of his property, issued a decision of non‑jurisdiction and referred the investigation file to the District Administrative Council in Hozat in accordance with the Law on the Prosecution of Civil Servants. The investigation is still pending before the Administrative Council. THE LAW 16.", "On 20 September 2004 the Court received the following declaration from the Government: “1. The Government regret the occurrence, as in the present case, 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, notwithstanding existing Turkish legislation and the resolve of the Government to prevent such acts and to remedy such failures. It is accepted that such acts and failures constitute 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 the aforementioned Articles – including the obligation to carry out effective investigations – are respected in the future.", "It is noted in this connection that there is no obstacle to the return of the applicant to his village. Furthermore, necessary provisions for the restoration of his house will be supplied in accordance with the 'Return to Village and Rehabilitation Project'. It is further noted 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. 2. I declare that the Government of the Republic of Turkey offer to pay ex gratia to the applicant an all-inclusive amount of EUR 48,000 (forty eight thousand euros) with a view to securing a friendly settlement of his application registered under no.", "28294/95. 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 applicant and/or his 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. In the event of failure to pay this sum within the said three month period, the Government undertake to pay, until settlement, simple interest on the amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.", "3. 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. 4. Finally, the Government undertake not to request the referral of the case to the Grand Chamber pursuant to Article 43 § 1 of the Convention after the delivery of the Court's judgment.” 17.", "On 1 April 2004 the Court received the following declaration signed by the applicant's representative: “1. In my capacity as the representative of the applicant, I have taken cognisance of the terms of the declaration of the Government of Turkey and of the fact that they are prepared to make to the applicant an ex gratia all-inclusive payment of EUR 48,000 (forty eight thousand euros) with a view to concluding a friendly settlement of his case that originated in application no. 28294/95. This sum, which also covers the costs and expenses related to the case, will be paid in accordance with the terms stipulated in the said declaration within three months after notification of the Court's judgment delivered pursuant to Article 39 of the European Convention on Human Rights. 2.", "Having duly consulted the applicant, I accept that offer and he, in consequence, waives all other claims against the Republic of Turkey in respect of the matters that were at the origin of the application. We declare that the case has been settled finally and we undertake not to request the referral of the case to the Grand Chamber pursuant to Article 43 § 1 of the Convention after the delivery of the Court's judgment. 3. This declaration is made within the scope of the friendly settlement which the Government and I, in agreement with the applicant, have reached.” 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 2 November 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléJ.-P. Costa RegistrarPresident" ]

[ "FIFTH SECTION CASE OF HUSSEINI v. SWEDEN (Application no. 10611/09) JUDGMENT STRASBOURG 13 October 2011 FINAL 08/03/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Husseini v. Sweden, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Dean Spielmann, President,Elisabet Fura,Boštjan M. Zupančič, Mark Villiger,Isabelle Berro-Lefèvre,Ganna Yudkivska,Angelika Nußberger, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 6 September 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "10611/09) against the Kingdom of Sweden 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, Aftab Hussein Husseini (“the applicant”), on 23 February 2009. 2. The applicant was represented by Mr Sture Tersaeus, a lawyer practising in Goteborg. The Swedish Government (“the Government”) were represented by their Agent, Mrs Charlotte Hellner, from the Ministry for Foreign Affairs. 3.", "The applicant alleged, in particular, that an implementation of the order to deport him to Afghanistan would be in breach of Articles 3 and 8 of the Convention. 4. On 24 July 2009 the President of the Third Section decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to deport the applicant until further notice. 5. On 14 October 2009 the said President 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). 6. On 1 February 2011 the Court changed the composition of its Sections (Rule 25 § 1 of the Rules of Court) and the above application was assigned to the newly composed Fifth Section. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Asylum proceedings 7.", "The applicant was born in 1980 and currently lives in Sweden. 8. On 1 September 2003 he applied for asylum and a residence permit in Sweden. In interviews before the Migration Board (Migrationsverket) on 5 November 2003 and 11 March 2004 the applicant stated that he was ethnic Hazara, Shia Muslim and born and raised in a small community consisting of approximately thirty-five families in the province of Ghazni. He had never been to school and was illiterate.", "He claimed that his problems emanated from the fact that his father was of Hazara ethnicity and his mother was of Pashtun ethnicity. As a child of mixed ethnicity, he had not been allowed to play with other children as they had been unkind to him. Since it had not been possible to leave him alone, he had always been with his father at his store in the nearest city. When the Taliban had taken power in the province, they had frequently come to the store and taken food without paying, for which reason other people in the city had believed that the family sympathised with the Taliban. The fact that his mother was Pashtun had reinforced this view.", "Moreover, his father had inherited everything from his grandfather, despite there being an older uncle, as the latter had been disowned due to bad behaviour. The uncle had then become very hostile to the applicant and his family. After the fall of the Taliban, the applicant’s situation had worsened as other villagers looked upon the applicant and his parents as traitors. He had been assaulted and severely beaten on several occasions and twice he had lost consciousness. They had also broken his nose and cut him with a knife.", "During the summer of 2003 he had been kidnapped twice and ill-treated. The first time he was locked up in a cellar for one day, and some months later he was held prisoner for two days. Each time he had been released when his father had paid a large amount of money. His father had been advised by his business partner to move but he had refused as he thought things would get better over time. Moreover, the applicant did not know if his mother had any relatives as she had never mentioned any, but they could not have moved to her home town since she had married a man from another ethnic group.", "9. In July 2003 a group of masked men had come to their house and his father had told him to leave the house, which he had managed to do by escaping through the basement. He had seen the assailants kill his mother before he fled. He had then gone to Kabul where he had found out from a taxi driver who had a route to his home town that his father had also been killed. His father’s business partner had helped him to leave the country and he had had contact with no one since he left.", "The applicant was convinced that he would be killed if returned to Afghanistan and that the authorities neither could nor would help him. As he was of mixed ethnicity he would not be welcome anywhere in the country. 10. On 4 May 2004 the Migration Board rejected the application. It found that the general situation in Afghanistan was not such that the applicant could be granted leave to remain in Sweden on this sole ground.", "Turning to the applicant’s personal circumstances, the Board observed that it had found no evidence that persons of mixed ethnicities faced specific problems in Afghanistan. According to the applicant’s own account, ethnicity was passed down by the father, for which reason the applicant was considered a Hazara. Thus, the Board did not believe that the applicant had faced such discrimination as claimed because of his mixed ethnicity. Moreover, it noted that, again according to the applicant, everyone in his village had tried to get along with the Taliban and had paid to be well treated by them. Therefore the Board was not convinced that the applicant and his family had been suspected of being collaborators with the Taliban and ill-treated on this ground.", "The Board further questioned the claim that the applicant had no relatives other than his uncle, having regard to the very strong family ties in Afghan culture. In any event, his father’s business partner was still there and had shown a friendly and supportive attitude to the applicant and his family. Consequently, the Board concluded that the applicant had a social network in Afghanistan which made it possible for him to return. Since there was no other reason to grant the applicant leave to remain in Sweden, his application was rejected. 11.", "The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden), and was therefore heard again. He maintained his claims and added that he was not considered a Hazara simply because his father was one. Moreover, the suspicion that they had collaborated with the Taliban was also based on the fact that his mother was Pashtun and that the Taliban had not touched their home. The family’s poor reputation had then been used against them by his uncle. His mother had no contact with her family since she had married outside her ethnicity.", "Moreover, his father’s business partner had become wealthy thanks to the applicant’s father and therefore had owed him a favour. In any event, it was money from their business which had paid for the applicant’s trip. 12. On 28 February 2005 the Aliens Appeals Board rejected the applicant’s appeal as concerned his asylum application. It noted that the U.S.", "Coalition Forces had established a military base in Ghazni to stabilise the area. Against this background, and for the reasons set out in the Migration Board’s decision, the Aliens Appeals Board found it unsubstantiated that the applicant would risk persecution upon return. B. Proceedings as to a residence permit based on family ties 13. In February 2004 the applicant married a Pakistani woman, who had been granted a residence permit in Sweden due to a previous marriage.", "In December 2004 the couple had a daughter and therefore, on 28 February 2005 the Aliens Appeals Board exempted the applicant from the regulation on family reunification which set out that an applicant must apply for a residence permit on the basis of family from his country of origin. The Aliens Appeals Board thus granted the applicant a temporary residence permit for one year. On 28 March 2006 the applicant was granted a permanent residence permit in Sweden on the same grounds. The couple had a son on 11 April 2006. C. Criminal proceedings against the applicant 14.", "On 3 August 2007 the applicant’s wife left him, and, together with the children, went to live at a protected address. The children were at that time approximately two and a half and one and a half years old. The estranged wife reported to the police that she had been raped and ill-treated by the applicant for the last two years and that he had also hit their daughter. She explained that she had already tried to leave the applicant in August 2006 after he had threatened her with a knife and the police had to intervene. Criminal proceedings were immediately initiated.", "15. Subsequently, the prosecution authority issued restraining orders against the applicant vis-à-vis his estranged wife and their children, under section 1 of the Restraining Orders Act (lagen (1988:688) om besöksförbud). 16. On 25 March 2008 the applicant was examined by two psychiatrists at the National Board of Forensic Medicine, who in a medical report of 7 April 2008 noted that the applicant described having symptoms of PTSD and depression with suicidal thoughts. Should a sentence of imprisonment be considered, an examination of the applicant by a forensic psychiatrist was recommended.", "17. The trial took place before the District Court (tingsrätten) in Norrköping, and commenced on 8 April 2008, when the applicant, his estranged wife, her mother and two neighbours were heard and documentary evidence submitted. The applicant was detained on remand on 11 April 2008 and submitted for examination by a forensic psychiatrist, who concluded that the applicant was not suffering from a serious mental disturbance and that he had not committed the act of which he was accused due to serious mental disturbance. 18. By judgment of 19 May 2008 the District Court (tingsrätten) in Norrköping convicted the applicant of rape and aggravated violation of a woman’s integrity (grov kvinnofridskränkning) committed several times a week over a period of two years, between 2005 and 3 August 2007.", "The violation included hitting, pushing, hair pulling and threatening to harm or kill the wife and the children, or to take the children away from the wife by taking them to Afghanistan. The District Court noted that the wife had made a very composed and credible impression. She had presented her story, which was supported by witness statements, in a calm and balanced way. 19. The applicant was sentenced to two years’ imprisonment and five years’ expulsion from Sweden, with a prohibition on returning before 19 May 2013.", "20. In its decision to expel the applicant the District Court had regard, inter alia, to a report dated 8 April 2008 from the relevant social welfare board relating to the issue of the children’s need for contact with their father and how they would be affected by his expulsion. It pointed out that the estranged wife was afraid of the applicant and therefore still lived at a secret address. The children had not seen their father since August 2007 and the mother would only take part in visits if a contact person were present. An expulsion would most likely mean that the children would not have any contact with their father during the expulsion period.", "Generally, children needed close and good contact with both their parents. However, the courts and the social services also had to take into account the risk of children being subjected to violence, abuse, abduction, etc. Having regard to the crimes at issue, the overall assessment was therefore that the children’s need for contact with their father, if convicted, should be balanced against the risk of their being subjected to, or becoming witness to, violence or other degrading treatment during access. 21. In its decision to expel the applicant, the District Court essentially stated the following.", "In view of the nature of the crimes and the circumstances of the case, there was reason to fear that the applicant would continue to commit crimes in Sweden. Moreover, in view of the ill‑treatment endured by the estranged wife and caused by the applicant, the crimes were considered to be so serious that the applicant should not be allowed to remain in Sweden. He lacked any substantial connection to Sweden other than his family, who had to live at a secret address to avoid being persecuted by him. In conclusion, the children’s need for contact with their father could not be considered to be so significant that an expulsion should be avoided. However, having regard to the children, the expulsion period was limited to five years.", "Finally, the Migration Board had been heard and had stated that there were no impediments to the expulsion of the applicant to his home country. 22. The applicant appealed to the Göta Court of Appeal (hovrätten), before which the applicant and the estranged wife were heard, as were the witnesses who had been heard before the District Court. On 25 July 2008 the Göta Court of Appeal upheld the lower court’s judgment in full. 23.", "The applicant requested leave to appeal to the Supreme Court (Högsta domstolen) which was refused on 17 September 2008. D. Proceedings concerning custody and access 24. Having left the applicant on 3 August 2007, on 17 August 2007 the estranged wife filed for divorce from the applicant and sole custody of the children. She contended that she had been ill-treated by the applicant, that he had also hit the children, and that she had reported the abuse to the police. The applicant agreed to a divorce but requested sole custody of the children.", "He also demanded access to the children for four hours a month in the presence of a contact person. 25. On 9 November 2007, the District Court temporarily granted the estranged wife sole custody of the couple’s children while the proceedings were pending before it. It further decided temporarily that the applicant should not have physical contact with the children during this time. It noted in that respect that the applicant had been accused of serious crimes, including violence against the daughter.", "The prosecutor was considering whether to charge the applicant and, while awaiting developments in this regard, the District Court found joint custody to be incompatible with the children’s best interest. Nor should access between the applicant and the children be established under those circumstances. 26. The applicant’s appeal against the decision was rejected by the Court of Appeal on 30 November 2007. 27.", "As stated above, in the criminal proceedings the applicant was convicted on 19 May 2008 by the District Court. 28. In the custody and access proceedings, at the request of the District Court, the social welfare board submitted a report dated 5 June 2008 concerning custody and access rights, based on four interviews with the estranged wife and two interviews with the applicant (one at home and one at the pre-trial detention centre). The social welfare board had also met the children at their home in March 2008, and spoken to the children’s nursery school and to a deaconess involved in the case. In addition, they had had access to relevant written material such as the first instance criminal judgment against the applicant and the examination conducted by the forensic psychiatrist.", "The report stated that in view of the applicant’s abuse of his estranged wife and the fact that he had probably also physically abused his daughter, there was a high risk that the children would be harmed if the applicant were to have custody of them. The children were very young when they last had contact with the applicant and they would have no memories of their father that they could express in words. Their need for a relationship with their father would increase when they became older. Access between them and the applicant would involve an increased risk that their secret address would become known to him. This risk should be balanced against the fact that the applicant had subjected his family to abuse and that he would probably be expelled upon release from prison.", "Thus, it was advised that he should not have access to the children. In order to meet the children’s need for contact with their origins, it was noted that such could be accommodated through letters. The social welfare board could distribute letters from the applicant to the children via the estranged wife, who in turn could reply within a month to report on the children’s development. 29. The applicant and his estranged wife divorced in July 2008.", "30. On 17 September 2008 the applicant’s conviction and sentence became final. 31. In letters of 17 and 26 June, and 1 September 2008 the applicant submitted his observations on the report from the social welfare board. He found that the report was partial to the benefit of the estranged wife and not in the interests of the children.", "32. On 4 November 2008, the District Court held a hearing in the case. Represented by legal counsel, the applicant and his ex-wife were heard. Seven witnesses were heard at the applicant’s request. A representative from the social welfare board stated that the aim had been to see both parents an equal number of times during the custody investigation but that this had not been possible because the applicant was detained on remand.", "In general young children were directly affected by how their mother was treated and it was therefore very likely that the applicant’s daughter would experience bad memories if she had to see the applicant. Moreover, if the children were to have contact with the applicant, they would be exposed to yet another separation from him when the expulsion order was implemented. Thus, for the moment it was not in the children’s best interests to see the applicant. 33. By judgment of 18 November 2008, the District Court granted the ex-wife sole custody of the couple’s two children and ordered that the applicant should not have visiting rights to the children.", "The court noted that the ex-wife and the children lived at a secret location and that the children were well and felt safe with their mother. Moreover, the applicant was in prison, and once his sentence was served he would be expelled to Afghanistan with a prohibition on returning until May 2013. Against this background, it was most appropriate that the ex-wife be granted sole custody of the children. 34. As concerned access rights, the court noted that according to several witness statements the applicant had been a good father to his children.", "However, there was a considerable risk that the children had experienced the violence to which their mother had been subjected and that seeing the applicant could bring back bad memories and disturb the sense of safety that the children now experienced. Moreover, the applicant was now in prison, from where he would only be able to have very restricted access to his children. Furthermore, even if the children were able to create a safe relationship with the applicant during such limited access, the applicant would subsequently be expelled and therefore separated from his children until May 2013. The District Court therefore found that access was not in the children’s best interest. It did not rule out that access might be established at a later point in time.", "35. The District Court only took a stand on access as requested by the applicant, namely to have physical contact with his children in the presence of a contact person. It did not take any decision regulating or limiting the applicant sending letters to his children. Practically, however, sending letters was complicated by the fact that the children lived with their mother at a secret address. Nevertheless, it was possible to send letters to the children via the Swedish Tax Agency.", "Also, the offer by the social welfare board to pass on letters from the applicant to the children via their mother still stood. The applicant availed himself thereof once at Christmas when he send gifts to the children. Moreover, on 23 October 2008 the ex-wife gave detailed information about the children and their everyday life to the social welfare office, and that information was subsequently communicated to the applicant. 36. The applicant appealed against the District Court judgment of 18 November 2008 to the Court of Appeal, stating that he had requested the Government to repeal his expulsion order and that he had lodged a complaint with the European Court of Human Rights on 23 February 2009 as he considered that his expulsion to Afghanistan would be in violation of Article 3 of the Convention.", "Consequently, it was not certain that he would be expelled and hence his proposed expulsion was not a reason to deny him access to his children. Moreover, he owned a house and had a job and several friends, for which reason he could offer the children a stable place to visit once he was released from prison. He found it unacceptable that he had no news at all of his children and allegedly was only allowed to send two letters per year to them. The ex-wife stated that the applicant could have access to the children when they were older. 37.", "On 23 March 2009 the Court of Appeal refused leave to appeal and, on 29 May 2009, so did the Supreme Court. E. Requests for the expulsion order to be revoked 1. Application in August 2008 38. On 1 August 2008, the applicant requested the Government to repeal his expulsion order and grant him a residence permit in Sweden. He submitted essentially that there were problems in Afghanistan between Shia and Sunni Muslims, that he had been wrongfully convicted and that he had two children in Sweden.", "39. In a submission of 20 August 2008, the applicant stated that when the Taliban came into power in 1996 and took control of the Hazara area, his father started talking about schools and freedom with others in the Hazara group. The Taliban perceived from this that his father was dissociating himself from his religion. They tried to capture him but he went into hiding. The applicant was captured instead and imprisoned.", "He was ill‑treated for thirty-five days, which included beating and being stabbed in the back with a knife, to get him to reveal his father’s hiding place, which he refused. His father paid a large ransom for his release after thirty-five days and the applicant was admitted to hospital for over a month. A few weeks later he went with his father to the mosque, where they were captured by the Hazaras who told the applicant that he was not a Shia Muslim since his father was married to a Pashtun. They wanted him to prove his loyalty to the Shia by walking on burning coals. When he refused, they stabbed him in the shoulder.", "He walked on the coals and suffered serious burns to his feet. He was left alone and his father came in disguise in the middle of the night to pick him up. His father had to carry him home, where he was treated for his injuries. About a week later, he and his father went to the mosque again and there the others decided that his father should kill him and his mother, which his father refused. Then it was decided that the whole family should die and one of his father’s friends warned them of this.", "The applicant was twenty-one at the time. He and his parents woke up in the middle of the night to find that the house was on fire and that people were trying to get in through the window. His father fetched a weapon and his mother opened a hatch to an escape tunnel under the house. Before jumping down he saw his mother being injured. They threw down money to him and closed the hatch.", "He had no choice but to crawl out through the tunnel. He stood and watched while the house burned down and then went to the home of one of his father’s friends who lived in another city. This man helped him leave Afghanistan. 40. In a submission of September 2008, the applicant added that he suffered from post-traumatic stress syndrome (PTSD), that he had tried to commit suicide, and that he had no family other than his children and a new girlfriend in Sweden.", "41. On 4 December 2008 the Government rejected the applicant’s request. It found that there was no impediment to the enforcement of the expulsion order and no other special reasons to grant the applicant a residence permit in Sweden. 2. Application in January 2009 42.", "In January 2009, the applicant submitted a new application, dated 31 December 2008, for revocation of the expulsion order. He added that he had not been in contact with his country of origin since he left but knew that his father’s business partner, who had helped him escape, had been killed. Since his parents had been killed and he himself had been tortured by the Taliban, his life was in great danger. He also risked being killed upon return to Afghanistan for having married a Sunni Muslim woman although he was a Shia and for having violated a Sunni Muslim woman in the acts for which he had been convicted in Sweden. Invoking anew his poor mental health, the applicant submitted some medical certificates.", "One certificate was dated 16 February 2009 and written by a physician at the prison. It stated that the applicant had alleged that he had been imprisoned and tortured on several occasions in Afghanistan and that the physician had seen a large number of scars on his back from cuts. He also had two scars from stab wounds to his thigh and his shin. The physician confirmed that the scars might have been caused by torture as alleged by the applicant. A second medical certificate was dated 17 April 2009 and written by a chief physician and specialist in psychiatry, and by a psychologist at the Medical Centre for Refugees.", "It stated that the certificate was based on the applicant’s contacts with the Centre from October 2005 to October 2008. He had begun psychotherapy at the Centre in October 2005 to talk about his background and traumatic experiences. The physicians had considered that he was clearly traumatised and had several symptoms of PTSD such as nightmares, flashbacks and anxiety. However, the applicant had been found stable in May 2006 for which reason the sessions had ended. In August 2007 the applicant had contacted the physicians again because he had been feeling unwell.", "When he had been arrested on suspicion of raping B., he had been placed in a cell and had experienced strong flashbacks from when he had been kidnapped and tortured for one month in Afghanistan. He had been so desperate that he had cut his wrists with a table knife and had then spent one night in the psychiatric emergency department. He had then resumed his sessions with the psychologist and had received medication to help him sleep. However, he had overdosed on the medication in October 2007 due to the strain caused by the criminal trial against him. His last session had been in April 2008, before being imprisoned, and after the judgment he had again tried to commit suicide by taking an overdose of pills.", "According to the two physicians, the applicant suffered from PTSD, depression, anxiety and had a serious stress reaction to his situation. He was therefore in a very fragile state mentally, with a high risk of suicide if the expulsion order were to be enforced. Thus, they concluded that there were medical-psychiatric impediments to the enforcement of the expulsion order. 43. On 4 June 2009 the Government rejected the new request as it found that there was no impediment to the enforcement of the expulsion order and no other special reasons to grant the applicant a residence permit in Sweden.", "3. Application in July 2009 44. Finally, in July 2009 the applicant submitted a third application for revocation of the expulsion order based essentially on the same grounds as the previous ones. That case is still pending before the Ministry of Justice. D. Subsequent events 45.", "On 24 July 2009 the Court decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to deport the applicant until further notice. 46. On 5 August 2009, following the Court’s indication under Rule 39 of the Rules of Court, the acting Minister of Justice decided to stay the enforcement of the expulsion until further notice. 47. The Minister also decided that the applicant should be taken into custody upon his conditional release from prison.", "Accordingly, the applicant was taken into custody on 11 August 2009. He was released on 28 January 2010 by decision of the Supreme Administrative Court. 48. In the meantime, the Government requested additional information from the Migration Board about some of the issues raised in the present case. Having made an investigatory visit to Afghanistan in November/December 2009, the Migration Board concluded, inter alia, that the security situation in Afghanistan was not such that an expulsion thereto in general would entail a violation of Article 3 of the Convention.", "The Board noted, however, that according to various sources, the Taliban had increased their operation in Ghazni province where arbitrary killings and civilian deaths among supporters of Government forces had been reported. In Ghazni province the violence had increased mostly in the Pashtu-dominated south, while the situation was relatively calm in the Hazara-dominated northern part of the province. Thus, at the relevant time, there were impediments to enforcing expulsion orders to Ghazni province, notably due to the unstable security situation, which meant, among other things, that humanitarian organizations could not operate in the province and that there were problems for travellers on the road between Kabul and the province. 49. On l4 June 2010 the prosecution authority issued restraining orders against the applicant vis-à-vis his ex-wife and their children, under section 1 of the Restraining Orders Act.", "The prosecution noted that the applicant had previously been convicted of rape and aggravated violation of a woman’s integrity regarding his former wife, and found that there was a risk that the applicant would commit a crime against, persecute or in some other way seriously harass his former wife or the children. The orders were in force for one year, that is until 13 June 2011. Violation of restraining orders is a crime under the aforementioned Act that can result in a fine or a maximum prison sentence of one year. The applicant failed to bring the decision before the courts. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Domestic law on asylum 50. The provisions concerning the right of aliens to enter and to remain in Sweden are laid down in the Aliens Act (Utlänningslagen, 2005:716 ‑ hereafter referred to as “the Aliens Act”) which replaced, on 31 March 2006, the old Aliens Act (Utlänningslagen, 1989:529). The Aliens Act was amended anew on 1 January 2010. The following refers to the Aliens Act in force at the relevant time.", "51. Under the previous Aliens Act, asylum applications were dealt with by the Migration Board and the Aliens Appeals Board. Under the Aliens Act in force, matters concerning the right of aliens to enter and remain in Sweden are normally dealt with by three instances, the Migration Board, the Migration Court and the Migration Court of Appeal. Thus, appeal against a decision or an order for expulsion issued by the Migration Board, which carries out the initial examination of the case, lies to the Migration Court. The Migration Board is, in principle, obliged to review its decision before it forwards an appeal to the Court.", "Appeal against a judgment or decision of the Migration Court in turn lies to the Migration Court of Appeal. This instance will, however, only deal with the merits of the case after having granted leave to appeal. Leave to appeal will be granted if (1) it is considered of importance for the guidance of the application of the law that the appeal is examined by the Migration Court of Appeal or (2) there are other exceptional grounds for examining the appeal. 52. Chapter 5, Section 1, of the Aliens Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden.", "According to Chapter 4, Section 1, of the Aliens Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the Aliens Act). 53. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force.", "This applies, under Chapter 12, Section 18, of the Aliens Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the Aliens Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the Aliens Act). B.", "Domestic law on expulsion 54. Pursuant to Chapter 1, Article 8 of the Penal Code (Brottsbalken, 1962:700) a crime may, apart from ordinary sanctions, result in special consequences defined by law. Expulsion on account of a criminal offence constitutes such a consequence and the decision in this respect is made by the court in which the criminal proceedings take place. 55. Provisions on expulsion on this ground are laid down in the Aliens Act.", "According to Chapter 8, sections 8 and 11, an alien may not be expelled from Sweden on account of having committed a criminal offence unless certain conditions are satisfied and the person’s links to Swedish society have been taken into account. 56. Moreover, the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision. Thus, pursuant to Chapter 12, section 1, of the Aliens Act, there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment. Furthermore, a risk of persecution generally constitutes an impediment to enforcing an expulsion decision.", "57. If the Government find that a judgment or decision to expel a person on account of having committed a criminal offence cannot be executed or if there are otherwise special reasons not to enforce the decision, by virtue of Chapter 8, section 14 of the 2005 Act, the Government may repeal, in part or completely, the judgment or decision of the court. When considering whether to repeal an expulsion order, the Government shall above all take into account any new circumstances, namely circumstances that did not exist at the time of the courts’ examination of the criminal case. In the travaux préparatoires to this provision (Government Bill 1988/89:86, p. 193), strong family ties and severe illness are given as examples of such “special reasons” that may warrant revocation of an expulsion order. The Government may also, in accordance with Chapter 11, Article 13, of the Instrument of Government (Regeringsformen), pardon or reduce a penal sanction or other legal effect of a criminal act.", "C. Domestic law on custody and access 58. Rules concerning rights of access to children are primarily to be found in Chapter 6 of the Children and Parents Code (SFS 1949:381; hereinafter the Code). The best interests of the child must be the determining factor in all decisions concerning custody, residence and access. In the assessment of what is in the best interests of the child, particular attention shall be paid to the risk of the child or another member of the family being exposed to abuse or of the child being unlawfully abducted, retained or otherwise harmed. Particular attention shall also be paid to the child’s need for close and good contact with both parents.", "Regard should also be given to the wishes of the child while taking into account the age and maturity of the child (Chapter 6, Section 2 a, of the Code). 59. A child shall have the right to access with a parent with whom he or she is not living. Access may take place by the child and the parents seeing each other or by other kinds of contact. The child’s parents have a joint responsibility to ensure that, as far as possible, the child’s need for access to a parent with whom he or she is not living is met.", "If both parents have custody of the child and the child is to have access to a parent with whom he or she is not living, the other parent shall provide such information about the child as will promote access, unless there are special reasons to the contrary. If the child is to have access to a parent who does not have custody or with some other person who is particularly close to the child, the information referred to in the previous sentence shall be provided by the person with custody (Chapter 6, Section 15, of the Code). 60. The courts may decide that particular conditions or directions shall apply to the right of access, such as the presence of a contact person or where the contact should take place. However, according to the Supreme Court such directions shall be decided only in exceptional cases since too detailed directions may lessen the parents’ will to cooperate.", "Directions may be given if, without them, the contact would not take place at all or would only take place to a lesser extent contrary to the child’s interests. 61. Prior to 1 July 2006 it was not explicitly stated in the Code that access could take place by means of contact other than direct contact between the child and parent, such as telephone or letters. Normally, the parents should be able to agree on the extent of such indirect contact. The municipalities also assist in reaching agreements on such contact.", "However, through the introduction of the new provision in Chapter 16, Section 15, of the Code, the courts have been enabled to decide that access is to take place in some other way than by the child meeting with the parent. The aim is to provide, in exceptional cases, a way of bringing about contact between a child and a parent when direct access is not an option. This may be the case for instance when the child and the parent live a considerable distance from each other or when the freedom of movement of the parent is restricted as a result of a prolonged hospital stay or similar circumstance (see Government Bill 2005/2006:99, p. 55.) 62.", "According to the rules on right to access, it is in the child’s best interests to have close and good contact with both parents in most cases. However, that does not mean that the child must have contact with a parent in all circumstances. A child must have an absolute right not to be subjected to violence, abuse or other degrading treatment. It is also well known that a child’s psychological health may be endangered if the child has to see or hear domestic violence. Accordingly, the courts and social authorities shall pay particular attention to the risk of violence and other kinds of abuse directed against a child or other members of the family, and the finding of such a risk shall weigh heavily in the overall assessment of what is in the best interests of the child in a particular case.", "The result of the assessment may be that it is best for the child not to have any contact at all, to have contact, inter alia, in the presence of a contact person or that access should be established when the child has reached a mature age (see Government Bill 2005/2006:99. p. 42.) III. RELEVANT INFORMATION ON AFGHANISTAN 63. The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 17 December 2010 (“UNHCR 2010 Afghanistan Guidelines”) observed, inter alia, under “I.", "Introduction”: “... In light of the worsening security environment in certain parts of the country and the increasing number of civilian casualties UNHCR considers that the situation can be characterized as one of generalized violence in Helmand, Kandahar, Kunar, and parts of Ghazni and Khost provinces. Therefore, Afghan asylum-seekers formerly residing in these areas may be in need of international protection under broader international protection criteria, including complementary forms of protection. In addition, given the fluid and volatile nature of the conflict, asylum applications by Afghans claiming to flee generalized violence in other parts of Afghanistan should each be assessed carefully, in light of the evidence presented by the applicant and other current and reliable information on the place of former residence. This latter determination will obviously need to include assessing whether a situation of generalized violence exists in the place of former residence at the time of adjudication.", "UNHCR generally considers internal flight as a reasonable alternative where protection is available from the individual’s own extended family, community or tribe in the area of prospective relocation. Single males and nuclear family units may, in certain circumstances, subsist without family and community support in urban and semi-urban areas with established infrastructure and under effective Government control. Given the breakdown in the traditional social fabric of the country caused by decades of war, massive refugee flows, and growing internal migration to urban areas, a case-by-case analysis will, nevertheless, be necessary. In light of the serious human rights violations and transgressions of international humanitarian law during Afghanistan’s long history of armed conflicts, exclusion considerations under Article 1F of the 1951 Convention may arise in individual claims by Afghan asylum-seekers. Careful consideration needs to be given in particular to the following profiles: (i) members of the security forces, including KHAD/WAD agents and high-ranking officials of the communist regimes; (ii) members and commanders of armed groups and militia forces during the communist regimes; (iii) members and commanders of the Taliban, Hezb-e-Islami Hikmatyar and other armed anti-Government groups; (iv) organized crime groups; (v) members of Afghan security forces, including the NDS; and (vi) pro-Government paramilitary groups and militias.” 64.", "Further, as to “Members of (Minority) Ethnic Groups” it was stated: “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 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 ... As an example, one of the groups affected are the Pashtuns, who have been uprooted in large numbers by ethnic violence in the north and the west of the country following the collapse of the Taliban regime. Pashtuns throughout northern Afghanistan, where they constitute an ethnic minority, have since been subject to discrimination, arbitrary arrests, violence and reprisal killings by non-Pashtun militias and groups because of their (perceived) association with the former Taliban regime, whose leadership consisted mostly of Pashtuns from southern Afghanistan. Political power in the north reportedly still rests with local powerbrokers associated with the (Tajik-dominated) Northern Alliance, who are reluctant to allow the sustainable reintegration of Pashtun returnees or provide for their protection. As such, formerly displaced Pashtuns may be unable to recover their land and property upon return to their area of origin... 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 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.” 65. In respect of “Internal Flight or Relocation Alternative” it was set out, among other things: “A detailed analytical framework for assessing the availability of an internal flight or relocation alternative (IFA/IRA) is contained in the UNHCR Guidelines on International Protection No. 4: “Internal Flight or Relocation Alternative” Within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees ... Whether an IFA/IRA is “reasonable” must be determined on a case-by-case basis, taking fully into account the security, human rights and humanitarian environment in the prospective area of relocation at the time of the decision. To this effect, the following elements need to be taken into account: (i) the availability of traditional support mechanisms, such as relatives and friends able to host the displaced individuals; (ii) the availability of basic infrastructure and access to essential services, such as sanitation, health care and education; (iii) ability to sustain themselves, including livelihood opportunities; (iv) the criminality rate and resultant insecurity, particularly in urban areas; as well as (v) the scale of displacement in the area of prospective relocation ...", "In light of the foregoing, UNHCR generally considers IFA/IRA as a reasonable alternative where protection is available from the individual’s own extended family, community or tribe in the area of intended relocation. Single males and nuclear family units may, in certain circumstances, subsist without family and community support in urban and semi-urban areas with established infrastructure and under effective Government control. A case-by-case analysis will, nevertheless, be necessary given the breakdown in the traditional social fabric of the country caused by decades of war, massive refugee flows, and growing internal migration to urban areas.” 66. According to the World Health Organisation’s Mental Health Atlas, 2005, on Afghanistan, mental health was not covered by the primary health care system. Four Community Mental Health Centres had been established in the capital and there were two general psychiatric rehabilitation centres with one hundred and sixty beds.", "There were only very few trained psychiatrists. Most doctors working as psychiatrists had either had in-service training or had attended short courses abroad. Psychologists were trained at Kabul University. Much of the qualified manpower and technical expertise had left the country. NGOs were involved with mental health in the country.", "The following therapeutic drugs were generally available at the primary health care level of the country: carbamazepine, phenobarbital, amitriptyline, hlorpromazine, diazepam and haloperidol. The cost of medicines kept fluctuating due to the effect of war on the stability of the local currency. Over-the-counter sales of psychotropic drugs occurred. 67. In an article published by Canadian Women for Women in Afghanistan in May 2011 (http://www.cw4wafghan.ca/MentalHealth) it was stated, inter alia: “Afghanistan reportedly has only 42 psychologists and psychiatrists in the entire country.", "In the capital, the Ministry for Public Health manages the Kabul Psychiatric Hospital, founded around 1985, which also includes inpatient services for men and women, and a drug treatment centre called the Jangalak Substance Misuse Centre. In 2009, this centre saw more than 800 inpatients suffering from drug addiction, mainly heroin and opium addiction (International Medical Corps, IMC, 2011). The hospital, long notorious for its dilapidated and unhygienic state, has only 60 beds; while experts say at least a 300-bed facility is needed. It was also criticized in a 2010 assessment by the IMC for not providing follow-up treatment post-discharge and for the high relapse rates of addicts and mental health patients. In 2010, over 6,400 patients were admitted to the hospital and 21,000 patient consultations took place (of which nearly half were treated for depression and 5,000 treated for psychosis), which remains the only mental health hospital in the country, despite announcements by the Minister of Public Health back in 2006 that 30-bed mental health hospitals would be opened in every region of the country, in addition to 20-bed hospitals in every province, and 10-bed clinics in every district.", "As of early 2011, the Ministry of Public Health had no plans in place to construct a new hospital in Kabul; however, in 2010, the European Commission moved ahead with plans to design a program to support the existing hospital and to build the capacity of the 128 hospital personnel. The program will be implemented by the international NGO, International Medical Corps. ... tertiary care facilities like the 60-bed mental health Hospital and 40-bed Jangalak detox center, which are mandated to accept patients from across Afghanistan, lack the resources, space, qualified personnel and internal systems to provide appropriate, humane care for patients.” – International Medical Corps in Afghanistan, February 23, 2011. The Ministry of Mental Health currently operates a mental health training program with funding from the European Union and Caritas, with plans to expand it to four hospitals in the northern region of the country in 2011. In Afghanistan, there is no dedicated university faculty to train mental health personnel; however, International Medical Corps announced in February 2011 its plans to work with the Ministries of Higher Education and Public Health “to improve advanced psychiatric education at medical universities in Afghanistan” (IMC website).", "THE LAW I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION 68. The applicant complained that an implementation of the deportation order to return him to Afghanistan would be in violation of Articles 2 and 3 of the Convention, which in so far as relevant read as follows: Article 2 “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”.", "Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 69. The Government contested that argument. A. Admissibility 70. The Court finds that it is more appropriate to deal with the complaint under Article 2 in the context of its examination of the related complaint under Article 3 and will proceed on this basis (see NA. v. the United Kingdom, no.", "25904/07, § 95, 17 July 2008). It notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. In so far as the complaint relates to the third application for revocation of the expulsion order submitted by the applicant in July 2009, which is still pending before the Ministry of Justice, the complaint is premature and must be declared inadmissible. Otherwise, the complaint is not inadmissible on any other grounds and must therefore be declared admissible. B.", "Merits 1. The applicant 71. The applicant complained that if returned to Afghanistan, he would be persecuted and killed because he is of mixed ethnicity, Hazara and Pashtun, and has no family or network to protect him. He also risked being killed upon return to Afghanistan for having married a Sunni Muslim woman although he was a Shia and for having violated a Sunni Muslim woman in the acts for which he had been convicted in Sweden. Finally, in his observations before the Court, he added that he would risk persecution upon return, because he was cohabiting with his new girlfriend, who was Christian.", "2. The Government 72. From the outset, the Government pointed out that the situation in Afghanistan was not such that there was a general need to protect asylum seekers. 73. Regarding the individual risk assessment, the Government contended that an enforcement of the expulsion order would not give rise to a violation of Article 3.", "In respect of the applicant’s motive for asylum, the Government referred to various subjects on which the applicant had provided conflicting or divergent stories, for example about why he and his parents were disliked, whether due to mixed ethnicity, suspected as supporters of Taliban or because the Taliban did not approve of his father’s ideas; how many days he had been kidnapped, two or thirty-five; how the applicant was injured; by whom and how his parents were killed; and how the applicant escaped. Having regard thereto, the Government found that there were strong reasons to question the veracity of the applicant’s submissions. 74. In any event, they pointed out that the applicant would not be sent back to his village or province of origin since, according to the most recent report from the Migration Board of December 2009, there were impediments to enforcement of the expulsion order against the applicant to Ghazni province. 75.", "Moreover, according to the findings of the domestic authorities and available country information, there was no indication that disputes between ethnic groups had increased or that people of mixed background would run a higher risk of violence and persecution in Afghanistan. In addition, although disputes between ethnic groups, such as for instance Hazaras and Pashtuns, did exist, these primarily involved entitlement to land and opposing political views rather than ethnicity and religious affiliation as such. 76. Likewise, the applicant had failed to substantiate that he would be killed upon return to Afghanistan for having married a Sunni Muslim woman or for having violated a Sunni Muslim woman in the acts for which he had been convicted in Sweden. 77.", "Finally, in the Government’s opinion, the applicant was a young man fit for work without any particular health problems and it would be possible and reasonable to expect him to re-settle, for example, in Kabul or Mazar‑e Sharif. 3. The Court (a) General principles 78. 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 (Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-....; Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no.", "94, p. 34, § 67, Boujlifa v. France, judgment of 21 October 1997, Reports 1997-VI, p. 2264, § 42). 79. 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 (Saadi v. Italy [GC], no. 37201/06, § 125, 28 February 2008).", "80. The assessment of whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires that the Court assess the conditions in the receiving country against the standards of Article 3 of the Convention (Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I). These standards 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 (Hilal v. the United Kingdom, no.", "45276/99, § 60, ECHR 2001-II). 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 (H.L.R. v. France, judgment of 29 April 1997, Reports 1997-III, § 40). 81.", "The assessment of the existence of a real risk must necessarily be a rigorous one (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, § 96; and Saadi v. Italy, cited above, § 128). It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005). The Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker’s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, among other authorities, N. v. Sweden, no.", "23505/09, § 53, 20 July 2010 and Collins and Akasiebie v. Sweden (dec.), no. 23944/05, 8 March 2007). 82. 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 Geneva 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, NA.", "v. the United Kingdom, cited above, § 119). 83. Aliens who are subject to expulsion cannot, in principle, claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling.", "In the D. case (D. v. the United Kingdom, application no. 30240/96, Commission’s report of 15 October 1996) the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support (see also, N. v. the United Kingdom [GC], no. 26565/05, § 42, 27 May 2008). (b) The general situation in Afghanistan 84. The Court considers there are no indications that the situation in Afghanistan is so serious that the return of the applicant thereto would constitute, in itself, a violation of Article 3 of the Convention.", "(c) The applicant’s case 85. The Court notes that in the original asylum proceedings the applicant based his motive for requesting asylum on his mixed ethnicity and his family being suspected of being collaborators with the Taliban, which had resulted in the applicant being kidnapped and ill-treated and his parents being killed. The Migration Board observed that it had found no evidence that persons of mixed ethnicities faced specific problems in Afghanistan and the Board did not believe that the applicant had faced such discrimination as claimed because of his mixed ethnicity. Moreover, the Board noted that, according to the applicant, everyone in his village had tried to get along with the Taliban and had paid to be well treated by them. Therefore the Board was not convinced that the applicant and his family had been suspected of being collaborators with the Taliban and ill-treated on that ground.", "The Board further questioned the claim that the applicant had no relatives other than his uncle, having regard to the very strong family ties in the Afghan culture. In any event, his father’s business partner was still there and had shown a friendly and supportive attitude to the applicant and his family. Consequently, the Board concluded that the applicant had a social network in Afghanistan which made it possible for him to return. Since there was no other reason to grant the applicant leave to remain in Sweden, his application was rejected. On appeal, the Aliens Appeals Board noted that at the relevant time, the U.S.", "Coalition Forces had established a military base in Ghazni to stabilise the area. Against this background, and for the reasons set out in the Migration Board’s decision, it found it unsubstantiated that the applicant would risk persecution upon return. 86. The Court notes that the Migration Board and the Aliens Appeals Board both conducted a thorough examination of the applicant’s case, which entailed that the applicant was heard three times. Before both instances the applicant was assisted by appointed counsel.", "The national authorities had the benefit of seeing, hearing and questioning the applicant in person and of assessing directly the information and documents submitted by him, before deciding the case. The Court finds no reason to conclude that their decisions were inadequate or that the outcome of the proceedings before the two instances was arbitrary. 87. Furthermore, there are no indications that the assessment made by the domestic authorities was insufficiently supported by relevant materials or that that the authorities were wrong in their conclusion that there were no substantial grounds for finding that the applicant would risk being persecuted upon return to Afghanistan. (d) The applicant’s request for the expulsion order to be revoked 88.", "In his request to the Government on 1 August 2008 that the expulsion order be revoked, the applicant gave another account about what had happened to him in his home town. Furthermore, he alleged that there were problems in Afghanistan between Shia and Sunni Muslims. He added that he suffered from PTSD. Finally, he referred to his two children in Sweden. On 4 December 2008 the Government rejected the applicant’s request, finding that there was no impediment to the enforcement of the expulsion order and no other special reasons to grant the applicant a residence permit in Sweden.", "89. In his request of 31 December 2008 the applicant added, inter alia, that his father’s business partner, who had helped him escape, had been killed, and that he risked being killed upon return to Afghanistan for having married a Sunni Muslim woman although he was a Shia and for having violated a Sunni Muslim woman in the acts for which he had been convicted in Sweden. Anew he invoked his poor mental health and submitted medical certificates dated 16 February and 17 April 2009, which stated that the applicant suffered from PTSD, depression, anxiety and had a serious stress reaction to his situation. He was therefore in a very fragile state mentally, with a high risk of suicide if the expulsion order were to be enforced, and there were thus medical-psychiatric impediments to the enforcement of the expulsion order at the relevant time. On 4 June 2009 the Government rejected also that request, finding that there was no impediment to the enforcement of the expulsion order and no other special reasons to grant the applicant a residence permit in Sweden.", "90. In the Court’s view, there are no indications that the Government were wrong in their conclusions that the applicant had not adduced any new circumstances, substantiating that he would risk being persecuted upon return to Afghanistan. 91. In respect of the applicant’s health the question is whether his case is so exceptional that humanitarian grounds against the removal are compelling. The applicant did not invoke poor mental health as a motive for asylum when he arrived in Sweden nor during the proceedings before the Migration Board and the Aliens Appeals Board, which led to the final refusal to grant him asylum on 28 October 2005.", "Thereafter, the applicant’s mental health deteriorated and included suicide attempts. 92. The most recent medical certificate submitted in the case was from 17 April 2009. The Court notes that there is no recent information indicating whether the applicant’s mental health has improved or deteriorated. There are no elements either indicating that the State and the physicians in psychiatry previously involved will not react to a concrete threat as far as possible or that the State will enforce the deportation order if it is medically impossible for the applicant to travel to his home country.", "93. The Court also notes that medical treatment is available in Afghanistan. In any event, the fact that the applicant’s circumstances would be less favourable than those he enjoys in Sweden cannot be regarded as decisive from the point of view of Article 3 (see Bensaid v. the United Kingdom, no. 44599/98, § 38, ECHR 2001-I; Salkic and others v. Sweden (dec.), no. 7702/04, 29 June 2004; and Al-Zawatia v. Sweden (dec.) no.", "50068/08, 22 June 2010). 94. Accordingly, having regard to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the possible harm, in the Court’s view, the present case does not disclose the very exceptional circumstances established by its case-law (see, among others, D v. United Kingdom, cited above, § 54; and N. v. the United Kingdom [GC], cited above, §§ 43 and 51). (e) Changed situation in Afghanistan 95. The Court observes that the Government in their observations stressed that in the light of the Migration Board’s conclusion in December 2009, confirmed by various other sources, that at the relevant time there were impediments to enforcing expulsion orders to Ghazni province, the applicant would not be sent back to his village or province of origin.", "However, they found it possible and reasonable to expect the applicant to re-settle elsewhere in Afghanistan, for example, in Kabul or Mazar‑e Sharif. The applicant disagreed and pointed out that he had no family or network left in Afghanistan to protect him. 96. The Court notes that the UNHCR in its 2010 Afghanistan Guidelines generally considers Internal Flight Alternative or Internal Relocation Alternative reasonable where protection is available from the individual’s own extended family, community or tribe in the area of intended relocation. Single males and nuclear family units may, in certain circumstances, subsist without family and community support in urban and semi-urban areas with established infrastructure and under effective Government control.", "A case‑by-case analysis would, nevertheless, be necessary given the breakdown in the traditional social fabric of the country caused by decades of war, massive refugee flows, and growing internal migration to urban areas. 97. The Court also reiterates its finding in for example Salah Sheekh v. the Netherlands ( no. 1948/04, § 141, ECHR 2007‑I (extracts), that while the Court by no means wishes to detract from the acute pertinence of socio-economic and humanitarian considerations to the issue of forced returns of rejected asylum seekers to a particular part of their country of origin, such considerations do not necessarily have a bearing, and certainly not a decisive one, on the question of whether the persons concerned would face a real risk of ill-treatment within the meaning of Article 3 of the Convention in those areas. Moreover, Article 3 does not, as such, preclude Contracting States from placing reliance on the existence of an internal flight alternative in their assessment of an individual’s claim that a return to his or her country of origin would expose him or her to a real risk of being subjected to treatment proscribed by that provision (see Chahal v. the United Kingdom, 15 November 1996, § 98, Reports of Judgments and Decisions 1996‑V and Hilal v. the United Kingdom, no.", "45276/99, §§ 67-68, ECHR 2001‑II). However, the Court has previously held that the indirect removal of an alien to an intermediary country does not affect the responsibility of the expelling Contracting State to ensure that he or she is not, as a result of its decision to expel, exposed to treatment contrary to Article 3 of the Convention (see T.I. v. the United Kingdom (dec.), no. 43844/98, ECHR 2000-III). It sees no reason to hold differently where the expulsion is, as in the present case, not to an intermediary country but to a particular region of the country of origin.", "The Court considers that as a precondition for relying on an internal flight alternative certain guarantees have to be in place: the person to be expelled must be able to travel to the area concerned, gain admittance and settle there, failing which an issue under Article 3 may arise, the more so if in the absence of such guarantees there is a possibility that the person expelled will find him or herself in a part of the country of origin where he or she may be subjected to ill-treatment. 98. In the present case, having regard inter alia to the Government’s submission (see § 95) and the UNHCR guidelines (see §§ 65 and 96), it appears that an internal relocation alternative is available to the applicant in Afghanistan. Moreover, the Court is not convinced by the applicant’s submission that no matter where in Afghanistan he were to re-settle he would be exposed to a real risk of being subjected to treatment proscribed by Article 3 of the Convention. (f) Conclusion 99.", "Having regard to the above, the Court finds that an implementation of the order to deport the applicant to Afghanistan would not give rise to a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 100. The applicant further complained that he had not had access to his children in Sweden since August 2007 and that he was only allowed to send two letters per year to them. Those complaints fall under Article 8 of the Convention, which reads as follows: Article 8 “1.", "Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The criminal proceedings and the expulsion order 101. The Court notes that when lodging his application before the Court on 23 February 2009 the applicant did not in the application form invoke Article 8 of the Convention.", "However, as to the object of the application, he stated that he wanted to “maintain his life and the possibility to have contact with his children in Sweden”. In subsequent observations he added that he had not had access to his children since August 2007 and that he was only allowed to send two letters per year to them, but he did not as such complain that the deportation order issued in the criminal proceedings, which became final on 17 September 2008, was in violation of Article 8 of the Convention. However, in so far as the application can be understood in substance to include such a complaint the Court will proceed on this assumption. 102. It observes that the interference had a basis in domestic law and served a legitimate aim, namely “the prevention of disorder and crime”.", "The principal issue to be determined is whether the interference was “necessary in a democratic society”. The relevant criteria that the Court uses to assess whether an expulsion measure is necessary in a democratic society have been summarised as follows (see Üner v. the Netherlands [GC], no. 46410/99, §§ 57 - 58, ECHR 2006-...): “57. Even if Article 8 of the Convention does not therefore contain an absolute right for any category of alien not to be expelled, the Court’s case-law amply demonstrates that there are circumstances where the expulsion of an alien will give rise to a violation of that provision (see, for example, the judgments in ... and Boultif v. Switzerland, no. 54273/00, ECHR 2001‑IX; see also Amrollahi v. Denmark, no.", "56811/00, 11 July 2002; Yılmaz v. Germany, no. 52853/99, 17 April 2003; and Keles v. Germany, 32231/02, 27 October 2005). In the case of Boultif the Court elaborated the relevant criteria which it would use in order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued. These criteria, as reproduced in paragraph 40 of the Chamber judgment in the present case, are the following: - the nature and seriousness of the offence committed by the applicant; - the length of the applicant’s stay in the country from which he or she is to be expelled; - the time elapsed since the offence was committed and the applicant’s conduct during that period; - the nationalities of the various persons concerned; - the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life; - whether the spouse knew about the offence at the time when he or she entered into a family relationship; - whether there are children of the marriage, and if so, their age; and - the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled. 58.", "The Court would wish to make explicit two criteria which may already be implicit in those identified in the Boultif judgment: - the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and - the solidity of social, cultural and family ties with the host country and with the country of destination.” 103. The order to expel the applicant, with a prohibition on returning before 19 May 2013, was imposed after he had been sentenced to two years’ imprisonment for rape and aggravated violation of his then wife’s integrity, committed several times a week over a period of two years, between 2005 and 3 August 2007, which included hitting, pushing, hair pulling and threatening to harm or kill the wife and the children, or to take the children away from the wife by taking them to Afghanistan. Accordingly, there can be no doubt that the expulsion order was based on a crime, which was not only serious, but also of such a nature that the applicant himself, by committing it, significantly harmed his family life (see for example Cömert v. Denmark (dec.), application no. 14474/03, 10 April 2006). The severity and nature of the offence must therefore weigh heavily in the balance.", "104. The applicant arrived in Sweden around 1 September 2003, when he was twenty-three years old. Shortly after, in February 2004, he married and was consequently granted a residence permit on 28 February 2005. As regards the applicant’s private life, he has thus lived most of his life in Afghanistan. Moreover, the national courts stated that the applicant lacked any substantial connection to Sweden other than his family, who had to live at a secret address to avoid being persecuted by him.", "105. The applicant did not commit any further offences following his release on 11 August 2009. It should be noted, however, that he was taken into custody on that day and released on 28 January 2010. Moreover, by decision of l4 June 2010 the prosecution authority issued restraining orders against the applicant vis-à-vis his ex-wife and their children, under section 1 of the Restraining Orders Act as it found that there was a risk that the applicant would persecute or in some other way seriously harass his former wife or the children. The orders were in force for one year until 13 June 2011 and there are no indications that they have been violated by the applicant.", "106. As regards the applicant’s family situation, in August 2007 the applicant’s estranged wife filed for divorce. The applicant agreed thereto and the spouses divorced in July 2008. Accordingly, within the meaning of Article 8 of the Convention the applicant’s “family-life” can no longer relate to his ex-wife and the case differs from those in which the main obstacle to expulsion was the difficulty for the spouses to stay together (see for example Boultif v. Switzerland and Amrollahi v. Denmark, cited above). 107.", "Therefore, within the meaning of Article 8 of the Convention the applicant’s “family life” relates solely to his children, namely his daughter born in December 2004 and his son born in April 2006. This leads the Court to reiterate that besides the negative obligation under Article 8 of the Convention to refrain from measures which cause family ties to rupture, a positive obligation also exists to ensure that family life between parents and children can continue after divorce (see e.g. Cılız v. the Netherlands, no. 29192/95, § 62, ECHR 2000-VIII; and mutatis mutandis, Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, § 50).", "In its decision to expel the applicant the national courts took this aspect into account but concluded that the children’s need for contact with their father could not be considered to be so significant that expulsion should be avoided. However, having regard to the children, the expulsion period was limited to five years. 108. The Court understands that after 19 May 2013, when the applicant’s prohibition on returning to Sweden will expire, he can apply anew to enter Sweden. At that time, the children will be respectively about eight and a half years old and seven years old.", "Thus, in principle there are no hindrances for the applicant to establish a strong link with his children in the future. 109. More importantly, having regard to the crimes of which the applicant was convicted, it must be considered a fact that the children were born into a family with very serious domestic violence against their mother which led her to leave the applicant and take the children with her to a secret address in August 2007, when the children were about two and a half years old and one and a half years old. Furthermore, when the expulsion order became final on 17 September 2008, the applicant faced a prison sentence of two years which would in any event deprive him of enjoying a daily family life with his children during that time. 110.", "In these circumstances, it cannot be said that the Swedish courts failed to strike a fair balance between the applicant’s interests on the one hand and the prevention of disorder or crime, on the other hand. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 of the Convention and must be rejected pursuant to Article 35 § 4. B. The proceedings regarding custody and access 111. The applicant complained that he had been denied access to his children since 3 August 2007.", "The Court notes that two sets of proceedings took place in that respect, namely a temporary decision on custody and access and the final decision on custody and access. 1. The temporary decision on access 112. On 9 November 2007 the District Court decided temporarily to grant the estranged wife sole custody while the proceedings were pending before it and temporarily to refuse the applicant physical contact with the children during that time. It noted that the applicant had been accused of serious crimes, which included violence against the daughter and that the prosecutor was considering whether to charge the applicant.", "While awaiting developments in this regard, the District Court found that joint custody was incompatible with the children’s best interest and that access between the applicant and the children should not be established under those circumstances. The applicant’s appeal against the decision was rejected by the Court of Appeal on 30 November 2007. The applicant lodged his application with the Court on 23 February 2009, thus more than six months after the final decision was taken in the proceedings on temporary custody and access. It follows that this part of the application must be rejected, in accordance with Article 35 §§ 1 and 4 of the Convention. 2.", "The final decision on access 113. When the applicant’s conviction and sentence were final on 17 September 2008, the proceedings on custody and access proceeded and resulted in a decision to refuse the applicant access. (a) Admissibility 114. The applicant found that this part of the application should be declared admissible. 115.", "The Government contested that argument. 116. 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 (i) The applicant 117. The applicant maintained that the refusal to grant him access was in violation of Article 8. He also alleged that he was only allowed to send two letters per year to his children. (ii) The Government 118. From the outset the Government contested that there were any decisions from domestic authorities preventing the applicant from sending letters to his children or receiving information on them and their daily life.", "As regards the decision by the national courts to refuse the applicant physical contact with his children, it was taken in accordance with the law, pursued a legitimate aim and was necessary in a democratic society within the meaning of Article 8 § 2 of the Convention. In particular, the courts had regard to the special circumstances of the case and what in their view was in the best interest of the children. Their decision only excluded physical contact between the applicant and his children at the relevant time and did not rule out access being established at a later point in time. (iii) The Court’s assessment 119. In determining whether the refusal of access was “necessary in a democratic society”, the Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention.", "Undoubtedly, consideration of what is in the best interests of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation. Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents 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. In particular, a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development (see, amongst others, Sahin v. Germany [GC], no.", "30943/96, §§ 65 and 66, ECHR 2003‑VIII and T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 71, ECHR 2001-V). 120.", "By judgment of 18 November 2008 the District Court granted custody of the children to the applicant’s ex‑wife and refused the applicant’s request that he be granted access to the children for four hours per month in the presence of a contact person. Leave to appeal against the decision was refused by the Court of Appeal on 23 March 2009 and by the Supreme Court on 29 May 2009. 121. It was not in dispute between the parties that that interference was in accordance with the law and served a legitimate aim, namely the protection of health or rights and freedom of others. The crucial issue remains whether the interference was proportionate and necessary in a democratic society.", "122. The Court observes that in November 2008 when the District Court was about to take the decision on access, the applicant had been convicted of a serious crime and sentenced to two years’ imprisonment and expulsion with a ban on his return to Sweden until May 2013. De facto, the District Court was thus required to determine whether access should be granted to the applicant until the order to expel him could be implemented, which normally takes place immediately after the prison sentence has been served. The applicant’s request also implied that access take place while he served the prison sentence and that the practical arrangements necessary for the applicant to see his children should be organised by the social authorities since for obvious reasons the mother of the children could not be the contact person to be present during visits with the applicant. 123.", "Before the District Court, the applicant was heard and represented by counsel. Beforehand, in letters of 17 and 26 June, and 1 September 2008 he had contested a report of 5 June 2008 from the social welfare board, which he found partial and not in the interests of the children. Moreover, seven witnesses were heard at the applicant’s request before the District Court. 124. The social welfare board had based the report on four interviews with the estranged wife and two interviews with the applicant (one at home and one at the pre-trial detention centre).", "The social welfare board had also met the children at their home in March 2008, and spoken to the children’s nursery school and to a deaconess involved in the case. The report stated that in view of the applicant’s abuse of his estranged wife and the fact that he had probably also physically abused his daughter, there was a high risk that the children would be harmed if the applicant were to have custody of them. The children were very young when they last had contact with the applicant and they would have no memories of their father that they could express in words. Their need for a relationship with their father would increase when they became older. Access between them and the applicant would involve an increased risk that their secret address would become known to him.", "Moreover, the applicant would probably be expelled upon release from prison. Thus, it was recommended that he should not have access to the children. In order to meet the children’s need for contact with their origins, it was noted that such could be accommodated through letters. The social welfare board could distribute letters from the applicant to the children via the estranged wife, who in turn could reply within a month to report on the children’s development. 125.", "At the hearing on 4 November 2008, the representative from the social welfare board stated that the aim had been to see both parents an equal number of times during the custody investigation but that it had not been possible because the applicant was detained on remand. In general young children were directly affected by how their mother was treated and it was therefore very likely that the applicant’s daughter would experience bad memories if she had to see the applicant. Moreover, if the children were to have contact with the applicant, they would be exposed to yet another separation from him when the expulsion order was to be implemented. Thus, in his view it was not in the children’s best interests to see the applicant. 126.", "In its judgment of 18 November 2008, the District Court noted among other things that the applicant was in prison, and that when his sentence was served, he would be expelled to Afghanistan with a prohibition on returning until May 2013. Moreover, although there had been witnesses who had stated that the applicant had been a good father, there was a considerable risk that the children had experienced the violence to which their mother had been subjected and that seeing the applicant could bring back bad memories and disturb the sense of safety that the children now experienced. Moreover, the applicant was now in prison, from where he would only be able to have very restricted access to his children. Furthermore, even if the children were able to create a safe relationship with the applicant during such limited access, the applicant would subsequently be expelled and therefore separated from his children until May 2013. The District Court therefore found that access was not in the children’s best interest.", "It did not rule out that access might be established at a later point in time. 127. The judgment did not mention, or in any way limit, the applicant’s possibility to send letters to his children as alleged by him. 128. Having regard to the foregoing and to the respondent State’s margin of appreciation, the Court is satisfied that the applicant was placed in a position enabling him to put forward all arguments in favour of obtaining a visiting arrangement and also had access to all relevant information which was relied on by the courts (see, for example, Sahin v. Germany [GC], no.", "30943/96, § 71) and that the Swedish courts struck a fair balance between the interests of all concerned. 129. Accordingly, there has been no violation of Article 8 of the Convention as to that part of the application. C. The restraining orders 130. It appears that the applicant, in his observations before the Court, also complained that the restraining orders issued on l4 June 2010 by the prosecution authority against the applicant vis-à-vis his ex-wife and the children were in breach of Article 8 of the Convention.", "131. The Court reiterates that the purpose of the rule on exhaustion of domestic remedies is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Court (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). 132. The applicant failed to raise, either in form or substance, before the domestic courts the complaint made to it.", "It follows that this part of the application is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4. III. ALLEGED VIOLATION OF ARTICLE 5 AND 6 OF THE CONVENTION, AND ARTICLE 1 OF PROTOCOL 6 AND ARTICLE 5 OF PROTOCOL 7 TO THE CONVENTION. 133. The Court has examined the applicant’s complaints as they have been submitted.", "In the light of all the material in its possession, and in so far as the criteria set out in Article 35 § 1 have been complied with and 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 must be rejected in accordance with Article 35 § 4 of the Convention. IV. RULE 39 OF THE RULES OF COURT 134. 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 referral 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.", "135. It considers that the indication made to the Government under Rule 39 of the Rules of Court must remain in force until the present judgment becomes final or until the Panel of the Grand Chamber of the Court accepts any request by one or both of the parties to refer the case to the Grand Chamber under Article 43 of the Convention (see F.H. v. Sweden, no. 32621/06, § 107, 20 January 2009). FOR THESE REASONS, THE COURT 1.", "Declares unanimously the complaint under Article 3 admissible, in so far as it does not relate to the applicant’s third application for revocation of the expulsion order; 2. Declares unanimously the complaint as regards the final decision on access under Article 8 admissible; 3. Declares unanimously the remainder of the application inadmissible; 4. Holds by five votes to two that an implementation of the order to deport the applicant to Afghanistan would not give rise to a violation of Article 3 of the Convention; 5. 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 13 October 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekDean Spielmann Registrar President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Spielmann joined by Judge Zupančič is annexed to this judgment. D.S. C.W. DISSENTING OPINION OF JUDGE SPIELMANN JOINED BY JUDGE ZUPANČIČ I am unable to agree with the majority that there has been no violation of Articles 3 and 8 of the Convention.", "Even if I agree that, having regard to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the possible harm, the present case, in respect of the applicant’s health situation, does not disclose the very exceptional circumstances established by its case-law (paragraph 94 of the judgment), I have much more difficulty in following the majority view concerning the possibility for the applicant to resettle elsewhere in Afghanistan. In the crucial paragraph 97 of the judgment, the majority recall that Article 3 does not, as such, preclude Contracting States from placing reliance on the existence of an internal flight alternative in their assessment of an individual’s claim that a return to his or her country of origin would expose him or her to a real risk of being subjected to treatment proscribed by that provision. However, as a precondition for relying on an internal flight alternative, certain guarantees have to be in place. The majority rightly emphasise in this respect that the person to be expelled must be able to travel to the area concerned, gain admittance and settle there, failing which an issue under Article 3 may arise, all the more so if in the absence of such guarantees there is a possibility that the person expelled will end up in a part of the country of origin where he or she may be subjected to ill-treatment. Those are questions of fact and in my view it is the respondent Government which should satisfy the Court that, on the basis of the facts, resettlement is possible, not only in theory, but also in practice.", "Admittedly the Migration and Aliens Appeals Boards conducted an examination of the applicant’s case. But I cannot find any support in the file for the opinion that, in the particular circumstances of the case, it is possible and reasonable to expect the applicant to resettle elsewhere in Afghanistan. This issue should have been examined separately and thoroughly by the domestic authorities. In my view, the existence of such a thorough and separate examination, focusing on internal flight alternatives and concrete possibilities of resettlement, is not apparent from the file and I cannot therefore support the majority view that there has been no violation of Article 3 of the Convention. Concerning, more specifically, the complaint as regards the final decision on the applicant’s access to his children and its compatibility with Article 8 of the Convention, I am unable to agree with the domestic authorities’ reasoning, which is upheld by the majority.", "This reasoning was based to a large extent on the fact that, if the children were to have contact with the applicant, they would be exposed to yet another separation from him when the expulsion order was implemented and that it was not therefore in the children’s best interest to see him. The authorities also relied, unconvincingly in my view, on the fact that, even if the children were able to create a safe relationship with the applicant during limited access arrangements, he would subsequently be expelled and therefore separated from his children until May 2013 (see District Court’s decision of 18 November 2008, paragraph 126 of the judgment). This cannot be a reason to refuse access. Nor can it be justifiable to refuse access at an earlier stage on the ground that, in any event, access will potentially become possible after May 2013 (see paragraph 108 of the judgment concerning the non-communicated and inadmissible part of the application under Article 8). Hence, in my view, the interference with the applicant’s rights under Article 8 of the Convention was not proportionate.", "I would like to stress in this context that the possibility of access after May 2013 is purely theoretical, as it is more than doubtful that the applicant would, as a matter of fact, be granted leave to return to Sweden in 2013. In other words, and to sum up, the denial of access, in a situation where contact with the children has been impossible for such a long time, constitutes a disproportionate interference with a right protected by Article 8. Finally, I would like to emphasise that the mere fact that the applicant was placed in a position enabling him to put forward all arguments in favour of obtaining a visiting arrangement and also had access to all relevant information which was relied on by the courts (see paragraph 128 of the judgment) is insufficient to convince me that the Swedish courts struck a fair balance between the interests of all concerned or that there has been no violation of Article 8 of the Convention." ]

[ "FOURTH SECTION CASE OF WOLFF v. SLOVAKIA (Application no. 42356/05) JUDGMENT STRASBOURG 19 October 2010 This judgment is final but it may be subject to editorial revision. In the case of Wolff v. Slovakia, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Lech Garlicki, President,Ján Šikuta,Vincent Anthony de Gaetano, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 28 September 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 42356/05) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovakian national, Mr Peter Wolff (“the applicant”), on 19 November 2005.", "2. The applicant was represented by Mr Š. Meliš, a lawyer practising in Bratislava. The Slovak Government (“the Government”) were represented by their Agent, Mrs M. Pirošíková. 3. On 7 February 2008 the President of the Fourth Section decided to give notice of the application to the Government.", "In accordance with Protocol 14, the application is assigned to a Committee of three Judges. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1947 and lives in Bratislava. 5. The facts of the case, as submitted by the applicant, may be summarised as follows.", "1. Proceedings concerning the applicant's restitution claim 6. On 15 May 1991 the applicant and other plaintiffs filed an action for restitution of real property to the Bratislava V District Court. 7. On 11 January 1994 the District Court dismissed the action.", "On 12 October 1994 the Bratislava City Court remitted the case to the District Court following an appeal by the applicant. 8. On 23 June 1995 the District Court again dismissed the action. On 14 December 1995 the court of appeal upheld the relevant part of the first‑instance judgment. On 20 March 1997 the Supreme Court quashed the court of appeal's judgment.", "The case was remitted to the District Court. 9. In its third judgment given on 18 February 1999 the District Court decided in the applicant's favour. On 17 March 2000 the Bratislava Regional Court quashed that judgment in part. In December 2000 the Supreme Court dismissed the appeal on points of law filed by other plaintiff.", "10. On 5 March 2003 the District Court granted the action. On 30 March 2004 the Bratislava Regional Court quashed the first-instance judgment in part and remitted it to the first-instance court; it dismissed the remainder of the claim. 11. On 29 April 2005 the Supreme Court quashed a part of the court of appeal's judgment a remitted the case to it.", "12. On 30 June 2005 the Bratislava Regional Court quashed the relevant part of the first-instance judgment and discontinued the proceedings. The decision was served on the parties on 30 August 2005. 2. Constitutional proceedings 13.", "On 18 June 2003 the Constitutional Court found that the Bratislava V District Court had violated the applicant's right under Article 48 § 2 of the Constitution to a hearing without unjustified delay. The facts of the case were complex and the applicant by his conduct had not contributed to the length of the proceedings. The Constitutional Court awarded 70,000 Slovakian korunas (SKK)[1] to the applicant in just satisfaction in respect of non-pecuniary damage. It also ordered the District Court to reimburse the applicant's legal costs. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 14. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 15. The Government agreed with the Constitutional Court in that the length of the proceedings in this case had been unreasonable. However, they expressed the view that the applicant could no longer claim to be a victim of a violation of his right to a hearing within a reasonable time since the amount of just satisfaction awarded to the applicant had not been manifestly inadequate in the circumstances of the case. As to the further course of the proceedings following the Constitutional Court's judgment, they submitted that the applicant was required to have recourse again to the Constitutional Court under Article 127 of the Constitution.", "16. The applicant disagreed. 17. The Court observes that the period to be taken into consideration began only on 18 March 1992, when the recognition by the former Czech and Slovak Federal Republic, to which Slovakia is one of the successor States, of the right of individual petition took effect. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the course of the proceedings preceding the relevant date.", "It follows that the proceedings at the time of the Constitutional Court's judgment had lasted eleven years and three months at three levels of jurisdiction. 18. The Court further notes that the Constitutional Court awarded the applicant the equivalent of EUR 1,685 in just satisfaction in respect of non‑pecuniary damage. As regards the relevant period of the proceedings examined by the Constitutional Court, as well as the state of the proceedings at the time when the Convention entered into force in respect of the respondent State, this amount cannot be considered to have provided 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-V, and Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-107, ECHR 2006-V). In view of the above, the Court concludes that the applicant did not lose his status as a victim within the meaning of Article 34 of the Convention (see, for example, Bič v. Slovakia, no. 23865/03, § 37, 4 November 2008). 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 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). 21. 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). 22.", "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. 23. The Court notes in particular that after the delivery of the Constitutional Court's judgment the proceedings before the District Court lasted some two years and two months at three levels of jurisdiction. Thus, the overall length of the proceedings under consideration was more than thirteen years and five months at three levels of jurisdictions. 24.", "In the light of the above and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 25. There has accordingly been a breach of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 26.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 27. The applicant claimed EUR 53,000 in respect of non‑pecuniary damage. 28. The Government contested that claim.", "29. Ruling on an equitable basis and having regard to the fact that the applicant obtained partial redress in the proceedings before the Constitutional Court, the Court awards EUR 2,300 under that head. B. Costs and expenses 30. The applicant also claimed EUR 2,172 for the costs and expenses incurred before the Court.", "That sum comprised legal representation costs (EUR 2,112) and postal expenses (EUR 60). 31. As to the applicant's costs of legal representation before the Court, the Government stated that the claim was exaggerated. They did not contest the claim for postal costs. 32.", "The Court will make an award in respect of costs and expenses in so far as these were actually and necessarily incurred and were reasonable as to quantum. The Court considers it reasonable to award the applicant, who was represented by a lawyer, the sum of EUR 1,100 (see Gerstbrein v. Slovakia, no. 17252/04, § 27, 21 April 2009). C. Default interest 33. 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, the following amounts: (i) EUR 2,300 (two thousand three hundred euros) plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,100 (one thousand one hundred euros) plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction.", "Done in English, and notified in writing on 19 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıLech Garlicki Deputy RegistrarPresident [1]1. SKK 70,000 was the equivalent of 1,685 euros (EUR) at that time." ]

[ "FIFTH SECTION CASE OF BELJKAŠ v. SLOVENIA (Application no. 50844/12) JUDGMENT STRASBOURG 29 October 2015 This judgment is final but it may be subject to editorial revision. In the case of Beljkaš v. Slovenia, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Helena Jäderblom, President,Boštjan M. Zupančič,Aleš Pejchal, judges,and Milan Blaško, Deputy 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. 50844/12) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Dragan Beljkaš (“the applicant”), on 29 June 2012.", "2. The Slovenian Government (“the Government”) were represented by their Agent, Mrs N. Pintar Gosenca, State Attorney. 3. On 13 November 2012 the application was communicated to the Government. 4.", "The Government submitted a unilateral declaration which did not offer sufficient basis for finding that respect for human rights as defined in Article 37 § 1 the Convention had been fulfilled (see Prencipe v. Monaco, no. 43376/06, §§ 62-63, 16 July 2009). The Court was therefore required to continue the examination of the case. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1977 and lives in Kranj. 6. He was detained in the remand section of Ljubljana prison from 26 May 2010 to 6 November 2012. 7. For one day he was held in cell no.", "89 measuring 16.63 square metres (not including a separate 1.68 square metre sanitary facility) with four other inmates, with 3.33 square metres of personal space. 8. For seven hundred and eighty-three days he was held in cell no. 82 measuring 16.37 square metres (not including a separate 1.82 square metre sanitary facility). For three hundred and eighty-two days he was held therein with four other inmates with 3.27 square metres of personal space and for one hundred days he was held therein with five other inmates with 2.73 square metres of personal space.", "For three hundred and one days he shared the cell with two or three other inmates with more than 4 square metres of personal space. 9. For one hundred and eleven days he was held in cell no. 88 measuring 16.37 square metres (not including a separate 1.82 square metre sanitary facility). For thirty-six days he was held therein with four other inmates with 3.07 square metres of personal space and for fifty-eight days he was held therein with three other inmates with 3.84 square metres of personal space.", "For seventeen days he shared the cell with two other inmates with more than 4 square metres of personal space. 10. The cells for six detainees, where the applicant was held, were equipped with three bunk beds with a total of six sleeping places, one large and one small table, six chairs and a set of cupboards for each of the detainees. Detainees could freely open or close windows in cells. On 14 November 2011 the sixth bed was removed.", "11. As regards the general characteristics of the cells in the remand section of Ljubljana prison, material conditions inside the cells and sanitary conditions, see the judgment in Mandić and Jović v. Slovenia, nos. 5774/10 and 5985/10, §§ 10 to 23, 20 October 2011. 12. As to the out-of-cell time in the remand section, the Court found in the aforementioned judgment that detainees in the remand section were confined to their cells day and night, save for two hours of daily outdoor exercise, and an additional two hours per week in a recreation room (see Mandić and Jović, cited above, § 78).", "According to the information supplied by the Government in the present case, on 9 February 2011 the time spent outdoors was extended to two hours and a half per day and in November 2011 the outside yard was covered by a roof. From 2 July 2012 detainees could spend five hours per day out of their cells. 13. As regards the cell temperature, the data provided by the Government showed that the average temperature in the cells in the late afternoon (5- 5.30 p.m.) in July and August 2010 had been approximately 27.5oC, exceeding 30oC on eight days, in July and August 2011 approximately 27oC, exceeding 30oC on ten days and in July and August 2012 it had been approximately 28.6oC, exceeding 30oC on eleven days. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 14. For the relevant domestic law and practice as well as relevant international documents see Mandić and Jović, cited above, §§ 24-37. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 IN RESPECT OF THE PHYSICAL CONDITIONS OF DETENTION 15. The applicant complained that the conditions of his detention in the remand section of Ljubljana prison amounted to a violation of Article 3 of the Convention.", "In particular, he complained of severe overcrowding which had led to a lack of personal space, poor sanitary conditions and inadequate ventilation, as well as excessive restriction on out-of-cell time and high temperatures in the cells. 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 16. The Government raised an objection concerning the issue of compliance with the six-month rule. They claimed that the applicant’s situation in detention could not be regarded as a continuous situation as it had been interrupted every time the number of inmates in his cell lowered and he subsequently had more than 4 square metres of personal space. Therefore, the part of the application concerning the detention periods which were discontinued as, due to the change in the number of the inmates in the cell, the applicant had had more personal space, should be declared inadmissible as far as these periods fall outside the six-month time-limit.", "17. The Court finds that when the applicant stayed in the same cell he was kept there under the same conditions, only the number of inmates therein changed. The fact that during certain periods the applicant had more than 4 square metres of personal space, while staying in the same cell under unchanged circumstances, cannot interrupt the running of the six-month period in view of the facts complained of. The applicant’s detention should be regarded as a continuous situation which ended on 6 November 2012. The Court therefore dismisses the Government’s objection.", "18. This part of the application is thus not inadmissible for non-compliance with the six-month rule. The Court further notes that it is also 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 19. The parties relied on the arguments similar to those in the case of Mandić and Jović (cited above, §§ 63-71). 20. The Court refers as regards the relevant principles to paragraphs 72‑76 of its judgment in the case of Mandić and Jović.", "21. The Court notes that for one day the applicant was held in cell no. 89 with four other inmates with 3.33 square metres of personal space, for three hundred and eighty-two days he was held in cell no. 82 with four other inmates with 3.27 square metres of personal space and for one hundred days he was held therein with five other inmates with 2.73 square metres of personal space. In cell no.", "88 he was held for thirty-six days with four other inmates with 3.07 square metres of personal space and for fifty-eight days he was held therein with three other inmates with 3.84 square metres of personal space. Further, the applicant’s personal space in the cells was reduced by the amount of furniture (see Modarca v. Moldova, no. 14437/05, § 63, 10 May 2007). 22. The Court has already found in Mandić and Jović a violation of Article 3 of the Convention as regards the conditions of the applicants’ detention, limited personal space in cells (2.7 square metres of personal space for most of their detention), limited out-of-cell time and high temperatures in the summer of 2009 (see Mandić and Jović v. Slovenia, §§ 77 – 78 and 80).", "23. In the present case when the applicant had 2.73 square metres of personal space his situation was similar to the one of the applicants in Mandić and Jović. Even though the applicant could spend half an hour more outdoors per day then the applicants in Mandić and Jović, there are no reasons to reach a different conclusion from the one adopted in Mandić and Jović. Therefore, the Court finds that these conditions are contrary to Article 3 of the Convention. 24.", "As regards the detention when the applicant had between 3 and 4 square metres of personal space, the Court notes that while the personal space available to the applicant was slightly larger than the space available to the prisoners in Mandić and Jović, it still fell short of the recommendation of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (see Mandić and Jović, cited above, §§ 43 and 127). Moreover, the applicant’s situation was further exacerbated by the limited time which could be spent outside the cells; two hours and a half of daily outdoor exercise when he was in cell no. 82 and five hours daily outside his cell when he was in cell no. 88 and an additional two hours per week in the recreation room (see paragraph 12) as well as by high temperatures in the cells in the late afternoon during the summers of 2010, 2011 and 2012, which were by average around 27oC and could occasionally even exceed 30oC (see paragraph 13). 25.", "Having regard to the cumulative effects of the aforementioned conditions of the applicant’s detention, the Court considers that the hardship he endured during the said periods exceeded the unavoidable level inherent in detention, and that the resulting suffering went beyond the threshold of severity under Article 3 of the Convention (see, mutatis mutandis, Szél v. Hungary, no. 30221/06, § 18, 7 June 2011, and Peers v. Greece, no. 28524/95, § 75, ECHR 2001‑III). 26. The Court therefore finds that the conditions of detention when the applicant had between 3 and 4 square metres of personal space were also contrary to Article 3 of the Convention.", "27. Accordingly, there has been a violation of Article 3 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 28. The applicant further complained under Article 3 of the Convention in respect of inadequate dental care.", "29. The Court finds that the applicant’s allegations were formulated as a general statement and the applicant failed to provide details of any inadequately answered need for medical assistance, either on a regular basis or in an emergency (see, Mandić and Jović, cited above, § 60). 30. In view of the foregoing, the Court considers that this part of the application has not been substantiated by the applicant. Therefore it should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "31. Lastly, the applicant complained that he did not have any effective remedy at his disposal as regards his complaints under Article 3 of the Convention. He cited 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.” 32. The Court reiterates that it has found in the case of Bizjak v. Slovenia (dec.), no. 25516/12, 8 July 2014 that the claim for compensation under Article 179 of the Civil Code was an effective remedy for submitting to the domestic authorities a complaint under Article 3 of the Convention in respect of the physical conditions of detention.", "33. The Court therefore concludes that also this complaint should be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention for being manifestly ill-founded. 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 77,500 euros (EUR) in respect of non-pecuniary damage and EUR 10,000 in respect of pecuniary damage regarding the dental treatment. 36. The Court awards the applicant EUR 12,000 in respect of non-pecuniary damage related to the violation found. B.", "Costs and expenses 37. The applicant also claimed EUR 750 for costs and expenses incurred before the Court. 38. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant did not submit to the Court any documents in support of his claim and thus failed to substantiate that he had actually incurred the costs claimed.", "Therefore, the Court makes no award in respect of costs and expenses. C. Default interest 39. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint concerning the physical conditions of detention under Article 3 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 (a) that the respondent State is to pay the applicant, within three months, EUR 12,000 (twelve 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; 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. Milan BlaškoHelena JäderblomDeputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF MACİR v. TURKEY (Application no. 28516/95) JUDGMENT (Friendly settlement) STRASBOURG 22 April 2003 This judgment is final but it may be subject to editorial revision. In the case of Macir v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka,MrL. Loucaides,MrC.", "Bîrsan,MrM. Ugrekhelidze,MrsA. Mularoni, judges,MrF. Gölcüklü, ad hoc judge,and Mr T.L. Early, Deputy Section Registrar, Having deliberated in private on 28 March 2000 and on 1 April 2003, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1.", "The case originated in an application (no. 28516/95) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Beyaz Macir (“the applicant”), on 30 June 1995. 2. The applicant, who had been granted legal aid, was represented by Mr Mark Muller and Mr Tim Otty, lawyers practising in the United Kingdom, and by Ms Anke Stock of the Kurdish Human Rights Project (London). The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.", "3. The applicant complained, inter alia, under Articles 2 and 13 of the Convention that her husband was killed by undercover agents of the State and that no effective investigation was carried out. 4. Following communication of the application to the Government, 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 28 March 2000, having obtained the parties’ observations, the Court declared the application admissible in so far as it had been communicated to the Government. 5. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1). 6.", "On 26 November 2002, 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 30 January 2003 and on 4 October 2002 the applicant and the Government respectively submitted formal declarations accepting a friendly settlement of the case. THE FACTS 7. The applicant is a Turkish citizen of Kurdish origin and lives in Adana, Turkey. Her husband, Hacı Sait Macir, was a former HEP (Halkın Emek Partisi-People’s Labour Party) and DEP (Demokrasi Partisi –Democracy Party) delegate.", "At the material time he was a member of the provincial committee of HADEP (Halkın Demokrasi Partisi – People’s Democracy Party) and was the president of the party’s commission in the Mutlu neighbourhood. He was also the owner of the Güneydoğu cafe in the Yüreğir district of Adana. 8. On 3 October 1994 the president of the provincial committee of HADEP, Rebih Çabuk and a member of the same committee, Sefer Cerf were shot dead in front of the Güneydoğu cafe. The applicant’s husband witnessed these killings.", "9. On the same day the applicant’s husband was taken to the police station to give a statement. He stated that on 3 October 1994, at 9 a.m., he saw Sefer Cerf collapse after he being shot. He did not see the identity of the two gunmen who immediately ran away. The applicant alleges that her husband was taken to the police station on the pretext of giving a statement.", "However, he was threatened by the police officers and was asked about his association and friendship with Rebih Çabuk and Sefer Cerf. The applicant also alleges that her husband was continuously subjected to harassment after this incident and that the police closed the Güneydoğu cafe for three days without giving any reasons. 10. On 5 October 1994, Ahmet Dizman, who was at the Güneydoğu cafe at the time Rebih Çabuk and Sefer Cerf were killed and took Rebih Çabuk to the hospital in his car, was abducted from the Erzurumlular cafe by plain-clothes policemen. He was taken to a deserted field where he was beaten.", "During this incident the police asked him if he knew Sait Macir. His abductors told Ahmet Dizman that they would kill Sait Macir. 11. In a record of the investigation into the killing of Rebih Çabuk and Sefer Cerf dated 10 October 1994, the applicant’s husband appeared among the witnesses who had given statements to the police. 12.", "On 30 December 1994 the applicant’s husband was shot in front of the Güneydoğu cafe. He was taken to hospital, where he died on 1 January 1995. 13. In a police report dated 30 December 1994 it is recorded that one empty 38 calibre cartridge was found at the spot where the applicant’s husband was shot. A sketch of the crime scene was also attached to this document.", "14. On 30 December 1994 two eyewitnesses, Ahmet Sarıkaya and Bilal Ünver, gave statements to the police. They stated that they drove the applicant’s husband to hospital. They did not see the identity of the gunmen. 15.", "On 2 January 1995 the applicant was invited to the hospital to identify her husband’s body. At the hospital the applicant gave a statement to the Adana public prosecutor, Vahit Civelek. She stated that her husband had no enemies and that she did not know who could have killed him. 16. A preliminary autopsy on Sait Macir was carried out on 2 January 1995.", "It was concluded that he died as a result of gunshot wounds. Blood and organ samples were taken from the body for toxicological examination. 17. On the same day Mr Civelek requested the Adana Forensic Medicine Institution to conduct the final autopsy examination of Sait Macir’s body. 18.", "By letter dated 9 January 1995, with reference to the findings of the ballistics examination of 10 January 1995[1], the Adana Police Headquarters informed the office of the Adana public prosecutor that Sait Macir’s killers were still unidentified. 19. In a ballistics report prepared by the Criminal Police Laboratory of Adana dated 10 January 1995, it is recorded that one cartridge was submitted for a ballistics examination in relation to the killing of Sait Macir. As to the findings of the examination, the report states that the cartridge examined was a Makarov type, 9 mm and 38 calibre. The cartridge bore no resemblance to any other cartridges from other incidents involving unknown perpetrator killings examined previously by the laboratory.", "20. On 17 January 1994 the Adana Forensic Medicine Institution concluded its toxicological examination. No alcohol or toxic material was found in the blood samples. 21. On 18 January 1995 the Adana public prosecutor issued a decision of lack of jurisdiction (görevsizlik kararı).", "The prosecutor decided that, having regard to the evidence in the case file, Sait Macir had been killed by terrorists. The matter therefore fell within the jurisdiction of Konya State Security Court (Konya Devlet Güvenlik Mahkemesi) pursuant to Law no. 3713. The prosecutor ordered that the case file be transferred to the office of the public prosecutor in the Konya State Security Court. 22.", "On 24 January 1995 the Adana Forensic Medicine Institute (Adana Adli Tıp Kurumu) finalised the autopsy report on Sait Macir. According to the report, Sait Macir died as a result of gunshot wounds. 23. On 27 January 1995 the Konya State Security Court Prosecutor issued a decision of lack of jurisdiction (görevsizlik kararı). The prosecutor stated that there existed no evidence to substantiate that Sait Macir had been killed by a terrorist organisation or for ideological reasons.", "Therefore, the prosecutor decided to transfer the case file to the office of the Adana Public Prosecutor, as the matter did not fall within the jurisdiction of his office. 24. By letter of 22 February 1995 the Adana Public Prosecutor requested the Adana Police Headquarters to keep him informed of developments in the investigation into the killing of the applicant’s husband every three months. 25. In a letter dated 20 July 1995 the Adana Police Headquarters informed the office of the Adana Public Prosecutor that the investigation was still being pursued and that the perpetrators had not yet been identified.", "26. On 15 February 1996 the Adana Public Prosecutor requested the Adana Police Headquarters to keep him informed of developments every three months until the end of the statutory prescription period, namely 20 December 2014. 27. By letter of 19 June 1996 the Adana Public Prosecutor requested the Adana Police Headquarters to see to it that two eyewitnesses, Ahmet Sarıkaya and Bilal Ünver, were summoned to appear before him. 28.", "On the same date the Adana Public Prosecutor requested the Adana Police Headquarters to inform him of any recent developments in the investigation into the killing of the applicant’s husband and inquired whether the perpetrators had been identified yet. THE LAW 29. On 4 October 2002 the Court received the following declaration from the Government: “1. I declare that the Government of Turkey offer to pay ex gratia to the applicant, Mrs Beyaz Macir an all-inclusive amount of EUR 70,000 (seventy thousand euros), with a view to securing a friendly settlement of her application registered under no. 28516/95.", "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 free of any tax that may be applicable and be paid in euros to a bank account named by the applicant and 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 death resulting from the failure to protect the lives of individuals and the failure of the authorities to carry out effective investigations into the circumstances surrounding the death of individuals, as in the case of the applicant’s husband, Mr Hacı Sait Macir, notwithstanding existing Turkish legislation and the resolve of the Government to remedy such failures. 3.", "It is accepted that such failures constituted a violation of Articles 2 and 13 of the Convention and, having regard to the anguish caused to the family members, of Article 3. The Government undertake to issue appropriate instructions and adopt all necessary measures to ensure that the right to life – including the obligation to carry out effective investigations – is 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 deaths 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.” 30. On 30 January 2003 the Court received the following declaration signed by the applicant’s representative: “In my capacity as the representative of the applicant, Mrs Beyaz Macir, I have taken cognisance of the terms of the declaration of the Government of Turkey including the payment to the applicant of an ex gratia all-inclusive amount of EUR 70,000 (seventy thousand euros) with a view to concluding a friendly settlement of her case that originated in application no. 28516/95.", "This sum, which is to cover any pecuniary and non-pecuniary damage as well as legal costs and expenses related to the case, will be paid in accordance with the terms stipulated in the said declaration within three months after notification of the Court’s judgment delivered pursuant to Article 39 of the European Convention on Human Rights. Having duly consulted the applicant, I accept that offer and she, in consequence, waives all other claims against the Republic of Turkey in respect of the matters that were at the origin of the application. We declare that the case has been settled finally and we 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. This declaration is made within the scope of the friendly settlement which the Government and I, in agreement with the applicant, have reached.” 31. 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). 32. 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 22 April 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyJ.-P. Costa Deputy Registrar President [1] The letter is dated 9 January 1995 although it refers to the ballistics examination of 10 January 1995." ]

[ "SECOND SECTION CASE OF GRANDE STEVENS v. ITALY (Application no. 18640/10) JUDGMENT (Merits) STRASBOURG 4 March 2014 FINAL 07/07/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Grande Stevens v. Italy, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Işıl Karakaş, President,Guido Raimondi,Peer Lorenzen,Dragoljub Popović,András Sajó,Paulo Pinto de Albuquerque,Helen Keller, judges, and Stanley Naismith, Section Registrar, Having deliberated in private on 28 January 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in five applications (nos.", "18640/10, 18647/10, 18663/10, 18668/10 and 18698/10) against the Republic of Italy lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Italian nationals and two companies registered in Italy, Mr Franzo Grande Stevens, Mr Gianluigi Gabetti, Mr Virgilio Marrone, Exor S.p.a. and Giovanni Agnelli & C. S.a.s. (“the applicants”), on 27 March 2010. 2. The applicants were represented by Mr A. Bozzo and Mr G. Bozzi, lawyers practising in Milan and Rome respectively. Mr Grande Stevens was also represented by Mr N. Irti, a lawyer practising in Milan.", "The Italian Government (“the Government”) were represented by their Agent, Ms E. Spatafora, and their co-Agent, Ms P. Accardo. 3. The applicants alleged, in particular, that the judicial proceedings brought against them had not been fair and had not been conducted before an independent and impartial “tribunal”, that there had been a breach of their right to peaceful enjoyment of their possessions and that there had been a violation of the ne bis in idem principle in their respect. 4. On 15 January 2013 the applications were declared partly inadmissible and the complaints under Article 6 of the Convention, Article 1 of Protocol No.", "1 and Article 4 of Protocol No. 7 were communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "A list of the applicant parties is appended. A. The context of the case 6. At the relevant time Mr Gianluigi Gabetti was the chairman of the two applicant companies and Mr Virgilio Marrone was the authorised representative (procuratore) of the applicant company Giovanni Agnelli & C. s.a.a. 7.", "On 26 July 2002 the public limited company FIAT (Fabbrica Italiana Automobili Torino) signed a financing agreement (prestito convertendo) with eight banks. That contract was due to expire on 20 September 2005 and stipulated that, should FIAT fail to reimburse the loan, the banks could offset their claim by subscribing to an increase in the company’s capital. Thus, the banks would have obtained 28% of FIAT’s share capital, while the holdings of the public limited company IFIL Investments (which subsequently, on 20 February 2009, became Exor s.p.a., the name by which it will be referred to hereafter) would have decreased from 30.06% to about 22%. 8. Mr Gabetti wished to obtain legal advice on the best way to ensure that Exor remained the controlling shareholder in FIAT, and to this end he contacted a lawyer specialising in company law, Mr Grande Stevens.", "He considered that one possibility would be to renegotiate an equity swap (that is, a contract allowing a share’s performance to be exchanged against an interest rate, without having to advance money), dated 26 April 2005 and based on approximately 90 million FIAT shares, concluded by Exor with an English merchant bank, Merrill Lynch International Ltd, which was due to expire on 26 December 2006. In Mr Grande Stevens’s opinion, this would be one way to prevent the launch of a takeover bid with regard to the FIAT shares. 9. Without mentioning Merrill Lynch International Ltd for fear of breaching his duty of confidentiality, on 12 August 2005 Mr Grande Stevens asked the National Companies and Stock Exchange Commission (Commissione Nazionale per le Società e la Borsa – “the CONSOB”, which in the Italian legal system, has the task, inter alia, of protecting investors and ensuring the transparency and development of the stock markets) whether, in the scenario he envisaged, a takeover bid could be avoided. At the same time Mr Grande Stevens began making enquires with Merrill Lynch International Ltd about the possibility of amending the equity swap contract.", "10. On 23 August 2005 the CONSOB asked Exor and Giovanni Agnelli to issue a press release providing information on any initiative taken in the light of the forthcoming expiry of the financing agreement with the banks, any new fact concerning FIAT and anything that might explain the market fluctuations in FIAT shares. 11. Mr Marrone alleges that he was on leave on that date. He had informed Mr Grande Stevens of the CONSOB’s request and had sent him a copy of it.", "Mr Marrone submits that he was not involved in drafting the press releases described in paragraphs 13 and 14 below. 12. Mr Gabetti submits that on 23 August 2005 he was in hospital in the United States. He had received a draft press release and had contacted Mr Grande Stevens by telephone; the lawyer had confirmed to him that, given the significant number of elements that remained uncertain, renegotiation of the equity swap contract could not be considered as a relevant and currently available option. In those circumstances, Mr Gabetti approved the draft press release.", "13. The press release issued in response [to the CONSOB’s query], approved by Mr Grande Stevens, merely indicated that Exor had “neither instituted nor examined initiatives with regard to the expiry of the financing contract” and that it wished “to remain FIAT’s reference shareholder”. No mention was made of the possible renegotiation of the equity swap contract with Merrill Lynch International Ltd, which, in the absence of a clear factual and legal basis, the applicants considered merely as one possible future scenario. 14. The Giovanni Agnelli Company confirmed Exor’s press release.", "15. From 30 August to 15 September 2005 Mr Grande Stevens continued his negotiations with Merrill Lynch International Ltd, exploring the options for amending the equity swap contract. 16. On 14 September 2005, in the course of an Agnelli family meeting, it was decided that the draft text being studied by Mr Grande Stevens ought to be submitted for approval by the Exor board of management. On the same day, the CONSOB received a copy of the equity swap contract and was informed of the negotiations under way with a view to using that contract to enable Exor to acquire FIAT shares.", "17. On 15 September 2005, in execution of the decisions taken by their respective boards of management, Exor and Merrill Lynch International Ltd concluded the agreement on amending the equity swap contract. 18. On 17 September 2005, in response to the question posed to it by Mr Grande Stevens on 12 August 2005 (see paragraph 9 above), the CONSOB indicated that, in the scenario envisaged, there was no obligation to launch a takeover bid. 19.", "On 20 September 2005 FIAT increased its share capital; the new shares were acquired by the eight banks in compensation for the sums owed to them. On the same date the agreement amending the equity swap contract took effect. In consequence, Exor continued to hold a 30% stake in FIAT. B. The proceedings before the CONSOB 20.", "On 20 February 2006 the CONSOB’s Markets and Economic Opinions Division – Insider Trading Office (Divisione mercati e consulenza economica – ufficio Insider Trading – hereafter the “IT Office”) accused the applicants of breaching Article 187 ter § 1 of Legislative Decree no. 58 of 24 February 1998. That article, entitled “Market Manipulation”, provides: “Without prejudice to criminal penalties where the conduct amounts to an offence, any person who, through means of information, including Internet or any other means, disseminates false or misleading information, news or rumours of a kind to provide false or misleading indications concerning financial instruments shall be liable to an administrative penalty ranging from 20,000 to 5,000,000 euros (EUR).”[1] 21. According to the IT Office, the agreement to amend the equity swap had been concluded or was in the process of being concluded before the press releases of 24 August 2005 were issued, and accordingly it was abnormal that they had contained no mention of it. The applicants were invited to submit their defence.", "22. The IT Office then transmitted the file to the CONSOB’s Administrative Sanctions Directorate (ufficio sanzioni amministrative – hereafter, “the Directorate”), accompanied by a report (relazione istruttoria) dated 13 September 2006, which set out the evidence against the accused and their arguments in reply. According to that report, the arguments submitted in their defence by the applicants were not such as to enable the file to be closed. 23. The Directorate communicated this report to the applicants and invited them to submit in writing, within a thirty-day period that would expire on 23 October 2006, those arguments that they considered necessary for their defence.", "In the meantime, the IT Office continued to examine the applicants’ case, by obtaining oral statements and analysing the documents received on 7 July 2006 from Merrill Lynch International Ltd. On 19 October 2006 it transmitted a “supplementary note” to the Directorate in which it stated that the new documents examined by it were not such as to alter its conclusions. On 26 October 2006 the applicants received a copy of the supplementary note of 19 October 2006 and its appendices; they were given a further thirty-day deadline within which to submit any comments. 24. Without communicating it to the applicants, the Directorate presented its report (dated 19 January 2007 and containing its conclusions) to the Commission – the CONSOB proper –, that is, to the body responsible for deciding on possible penalties. At the relevant time the Commission was made up of a chairman and four members, appointed by the President of the Republic on a proposal (su proposta) from the President of the Council of Ministers.", "Their term of office was for five years and could be renewed only once. 25. By resolution no. 15760 of 9 February 2007, the CONSOB imposed the following administrative fines on the applicants: - EUR 5,000,000 in respect of Mr Gabetti, - EUR 3,000,000 in respect of Mr Grande Stevens, - EUR 500,000 in respect of Mr Marrone, - EUR 4,500,000 in respect of the company Exor, - EUR 3,000,000 in respect of the company Giovanni Agnelli. 26.", "Mr Gabetti, Mr Grande Stevens and Mr Marrone were banned from administering, managing or supervising listed companies for periods of six, four and two months respectively. 27. The CONSOB held, in particular, that the file showed that on 24 August 2005, date of the impugned press releases, the plans to maintain a 30% stake in FIAT’s capital on the basis of renegotiation of the equity swap contract with Merrill Lynch International Ltd had already been studied and were being put in place. It followed that the press releases falsely represented (rappresentazione falsa) the situation at the time. The CONSOB also emphasised the positions held by the persons concerned, the “objective gravity” of the offence and the existence of malicious intent.", "C. Application to the appeal court to have the penalties set aside 28. The applicants applied to the Turin Court of Appeal seeking to have these penalties set aside. They alleged, inter alia, that the CONSOB’s rules were illegal, since, contrary to the requirements of Article 187 septies of Legislative Decree no. 58 of 1998 (see paragraph 57 below), they did not comply with the principle of an adversarial examination of the case. 29.", "Mr Grande Stevens further noted that the CONSOB had accused and punished him for being involved in publication of the press release of 24 August 2005 as the executive director of Exor. Before the CONSOB, he had argued unsuccessfully that he did not have that role and that he was merely a lawyer and consultant for the Agnelli group. Before the appeal court, Mr Grande Stevens maintained that, since he was not an executive director, he could not have taken part in the decision to publish the impugned press release. In pleadings of 25 September 2007, Mr Grande Stevens requested that, should the appeal court consider the documents placed in the case file to be insufficient or unusable, it summon witnesses for questioning “on the facts set out in the above-mentioned documents”. He did not indicate clearly in those pleadings either the names of those witnesses or the circumstances in respect of which they were to give evidence.", "In pleadings of the same date, Mr Marrone named two witnesses whose statements would prove that he had not taken part in drafting the press releases, and stated that the appeal court could, if necessary (ove occorresse), question them. 30. In judgments deposited with the registry on 23 January 2008, the Turin Court of Appeal reduced the administrative fines imposed by the CONSOB in respect of certain of the applicants, as follows: - EUR 600,000 in respect of Giovanni Agnelli s.a.a. ; - EUR 1,000,000 in respect of Exor s.p.a.; - EUR 1,200,000 in respect of Mr Gabetti. The heading of the judgments delivered in respect of Mr Gabetti, Mr Marrone and Exor S.p.a. indicated that the court of appeal had met in private (riunita in camera di consiglio).", "The “procedure” part of the judgments issued in respect of Mr Grande Stevens and Giovanni Agnelli & C. S.a.s. mentioned that the parties had been summoned to the deliberations (disposta la comparizione delle parti in camera di consiglio). 31. The length of the ban on assuming responsibility for the administration, management or supervision of companies listed on the stock exchange was reduced from six to four months in respect of Mr Gabetti. 32.", "The court of appeal dismissed the applicants’ other complaints in their entirety. It noted, inter alia, that even after the file had been transmitted to the Directorate, the IT Office had been entitled to continue its investigative activities, as the 210-day deadline provided for the CONSOB’s deliberations had not been binding. Furthermore, the adversarial principle was complied with if, as in the present case, those charged had been informed of the new evidence obtained by the IT Office and had had an opportunity to submit their replies. 33. The court of appeal also noted that it was true that the CONSOB had both imposed the penalties provided for by Article 187 ter of Legislative Decree no.", "58 of 1998 and reported the case to the prosecuting authorities, alleging that the criminal offence described in Article 185 § 1 of the same decree had been committed. Under the terms of this provision, “Anyone who disseminates false information, carries out simulated transactions or uses other ploys (artifizi) which are objectively capable of triggering a significant change in the value of financial instruments shall be punishable by between one and six years’ imprisonment and a fine of 20,000 to 5,000,000 euros.” 34. According to the court of appeal, those two provisions had as their subject-matter the same conduct (the “dissemination of false information”) and pursued the same aim (to prevent market manipulation), but differed with regard to the situation of risk alleged to have been generated by this conduct: in respect of Article 187 ter, it was sufficient in itself to have given false or misleading indications concerning financial instruments, while Article 185 further required that that information had been such as to trigger a significant change in the price of the instruments in question. As the Constitutional Court had indicated in its order no. 409 of 12 November 1991, it was open to the legislature to punish illegal conduct both by a pecuniary administrative sanction and by criminal penalties.", "In addition, Article 14 of Directive 2003/6/EC (see paragraph 60 below), which invited the member States of the European Union to apply administrative sanctions against persons responsible for manipulating the market, contained in turn the phrase “without prejudice to the right of Member States to impose criminal sanctions”. 35. On the merits, the court of appeal observed that it was clear from the case file that the renegotiation of the equity swap had been examined in minute detail at the relevant date and that the conclusion reached by the CONSOB (namely, that this plan already existed one month prior to 24 August 2005) had been reasonable in the light of the established facts and the conduct of the persons concerned. 36. As to Mr Grande Stevens, it was true that he was not an executive director of Exor s.p.a.", "Nonetheless, the administrative offence punishable under Article 187 ter of Legislative Decree no. 58 of 1998 could be committed by “anyone”, and therefore by a person in any capacity whatsoever; Mr Grande Stevens had indeed participated in the decision-making process which had led to publication of the press release in his capacity as a lawyer consulted by the applicant companies. D. Appeal on points of law 37. The applicants appealed on points of law. In the third and fourth grounds of their points of appeal, they alleged, inter alia, that there had been a breach of the principles of a fair hearing, enshrined in Article 111 of the Constitution, because, in particular: the investigative phase of the CONSOB proceedings had not been adversarial in nature; there had been a failure to transmit the Directorate’s report to the accused; in the applicants’ view, it had been impossible to file pleadings with or be heard in person by the Commission; the IT Office had continued its investigation and transmitted a supplementary note after expiry of the time-limit set for that purpose.", "38. By judgments of 23 June 2009, the text of which was deposited with the registry on 30 September 2009, the Court of Cassation dismissed their appeals on points of law. It considered, in particular, that the principle of an adversarial examination of the case had been complied with in the proceedings before the CONSOB, noting that the latter had indicated to the applicants the acts with which they were charged and taken account of their respective defence submissions. The fact that the applicants had not been questioned and that they had not received the Directorate’s conclusions had not been in breach of that principle, since the constitutional provisions regarding a fair hearing and the right of defence were applicable only to judicial proceedings, and not to proceedings to impose administrative sanctions. E. The criminal proceedings against the applicants 39.", "Under Legislative Decree no. 58 of 1998, the applicants’ impugned conduct could be the subject-matter not only of an administrative sanction, imposed by the CONSOB, but also of the criminal penalties provided for in Article 185 § 1, cited in paragraph 33 above. 40. On 7 November 2008 the applicants were committed for trial before the Turin District Court. They were accused of having stated, in the press releases of 24 August 2005, that Exor wished to remain FIAT’s reference shareholder and that it had neither initiated nor examined initiatives with regard to the expiry of the financing contract, although the agreement amending the equity swap had already been examined and concluded, information that had been withheld in order to avoid a probable fall in the FIAT share price.", "41. CONSOB applied to be joined to the proceedings as a civil party, a possibility open to it under Article 187 undecies of Legislative Decree no. 58 of 1998. 42. After 30 September 2009, the date on which the judgment dismissing the applicants’ appeal on points of law against the penalties imposed by the CONSOB was deposited with the registry (see paragraph 38 above), the applicants requested that the criminal proceedings against them be discontinued, by virtue of the non bis in idem rule.", "In particular, at the hearing of 7 January 2010, they argued that the relevant provisions of Legislative Decree no. 58 of 1998 and Article 649 of the Code of Criminal Procedure (“the CCP” - see paragraph 59 below) were unconstitutional, on account of their alleged incompatibility with Article 4 of Protocol No. 7. 43. The representative of the prosecuting authorities opposed this objection, alleging that “double proceedings” (administrative and criminal) were imposed by Article 14 of Directive 2003/6/EC of 28 January 2003 (see paragraph 60 below), which the Italian legislature had transposed by enacting Articles 185 and 187ter of Legislative Decree no.", "58 of 1998. 44. The Turin District Court did not immediately rule on the ancillary question of constitutionality raised by the defence. It ordered an expert report describing the fluctuations in FIAT shares between December 2004 and April 2005 and evaluating the effects of the press releases of 24 August 2005 and the information made public on 15 September 2005. 45.", "By a judgment of 21 December 2010, the text of which was deposited with the registry on 18 March 2011, the Turin District Court acquitted Mr Marrone on the ground that he had not been involved in the publication of the press releases, and also acquitted the other applicants on the ground that it had not been proven that their conduct had been such as to trigger a significant change in the financial markets. It noted that the fact that the press releases contained false information had already been punished by the administrative body. In the court’s view, the applicants’ impugned conduct had, probably, been aimed at concealing the renegotiation of the equity swap contract from the CONSOB, and not at increasing FIAT’s share price. 46. The court held that the ancillary question of constitutionality raised by the applicants was manifestly ill-founded.", "It noted that Italian law (section 9 of Law no. 689 of 1981) prohibited “double proceedings” (doppio giudizio), criminal and administrative, in respect of the “same act”. However, Articles 185 and 187 ter of Legislative Decree no. 58 of 1998 did not punish the same act: only the criminal provision (Article 185) required that the conduct be such as to cause a significant change in the value of financial instruments (it referred to judgment no. 15199 of the Court of Cassation (Sixth Section), of 16 March 2006).", "In addition, application of the criminal provision required the existence of malicious intent, while the administrative provision was applicable as soon as culpable conduct was established. Moreover, the criminal proceedings which had followed the imposition of the financial penalty provided for by Article 187 ter of Legislative Decree no. 58 of 1998 were authorised by Article 14 of Directive 2003/6/EC. 47. As to the case-law of the Court cited by the applicants (Gradinger v. Austria (23 October 1995, Series A no.", "328-C), Sergey Zolotukhin v. Russia [GC], no. 14939/03, ECHR 2009), Maresti v. Croatia (no. 55759/07, 25 June 2009) and Ruotsalainen v. Finland (no. 13079/03, 16 June 2009)), it was not relevant to this case, since it concerned cases where a single act had been punished by criminal and administrative penalties and where the latter had a punitive element and could include a custodial sentence or (as in the Ruotsalainen case) were for a sum higher than the criminal fine. 48.", "The public prosecutor’s office appealed on points of law, alleging that the offence with which the applicants had been charged was one “of danger” (reato di pericolo) and not “of damage” (reato di danno). It could therefore be committed even in the absence of damage having been sustained by the shareholders. 49. On 20 June 2012 the Court of Cassation allowed in part the prosecuting authorities’ appeal on points of law and quashed the acquittal of the companies Giovanni Agnelli and Exor, and those of Mr Grande Stevens and Mr Gabetti. However, it upheld the acquittal of Mr Marrone, given that he had not taken part in the impugned conduct.", "50. By a judgment of 28 February 2013, the Turin Court of Appeal convicted Mr Gabetti and Mr Grande Stevens of the offence set out in Article 185 § 1 of Legislative Decree no. 58 of 1998, considering it highly probable that, had the false information included in the press release of 24 August 2005 not been issued, the value of FIAT’s shares would have fallen much more sharply. However, it acquitted the companies Exor and Giovanni Agnelli, holding that no criminal acts could be imputed to them. 51.", "The court of appeal held that there was no appearance of a violation of the ne bis in idem principle, thus endorsing the main thrust of the Turin District Court’s reasoning. 52. According to the information provided by the Government on 7 June 2013, Mr Gabetti and Mr Grande Stevens appealed on points of law against that judgment, and the proceedings were still pending at that date. In their appeals, these two applicants relied on a violation of the ne bis in idem principle and asked that an ancillary question of constitutionality be raised in respect of Article 649 of the Code of Criminal Procedure. ...", "THE LAW ... II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 87. The applicants alleged that the proceedings before the CONSOB had not been fair, and complained that that body lacked impartiality and independence. They relied on Article 6 of the Convention, the relevant parts of which read: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.", "Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to 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; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” 88.", "The Government contested the applicants’ position. A. Admissibility 1. Whether Article 6 of the Convention applies in its criminal head (a) The parties’ submissions i. The Government 89. The Government contended that the proceedings before the CONSOB did not relate to a “criminal charge” against the applicants.", "They noted that the offence prescribed by Article 187 ter of Legislative Decree no. 58 of 1998 was clearly classified as “administrative” under both domestic and European law; [the corresponding penalty] could be imposed by an administrative body at the close of administrative proceedings. 90. As to the nature of the offence, it included any conduct, even that of mere negligence, which was likely to provide erroneous signals or information to investors, without it being necessary that this be likely to trigger a significant change in the financial markets. It protected investors against any potential risk that might influence their choices and thus referred to interests other than those usually protected by criminal law.", "Finally, the sanctions that could be imposed affected only the assets of the person concerned and/or his ability to exercise managerial functions, and under no circumstances could they lead to a custodial sentence, even in the event of non-payment. They were not mentioned in an individual’s criminal record and usually concerned professional operators in the financial system rather than the population as a whole. 91. Moreover, the amount of the fines had been proportionate to the guilty party’s resources and financial strength; the present case concerned a financial operation which was aimed at gaining control of one of the largest vehicle manufactures in the world, and had cost more than EUR 500,000,000. In addition, the fines, the possible confiscation of the assets used to commit the office and the prohibition on exercising managerial functions were essentially intended to restore market confidence and reassure investors, by targeting the elements which had made it possible for the administrative offence to be committed (on this point, they also referred to the aims pursued by Directive 2003/6/EC).", "They were intended to make reparation and compensate for financial damage, and to prevent the guilty party from benefiting from the illegal activities. Furthermore, in the case of Spector Photo Group (Spector Photo Group NV v Commissie voor het Bank, Financie-en Assurantiewezen, C-45/08., 23 December 2009), the European Court of Justice (ECJ) had accepted the coexistence, in this sector, of administrative and criminal sanctions. ii. The applicants 92. The applicants considered that although they were classified as “administrative” in domestic law, the sanctions imposed by the CONSOB ought to be considered as “criminal”, in the autonomous meaning of this concept in the Court’s case-law.", "The ECJ’s judgment in the case of Spector Photo Group, cited by the Government, did not take the opposite line, but merely stated that if a Member State had introduced the possibility of a criminal financial sanction, it was not necessary, for the purposes of assessing whether the administrative sanction was effective, proportionate and dissuasive, to take account of the level of that sanction. Moreover, in its judgment of 26 February 2013 in case C-617/10 (Åklagaren v. Hans Åkerberg Fransson), the ECJ had confirmed the following principles: (a) the applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter; (b) Article 50 of the Charter (guaranteeing the ne bis in idem principle) presupposes that the measures which are adopted against a defendant are of a criminal nature; (c) for the purpose of assessing whether tax penalties are criminal in nature, it is necessary to consider the legal classification of the offence under national law, the very nature of the offence, and the degree of severity of the penalty that the person concerned is liable to incur. 93. In the present case, the seriousness of the sanctions was clear, since the maximum sum that could be imposed was EUR 5,000,000. This primary sanction was supplemented by secondary penalties, such as temporary loss of entitlement (of up to three years) to hold administrative, managerial or supervisory roles in listed companies, temporary suspension (of up to three years) from professional bodies, and confiscation of the proceeds of the office and the assets used to commit it.", "Referring to the Court’s case-law in this area (in particular Dubus S.A. v. France, no. 5242/04, 11 June 2009; Messier v. France, no. 25041/07, 30 June 2001; and Menarini Diagnostics S.r.l. v. Italy, no. 43509/08, 27 September 2011), the applicants concluded that Article 6 was applicable in its criminal limb.", "(b) The Court’s assessment 94. The Court reiterates its established case-law that, in determining the existence of a “criminal charge”, it is necessary to have regard to three factors: the legal classification of the measure in question in national law, the very nature of the measure, and the nature and degree of severity of the “penalty” (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22). Furthermore, these criteria are alternative and not cumulative ones: for Article 6 to apply in respect of the words “criminal charge”, it suffices that the offence in question should by its nature be “criminal” from the point of view of the Convention, or should have made the person concerned liable to a sanction which, by virtue of its nature and degree of severity, belongs in general to the “criminal” sphere. 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 Jussila v. Finland [GC], no.", "73053/01, §§ 30 and 31, ECHR 2006-XIII, and Zaicevs v. Latvia, no. 65022/01, § 31, ECHR 2007-IX (extracts)). 95. In the present case, the Court first observes that the market manipulations with which the applicants were accused did not constitute a criminal offence in Italian law. Such conduct was in effect punished by a penalty which was classified as “administrative” by Article 187 ter § 1 of Legislative Decree no.", "58 of 1998 (see paragraph 20 above). However, this was not decisive for the purposes of the applicability of Article 6 of the Convention in its criminal head, as the indications furnished by the domestic law have only a relative value (see Öztürk v. Germany, 21 February 1984, § 52, Series A no. 73, and Menarini Diagnostics S.r.l., cited above, § 39). 96. As to the nature of the offence, it appears that the provisions which the applicants were accused of breaching were intended to guarantee the integrity of the financial markets and to maintain public confidence in the security of transactions.", "The Court reiterates that the CONSOB, an independent administrative body, has the task of protecting investors and ensuring the effectiveness, transparency and development of the stock markets (see paragraph 9 above). These are general interests of society, usually protected by criminal law (see, mutatis mutandis, Menarini Diagnostics S.r.l., cited above, § 40; see also Société Stenuit v. France, report of the European Commission of Human Rights, 30 May 1991, § 62, Series A no. 232‑A). In addition, the Court considers that the fines imposed were essentially intended to punish, in order to prevent repeat offending. They had therefore been based on rules whose purpose was both deterrent, namely to dissuade the applicants from resuming the activity in question, and punitive, since they punished unlawful conduct (see, mutatis mutandis, Jussila, cited above, § 38).", "Thus, they were not solely intended, as the Government claimed (see paragraph 91 above), to repair damage of a financial nature. In this respect, it should be noted that the penalties were imposed by the CONSOB on the basis of the gravity of the impugned conduct, and not of the harm caused to investors. 97. As to the nature and severity of the penalty which was “likely to be imposed” on the applicants (see Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 120, ECHR 2003-X), the Court, like the Government (see paragraph 90 above), notes that the fines in question could not be replaced by a custodial sentence in the event of non‑payment (see, a contrario, Anghel v. Romania, no.", "28183/03, § 52, 4 October 2007). However, the fine which the CONSOB was entitled to impose could go up to EUR 5,000,000 (see paragraph 20 above), and this ordinary maximum amount could, in certain circumstances, be tripled or fixed at ten times the proceeds or profit obtained through the unlawful conduct (see paragraph 53 above). Imposition of the above-mentioned pecuniary administrative sanctions entails the temporary loss of their honour for the representatives of the companies involved, and, if the latter are listed on the stock exchange, their representatives are temporarily forbidden from administering, managing or supervising listed companies for periods ranging from two months to three years. The CONSOB may also prohibit listed companies, management companies and auditing companies from engaging the services of the offender, for a maximum period of three years, and request professional associations to suspend, on a temporary basis, the individual’s right to carry out his or her professional activity (see paragraph 54 above). Lastly, the imposition of financial administrative sanctions entails confiscation of the proceeds or profits of the unlawful conduct and of the assets which made it possible (see paragraph 56 above).", "98. It is true that in the present case the maximum penalties were not imposed, the Turin Court of Appeal having reduced some of the fines imposed by the CONSOB (see paragraph 30 above), and no confiscations having been ordered. However, the criminal connotation of proceedings depends on the degree of severity of the penalty to which the person concerned is a priori liable (see Engel and Others, cited above, § 82), and not the severity of the penalty ultimately imposed (see Dubus S.A., cited above, § 37). Furthermore, in the present case the applicants had ultimately received fines ranging from EUR 500,000 to 3,000,000, and Mr Gabetti, Mr Grande Stevens and Mr Marrone had been prohibited from administering, managing or supervising listed companies for periods ranging from two to four months (see paragraphs 25-26 and 30-31 above). This last penalty was such as to compromise the integrity of the persons concerned (see, mutatis mutandis, Dubus S.A., loc.", "ult. cit. ), and, given their amount, the fines were of undeniable severity and had significant financial implications for the applicants. 99. In the light of the above, and taking account of the severity of the fines imposed and of those to which the applicants were liable, the Court considers that the penalties in question, though their severity, were criminal in nature (see, mutatis mutandis, Öztürk, cited above, § 54, and, a contrario, Inocêncio v. Portugal (dec.), no.", "43862/98, ECHR 2001‑I). 100. Moreover, the Court also reiterates that, with regard to certain French administrative authorities which have jurisdiction in economic and financial law and enjoy sentencing powers, it has held that the criminal limb of Article 6 applied, in particular, with regard to the Disciplinary Offences (Budget and Finance) Court (Guisset v. France, no. 33933/96, § 59, ECHR 2000‑IX), the Financial Markets Board (Didier v. France (dec.), no. 58188/00, 27 August 2002), the Competition Commission (Lilly France S.A. v. France (dec.), no.", "53892/00, 3 December 2002), the sanctions committee of the financial market supervisory authorities (Messier v. France (dec.), no. 25041/07, 19 May 2009), and the Banking Commission (Dubus S.A., cited above, § 38). The same finding was made in respect of the Italian regulatory authority responsible for competition and the market (the AGCM – Autorità Garante della Concorrenza e del Mercato; see Menarini Diagnostics S.r.l., cited above, § 44). 101. After noting and giving due weight to the various aspects of the case, the Court considers that the fines imposed on the applicants were criminal in nature, with the result that Article 6 § 1 is applicable in this case under its criminal head (see, mutatis mutandis, Menarini Diagnostics S.r.l., loc.", "ult. cit.). ... B. Merits 1. Whether the proceedings before the CONSOB were fair (a) The parties’ submissions i.", "The applicants 106. The applicants alleged that the proceedings before the CONSOB had been essentially in written form, that no public hearing had been scheduled and that the rights of the defence were not respected. The Court of Cassation itself had acknowledged that the guarantees of a fair trial and protection of the rights of the defence (Articles 111 and 24 of the Constitution) did not apply to administrative proceedings (see paragraph 38 above). 107. The applicants submitted that CONSOB Resolutions no.", "12697 of 2 August 2000 and no. 15086 of 21 June 2005 had de facto eliminated the principle of adversarial proceedings, which was, however, a requirement under Article187 septies of Legislative Decree no. 58 of 1998... As in the present case, those resolutions permitted non-communication to the defendant of the Directorate’s conclusions, which then formed the basis of the decision taken by the Commission; in addition, the latter did not receive the pleadings submitted by the defendants during the investigation phase. Furthermore, the Commission ruled without hearing the defendants and without a public hearing, a fact which, in the present case, had prevented the applicants from addressing the Commission directly and from defending themselves in relation to the Directorate’s findings. Those findings had been important evidence, and familiarity with them would have enabled the applicants to detect inconsistencies in the investigation or to obtain relevant information for their defence.", "The Commission held only an internal meeting, in the course of which the sole individual questioned had been a civil servant from the IT Office (that is, from the body responsible for the “charge”). The applicants were not invited to the meeting and had not even been able to obtain a copy of its minutes. 108. The applicants also claimed that they had not been informed in good time of the new documents on which the IT Office’s supplementary note had been based (see paragraph 23 above) and had not had the time and facilities necessary to defend themselves in relation to it. Those documents were allegedly brought to their attention at a late stage.", "109. The applicants considered that the proceedings before the CONSOB did not guarantee a real separation between the investigative and decision-making phases, which, they alleged, was in breach of the principle of equality of arms. The investigation was indeed entirely subject to the power to give instructions enjoyed by the CONSOB’s chairman, who had responsibility for a large number of investigative measures, including the wording of the accusation or accusations. 110. They submitted that, in the present case, the investigative activity had been unilateral and based on witness statements made in the absence of the accused or their counsel, who had not had an opportunity to question those witnesses or to be present when the various investigative measures were carried out.", "The applicants had been able to submit their respective pleadings only in writing. ii. The Government 111. The Government argued that the CONSOB’s IT Office had appended to its report all of the documents from the investigation, and thus also the defence pleadings submitted by the applicants. They also emphasised that the applicants had been given a thirty-day period in which to submit any observations on the IT Office’s supplementary note of 19 October 2006, and that the applicants had submitted those observations on 24 November 2006 without making any complaint as to the limited time available to them.", "Furthermore, the applicants had never requested that witnesses be summoned and questioned; in the normal course of events, their presence served no purpose in the proceedings before the CONSOB, these being based on the acquisition of technical information and data. The technical nature of the offences justified the decision to resort to essentially written proceedings. 112. Bearing in mind the “administrative” nature of the proceedings before the CONSOB, the Government argued that their fairness could not be challenged on the sole ground that they had been conducted entirely in writing. As administrative proceedings were not referred to in Article 6 of the Convention, the principles of a fair hearing could only be applied to them mutatis mutandis.", "The impugned proceedings had indeed been promoted by a concern to ensure respect for the rights of the defence, the adversarial principle and the principle that the accusation should correspond to the act that is punished. The applicants had had access to the investigation file, and the investigation and the decision-making process had been separated – the first stage had been under the jurisdiction of the IT Office and the Administrative Sanctions Directorate, while the second stage had been entrusted to the CONSOB’s Commission. 113. In this connection, the Government emphasised that the letter accusing the applicants of a violation of Article 187 ter § 1 of Legislative Decree no. 58 of 1998 had not been signed by the CONSOB’s chairman, but by the head of the markets and economic opinions division and by the director-general of institutional activities.", "114. Once proceedings in respect of an offence had been opened, the persons concerned could exercise their defence rights by presenting written observations or by asking to be heard, first by the relevant office then by the Administrative Sanctions Directorate. Thus, as in the present case, such persons had an opportunity to submit observations concerning the elements constituting the offence and any other relevant circumstance, prior to examination of their case. The investigation took place in two stages (the first before the IT Office, the other before the Directorate), and the Office’s report was transmitted not only to the Directorate, but also to the defendants, who could then submit to the Directorate their defence in relation to its content. The fact that the latter’s conclusions had not been transmitted to the accused and that they were not heard in person by the Commission had no effect on the fairness of the proceedings.", "115. The Government pointed out that even in judicial proceedings the accused was not entitled to discuss the penalty during the decision-making phase. Moreover, the maximum severity of those penalties was determined by the law, which also indicted the criteria to be respected in order to ensure that they were proportionate to the severity of the offences committed. Lastly, as the combined divisions of the Court of Cassation had acknowledged in judgment no. 20935 of 2009, Article 187 septies of Legislative Decree no.", "58 of 1998 (governing the rights of the defence in the context of proceedings before the CONSOB) had been introduced into the Italian legal system specifically to ensure compliance with the requirements of the Convention. (b) The Court’s assessment 116. The Court is prepared to accept that, as the Government have emphasised, the proceedings before the CONSOB provided the accused with an opportunity to submit evidence in their defence. The accusation drawn up by the IT Office was indeed communicated to the applicants, who were invited to defend themselves (see paragraphs 20 and 21 above). The applicants were also informed of the IT Office’s report and supplementary note, and were given thirty days to submit any observations concerning the latter document (see paragraph 23 above).", "This deadline does not seem patently insufficient and the applicants did not ask for it to be extended. 117. Nonetheless, as the Government have acknowledged (see paragraph 114 above), the report containing the Directorate’s conclusions, which was then to be used as the basis for the Commission’s decision, was not communicated to the applicants, who were therefore unable to defend themselves in relation to the document ultimately submitted by the CONSOB’s investigative bodies to the body responsible for ruling on the merits of the accusations. Further, the applicants did not have an opportunity to question or have questioned those persons who may have been heard by the IT Office. 118.", "The Court also notes that the proceedings before the CONSOB were essentially written and that the applicants were unable to take part in the only meeting held by the commission, to which they were not invited. This is not disputed by the Government. In this connection, the Court reiterates that an oral, and public, hearing constitutes a fundamental principle enshrined in Article 6 § 1 (see Jussila, cited above, § 40). 119. However, the obligation to hold a hearing is admittedly not absolute (see Håkansson and Sturesson v. Sweden, 21 February 1990, § 66, Series A no.", "171-A) and there may be proceedings in which an oral hearing may not be required, for example where there are no issues of credibility or contested facts which necessitate a hearing and the courts may fairly and reasonably decide the case on the basis of the parties’ submissions and other written materials (see, for example, Döry v. Sweden, no. 28394/95, § 37, 12 November 2002; Pursiheimo v. Finland (dec.), no. 57795/00, 25 November 2003; Jussila, cited above, § 41; and Suhadolc v. Slovenia (dec.), no. 57655/08, 17 May 2011, in which the Court held that the lack of a public oral hearing created no appearance of a violation of Article 6 of the Convention, in a case concerning driving in excess of the speed limit and driving under the influence of alcohol, where the evidence against the accused had been obtained using technical devices). 120.", "While the requirements of a fair hearing are the strictest in the sphere of criminal law, the Court would not exclude that in the criminal sphere the nature of the issues to be dealt with before the tribunal or court may not require an oral hearing. Notwithstanding the consideration that a certain gravity attaches to criminal proceedings, which are concerned with the allocation of criminal responsibility and the imposition of a punitive and deterrent sanction, it is self-evident that there are criminal cases which do not carry any significant degree of stigma. There are clearly “criminal charges” of differing weight (see Jussila, cited above, § 43). 121. It must also be said that the fact that proceedings are of considerable personal significance to the applicant is not decisive for the necessity of a hearing (see Pirinen v. Finland (dec.), no.", "32447/02, 16 May 2006). Nevertheless, refusing to hold an oral hearing may be justified only in rare cases (see Miller v. Sweden, no. 55853/00, § 29, 8 February 2005, and Jussila, cited above, § 42). 122. As to the present case, the Court considers that a public hearing, open and accessible to the applicants, was necessary.", "In this connection, the Court notes that the facts were contested, especially with regard to the state of progress in the negotiations with Merrill Lynch International Ltd, and that, quite apart from their financial severity, the penalties which some of the applicants were liable to incur carried, as previously noted (see paragraphs ..., 97 and 98 above), a significant degree of stigma, and were likely to adversely affect the professional honour and reputation of the persons concerned. 123. In the light of the foregoing, the Court considers that the proceedings before the CONSOB did not satisfy all of the requirements of Article 6 of the Convention, particularly with regard to equality of arms between the prosecution and the defence and the holding of a public hearing which would have allowed for an oral confrontation. 2. Whether the CONSOB was an independent and impartial tribunal (a) The parties’ submissions i.", "The applicants 124. The applicants alleged that, on account of its structure and the powers enjoyed by its chairman, the CONSOB was not an “independent and impartial tribunal” within the meaning of Article 6 § 1 of the Convention. 125. They emphasised that the investigation phase in their case was carried out by the IT Office and by the Administrative Sanctions Directorate. Yet the CONSOB’s chairman was called upon to supervise that phase before chairing the Commission proper, in other words the body responsible for imposing the penalties.", "There was therefore no clear separation between the investigation and the decision-making stages, and this dual role fulfilled by the chairman could create objectively justified doubts as to his impartiality. The same was true with regard to the other members of the Commission, who had learned of the facts only through the chairman and solely on the basis of the version given by the Directorate, to which the defence pleadings submitted by the accused had not been joined. Lastly, the bodies responsible for the investigation had not been independent in relation to the CONSOB’s senior hierarchy. 126. Under CONSOB Resolution no.", "15087 of 21 June 2005, the chairman was at the summit of the Commission: he applied penalties, supervised the preliminary investigation and authorised the use of investigative powers. He could order inspections or other investigative measures, and in consequence he could not be considered as a “neutral” and impartial judge. ii. The Government 127. The Government noted that the CONSOB was made up of a chairman and four members, selected from independent persons who had specific skills and appropriate moral qualities.", "At the relevant time its members were elected for a period of five years and their term of office could be renewed only once. During their term of office, those members were not permitted to exercise any other professional or business activities or to hold any other public office. 128. The CONSOB was independent from any other authority and, in particular, from the executive. It could use its budget autonomously and adopt resolutions concerning the career and conditions of employment of its staff.", "The decision-making body (the Commission) was separate from the investigative bodies (the Office and the Directorate). 129. Although he was responsible for supervising the various offices and had certain powers of initiative during the investigation (in particular he could authorise inspections and ask that various investigative measures be carried out, such as obtaining data on telephone communications and seizing property), the CONSOB’s chairman could never interfere in the investigations concerning a given case, which were carried out by the relevant office and by the Directorate. Nor, conversely, did the department and the Directorate play any role in adoption of the final decision. The CONSOB’s chairman was responsible for supervising the general criteria which the offices had to comply with in carrying out investigations.", "He could not take part in assessing the merits of a case on the basis of the evidence obtained, or influence the results of the investigation. His or her duties were comparable to that of the president of a court. 130. The power to open misconduct proceedings and to bring charges lay exclusively with the head of the relevant division, who acted in complete independence and with full discretion. As to the inspections, these were investigative measures intended to obtain information.", "They were assessed in turn by the relevant offices. Indeed, in the present case, the chairman of the CONSOB had neither authorised the inspections nor asked that investigative measures be taken. The final decision on a seizure of property – which had not been ordered in the present case – lay with the Commission, and required a favourable opinion from the prosecutor’s office, issued at the request of the CONSOB’s chairman. In any event, it was an interim measure aimed at guaranteeing the solvency of defendants or depriving them of assets used to commit offences. The decision on seizure of property in no way prejudged the decisions concerning the merits of the accusations or the penalties.", "Even in the context of judicial proceedings, it was accepted that a procedural decision which did not imply any judgment on a suspect’s guilt or innocence (such as, for example, an order to remand a person in custody) did not amount to a ground for subsequent doubts as to the impartiality of the court which had issued it. 131. Lastly, the Government noted that in the present case, there had been no conflict of interests between the CONSOB’s staff, the members of the Commission and the applicants. (b) The Court’s assessment 132. The Court reiterates its well-established case-law to the effect that, in order to establish whether a tribunal can be considered “independent”, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence (see Kleyn and Others v. the Netherlands [GC], nos.", "39343/98, 39651/98, 43147/98 and 46664/99, § 190, ECHR 2003-VI). 133. Having regard to the manner and conditions of appointment of the members of the CONSOB, and in the absence of any indication of a lack of sufficient and adequate safeguards against possible extraneous pressure, Court considers that there is no reason to doubt the CONSOB’s independence with regard to any other power or authority, and especially with regard to the executive. In this respect, it endorses the Government’s observations regarding the CONSOB’s autonomy and the safeguards surrounding the appointment of its members (see paragraphs 127 and 128 above). 134.", "The Court further reiterates the general principles governing the steps to assess the impartiality of a “tribunal”, which are set out, inter alia, in the following judgments: Padovani v. Italy, 26 February 1993, § 20, Series A no. 257-B; Thomann v. Switzerland, 10 June 1996, § 30, Reports of Judgments and Decisions 1996-III; Ferrantelli and Santangelo v. Italy, 7 August 1996, § 58, Reports 1996-III; Castillo Algar v. Spain, 28 October 1998, § 45, Reports 1998-VIII; Wettstein v. Switzerland, no. 33958/96, § 44, ECHR 2000‑XII; Morel v. France, no. 34130/96, § 42, ECHR 2000-VI; and Cianetti v. Italy, no. 55634/00, § 37, 22 April 2004.", "135. As regards the subjective aspect of the CONSOB’s impartiality, the Court notes that nothing in the present case pointed to any prejudice or bias on the part of its members. The mere fact that they took decisions against the applicants cannot in itself cast doubt on their impartiality (see, mutatis mutandis, Previti v. Italy (dec.), no. 1845/08, § 53, 12 February 2013). It follows that the Court cannot but presume the personal impartiality of the CONSOB’s members, including its chairman.", "136. As to the objective impartiality, the Court notes that the CONSOB’s regulations provide for a certain separation between the investigative entities and the entity with responsibility for determining whether an offence had been committed and imposing penalties. In particular, the accusation is drawn up by the IT Office, which also carries out the investigations; the results are then summarised in the Directorate’s report, which contains conclusions and proposed penalties. The final decision on imposing penalties lies solely with the Commission. 137.", "It is nevertheless the case that the IT Office, the Directorate and the Commission are merely branches of the same administrative body, acting under the authority and supervision of a single chairman. In the Court’s opinion, this amounts to the consecutive exercise of investigative and judicial functions within one body; in criminal matters such a combination of functions is not compatible with the requirements of impartiality set out in Article 6 § 1 of the Convention (see, in particular and mutatis mutandis, Piersack v. Belgium, 1 October 1982, §§ 30-32, Series A no. 53, and De Cubber v. Belgium, 26 October 1984, §§ 24-30, Series A no. 86, in which the Court concluded that the “tribunal” had lacked objective impartiality, in the first case on the ground that an assize court had been presided over by a judge who had previously acted as head of the section of the Brussels public prosecutor’s department which had been responsible for dealing with the accused’s case; and, in the second, on account of the successive exercise of the functions of investigating judge and trial judge by one and the same person in one and the same case). 3.", "Whether the applicants had had access to a court with full jurisdiction 138. The above findings concerning the CONSOB’s lack of objective impartiality and the fact that the proceedings before it did not comply with the principles of a fair hearing are not, however, sufficient to warrant the conclusion that there has been a violation of Article 6 in this case. In this connection, the Court observes that the penalties complained of by the applicants were not imposed by a court at the close of adversarial judicial proceedings, but by an administrative authority, namely the CONSOB. While entrusting the prosecution and punishment of similar minor offences to such authorities is not inconsistent with the Convention, the person concerned must have an opportunity to challenge any decision made against him or her before a tribunal which offers the guarantees of Article 6 (see Kadubec v. Slovakia, 2 September 1998, § 57, Reports 1998-VI; Čanády v. Slovakia, no. 53371/99, § 31, 16 November 2004; and Menarini Diagnostics S.r.l., cited above, § 58).", "139. Therefore, in administrative proceedings, the obligation to comply with Article 6 of the Convention does not preclude a “penalty” being imposed by an administrative authority in the first instance. For this to be possible, however, decisions taken by administrative authorities which do not themselves satisfy the requirements of Article 6 § 1 of the Convention must be subject to subsequent control by a judicial body that has full jurisdiction (see Schmautzer, Umlauft, Gradinger, Pramstaller, Palaoro and Pfarrmeier v. Austria, judgments of 23 October 1995, §§ 34, 37, 42 and 39, 41 and 38 respectively, Series A nos. 328 A-C and 329 A‑C). The characteristics of a judicial body with full jurisdiction include the power to quash in all respects, on questions of fact and law, the decision of the body below.", "It must have jurisdiction to examine all questions of fact and law relevant to the dispute before it (see Chevrol v. France, no. 49636/99, § 77, ECHR 2003-III; Silvester’s Horeca Service v. Belgium, no. 47650/99, § 27, 4 March 2004; and Menarini Diagnostics S.r.l., cited above, § 59). 140. In the present case, the applicants had the possibility, which they used, of challenging the penalties imposed by the CONSOB before the Turin Court of Appeal and then to appeal on points of law against the judgments delivered by the latter court.", "It remains to be established whether those two courts were “judicial bodies with full jurisdiction” within the meaning of the Court’s case-law. (a) The parties’ submissions i. The applicants 141. According to the applicants, the subsequent proceedings before the Turin Court of Appeal and the Court of Cassation had not remedied the shortcomings in the proceedings before the CONSOB. Although the court of appeal could be considered a judicial body with full jurisdiction, the fact remained that its hearings had not been held in public.", "Yet a derogation from the principle that hearings should be held in public could be considered justifiable only in exceptional circumstances (they referred, in particular, to Vernes v. France, no. 30183/06, § 30, 20 January 2011). 142. The applicants contended, in particular, that the proceedings before the court of appeal had not been ordinary proceedings, but special proceedings in which the hearing had taken place in private. In support of their claims, they submitted declarations signed by the administrative director of the Registry of the First Civil Division of the Turin Court of Appeal, stating that the hearings in their case had been held in private.", "During those hearings, only the counsel for the accused had been present; the applicants had not been summoned, and the court of appeal had questioned neither the accused nor any witnesses. It had carried out no investigations, and had merely endorsed the evidence gathered by the CONSOB. Admittedly, the Government had submitted statements from the President of the First Section of the Court of Appeal, claiming that the hearings in question had in reality indeed been held in public (see paragraph 145 below). It was nonetheless the case that those statements could not contradict the content of public documents, such as the judgments delivered by the court of appeal, which indicated that the parties had been summoned to a private hearing and which attested the facts which they recorded until forgery was proved. Yet the Government had not brought proceedings for forgery and, in any event, the President of the First Section of the Court of Appeal had merely passed on the content of statements made by others, without recounting any event of which he had had direct knowledge.", "143. It was true that a public hearing had been held before the Court of Cassation. However, the latter was not a body with full jurisdiction, since it did not deal with the merits of the case and was not called upon to express an opinion on the merits of the accusation or the relevance and cogency of the evidence. It had therefore dismissed all of the arguments submitted by the applicants in order to challenge the manner in which the CONSOB or the court of appeal had assessed the evidence. ii.", "The Government 144. The Government noted that the applicants had had access to oral and public proceedings before the Turin Court of Appeal, which had re-examined on the merits all of the evidence and information gathered by the CONSOB with regard to the particular circumstances of the impugned conduct, thus enabling it to assess the proportionality of the penalties. The court of appeal enjoyed very wide powers with regard to the taking of evidence, even of its own motion, and could have set aside or amended the CONSOB’s decision. The applicants could have requested that witnesses be questioned, or could have asked to be heard in person; yet they had submitted no requests to that effect. At the close of the judicial proceedings, the court of appeal had altered the CONSOB’s assessment, and had reduced the penalties imposed on three of the five applicants.", "145. The Government submitted that the applicants’ claim that their case had not been examined in a public hearing before the Turin Court of Appeal was false. Pursuant to section 23 of Law no. 689 of 1981, all of the hearings held before that court were open to the public. As to the statements signed by the Administrative Director of the Registry of the First Section of the Court of Appeal and submitted by the applicants (see paragraph 142 above), the Government argued that they did not reflect the reality of the situation.", "In counter-argument, they produced five statements signed by the President of the First Section of the Turin Court of Appeal and by the Administrative Director of the same Section, stating that, in the five sets of proceedings concerning the applicants and challenging the penalties imposed by the CONSOB, only the hearings concerning the urgent measures (sub procedimento cautelare) had been held in private, all of the other hearings having been public. In those statements, dated 6 September 2013, the President of the First Section of the Court of Appeal indicated that, at the relevant time, he had not been assigned to that body (he had taken up his duties on 1 March 2013), but that he had been able to reconstitute the sequence of events by examining the registers and case files, and on the basis of information provided directly by the staff of the registry and by the judges who had dealt with the cases in question. In particular, the applicants’ cases had been added to the list of non-contentious cases (registro volontaria giurisdizione). Further, Law no. 62 of 18 April 2005 stated that proceedings in respect of Article 187 of Legislative Decree no.", "58 of 1998 were to be held in accordance with the conditions laid down in section 23 of Law no. 689 of 1981 (which did not provide for the holding of a hearing in private). Although the applicants’ cases had remained on the list of non-contentious cases, the procedure followed had been that required by Law no. 62 of 2005. 146.", "On the basis of those statements, the Government claimed that on 6 March 2007 the applicants had requested that execution of the CONSOB’s decision be stayed (Article 187 septies § 5 of Legislative Decree no. 58 of 1998). In the context of these sub-proceedings for the application of urgent measures, a hearing had been held on 28 March 2007; it had been held in private, as provided for by Articles 283 and 351 of the Code of Civil Procedure. A hearing on the merits had subsequently been held on 11 July 2007; in accordance with section 23 of Law no. 689 of 1981, that hearing was held in public.", "Furthermore, two of the judgments issued by the court of appeal (specifically those against Mr Marrone and the company Giovanni Agnelli S.a.s.) referred to “the public hearing” set for 11 July 2007. The following hearings on the merits of the cases (namely those of 7 November and 5 December 2007) were also public. 147. The Government also emphasised that the applicants had had the opportunity to appeal on points of law, and that the case was then referred to the combined divisions.", "Before those divisions, there was an oral and public procedure, which fully complied with the rights of the defence, and which concerned both the interpretation and application of the substantive and procedural law (errores in iudicando and in procedendo) and the coherence and adequacy of the reasons put forward by the court of appeal. The Government referred, in particular, to the case of Menarini Diagnostics S.r.l. (judgment cited above), in which the Court concluded that there had been no violation of Article 6 § 1 of the Convention, noting that the review of the contested administrative penalty by the administrative court and the Consiglio di Stato had indeed been conducted by courts with full jurisdiction to examine all aspects of the case. In the Government’s opinion, there was all the more reason to reach the same conclusion in the present case, where the powers of the court of appeal had been wider than those of the administrative court and the Consiglio di Stato. (b) The Court’s assessment 148.", "The Court notes at the outset that there is nothing in the present case to cast doubt on the independence and impartiality of the Turin Court of Appeal. Indeed, the applicants do not contest it. 149. The Court further observes that the court of appeal had jurisdiction to rule, in respect of both law and fact, on whether the offence set out in Article 187 ter of Legislative Decree no. 58 of 1998 had been committed, and was authorised to set aside the decision taken by the CONSOB.", "It was also called upon to assess the proportionality of the imposed penalties to the seriousness of the alleged conduct. In fact, it reduced the amount of the fines and the length of the ban on exercising their profession imposed on certain of the applicants (see paragraphs 30 and 31 above) and examined their various factual or legal allegations (see paragraphs 32‑36 above). Thus, its jurisdiction was not merely confined to reviewing lawfulness. 150. It is true that the applicants complained about the fact that the court of appeal did not question witnesses (see paragraph 142 above).", "However, they did not indicate any procedural rule which would have prevented such questioning. In addition, the request for questioning of witnesses, made by Mr Grande Stevens in his pleadings of 25 September 2007, did not indicate either the names of the persons whom he wished to have summoned, or the events about which they were to provide evidence. In addition, that request was made on a purely hypothetical basis, for examination only if the court of appeal held that the documents already included in the case file were insufficient or unusable. This also holds in respect of the request made by Mr Marrone, who raised the possibility of questioning the witnesses from whose statements he quoted only “if necessary” (see paragraph 29 above). In any event, before the Court the applicants have not identified the witnesses whom the court of appeal allegedly refused to question and the reasons why their evidence would have been decisive for the outcome of the case.", "They have not therefore substantiated their complaint under Article 6 § 3 (d) of the Convention. 151. In the light of the above considerations, the Court considers that the Turin Court of Appeal was indeed a “body with full jurisdiction” within the meaning of its case-law (see, mutatis mutandis, Menarini Diagnostics S.r.l., cited above, §§ 60-67). The applicants themselves do not seem to contest this (see paragraph 141 above). 152.", "It remains to be established whether the hearings on the merits held before the Turin Court of Appeal were public, a factual matter on which the parties’ submissions differ (see paragraphs 142 and 145-146 above). In this connection, the Court cannot but reiterate its conclusions concerning the necessity, in the present case, of a public hearing (see paragraph 122 above). 153. The Court notes that the parties submitted contradictory documents with regard to the manner in which the disputed hearings were conducted; according to the written statements from the Administrative Director of the Registry of the Turin Court of Appeal, submitted by the applicants, those hearings were held in private, although – according to the written statements of the President of the Court of Appeal, submitted by the Government – only the hearings which concerned the urgent measures were held in private, all of the other hearings having been public. The Court is hardly in a position to state which of these two versions is correct.", "Whatever the case, faced with these two versions, both of which are plausible and which come from competent but opposing sources, the Court considers that it should not depart from the content of the official documents in the proceedings. As the applicants have righty emphasised (see paragraph 142 above), the judgments delivered by the court of appeal indicate that it met in private or that the parties had been summoned to deliberations held in private (see paragraph 30 in fine above). 154. On the basis of these references, the Court accordingly concludes that no public hearing was held before the Turin Court of Appeal. 155.", "It is true that a public hearing was held before the Court of Cassation. However, the latter did not have jurisdiction to examine the merits of the case, to establish the facts and to assess the evidence; indeed, the Government do no contest this. It could not therefore be considered as a court with full jurisdiction within the meaning of the Court’s case-law. 4. The applicants’ other allegations 156.", "The applicants also claimed that the press releases of 24 August 2005 contained truthful information and that their conviction in spite of the defence evidence included in the file resulted from a “presumption of guilt” against them. In their opinion, they had been under no obligation in those press releases to describe mere plans or hypothetical agreements which had not yet been finalised. Moreover, the CONSOB’s published instructions specified that information for possible dissemination to the public ought to be tied to real circumstances or a specific event, and not to mere hypotheses as to future and possible actions, which were not of interest for the markets. Yet, at the date on which the press releases were disseminated, no tangible initiative had been undertaken by the applicant companies in relation to expiry of the convertible loan. At the relevant time the envisaged scenario was uncertain, since it was still subject to approval by Merrill Lynch International Ltd and the possibility that there would be no obligation to launch a takeover bid.", "A CONSOB official had participated in drawing up one of the press releases, and the text in question had received the CONSOB’s prior agreement. 157. Despite that, the applicants considered that the CONSOB had drawn up its accusations on the basis of the arbitrary presumption that the agreement amending the equity swap contract had been concluded prior to 24August 2005, in spite of the absence of any written or oral evidence to corroborate that presumption. According to the applicants, they had been convicted without any evidence to that effect. 158.", "The Court reiterates that it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000-V), and that, as a rule, it is for the national courts to assess the evidence before them (see Pacifico v. Italy (dec.), no. 17995/08, § 62, 20 November 2012). Yet the Court has examined the decisions of the national courts that are contested by the applicants without discerning any signs of arbitrariness that would reveal a denial of justice or a manifest abuse (see, a contrario, De Moor v. Belgium, 23 June 1994, § 55 in fine, Series A no. 292‑A, and Barać and Others v. Montenegro, no.", "47974/06, § 32, 13 December 2011). 159. The Court also reiterates that the principle of the presumption of innocence requires, inter alia, that when carrying out their duties, the members of a court should not start with the preconceived idea that the accused has committed the offence charged; the burden of proof is on the prosecution, and any doubt should benefit the accused. It also follows that it is for the prosecution to inform the accused of the case that will be made against him, so that he may prepare and present his defence accordingly, and to adduce evidence sufficient to convict him (see, inter alia, Barberà, Messegué and Jabardo v. Spain, 6 December 1988, § 77, Series A no. 146; John Murray v. the United Kingdom, 8 February 1996, § 54, Reports 1996‑I; and Telfner v. Austria, no.", "33501/96, § 15, 20 March 2001). 160. In the present case, the judgment convicting the applicants was delivered on the basis of inferences held to be strong, clear and concordant, submitted by the IT Office, and which indicated that at the time of issuing the press releases of 24 August 2005, the agreement amending the equity swap had been concluded or was about to be concluded. In these circumstances, no appearance of a violation of the principle of the presumption of innocence can be found (see, mutatis mutandis, Previti v. Italy (dec.), no. 45291/06, § 250, 8 December 2009).", "6. Conclusion 161. In the light of the above considerations, the Court considers that, although the proceedings before the CONSOB did not met the requirements of fairness and objective impartiality set out in Article 6 of the Convention, the applicants’ case was subsequently reviewed by an independent and impartial body with full powers, specifically the Turin Court of Appeal. However, the latter did not hold a public hearing, which, in the present case, amounted to a violation of Article 6 § 1 of the Convention. ... V. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL NO.", "7 202. The applicants submitted that there had been a violation of the ne bis in idem principle, as guaranteed by Article 4 of Protocol No. 7. That provision 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.” 203. The Government contested that argument.", "A. Admissibility 1. Reservation by Italy in respect of Article 4 of Protocol No. 7 204. The Government noted that Italy had made a declaration to the effect that Articles 2 to 4 of Protocol No. 7 applied only to offences, procedures and decisions classified as criminal under Italian law.", "Yet Italian law did not classify the offences penalised by the CONSOB as criminal in nature. Furthermore, Italy’s declaration was similar to those made by other States (in particular, Germany, France and Portugal). 205. The applicants responded that Article 4 of Protocol No. 7, to which no derogation is permitted under Article 15 of the Convention, concerned a right falling within European public order.", "In their opinion, the declaration made by Italy when depositing the instrument of ratification of Protocol No. 7 did not have the scope of a reservation within the meaning of Article 57 of the Convention, which did not permit reservations of a general character. In addition, the declaration in question was not attached to “a law” in force at the time it was prepared and did not contain “a brief statement” of that law. The declaration did therefore have any impact on Italy’s obligations. 206.", "The Court observes that the Government have alleged that a reservation has been made regarding the application of Articles 2 to 4 of Protocol No. 7 (see paragraph 204 above). Apart from the applicability of the reservation, the Court has to examine its validity. In other words, it must determine whether the reservation satisfies the requirements of Article 57 of the Convention (see Eisenstecken v. Austria, no. 29477/95, § 28, ECHR 2000-X).", "That provision reads as follows: “1. Any State may, when signing [the] Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this article. 2. Any reservation made under this article shall contain a brief statement of the law concerned.” 207.", "The Court reiterates that, in order to be valid, a reservation must satisfy the following conditions: (1) it must be made at the time the Convention is signed or ratified; (2) it must relate to specific laws in force at the time of ratification; (3) it must not be a reservation of a general character; (4) it must contain a brief statement of the law concerned (see Põder and Others v. Estonia (dec.), no. 67723/01, ECHR 2005‑VIII, and Liepājnieks v. Latvia (dec.), no. 37586/06, § 45, 2 November 2010). 208. The Court has had occasion to specific that Article 57 § 1 of the Convention requires “precision and clarity” from the Contracting States, and that in requiring that a reservation is to contain a brief statement of the law concerned, this provision is not a “purely formal requirement” but sets out “a condition of substance which constitutes an evidential factor and contributes to legal certainty” (see Belilos v. Switzerland, 29 April 1988, §§ 55 and 59, Series A no.", "132; Weber v. Switzerland, 22 May 1990, § 38, Series A no. 177; and Eisenstecken, cited above, § 24). 209. By “reservation of a general character” in Article 57 is meant, in particular, a reservation couched in terms that are too vague or broad for it to be possible to determine their exact meaning and scope. The wording of the declaration must enable the scope of the Contracting State’s undertaking to be ascertained, in particular as to which categories of dispute are included, and must not lend itself to different interpretations (see Belilos, cited above, § 55).", "210. In the present case, the Court notes that the reservation in question does not contain a “brief statement” of the law or laws which were allegedly incompatible with Article 4 of Protocol No. 7. It can be inferred from the wording of the reservation that Italy intended to exclude from the scope of that provision all offences and proceedings which were not classified as “criminal” under Italian law. However, a reservation which does not refer to or mention those specific provision of the Italian legal order which exclude offences or proceedings from the scope of Article 4 of Protocol No.", "7 does not afford to a sufficient degree a guarantee that [it] does not go beyond the provision expressly excluded by the Contracting State (see, mutatis mutandis, Chorherr v. Austria, 25 August 1993, § 20, Series A no. 266‑B; Gradinger v. Austria, 23 October 1995, § 51, Series A no. 328‑C; and Eisenstecken, cited above, § 29; see also, in contrast, Kozlova and Smirnova v. Latvia (dec.), no. 57381/00, ECHR 2001‑XI). In this respect, the Court reiterates that even significant practical difficulties in indicating and describing all of the provisions concerned by the reservation cannot justify a failure to comply with the conditions set out in Article 57 of the Convention (see Liepājnieks, decision cited above, § 54).", "211. Consequently, the reservation relied on by Italy does not meet the requirements of Article 57 § 2 of the Convention. This conclusion is a sufficient basis for finding the reservation invalid, without it being necessary to examine further whether there has been compliance with the other requirements of Article 57 (see, mutatis mutandis, Eisenstecken, cited above, § 30). ... B. Merits 1.", "The parties’ submissions (a) The applicants 213. The applicants pointed out that they had been subjected to a criminal penalty following the proceedings before the CONSOB, and that they had been subjected to criminal proceedings for the same facts. 214. As to the issue of whether the proceedings before the CONSOB and the criminal proceedings concerned the same “offence”, the applicants pointed to the principles laid down by the Grand Chamber in the case of Sergey Zolotukhin v. Russia ([GC], no. 14939/03, 10 February 2009), in which the Court concluded that it is prohibited to prosecute a person for a second “offence” in so far as it arose from identical facts or facts which were substantially the same.", "In their opinion, this had clearly been the case in their respect. In this connection, the applicants stated that although the ECJ had admittedly specified that Article 50 of the Charter of Fundamental Rights did not preclude a Member State from imposing successively, for the same acts of non-compliance with declaration obligations in the field of value‑added tax, a tax penalty and a criminal penalty, this was on condition that the first penalty was not criminal in nature (see Åklagaren v. Hans Åkerberg Fransson, judgment cited above, point 1 of the operative provisions); in their opinion, however, this condition was absent in the present case, since, whatever their formal classification in Italian law, the penalties imposed by the CONSOB were indeed criminal in nature within the meaning of the Court’s case-law. (b) The Government 215. Referring to the arguments developed under Article 6 of the Convention, the Government submitted, firstly, that the proceedings before the CONSOB did not concern a “criminal charge” and that the CONSOB’s decision had not been “criminal” in nature. 216.", "Moreover, European Union law had explicitly authorised the use of a double penalty (administrative and criminal) in the context of the fight against illegal conduct on the financial markets. Such use was part of the constitutional traditions common to the Member States, particularly in areas such as taxation, environmental policies and public safety. In the light of this, and of the fact that some States had not ratified Protocol No. 7 or had made declarations in respect of it, it was possible to affirm that the Convention did not guarantee the principle of ne bis in idem in the same manner as was the case for other fundamental principles. Accordingly, it was not correct to consider that the imposition of a final administrative penalty prevented the bringing of a criminal prosecution.", "In this connection, the Government referred to the opinion expressed before the ECJ by the Advocate General in his conclusions of 12 June 2012 in the above-cited case of Åklagaren v. Hans Åkerberg Fransson. 217. In any event, the pending criminal proceedings against the applicants did not concern the same offence as that which had been punished by the CONSOB. There was a clear distinction between the offences set out in Articles 187 ter and 185 respectively of Legislative Decree no. 58 of 1998, since only the second required the existence of malicious intent (mere negligence not being sufficient) and of the possibility that the false or misleading information disseminated could trigger a significant shift in the financial markets.", "Moreover, only the criminal procedure could result in the imposition of punishments involving a custodial sentence. The Government referred to the case of R.T. v. Switzerland ((dec.), no. 31982/96, 30 May 2000), in which the Court stated that the imposition of penalties by two different bodies (one administrative, the other criminal) had not been incompatible with Article 4 of Protocol No. 7. In this regard, the fact that one and the same conduct could breach both Article 187 ter and Article 185 of Legislative Decree no.", "58 of 1998 was not relevant, since the case concerned a typical example of a single act constituting various offences, the characteristic feature of this notion being that a single criminal act was split up into two separate offences (they referred to Oliveira v. Switzerland, no. 25711/94, § 26, 30 July 1998; Goktan v. France, no. 33402/96, § 50, 2 July 2002; Gauthier v. France (dec.), no. 61178/00, 24 June 2003; and Ongun v. Turkey (dec.), no. 15737/02, 10 October 2006).", "218. Lastly, it was to be noted that, in order to ensure the proportionality of the penalty to the accusations, the criminal court was able to take into account the prior imposition of an administrative penalty and to reduce the criminal penalty. In particular, the amount of the administrative fine was deducted from the criminal financial penalty (Article 187 terdecies of Legislative Decree no. 58 of 1998) and assets already seized in the context of the administrative proceedings could not be confiscated. 2.", "The Court’s assessment 219. The Court reiterates that in the case of Sergey Zolotukhin (cited above, § 82), the Grand Chamber specified 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 facts which are substantially the same. 220. 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 accusations 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. It is irrelevant which parts of the new accusations 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 (see Sergey Zolotukhin, cited above, § 83). 221. 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 (see Sergey Zolotukhin, cited above, § 84). 222. Applying those principles to the case at hand, the Court notes, firstly, that it has just concluded, under Article 6 of the Convention, that there existed valid grounds for considering that the procedure before the CONSOB involved a “criminal charge” against the applicants (see paragraph 101 above) and also observes that the sentences imposed by the CONSOB and partly reduced by the court of appeal constituted res judicata on 23 June 2009, when the judgments of the Court of Cassation were delivered (see paragraph 38 above).", "From that date, the applicants ought therefore to be considered as having been “already finally convicted of an offence” for the purposes of Article 4 of Protocol No. 7. 223. Despite this, the new set of criminal proceedings which had been brought against them in the meantime (see paragraphs 39-40 above) were not closed and resulted in judgments being delivered at first and second instance. 224.", "It remains to be ascertained whether those new proceedings were based on facts which were substantially the same as those which had been the subject of the final conviction. In this regard, the Court notes that, contrary to what the Government seem to be asserting (see paragraph 217 above), it follows from the principles set out in the case of Sergey Zolotukhin, cited above, that the question to be answered is not whether or not the elements of the offences set out in Articles 187 ter and 185 § 1 of Legislative Decree No. 58 of 1998 are identical, but whether the offences with which the applicants were charged before the CONSOB and before the criminal courts concerned the same conduct. 225. Before the CONSOB, the applicants were essentially accused of having failed to mention in the press releases of 24 August 2005 the plan to renegotiate the equity swap contract with Merrill Lynch International Ltd, although that plan already existed and was at an advanced stage of preparation (see paragraphs 20 and 21 above).", "They were subsequently punished for this by the CONSOB and by the Turin Court of Appeal (see paragraphs 27 and 35 above). 226. Before the criminal courts, the applicants were accused of having stated, in those same press releases, that Exor had neither instituted nor examined initiatives concerning the expiry of the financing agreement, although the agreement amending the equity swap had already been examined and concluded, information that was kept secret in order to avoid a probable fall in the FIAT share price (see paragraph 40 above). 227. In the Court’s opinion, these proceedings clearly concerned the same conduct by the same persons on the same date.", "Moreover, the Turin Court of Appeal itself, in its judgments of 23 January 2008, admitted that Articles 187 ter and 185 § 1 of Legislative Decree No. 58 of 1998 concerned the same conduct, namely the dissemination of false information (see paragraph 34 above). It follows that the new set of proceedings concerned a second “offence” originating in identical acts to those which had been the subject-matter of the first, and final, conviction. 228. This finding is sufficient to conclude that there has been a breach of Article 4 of Protocol No.", "7. 229. Moreover, in so far as the Government submit that European Union law has explicitly authorised the use of a double penalty (administrative and criminal) in the context of combatting unlawful conduct on the financial markets (see paragraph 216 above), the Court, while specifying that its task is not to interpret the case-law of the ECJ, notes that in its judgment of 23 December 2009 in the case of Spector Photo Group, the ECJ indicated that Article 14 of Directive no. 2003/6 does not oblige the Member States to provide for criminal sanctions against authors of insider dealing, but merely states that those States are required to ensure that administrative sanctions are imposed against the persons responsible where there has been a failure to comply with the provisions adopted in implementation of that directive. It also drew the States’ attention to the fact that such administrative sanctions may, for the purposes of the application of the Convention, be qualified as criminal sanctions (see paragraph 61 above).", "Further, in its Åklagaren v. Hans Åkerberg Fransson judgment, on the subject of value-added tax, the ECJ stated that, under the ne bis in idem principle, a State can only impose a double penalty (fiscal and criminal) in respect of the same facts if the first penalty is not criminal in nature (see paragraph 92 above). VI. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION 230. 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.” 231. The relevant parts of Article 46 of the Convention read as follows: “1.", "The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution... A. Indication of general and individual measures 1. General principles 232.", "Any judgment in which the Court finds a breach imposes on the respondent State a legal obligation under Article 46 of the Convention to put an end to the breach and to make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. 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. It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or the Protocols thereto imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order (see Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004‑I; Assanidze v. Georgia [GC], no. 71503/01, § 198, ECHR 2004‑II; and Ilaşcu and Others v. Moldova and Russia [GC], no.", "48787/99, § 487, ECHR 2004‑VII). 233. The Court reiterates that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (see, inter alia, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I; and Öcalan v. Turkey [GC], no.", "46221/99, § 210, ECHR 2005-IV). This discretion as to the manner of execution of a judgment reflects the freedom of choice attached to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (see Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330‑B). 234. However, exceptionally, with a view to helping the respondent State to fulfil its obligations under Article 46, the Court will seek to indicate the type of measure that might be taken in order to put an end to a systemic situation it has found to exist.", "In such circumstances, it may propose various options and leave the choice of measure and its implementation to the discretion of the State concerned (see, for example, Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V). In certain cases, the nature of the violation found may be such as to leave no real choice as to the measures required to remedy it and the Court may decide to indicate a specific measure (see, for example, Assanidze, cited above, §§ 202 and 203; Alexanian v. Russia, no. 46468/06, § 240, 22 December 2008; Fatullayev v. Azerbaijan, no. 40984/07, §§ 176 and 177, 22 April 2010; and Oleksandr Volkov v. Ukraine, no.", "21722/11, § 208, 9 January 2013). 2. Application of these principles in the present case 235. In the particular circumstances of the present case, the Court does not consider it necessary to indicate general measures that the State ought to adopt for the execution of the present judgment. 236.", "In contrast, as regards individual measures, the Court considers that in the present case the nature of the violation found is such as to leave no real choice as to the measures required to remedy it. 237. In these conditions, having regard to the particular circumstances of the case and the urgent need to put an end to the violation of Article 4 of Protocol No. 7 (see paragraph 228 above), the Court considers that the respondent State must ensure that the new set of criminal proceedings brought against the applicants in violation of that provision and which, according to the most recent information received, are still pending, are closed as rapidly as possible and without adverse consequences for the applicants (see, mutatis mutandis, Assanidze, cited above, § 203, and Oleksandr Volkov, cited above, § 208). ... FOR THESE REASONS, THE COURT ... 2.", "Holds, unanimously, that there has been a violation of Article 6 § 1 of the Convention; ... 5. Holds, unanimously, that there has been a violation of Article 4 of Protocol No. 7; 6. Holds, unanimously, that the respondent State must ensure that the new criminal proceedings, opened against the applicants in violation of Article 4 of Protocol No. 7 and which, according to the most recent information received, are still pending in respect of Mr Gabetti and Mr Grande Stevens, are closed as rapidly as possible (see paragraph 237 above); ...", "Done in French, and notified in writing on 4 March 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithIşıl KarakaşRegistrar President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint partly concurring and partly dissenting opinion of Judges Karakaş and Pinto de Albuquerque is annexed to the present judgment. A.I.K. S.H.N. PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGES KARAKAŞ AND PINTO DE ALBUQUERQUE 1.", "In the Grande Stevens and Others case the Court is again confronted with the major problem of the judicial review of pecuniary and non‑pecuniary administrative sanctions imposed by Italian administrative authorities[2]. The importance of the case derives not only from the complex nature of the various procedural shortcomings that plagued both the administrative and judicial proceedings, leading to the imposition of clearly disproportionate administrative sanctions, but also from the subsequent prosecution and punishment of certain of the applicants in new criminal proceedings in respect of the same facts that had been the subject matter of the previous administrative proceedings. Given that several other European jurisdictions face similar problems, the repercussions of this case go far beyond the limits of the Italian legal system. 2. We concur with the majority in finding that Article 6 in its penal limb is applicable both to the administrative proceedings and the judicial procedure established in Article 187 septis of the TUF (the Consolidated Finance Act, referred to in the judgment as Legislative Decree no.", "58 of 24 February 1998) and section 23 of Law no. 689 of 24 November 1981, as well as to the ensuing penalties imposed on the applicants under Article 187 ter of the TUF, that the administrative proceedings before the Commissione Nazionale per la Società e la Borsa (the CONSOB) were not fair, and that the subsequent proceedings before the court of appeal and the Court of Cassation did not remedy this unfairness. In our view, the finding that no effective remedy was made available by the domestic courts is not due solely to the lack of a public hearing at the court of appeal, as the majority claim. We submit that the core of the breach of Article 6 lies in the lack of an adversarial examination of the disputed testimonial evidence and the failure to question the applicants in a hearing before a court of law. 3.", "We further dissent from the majority with regard to the legality and proportionality of the penalties imposed by the court of appeal and confirmed by the Court of Cassation, and with regard to the amount of the just satisfaction awarded by the European Court of Human Rights (the Court). Lastly, Judge Pinto de Albuquerque also considers that the Turin Court of Appeal’s change to the accusation was not compatible with the Convention. The unfairness of the proceedings before the CONSOB 4. The applicants were found guilty of the administrative offence of market manipulation, provided for by Article 187 ter of the TUF and punished under a procedure set out in Article 187 septis of the TUF in conjunction with section 23 of Law no. 689 of 24 November 1981.", "The procedure before the CONSOB is not fair in the light of the standards laid down by Article 6 of the Convention[3]. 5. Under Article 2 of CONSOB Resolution no. 15086 of 21 June 2005, the punitive proceedings start with the formal notice of the alleged infringement (la formale contestazione degli addebiti), drawn up on the basis of evidence gathered in the course of that body’s supervisory activity. Either ex officio or following a communication from another national or foreign public authority or a denunciation from a private party, the CONSOB may start a secret, pre-investigative proceeding (fase pre‑istruttoria), during which the supervised person may be submitted to the powers set out in Article 187-octies of the TUF.", "Since this pre-investigative stage has no time-limit, no clear line is drawn between the CONSOB’s general supervisory function and its punitive function, with the risk that the blurring of these functions may be instrumentalised to take advantage of the supervised person’s legal obligations to inform, communicate documents and cooperate with CONSOB’s supervisory activities. Within the punitive proceedings, there is a formal and organic separation between the Ufficio Insider Trading (Insider Trading Office, or ITO), which is responsible for bringing charges against the suspected person and assessing their written defence, the Ufficio Sanzioni Amministrative (Administrative Sanctions Division, or ASD), which is responsible for the inquiry and the final report containing the formal accusation and the proposed level of sanctions to be imposed, and the CONSOB as a Commission, which is responsible for the final administrative decision. However, this formal and organic separation does not guarantee an effective separation between prosecutorial and adjudicatory functions, as required by Article 187 septies no. 2 of the TUF itself. There are four reasons to support this conclusion.", "First, the CONSOB’s chairman has the tasks of supervising the preliminary investigation and giving instructions about the functioning of the divisions and directives for their coordination[4]. Second, the CONSOB’s chairman is directly involved in the exercise of the most important inspection powers and other investigative powers attributed to the CONSOB by Articles 115 and 187 octies of the TUF, upon proposal of the competent directorates[5]. Third, the CONSOB as a Commission may exercise extremely intrusive investigative powers, such as the power to seize property[6]. Fourth, the CONSOB’s decision may be motivated per relationem, with reference to the preceding procedural acts[7], and may even be taken by tacit consent of the members of the Commission[8]. All things considered, the CONSOB as a Commission is very far from being an impartial body vis-à-vis the investigatory and prosecutorial bodies of the ITO and ASD.", "This basic systemic failure of the administrative proceedings is compounded by the grave inequality between the parties. 6. It is true that the ITO expressed its views in a report (relazione istruttoria) of 13 September 2006 and a complementary note of 19 October 2006, both of which were notified to the applicants, and that the 30-day time-limit to submit comments on the complementary note is reasonable. However, the fact remains that there was no cross-examination of the witnesses heard by the ITO. There was no questioning of the applicants either, with the exception of the applicant Grande Stevens.", "The ASD’s final accusation was adopted on 19 January 2007, but it was not notified to the applicants[9]. The CONSOB’s decision was adopted on 9 February 2007; the applicants were notified of the deliberations, but they could not present submissions to the CONSOB. Moreover, the CONSOB’s decision was adopted after a closed meeting with an ASD employee, but the applicants could neither be present at that meeting nor obtain a copy of its minutes. The prosecution had the sole and final say before the CONSOB, not the applicants[10]. 7.", "The reason for this inquisitorial and unequal procedure is the following: according to the Court of Cassation, Articles 24 (diritto di difesa) and 111 (giusto processo) of the Italian Constitution do not apply to the administrative stage of punitive proceedings, and the “right to discuss during the proceedings does not apply to the sanction or its qualification criteria”[11]. Hence, the CONSOB’s Resolutions no. 12697 of 2 August 2000 and no. 15086 of 21 June 2005 do not comply with those constitutional guarantees and particularly with the constitutional guarantees of cross‑examination of prosecution witnesses before a court and the presentation of defence witnesses in the same conditions as those of the prosecution. In sum, the laudable intentions of the Italian legislature when it introduced the new version of Article 187-septies no.", "2 of the TUF in 2005 has been thwarted in practice, both by case-law and by administrative rulings. The succession of two stages of written defence submissions before the ITO and the ASD, which brings no real added value to the proceedings, does not compensate for the lack of a true adversarial presentation and examination of the evidence and for the inequality of arms between the parties. The lack of an effective judicial review of the CONSOB’s decision 8. The judicial review of the CONSOB’s decisions to apply administrative sanctions consisted in an appeal to the Court of Appeal based on Article 187 septies no. 6 of the TUF and section 23 of Law no.", "689/1981 and an appeal to the Court of Cassation based on Article 360 of the Code of Civil Procedure (CPC). Those articles were revoked by the new Codice del Processo Amministrativo (Code of Administrative Procedure, or CPA) approved by Legislative Decree No. 104 (Decreto legislative) of 2 July 2010: the new Article 133 (1) l of the CPA gave the administrative judge exclusive jurisdiction (giurisdizione esclusiva) over “punitive proceedings” (provvedimenti sanzionatori) of the CONSOB and the new Article 134 (1) c, of the same CPA includes disputes over pecuniary sanctions (sanzioni pecuniarie) in the ambit of exclusive jurisdiction with a review extended to the merits (cognizione estesa al merito), which refers not only to the legality of the administrative action, but also to its expediency, convenience, utility and equity (opportunità, convenienza, utilità ed equità). The Constitutional Court’s judgment no. 162 of 27 June 2012 declared unconstitutional the contested provisions of the Decreto legislativo 104/2010, and the competence of the civil judge (giudice ordinario), i.e., of the court of appeal, has been reinstated in the CONSOB’s punitive proceedings[12].", "9. Under Article 187 septies no. 6 of TUF in conjunction with section 23 of Law no. 689/1981, which were applicable to the case at hand, the court of appeal has the power, including on its own motion, to identify the evidence that it deems necessary and to summon witnesses; to set aside, in whole or in part, or to amend the decision under appeal, even with exclusive reference to the amount of the sanctions; and to hear the appellant in person in an oral hearing. In clear terms, the court of appeal has the power not only to review the appealed decision, but to re-examine the case tota re perspecta, i.e.", "the whole subject matter being regarded, in the light of the legal and factual questions raised by the appellants[13]. 10. In performing its review powers in accordance with Article 187 septies no. 6 of the TUF and section 23 of Law no. 689/1981, the court of appeal has only one limit: the prohibition of the reformatio in pejus[14].", "Moreover, the CONSOB’s pecuniary and non-pecuniary administrative sanctions must be applied on the basis of the “gravity of the offence” (gravità della violazione) and taking into account the “possible recidivism” (eventuale recidiva) of the offenders and thus on the basis of criteria which cannot be considered as an expression of administrative discretion[15]. Those same criteria are binding for the appellate court in performing its review of the CONSOB’s decisions to apply administrative sanctions. 11. That being said, the fact is that the court of appeal renounced its powers of re-examination in this case. That is very clear from an attentive reading of the file and particularly of the court of appeal’s five judgments.", "As a matter of fact, the court of appeal rejected the appeals on the basis of the prosecutorial evidence collected by the administrative body, in spite of the circumstance that it had been collected in secret, without an adversarial confrontation of the witnesses, and was disputed both in its material and its subjective relevance. The court of appeal satisfied itself with the appellants’ written submissions and the written evidence of the prosecution. And that was all! It heard no witnesses, it questioned none of the applicants and it collected no expert opinions. Instead, the court of appeal relied on, and even transcribed word for word in its judgments, the testimonies given by the witnesses Claudio Salini, responsible for the Markets Division, and Antonio Rosati, director general of the CONSOB, as the main items of evidence on which to ground the conviction[16].", "To put it in legal jargon, the court of appeal performed nothing more than a mere review (reformatio) of the logical consistency of the appealed decision, avoiding a genuine re‑examination (revisio) of the case. 12. Yet the appellants had requested that their case be fully re-examined and the applicants Grande Stevens and Marrone had even requested that the court of appeal hear evidence from clearly identified witnesses on the facts of the case[17]. It is obvious that the facts in respect of which the testimony of these witnesses was requested were those referred to in their previous written depositions, collected during the non-judicial stage of the proceedings. It is even more evident that the applicants expected that the witnesses be summoned by the court of appeal, as it could have done using its powers under the law, either at the appellants’ request or of its own motion, even without specifying the arguments to be proved.", "The fact that the requests for the production of testimonial evidence were made on condition that the court found it “necessary” (ove occorresse) or that the documentary evidence was considered “possibly insufficient or unusable” (eventuale insufficienza o inutilizzabilità dei documenti), clearly does not change the appellants’ intention or the nature of their request. In fact, the applicants simply referred, in their requests for istanze istruttorie, to the terms of the law itself, according to which it was up to the judge to identify the evidence that he or she deemed “necessary” for the purposes of adjudicating the case and testing the version of the facts as alleged by the appellants[18]. 13. Cross-examination of the witnesses before a court of law was essential, since there were grave contradictions between the witnesses as to how events developed from April to August 2005. Court questioning of the applicants was also crucial, given that their individual and allegedly deceitful mens rea was in dispute[19].", "It other words, it was of paramount importance to assess whether the CONSOB was aware of the legal solution conceived by Mr Grande Stevens and found it unnecessary to make that solution public, in view of its incipient, uncertain and conditional nature and in order to avoid an artificial impact on the market, which was already very unstable. Were this version of the facts to have been confirmed, the CONSOB’s conduct would have been shown to have created the circumstances for the offence itself to be committed, thus entrapping the applicants and subsequently punishing them for what it knew to have still been a mere intention at the material time (Cogitatio poenam nemo patitur). It is not the mere lack of a formality (namely, a public audience) that is striking in this case, as the majority seems to state. It is much more than that. The truly shocking aspect is the total lack of an adversarial examination of the disputed evidence with regard to crucial facts in a hearing before a court of law.", "The court of appeal unreservedly accepted and endorsed the testimonial evidence collected by the prosecutorial body without giving the applicants an opportunity to conduct an effective cross-examination of the witnesses on the facts of the case[20]. Although these shortcomings were challenged before the Court of Cassation, it did not repair them, rejecting the procedural complaints as belated, and in any case maintaining that the entire procedure as governed by CONSOB Resolution no. 15608 was entirely capable of ensuring compliance with the principles of a fair trial. 14. The importance of the cross-examination of testimonial evidence before a court of law cannot be, and should not have been, underestimated in punitive proceedings which are capable of leading to pecuniary penalties of millions of euros and non-pecuniary penalties which may cause permanent prejudice to, and sometimes definitively ruin, the professional careers of those convicted.", "Indeed, the Court has pointed out in much less serious cases the necessity of testing, in second-instance courts, the strength of the prosecutorial and defence evidence in a public debate before the judge[21]. A fortiori, the same is valid for the questioning of appellants, the necessity of which the Court has confirmed, even in second-instance courts, particularly when the subjective element of the offence is at issue [22]. The domestic courts ignored these standards laid down by the Court. The court of appeal’s amendment of the accusation, to the detriment of the appellant[23] 15. The applicant Grande Stevens complains about the Turin Court of Appeal’s change to the accusation against him.", "He is right. In order to accuse someone under Article 187 ter of the TUF (the administrative offence of market manipulation), it is not enough to allege in general terms that the offender participated in the dissemination of false information. That would amount to a simple repetition of the literal wording of the legal provision. The accusation must indicate the facts that correspond to this wording. To put it in technical terms, the accusation must describe, with the necessary degree of exactitude, how, when, where and using what means the offender participated in the offence.", "In the present case, the CONSOB accused the applicant Grande Stevens of having participated in the decision-making process concerning dissemination of the allegedly false information in his capacity as an “administrator of IFIL”, which proved to be false. To avoid an acquittal, the court of appeal changed the subject-matter of the accusation, imputing to the appellant a different fact: that he had participated in the offence in his capacity as a lawyer carrying out his consultancy activity. This change of the subject-matter of the accusation by the court of appeal, to the appellant’s detriment, is inadmissible. 16. According to section 23 of Law no.", "689/1981, the court of appeal has the power to amend the appealed decision, both in its legal and factual aspects. However, this power has clear inherent limits. In view of the applicable principle of the prohibition of reformatio in pejus, judicial review is established in favour of the appellant, and cannot be misused to his or her detriment. Furthermore, if the overarching principles of the “correspondence between the accusation and the conviction” (corrispondenza tra contestazione e condanna)[24] and of separation of prosecutorial and adjudicatory functions[25] are valid in respect of the administrative proceedings, they are also and a fortiori valid in respect of the judicial proceedings before the court of appeal. A court of appeal would take upon itself the role of a prosecutorial body were it to include in the accusation new facts which are detrimental to the applicant.", "Yet this is exactly what the court of appeal did in the present case. 17. One final counter-argument must be considered. The argument that the new fact is “a legally irrelevant quality”, and therefore could be added to the accusation, is flawed and can be discarded for three reasons. Firstly, the CONSOB decision itself took into consideration Mr Grande Stevens’ activity as an administrator (amministratore) of IFIL Investments s.p.a. in order to aggravate his penalty[26].", "Secondly, the legal quality in which Mr Grande Stevens acted makes all the difference, since it is crucial in order to qualify his conduct as a principal offender who had the power to take the decision to disseminate the information, rather than as a mere accessory offender, who had power only to give a legal opinion to those in charge of taking the above-mentioned decision. By changing this quality, the court of appeal changed an essential fact of the accusation, which is obviously relevant for the assessment of the objective wrongfulness and the subjective guilt of Mr Grande Stevens’s conduct, and did so without the consent of the appellant[27]. Thirdly, the new fact was also relevant from the perspective of the liability of the legal persons involved in the proceedings, since the charging of Mr Grande Stevens as an “administrator” of IFIL Investments s.p.a. engaged the latter’s liability under Article 187 quinquies of the TUF. The illegality and disproportionality of the pecuniary and non‑pecuniary sanctions 18. The applicants complain about the legality and proportionality of pecuniary and non-pecuniary penalties.", "According to Article 187 ter of the TUF, the pecuniary sanctions applicable to the administrative offence of market manipulation could reach five million euros[28], and be increased up to three times or even ten times the proceeds of the offence or the profit therefrom, taking into consideration the personal situation of the guilty party, the scale of the proceeds of the offence or the profit therefrom, or the effects on the market. While the punishment of administrative offences on the basis of the proceeds of the offence or the profit therefrom, without any fixed upper limit for the pecuniary sanction, raises per se an issue under Article 7 of the Convention in its limb of the principle of nullum poena sine legge stricta, the extremely wide range of the increased pecuniary penalty foreseen by Article 187 ter no. 5 of the TUF is even more problematic[29]. Be that as it may, the concrete sanctions imposed are neither lawful nor proportionate. 19.", "The sanctions imposed on the applicants are not lawful in so far as they are “tainted” by the very grave procedural shortcomings of the administrative and judicial proceedings from which they ensued. To pretend that these shortcomings did not cause effective prejudice ab imo to the exercise of the applicants’ defence rights and to assume that no procedural shortcomings could have affected the decision on sanctions, insofar as the said decision was a necessary consequence of the establishment of the offence, is a serious petitio principii, based on the unacceptable presumption that a fair procedure would not have had a different result and ultimately that a conviction can be established on the basis of inquisitorial and unequal proceedings. 20. Moreover, the pecuniary sanctions imposed by the court of appeal are disproportionate, since Mr Gabetti, President of the commercial enterprises IFIL Investments s.p.a. and Giovanni Agnelli & Co., who took the decision to disseminate the press releases, was punished by a lesser penalty than Mr Grande Stevens, a lawyer who had no decision-making power, but acted only as a consultant[30]. In fact, according to the court of appeal’s judgment, the administrator who took the decision was fined 1,200,000 euros (1,000,000 euros for his conduct on behalf of IFIL Investments s.p.a. and 200,000 euros for his conduct on behalf of Giovanni Agnelli & Co.) and the lawyer who had only an advisory role, and whose opinion could be set aside by the administrator, was ordered to pay more than twice as much, namely 3,000,000 euros.", "In other words, the accessory offender was punished with a much heavier pecuniary penalty than the principal offender! 21. The same critique applies to the non-pecuniary penalties. Mr Grande Stevens was punished with a four-month prohibition on professional activity and Mr Gabetti was sanctioned with the same penalty. The accessory offender who gave a non-binding opinion and the principal offender who took the decision were sentenced to the same non-pecuniary sanctions, as if their professional responsibilities were placed at the same level!", "22. The disproportionality of the penalties imposed on applicants Gabetti and Grande Stevens by the court of appeal is not merely apparent when they are compared to each other. It is also incomprehensible that the same penalty of 3,000,000 euros was applied to appellant Grande Stevens by the CONSOB and the court of appeal, in spite of the fact that the CONSOB considered Mr Grande Stevens as an administrator of IFIL Investments s.p.a. and the court of appeal considered him as a lawyer without executive powers. Although the court of appeal downgraded Mr Grande Stevens’ liability from a principal offender to an accessory offender, it maintained the exact same penalty as applied to him by the CONSOB. In substance, this corresponds to a disguised form of reformatio in pejus by the court of appeal, to the detriment of the appellant.", "No plausible reasons were given for this severity. 23. The penalties applied to Mr Marrone are also groundless, since he did not even participate in the incriminated procedure of disseminating allegedly false information, as the Court of Cassation established in a final judgment of 20 June 2012. 24. Finally, IFIL Investments was punished 1,000,000 euros in relation to the offence committed by Mr Gabetti and Giovanni Agnelli & Co. was fined 600,000 euros, corresponding to the offences committed by Mr Gabetti and Mr Marrone.", "According to Article 187-quinquies of the TUF, the legal person’s administrative liability does not have a fixed upper limit, since it depends on the number of natural persons who committed the offence on behalf of the legal person. However, it is hard to understand how a penalty based on conduct consisting in disseminating allegedly false information by a single natural person can be almost double a penalty based on conduct consisting in disseminating the same information by that same person, but with the participation of another natural person. In addition, the CONSOB ordered, and the court of appeal upheld the order, that the two companies were to pay the penalties imposed on the persons employed by them, as a jointly liable entity, pursuant to section 6 (3) of Law no. 689/1981. According to the established case-law of the Court of Cassation, Article 187-quinquies of the TUF and section 6 of Law no.", "689/1981 may be applied to the same legal person for the same facts, since the first regards the “direct administrative liability of the legal person” while the second is a “special case of debt without responsibility, as the entity is liable for the breach committed by one of its internal bodies and it is directly liable as an adiectus solutionis causa”. Furthermore, the two companies were also charged with an additional “administrative” offence under Article 25-sixies of Legislative Decree no. 231 of 8 June 2001. In practical terms, the two companies could have had to pay three different pecuniary penalties of enormous proportions for the same fact. Already in its conceptual structure, this punitive system calls into question the rights of legal persons under both Article 1 of Protocol No.", "1 and Article 7 of the Convention. For the purpose of this opinion, it is sufficient to consider that IFIL Investments s.p.a. and Giovanni Agnelli & Co. were acquitted by the court of appeal’s judgment of 28 February 2013 and this judgment is final in this part. The court of appeal concluded that no illegal conduct, let alone any “administrative” offence, could be imputed to these commercial enterprises. In the light of Article 187-quinquies no. 4 of the TUF, the defences of IFIL Investments s.p.a. and Giovanni Agnelli & C., which were sufficient to negate their “administrative” liability under Article 6 of Legislative Decree no.", "231 of 8 June 2001, should also be considered sufficient to exclude the “administrative” liability of the same legal persons under Article 187-quinquies of the TUF. The limited ne bis in idem effect of a final conviction on an administrative sanction 25. The Market Abuse Directive 2003/6/EC introduced a comprehensive framework to prohibit and punish insider trading and market manipulation. Member States were required to provide for mandatory administrative sanctions, without prejudice to their right to impose additional criminal sanctions[31]. 26.", "The Directive was implemented in Italy by the provisions contained in Title I-bis of Part V of the TUF. Articles 185, 187 ter and 187 duodecies of the TUF set out a “double-track system” (doppio binario) for the punishment of natural persons, which provides for criminal proceedings in accumulation with administrative proceedings for the “same facts”. Indeed, administrative sanctions are established “without prejudice to the penal sanctions applicable when the action constitutes a criminal offence” (Salve le sanzioni penali quando il fatto costituisce reato). Furthermore, administrative proceedings and the judicial review proceedings relating thereto are not suspended when criminal proceedings are pending “in relation to the same facts or facts on which the definition of the case depends” (avente ad oggetto i medesimi fatti o fatti dal cui accertamento dipende la relative definizione). The “double-track system” was also introduced for legal persons, which can be sentenced to administrative sanctions under Article 187-quinquies of the TUF and under Article 25‑sexies of Legislative Decree no.", "231 of 8 June 2001 for the same facts[32]. This punitive system of doppio binario breaches the principle of ne bis in idem, both in its dogmatic conception and current practice[33]. 27. According to the Court of Cassation, Article 185 refers to a “conduct-based offence” (illecito di mera condotta), assessed through an ex ante evaluation of the possible consequences that the dissemination of accurate information would have caused on the market, and not to an “event-based offence” (illecito di evento), assessed on the basis of an ex post evaluation of the real market situation after dissemination of the press releases[34]. The Government have further elaborated on this interpretation by the Court of Cassation, adding that the criminal offence of Article 185 of the TUF is a “concrete risk of harm offence” (reato di pericolo concreto), which means that it has to be established that the dissemination of false information caused an actual risk that the price of the specific financial instrument would be altered, whereas no actual impact on the price of that financial instrument is required for the offence to be committed, and the administrative offence of Article 187 ter of the TUF is an “abstract risk of harm offence” (reato di pericolo astratto), thus including any conduct which can theoretically influence investors’ choices, regardless of whether false or misleading news has actually led to investment choices which otherwise would not have been taken.", "28. To avoid punishing the same fact twice (bis in idem), the Italian system has two guarantees: the “principle of speciality” (principio di specialità), foreseen in section 9 of Law no. 689/1981[35], and the principle of deduction of the administrative penalty in the criminal penalty, established in Article 187 terdecies of the TUF. These two guarantees are not enough, as the present case proves. Although the criminal and administrative proceedings had as their subject matter exactly the same factual situation, the Court of Cassation and the Turin Court of Appeal repeatedly, but unconvincingly, stated that the principle of speciality did not apply to them.", "Both the criminal offence of Article 185 and the administrative offence of Article 187 ter are conduct-based offences which protect the same “legal interest” (bene giuridico), namely the transparency of the market, the difference between them being that the former is a “concrete risk of harm offence” and the latter an “abstract risk of harm offence”. Thus, it is obvious that the principle of speciality applied, since the provision of concrete risk of harm is special in relation to the provision of abstract risk of harm concerning the same “legal interest”, and therefore criminal proceedings should prevail over, and exclude, administrative proceedings. The material accumulation of criminal and administrative sanctions not only overburdens the State with two autonomous investigations, with the risk of different pronouncements on the same facts, but also clearly frustrates the principle of speciality. 29. Even assuming, for the sake of argument, that the principle of speciality did not apply, the fact is that the Italian system of doppio binario does not prohibit the commencement of criminal proceedings in idem after a final decision of conviction for administrative offences has been reached by the competent court of review.", "Article 2 of Protocol No. 7 also prohibits the “double prosecution” of the same idem. Hence, criminal proceedings may not be opened for the same idem where the administrative decision has been definitely confirmed by the courts and become res judicata. The Italian system does not provide in legislation, and did not provide in the applicants’ concrete case, for such a guarantee[36]. The insufficient just satisfaction by the Court 30.", "The above-mentioned serious shortcomings in the administrative and judicial procedures and the consequent unlawful and disproportionate sanctions applied to the applicants require full and urgent redress. How can such enormous penalties of millions of euros be maintained in spite of such gross violations of the applicants’ procedural and substantive rights? There should be a retrial in accordance with section 23 of Law no. 689/1981, assuming that the administrative offences are not already time-barred. 31.", "In addition, justice warrants compensation in the case. The applicants have been severely prejudiced, both financially and morally, because they have already paid huge pecuniary penalties and they have been hindered from performing their professional activities for considerable periods of time. The compensation established by this Court is clearly insufficient to attain that purpose. At the least, the pecuniary penalties should have been restored to the applicants. 32.", "In any event, the criminal proceedings still pending should be terminated immediately, and the defendants Mr Gabetti and Mr Grande Stevens relieved of any criminal liability. In the particular circumstances of this case, no other measure can avoid the injustice committed against the applicants with regard to the bringing of criminal proceedings on top of an unfair and excessive administrative punishment. Conclusion 33. European States are confronted with a dilemma. In order to ensure the integrity of European markets and to enhance investor confidence in those markets, States have created very broad administrative conduct-based offences, which punish the abstract risk of harm to the market with severe, undetermined pecuniary and non-pecuniary penalties, which are classified as administrative sanctions and applied by “independent” administrative authorities in inquisitorial, unequal and prompt proceedings.", "These authorities combine punitive and prosecutorial powers with a broad power of supervision over a particular sector of the market, and exercise the latter in such a way as to pursue the former, sometimes imposing on the supervised/suspected person an obligation to cooperate in the bringing of charges against him or her. The succession of three, or even four, stages of written defence pleadings – twice before the administrative authority, once before the court of appeal and again before the Court of Cassation – is an elusive guarantee which does not compensate for the intrinsic unfairness of the proceedings. The temptation has clearly been to outsource conduct which cannot be dealt with through the classical instruments of criminal law and procedure to these “novel” administrative proceedings. Nevertheless, market pressure cannot prevail over the international human rights obligations of the States bound by the Convention. The punitive nature of the offences and the severity of the punishment cannot be eluded, and clearly call for the protection afforded by the procedural guarantees of Article 6 and the substantive guarantees of Article 7 of the Convention.", "34. We consider that the applicants were treated unfairly by the CONSOB and the domestic courts, and that this Court has done them only “half justice”. This is the reason why we follow the majority only in part. We expect that this judgment will provide the domestic courts with an opportunity to deliver full justice to the applicants, and the Italian legislature with the incentive to remedy the structural deficiencies in the administrative and judicial procedure for the application and review of administrative sanctions by the CONSOB. If the Italian legislature is up to this challenge, its work could provide an example of cross-fertilization to other legislatures which are faced with a similar systemic problem.", "ANNEX No. Application No. Lodged on: Applicant Date of birth Place of residence Represented by: 18640/10 27/03/2010 Franzo GRANDE STEVENS 13/09/1928 Turin Aldo BOZZI, of the Milan Bar, Giuseppe BOZZI, of the Rome Bar, and Natalino IRTI, of the Milan Bar 18647/10 27/03/2010 Gianluigi GABETTI 29/08/1924 Turin Aldo BOZZI, of the Milan Bar, and Giuseppe BOZZI, of the Rome Bar 18663/10 27/03/2010 Virgilio MARRONE 02/08/1946 Turin Aldo BOZZI, of the Milan Bar, and Giuseppe BOZZI, of the Rome Bar 18668/10 27/03/2010 EXOR S.P.A. Public company whose registered office is in Turin Aldo BOZZI, of the Milan Bar, and Giuseppe BOZZI, of the Rome Bar 18698/10 27/03/2010 GIOVANNI AGNELLI & C. s.a.a. Limited shareholding partnership whose registered office is in Turin Aldo BOZZI, of the Milan Bar, and Giuseppe BOZZI, of the Rome Bar [1]. The amount of this penalty was multiplied by five by section 39 § 3 of Law no.", "262 of 28 December 2005, which entered into force after the impugned press releases had been issued. [2]. See Menarini Diagnostics SRL v. Italy, no. 43509/08, 27 September 2011, on the penalties applied by the Autorità Garante della Concorrenza e del Mercato. [3].", "The applicability of Article 6 to the administrative procedure before Consob and the ensuing penalties is convincingly affirmed by the majority. [4]. Section 1, para. 6, and 18 of Law no. 216 of 7 June 1974, and Article 5 (1) al.", "b) and e) of CONSOB Resolution no. 8674 of 17 November 1994. [5]. Resolution no. 15087 of 21 June 2005.", "[6]. The CONSOB Resolutions no. 15086 of 21 June 2005, no.15131 of 5 August 2005, and no. 16483 of 20 May 2008. The Government, in their submissions of 7 June 2013, acknowledged this, but argued that “none of the above indicated powers have been exercised” in this particular case by the CONSOB’s chairman in the investigation phase.", "That argument is not pertinent. The mere fact that the chairman of the adjudicatory body can intervene in the pre-trial phase jeopardises that body’s objective impartiality and independence. [7]. Court of Cassation’s judgments no. 10757 of 24 April 2008, and no.", "389 of 11 January 2006, [8]. Article 18 of CONSOB Resolution no. 8674/1994 of 17 November 1994. [9]. This lack of notification was found to be in breach of the principle of adversarial proceedings, particularly with regard to the quantification of the penalty which is usually based on facts not communicated to the suspected person (judgment no.", "51 of the Genoa Court of Appeal of 24 January - 21 February 2008). [10]. This fact has already been found inadmissible in the light of the principle of impartiality (see the Lazio Regional Administrative Court’s judgment no. 3070 of 10 April 2002). [11].", "See, for example, the Court of Cassation’s judgment of 23 June 2009, page 38. This case-law has not been uncontested (for instance, the Consiglio di Stato, in its opinion no. 485 of 13 April 1999, supported the opposite view). [12]. In this sense, see, for instance, judgment no.", "6211 by the Lazio Regional Administrative Court (Section I) of 20 June 2013. Thus, the present case is of additional interest, in that the provisions applicable in it are still in force. [13]. Thus, this judicial review is different from the “weak” judicial review (sindacato giurisdizionale ‘debole’) of administrative sanctions applied by the Autorità Garante della Concorrenza e del Mercato, exercised by the administrative judge before the new CPA entered into force (see the opinion of Judge Pinto de Albuquerque joined to the Menarini Diagnostics case). [14].", "See the Court of Cassation’s judgments no. 23930 of 9 November 2006 and no. 1761 of 27 January 2006. [15]. Court of Cassation judgments no.", "13703 of 22 July 2004; no. 1992 of 11 February 2003; and no. 9383 of 11 July 2001. [16]. See pages 27, 32, 33, 38 and 39 of the court of appeal’s judgment on Mr Grande Stevens’s appeal of 5 December 2007, deposited on 23 January 2008.", "There are eight references to the testimonies of these two witnesses, in some cases with long citations. The same thing occurs on pages 28, 29, 38, 39, 40, 41 of the court of appeal’s judgment on Mr Gabetti’s appeal and pages 38, 47, 48 and 49 of the court of appeal’s judgment on the appeal by IFIL Investments s.p.a. (subsequently Exor s.p.a.). The two other judgments repeat in substance the same arguments. In fact, two out of the three judges of the court of appeal were the same in all five judgments. [17].", "Pages 81 and 82 of Mr Grande Stevens’ submissions of 25 September 2007 to the court of appeal and pages 64 and 65 of Mr Marrone’s submissions of 25 September 2007 to the court of appeal. Applicant Grande Stevens requested that the witnesses be questioned by the court of appeal “on the facts referred to in the documents above” (sui fatti riferiti dai documenti medesimi). He presented the following list of witnesses: Enrico Chiapparoli, Maurizio Tamagnini, John Winteler, Virgilio Marrone, Alistair Featherstone, Stephen Woodhead, Michael O’Donnell, Sergio Marchionne, Lupo Rattazi, Teodorani Fabbri, Antonio Marroco, Claudio Salini and Antonio Rosati. Applicant Marrone was also very explicit, requesting that the witnesses Andrea Griva and John Winteler be heard on the facts that they had described in their previous written testimonies and reserving the right to request further evidentiary acts in the light of CONSOB’s future submissions (riserva di ulteriore istanze istruttorie). [18].", "Paragraph 6 of section 23 of Law no. 689/1981. [19]. It is incomprehensible that the court of appeal decided on the general issue of Mr Grande Stevens’ dolus malus and in particular whether his alleged error of law was caused by the CONSOB without even interrogating him and on the exclusive basis of the testimonies given by the prosecution witnesses, Mr Salini and Mr Rosati (pages 38 and 39 of the court of appeal’s judgment). It was extremely important to have confronted these witnesses with Mr Grande Stevens, in order to assert the mental element of the latter’s alleged offence, and the representatives of Merrill Lynch, namely Mr Enrico Chiapparoli and Mr Maurizio Tamagnini, in order to assert the existence of false information (see also the statements by witnesses Lupo Ratazzi, Pio Fabbri and Antonio Marocco, which contradict the CONSOB’s thesis).", "It is thus inadmissible to argue, as the Government did, in their submissions of 7 June 2013, pages 58 and 59, that “the particular nature and level of sophistication of market abuse offences does not lend itself to an “oral” procedure, making necessary … an essentially oral procedure.” [20]. The applicants repeatedly presented this exact complaint to the Court in their applications and in the later submissions. Thus, the last sentence of paragraph 150 of the judgment is simply not correct, and indeed contradictory to the statements made in paragraphs 110 and 117, last sentence, of the judgment. [21]. The leading case is Ekbatani v. Sweden (Plenary), no.", "10563/83, 26 May 1988. In paragraphs 32 and 33 of that judgment, a violation of Article 6 is established specifically on account of the lack of a hearing for the applicant and the complainant in a case where a re‑examination of law and facts by the second-instance court was called for. It should be underlined that a violation was found in spite of the fact that the first-instance court had determined the criminal charges brought against the applicant after it had held a public hearing at which the applicant appeared, gave evidence and argued his case. In the present case, the Turin Court of Appeal acted as the first judicial instance, which made cross-examination of the witnesses and questioning of the appellants in a public hearing before the court all the more necessary. [22].", "In Tierce and Others v. San Marino, nos. 24954/94, 24971/94 and 24972/94, 25 July 2000, the applicants were denied a public hearing on appeal at which they could have been present and given evidence in person. Like Mr Grande Stevens, Mr Tierce argued precisely that the subjective element (that of intention to deceive) of the offence was not shown. In another case, the Court went even further and concluded that not even the presence of confidential information in a case file automatically implies a need to close a trial to the public, without balancing openness with national security concerns (Belashev v. Russia, no. 28617/03, 4 December 2008).", "[23]. Judge Karakaş does not disagree with the majority as regards the lawfulness of the court of appeal’s change to the accusation. [24]. According to section 14 of Law no. 689/1981, a suspect may not be convicted for facts which were not imputed to him or her in the indictment (Court of Cassation judgments no.", "10145 of 2 May 2006 and no. 9528 of 8 September 1999). [25]. Article 187 septies no. 2 of the TUF.", "[26]. See page 137 of the CONSOB’s decision of 9 February 2007. [27]. This is true even with regard to offences which are not illecito proprio, i.e. an offence that can only be committed by certain categories of persons.", "Even if the imputed administrative offence of market manipulation set out in Article 187 ter of the TUF is not an illecito proprio, that does not absolve the prosecutorial body from the obligation to describe in the accusation the main features of the offender’s conduct as relevant for the purpose of imputation, and a fact pertaining to the nature of the defendant’s participation in the offence is certainly a main feature which must be set out in the accusation. [28]. Section 39 (3) of Law no. 262 of 28 December 2005 raised the upper limit to 25 million euros. [29].", "This rule goes much further than that set out in section 17 (4) of the German Ordnungswidrigkeitengesetz (Contravention of Regulations Act, OWiG), which allows for a pecuniary penalty that is equivalent to the amount of the profit of the offence, even when this is higher than the statutory upper limit of the penalty, and even further than that of Article 18 (2) of the Portuguese Regime Geral das Contra-Ordenações (General Regime on the Contravention of Regulations, RGCO), which provides for the same rule, but with the limit that the increase of the penalty equivalent to the profit of the offence cannot exceed one third of the statutory upper limit of the penalty. [30]. Like section 14 of the German OWiG and Article 16 of the Portuguese RGCO, which both establish the so-called “unified concept of offender” (Einheitstäter begriff), section 5 of Italian Law no. 689/1981 does not formally distinguish between principal offenders and accomplices and does not provide for distinctive penal upper limits for the punishment of principal offenders and accomplices in the event of offences committed by various persons. Nonetheless, the punishment of each offender involved in committing one and the same offence must be proportionate to the objective gravity of his or her individual conduct and his or her own personal subjective guilt (see, for example, Article 187 ter no.", "5 of the TUF, referring to the “personal situation of the guilty party”, and Article 187 quarter no. 3 of the same TUF, referring to the “seriousness of the violation” and the “degree of fault”). As shown in footnote 14 above, the case-law of the Court of Cassation is sensitive to the need for a careful weighing up of these circumstances when setting the administrative sanctions. That is exactly what did not occur in the present case. [31].", "This understanding was confirmed by paragraph 77 of the Spector Photo Group NV judgment of the ECJ of 23 December 2009, case C-45/08. Since the level of administrative sanctions varied widely among Member States, the existing divergent sanctioning administrative regimes promoted regulatory arbitrage. Moreover, four Member States did not criminalise market manipulation and the definition of the criminal offence and the applicable penalties diverged considerably among those which did. The recent approval by the European Parliament of the new Directive dealing with criminal sanctions against market abuse and the EP’s political endorsement of the political agreement on a future Regulation dealing with administrative measures against such abuse will change the scenario in the European Union. Member States will have to ensure that imposition of criminal sanctions on the basis of offences foreseen by the new Directive and of administrative sanctions in accordance with the future Regulation does not lead to the breach of the principle of ne bis in idem.", "[32]. As explicitly acknowledged in the Court of Cassation judgments of 30 September 2009, delivered in the present case. The Government in their submissions of 7 June 2013, page 23, recognise that the liability under Article 25-sexies of Decree no. 231/2001 “[has] all the features of ‘criminal’ liability”. [33].", "It cannot be disputed that the Italian reservation to Article 4 of Protocol No. 7 does not comply with the strict standards of the Court’s case-law, because it is too broad in its scope. Since the reservation does not apply, the said provision is fully binding for the Respondent State. [34]. Court of Cassation judgment no.", "40393 of 15 October 2012. [35]. According to the Government’s submissions of 7 June 2013, page 8, the principle of speciality applies when two offences share the same basic constituent elements, but one of them has a more circumscribed scope, on account of a specification or addition to the facts of the offence. In this case, the special offence prevails. [36].", "The Italian legal system does not contain a provision similar to section 84 of the German OWiG or Article 79 of the Portuguese RGCO." ]

[ "THIRD SECTION CASE OF SANDU v. THE REPUBLIC OF MOLDOVA (Application no. 16463/08) JUDGMENT STRASBOURG 11 February 2014 FINAL 11/05/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sandu v. the Republic of Moldova, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Alvina Gyulumyan,Ján Šikuta,Luis López Guerra,Nona Tsotsoria,Johannes Silvis,Valeriu Griţco, judges,and Santiago Quesada, 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.", "16463/08) 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 Victor Sandu (“the applicant”), on 19 March 2008. 2. The applicant was represented by Mr M. Avram, a lawyer practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol. 3.", "The applicant alleged, in particular, that he had been the victim of entrapment, as a result of which he had committed a criminal offence. 4. On 13 December 2011 the application was communicated to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1958 and lives in Chișinău.", "A. The investigation of bribe taking and the applicant’s arrest 6. At the time of the events the applicant was the manager of a State-owned veterinary clinic. 7. According to the official version of events, on 25 September 2006 a person (C.) came to the applicant’s office at around 9.10 a.m. and expressed his wish to have his dog vaccinated and to obtain a document required for travelling abroad with that dog.", "The applicant then told him that the process could last two to three months, but could be sped up. In exchange for 1,000 Moldovan lei (MDL, approximately 63 euros (EUR) at the time), the applicant said that he would issue C. with the relevant document without seeing the dog, knowing that it had not been vaccinated. 8. Immediately after that, C. went to Rîşcani police station in Chişinău and asked for help in catching the applicant in the act of receiving the bribe. In his report to the police made at that time, C. noted that he had asked for vaccination documents for his six-month old dog called “Ghera”, which was a variety of terrier.", "9. In response to C.’s report, a number of procedural acts were carried out that same morning: (i) V., an officer at Rîşcani police station, issued an order to initiate a criminal investigation, which was countersigned by a prosecutor on the same day at 4.40 p.m.; (ii) a prosecutor from the Rîşcani prosecutor’s office issued an order giving subject-matter jurisdiction over the investigation of the case to Rîşcani police station, while noting that jurisdiction to handle such cases normally lay with the Centre for Fighting Economic Crime and Corruption. ; (iii) the Prosecutor General’s Office issued an order giving territorial jurisdiction to Rîşcani police station; (iv) V. issued a search warrant for the applicant’s office (countersigned by the Rîşcani District Court’s investigating judge on 26 September 2006); (v) V. issued a second order to trace the source of the money paid as a bribe; (vi) a third order was issued by V., pursuant to which the money to be given as a bribe was to be marked with a special substance; and (vii) MDL 1,000 in five banknotes of MDL 200 each was marked by V. in the presence of C. and a specialist at 11 a.m. and a record of this was drawn up. 10. At approximately 11.30 a.m. on the same day C. entered the applicant’s office and told him that he only had MDL 400.", "The applicant took the money, stamped and made the relevant notes in the dog’s passport. At around 12.30 p.m. officers from Rîşcani police station entered the applicant’s office and discovered MDL 400 in his pocket. The money was subsequently confirmed as bearing the specific mark made earlier for the purpose of proving the act of bribe taking. 11. On 27 September 2006 the applicant was released against an undertaking not to leave the city.", "12. In the record of an interrogation made on 29 November 2006, it is recorded that the applicant declared that there were individuals who, for a long time, had wanted to frame him due to his past conflicts with them. He also mentioned a criminal complaint concerning an assassination attempt that took place on 4 April 2004 which had not been examined and which meant, in the applicant’s opinion, that someone had a motive for making a false accusation against him. B. The criminal proceedings against the applicant 13.", "On 8 December 2006 the Rîşcani District Court transferred the case to the Botanica District Court in Chişinău for examination, as the latter court had territorial jurisdiction over the matter. 14. On 27 March 2007 the applicant’s lawyer asked the court to exclude all the evidence obtained as a result of the procedural acts of 25 September 2006, on the basis that it had been obtained in violation of territorial and subject-matter jurisdiction. The court twice postponed the hearing in order for the prosecution to submit evidence in this respect. 15.", "On 3 April 2007 the prosecution submitted the Prosecutor General’s order of 25 September 2006 (see paragraph 9 above) giving territorial jurisdiction to Rîşcani police station. The order had not been included in the file before that date. The applicant’s lawyer objected to the inclusion of that document in the file, stating that its existence had never previously been mentioned and that he had serious reasons for considering that it was backdated. According to the prosecution, the order had been mistakenly annexed to another file and had been discovered shortly before submitting it to the court. According to the Government, the applicant’s lawyer did not raise an objection during the hearing of 3 April 2007, but only did so in his final submissions to the court at a hearing on 5 April 2007.", "16. On 17 April 2007 the Botanica District Court found the applicant guilty of soliciting and accepting a bribe. The court referred to such evidence as C.’s initial police report and subsequent statements, those of the officers at Rîşcani police station, and to the findings of the search at the applicant’s office on 25 September 2006, during which MDL 400 had been found in his pocket. The applicant was ordered to pay a criminal fine of MDL 60,000 (approximately EUR 3,550) and was prohibited from working as a veterinary surgeon for two years. 17.", "In respect of the allegation made by the applicant and his lawyer that the entire event had been the result of police entrapment, the court found as follows: “The submission that the charges of bribe taking brought against [the applicant] were based on police entrapment is unsubstantiated, because [C.] declared under oath both during the criminal investigation and before the court that [the applicant] had solicited money from him in order to speed up his dog’s vaccination. Moreover, upon his arrest the accused took the money out of his pocket, which proves his intentional actions and [shows that it was] not entrapment”. 18. The applicant appealed. He noted the various procedural shortcomings concerning the timing of the issuance of the orders on 25 September 2006 and claimed that the investigative actions had taken place before the initiation of the investigation itself.", "He further submitted that it was strange that C. had gone to Rîşcani police station and not to the police station situated in the Botanica district, which had territorial jurisdiction to deal with the alleged offence. Nor had he gone to the police station in the district where he lived. Furthermore, according to the documents in the file, the police had given money to C. for him to bribe the applicant with, yet of the MDL 1,000 given to C. only MDL 400 had been passed on to the applicant, the remainder having disappeared. The applicant submitted that C. had been “artificially involved in the operation of handing money to me, which constitutes incitement to bribe taking”. The applicant further claimed that C. had never had a dog and had therefore had no need to have a dog vaccinated for travel abroad.", "He referred to the inconsistency between C.’s description of his dog (stating initially that it was a type of terrier, but later that it was a type of pitbull, while the pet passport submitted to the court was for an English cocker spaniel dog, which, in addition, belonged to another person, G.V.). Moreover, according to the documents submitted to the court the dog had been born on 18 November 2004 and thus could not have been six months old on 25 September 2006, as stated by C. Furthermore, C. had refused to say whom he had wanted to visit abroad, even though he had previously stated that he had intended to visit friends, taking his dog with him. 19. On 31 May 2007 the Chişinău Court of Appeal upheld the lower court’s judgment. In respect of the applicant’s argument of entrapment, the court repeated the reasoning of the lower court word for word.", "20. The applicant appealed on points of law, essentially repeating his arguments made before the lower courts. 21. On 24 October 2007 the Supreme Court of Justice upheld the lower courts’ judgments. In respect of the applicant’s argument of entrapment, the court repeated the reasoning of the lower courts word for word.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 22. The applicant complained that he had been incited to commit the crime of accepting a bribe. 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 ...” A. Admissibility 23. 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 24.", "The applicant argued that he had been the victim of entrapment. C. had not had a dog and thus had not had any need to ask for documents confirming the vaccination of a dog. Furthermore, C. had not had money for the vaccination or to pay a bribe and so the police had handed over money to him. However, C. had agreed to act as an agent provocateur for the police and they had given him the passport of a dog which had died prior to the relevant events and which had belonged to another person. 25.", "According to the applicant, the investigation was in fact initiated after his arrest, as was clear not only from the time when the decision was countersigned by the prosecutor (4.40 p.m., see paragraph 9 above), but also from its text, referring in the past tense to the fact that “[the applicant] has taken money from [C.] to speed up the issuing of the [relevant document]”. The applicant also noted that the decision giving subject-matter jurisdiction over the investigation of the case to Rîşcani police station (referred to above) mentioned the name of a prosecutor, but bore the signature of a person who remained unidentified. 26. The Government submitted that the applicant had not been a victim of entrapment. C. had had no ties to the police and had only made a report after the applicant had asked him to pay a bribe.", "Accordingly, the police had only become involved after the applicant had already initiated his criminal activity and they had received a report concerning his behaviour from C., a private individual. C. had confirmed this version of events in court and the courts had accepted this explanation. In addition, procedural guarantees against entrapment had existed, as the actions of the police had been subjected to ex post factum judicial review. Furthermore, the alleged procedural irregularities – such as the accusation that a criminal investigation had only been initiated after the bribe taking had taken place – were groundless, as the report by C. that he had been asked to pay a bribe had not sufficed in itself as grounds for initiating an investigation. Only after the police had obtained evidence that the applicant had committed a crime had they been able to officially start the investigation.", "Moreover, the decision to grant subject-matter jurisdiction to the Rîșcani police station was signed by a deputy prosecutor, without his name being separately indicated, as was the usual practice, and thus all the procedural requirements had been complied with. 2. The Court’s assessment (a) General principles 27. The Court would highlight its Ramanauskas judgment (Ramanauskas v. Lithuania [GC], no. 74420/01, §§ 49-74, ECHR 2008), in which it elaborated the concept of entrapment in breach of Article 6 § 1 of the Convention, as distinguished from the use of legitimate undercover techniques in criminal investigations, in respect of which there must be adequate safeguards against abuse.", "28. In Teixeira de Castro v. Portugal (9 June 1998, §§ 31-39, Reports of Judgments and Decisions 1998-IV) it was important for the Court that there had been no objective suspicions that the applicant in that case had been involved in any criminal activity. Nor was there any evidence to support the Government’s argument that the applicant was predisposed to commit offences. On the contrary, he was unknown to the police and had not been in possession of any drugs when the police officers had sought them from him; accordingly, he had only been able to supply them through an acquaintance who had obtained them from a dealer whose identity remained unknown. Although Mr Teixeira de Castro had potentially been predisposed to commit an offence, there was no objective evidence to suggest that he had initiated a criminal act before the police officers’ intervention.", "The Court therefore rejected the distinction made by the Portuguese Government between the creation of a criminal intent that had previously been absent and the exposure of a latent pre-existing criminal intent.” (se also Ramanauskas, cited above, § 56). 29. The Court also found in Vanyan v. Russia (no. 53203/99, §§ 45-50, 15 December 2005) that the issue of entrapment could be relevant even where the relevant operation was carried out by a private individual acting as an undercover agent, when it had actually been organised and supervised by the police. 30.", "In Milinienė v. Lithuania (no. 74355/01, § 38, 24 June 2008) the Court found that there had been no police entrapment, basing its finding on the following considerations: “To the extent that SŠ had police backing to offer the applicant considerable financial inducements and was given technical equipment to record their conversations, it is clear that the police influenced the course of events. However, the Court does not find that police role to have been abusive, given their obligation to verify criminal complaints and the importance of thwarting the corrosive effect of judicial corruption on the rule of law in a democratic society. Nor does it find that the police role was the determinative factor. The determinative factor was the conduct of SŠ and the applicant.", "To this extent, the Court accepts that, on balance, the police may be said to have “joined” the criminal activity rather than to have initiated it. Their actions thus remained within the bounds of undercover work rather than that of agents provocateurs in possible breach of Article 6 § 1 of the Convention (cf. the aforementioned judgment in the case of Teixeira de Castro v. Portugal, 9 June 1998, §§ 31-39, Reports of Judgments and Decisions 1998-IV; Sequeira v. Portugal, (dec.), no. 73557/01, ECHR 2003-VI).” In reaching its conclusion that no entrapment had taken place in Milinienė, the Court also analysed whether the private individual who had informed the authorities of the applicant’s unlawful conduct had any ulterior motives (§ 39). 31.", "The Court has also held that where an accused asserts that he was incited to commit an offence, the criminal courts must carry out a careful examination of the material in the file, since for the trial to be fair within the meaning of Article 6 § 1 of the Convention all evidence obtained as a result of police entrapment must be excluded. Where the information disclosed by the prosecution authorities does not enable the Court to conclude whether the applicant was subjected to police entrapment, it is essential in each case that the Court examine the decision-making procedure whereby the plea of entrapment was decided upon in order to ensure that the rights of the defence were adequately protected, in particular the right to adversarial proceedings and to equality of arms (see Ramanauskas, cited above, § 60; Edwards and Lewis v. the United Kingdom [GC], nos. 39647/98 and 40461/98, §§ 46-48, ECHR 2004-X; and Khudobin v. Russia, no. 59696/00, §§ 133-35, ECHR 2006‑XII (extracts)). (b) Application of these principles to the present case 32.", "The Court notes that according to the prosecution a private individual (C.) went to the applicant’s office and was asked for a bribe in order to speed up the process of issuing vaccination documents for his dog. Following C.’s report to the police, they arranged for him to pay a second visit to the applicant’s office so as to prove the commission of the offence of bribe taking. As no police officer was directly involved, the present case does not concern undercover police work, but rather the acts of a private individual, acting under police supervision. 33. In order to verify whether the applicant was incited to commit the crime, the Court must determine whether he could be reasonably considered as having been engaged in the relevant criminal activity prior to the police involvement.", "In other words, it must be verified whether the applicant would have committed the crime in the absence of the alleged incitement. 34. The Court reiterates that where the police involvement is limited to assisting a private party in recording the commission of an illegal act by another private party, the determinative factor remains the conduct of those two individuals (see Milinienė, cited above, § 38). Accordingly, since the applicant accused C. of having incited the commission of the offence, it is necessary to examine the manner in which the domestic courts analysed C.’s conduct in the present case. In this respect the Court notes that the applicant argued before the domestic courts that C. had never had a dog.", "Accordingly, he had had no reason to visit the applicant’s office and to ask for vaccination documents. The pet passport which was included in the file concerned a dog of a different breed than that initially indicated by C. in his report to the police. Moreover, according to the applicant, and not disputed by the Government, that document mentioned the dog as belonging to another person, rather than to C. (see paragraph 18 above). 35. In the Court’s view, the above inconsistencies between C.’s version of events and the objective evidence (the dog papers) available at the time of deciding whether to record the applicant’s bribe-taking should have caused the police to have legitimate doubts or at least led to a more detailed check of the veracity of his complaint and of his motives.", "Indeed, if C. provided false information to the police about having a dog and needing to obtain papers for it, his credibility in respect of the alleged soliciting of a bribe by the applicant would also be shaken. In their turn, the domestic courts should have made a proper analysis of these inconsistencies and of the manner in which the police reacted to them. 36. The Court notes that the applicant clearly raised these arguments in front of the domestic courts, accusing C. of incitement with the assistance of the police. In such a situation, “it falls to the prosecution to prove that there was no incitement, provided that the defendant’s allegations are not wholly improbable.", "In the absence of any such proof, it is the task of the judicial authorities to examine the facts of the case and to take the necessary steps to uncover the truth in order to determine whether there was any incitement” (see Ramanauskas, cited above, § 70). However, rather than analysing these arguments, which as noted above were not completely groundless, all three levels of the courts relied on C.’s confirmation of his version of events and the fact that the applicant had knowingly accepted the bribe, based on him having taken the money out of his pocket (see paragraphs 17, 19 and 21 above). In other words, while the applicant directly challenged C.’s credibility, the courts simply relied on C.’s statements, without any examination of his credibility and of the possibility that C. had incited the applicant to commit the crime for any ulterior motives. 37. The Court also notes that there were no objective suspicions that the applicant had been involved in any criminal activity prior to the relevant events.", "Nor was there any evidence that he was predisposed to commit offences. The Government’s argument that the police could not initiate a criminal investigation against the applicant before they obtained evidence that he had actually committed a crime (see paragraph 26 above) only confirms this. 38. In conclusion, the Court considers, having regard to the foregoing, that the domestic courts failed to properly assess whether C.’s actions, acting on behalf of the police, had the effect of inciting the applicant to commit the offence of which he was subsequently convicted or whether there had been any indication that the offence would have been committed without such intervention. Although in the present case the domestic courts had reason to suspect that there was an entrapment, they did not analyse the relevant factual and legal elements which would have helped them to distinguish entrapment from a legitimate form of investigative activity (see, for instance, Khudobin v. Russia, no.", "59696/00, § 137, ECHR 2006‑XII (extracts)). In view of the above, and of the use of evidence obtained through C.’s active involvement under police supervision to convict the applicant, his trial was deprived of the fairness required by Article 6 of the Convention. 39. There has therefore been a violation of Article 6 § 1 of the Convention. II.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 40. The applicant complained of a violation of Article 6 § 1 of the Convention in that the courts had failed to observe the principle of equality of arms and that they had given insufficient reasons for their decisions. He also complained under Article 6 § 3 of the Convention that the prosecution had failed to disclose to the defence in due time a document which could have proved police entrapment. The Court considers that, while these complaints are in principle admissible, they do not raise an issue separate from that already examined above under Article 6 § 1 of the Convention. It will accordingly not examine them separately.", "41. The applicant finally complained under Article 5 of the Convention that he had been detained in the absence of a reasonable suspicion that he had committed a crime. Having regard to all the material in its possession, the Court finds that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 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.” 43. The applicant did not submit a claim for just satisfaction. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaints under Article 6 §§ 1 and 3 admissible, and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention concerning the complaint of entrapment; 3. Holds that there is no need to examine the remainder of the complaints under Article 6 §§ 1 and 3 of the Convention. Done in English, and notified in writing on 11 February 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident" ]

[ "FOURTH SECTION CASE OF JANAS v. POLAND (Application no. 61454/00) JUDGMENT STRASBOURG 21 September 2004 FINAL 21/12/2004 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 Janas v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrsV. Strážnická,MrJ.", "Casadevall,MrR. Maruste,MrL. Garlicki,MrsE. Fura-Sandström,MsL. Mijović, judges,and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 31 August 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 61454/00) 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, Mrs Magdalena Janas (“the applicant”), on 13 January 2000. 2. The applicant was represented by Mr Zbigniew Cichoń, a lawyer practising in Kraków. The Polish Government (“the Government”) were represented by their Agents, Mr K. Drzewicki and Mr. J.Wołąsiewicz, of the Ministry of Foreign Affairs.", "3. On 10 July 2001 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 4. The applicant was born in 1948 and lives in Zakopane, Poland.", "5. The applicant and a co-operative “PSS Społem” were co-owners of an estate in Zakopane. On 29 November 1995 the co-operative filed with the Zakopane District Court (Sąd Rejonowy) an application for dissolution of the co-ownership of the estate. 6. The court held hearings on 10 and 24 January 1996.", "On the latter date it ordered an expert opinion. On 21 February 1996 the court held a viewing of the site. On 19 April 1996 the expert submitted his opinion to the trial court. On 27 May 1996 the court ordered that a supplementary expert opinion be obtained. It was submitted to the court on 28 June 1996.", "7. At the hearing held on 18 September 1996 the court heard evidence from an expert. The court further ordered him to prepare a supplementary opinion. It was submitted to the court on 10 October 1996. 8.", "On 3 February 1997 the court held a hearing and appointed a new expert. On 30 June 1997 the new expert submitted his opinion to the court. 9. At the hearing held on 21 January 1998 the court decide to obtain evidence from yet another expert. The opinion was submitted to the court on 17 June 1998.", "10. In her pleading of 3 September 1998 the applicant submitted a new proposal concerning the division of the estate. On 28 September 1998 she revoked it. 11. The court held hearings on 16 December 1998, 22 February and 7 April 1999.", "On 17 December 1999 the court held a hearing and heard evidence from an expert. At that hearing the applicant authorised her father, who was a court expert, to represent her in the proceedings. As a result, the judge rapporteur asked to be excluded from dealing with the case. On 7 January 2000 the District Court acceded to his request. 12.", "On 24 January 2000 the applicant challenged the impartiality of all judges sitting in the Zakopane District Court. On 7 March 2000 the Nowy Sącz Regional Court (Sąd Okręgowy) dismissed the applicant's challenge. 13. On 15 September 2000 the court held a hearing and ordered another expert opinion. Subsequent hearings were held on 23 April and 23 May 2001.", "On 6 June 2001 the District Court gave judgment. The applicant appealed. It appears that the proceedings are pending. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 14.", "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...” 15. The Government contested that argument. 16. The period to be taken into consideration began on 29 November 1995. In the light of the material available to the Court at the date of the adoption of the present judgment, the proceedings are still pending.", "Their length has accordingly amounted to nearly 8 years and 10 months. A. Admissibility 17. 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 18. The Government submitted that the case had been complex. They referred to the fact that the trial court needed to obtain several expert opinions. They further claimed that the authorities had shown due diligence in the proceedings.", "The hearings had been scheduled regularly and the District Court had effectively supervised the experts. Moreover, they stressed that the applicant had contributed to the prolongation of the proceedings since she had modified her position. Lastly, they alleged that “special diligence” had not been required on the part of the domestic authorities in this case. They invited the Court to find that there had been no violation of Article 6 § 1 of the Convention. 19.", "The applicant replied that some of the expert opinions had been irrelevant for the determination of her claim. She submitted that there had been significant periods of inactivity between the hearings. She further agreed that her challenge of the impartiality of judges sitting in the District Court contributed to some extent to the length of the proceedings but it could not explain their overall duration. In conclusion she stressed that there had been a violation of Article 6 § 1. 20.", "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, Humen v. Poland [GC], no. 26614/95, 15 October 1999, § 60). 21. 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.", "22. As to the conduct of the applicant the Court notes that it is true that the applicant had modified her claim, and challenged the impartiality of judges sitting in the District Court, however it does not appear that this significantly prolonged the trial. 23. Considering the conduct of the authorities the Court observes that there were several periods of inactivity in the proceedings i.e. between 30 June 1997 and 21 January 1998, 17June 1998 and 16 December 1998, 7 April 1999 and 17 December 1999.", "There were also delays resulting from the slow process of obtaining evidence. 24. Consequently, having regard to the circumstances of the case and taking into account the overall duration of the proceedings, the Court finds that the “reasonable time” requirement laid down in Article 6 § 1 of the Convention was not complied with in the present case. 25. There has accordingly been a violation of Article 6 § 1 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 26. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 27. The applicant sought an award of 30,000 Polish zlotys in respect of non‑pecuniary damage that she had suffered as a result of the protracted length of the proceedings.", "28. The Government submitted that the applicant's claim was excessive. 29 The Court considers that the applicant certainly suffered non‑pecuniary damage, such as distress and frustration on account of the protracted length of the proceedings, which cannot sufficiently be compensated by finding a violation. Taking into account the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant a total sum of 4,500 euros (“EUR”) under that head. B.", "Costs and expenses 30. The applicant also claimed 20,180.49 Polish zlotys for costs and expenses incurred before the domestic courts and before the Court. This amount included 8,000 Polish zlotys in lawyer's fees for preparation and presentation of her case before the Court. 31. The Government invited the Court to make an award, if any, only in so far as the costs and expenses were actually and necessarily incurred and were reasonable as to quantum.", "They relied on the Zimmerman and Steiner v. Switzerland judgment of 13 July 1983 (Series A no. 66, p. 14, § 36). They further stressed that the applicant's representative joined the proceedings before the Court at a final stage, after the exchange of observations on admissibility and merits. 32. According to the Court's case-law, an applicant is entitled to reimbursement of the 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 rejects the claim for costs and expenses in the domestic proceedings and making its assessment on an equitable basis considers it reasonable to award the sum of EUR 500 for the proceedings before the Court. C. Default interest 33. 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 4,500 (four thousand five hundred euros) in respect of non-pecuniary damage and EUR 500 (five hundred euros) in respect of costs and expenses to be converted into Polish zlotys at the rate applicable at the date of the settlement, plus any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 21 September 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O'BoyleNicolas Bratza Registrar President" ]

[ "FIFTH SECTION CASE OF PEČENKO v. SLOVENIA (Application no. 6387/10) JUDGMENT This judgment was revised in accordance with Rule 80 of the Rules of Court in a judgment of 29 November 2016. STRASBOURG 4 December 2014 This judgment is final but it may be subject to editorial revision. In the case of Pečenko v. Slovenia, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Angelika Nußberger, President,Boštjan M. Zupančič,Vincent A. De Gaetano, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 13 November 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 6387/10) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Aleksander Pečenko (“the applicant”), on 22 January 2010. 2. The applicant was represented by Odvetniška družba Matoz o.p., d.o.o., a law office practicing in Koper. The Slovenian Government (“the Government”) were represented by their Agent, Mrs N. Pintar Gosenca, State Attorney.", "3. The applicant alleged, in particular, that the conditions of his detention in Ljubljana prison amounted to a violation of Articles 3 and 8 of the Convention, and that he had no effective remedy in this regard as required by Article 13 of the Convention. 4. On 30 August 2013 the Court decided to give notice of the application to the Government. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1942 and lives in Kamna Gorica. 6. The applicant served his prison sentence in the closed and semi-open sections of Ljubljana prison.", "7. In the period from 7 June 2009 to 31 August 2009 he was held in the closed section: for five days in cell 117, measuring 17.66 square metres (not including a separate 1.68 square metre sanitary facility) shared with three to five other inmates and with 2.66 to 3.99 square metres of personal space and for eighty-one days in cell 7 measuring 16.7 square metres (not including a separate 1.68 square metre sanitary facility). The Government submitted that in cell 7 the number of prisoners varied between three and five and when there were three prisoners therein the applicant had 5 square metres of personal space. 8. In the period between 1 September 2009 and 12 November 2009 he was held in the semi-open section in cell 137, measuring 17.94 square metres (not including a separate 1.75 square metre sanitary facility) shared with two to four other inmates and with 3.2 to 5.4 square metres of personal space and cell 136, measuring 18.44 square metres (not including a separate 1.78 square metre sanitary facility) shared with two to four other inmates and with 3.3 to 5.6 square metres of personal space.", "9. As regards the general characteristics of the cells in the closed and semi-open sections, material conditions inside the cells, sanitary conditions and health care, see the judgment in Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, §§ 21 to 32, 20 October 2011. 10. As to the out-of-cell time in the closed section, the Court found in the aforementioned judgment that sentenced prisoners in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities, most of which were to take place in the recreation room.", "There was, however, only one 50‑square-metre recreation room per floor, which was to be used by ten inmates at most (Štrucl and Others § 86). 11. As to the out-of-cell time in the semi-open section, the Government submitted that the cell doors in the semi-open section of the prison were unlocked, except from 9.45 p.m. (on Fridays, Saturdays and before holidays from midnight) until 6.00 a.m. (on Saturdays, Sundays and during holidays until 8.30 a.m.). During this time prisoners could move freely in the corridor (35.7 square metres), living quarters of co-prisoners or in the indoor or outdoor exercise areas, in accordance with prison rules. The Government contended that this regime had been in place for several years.", "12. As regards the cell temperature, the data provided by the Government showed that the average temperature in the cells in the late afternoon (5- 5.30 p.m.) in the second half of July and August 2009 had been approximately 28oC, exceeding 30oC on seven days. II. RELEVANT DOMESTIC LAW AND PRACTICE 13. For the relevant domestic law and practice as well as relevant international documents see Štrucl and Others, cited above, §§ 33-56.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 14. The applicant complained that the conditions of his detention in Ljubljana prison amounted to a violation of Article 3 of the Convention. In particular, he complained of severe overcrowding which had led to a lack of personal space, poor sanitary conditions and inadequate ventilation, as well as excessive restriction on out-of-cell time, high temperatures in the cells, inadequate health care and psychiatric support and exposure to violence from other inmates due to insufficient security. 15.", "He submitted that the situation amounted to a structural problem, and that this had been acknowledged by the domestic authorities. 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 1. Complaint relating to physical conditions of detention 16. As regards the part of the application about the semi-open section, in Jevšnik v. Slovenia, no. 5747/10, §§ 25 – 26, 9 January 2014 the Court found that the conditions in which the applicant was held in the semi-open section in Ljubljana prison, personal space (about 3.3 or 3.4 square metres) taken together with the time he could spend outside the cell (from Monday to Thursday fifteen hours and forty five minutes per day, on Fridays eighteen hours, on Saturdays fifteen hours and a half and on Sundays thirteen hours and fifteen minutes), could not be considered to be contrary to Article 3 of the Convention, as the restricted space in the sleeping facilities was compensated by the freedom of movement enjoyed by the applicant during the day-time.", "As regards the temperatures in cells in the summer of 2009, the Court found that although the applicant was imprisoned also in the second half of July and August 2009, his situation during that period could not be considered as being further exacerbated by high temperatures as he was held in the semi-open section and could therefore spent a considerable amount of time outside the cell. 17. In the present case, when the applicant was held in the semi-open section he had between 3.2 to 5.6 square metres of personal space and enjoyed the same out-of-cell time as the applicant in the case of Jevšnik v. Slovenia. As the conditions of the applicant’s detention in the semi-open section were similar to those of the applicant in the case of Jevšnik v. Slovenia, this part of the application should be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. 18.", "As regards the rest of the application, the Government, relying on the same arguments as in the case of Bizjak v. Slovenia (dec.), no. 25516/12, §§ 17-22, 8 July 2014, pleaded non-exhaustion of domestic remedies. They argued that the applicant had an effective remedy at his disposal, a claim for compensation under Article 179 of the Civil Code, which he had failed to use. 19. In the above mentioned decision of July 2014 the Court found the claim for compensation to be effective.", "However, at the time when the applicant lodged his application in January 2010 there was no effective domestic remedy available in respect of prison conditions (see Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, § 133, 20 October 2011). 20. The Court therefore dismisses the Government’s objection of non-exhaustion of domestic remedies. It further finds that this part of the complaint 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 should therefore be declared admissible. 2. Complaints relating to inadequate health care and psychiatric support and insufficient security measures 21. The parties in the present case adduced similar arguments as in Štrucl and Others, where the Court found the part of the application concerning inadequate health care, psychiatric support and insufficient security measures manifestly ill-founded (§§ 63-69). In the absence of any reasons that would lead the Court to reach a different conclusion in the present case, the Court finds these complaints to be manifestly ill-founded and therefore rejects them pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "B. Merits 22. The parties relied on the same arguments as in the case of Štrucl and Others (cited above, §§ 70-79). 23. The Court refers as regards the relevant principles to paragraphs 72‑76 of its judgment in the case of Mandić and Jović v. Slovenia, nos.", "5774/10 and 5985/10, 20 October 2011. 24. The Court notes that the applicant was held in the closed section of Ljubljana prison. In cell 117 he had between 2.66 and 3.99 sq. m of personal space.", "As regards cell 7, the Court rejects as unsubstantiated the Government’s suggestion that not all the beds therein were occupied all the time and that the applicant had even 5 square metres of personal space, as the Government did not provide any information indicating the exact number of days the applicant spent in that cell with two, three or four other detainees and therefore holds that the applicant had also in cell 7 less than 4 square metres of personal space. This space was further reduced by the furniture (see Modarca v. Moldova, no. 14437/05, § 63, 10 May 2007). 25. The Court has already found in Štrucl and Others a violation of Article 3 of the Convention as regards the conditions of the applicants’ detention, limited personal space in cells (2.7 square metres of personal space for most of their detention), limited out-of-cell time and high temperatures in the summer of 2009 (see Štrucl and Others v. Slovenia, §§ 85 – 87 and 89).", "26. In the present case when the applicant had less than 3 square metres of personal space his situation was similar to the one of the applicants in Štrucl and Others. Therefore, the Court finds that these conditions are contrary to Article 3 of the Convention. 27. It was found in Praznik that the personal space of the applicant, which was for most of the period of his detention in the closed section about 3.3 square metres, and which was slightly larger than the space available to the prisoners in Štrucl and Others, still fell short of the recommendation of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.", "It was further found that the applicant’s situation was exacerbated by the very limited time which could be spent outside the cell and by high temperatures in the cell in the summer (see Praznik, cited above, § 20). It was also found that the hardship he endured appeared to have exceeded the unavoidable level inherent in detention and that the resulting suffering went beyond the threshold of severity under Article 3 of the Convention (see, Praznik, cited above, § 21 and mutatis mutandis, Szél v. Hungary, no. 30221/06, § 18, 7 June 2011, and Peers v. Greece, no. 28524/95, § 75, ECHR 2001‑III). Therefore, it was concluded that the conditions of detention were contrary to Article 3 of the Convention.", "28. In the present case when the applicant had more than 3 square metres of personal space his situation was similar to the one of the applicant in Praznik. Therefore, the Court finds that these conditions are also contrary to Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 29.", "The applicant complained that his allegations in respect of Article 3 also gave rise to a violation of Article 8 of the Convention. 30. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 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.” 31. As already found in Praznik, the Court notes that in so far as the complaints under Article 8 overlap with those under Article 3 they should be for the same reasons and to the same extent declared admissible. However, in view of the applicant’s submissions and having regard to the finding relating to Article 3, the Court considers that no separate issue arises under Article 8 in this regard (see Orchowski v. Poland, no. 17885/04, § 198, ECHR 2009‑... (extracts)). III.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 32. The applicant complained that owing to the systemic nature of the inadequate prison conditions he did not have any effective remedy at his disposal as regards his complaints under Articles 3 and 8 of the Convention. In any event, there is no evidence that the remedies which were available in theory could work effectively in practice when it came to prison conditions and the treatment of prisoners. He cited 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 33. In so far as the applicant’s complaint under Article 13 of the Convention refers to the lack of effective remedies in respect of inadequate physical conditions of detention in the closed section, as already found by the Court in Štrucl and Others and Praznik, this aspect of the complaint is not 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. 34. As to the lack of effective remedies in respect of inadequate physical conditions of detention in the semi-open section of Ljubljana prison and in respect of the allegedly inadequate medical and psychological care and inadequate security measures, having declared the relevant issues under Articles 3 and 8 of the Convention inadmissible, the Court concludes that the applicant have no arguable claim for the purpose of Article 13 of the Convention (see Visloguzov v. Ukraine, no. 32362/02, §§ 74‑5, 20 May 2010). It follows that this aspect of the applicant’s complaint under Article 13 of the Convention should be rejected as manifestly ill‑founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "B. Merits 35. As regards the Government’s arguments see paragraph 18. 36. The Court notes that when the applicant lodged his application in January 2010 none of the remedies could have been regarded with a sufficient degree of certainty as constituting an effective remedy regarding prison conditions (see Štrucl and Others, §§ 118‑33).", "It found the claim for compensation to be effective in prison conditions cases only in its decision of July 2014, in the case of Bizjak, cited above. Since there appear to be no reasons to reach a different conclusion in the present case, the Court finds that there has been a violation of Article 13 of the Convention on account of the lack of an effective and accessible remedy under domestic law for the applicant’s complaints in respect of the conditions of his detention in the closed section. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 37. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 38. The applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage. 39. The Government contested the claim. 40.", "The Court awards the applicant EUR 2,200 in respect of non-pecuniary damage. B. Costs and expenses 41. The applicant also claimed EUR 1,520.00 for costs and expenses incurred before the Court. This sum consisted of EUR 1,500 in lawyer’s fees, which he claimed were calculated on the basis of statutory domestic rates, EUR 20 for material expenses and tax thereon.", "42. The Government argued that this claim was excessive. They also argued that the Court should take into account the fact that the applicant’s representative was representing a number of other applicants before the Court and had submitted almost identical pleadings in all these cases. 43. 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.", "With regard to an applicant’s Convention costs, the Court reiterates that it does not consider itself bound by domestic scales and practices, although it may derive some assistance from them (see, among many other authorities, Gaspari v. Slovenia, no. 21055/03, § 83, 21 July 2009, and Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94 and 24408/94, § 98, ECHR 1999-IV). In the present case, regard being had to the information in its possession and in particular the fact that the law firm representing the applicant has already been reimbursed in other cases for preparation of submissions almost identical to the present ones (see Mandić and Jović, cited above, §§ 133-35, Štrucl and Others, cited above, §§ 146-48 and Praznik, cited above §§ 38-40), the Court considers it reasonable to award the sum of EUR 500 to cover the costs of the proceedings before the Court. C. Default interest 44.", "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 physical conditions of detention in the closed section under Articles 3 and 8 of the Convention, as well as the complaint under Article 13 of the Convention relating to the complaint concerning the physical conditions of detention in the closed section, 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 is no need to examine the complaint concerning the physical conditions of detention under Article 8 of the Convention; 4.", "Holds that there has been a violation of Article 13 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts: (i) EUR 2,200 (two thousand two hundred 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; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 4 December 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsAngelika NußbergerRegistrarPresident" ]

[ "GRAND CHAMBER CASE OF RAMSAHAI AND OTHERS v. THE NETHERLANDS (Application no. 52391/99) JUDGMENT STRASBOURG 15 May 2007 In the case of Ramsahai and Others v. the Netherlands, The European Court of Human Rights, sitting as a Grand Chamber composed of: Jean-Paul Costa, President,Luzius Wildhaber,Christos Rozakis,Nicolas Bratza,Peer Lorenzen,Loukis Loucaides,Ireneu Cabral Barreto,Nina Vajić,Snejana Botoucharova,Antonella Mularoni,Stanislav Pavlovschi,Elisabet Fura-Sandström,Khanlar Hajiyev,Dean Spielmann,Danutė Jočienė,Dragoljub Popović, judges,Wilhelmina Thomassen, ad hoc judge,and Michael O’Boyle, Deputy Registrar, Having deliberated in private on 18 October 2006 and on 21 February 2007, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 52391/99) 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 three Netherlands nationals, Mr Renee Ghasuta Ramsahai, Mrs Mildred Viola Ramsahai and Mr Ricky Moravia Ghasuta Ramsahai (“the applicants”), on 8 September 1999. 2.", "The applicants were represented by Mr G.P. Hamer, a lawyer practising in Amsterdam. The Netherlands Government (“the Government”) were represented by their Agents, Mr R.A.A. Böcker and Mrs J. Schukking of the Netherlands Ministry of Foreign Affairs. 3.", "The applicants alleged, in particular, that the circumstances of the death of Mr Moravia Siddharta Ghasuta Ramsahai, grandson of the first two applicants and son of the third applicant, who was shot dead by a police officer, were constitutive of a violation of Article 2 of the Convention. They also alleged that the subsequent investigation proceedings had been insufficiently effective and independent. 4. The application was allocated to the Court’s Second Section (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. 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). Egbert Myjer, the judge elected in respect of the Netherlands, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Wilhelmina Thomassen to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1).", "6. By a decision of 3 March 2005, a Chamber of that Section declared the application admissible. 7. On 10 November 2005 the Chamber, composed of Boštjan M. Zupančič, President, John Hedigan, Lucius Caflisch, Margarita Tsatsa-Nikolovska, Vladimiro Zagrebelsky, Davíd Thór Björgvinsson, judges, and Wilhelmina Thomassen, ad hoc judge, and Vincent Berger, Section Registrar, delivered a judgment (“the Chamber judgment”) in which it held, by a majority, that there had been a violation of Article 2 of the Convention in respect of failings in the investigative procedures concerning the death of Moravia Ramsahai; unanimously, that there had been no violation of Article 2 of the Convention for the remainder; unanimously, that Article 6 of the Convention was not applicable; and unanimously, that there was no separate issue under Article 13 of the Convention. The partly dissenting opinion of Wilhelmina Thomassen and Vladimiro Zagrebelsky was annexed to that judgment.", "8. In a letter of 9 February 2006, the Government requested, in accordance with Article 43 of the Convention and Rule 73, that the case be referred to the Grand Chamber. A panel of the Grand Chamber accepted that request on 12 April 2006. 9. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.", "On 19 January 2007 Luzius Wildhaber’s term as President of the Court came to an end. Jean-Paul Costa succeeded him in that capacity and took over the presidency of the Grand Chamber in the present case (Rule 9 § 2). 10. The Government, but not the applicants, filed a memorial on the merits. The applicants referred to their submissions in the proceedings before the Chamber.", "11. A hearing took place in public in the Human Rights Building, Strasbourg, on 18 October 2006 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMrR.A.A. Böcker, Agent,MrM. Kuijer,MsT.", "Dopheide, Advisers; (b) for the applicantsMrG.P. Hamer,Counsel, MsM. Van Delft, Co-Counsel. The Court heard addresses by Mr Hamer, Mr Böcker and Mr Kuijer as well as their replies to questions put by judges. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 12. The first two applicants, Mr Renee Ghasuta Ramsahai and Mrs Mildred Viola Ramsahai, are the grandfather and grandmother of Mr Moravia Siddharta Ghasuta Ramsahai (“Moravia Ramsahai”), deceased. They were both born in 1938. They were their grandson’s guardians until he reached his majority at the age of 18. The third applicant, Mr Ricky Moravia Ghasuta Ramsahai, born in 1960, is the father of the late Moravia Ramsahai.", "13. Moravia Ramsahai was born on 6 December 1979. He died on 19 July 1998. A. The circumstances of the case 1.", "The circumstances surrounding Moravia Ramsahai’s death and subsequent events 14. On the evening of Sunday 19 July 1998, during the “Kwakoe” festival in the Bijlmermeer district of Amsterdam (a celebration by the Surinamese immigrant community of the abolition of slavery in Suriname 135 years earlier), Moravia Ramsahai forced the owner of a scooter, one Mr Vinodkumar Hoeseni, at gunpoint to give up his vehicle. Having gained control of the scooter, he then made off with it. 15. Mr Hoeseni notified two police officers patrolling on foot, who reported the theft to the duty police officer at Flierbosdreef police station by radio.", "The duty police officer in turn alerted police patrolling in the area. In the meantime Mr Hoeseni and the two police officers had set off in pursuit of Moravia Ramsahai and the scooter but failed to catch him. 16. Afterwards it was a matter of controversy between the two police officers and Mr Hoeseni whether Mr Hoeseni had mentioned the fact that Moravia Ramsahai had a firearm. Mr Hoeseni stated that he had given this information but had been misheard.", "The two police officers stated that they had been unaware of it and so had not been able to pass on this information to the police station. 17. Some five minutes later, two uniformed police officers, Officers Brons and Bultstra, patrolling in a marked police car, saw a scooter being driven by a person fitting the description given to them stopping near a high-rise building called “Huigenbos”. They stopped the car and got out. Officer Bultstra ran towards the person whom they had seen riding the scooter, later identified as Moravia Ramsahai, and tried to arrest him.", "There was a brief struggle from which Moravia Ramsahai was able to extricate himself. 18. Officer Bultstra saw Moravia Ramsahai draw a pistol from his trouser belt. Officer Bultstra then dropped a two-way radio which he had been holding in his hand, drew his service pistol and ordered Moravia Ramsahai to drop his weapon. Moravia Ramsahai failed to do so.", "Officer Brons, the driver of the patrol car, then approached. It was stated afterwards that Moravia Ramsahai raised his pistol and pointed it in the direction of Officer Brons, who also drew his service pistol and fired. Moravia Ramsahai was hit in the neck. 19. The confrontation between Moravia Ramsahai and Officers Brons and Bultstra was observed from nearby by only a single witness, Mr Petrus van den Heuvel, who was able to follow the incident from the fifth-floor walkway of the Huigenbos building.", "However, when he saw pistols being drawn, Mr Van den Heuvel dived for cover behind the parapet; he therefore did not see the shot fired. 20. Several other people witnessed the confrontation and the shooting from a distance of at least fifty metres. None of these witnesses subsequently reported seeing Moravia Ramsahai’s pistol. 21.", "At 10.03 p.m. one of the two police officers, later stated to have been Officer Brons, radioed Flierbosdreef police station to say that he had shot someone and asked for an ambulance to be sent. 22. When the ambulance arrived on the scene, at approximately 10.15 p.m., the ambulance crew declared Moravia Ramsahai already dead. 23. Upon his return to Flierbosdreef police station, Officer Brons was seen by the Commanding Officer of the Amsterdam/Amstelland police force, Police Commissioner Van Riessen, who offered comfort and support.", "Subsequently, the applicants alleged, Police Commissioner Van Riessen was quoted in the mass circulation daily newspaper De Telegraaf as having stated: “Whatever kind of committee of inquiry may be set up in addition, I will not let them in.” (“Wat voor een onderzoekscommissie er daarnaast ook wordt ingesteld, ze komen er bij mij niet in.”) 24. The Amsterdam coroner (lijkschouwer) viewed Moravia Ramsahai’s body before it was removed. In his report to the public prosecutor, he expressed the provisional opinion that the cause of death had been a shot from a firearm injuring vital neck organs or structures. 25. Officers Brons and Bultstra were back on duty a few days after the incident.", "2. Investigative measures by the Amsterdam/Amstelland police force 26. Local police arrived on the scene, cordoned off the scene of the shooting and took the names of Mr Van den Heuvel and others who had witnessed the confrontation. 27. Forensic experts from the Amsterdam/Amstelland police force secured evidence, mainly in the form of photographs, which was afterwards added to the investigation file.", "They found the bullet, which had passed through Moravia Ramsahai’s body and had destroyed a glass window but which had left no other mark, and Moravia Ramsahai’s pistol, which had been loaded and ready to fire. 28. Later that night a special operations unit (Mobiele Eenheid, “Mobile Unit”) of the Amsterdam/Amstelland police questioned all residents of the Huigenbos building whom they found at home. In one flat there was a 12‑year-old girl, Miss Sangeeta Edwina Pamela Mungra, who stated that when she had taken the lift down to the ground floor the door of the lift had struck a scooter lying on the floor. As she had got out of the lift she had heard a bang.", "She had seen two police officers and heard one of them say: “I fired my weapon.” She had seen a male victim lying on the ground. 29. Over the following days, officers of the Amsterdam/Amstelland police force took various witness statements, which are summarised below. (a) Mr Hoeseni 30. Mr Vinodkumar Hoeseni reported the theft of his scooter to the Amsterdam/Amstelland police on 19 July 1998.", "31. Mr Hoeseni had purchased the scooter earlier that week. On the night of 19 July he had ridden it to the Kwakoe festival where he had met his girlfriend. While he was with her, a youth unknown to him had come up to him and said: “Get off. Get off.", "I’ll shoot you, I’ll shoot you.” (“Deraf. Deraf. Ik schiet jou, ik schiet jou.”) Mr Hoeseni had felt something being pushed against his right side. Looking down, he had recognised the object as a lady’s pistol. He had been unwilling to give up the scooter but his girlfriend had advised him to do so lest he be shot.", "He had then let go of the scooter and run towards the first policemen he saw. 32. Mr Hoeseni had told one of them that his scooter had been stolen at gunpoint and that they should run after it. He had given a description of the scooter and the thief. Mr Hoeseni and the two police officers present had gone after the thief, but he had ridden off.", "33. Mr Hoeseni had later heard, on the police officers’ two-way radio, that the scooter had been found. Together with the police officers he had gone and identified it as his. (b) Ms Bhondoe 34. Ms Anita Andjiedewie Bhondoe, Mr Hoeseni’s girlfriend, was questioned on 19 July 1998.", "She had gone with her brother to the Kwakoe festival, where she had met Mr Hoeseni. Mr Hoeseni had just bought a new scooter. Ms Bhondoe’s brother had gone to fetch something to drink for the three of them. After about fifteen minutes she and Mr Hoeseni had been approached by a youth whom she had noticed looking at her and the scooter. The youth had said to Mr Hoeseni: “Get off, get off” (“Stap af, stap af”) and had pressed an object resembling a firearm against Mr Hoeseni’s stomach.", "She had thought at first that this was a friend of Mr Hoeseni’s playing a prank, but realised from the latter’s facial expression that this was not the case. 35. She had prevailed on her boyfriend to get off the scooter when the youth had said: “Get off, get off, or I will shoot” (“Ga eraf, ga eraf, anders ga ik schieten”). Mr Hoeseni had then run off to get help, whilst the youth bump-started the scooter and made off with it. Mr Hoeseni had returned with two police officers and the three of them had set off in pursuit of the youth on the scooter.", "Ms Bhondoe had joined them for a while but had been called back by her brother. Together they had run in the direction taken by the police officers. Arriving at the Huigenbos building, they had seen a large number of cars. Mr Hoeseni had told them that the youth had been caught and that the police had shot him. (c) Mr Van den Heuvel 36.", "Mr Petrus van den Heuvel was questioned on 19 July 1998. He stated that he lived on the fifth floor of the Huigenbos building. 37. Happening to look down from the walkway, he had seen a policeman run towards the doorway. He had seen a coloured man with a shaved head come out of the doorway.", "He had seen the policeman try to grab the coloured man by his arm. The coloured man had made a sideways movement with his arm, as if to indicate that he did not want to go along with the policeman, and the policeman had not been able to hold on to him. 38. The coloured man had then drawn a pistol or a revolver, whether out of his pocket or out of his trouser band Mr Van den Heuvel could not see. The weapon was of a silver-grey colour with a dark-coloured grip.", "Mr Van den Heuvel’s instinctive reaction had been to dive for cover behind the balustrade of the walkway. As he glanced over briefly out of curiosity, it had appeared to him that the policeman had taken a few steps sideways. The coloured man was still holding the weapon in his hand. He was not pointing it in any particular direction, but had not dropped it either. All this happened very quickly, perhaps in less than half a minute.", "39. In the meantime a second policeman had come running up. He had heard “Drop it” being shouted very loudly at least four times. The coloured man must have heard it, but ignored it. Mr Van den Heuvel did not remember seeing the second policeman standing still after he had reached the scene of events.", "He had heard a bang and seen the coloured man collapse. The weapon had fallen to the ground a few metres away. The first policeman had walked up to the coloured man to inspect him. The second policeman had spoken into some device or other, after which help had arrived. He had tried to call the police on his telephone, but had been told that help was on its way.", "He had stood and watched a little longer before going down and giving his name to the police as a witness. (d) Officer Dekker 40. Police Officer Bas Dekker was questioned on 20 July 1998. At around 10.05 p.m. the night before, he had been patrolling the Kwakoe festival with Officer Boonstra. 41.", "Officer Dekker had been addressed by a young man whom he did not know, who told him that he had been dragged off his scooter and that his scooter had been taken from him; this had happened less than a minute earlier. The young man had given him the scooter’s insurance papers and indicated the direction in which the thief had made off with the scooter. Officers Dekker and Boonstra, together with the young man, had run in the direction indicated by the latter. While running Officer Dekker had radioed through the description of the scooter to other police officers. At this point he had not been aware that the thief had used a weapon; the owner of the scooter had not mentioned it.", "Officer Dekker had assumed that the thief had used physical force only, the owner of the scooter having stated that he had been dragged off his vehicle. 42. The thief had managed to start the scooter as they caught sight of him. They had continued running but the scooter had been going too fast. Officer Dekker had radioed through his own description of the scooter and its rider, the possible directions in which they might have gone and the insurance plate number.", "They had continued running; upon reaching the pedestrian underpass Officer Dekker had heard, on his radio set, another policeman reporting a shooting and shortly afterwards calling an ambulance. Officer Dekker estimated that approximately one minute had elapsed from when he transmitted his description of the scooter until the report of the shooting, but he could not be sure. 43. As Officers Dekker and Boonstra stood wondering whether there was any connection between the shooting and the theft of the scooter, the owner of the scooter, who had apparently overheard the police radio, had told them that the thief had a small silver-coloured pistol. 44.", "Officers Dekker and Boonstra and the owner of the scooter had made their way to the scene of the shooting in front of the Huigenbos building. They had seen a person lying supine on the ground, with two uniformed police officers kneeling beside him. They had advanced and recognised the scooter. (e) Officer Braam 45. Police Officer Paulus Antonius Braam was questioned on 20 July 1998.", "His work consisted of, among other things, monitoring and dealing with two-way radio traffic. 46. On 19 July 1998 at 9.55 p.m. Officer Braam had been sitting at his plotting table when he had heard a report come in by two-way radio from a surveillance police officer to say that he was following a youth who had just stolen a scooter. A little later the officer had radioed in to say that the thief had managed to bump-start the scooter, and to give an indication of the direction in which the thief had gone.", "The officer had sounded unemotional, as if it were nothing more than an “ordinary” theft of a scooter. 47. As the officer was on foot, he had requested the assistance of a motorised colleague. In so doing he had given a description of the scooter. Officer Braam had asked a colleague on a motorcycle to go in the direction indicated.", "48. As the motorcycle policeman had been about to leave the police station forecourt, Officer Braam had heard Officer Bultstra from his marked police car report that he had seen the scooter with the thief enter the doorway leading to the third lift of the Huigenbos building and would go after him. Officer Bultstra too had sounded unemotional. 49. Four or five minutes later, perhaps less, Officer Braam had heard Officer Bultstra saying: “The suspect has been shot, I need an ambulance.” Again, Officer Bultstra had sounded calm and professional.", "Officer Braam had then called for the appropriate services. 50. Officer Braam had not heard Officer Brons take part in the radio conversation. This reflected standard practice, namely that the driver of a police car – in this case Officer Brons – had his two-way radio set to the frequency of the central incident room, whereas the “passenger” – Officer Bultstra – had his radio set to the frequency used by the local team. (f) Officer Van Daal 51.", "Police Officer Renate Quirina van Daal was questioned on 20 July 1998. 52. Officer Van Daal was a uniformed police officer on the basic police assistance staff. The previous night she had been seated at the plotting table from 8.15 p.m. until midnight. Until the shooting it had been a quiet night.", "She had sat there with Officer Braam and Superintendent Casper Sikking. 53. At around 10 p.m. she had heard, on the radio frequency used by the district police, that a police officer was chasing a scooter, and also which direction the scooter had taken. She did not remember the precise words used, nor any description given of the rider. 54.", "Shortly afterwards she had heard the voice of Officer Bultstra, reporting the sighting of the scooter. A second or two later Officer Bultstra had reported seeing the scooter in one of the doorways of the Huigenbos building. 55. Superintendent Sikking had called by radio: “All right boys, everyone go to Huigenbos” (“Jongens met z’n allen naar Huigenbos”). 56.", "Very shortly afterwards Officer Bultstra had said: “I need an ambulance, I fired my weapon” (“Ik heb geschoten”). Superintendent Sikking had asked him to repeat that. Officer Bultstra had repeated: “I fired my weapon.” Most of the police officers present had then gone out and Officers Van Daal and Braam had contacted the appropriate emergency services. 57. Officer Van Daal had later heard Officer Brons say that the ambulance was needed urgently because the suspect was in a very bad way.", "58. It was only later that Officer Van Daal had been informed by other police officers that it was in fact Officer Brons who had fired the shot. (g) Officer Van Dongen 59. Police Officer Bruin Jan van Dongen was questioned on 20 July 1998. He was a police-dog handler whose duty station was Flierbosdreef police station.", "He had been on duty the previous night, with his police dog. 60. He had heard, on his two-way radio, that a scooter had been stolen at the Kwakoe festival. The direction in which the thief had driven off was given. The description was of a coloured male, dressed in black, riding a red scooter.", "Officer Van Dongen had gone in the direction indicated. 61. Officer Van Dongen’s car was passed by a marked police car in which there were two police officers. He had recognised the driver, Officer Brons, but not the passenger. He had seen the car being parked and the passenger emerge.", "62. Officer Van Dongen had also parked his car, intending to look for the thief if he could. He had been getting the police dog out when he had heard a pistol shot. 63. He had run with the dog in the direction from which the sound of the shot had come.", "Having reached the Huigenbos building, he had met Officer Brons coming towards him. He had seen Officer Bultstra kneeling near the head of a man who was lying flat on the ground. 64. He had asked Officer Brons what had happened. Officer Brons had replied that a shot had been fired.", "Officer Van Dongen had asked who had fired the shot. Officer Brons had replied that a pistol had been aimed at them and the police had fired. 65. Officer Brons had pointed out a silver-coloured pistol lying on the ground close to the man. Officer Bultstra had been administering first aid.", "Officer Van Dongen had not been able to see any injury. He had had to keep his distance from the man because of the dog. 66. The man on the ground fitted the description given of the person who had stolen the scooter. There had been a red scooter in the doorway of the building and so Officer Van Dongen had understood that this was the person suspected of having committed the theft.", "67. Officer Van Dongen had heard Officer Brons notify the local health authority and the police superintendent on duty. Officer Van Dongen had guarded the area until the arrival of the criminal investigators (recherche) and the forensic experts. He had stayed on the scene until they had finished and had returned to the police station at midnight. (h) Officer Boonstra 68.", "Police Officer Klaas Boonstra was questioned on 20 July 1998. He had been assigned, together with Police Officer Bas Dekker, to patrol the Kwakoe festival, their task being to observe and to maintain a preventive presence. At some point, a Hindustani[1] male had come running up to them and had beckoned them to follow him. Because the Hindustani had given the impression that something was the matter, they had followed him. While running he had told Officer Dekker what the matter was.", "Officer Boonstra had been following at a distance of about ten metres. 69. Officer Boonstra had heard on his two-way radio that a scooter had been stolen. It had not been immediately clear to him that the scooter belonged to the Hindustani. 70.", "At one point they had seen the scooter thirty metres ahead of them, being ridden slowly. Officer Dekker had told Officer Boonstra that that was the scooter which had been stolen. The person riding the scooter had noticed the police officers but instead of stopping, had increased his speed. While moving in the direction of the Huigenbos building, they had heard it reported on the two-way radio that there had been a shooting. They had not immediately linked the shooting to the stealing of the scooter.", "Still accompanied by the Hindustani, they had continued in the direction of the Huigenbos building, where they had noticed three or four police cars. The Hindustani had recognised his scooter. (i) Ms Boujedaine 71. Ms Najima Boujedaine was questioned on 21 July 1998. She worked as chief cashier at a Burger King restaurant located on the Leidseplein in Amsterdam.", "On 19 July 1998 she had been on the night shift, from 6.30 p.m. until 5 a.m. the following day. 72. Ms Boujedaine had noticed the presence of a particular youth from 6.30 p.m. onwards. She described him as being of Surinamese or Antillean descent, 18 years old, bald-headed with two golden teeth, dressed in a black tee shirt and trousers and black shoes and wearing a golden chain around his neck. From 7.30 p.m. onwards she had noticed him distracting one of the cashiers, a young woman called Nancy.", "73. Taken to task for failing to concentrate on her work, Nancy had explained to Ms Boujedaine that the youth was her boyfriend. The youth had reacted angrily, telling Ms Boujedaine to go easy on Nancy or else. 74. After telling Nancy, jokingly, that she might have to stay a little longer, Ms Boujedaine had seen the youth staring at her fixedly.", "This had frightened her, but she had not wished to show fear. Just before she had turned around to pour a soft drink she had seen his right hand move towards the band of his trousers. 75. Ms Boujedaine’s sister Mimount (or Mimout), who also worked at that restaurant, had then said: “Najima, he was pointing a pistol at you!” Ms Boujedaine had turned around and seen the youth stick something down the band of his trousers. Mimount had later described the pistol as a small silver-grey model known as a “ladykiller”.", "76. A Surinamese girl had then asked the youth a question in her own language and he had replied. She had then told Ms Boujedaine that she had asked the youth whether he was carrying a pistol, to which he had replied in the affirmative. 77. The youth had looked as though he might have been smoking cannabis, but Ms Boujedaine could not be sure of that.", "78. He had continued to bother Nancy in her work. He had left several times and come back. At one point he had returned on a brand new silver-grey scooter. 79.", "The youth had struck up a conversation with Ms Boujedaine in which he had indicated that he wanted to clear out the safe after closing time; he wanted her to give him the codes for the safe. In the course of this conversation he had been eyeing the drawers of the cash registers. 80. Several times he had repeated that it was already 9 p.m. and Ms Boujedaine should close Nancy’s cash register. 81.", "Ms Boujedaine had felt uncomfortable and frightened, particularly after the youth had indicated his intention “to wring the manager’s neck”. 82. The youth had become angry again at 9 p.m., when Ms Boujedaine had terminated the conversation. Ms Boujedaine had then locked up Nancy’s cash register and secured the tray. She had seen him and Nancy leave at around 9.30 p.m., on the scooter on which he had arrived earlier.", "(j) Mr De Getrouwe 83. Mr Ronald de Getrouwe had come forward after hearing of the shooting at the Huigenbos building. He was questioned on 22 July 1998. He wished to report having been threatened. 84.", "On Sunday 19 July 1998 at 8.15 p.m. he had been at the Kwakoe festival site with his wife and some friends. There had been a group of youths behind them, one of whom had been seated on a scooter or moped (bromfiets). Mr De Getrouwe described the vehicle as having a blue fairing. At one point the youth had started the engine and repeatedly opened the throttle, releasing large quantities of exhaust fumes. This had given rise to complaints from Mr De Getrouwe’s group.", "Mr De Getrouwe himself had then gone up to the youth and asked him either to ride off or to turn off his engine, because he was poisoning everyone with his noxious fumes. The youth had turned off the engine and approached Mr De Getrouwe, saying: “You’re smoking [a cigarette], you’re going to die too.” Mr De Getrouwe had thought that the youth wanted to discuss the matter like a reasonable person. Instead, the youth had taken a small metal-coloured pistol out of his right-hand trouser pocket and said: “Nobody’s going to tell me what to do. I do as I please, we’re all going to die anyway.” 85. Mr De Getrouwe’s wife, greatly upset by the sight of the pistol, had pulled him away.", "The youth had got back onto the scooter. 86. None of the bystanders, who had been numerous, had offered any assistance. They had clearly been deterred by the sight of the pistol. (k) Mr Bhondoe 87.", "Mr Sanchaai Kumar Bhondoe, the brother of Mr Hoeseni’s girlfriend, was questioned on 22 July 1998. 88. On Sunday 19 July 1998, between 8.30 p.m. and 10 p.m., he had been at the Kwakoe festival in the company of his sister and Mr Hoeseni. He had left them to fetch something to drink for the three of them. He had heard shouting, and he had seen Mr Hoeseni run towards some police officers present.", "He had run after Mr Hoeseni and asked him what the matter was. Mr Hoeseni had answered that he would tell him later. He had found his sister in tears and asked her what had happened. She had told him how Mr Hoeseni had been forced at gunpoint to hand over his scooter. 3.", "The investigation by Detective Chief Superintendent Van Duijvenvoorde of the National Police Internal Investigations Department 89. Detective Chief Superintendent of the National Police Internal Investigations Department (hoofdinspecteur van politie-rijksrecherche) Van Duijvenvoorde was put in charge of the investigation. His investigation report states that after 1.30 p.m. on 20 July 1998 the Amsterdam/Amstelland police force only carried out investigations “in the periphery” of Moravia Ramsahai at the request of the National Police Internal Investigations Department. He reported his findings to Public Prosecutor De Vries, who was the public prosecutor in charge of criminal investigation work carried out at Flierbosdreef police station. 90.", "Detective Chief Superintendent Van Duijvenvoorde took statements from a number of witnesses, including some already questioned by officers of the Amsterdam/Amstelland police. These are summarised below. (a) Mr Van den Heuvel 91. Mr Petrus van den Heuvel was questioned a second time on 21 July 1998, this time by Detective Chief Superintendent Van Duijvenvoorde. 92.", "Supplementing his earlier statement, Mr Van den Heuvel described what he had seen from the fifth-floor walkway of the high-rise building. He had seen a uniformed police officer running towards the doorway. He had seen a coloured male go to meet the policeman from the doorway. This man had been walking very slowly, at a snail’s pace. The police officer had wanted to grab hold of the man, by his left arm, as it appeared to Mr Van den Heuvel.", "The coloured man had made a gesture as if to push away the police officer. He had hit the police officer, knocking him off balance somewhat, which enabled the coloured man to pass. 93. After he had passed the police officer, the coloured man had drawn a pistol or a revolver, a firearm at any rate, which he had held in his right hand. He had held his arm slanted downwards, thus pointing the pistol towards the ground, and had tried to continue on his way.", "Mr Van den Heuvel had not seen the police officers draw their pistols. Feeling threatened by the pistol which the coloured man had drawn and not wishing to be hit by a stray bullet, he had dived for cover. He had therefore not witnessed the actual shooting, but he had heard shouts of “Drop it” several times. (b) Officer Brons 94. Officer Brons, by then under investigation as a suspected perpetrator of a criminal act, was questioned under caution by Detective Chief Superintendent Van Duijvenvoorde in the afternoon of 22 July 1998.", "The lawyer retained for him and Officer Bultstra, Mr Van Kleef, was present. 95. Officers Brons and Bultstra had completed some assignments and had been on their way back to the police station. They were in a marked police car, with Officer Brons driving. They had then received the radio call about the theft of the scooter.", "They had been told the make of the scooter and its colour and had been given a summary description of the thief and the direction in which he had fled. They had not been told that he was armed. 96. Driving in the direction reported, Officers Brons and Bultstra had seen a scooter and a driver fitting the description given to them turning into the doorway of a lift in the Huigenbos block of flats. This had surprised them, because they would have expected him to try and evade arrest on noticing that he was being followed by a marked police car.", "97. Officers Brons and Bultstra had agreed that Officer Bultstra would go after the thief while Officer Brons parked the car. Officer Bultstra had run towards the doorway holding a two-way radio. When Officer Bultstra was at a distance of between twenty and twenty-five metres from the doorway, the thief had emerged and run for a short distance. He had stopped and raised his hands when he had seen Officer Bultstra and shouted something unintelligible.", "Officer Bultstra had taken hold of the thief with both hands and had tried to turn him towards the building. The thief, however, had resisted. Officer Bultstra had shouted something to him which Officer Brons had been unable to understand. 98. Officer Brons had understood that the thief would not come quietly and that Officer Bultstra needed help; he had therefore left the car and run towards them.", "He had reached a point about five or seven metres from the thief when the thief managed to tear himself loose and ended up at a distance of about three metres from Officer Bultstra. Suddenly Officer Brons had seen the thief holding a silver-coloured weapon which he had not seen him draw. It was a small pistol and it was pointed towards the ground. Officer Brons had not seen whether or not the pistol was cocked. It had seemed to him that Officer Bultstra had also seen the pistol, because Officer Bultstra had stepped backwards, drawing his service pistol and adopting a defensive posture.", "He had heard Officer Bultstra shouting “Drop that weapon. Don’t be silly, man” (“Laat vallen dat wapen. Doe nou normaal man”) at least twice. 99. The thief had not reacted by dropping his pistol, much to the surprise of Officer Brons seeing that Officer Bultstra had him covered.", "Given that the thief was armed and apparently had no intention of doing as he was told, Officer Brons had considered that Officer Bultstra was under threat. He had considered it highly possible that the thief would use his weapon against Officer Bultstra. He had been completely focused on the thief. He had seen only the thief, holding a pistol with his finger on the trigger. At that point Officer Brons had not yet considered it necessary to draw his own service pistol because the thief was covered by Officer Bultstra.", "His hand had been close to, but not on, the holster. 100. Officer Brons had then seen the thief turn to the right, towards him, and turn the front of his body in his direction at a distance of five to seven metres. He had seen the thief raise his pistol and point it in his direction. Afraid that the thief would fire at him, Officer Brons had drawn his pistol from its holster with lightning speed (bliksemsnel) and had immediately fired one shot at the thief.", "He had had no time to aim at any particular part of the body. He remained convinced that if he had not fired first, the thief would have shot him. 101. Officer Brons had thought at the time that he had hit the thief high in the chest. Only later had he learned that he had hit the thief in the neck.", "The thief had remained on his feet for a short while longer; he had then tottered and collapsed, dropping the pistol. He had tried to stand up, milling his arms about. Officer Brons had pushed the thief’s pistol away with his foot to prevent him from grabbing it. 102. Officer Bultstra had approached the man as he lay on the ground.", "Seeing that the thief was no longer a threat, he had put his pistol away. 103. Officer Brons had contacted the police station by two-way radio and had asked for the intervention of the local health authority (Gemeentelijke Geneeskundige en Gezondheidsdienst). Feeling that they were taking a long time to arrive, he had again called the police station and asked them to hurry up. 104.", "Officer Bultstra had concerned himself with the victim. As for Officer Brons, he had removed himself from the scene. He had seen a man trying to enter the doorway and had asked him not to do so because the area had to be cordoned off for investigation. 105. Officers Brons and Bultstra had been taken back to the police station by a fellow officer.", "Officer Brons had handed in his pistol there. Officers Brons and Bultstra had received assistance and comfort from fellow officers and superiors and had been informed about the further procedure. 106. Officer Brons had only fired once. It had never been his intention to shoot to kill but only to end the life-threatening situation.", "He felt that he had had no choice. He greatly regretted that the thief had died. (c) Officer Bultstra 107. Like Officer Brons, Officer Bultstra was interviewed by Detective Chief Superintendent Van Duijvenvoorde on 22 July 1998 in the presence of the lawyer Mr Van Kleef. 108.", "He and Officer Brons had been on their way back to Flierbosdreef police station after completing an assignment when they had received word by two-way radio that another policeman was pursuing on foot a thief who had just stolen a scooter. They had heard the description of the scooter and the thief, and the direction the thief had taken. It had not been mentioned that the thief was armed. They had then gone to intercept the thief. 109.", "Seeing a person and a vehicle matching the description given travelling towards a particular high-rise building, they had decided to park the car and arrest him. They had agreed that Officer Bultstra would leave the car immediately and pursue the man, after which Officer Brons would lock up the car and join Officer Bultstra. 110. Officer Bultstra had seen the man on the scooter ride into the doorway of the building. Having got within twenty metres of the building, Officer Bultstra had seen the man come running out of the doorway.", "Seeing Officer Bultstra, the man had called: “So what’s the matter then? What’s the matter then?” (“En wat nou? En wat nou?”). His arms had been dangling next to his body. He had raised them slightly when asking that question.", "Officer Bultstra and the man had approached each other. The man had glanced to the right and left, apparently looking for a way to evade capture. His preference appeared to be for an underpass through the building, so Officer Bultstra had gone to head him off. His intention had been to grab the man and arrest him. 111.", "Officer Bultstra had grabbed the man by his left arm and pushed him bodily against the building. He had had the impression that the man was aggressive because of his posture and his way of talking, and that he appeared intent on resisting arrest. He had managed to tear himself loose and turn around. He had then taken two steps backwards, towards the doorway. His hands had been close to his body and his body had been angled forwards, his posture threatening.", "112. The man had then brought his right hand towards the left of his chest or his belly, as a person would who was about to draw a firearm from there. He had looked Officer Bultstra straight in the eye and said: “So what’s the matter then?” (“En wat nou?”). Officer Bultstra had not seen him stick his hand inside his clothing. Seeing the gesture, Officer Bultstra had thought that the man was acting like someone who was about to draw a weapon.", "His common sense had told him to be on his guard. He had stepped backwards and placed his right hand on his service pistol, releasing the holster clip at the same time. He had not drawn his service pistol but had positioned himself so as to be able to do so immediately. Pointing to the man with his left hand, he had called out: “Show me your hands. Don’t be silly” (“Laat je handen zien.", "Doe normaal”). The man had then dropped his hand and resumed his earlier posture, his arms dangling next to his body. He had said: “So what is it then? What is it then?” (“En wat dan? En wat dan?”) and had walked away from Officer Bultstra.", "His body had still been angled towards Officer Bultstra and his eyes still directed towards him. Officer Bultstra had remained in the same position. 113. The man had again brought his right hand towards his body, to the same place as before, and had taken hold of something. Officer Bultstra had not been able to see what it was.", "After the man had moved his hand some distance away from his body, Officer Bultstra had seen that he was holding a small silver-coloured pistol in his fist. 114. The situation was now so threatening that Officer Bultstra had drawn his service pistol to protect himself. In view of the man’s behaviour he was afraid that the man might fire. Officer Bultstra had taken hold of his service weapon in both hands and, adopting a defensive position, had aimed at the man’s chest.", "He remembered shouting “Drop it” (“Laat vallen”) several times. He might have shouted other things, but he did not remember having shouted anything other than “Don’t be silly. Drop it” (“Doe normaal. Laat vallen”). He had seen the man lower the hand holding the pistol alongside his body, so that the barrel was pointing towards the ground.", "The man had kept the front of his body turned towards Officer Bultstra, his legs slightly apart and his arms out – that is, not hanging limp – and he had kept moving his hands so that the pistol also kept changing direction. The barrel had however been kept aimed at the ground. Officer Bultstra described the man’s posture as that of a cowboy who could start shooting at any moment. He had felt threatened to the point where he had decided to fire should the man point his pistol at him. 115.", "As far as he could recall, this situation had lasted for about four seconds, during which time he had called out to the man twice to drop his pistol. The man had not done so. Things had happened very quickly; he estimated that the time from the moment he grabbed the man until the fatal shot had been no more than fifteen or twenty seconds. 116. Officer Bultstra had seen the man suddenly react to something.", "Still in his cowboy-like position the man had made a quarter turn to the left. Officer Bultstra could not remember how long this had taken but the time involved had been very short. The man had raised his right arm with the pistol somewhat, in a manner in which he had not yet acted. This had caused Officer Bultstra to think: “Now I will shoot.” Since the man was raising his hand and arm, Officer Bultstra was convinced that he was about to shoot; he had been building up tension in his right hand to pull the trigger of his service pistol when he had heard, on his right, a loud report that he had recognised as a pistol shot. He had immediately thought: “[Officer Brons] has got him.” Officer Bultstra had felt so threatened that he would have fired if Officer Brons had not done so.", "117. Officer Bultstra had seen immediately that the man had been hit. The man had moved his upper torso somewhat. His knees had then buckled and he had fallen to the ground. He had dropped his pistol in falling.", "He had tried, unsuccessfully, to get up. Officers Brons and Bultstra had approached the man from two sides while still keeping him covered. Having reached the man, Officer Bultstra had put up his service pistol and grabbed the man by his shoulder. He had wished to prevent the man from getting up and possibly picking up the pistol. He had been sitting next to the man.", "The man had been lying with his back against Officer Bultstra’s knees. At that point Officer Bultstra had seen Officer Brons approaching from his right. He could not remember if Officer Brons had still had his service pistol in his hand. Officer Brons had pushed the man’s pistol away with his foot so that the man could not reach it. 118.", "Using his two-way radio, Officer Brons had radioed the police station to ask for urgent assistance from the local health authority. Officers Brons and Bultstra had left the scene of the incident as it was until other police officers arrived. Officer Bultstra had, however, loosened the man’s clothing to see where he had been hit. He had been hit in the neck and his shirt was saturated with blood. Officer Bultstra had tried to get him to give his name, but had received no answer.", "The man had gargled. He had been beyond help. He had died quickly. 119. After the other police officers had arrived, Officers Brons and Bultstra had been taken back to Flierbosdreef police station where they stayed for some time, estimated by Officer Bultstra as three hours.", "Officer Brons had been required to hand in his service weapon. They had had talks with a number of fellow police officers, including Police Commissioner Van Riessen, the district chief of police (districtschef) and the self-help team (zelfhulpteam). 120. Officer Bultstra stated that the man himself had been in control of events (zelf het scenario heeft bepaald). He had had every opportunity not to draw his weapon, or to drop it after doing so.", "Officer Bultstra had shouted warnings to him repeatedly. He had not responded. Instead, he had stood in front of Officer Bultstra in a threatening posture with a pistol ready for immediate use. Officer Bultstra had had no other option but to draw his service weapon to protect himself. The situation had been so threatening that Officer Bultstra would have fired himself to put the man out of action, thus eliminating the danger to himself and possibly others.", "As it was, that had proved unnecessary because Officer Brons had fired first. (d) Ms Rijssel 121. Ms Henna Emelita Rijssel, questioned on 24 July 1998, was a social worker living in Amsterdam. 122. On 19 July at around 10 p.m. she and her daughter, Ms Syreeta Michelle Lieveld, had been walking home from the festival.", "In an underpass they had had to make way for a scooter driven by a person whom she described as a Negroid youth without a crash helmet. They had seen him proceed on his way and then turn towards one of the doorways of a high-rise building. They had observed that he was driving unusually slowly but had paid no further attention. They had, however, seen the youth come out of the doorway and noticed the scooter inside. Although some distance away, they had had a good view; it had not been dark yet.", "123. They had seen the youth come out of the doorway and had seen a policeman run towards him. They had then noticed a police car which they had not seen or heard until then. 124. They had seen the youth holding his right hand inside his jacket or shirt.", "The hand had been on his stomach, just above his trouser band. They had decided to move closer because something was obviously happening. 125. Ms Rijssel had seen the youth walk towards the policeman. She had seen him raising his arms in a non-verbal “What do you want?” gesture.", "She had heard no words spoken. The policeman had grabbed hold of the youth’s arm and forced it behind his back. She had had the impression that the youth was being arrested. She had seen the policeman trying to push the youth with his face towards the wall. The youth, however, had torn himself loose.", "126. She had then seen the youth again putting his hand inside his shirt, in the same gesture she had witnessed before. She had not seen him pull anything out; she had not at any time seen the youth draw a firearm. 127. The policeman had stayed where he was and had not moved closer to the youth.", "The youth had stepped sideways. Ms Rijssel had not seen the policeman draw his firearm. 128. Another policeman had come running up. He had stood still at a distance of about six metres.", "The youth had still had his hand inside his shirt near his trouser belt. She had then seen the second police officer draw his pistol and aim it at the youth. She had heard a shout of “Put it down” (“Leg neer”), once, which in her opinion had come from the police officer who was keeping the youth covered. This had happened after the policeman had drawn his pistol on the youth. Immediately after the shout of “Put it down” she had heard one shot fired.", "The youth had collapsed immediately. 129. Ms Rijssel stated categorically that she had not at any time seen the youth aim a pistol or anything similar at the policeman. She remembered the youth holding his hand inside his shirt, close to his trouser belt. She was sure of that, despite the speed with which events had unfolded.", "130. Immediately after the shot had been fired she had run towards the place where the youth had collapsed. She had shouted to the policemen: “I saw what you did. That’s a human being” (“Ik heb gezien wat jullie hebben gedaan. Het is een mensenkind”).", "131. The policeman had felt the youth’s pulse. The youth’s arm had fallen limp. 132. More police officers had arrived, including one on a motorcycle who had asked her to make a statement.", "She had refused because she did not wish to make a statement that could be used against the youth and because her words could be misinterpreted. She had told two police officers, a man and a woman, who were cordoning the area off, that they did not need to rope off such a wide area. One of the police officers had accused her of trying to stir up trouble and had told her that she did not know what had caused the incident. She had replied that she was not aware of the cause of the incident but did know what had happened, and had asked if the police were not supposed to fire a warning shot before firing at a person. She might well have said more than that in her emotional state.", "133. On 20 July 1998 Ms Rijssel had returned to the place where the youth had been shot to leave some flowers. She had met the youth’s family there and spoken with them. They had told her that they had retained the lawyer Mr Hamer and she had given them her telephone number. She had later been contacted by Mr Hamer, who had asked her to make a statement to Chief Superintendent Van Duijvenvoorde.", "(e) Ms Lieveld 134. Ms Syreeta Michelle Lieveld, questioned on 24 July 1998, was a schoolgirl born in 1983 and the daughter of Ms Rijssel. The pair of them had been walking home from the Kwakoe festival on the evening of 19 July 1998 at around 10 p.m. While walking through a pedestrian underpass they had been passed by a youth on a scooter. The youth had been dressed in black.", "He was dark-skinned, but not completely black. He had worn his hair flat. He had not been wearing a crash helmet. Ms Lieveld could not describe the scooter. 135.", "The youth had run the scooter off the path and across the grass towards the Huigenbos building. Ms Lieveld had not seen him ride the scooter into the doorway. 136. Ms Lieveld’s mother had then said: “Look, the police are here.” Ms Lieveld had seen a police officer standing in front of the building, close by the youth. She and her mother had then gone towards them.", "Ms Lieveld had seen the police officer trying to arrest the youth, grabbing hold of him and pushing his face against the wall. The youth, however, had torn himself loose. He had made a gesture with his arms as if to say: “What do you want with me?” 137. The youth had moved one of his hands, Ms Lieveld could not remember which, towards his trouser band. It had seemed as though he had a pistol there, but she had been sure it was a bluff.", "138. A second police officer had come running. Ms Lieveld had heard “Drop it” shouted; she remembered hearing it once. She had seen the two police officers with drawn service pistols. She had seen the first police officer, the one who had tried to arrest the youth, with his pistol drawn but she had not seen him point it at the youth.", "She had not seen the youth with a pistol or anything like that. 139. The other police officer had also had his service pistol in his hand. He had aimed at the youth. She thought that the shot had been fired immediately after the shout of “Drop it”.", "After the shot the youth had turned around some way and collapsed. She had seen him drop something; she thought it had been a mobile telephone. Later, having come closer to the scene of events, she had seen a mobile telephone lying near the youth; she assumed that the youth had dropped it. 140. Ms Lieveld could not give an estimate of how far it had been from where she stood to the place where the youth had collapsed, but it had been some distance.", "Things had happened very quickly, as if in a flash. 141. The official record states that the witness made her statement in the presence of her mother in view of her emotional state. (f) Mr Van Rij 142. Mr Merlijn van Rij, questioned on 24 July 1998, was a schoolboy born in 1982 and resident in the Huigenbos building.", "143. On 19 July 1998 at around 10 p.m. he had been at home with his father, in the lounge of their first-floor apartment. It had been a warm night and the windows had been open. 144. At some point he had heard someone shout “Stand still” once.", "No more than a second after that, he had heard a bang from the direction of the doorway which had sounded like a pistol shot. In view of the shout of “Stand still”, which was unlikely to have come from a criminal, he had concluded that the shot had been fired by police. He had wanted to go and watch, but his mother had not let him because she considered it in bad taste to take an interest in other people’s misfortune. Later that night his father had gone to take the dog out; he had seen lots of police and someone lying underneath a sheet. (g) Mr Oostburg 145.", "Mr Matthew Jiri Oostburg, questioned on 24 July 1998, was a schoolboy born in 1983. 146. On 19 July 1998 at around 10 p.m. he and his father had been walking from the Kwakoe festival towards the Huigenbos building, where his father’s girlfriend lived. They had noticed the presence of police on motorcycles, apparently looking for something or someone. 147.", "Just before entering a pedestrian underpass, they had heard a sound identified by Mr Oostburg’s father as a pistol shot. It came from the direction of the Huigenbos building. They had seen police going towards the Huigenbos building but had been too far away to see what was happening. 148. On the way towards the building they had been stopped by police who were cordoning off the area.", "149. Having entered the building through a different entrance, they had gone to the first floor and Mr Oostburg had looked down. He had seen a coloured youth with a bald head lying motionless in front of the entrance to the doorway. He had seen a small shiny pistol lying by the youth’s feet. He had heard others say that they had initially thought that the youth had taken out a mobile telephone and that the police had fired mistaking it for a pistol.", "But it had definitely been a pistol. 150. Mr Oostburg and others had assumed that the youth had drawn a pistol and aimed it at the police and that the police had fired for that reason. 151. He had later seen the emergency services arrive.", "It had been apparent that the youth was dead because they had covered him with a white sheet. (h) Officer Boonstra 152. Police Officer Boonstra was interviewed by Detective Chief Superintendent Van Duijvenvoorde on 27 July 1998. 153. He stated that he and his colleague Police Officer Dekker had been unaware of the fact that Moravia Ramsahai was armed.", "He and Officer Dekker had been approached by a coloured youth, who had asked them to follow him and had run on. Since he and Officer Dekker had not immediately run after him, the youth had turned around and gestured to them to follow him. This had led them to assume that there was something the matter and they had followed. It had been Officer Dekker, who had been closer to the youth than Officer Boonstra, who had spoken with him. It had also been Officer Dekker who had radioed through the licence plate number and possibly the colour of the scooter as well as the police officers’ precise location and the direction in which they were heading with the youth, but he did not recall Officer Dekker giving a description of the thief.", "154. After they had lost sight of the scooter, they had heard it reported by radio that there had been a shooting at the Huigenbos building. Officers Boonstra and Dekker had gone there to see if they could be of assistance. Not realising that the person who had stolen the scooter was armed, they had not connected the shooting to the theft. 155.", "Only when they and the owner of the scooter had reached the scene of the shooting and the owner had recognised his vehicle did they ask him precisely what had happened. That had been when the owner of the scooter had told them that he had been forced at gunpoint to surrender control of the scooter. Officer Boonstra had told him that he ought to have mentioned that earlier (“Dat had je wel eens eerder mogen zeggen”). 156. Officer Dekker had told Officer Boonstra later that he too had been unaware that the thief had been carrying a firearm and had been just as indignant at not having been told.", "Both officers counted themselves lucky not to have been fired at during the pursuit. (i) Mr Hoeseni 157. Mr Hoeseni was interviewed by Detective Chief Superintendent Van Duijvenvoorde on 31 July 1998. He was asked to make a further statement as to when he had mentioned the firearm to Officer Dekker. 158.", "Mr Hoeseni stated that his scooter had been stolen from him at the Kwakoe festival site on 19 July 1998 between 9 and 10 p.m. A coloured youth had forced him to hand it over at gunpoint. He recognised the pistol on a photograph bearing the number 10 (see below for a description of the photographs) as the pistol with which he had been threatened. He had noticed that the pistol was cocked and ready to fire. This had frightened him into giving up the scooter. 159.", "Spotting two police officers, he had run up to them and asked them to follow him. They had not done so immediately but only after he had waved at them a second time. While running he had told them about the theft of the scooter and given them the scooter’s insurance documents and a description of the scooter and the thief. 160. Mr Hoeseni had told the police officers about the firearm at the same time as he had handed the insurance papers to them.", "161. When he had heard, over the police officers’ two-way radio, that there had been a shooting, he had immediately connected it with the theft of his scooter. He had then told the police officers that the thief had had a small silver-coloured pistol. (j) Mr Chitanie 162. Mr Wladimir Mohammed Abzell Ali Chitanie, questioned by Detective Chief Superintendent Van Duijvenvoorde on 3 August 1998, was a civil servant born in 1945.", "163. On 19 July 1998 at around 10 p.m. he had been driving his car along the Huntumdreef. He had seen a marked police car following in his rear-view mirror. The police car had stopped suddenly, at which point a police officer had emerged and run in the direction of the doorway of the Huigenbos building. Thinking that something was happening, Mr Chitanie had decided to have a look for himself.", "He had parked his car, got out and walked towards the doorway towards which the policeman had headed. The street lights were on. It was twilight. He estimated the distance from where he was to the doorway of the Huigenbos building to have been between seventy-five and a hundred metres. 164.", "He had seen a youth aged about 20, dressed in dark-coloured clothing, emerge from the doorway. He had not seen any scooter in the doorway. There had been a policeman standing opposite the youth, separated by a distance of about six metres. The police officer had been pointing a pistol at the youth. The youth had been holding some dark-coloured object, which Mr Chitanie had not been able to make out, in his right hand and had been pointing it towards the police officer.", "The police officer had gestured to the youth with one hand, apparently ordering him to throw away whatever it was he had in his hand, while keeping the youth covered with his service pistol in his other hand. He had not heard anything shouted or said, the distance being too great. He had seen the youth throw away the unidentified object in his right hand. 165. While the first police officer was keeping the youth covered, Mr Chitanie had seen a second police officer come running towards his colleague with the apparent intention of providing assistance.", "This second police officer had drawn his service pistol and had held it in both hands, levelled at the youth’s head. He had heard a shot fired immediately. The shot had been fired after the youth had thrown the object away. Events had unfolded very quickly: the lapse of time between the youth throwing away the object and the firing of the shot had been a few fractions of a second. The youth had moved in the direction of the lamp post and then collapsed.", "166. At that point panic had broken out. Police had arrived in cars and on motorcycles. After the shooting, more people had joined Mr Chitanie. The police had ordered them to leave; Mr Chitanie and the others had left.", "Mr Chitanie had asked a police officer why no ambulance was being ordered. The police officer had replied: “We will see about that later.” 167. Having entered the Huigenbos building and looked down onto the scene of events from the second floor, Mr Chitanie had seen the victim covered with a white sheet. He had not seen a pistol lying next to the body. He had heard from bystanders that the youth had thrown away a mobile telephone, but he had not seen that.", "168. It had taken Mr Chitanie six or seven minutes to reach the second floor of the building. He had seen numbered markers being set out and photographs being taken. It appeared that the bystanders had not been meant to see that, because police officers were holding a large sheet above the body and taking photographs underneath. Mr Chitanie thought that the youth might at that moment still have been alive, because he had heard a rattling sound, as if the youth’s throat was full of blood.", "169. Mr Chitanie estimated the time needed for the ambulance to arrive at thirty minutes or more. He had seen someone with medical equipment examine the victim, together with a person who appeared to be a public prosecutor. 170. In Mr Chitanie’s opinion, any threat had disappeared after the youth had thrown away the object.", "He had not witnessed what had happened before. (k) Officer Brons 171. On 3 August 1998 Detective Chief Superintendent Van Duijvenvoorde confronted Officer Brons with the statement by Mr Chitanie to the effect that Moravia Ramsahai had thrown something away before the fatal shot. Officer Brons denied this. In view of the threat posed by the thief, Officer Brons’s attention had been focused on the thief’s hands.", "Until the thief drew the pistol, he had had nothing in them. (l) Officer Dekker 172. On 3 August 1998 Detective Chief Superintendent Van Duijvenvoorde asked Officer Dekker for further information as to when he had become aware that the theft of the scooter had taken place at gunpoint. 173. Mr Hoeseni had told Officer Dekker that he had been pulled off the scooter but had not mentioned the fact that a firearm had been used.", "Both he and Officer Boonstra had therefore assumed that only physical force had been used. 174. Mr Hoeseni had given Officer Dekker the scooter’s insurance papers immediately and of his own motion and had at the same time given a description of the thief. Officers Dekker and Boonstra, joined by Mr Hoeseni, had run after the thief. However, they had lost him.", "Officer Dekker had then passed on the thief’s presumed direction of flight and the registration number via his two-way radio. 175. At no time while they were running had he heard Mr Hoeseni say that the thief was armed. He had noticed, however, that Mr Hoeseni was frightened and spoke in a soft tone of voice. It was therefore quite possible that Mr Hoeseni had mentioned the fact but that he had not heard it while they were running.", "176. Only after the report of the shooting had come through had Officer Dekker heard Mr Hoeseni say: “He had a small silver-coloured pistol.” They had then gone towards the Huigenbos building. Officer Dekker had asked Mr Hoeseni: “Why did you not tell us that before?” but Mr Hoeseni had not given a clear reply. He had appeared very upset. 177.", "Afterwards Officers Dekker and Boonstra had reflected on their luck at not having been shot. Had Officer Dekker been told at an earlier stage that the thief had used a pistol to steal the scooter, he would have passed that information on immediately and before all else. In addition, he and Officer Boonstra would not have run after the thief: their supervisory duties at the festival had required them to be unarmed themselves. (m) Officer Bultstra 178. Detective Chief Superintendent Van Duijvenvoorde confronted Officer Bultstra with the statement by Mr Chitanie on 4 August 1998.", "Officer Bultstra consented to being questioned without his counsel present. 179. Officer Bultstra considered it unlikely that Mr Chitanie could have parked his car and walked back to the place from which he claimed to have witnessed the events in such a short time. Officer Bultstra himself had needed up to ten seconds to run the fifty metres from where the police car had been parked to Moravia Ramsahai and Officer Brons. 180.", "It appeared that Mr Chitanie had missed the struggle with Moravia Ramsahai; he had not mentioned it in his statement. That would be consistent with the distance between where Mr Chitanie had parked his car and the scene of events. 181. It was incorrect that Officer Brons had held his service weapon in one hand. It took two hands to hold it in the defensive position.", "Officer Brons had made gestures, but that had happened before Moravia Ramsahai drew his pistol. 182. Moravia Ramsahai had had nothing in his hands until he had drawn his pistol. He had, however, not pointed it at Officer Bultstra; he had pointed it at the ground. He had held it in his hand continuously.", "He had definitely not thrown anything away or dropped anything. He had only let go of the pistol once Officer Brons had shot him, but even then only as he collapsed. 183. Officer Bultstra had held his two-way radio set in his left hand as he had left the police car. He had kept hold of it until he dropped it.", "He did not remember when that had been, but it must have been no later than when he drew his service pistol because in the defensive position he had needed both his hands to hold it. He could not remember either whether he had already dropped the radio at the time of the struggle. He had, however, later seen it lying on the ground, level with Moravia Ramsahai’s chest and about sixty centimetres away from him. He had left it there. 184.", "The ambulance had been called for immediately, not once but twice. Officer Bultstra had not seen it arrive. By that time he and Officer Brons were being taken to the police station, having spent five to seven minutes at the scene of the events. 185. Officer Bultstra had heard Moravia Ramsahai’s death rattle.", "That had stopped already before he and Officer Brons had left. It had appeared to Officer Bultstra that Moravia Ramsahai’s lungs were filling with blood, but Officer Bultstra could do nothing to stop that. (n) Mr Van den Heuvel 186. Detective Chief Superintendent Van Duijvenvoorde decided to question Mr Petrus van den Heuvel again in the light of the statement of Mr Chitanie. This he did on 4 August 1998.", "187. Mr Van den Heuvel reiterated that he had been focused on the coloured man with the firearm. He had clearly seen the coloured man hold a firearm in his right hand, which he had pointed downwards. The coloured man’s other hand had been empty. 188.", "Mr Van den Heuvel had not witnessed the actual shooting, having taken cover behind the balustrade. He had looked to see what had happened right after the shot had been fired. This had been only a fraction of a second later. He had not seen the coloured man’s pistol fall to the ground. When Mr Van den Heuvel had looked, the pistol had been lying on the ground, next to the coloured man, as shown on a photograph taken at the scene of the incident.", "The pistol shown on another photograph was very similar to that which Mr Van den Heuvel had seen in the coloured man’s hand. 189. For the remainder, Mr Van den Heuvel confirmed his earlier statement. (o) Officer Van Dongen 190. Police Officer Bruin Jan van Dongen was questioned by Detective Chief Superintendent Van Duijvenvoorde on 4 August 1998.", "He had been driving a police car with a police dog along the Huntumdreef. Officer Van Dongen had heard that a scooter had been stolen at the Kwakoe festival and had heard the description given of the scooter and the thief. He was looking for the thief. There was no information that the theft had taken place at gunpoint. 191.", "Officer Van Dongen had been passed by another police car. He had recognised the driver as Officer Brons. He had seen the police car pull up and the passenger emerge. 192. He had parked his car and got out.", "In so doing he had seen Officer Brons get out of his car. Going around the back of the car to get out the police dog, Officer Van Dongen had heard a pistol shot from the direction of the Huigenbos building. The dog had reacted furiously to the sound. It had been necessary to handle the dog with particular care, because in its excitement the dog might have attacked people. 193.", "He had met Officer Brons and had asked him what had happened. Officer Brons had replied that a pistol had been aimed at the police and a shot had been fired by the police, but had not named the officer who had fired the shot. 194. Officer Van Dongen had walked up to the victim lying on the ground, stopping at a distance of two metres because of the unpredictable reaction of the dog. The victim had been motionless, except for opening and closing his mouth a few times.", "Officer Van Dongen had heard no death rattle. 195. When Officer Van Dongen arrived at the scene, there had been only the two police officers and the victim. He had not seen anyone else close by. The dog would have reacted if anyone else had been present.", "(p) Ms Hup 196. Ms Lambertina Helena Hup was interviewed by Detective Chief Superintendent Van Duijvenvoorde on 5 August 1998. She had been the driver of the ambulance which had been sent out to collect Moravia Ramsahai after he had been shot. 197. At 10.02 p.m. the ambulance crew had received an instruction to drive to the Huigenbos building because someone had been shot.", "The ambulance had left at 10.04 p.m. and arrived on the scene at 10.14 p.m., well within the time allowed, which was fifteen minutes. 198. Ms Hup and the other member of the ambulance crew, Mr Van Andel, had taken out the stretcher, which was given to police officers. Ms Hup and Mr Van Andel had then taken their equipment and had run towards the victim. There had been a small silver-coloured pistol lying next to him, which she and Mr Van Andel had had to avoid touching while doing their work.", "199. Ms Hup had not heard the victim’s death rattle or him make any other sound. She had assisted Mr Van Andel as he gave first aid. They had connected the victim to the heart monitor. Mr Van Andel had checked eye pupil reflexes by shining a light into each eye but had got no reaction and had noted the absence of a pulse and breathing.", "From the information thus obtained Mr Van Andel had concluded that the victim had died on the spot. 200. Ms Hup and Mr Van Andel had seen the wound where the bullet had entered, which was in the neck on the right. They had not seen the exit wound. 201.", "Ms Hup and Mr Van Andel had then covered the body with a white sheet. They had then spent some time talking with police officers. They had not removed the body, which had been picked up later by a special vehicle. (q) Mr Van Andel 202. Mr Leendert van Andel, a paramedic, had been the other member of the crew of the ambulance driven by Ms Hup.", "Detective Chief Superintendent Van Duijvenvoorde questioned him on 5 August 1998. 203. At around 10.02 p.m. they had received instructions to go to the Huigenbos building where someone had been shot. They had been given a route to take. They had left at 10.04 p.m.", "The blue flashing light and the siren had been switched on continuously. They had arrived at the scene at 10.14 p.m. 204. Ms Hup and he had run quickly towards the victim. Police officers had carried the stretcher, he and Ms Hup the other equipment. 205.", "A police officer had told him that the youth had been shot. He had seen the entry wound in the neck but no exit wound. There had been a small pistol lying close by the victim. Mr Van Andel had not noticed a two-way radio lying on the ground. 206.", "The victim had had no signs of life. There had not been any rattle. Mr Van Andel had checked his vital functions and had noted the absence of any heart function (checked with a heart monitor) or pupil reaction. This, combined with the gunshot wound, had led Mr Van Andel to conclude that the youth was dead. After conferring briefly with one of the police officers present and telling him that there was nothing more to be done, he and Ms Hup had covered the body with a sheet.", "207. Mr Van Andel and Ms Hup had then returned to the ambulance and had reported themselves ready for further duty at 10.35 p.m. The body had been removed later. (r) Mr Pel 208. Mr John Pel, whom Detective Chief Superintendent Van Duijvenvoorde questioned on 7 August 1998, was a police forensic investigator (technisch rechercheur).", "He had been on call on the evening of 19 July 1998. He had been instructed to go to the Huigenbos building where there had been a shooting. He had arrived after the ambulance had left. On his arrival at the scene, he had seen a white sheet covering the victim and a pistol lying on the ground. 209.", "Mr Pel and a colleague, Mr Popping, had identified items of evidence and marked them with numbered markers before photographing them. He had also examined the body of the victim and in particular his hands for traces of gunshot residue (schotrestbemonstering). This had required the lifting of the sheet covering the body. (s) Ms Jalink 210. Ms Hèlen Milian Jalink was questioned by Detective Chief Superintendent Van Duijvenvoorde on 11 August 1998.", "She was a maternal great-aunt of Moravia Ramsahai. 211. On Monday 20 July 1998 an aunt of Moravia Ramsahai’s had told her that Moravia had stolen a scooter and had been shot dead for that reason by the police. That evening, between 6 and 7 p.m., she and other relatives of the deceased had held a prayer meeting at the place where it had happened. 212.", "During this prayer meeting, two persons were presented to her who had allegedly witnessed the events. They had told her that, when driving by in a car, they had seen a parked police car with the doors open, one policeman standing near the Huigenbos building and another policeman running in the same direction. They had seen a youth, who had apparently come out of the doorway, walking with his hands raised. She had not been told how high he had raised his arms, but they had told her that he had raised them. They had not told her of any struggle between the youth and the police officer.", "They had not told her that the first police officer had kept the youth covered with his service pistol. The second police officer, the one who had come running, had shot the youth down. They had not seen the youth with any firearm; they had been definite about that. They had seen the youth being hit and collapsing. They had seen him covered with a sheet.", "213. Some persons present had mentioned a mobile telephone which the police had said was a pistol. 214. The two persons who had said that they had witnessed the shooting had been evasive when asked whether they were prepared to make statements to the police. They had been more willing to talk to a lawyer.", "An appointment had been made for this purpose with Mr Hamer, the applicants’ representative in the proceedings now pending before the Court, but they had failed to turn up. Ms Jalink had been told that they had gone to Germany. 215. These two individuals were Gypsies who spoke limited Dutch and English. Ms Jalink had no idea why they were so reluctant to cooperate fully.", "(t) Mr Chitanie 216. Detective Chief Superintendent Van Duijvenvoorde interviewed Mr Chitanie a second time on 17 August 1998. 217. Mr Chitanie repeated that he had not witnessed any struggle between the victim and the first police officer. 218.", "Asked whether he had seen a policeman with a dog, he answered that he had not paid attention to anything other than what was happening where the victim lay. He had, however, seen police officers with dogs; he did not remember how many. There had also been civilians with dogs. No police officer with a dog had passed close by him as he was standing still witnessing events from a distance. 219.", "Mr Chitanie remembered a police officer telling him that “they” – meaning the police – would decide when the ambulance would come; that although the victim could no longer talk, “they” could; and that there were other wounded persons, who had fled. 220. Mr Chitanie had seen Gypsies and had been told that they had seen everything. However, they would not cooperate because they were members of a criminal organisation. (u) The applicants 221.", "On 7 August 1998 Detective Chief Superintendent Van Duijvenvoorde interviewed the applicants. They told him that they were not aware that Moravia Ramsahai had had a pistol and could not imagine this to be the case. Moravia Ramsahai had, however, possessed a mobile telephone, which was nowhere to be found. The third applicant also told Detective Chief Superintendent Van Duijvenvoorde that he had heard of two Gypsies who had witnessed the shooting, but who were unwilling to provide information because they were residing illegally in the Netherlands. 4.", "The autopsy and toxicological examination 222. An autopsy was performed on Moravia Ramsahai’s body on 20 July 1998 by a pathologist at the Forensic Laboratory (Laboratorium voor Gerechtelijke Pathologie) in Rijswijk. The pathologist drew up a detailed report, according to which Moravia Ramsahai had been hit by one bullet in the neck area. The bullet had ruptured major blood vessels and organs, including the brachiocephalic (innominate) artery and vein, and the right lung. These injuries had led to Moravia Ramsahai’s death.", "223. According to the report of the toxicological examination (dated 23 December 1998), a blood sample taken from Moravia Ramsahai’s body contained 0.85 mg of alcohol per litre, a urine sample contained 1.51 mg per litre, the vitreous humour of the left eye contained 1.53 mg per litre and that of the right eye contained 1.55 mg per litre. The presence of amphetamines in the urine sample was initially suspected but could not be confirmed by subsequent testing. Other substances found in the urine sample included psilocine (an alkaloid compound found in certain hallucinogenic mushrooms – genus Psilocybe – known colloquially as “magic mushrooms”). The concentration of psilocine in the blood was too low to be determined.", "224. No drawings or photographs were appended to the autopsy report as contained in the investigation file. 5. Other investigative measures 225. On 29 July 1998 Detective Chief Superintendent Van Duijvenvoorde telephoned the Royal Netherlands Meteorological Institute enquiring after the weather conditions on the evening of 19 July.", "He was given the following information: “Warm day and evening; somewhat overcast 9.45 p.m.: Sunset 10 p.m.: Twilight 10.30 p.m.: Dark” 226. On 30 July 1998 Detective Chief Superintendent Van Duijvenvoorde interviewed the 12-year-old Miss Sangeeta Edwina Pamela Mungra. She confirmed what she had stated to members of the mobile special operations unit on the night of 19 July. She added that she had only looked outside after hearing the bang. Moravia Ramsahai was already lying on the ground.", "She had not seen the police officers properly. She had gone back up, glanced down from the seventh floor and gone inside. 227. Detective Chief Superintendent Van Duijvenvoorde had returned to the scene of the incident with Ms Rijssel and Ms Lieveld and with Mr Chitanie and his wife after taking their respective statements. They had shown him where they had been standing and Detective Chief Superintendent Van Duijvenvoorde had paced the distance to the lamp post where Moravia Ramsahai had lain.", "This had been about fifty-seven metres in the case of Ms Rijssel and Ms Lieveld and about fifty-eight metres in the case of Mr and Mrs Chitanie. 228. Detective Chief Superintendent Van Duijvenvoorde had also gone back with Officer Bultstra, who had shown him where he thought Officer Brons had parked the car. This was about forty-eight metres away from the lamp post. He had asked Officer Bultstra to run that distance and timed him with a stopwatch.", "It had taken him 9.4 seconds. Detective Chief Superintendent Van Duijvenvoorde noted in his report that the distance from where the car was parked had actually been measured on the night of the shooting and found to be fifty-six metres. 6. Other police records 229. Senior Detective Jacob Cornelis Peter Schultz, a police officer serving at Flierbosdreef police station, officially seized the body where it lay at 10.02 p.m. and provisionally identified it as Moravia Ramsahai’s from identity documents found in his clothing.", "According to a further official record, also by Senior Detective Schultz, the body was shown to Mrs Ruth Helen Versteeg-Tewari, Moravia Ramsahai’s mother, and Mr Carlitto Marciano Farook Alihusain, his cousin, on 20 July 1998 at 2.15 p.m. They both recognised the body and identified it as Moravia Ramsahai’s. 230. A report drawn up by forensic investigators (technisch rechercheurs) John Pel and Jan Popping describes the action taken following the incident to secure information and evidence at the scene of the shooting. It records the location of the body.", "Next to it Officers Pel and Popping had found a Beretta 950 B pistol, calibre 6.35 mm, with the hammer cocked. They had also found a spent cartridge. They had found the scooter in the doorway. Next to the doorway there was a staircase, closed from the outside by tall windows. In one of these windows they had found a bullet hole.", "Under the bullet hole they had found a bullet lying on the floor. No ricochet marks had been found in the stairway. This had made it impossible to determine the bullet’s precise trajectory. Twenty-nine photographs were appended to this record, photocopies of which – in black and white – are contained in the Court’s file. 231.", "On 4 August 1998 Police Superintendent Ronald Groenewegen of the Amsterdam/Amstelland police drew up a record describing the events which he himself had witnessed. On the evening of 19 July 1998 Superintendent Groenewegen had been out in uniform, in charge of the police detachment monitoring the Kwakoe festival. At 9.55 p.m. he had heard on his two-way radio that two surveillance officers were pursuing a thief who had stolen a scooter. From other messages he concluded that other officers had also set off in pursuit, including Officers Brons and Bultstra in a police car. At around 10 p.m.", "Superintendent Groenewegen had heard that Officers Brons and Bultstra were pursuing the thief in the direction of the Huigenbos building. Shortly afterwards, he had heard that there had been shooting and that an ambulance was needed. Superintendent Groenewegen had immediately made his way to the Huigenbos building. Upon arrival, he had seen a man lying on the ground, wounded in the neck. He had seen a silver-coloured pistol lying on the ground, about one metre from the man’s feet.", "He had also spotted a police two-way radio lying on the ground, about one metre from the body at hip level. The ambulance had arrived at approximately 10.20 p.m. and its crew had emerged with a stretcher. Shortly afterwards, someone had thrust a two-way radio set into Superintendent Groenewegen’s hands, telling him that it was Officer Bultstra’s. Superintendent Groenewegen had understood that this was the set which he had seen lying on the ground. 232.", "The file contains an official record of the seizure of a tape-recording made of police two-way radio conversations on the night of 19 July 1998 and a transcript. According to the transcript, Officer Dekker reported the theft of the scooter, giving a description of it and the thief. This report is answered by an unknown police officer on a motorcycle and Officer Bultstra. Officer Bultstra reports, using his two-way radio, that a scooter matching the description given has been spotted. The police officer who reports that he has fired his weapon and requests an ambulance is stated to be Officer Brons.", "233. Another official record states that video recordings made by a closed-circuit television system in the Burger King restaurant on Leidseplein, shortly before the time of the shooting, show Moravia Ramsahai misbehaving. 234. Further official records drawn up by police officers describe personal effects found on Moravia Ramsahai’s body – clothing, jewellery, the contents of his pockets – and their return to his next-of-kin, the return to Vinodkumar Hoeseni of the scooter taken from him by Moravia Ramsahai, and the opening of a temporary document register for the case. 235.", "The file also contains a printout giving the results of the firearms training undergone by Officer Brons in the year before 19 July 1998. It shows that during this period Officer Brons had fired 390 practice rounds, scoring an average 88.80% hits, and had undergone refresher training on 10 July 1998. 236. The file contains no record of any examination of the service weapons carried by Officers Brons and Bultstra at the relevant time or of the spent cartridge and the bullet found at the scene of the incident. B.", "Proceedings brought by the applicants 237. On 11 September 1998 the public prosecutor wrote to the parents of Moravia Ramsahai informing them that she had come to the conclusion that the shooting had been an act of self-defence and had therefore decided not to bring a prosecution against Officer Brons. On 23 September 1998 Mr Hamer wrote to the public prosecutor announcing the intention of the third applicant to seek a court order for the prosecution of Officer Brons. 238. The applicants were granted access to the investigation file.", "On 2 October 1998 they applied for such an order to the Amsterdam Court of Appeal (gerechtshof) by means of a complaint about the failure to bring a prosecution (Article 12 of the Code of Criminal Procedure (Wetboek van Strafvordering) – see below). The application was signed by Mr Hamer as the applicants’ representative and by each of the applicants individually. They stated that the information available did not admit of the conclusion that the shooting of Moravia Ramsahai by Officer Brons was sufficiently justified. They also pointed out that certain key parts of the investigation after the shooting had been carried out by the Amsterdam/Amstelland police force – that is, Officer Brons’s direct colleagues – and argued on that ground that the investigation had not been “effective” and “independent”. Further complaints addressed the failure to question Officers Brons and Bultstra until several days after the event, the failure to question all the police officers who had arrived at the scene after the shooting about what had been said by Officers Brons and Bultstra, the failure to determine the precise trajectory of the bullet (which the applicants submitted would have been possible), the failure to secure gunshot residue samples from the hands of Officers Brons and Bultstra, the failure to conduct a reconstruction of the incident, and the absence from the autopsy report of drawings or photographs showing the entrance and exit wounds caused by the bullet.", "Reference was also made to Police Commissioner Van Riessen’s statement, as reported in the newspaper De Telegraaf, to the effect that he would not allow an independent inquiry, and to the fact that the Chief Public Prosecutor (hoofdofficier van justitie) of Amsterdam retained overall responsibility for the investigation and any decision to prosecute. 239. On 8 January 1999 the Acting Procurator General (plaatsvervangend procureur-generaal) at the Amsterdam Court of Appeal submitted an opinion in response to the applicants’ complaint about the failure to prosecute Officer Brons. He considered it sufficiently clear from the evidence available that Officer Brons had acted in self-defence and was not convinced that Public Prosecutor De Vries, who had decided not to prosecute, was in any way biased. Although perhaps some might have preferred the non-prosecution decision to have been taken by an official body further removed from the Amsterdam police, that was not a wish which needed to be taken into account by the courts.", "It followed that the applicants’ complaint of 2 October 1998 was unfounded. 240. On 23 February 1999, Mr Hamer, having been informed of the date on which a hearing would be held to consider the applicants’ said complaint, wrote to the Court of Appeal asking for the hearing to be public. 241. On the same day Mr Hamer wrote to the Acting Procurator General at the Court of Appeal, complaining about the failure of the registry of that court to provide him with copies of the complete case file and asking for this failure to be redressed.", "He made a similar request to the President of the Court of Appeal. 242. The Registrar of the Court of Appeal replied on 24 February 1999, pointing out that the question to be decided was whether to hold a public hearing; in such circumstances it was appropriate for participants in the hearing to be allowed to view the file, but for reasons of caution copies were refused. By a separate letter of the same date, the Registrar informed Mr Hamer that the hearing in question would not be public, but that Mr Hamer could raise the issue at the hearing if he so desired. 243.", "The Acting Procurator General replied on 25 February 1999 that he was not an appellate body competent to review decisions of the Registrar of the Court of Appeal to withhold documents. In any event, Mr Hamer had been able to see all available documents. 244. The applicants’ complaint under Article 12 of the Code of Criminal Procedure was heard in chambers by a “judge delegate” (raadsheer-commissaris) on 1 March 1999. Mr Hamer made extensive oral submissions on the applicants’ behalf.", "245. On 19 March 1999, with the consent of the Advocate General in charge of the case, Mr Hamer wrote to the judge presiding over the chamber of the Court of Appeal which was to hear the applicants’ complaint about the failure to prosecute, referring to an alleged inconsistency between the statements of Officers Brons and Bultstra and the statements of other police officers, as reported in the press release, which in his submission would justify a further criminal investigation. 246. On 26 April 1999 the Court of Appeal dismissed the applicants’ complaint against the public prosecutor’s decision not to prosecute. In its reasoning it endorsed the decision of the “judge delegate” not to hold a public hearing.", "It found that, in the light of the applicable legal provisions, it would go beyond the powers of the judiciary to develop the law if a hearing, the purpose of which was to decide whether a particular person should be put on public trial, were itself held in public. Moreover, that would defeat the purpose of the applicable legal provisions. 247. As to the merits of the case, the Court of Appeal was satisfied that Officer Brons had acted to avert a threat of harm by a deadly weapon and had acted in legitimate self-defence. It based this finding on the statements of Officers Brons and Bultstra and Mr Van den Heuvel.", "It added that if there had been more time, it might have been possible to avoid inflicting a lethal wound; however, an immediate reaction had been required in the circumstances, as had subsequently been borne out by the fact that Moravia Ramsahai’s pistol had had a round chambered and its hammer cocked in the firing position. This conclusion was reinforced by the available information that earlier that day he had stolen a vehicle at gunpoint and used the pistol in a threatening way on at least one other occasion, as well as by the retrospective finding of traces of alcohol and the active ingredient of hallucinogenic mushrooms in Moravia Ramsahai’s body. The other witness statements available were either plainly incorrect (as in the case of Mr Chitanie and Ms Rijssel), or irrelevant, or did not materially affect the above findings. 248. Although the Court of Appeal agreed with the applicants that a reconstruction would have been desirable, it found nothing to suggest that the evidence available had not been investigated conscientiously.", "Nor could the fact, as alleged by the applicants, that they or their counsel had been denied access to certain documents lead to any different conclusion. II. RELEVANT DOMESTIC LAW A. Criminal procedure 249. At the time of the events complained of, the relevant provisions of the Code of Criminal Procedure provided as follows.", "Article 12 “1. If the perpetrator of a punishable act is not prosecuted, or if the prosecution is not pursued to a conclusion, then anyone with a direct interest [rechtstreeks belanghebbende] may lodge a written complaint with the Court of Appeal within whose area of jurisdiction the decision has been taken not to prosecute or not to pursue the prosecution to a conclusion. ...” Article 12d “1. The Court of Appeal shall not take its decision without first having heard representations from the complainant, or at least after having properly summoned the complainant ...” Article 12e “1. The Court of Appeal may summon the person whose prosecution is being sought in order to afford him the opportunity to present observations on the request made in the statement of complaint and the grounds on which it is based.", "Such summons shall either be accompanied by a copy of the statement of complaint or contain an indication of the facts to which the complaint relates. 2. No order of the kind referred to in Article 12i shall be given unless and until the person whose prosecution is being sought has been heard by the Court of Appeal, or has at least been properly summoned.” Article 12f “1. The complainant and the person whose prosecution is being sought may be assisted before judges sitting in chambers. They may be represented by counsel ... 2.", "The President of the Court of Appeal shall ... allow the complainant and the person whose prosecution is being sought, as well as their counsel or authorised representatives [gemachtigden], to inspect the case file if a request is made to that effect. Inspection shall take place in the manner determined by the President. The President may, of his own motion or at the request of the Procurator General, exempt particular documents from inspection in the interests of privacy, the investigation, the prosecution of criminal acts, or on significant general-interest grounds.” Article 12g “The person whose prosecution is being sought shall not be obliged to answer questions put to him in chambers. He shall be so informed before the hearing begins and that fact shall be mentioned in the official record.” Article 12i “1. If the complaint falls within the Court of Appeal’s jurisdiction, the complainant can be admitted [de klager ontvankelijk is], and if the Court of Appeal finds that a prosecution ought to have been brought or pursued to a conclusion, the Court of Appeal shall order the prosecution to be brought or pursued in respect of the fact to which the complaint relates.", "2. The Court of Appeal may also refuse to give such an order for reasons relating to the general interest. 3. The order may also include the direction [last] that the public prosecutor shall make the request referred to in Article 181 or Article 237 § 3 [namely, a request to the investigating judge [rechter-commissaris] to initiate or continue a preliminary judicial investigation [gerechtelijk vooronderzoek]] or that the person whose prosecution is being sought shall be summoned for trial. The first-mentioned order may also be given by the Court of Appeal if the public prosecutor has already had the person whose prosecution is being sought officially notified of the decision of closure of a preliminary judicial investigation or if the time-limit prescribed in Article 237 § 3 has already expired.", "4. In all other cases the Court of Appeal shall ... dismiss the complaint.” Article 24 “1. Reasons shall be given for any decision taken in chambers. If a public hearing in chambers is prescribed, such decision shall be delivered in open court. ... 4.", "Unless otherwise provided, the decision shall be notified to the suspect and the other participants in the proceedings without delay.” B. The Public Prosecution Service 1. The Judiciary (Organisation) Act 250. At the time of the events complained of, the relevant provisions of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie) provided as follows. Article 4 “The Public Prosecution Service shall have exclusive responsibility for upholding the laws, prosecuting all criminal acts and ensuring the execution of all criminal judgments.", "...” Article 5 “Officials of the Public Prosecution Service shall follow the orders given to them in the course of their official duties, in the name of the Monarch, by the competent authority.” Article 5a “... [P]ublic prosecutors and acting public prosecutors shall, in their official duties, report to the Head of the public prosecution department [parket] in which they carry out their duties.” 2. The Code of Criminal Procedure 251. Relevant provisions of the Code of Criminal Procedure provided as follows. Article 140 “1. The Procurator General at the Court of Appeal shall, within the area of jurisdiction of the Court of Appeal to which he is appointed, ensure the proper investigation of the criminal acts which are triable by the regional courts [arrondissementsrechtbanken] or the district courts [kantongerechten].", "... 2. To that end, he shall give orders to the Heads of the public prosecution departments appointed to the regional courts.” Article 148 “1. The public prosecutor shall be charged with the investigation of criminal acts which are triable by the regional court to which he is appointed and by the district courts within the area of that regional court’s jurisdiction, as well as the investigation, within the area of that regional court’s jurisdiction, of criminal acts triable by other regional courts or district courts. 2. To that end, he shall give orders to the other persons charged with [such] investigation.", "...” C. Authority over the police 252. The Police Act 1993 (Politiewet), in its relevant parts, provides as follows. Article 12 “1. If the police act in a municipality to maintain public order and to carry out their task of assisting the public [hulpverleningstaak], they shall be under the authority of the burgomaster. 2.", "The burgomaster shall be empowered to give the police officers directions in carrying out the tasks referred to in the first paragraph.” Article 13 “1. If the police act to maintain legal order through criminal law enforcement, or carry out tasks in support of the administration of justice, they shall be under the authority of the public prosecutor. 2. The public prosecutor shall be empowered to give the police officers directions in carrying out the tasks referred to in the first paragraph.” D. Instruments governing the use of force by the police 1. The Police Act 1993 253.", "Article 8 § 1 of the Police Act 1993 provides as follows: “A police officer appointed to carry out the tasks of the police force shall be authorised to use force in the lawful exercise of his duties when it is justified by the purpose thereby intended to be served, also taking into account the dangers involved in such use of force, and when that purpose cannot otherwise be served. Use of force shall be preceded, if possible, by a warning.” 2. The Standing Orders 1994 254. At the relevant time, the Standing Orders for the Police, the Royal Military Constabulary and officers invested with special investigative powers (Ambstinstructie voor de politie, de Koninklijke Marechaussee en de buitengewone opsporingsambtenaar) provided as follows. Section 7 “1.", "Use of a firearm, other than a firearm suitable for automatic fire or long-range precision fire, is permitted only: (a) to arrest a person who poses a firearms hazard [vuurwapengevaarlijk persoon]; (b) to arrest a person who is trying to evade, or has evaded, being arrested or brought before the competent legal authority [die zich aan zijn aanhouding of voorgeleiding tracht te ontrekken of heeft onttrokken] and who is suspected or has been convicted of a serious indictable offence [ernstig misdrijf] which must in addition be considered a serious disruption of legal order. ... 3. In the cases referred to in the first paragraph under (a) and (b), the firearm shall not be used if the identity of the person to be arrested is known and it may reasonably be assumed that delaying the arrest will not jeopardise legal order in a manner that may be considered unacceptable. ...” Section 12 “1. Immediately before he uses a firearm, other than a firearm suitable for automatic fire or long-range precision fire, the officer shall issue a warning, in a loud voice or in another form that cannot be misunderstood, that he will open fire if the order is not followed without delay.", "Such a warning, which may if necessary be replaced by a warning shot, shall be omitted only if the circumstances do not admit of it. 2. A warning shot shall be fired in such a way as to avoid, as far as possible, endangering persons or property.” 3. The Police Weapons Rules 1994 255. While on duty, uniformed police in the Netherlands may be armed with a semi-automatic pistol.", "Police officers are required to maintain proficiency in the use of their firearms, failing which they are not allowed to carry any. E. Instruments governing the National Police Internal Investigations Department 1. The Police Act 1993 256. Article 43 of the Police Act provides as follows: “1. For tasks determined by the Minister of Justice, after consultation with the Minister of Internal Affairs, the Procurator General shall have special-duty police officers [bijzondere ambtenaren van politie] ... at his disposal.", "2. The Minister of Justice shall be charged with the management of the police officers referred to in the first paragraph. These police officers shall ... be appointed, promoted, suspended and dismissed by the Minister of Justice.” 2. Rules governing the organisation of the operational divisions of the Public Prosecution Service 257. According to Rule 1 of the Rules governing the organisation of the operational divisions of the Public Prosecution Service (Organisatieregeling dienstonderdelen Openbaar Ministerie), the National Police Internal Investigations Department (Rijksrecherche) is a nationwide service placed directly under the primary collective responsibility of the Procurators General at the Courts of Appeal.", "Its day-to-day affairs are managed by a Director who reports to the Procurators General (Rule 3). F. Domestic legal developments since the Chamber judgment 1. Parliamentary questions 258. The Chamber judgment received considerable media attention in the Netherlands. On 23 November 2005 two members of the Lower House (Tweede Kamer) of Parliament, Mr P. Straub and Mr A. Wolfsen, asked the Minister of Justice to state his views on the Chamber judgment and the resulting need for changes in domestic law and practice.", "259. The Minister of Justice’s reply was received in Parliament on 16 December 2005 (Tweede Kamer der Staten-Generaal, Aanhangsel van de Handelingen – Lower House of Parliament, Appendix to the parliamentary record – 2005-06, no. 567, pp. 1209-10). The following is an excerpt from it: “2.", "It is important to note that there is no question of a substantive violation of Article 2 of the Convention; the Court is unanimous in finding that the police officer acted in self-defence. The Court concludes that there has been a procedural violation of Article 2 of the Convention on two points: the (excessively) late involvement of the National Police Internal Investigations Department in the investigation and the fact that the decision under Article 12 of the Code of Criminal Procedure not to prosecute the policemen involved was not [given in] public. As to the involvement of the National Police Internal Investigations Department, a few matters should be noted. The Court does not criticise the position of the National Police Internal Investigations Department in relation to the police as such; it finds explicitly that that position is consonant with the independence required by Article 2 of the Convention. However, in this case the investigation into the shooting was carried out during the first fifteen hours by police officers belonging to the same police force as the police officer who had fired the fatal shot.", "Only afterwards was the investigation taken over by the National Police Internal Investigations Department. The Court finds that the (independent) National Police Internal Investigations Department became involved in the investigation too late in this specific case. Since the decision of the Amsterdam Court of Appeal of 23 June 2004 in the Mercatorplein case (unpublished), the duty system of the National Police Internal Investigations Department has been improved [aangescherpt], so that they can be at the place of the incident sooner. The National Police Internal Investigations Department now reaches the scene of events within, on average, one hour to one hour and a half after the incident is reported. It is therefore no longer possible to conclude that the procedures now followed in the Netherlands as regards investigations into fatal shootings involving police officers are not compatible with the Convention.", "I am therefore of the opinion that structural changes in the existing procedures are not needed. It is, however, useful to make the procedure more precise on some points, in particular as regards the involvement of the National Police Internal Investigations Department. To this end, the Board of Procurators General [College van procureurs‑generaal] is drawing up a new ‘Instruction on how to act in the event of the use of force by a (police) officer’ [Aanwijzing handelwijze bij geweldsaanwending (politie) ambtenaar, hereafter ‘the Instruction’], to replace [an earlier instruction]. This Instruction will explicitly provide that the National Police Internal Investigations Department shall be informed immediately [terstond] in cases where there has been use of force by a police officer, and that the duty officer concerned from the National Police Internal Investigations Department shall proceed to the scene of the incident as quickly as possible. Until he arrives, the local police force shall only act to freeze the situation, for example by cordoning off the scene of the incident.", "However, the local force will, in principle, not carry out investigative measures. This Instruction is expected to enter into force early next year. 3. In a decision such as provided for in Article 12 of the Code of Criminal Procedure, the complainant’s interest in publicity is opposed to the interest in secrecy of the person whose prosecution is sought. The starting point, for the present, is that during the phase in which a decision has yet to be taken as to whether a person is to be prosecuted, that person’s interest in avoiding publicity outweighs the complainant’s interest in publicity.", "Since a decision under Article 12 of the Code of Criminal Procedure does not concern a ‘criminal charge’ in the sense of Article 6 of the Convention, the requirement of publicity for such decisions does not flow from that Article. In the relevant judgment of the European Court of Human Rights, the requirement of publicity is however derived from Article 2 of the Convention. The Court takes the view that the decision should have been given in public, in view of the seriousness of the case and the fact that it concerned a person invested with public authority. It will not be possible to give effect to the judgment without amending Article 12 of the Code of Criminal Procedure. At the moment we are still examining the question whether to introduce a request for referral to the Grand Chamber under Article 43 of the Convention.", "I will inform you of the outcome early next year. 4. The Court finds that the Public Prosecution Department’s position in relation to the police is sufficiently independent. The fact that a public prosecutor is dependent on the police for the provision of information and support does not affect this finding. The Court notes in addition that the actions of the public prosecutor are subject to independent supervision by the courts.", "In this case the public prosecutor in charge of the case was a public prosecutor with particular responsibility for the area within which the work was carried out at Flierbosdreef police station, at which station the police officer concerned worked. I share the Court’s view that it is undesirable (from the point of view of independence) for a public prosecutor to maintain excessively close ties with the police force to which the police officers concerned belong. In that connection I refer to the said Instruction of the Board of Procurators General. This Instruction will provide that in cases such as the present the investigation will in no circumstances be led by a public prosecutor who maintains close ties with the district to which the police officers belong, for example the district public prosecutor. I note in addition that the Advisory Board on Police Use of Firearms [Adviescommissie Politiëel Vuurwapengebruik] gives advice on the follow-up to investigations into police use of firearms actually involving firing and where investigations have actually been carried out by the National Police Internal Investigations Department.", "The Chief Public Prosecutor is obliged to submit to the Advisory Board the decision he proposes to take. In that way a kind of ‘second opinion’ is built into such cases.” 2. Instruction on how to act in the event of the use of force by a (police) officer 260. The new Instruction of the Board of Procurators General, which the Minister announced for early 2006, was in fact published on 26 July 2006 (Official Gazette – Staatscourant – 2006, no. 143).", "The Board of Procurators General constitutes the highest body of the Public Prosecution Service and is answerable, through its chairman, to the Minister of Justice. 261. An explanatory note states that the Instruction is intended as a follow-up to, inter alia, the Chamber judgment in Ramsahai and Others, in order better to clarify the investigative tasks of the National Police Internal Investigations Department and the role of the local police force. 262. The Instruction covers not only police officers but also other officials with police powers, including the Royal Military Constabulary (Koninklijke marechaussee) and members of the armed forces exercising police duties.", "It is applicable in cases involving the use of firearms causing death or injury and other cases in which the use of force has resulted in death or serious injury. 263. Whenever an incident has taken place to which the Instruction applies, the investigation will be carried out by the National Police Internal Investigations Department. The regional police force is to inform that department of the incident immediately. The duty officer from the National Police Internal Investigations Department will proceed to the scene of the incident as quickly as possible.", "The local police are to take any necessary urgent measures, such as cordoning off the area concerned, caring for any casualties and taking down the names of any witnesses; they are not themselves to carry out any investigations unless and to the extent that their involvement is unavoidable. 264. Any investigations that cannot be carried out by the National Police Internal Investigations Department itself are done by the Internal Investigations Bureau (Bureau Interne Onderzoeken) of the police region concerned or by members of a neighbouring police force. For any technical investigations the assistance of forensic investigators from another police region will be sought. 265.", "The presumption is that a police officer who needs to resort to force in the exercise of his duty is normally entitled to claim justification through superior orders or self-defence. A police officer in such a position is therefore not viewed as a criminal suspect unless it is clear at the outset that there is reasonable doubt on this point; he will be questioned as a witness, though under caution that he is not obliged to incriminate himself. 266. The Chief Public Prosecutor, who bears the ultimate responsibility for the investigation and the decision whether to bring a prosecution, is required to ensure that the investigation is not under any circumstances supervised by a public prosecutor who maintains close links with the police unit to which any police officers concerned belong; every appearance of a lack of independence is to be avoided. 267.", "If the violent incident has involved the use of a firearm, then before deciding whether or not to bring a prosecution the Chief Public Prosecutor is required to submit the decision he proposes to take and the supporting documents to the Advisory Board on Police Use of Firearms, which will give an advisory opinion within seven working days. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 268. Article 2 of the Convention provides as follows: “1. Everyone’s right to life shall be protected by law.", "No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” 269. The applicants raised a number of complaints under Article 2 of the Convention. 270.", "They submitted, firstly, that the death of Moravia Ramsahai had not been absolutely necessary for any of the purposes set out in the second paragraph of that Article. They submitted, secondly, that the investigation following Moravia Ramsahai’s death had been deficient. More specifically, they argued that: (a) the investigation could not be considered “independent”, since essential parts of it had been carried out by the Amsterdam/Amstelland police force, the very force to which Officers Brons and Bultstra belonged; (b) after the first door-to-door search for witnesses in the Huigenbos building itself, no further efforts had been made to find civilian witnesses, and in fact some had even been turned away; (c) Officers Brons and Bultstra had not been questioned until several days after the fatal shooting, during which time they had had the opportunity to discuss the incident with others and with each other; (d) several forensic investigations which one would normally expect in a case such as the present had not been carried out: thus, no attempt had been made to establish the precise trajectory of the bullet (which the applicants submitted would have been possible), the hands of Officers Brons and Bultstra had not been tested for gunshot residue, no report of any examination of Officer Brons’s service weapon and ammunition or of the spent cartridge was contained in the investigation file, and there had been no reconstruction of the incident; (e) Police Commissioner Van Riessen’s refusal to cooperate with any further investigation was evidence of subjective bias; (f) the National Police Internal Investigations Department could not be considered independent and impartial, since at the time it reported to the local Chief Public Prosecutor, who was also responsible for the local public prosecution service and the local police; (g) Officers Brons and Bultstra had been provided with a single lawyer, which was contrary to normal practice in the Netherlands; (h) the decision not to prosecute Officer Brons had been taken by an Amsterdam public prosecutor who was specifically responsible for the police work carried out at Flierbosdreef police station and who was dependent on the officers based there for assistance and information. 271. The applicants complained under both Article 2 and Article 6 of the Convention that the investigation had not been independent and effective.", "They raised the following complaints about the procedure followed by the Court of Appeal: (a) the hearing had not been public, nor had the decision been pronounced in open court; (b) certain documents had been denied them, including an official report by the public prosecutor, which however had been available to the Acting Procurator General at the Court of Appeal and the Court of Appeal itself; (c) requests for Officers Brons and Bultstra to be examined in public, for access to Officer Brons’s service record (including any complaints against him), and for a reconstruction of the incident involving Officers Brons and Bultstra, had not been entertained; (d) the Court of Appeal had undertaken no independent investigation of its own, but had relied on information provided by the Amsterdam/Amstelland police force and the National Police Internal Investigations Department; (e) the hearing had been held before a single judge, whereas the decision had apparently been given by three judges; (f) as far as could be established, no official record had been kept of the Court of Appeal’s hearing, which was contrary to the law. 272. The Government denied that there had been any violation of Article 2. A. The death of Moravia Ramsahai 1.", "Establishment of the facts 273. In assessing evidence, the Court applies the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, among other authorities, Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII, and Cyprus v. Turkey [GC], no. 25781/94, §§ 112-13, ECHR 2001‑IV).", "274. The Chamber established the facts surrounding the death of Moravia Ramsahai as follows (§§ 356-71 of the Chamber judgment): “356. It is necessary for the Court to establish the facts concerning the death of Moravia Ramsahai. 357. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case.", "Nonetheless, where allegations are made under Article 2 of the Convention, the Court must apply a particularly thorough scrutiny even if certain domestic proceedings and investigations have already taken place (see Aktaş v. Turkey, no. 24351/94, § 271, 24 April 2003). 358. Without prejudice to its findings under Article 2 in its procedural aspect, the Court would note that the official investigation undertaken into the events at issue appears to have been thorough and that its findings were recorded in considerable detail. The investigation comprised interviews with the police officers involved in the matter and with a large number of civilian witnesses including some brought forward on behalf of the applicants, as well as the gathering of forensic evidence.", "The Court will base its own examination of the case on the factual information which it has gleaned from the official documents submitted, as paraphrased above, qualified as necessary by information from other sources. 359. The evidence shows that before the fatal shooting Moravia Ramsahai twice displayed threatening behaviour involving the use of a pistol. The first such incident occurred in the Burger King restaurant on the Leidseplein, when Moravia Ramsahai pointed a pistol at Ms Najima Boujedaine. The second happened at the Kwakoe festival site, when he forced Mr Vinodkumar Hoeseni at gunpoint to hand over his scooter.", "360. Mr Hoeseni reported the theft of his scooter to the first policemen he saw, Officers Dekker and Boonstra, who were on surveillance duty and unarmed. Together the three of them set off in pursuit. However, the scooter was going too fast for them to catch up. The officers then reported the theft by radio to the local police station, giving a description of the thief and the scooter and the direction the thief had taken.", "The duty officer immediately ordered all available police personnel to pursue the thief. 361. Afterwards, Officers Dekker and Boonstra stated that Mr Hoeseni had not told them until later that Moravia Ramsahai had a gun; had they known, being unarmed themselves they would never have gone after him and they would certainly have warned their colleagues. Mr Hoeseni, however, maintained that he had in fact mentioned the pistol but had been misheard. Whatever the accuracy of Mr Hoeseni’s statement, the Court accepts that Officers Dekker and Boonstra did not hear him mention that Moravia Ramsahai was armed.", "362. Of the police officers in the vicinity, the first able to respond to the order were Officers Brons and Bultstra who were patrolling the Bijlmermeer district together in a marked police car. They spotted Moravia Ramsahai riding towards the Huigenbos building and gave chase. 363. Officers Brons and Bultstra saw Moravia Ramsahai ride the scooter into a doorway of the Huigenbos building.", "Officer Brons, the driver, parked the car. Meanwhile, Officer Bultstra got out and ran towards the doorway. He was holding a portable two-way radio set. 364. Moravia Ramsahai’s behaviour was defiant and he resisted arrest.", "He tried to get away. Officer Bultstra tried to grab hold of him. There was a brief struggle, from which Moravia Ramsahai managed to break loose. At a distance of several metres from Officer Bultstra, Moravia Ramsahai adopted a threatening posture and drew his pistol. 365.", "The Court discounts the statements of civilian witnesses who stated that Moravia Ramsahai was in fact unarmed. It is apparent that these persons witnessed the events from considerable distances and in failing light. Moreover, these statements are inconsistent with the subsequent finding of the pistol, with the evidence showing Moravia Ramsahai to have drawn a pistol fitting the description of the one found against two other persons before the fatal incident, and with the statement of Mr Van den Heuvel, who witnessed part of the events from close by. 366. Seeing Moravia Ramsahai’s pistol and feeling threatened, Officer Bultstra dropped or threw away his two-way radio, drew his service pistol and in a loud voice ordered Moravia Ramsahai at least once to drop his gun.", "Moravia Ramsahai then pointed his pistol towards the ground, but in a manner which Officer Bultstra found threatening, and tried to walk away. 367. By this time Officer Brons had parked and locked the car and had arrived to help Officer Bultstra. He saw Moravia Ramsahai holding a pistol, which, despite being covered by Officer Bultstra and in defiance of the order to drop it, he did not let go of. 368.", "The pistol which Moravia Ramsahai held in his hand was cocked and loaded with five live rounds, one of which was chambered, and was ready to fire. 369. Both Officer Brons and Officer Bultstra saw Moravia Ramsahai turning and raising the hand holding the pistol. Officer Brons saw Moravia Ramsahai point the pistol in his direction. He therefore drew his service pistol – which he had not yet done – and fired once.", "370. Officer Brons did not shoot to kill; in fact, he did not aim at any particular part of Moravia Ramsahai’s body. His concern was to end a threatening situation immediately. 371. The bullet fired by Officer Brons pierced Moravia Ramsahai’s brachiocephalic (innominate) artery, an artery which branches off from the aortic arch and ultimately provides half of the brain’s blood supply, and a major vein in the neck.", "Moravia Ramsahai lost consciousness in seconds and bled to death in minutes.” 275. As will appear below, the Court has concerns about the independence and quality of the investigation into Moravia Ramsahai’s death. In particular, there is an apparent discrepancy between the statements of Officers Brons and Bultstra themselves, who both stated that it had been Officer Brons who had fired the fatal shot (see paragraph 18 above), and Officers Braam and Van Daal, the police officers in charge of monitoring police radio traffic, who both stated that they had heard Officer Bultstra report that he had fired the shot and call for an ambulance (see paragraphs 49 and 56 above). Moreover, the early stages of the investigation were handled by colleagues of Officers Brons and Bultstra on the Amsterdam/Amstelland police force. 276.", "However, the Chamber’s establishment of the facts has not been seriously contested: the Government have not commented on it, and the applicants have been content merely to refer in general terms to their factual statements to the Chamber without pointing to inaccuracies in the Chamber’s findings of fact or suggesting an alternative version of events. 277. The account of Moravia Ramsahai’s behaviour given by Officers Brons and Bultstra is consistent with the known facts of Moravia Ramsahai’s drawing a pistol in the Burger King restaurant on Leidseplein (see the statement made by Ms Boujedaine, paragraphs 75-76 above) and his using a pistol to threaten Mr De Getrouwe (see his statement, paragraph 84 above) and to rob Mr Hoeseni of his scooter (see his statements, paragraphs 31 and 158 above, and the statement made by Ms Bhondoe, paragraph 34 above). It is also consistent with the statements of the witness Mr Van den Heuvel (see paragraphs 37-38 and 93 above). 278.", "Against this background the Court sees no reason to call into question the accounts given by Officers Brons and Bultstra. It accepts therefore that Officer Bultstra dropped his two-way radio to draw his service pistol. It may well be that Officers Braam and Van Daal misheard and that it was in fact Officer Brons who called for an ambulance. The fact that until the afternoon of the day following the shooting the investigation was in the hands of the Amsterdam/Amstelland police force will be considered separately below. 279.", "In the circumstances, and given the position taken by the parties as regards the establishment of the facts by the Chamber, the Court will consider the case in the light of those facts. 2. The Chamber judgment 280. The Chamber found that Officers Brons and Bultstra had been entirely unaware that Moravia Ramsahai was armed, and that they had thus had no reason to believe that they would be called upon to effect anything other than a routine arrest. 281.", "The Chamber also found that Officer Bultstra had drawn his service weapon only after Moravia Ramsahai had drawn his pistol, and that Officer Brons had drawn his service weapon and fired only after Moravia Ramsahai, defying unambiguous warnings to give up his weapon, had begun to raise his pistol towards him. 282. Having thus established the facts, the Chamber was unable to find that Officers Brons and Bultstra ought to have sought further information or called for reinforcement. It went on to hold that the use of lethal force had not exceeded what was “absolutely necessary” for the purposes of effecting the arrest of Moravia Ramsahai and protecting the lives of Officers Brons and Bultstra and that, consequently, the shooting of Moravia Ramsahai by Officer Brons did not constitute a violation of Article 2 of the Convention. 3.", "The parties’ submissions (a) The applicants 283. In the applicants’ submission, even assuming that the violence inflicted on Moravia Ramsahai had been intended to effect his “lawful arrest”, Officers Brons and Bultstra had acted without proper planning. They had neglected to ask for relevant information, further instructions or reinforcement, all of which might have minimised any risk to life to the greatest extent possible. (b) The Government 284. The Government relied on the findings of the Amsterdam Court of Appeal.", "That court had found that Moravia Ramsahai had threatened Officer Brons with a lethal weapon – a cocked pistol with a round chambered – and had thus himself created the situation in which the use of force, even lethal force if need be, became no less than an absolute necessity. 285. The Government further stated that appropriate care had been taken to ensure that any risk to life was minimised and that the police officers concerned had not been negligent in their course of action. It was inappropriate to discuss with the benefit of hindsight the merits of alternative tactics. 4.", "The Court’s assessment 286. The Court reiterates that the exceptions delineated in paragraph 2 of Article 2 of the Convention indicate that this provision extends to, but is not concerned exclusively with, intentional killing. The text of Article 2, read as a whole, demonstrates that paragraph 2 does not primarily define instances where it is permitted to kill an individual intentionally, but describes the situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than “absolutely necessary” for the achievement of one of the purposes set out in sub-paragraphs (a), (b) or (c) (see Oğur v. Turkey [GC], no. 21594/93, § 78, ECHR 1999‑III).", "287. In this respect the use of the term “absolutely necessary” in Article 2 § 2 indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under the second paragraph of Articles 8 to 11 of the Convention. In particular, the force used must be strictly proportionate to the achievement of the aims set out in sub-paragraphs 2 (a), (b) and (c) of Article 2 (ibid.). 288. The Court has already decided to accept the Chamber’s assessment of the facts surrounding the death of Moravia Ramsahai, which was not seriously challenged (see paragraphs 276-79 above).", "Having done so, the Court cannot find fault with the Chamber’s finding that the fatal shot fired by Officer Brons was “no more than absolutely necessary” as that term is to be understood for the purposes of Article 2 of the Convention. 289. The Court is therefore satisfied that the shooting of Moravia Ramsahai did not violate Article 2 of the Convention. B. The investigation following the shooting 1.", "The Chamber judgment (a) Effectiveness of the investigation 290. The Chamber did not find it established that the domestic authorities had turned away or failed to seek out witnesses who might have contributed accurate and relevant information to the investigation file, as the applicants alleged. 291. The Chamber agreed with the applicants that certain investigative measures of which no report was contained in the investigation file – namely, the determination of the precise trajectory of the fatal bullet; the testing of the police officers’ hands for gunshot residue; the examination of the weapon used, its ammunition and the spent cartridge; and the reconstruction of the incident – should normally be features of investigations into gunshot deaths. However, in the present case there had never been any doubt about the identity of the suspect and the circumstances of the incident could be adequately established without those examinations; their omission had therefore not impaired the effectiveness of the investigation as a whole.", "292. The Chamber agreed that statements could and should have been taken from Officers Brons and Bultstra sooner, so that they could be checked against each other and subsequently against the forensic evidence as necessary. Even so, it was not possible to find that Officers Brons and Bultstra had colluded with each other or with other police officers to obstruct the proper course of the investigation. 293. In conclusion, the Chamber found no violation of Article 2 as far as the effectiveness of the investigation was concerned.", "(b) Independence of the investigation 294. The Chamber accepted that the National Police Internal Investigations Department, a nationwide service with its own chain of command and answerable to the country’s highest prosecuting authority, the Procurators General, had sufficient independence for the purposes of Article 2 of the Convention. 295. It found, however, that essential parts of the investigation had been carried out by the same force, acting under its own chain of command, to which Officers Brons and Bultstra belonged (the Amsterdam/Amstelland police force), namely, the forensic examination of the scene of the shooting, the door-to-door search for witnesses and the initial questioning of witnesses, including police officers who also belonged to the Amsterdam/Amstelland police force. It further noted that other investigations had been undertaken by the Amsterdam/Amstelland police force at the behest of the National Police Internal Investigations Department.", "296. That being so, and considering also that supervision even by an independent body was not sufficient to ensure full independence of the investigation, the Chamber held that there had been a violation of Article 2 in its procedural aspect. (c) Involvement of the applicants 297. The Chamber observed that disclosure or publication of police reports and investigative materials might involve sensitive issues with possible prejudicial effects for private individuals or other investigations. It could not therefore be regarded as an automatic requirement under Article 2 that the surviving next-of-kin be kept abreast of the investigations as they went along.", "Similarly, the investigating authorities could not be required to indulge every wish of a surviving relative as regards investigative measures. In any event, the Chamber had found the investigation into the death of Moravia Ramsahai to be sufficiently effective. 298. The Chamber did not find it established that the applicants had been denied access to certain documents entirely. 299.", "Consequently, the Chamber held that the applicants had been granted access to the information yielded by the investigation to a degree sufficient for them to participate effectively in proceedings aimed at challenging the decision not to prosecute Officer Brons. (d) Procedure followed by the Court of Appeal 300. The Chamber held that the proceedings before the Court of Appeal did not have to include a public hearing. It agreed with the Government that a person whom it was not appropriate to put on trial should be spared the unpleasantness of being made a public spectacle. 301.", "The fact that the Court of Appeal’s decision was not given in public was another matter. Where it was decided that a person invested with public authority at whose hands a human being had died should not face criminal proceedings, Article 2 required, in the Chamber’s opinion, that the decision be open to public scrutiny. (e) The role of the public prosecutor 302. The Chamber expressed concern about the appointment of the public prosecutor connected to the same police station as Officers Brons and Bultstra themselves to supervise the investigation into the shooting. Even so, it found that the public prosecutor’s measure of independence, when considered together with the possibility for the applicants to seek review by the Court of Appeal of the decision not to prosecute, satisfied the requirements of Article 2.", "2. The parties’ submissions (a) The applicants 303. The applicants essentially restated the position which they had put to the Chamber. 304. In the applicants’ submission, a violation of the procedural requirements of Article 2 was constituted by the Court of Appeal’s failure to consider statements made by persons other than Officers Brons and Bultstra and Mr Van den Heuvel.", "Mr Van den Heuvel had not even seen the actual shot fired. Evidence had not been taken from other witnesses, in particular Ms Lieveld, Ms Rijssel, Mr Chitanie and Mr Van Rij, in spite of the applicants’ requests that they be examined by the Court of Appeal, and their statements had been ignored. 305. Certain investigative measures that were normally to be expected in a case such as the present had been omitted, including testing for gunshot residue on the police officers’ hands and presumably elsewhere, and a reconstruction of the events and of the bullet’s trajectory. Also missing were the drawings or photographs made at the autopsy, showing the entry and exit wounds left by the bullet.", "306. A major part of the investigation, including some investigative measures which could not readily be repeated afterwards, had been undertaken by police officers belonging not only to the same police force as Officers Brons and Bultstra – the Amsterdam/Amstelland force – but even to the same police station, Flierbosdreef in Amsterdam, and therefore clearly belonging to the same chain of command. This, in the applicants’ submission, was all the more regrettable in view of the fact that officers appearing at the scene had turned away material witnesses, Ms Rijssel and Ms Lieveld, and perhaps others whose names had not been recorded. It had been left to the applicants and their counsel to find them again later. 307.", "As regards the National Police Internal Investigations Department, before the Grand Chamber the applicants accepted that it was under the authority of the highest prosecuting authorities and did not call into question its independence vis-à-vis the Amsterdam/Amstelland police force. However, the National Police Internal Investigations Department’s investigation had not taken place under the responsibility of a prosecuting authority unrelated to the Amsterdam/Amstelland police force. It had taken place under the responsibility of Public Prosecutor De Vries, whose position in relation to the Amsterdam/Amstelland police force could hardly be regarded as independent. 308. It was true that the National Police Internal Investigations Department had interviewed Officers Brons and Bultstra.", "However, this had been done long after the shooting and after Officers Brons and Bultstra had had the opportunity to discuss the case with others – including Police Commissioner Van Riessen. In addition, Officers Brons and Bultstra had been allowed to resume their duties while the investigation was still pending and while important information was still being committed to paper by officers of their own police station, Flierbosdreef. 309. As long as the investigation was pending, the applicants had been denied any involvement or access to the case file, despite requests made on their behalf by counsel. This situation continued until after the public prosecutor had decided that a prosecution should not be brought.", "Moreover, it was only after the public prosecutor had notified the applicants of this decision that she had agreed to see the applicants. 310. The proceedings before the Court of Appeal had not involved the applicants sufficiently for their interests to be safeguarded. Reasonable requests, including a request for copies of certain documents from the case file and for certain investigative measures, had been refused. Nor, in the applicants’ submission, was it at all clear why these proceedings could not have been public.", "(b) The Government 311. The Government maintained that Article 2 of the Convention did not contain a free-standing obligation to conduct an effective and independent investigation after a death had occurred at the hands of State agents, in the sense that procedural standards should be considered separately from the circumstances of such a death. 312. In any case, the Chamber’s finding that the shooting of Moravia Ramsahai did not constitute a violation of Article 2 of the Convention, based as it was on the findings of the police investigation, showed that that investigation had not been flawed to the extent that it had failed to meet the procedural standards required by that Article. 313.", "The investigation following Moravia Ramsahai’s death had been conscientious and thorough. The local police had immediately secured all evidence at the scene and collected all necessary information. The Chamber’s judgment, in finding a violation of Article 2 in that investigative measures had been undertaken by the local police force, had overlooked the crucial importance of securing evidence immediately after an incident. If the local police were forced to wait passively for the National Police Internal Investigations Department to arrive, important information could be lost: witnesses could leave before their names could be taken down, and physical traces could disappear owing to weather conditions or simply because of people walking by. 314.", "Since in most cases the local police could be present before the National Police Internal Investigations Department, it was in fact normal practice for the local police to secure the available evidence and hand over the investigation to the Department as soon as its officers arrived. The latter would then take any necessary further measures. 315. The National Police Internal Investigations Department had admittedly made use of investigation reports prepared by the local police force to which Officer Brons himself belonged. However, the National Police Internal Investigations Department itself had undertaken extensive additional investigations and had repeated the work of the local police to the extent that it was necessary and worthwhile to do so.", "316. It was true that complaint proceedings under Article 12 of the Code of Criminal Procedure were not public. The Government explained that this was in order to protect individuals the prosecuting authorities might not intend to prosecute – who very possibly did not deserve to be prosecuted and might even have been falsely accused – from being stigmatised in public. Given, in particular, the presumption of innocence, it was reasonable that the balance between the interests of the person seeking the prosecution of another and the person whose prosecution was sought should come down in favour of the latter. 317.", "This applied all the more in cases involving public servants. A statutory duty to make public the outcome of proceedings under Article 12 of the Code of Criminal Procedure in cases involving them might harm their subsequent effectiveness. 318. Any publicity requirement was sufficiently met by the involvement of the complainant in the proceedings and by the possibility for the complainant to bring the issue to public notice as the applicants themselves had done. 319.", "It was also true that there had been neither a reconstruction of the events nor a ballistics report, but none had been needed. It was established that the bullet which killed Moravia Ramsahai had been fired from Officer Brons’s service pistol; Officer Brons had never denied firing the fatal shot. The absence of a reconstruction of the events and of a ballistics report had not prevented the Court of Appeal from finding that Officer Brons had fired in self-defence. 320. There had admittedly been a delay of two days after the incident before Officers Brons and Bultstra were questioned.", "This reflected a decision to interview them only once the forensic evidence and the first witness statements had been obtained. If necessary, the officers could then have been confronted with these and thus questioned more effectively. In any event, there had been no reason to regard Officers Brons and Bultstra as likely to evade questioning or to abscond. 3. The Court’s assessment (a) Applicable principles 321.", "The Court has stated the applicable principles as follows (see, as a recent authority, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, §§ 110 and 112-13, ECHR 2005‑VII, case-law references omitted): “110. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to ‘secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention’, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force ... The essential purpose of such an investigation is to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility ... ... 112. For an investigation into alleged unlawful killing by State agents to be effective, the persons responsible for and carrying out the investigation must be independent and impartial, in law and in practice ... 113.", "The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances and to the identification and punishment of those responsible ... The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. The investigation’s conclusions must be based on thorough, objective and impartial analysis of all relevant elements and must apply a standard comparable to the ‘no more than absolutely necessary’ standard required by Article 2 § 2 of the Convention. Any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required measure of effectiveness ...”; and also as follows (see, among many other authorities, Anguelova v. Bulgaria, no. 38361/97, § 140, ECHR 2002‑IV): “140.", "There must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory, maintain public confidence in the authorities’ adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts. 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 ...” 322. The Court would observe at this point that the obligation to carry out a prompt and effective investigation when individuals have been killed as a result of the use of force, and to bring, or enable, such proceedings as may be appropriate to the case, is not dependent on whether the said use of force itself is ultimately found to constitute a violation of Article 2 of the Convention. (b) Effectiveness of the investigation 323.", "The Court finds it opportune to clarify the scope and content of its examination of the effectiveness of the investigation. 324. In order to be “effective” as this expression is to be understood in the context of Article 2 of the Convention, an investigation into a death that engages the responsibility of a Contracting Party under that Article must firstly be adequate. That is, it must be capable of leading to the identification and punishment of those responsible. This is not an obligation of result, but one of means.", "The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to identify the perpetrator or perpetrators will risk falling foul of this standard (see Tahsin Acar v. Turkey [GC], no. 26307/95, § 223, ECHR 2004‑III). 325. Secondly, for the investigation to be “effective” in this sense it may generally be regarded as necessary for the persons responsible for it and carrying it out to be independent from those implicated in the events.", "This means not only a lack of hierarchical or institutional connection but also a practical independence (see Tahsin Acar, cited above, § 222). What is at stake here is nothing less than public confidence in the State’s monopoly on the use of force. (i) Adequacy of the investigation 326. The applicants correctly pointed out that several forensic examinations which one would normally expect in a case such as the present had not been carried out: thus, no attempt had been made to determine the precise trajectory of the bullet (which the applicants submitted would have been possible); the hands of Officers Brons and Bultstra had not been tested for gunshot residue; no report of any examination of Officer Brons’s service weapon and ammunition or of the spent cartridge was contained in the investigation file; the autopsy report, as filed, did not comprise any drawings or photographs showing the entry and exit wounds caused by the fatal bullet; and there had been no reconstruction of the incident. Lastly, Officers Brons and Bultstra had not been questioned until several days after the fatal shooting, during which time they had had the opportunity to discuss the incident with others and with each other.", "327. It is true that no attempt was made to establish the trajectory of the bullet. It may be questioned whether this could have been determined on the basis of the information available, since after hitting Moravia Ramsahai, the bullet left no trace apart from a shattered pane of glass (see paragraph 230 above). 328. However, the Court considers that the other failings pointed out by the applicants impaired the adequacy of the investigation.", "On this point its findings differ from those of the Chamber. 329. The failure to test the hands of the two officers for gunshot residue and to stage a reconstruction of the incident, as well as the apparent absence of any examination of their weapons (see paragraph 236 above) or ammunition and the lack of an adequate pictorial record of the trauma caused to Moravia Ramsahai’s body by the bullet (see paragraph 224 above), have not been explained. 330. What is more, Officers Brons and Bultstra were not kept separated after the incident and were not questioned until nearly three days later (see paragraphs 94 and 107 above).", "Although, as already noted, there is no evidence that they colluded with each other or with their colleagues on the Amsterdam/Amstelland police force, the mere fact that appropriate steps were not taken to reduce the risk of such collusion amounts to a significant shortcoming in the adequacy of the investigation. 331. These lacunae in the investigation are all the more regrettable in that there were no witnesses who saw the fatal shot fired from close by, except for Officers Brons and Bultstra themselves. The Court has already drawn attention to the inconsistency between the statements of Officers Brons and Bultstra, who stated that the fatal shot was fired by Officer Brons, and those of Officers Braam and Van Daal, who both stated that they had heard Officer Bultstra report that it was he who had fired and call for an ambulance (see paragraph 275 above). 332.", "There has accordingly been a violation of Article 2 of the Convention in that the investigation into the circumstances surrounding the death of Moravia Ramsahai was inadequate. (ii) Independence of the police investigation 333. The independence of the National Police Internal Investigations Department has not been questioned before the Grand Chamber, which for its part sees no reason to reach a different conclusion from that of the Chamber on this point. 334. However, fifteen and a half hours passed from the time of Moravia Ramsahai’s death until the National Police Internal Investigations Department became involved in the investigation (see paragraph 89 above).", "No explanation for this delay has been given. 335. It has not been disputed that essential parts of the investigation were carried out by the same force to which Officers Brons and Bultstra belonged, the Amsterdam/Amstelland police force: namely, the forensic examination of the scene of the shooting, the door-to-door search for witnesses and the initial questioning of witnesses, including police officers who also belonged to the Amsterdam/Amstelland police force (see paragraphs 26-88 above). 336. After the National Police Internal Investigations Department took over, further investigations were undertaken by the Amsterdam/Amstelland police force, although at the National Police Internal Investigations Department’s behest and under its responsibility (see paragraph 89 above).", "337. The Court has had occasion to find a violation of Article 2 in its procedural aspect in that an investigation into a death in circumstances engaging the responsibility of a public authority was carried out by direct colleagues of the persons allegedly involved (see Aktaş, cited above, § 301). Supervision by another authority, however independent, has been found not to be a sufficient safeguard for the independence of the investigation (see Hugh Jordan v. the United Kingdom, no. 24746/94, § 120, 4 May 2001, and McKerr v. the United Kingdom, no. 28883/95, § 128, ECHR 2001-III).", "338. Whilst it is true that to oblige the local police to remain passive until independent investigators arrive may result in the loss or destruction of important evidence, the Government have not pointed to any special circumstances that necessitated immediate action by the local police force in the present case going beyond the securing of the area in question; there is no need for the Court to consider this question in the abstract. 339. What is more, in another case that has come to the Court’s notice and which involves the same respondent Party, the National Police Internal Investigations Department appeared four and a half hours after a fatal shooting had taken place (see Romijn v. the Netherlands (dec.), no. 62006/00, 3 March 2005).", "In addition, as stated by the Minister of Justice to Parliament, the National Police Internal Investigations Department are able to appear on the scene of events within, on average, no more than an hour and a half. Seen in this light, a delay of no less than fifteen and a half hours is unacceptable. 340. As to the investigations of the Amsterdam/Amstelland police force after the National Police Internal Investigations Department took over, the Court finds that the Department’s subsequent involvement cannot suffice to remove the taint of the force’s lack of independence. 341.", "On these grounds alone the Court therefore finds that there has been a violation of Article 2 of the Convention in that the police investigation was not sufficiently independent. (iii) The role of the public prosecutor 342. The police investigation was carried out under the supervision of an Amsterdam public prosecutor who was specifically responsible for the police work carried out at Flierbosdreef police station (see paragraph 89 above). The same public prosecutor took the decision not to prosecute Officer Brons under authority delegated to her by the Chief Public Prosecutor (see paragraph 237 above). 343.", "In the Netherlands the Public Prosecution Service, although it does not enjoy full judicial independence (see paragraph 250 above), has a hierarchy of its own, separate from the police, and in operational matters of criminal law and the administration of justice the police are under its orders (see paragraphs 251 and 252 above). 344. Public prosecutors inevitably rely on the police for information and support. This does not in itself suffice to conclude that they lack sufficient independence vis-à-vis the police. Problems may arise, however, if a public prosecutor has a close working relationship with a particular police force.", "345. In the present case, it would have been better if the investigation had been supervised by a public prosecutor unconnected to the Amsterdam/Amstelland police force, especially given the involvement of the Amsterdam/Amstelland police force in the investigation itself. Even so, note must be taken of the degree of independence of the Netherlands Public Prosecution Service and the fact that ultimate responsibility for the investigation was borne by the Chief Public Prosecutor. What is more, the possibility of review by an independent tribunal existed and the applicants actually made use of it. 346.", "There has not therefore been a violation of Article 2 on this point. (c) Involvement of the applicants 347. The disclosure or publication of police reports and investigative materials may involve sensitive issues with possible prejudicial effects for private individuals or other investigations. It cannot therefore be regarded as an automatic requirement under Article 2 that a deceased victim’s surviving next-of-kin be granted access to the investigation as it goes along. The requisite access of the public or the victim’s relatives may be provided for in other stages of the available procedures (see, among other authorities, McKerr, cited above, § 129).", "348. The Court does not consider that Article 2 imposes a duty on the investigating authorities to satisfy every request for a particular investigative measure made by a relative in the course of the investigation. 349. The Chamber found that the applicants had been granted access to the information yielded by the investigation to a degree sufficient for them to participate effectively in proceedings aimed at challenging the decision not to prosecute Officer Brons. The Court notes that neither party has offered any further argument on this subject; for its part, it agrees with the Chamber and sees no reason to take a different view of the matter.", "350. There has not therefore been a violation of Article 2 in this regard. (d) Procedure followed by the Court of Appeal 351. Argument before the Grand Chamber was focused on whether the proceedings and the decision of the Court of Appeal should have been public. 352.", "The Court will deal below with the question whether Article 6 of the Convention applies to proceedings under Article 12 of the Netherlands Code of Criminal Procedure. For the purposes of Article 2 of the Convention, however, it agrees with the Chamber that such proceedings are not to be equated with a prosecution but are intended solely to allow a decision not to prosecute to be challenged. 353. Article 2 does not go so far as to require all proceedings following an inquiry into a violent death to be public. As stated in, for example, Anguelova (cited above, see paragraph 321), the test is whether there is a sufficient element of public scrutiny in respect of the investigation or its results to secure accountability in practice as well as in theory, maintain public confidence in the authorities’ adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts.", "It must be accepted in this connection that the degree of public scrutiny required may well vary from case to case. 354. Turning to the facts of the present case, the Court agrees with the Chamber that the Court of Appeal’s proceedings did not have to be open to the public. Unlike the Chamber, however, the Court takes the view that the Court of Appeal’s decision was not required to be made public either. The applicants were allowed full access to the investigation file and were enabled to participate effectively in the Court of Appeal’s hearing; they were provided with a reasoned decision.", "There was thus little likelihood that any authority involved in the case might have concealed relevant information from the Court of Appeal or the applicants. In addition, given that the applicants were not prevented from making the decision public themselves, the Court takes the view that the requirement of publicity was satisfied to an extent sufficient to obviate the danger of any improper cover-up by the Netherlands authorities. 355. There has accordingly not been a violation of Article 2 as regards the procedure followed by the Court of Appeal. (e) Conclusion 356.", "The investigation into the death of Moravia Ramsahai has been shown to have fallen short of the applicable standards, in that it was flawed to the extent of impairing its adequacy (see paragraph 332 above) and in that part of it was left to the police force to which Officers Brons and Bultstra belonged (see paragraph 341 above). To that extent there has been a failure to comply with the procedural obligation imposed by Article 2 of the Convention. 357. There has not, however, been a violation of Article 2 in that the investigation was supervised by the public prosecutor to whose authority Officers Brons and Bultstra and their colleagues were subject (see paragraph 346 above), nor as regards the conditions of the applicants’ access to the investigation (see paragraph 350 above), nor in that the proceedings under Article 12 of the Code of Criminal Procedure were not public, nor in that the Court of Appeal’s decision of 26 April 1999 was not made public (see paragraph 355 above). II.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 358. The relevant part of Article 6 of the Convention provides: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. ...” 1.", "The Chamber judgment 359. The Chamber found that proceedings under Article 12 of the Netherlands Code of Criminal Procedure were not in any way decisive of civil rights or obligations and did not affect a party’s standing to bring civil proceedings; Article 6 of the Convention was not therefore applicable under its civil head. Nor was Article 6 applicable under its criminal head, the wording itself of that provision (“against him”) indicating that in criminal cases its guarantees protected the person facing the criminal charge. 2. The Court’s decision 360.", "Neither the applicants nor the Government submitted any argument on this point to the Grand Chamber. For its part, the Court sees no reason to come to a different conclusion from that of the Chamber; it accordingly holds that Article 6 is not applicable. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 361. Article 13 of the Convention 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.” 1.", "The Chamber judgment 362. The Chamber, noting that the applicants’ complaints under this provision coincided with their complaints under Article 2 in relation to the procedure followed, confined itself to its findings in respect of the latter. It considered that there was no separate issue under Article 13. 2. The Court’s decision 363.", "Like the Chamber, the Grand Chamber sees no separate issue under Article 13 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 364. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1.", "The Chamber judgment 365. The Chamber awarded the applicants collectively 20,000 euros (EUR) in respect of non-pecuniary damage. 2. The applicants’ claims 366. As they had before the Chamber, the applicants claimed EUR 30,000 in respect of non-pecuniary damage.", "They submitted no claim in respect of pecuniary damage. 367. The Government considered the applicants’ claims excessive. They also considered the Chamber’s award too high, given that the violation found had been procedural only. 3.", "The Court’s decision 368. Deciding on an equitable basis, the Court awards the applicants jointly EUR 20,000 plus any tax that may be chargeable in respect of non-pecuniary damage. B. Costs and expenses 1. The Chamber judgment 369.", "The Chamber awarded the applicants EUR 8,000 less the sum of EUR 701 they had received by way of legal aid from the Council of Europe, plus any tax that might be chargeable. 2. The applicants’ claims; arguments before the Grand Chamber 370. The applicants claimed EUR 1,818.18 including value-added tax (VAT) in respect of the domestic proceedings, that being the sum incurred up to the decision of the Court of Appeal. In respect of the proceedings before the Chamber, they claimed EUR 11,872.10 including VAT, less the EUR 701 they had received by way of legal aid from the Council of Europe.", "371. They additionally claimed EUR 1,800 for lawyers’ fees incurred in the Grand Chamber proceedings, plus EUR 900 for the costs of travel and subsistence necessary for attending the Grand Chamber’s hearing. 372. The total amount claimed is thus EUR 15,682.28, from which the legal aid received from the Council of Europe in respect of the Chamber and Grand Chamber proceedings falls to be deducted. 373.", "The Government did not comment on these amounts. 3. The Court’s decision 374. The Grand Chamber endorses the Chamber’s award as regards the costs and expenses incurred in the proceedings up until the Chamber judgment. 375.", "Rule 60 of the Rules of Court provides, in relevant part: “... 2. The applicant must submit itemised particulars of all claims, together with any relevant supporting documents, within the time-limit fixed for the submission of the applicant’s observations on the merits unless the President of the Chamber directs otherwise. 3. If the applicant fails to comply with the requirements set out in the preceding paragraphs the Chamber may reject the claims in whole or in part. ...” 376.", "The applicants’ claims in respect of the Grand Chamber proceedings were received after the time-limit laid down in Rule 60 § 2. No reason has been given as to why that time-limit was not met. The Court therefore rejects those claims. 377. An award can thus only be made in respect of the costs and expenses incurred up until the proceedings before the Chamber.", "The Court considers the Chamber’s own award under this head reasonable, that is, EUR 8,000 less the EUR 701 received by way of legal aid. It should also be noted that the applicants have received additional legal aid towards the costs of the present proceedings. 378. The Court thus awards the applicants EUR 7,299 under the head of costs and expenses, plus any tax that may be chargeable. C. Default interest 379.", "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 unanimously that the shooting of Moravia Ramsahai did not constitute a violation of Article 2 of the Convention; 2. Holds by thirteen votes to four that there has been a violation of Article 2 of the Convention in that the investigation into the death of Moravia Ramsahai was inadequate; 3. Holds by sixteen votes to one that there has been a violation of Article 2 of the Convention in that the investigation concerning the death of Moravia Ramsahai was insufficiently independent; 4.", "Holds by thirteen votes to four that there has been no violation of Article 2 of the Convention as regards the position of the public prosecutor supervising the police investigation into the death of Moravia Ramsahai; 5. Holds unanimously that there has been no violation of Article 2 of the Convention as regards the extent of the involvement of the relatives of Moravia Ramsahai in the investigation; 6. Holds by fifteen votes to two that there has been no violation of Article 2 of the Convention as regards the procedure before the Court of Appeal; 7. Holds by thirteen votes to four that Article 6 of the Convention is not applicable; 8. Holds unanimously that no separate issue arises under Article 13 of the Convention; 9.", "Holds by sixteen votes to one (a) that the respondent State is to pay the applicants jointly, within three months, the following amounts: (i) EUR 20,000 (twenty thousand euros) in respect of non-pecuniary damage; (ii) EUR 7,299 (seven thousand two hundred and ninety-nine 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 10. Dismisses unanimously the remainder of the applicants’ claims for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 15 May 2007. Michael O’BoyleJean-Paul CostaDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) joint partly dissenting opinion of Judges Rozakis, Bratza, Lorenzen and Vajić; (b) joint partly dissenting opinion of Judges Costa, Bratza, Lorenzen and Thomassen; (c) joint partly dissenting opinion of Judges Cabral Barreto, Botoucharova, Mularoni and Jočienė; (d) joint partly dissenting opinion of Judges Jočienė and Popović; (e) partly dissenting opinion of Judge Thomassen. J.-P.C.M.O.B.", "JOINT PARTLY DISSENTING OPINION OF JUDGES ROZAKIS, BRATZA, LORENZEN AND VAJIĆ 1. We voted against the finding of the majority that Article 6 of the Convention was not applicable in the present case. 2. Before the Chamber the applicants restated their procedural complaints under Article 2 of the Convention and argued that they gave rise additionally to a breach of Article 6. The Chamber rejected the complaint, finding Article 6 to be inapplicable under both its civil and criminal limbs.", "Before the Grand Chamber neither party submitted any argument under said Article. The majority of the Court followed the Chamber in finding Article 6 not to be applicable. Since the complaint does not appear to have been pursued before the Grand Chamber and since it does not in any event add anything to the complaint which has already been considered under Article 2, we would have preferred to find merely that it was unnecessary to examine the case separately under Article 6. JOINT PARTLY DISSENTING OPINION OF JUDGES COSTA, BRATZA, LORENZEN AND THOMASSEN 1. We are unable to agree with the majority of the Grand Chamber that the procedural requirements of Article 2 of the Convention were violated on the grounds that the investigation into the death of Moravia Ramsahai was inadequate.", "2. The principles governing the procedural requirements of Article 2 are well established in the Court’s case-law. The obligation to protect the right to life, combined with the States’ general duty under Article 1 to secure the rights and freedoms defined in the Convention, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. For an investigation into a killing to be “effective”, the person responsible for carrying out the investigation must be independent and impartial in law and in practice. However, the investigation must also be “effective” in the sense that it is capable of leading to a determination of whether the use of force was justified in the circumstances and to the identification of those responsible for the death and to their punishment if it was not.", "It is this latter aspect of the requirement of “effectiveness” (which is characterised in the judgment as one of the “adequacy” of the investigation) which the majority of the Court find not to have been satisfied in the present case. 3. As emphasised in the judgment, the procedural obligation in Article 2 is not one of result but of means. What is also clear from the Court’s case-law is that an investigation may satisfy the Convention requirements of effectiveness or adequacy even if it has not been shown that all possible investigative measures have been taken. A lacuna or deficiency in an investigation will give rise to a breach of the procedural obligation only if it is such as to undermine its capability of establishing the facts surrounding the killing or the liability of the persons responsible.", "Whether it does so must be assessed in the light of the particular circumstances of each case. 4. Before the Grand Chamber the applicants relied on six alleged deficiencies in the forensic and other investigations which were carried out into the death: (i) the lack of any attempt to determine the precise trajectory of the bullet; (ii) the failure to test the hands of Officers Brons and Bultstra for gunshot residue; (iii) the lack of evidence of any examination of Officer Brons’s service weapon and ammunition or of the spent cartridge; (iv) the absence from the autopsy report of any drawings or photographs showing the entry and exit wounds caused by the fatal bullet; (v) the lack of any reconstruction of the incident; and (vi) the fact that Officers Brons and Bultstra were not questioned for several days after the fatal shooting, during which time they had the opportunity to discuss the incident between themselves and with others. 5. Both the Chamber and the Grand Chamber, correctly in our view, rejected the applicants’ first criticism on the grounds that it was questionable whether the trajectory of the bullet could have been determined on the basis of the information available since, after striking Moravia Ramsahai, the bullet left no trace apart from a shattered pane of glass.", "6. As to the other alleged deficiencies, the findings of the Grand Chamber differ from those of the Chamber, the majority concluding, without more detailed reasoning, that the failings had not been explained (paragraph 329) and that they “impaired the adequacy of the investigation” (paragraph 328). 7. While we can agree that forensic examinations of the kind indicated in (ii) and (iii) above are not only in general of value but will often be an indispensable feature of an effective investigation into gunshot deaths, we share the view of the Chamber that, in the particular circumstances of the present case, the lack of any such examinations did not undermine the adequacy of the investigation into the death. Despite the apparent inconsistency between the statements of the two officers directly concerned and those of Officers Braam and Van Daal to which reference is made in paragraph 331 of the judgment, it was clearly established by the investigation, and has not been disputed, that one round only was fired during the incident which resulted in the death, that it was fired by Officer Brons and that his service weapon, still loaded with seven out of the total of eight rounds, together with one spent cartridge was handed over to the Forensic Laboratory in Rijswijk (see paragraphs 234­38 and 263 of the Chamber’s judgment).", "In these circumstances, it is not clear to us what a forensic examination of the hands of the two officers or of their weapons could have revealed. 8. A reconstruction of the scene of an incident resulting in death may also prove an important element of an effective investigation, particularly where there are or may have been several eyewitnesses of an incident resulting in death, whose memory of the events may be refreshed or clarified by a reconstruction. However, like the Chamber, we do not find that in the particular circumstances of the present case such a reconstruction was an indispensable part of the investigation or that its omission rendered the investigation inadequate. 9.", "The lack of any adequate pictorial record of the trauma caused to Moravia Ramsahai’s body by the bullet does not appear to have been expressly relied on by the applicants before the Chamber and is certainly not reflected in the Chamber’s judgment. The judgment of the Grand Chamber records, in paragraph 224, that “no drawings or photographs were appended to the autopsy report as contained in the investigation file”. While this is true, it is not the case that the investigation was devoid of photographic evidence. As noted in the Chamber’s judgment (paragraphs 255-80), a total of twenty-nine photographs were taken at the scene of the incident, including four photographs of the body of Moravia Ramsahai. Moreover, a detailed description of the bullet wound sustained by him was contained both in the provisional conclusion of the pathologist (see paragraph 252 of the Chamber’s judgment) and in the autopsy report itself (see paragraphs 222-23 of the Grand Chamber’s judgment).", "While it might have been desirable that the photographs of the bullet wound were appended to the report to confirm the findings of the pathologist, we cannot find that the omission to do so in any way undermined the effectiveness of the investigation. 10. The omission to separate Officers Brons and Bulstra or to question them until nearly three days after the incident is, in our view, more problematic. While, as noted in the Chamber’s judgment, there is no evidence that there was any collusion between the officers themselves or between the officers and other police officers, it was in our view clearly important that steps should have been taken to prevent any risk of collusion and that the statements of both officers should have been promptly obtained by an authority independent of the police. However, we see this deficiency as one related less to the adequacy of the investigation as a whole than to the lack of independence of the initial police investigation and to the failure of the National Police Internal Investigations Department to assume control over the investigation at the earliest opportunity – a matter which has led to the separate finding of a procedural violation of Article 2.", "11. Having examined in their totality the steps taken at the various stages of the investigation, which are summarised in the judgment, we are unable to share the view of the majority that the alleged deficiencies, whether considered individually or cumulatively, undermined the investigation as a whole, or rendered it inadequate. JOINT PARTLY DISSENTING OPINION OF JUDGES CABRAL BARRETO, BOTOUCHAROVA, MULARONI AND JOČIENĖ 1. We regret we are unable to follow the majority as regards the position of the public prosecutor supervising the police investigation into the death of Moravia Ramsahai (point 4 of the operative provisions). 2.", "We observe that the police investigation was carried out under the supervision of an Amsterdam public prosecutor who was responsible precisely for the police work done at Flierbosdreef police station. The same public prosecutor took the decision not to prosecute Officer Brons under authority delegated to her by the Chief Public Prosecutor. 3. We agree with the majority that public prosecutors are inevitably dependent on the police for information and support and that this circumstance does not in itself suffice to conclude that they lack sufficient independence vis-à-vis the police. Problems may arise, however, if a public prosecutor has a close working relationship with a particular police force (see paragraph 344 of the judgment).", "4. The Court has underlined in previous cases the importance not only of hierarchical and institutional independence but also of practical independence (see Mastromatteo v. Italy [GC], no. 37703/97, § 91, ECHR 2002-VIII, and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 70, ECHR 2002-II). 5.", "The Court has found in the present case that the investigation lacked independence in that important parts of it were carried out by direct colleagues of the police officers implicated in the death of Moravia Ramsahai (see paragraphs 333-41 of the judgment). We consider that the same conclusion must follow from the finding that the investigation was supervised by the very public prosecutor to whose authority the Flierbosdreef police station, to which Officers Brons and Bulstra belonged, was subject in its day-to-day work. 6. We conclude that there has accordingly also been a violation of Article 2 in this regard. JOINT PARTLY DISSENTING OPINION OF JUDGES JOČIENĖ AND POPOVIĆ 1.", "We regret that we are unable to follow the position of the majority that there has not been a violation of Article 2 of the Convention as regards the procedure before the Court of Appeal. 2. The applicants’ complaint under Article 12 of the Code of Criminal Procedure was heard in chambers by a “judge delegate” (raadsheer-commissaris) on 1 March 1999. Mr Hamer made extensive oral submissions on the applicants’ behalf. These included a request for an adjournment in order to add the official report of Public Prosecutor De Vries and Officer Brons’s service record (including, especially, some complaints recorded against him) to the file.", "3. On 26 April 1999 the Court of Appeal dismissed the applicants’ complaint against the public prosecutor’s decision not to prosecute. This decision was not made public. 4. As has been mentioned above, the Court of Appeal’s hearing was not public.", "We agree with the Grand Chamber’s ruling (see paragraph 353) that Article 2 does not go so far as to require all proceedings following an inquiry into a violent death to be public. When examining this point, we can follow the Chamber’s position as expressed in its judgment of 10 November 2005 (see paragraph 421) and also the Grand Chamber’s position (see paragraph 354) that the Court of Appeal’s proceedings did not have to be open to the public. 5. But, when analysing this aspect, we still share the doubts of the applicants mentioned in the judgment of the Grand Chamber (see paragraph 310) that “[t]he proceedings before the Court of Appeal had not involved the applicants sufficiently for their interests to be safeguarded ... Nor, in the applicants’ submission, was it at all clear why these proceedings could not have been public”.", "Nevertheless, we can agree with the Chamber (see paragraph 421 of the Chamber’s judgment) that a person whom it is not appropriate to put on trial should also be spared the unpleasantness of being made a public spectacle. 6. However, the lack of publicity of the Court of Appeal’s decision is another matter. To find a violation as regards the procedure before the Court of Appeal is the most important aspect for us. We totally agree with the Chamber’s position in its judgment of 10 November 2005 (see paragraph 422) that “[w]here it is decided that a person vested with public authority at whose hands a human being has died should not face criminal proceedings, Article 2 requires the decision to be open to public scrutiny (see Finucane [v. the United Kingdom, no.", "29178/95], § 79[, ECHR 2003‑VIII])”. 7. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Güleç v. Turkey, 27 July 1998, § 82, Reports of Judgments and Decisions 1998‑IV, and McKerr v. the United Kingdom, no.", "28883/95, § 148, ECHR 2001‑III, etc.). 8. Turning to the facts of the present case, we cannot agree with the position of the Grand Chamber (see paragraph 354 of the judgment): “... the Court takes the view that the Court of Appeal’s decision was not required to be made public either. ... In addition, given that the applicants were not prevented from making the decision public themselves, the Court takes the view that the requirement of publicity was satisfied to an extent sufficient to obviate the danger of any improper cover-up by the Netherlands authorities.” 9.", "We still think that a prompt and public decision given by the authorities in investigating the use of lethal force is essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, for example, Hugh Jordan v. the United Kingdom, no. 24746/94, §§ 108 and 136-40, 4 May 2001). And in our opinion, an obligation to make the decision public cannot be placed on the applicants. In such a sensitive case only a public decision could enable the applicants to protect their legitimate interests properly, if necessary by mounting legal challenges to the decision, and only a public decision could exclude any negative allusion concerning the actions taken by the authorities when examining a matter of such crucial importance. We also share the position of the applicants expressed in the Grand Chamber’s judgment (see paragraph 309) that the family had been denied any involvement in the investigation or access to the case file, which impaired their ability to protect their interests properly.", "10. And in our opinion there has accordingly been a violation of Article 2 as regards the procedure followed by the Court of Appeal and especially the fact that the decision of the Court of Appeal was not made public. PARTLY DISSENTING OPINION OF JUDGE THOMASSEN 1. I voted with the majority of the Grand Chamber on all aspects of the case, except for the finding that there had been a violation of the procedural limb of Article 2 of the Convention. 2.", "To the extent that this finding is based on the inadequacy of the investigation, I disagree with the majority for the reasons set out in the joint partly dissenting opinion of Judges Costa, Bratza, Lorenzen and myself. 3. However, I also disagree with the majority’s conclusion that there had been a violation of Article 2 because the investigation had not been carried out with the requisite independence. 4. Even if I share the view that the National Police Internal Investigations Department should have taken control of the investigation sooner and the two police officers should have been separated and questioned at an earlier stage, in my opinion the question whether these deficiencies gave rise to a breach of the procedural obligations under Article 2 should be assessed in the light of the particular circumstances of the case.", "5. As the Chamber rightly noted, there was no evidence of any collusion between the officers themselves. Furthermore, as soon as the National Police Internal Investigations Department took over, several investigative acts which had been performed by the Amsterdam/Amstelland police force were reviewed and a further, thorough investigation carried out. This investigation enabled the Court of Appeal, an independent tribunal, to establish the facts of the case and to conclude that Officer Brons had acted in self-defence. It equally allowed the Grand Chamber to rule unanimously that Article 2 had not been violated under its substantive limb.", "6. In other words, in the particular circumstances of this case the deficiencies at issue did not have any bearing on the effectiveness of the investigation or on the Court’s conclusion that no substantive violation of Article 2 had occurred. Having regard to all the steps taken at the various stages of the investigation, the effectiveness of the investigation as a whole was not undermined. In my view there has not, therefore, been a violation of Article 2. [1].", "Hindustani: a Surinamese (or a member of the Surinamese immigrant community in the Netherlands) who is descended from indentured labourers recruited from the Indian subcontinent in the nineteenth century." ]

[ "THIRD SECTION CASE OF MEDVEDEV v. RUSSIA (Application no. 5217/06) JUDGMENT STRASBOURG 27 June 2017 This judgment is final but it may be subject to editorial revision. In the case of Medvedev v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helen Keller, President,Pere Pastor Vilanova,Alena Poláčková, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 6 June 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 5217/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Dmitriy Vladimirovich Medvedev (“the applicant”), on 15 December 2005.", "2. The applicant, who had been granted legal aid, was represented by Ms O. Preobrazhenskaya, a lawyer practising in Strasbourg. The Russian Government (“the Government”) were represented by Mr A. Fedorov, Representative of Russian Federation to the European Court of Human Rights. 3. On 18 December 2012 the complaint concerning the alleged ineffectiveness of the legal assistance was communicated to the Government.", "THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1968 and is serving a prison sentence in Astrakhan. 5. In July 2004 the applicant was charged with murder of V. Counsel Sh. was appointed to represent him during investigation and trial.", "6. On 10 December 2004 the Astrakhan Regional Court held a preliminary trial hearing. The applicant opted for a jury trial. In support of his request, Sh. stated as follows: “[The applicant] has committed a particularly serious offence which might entail a lengthy custodial sentence.", "... I support the [applicant’s] request.” 7. On 18 February 2005 the court completed the examination of evidence. Both prosecution and defence made their closing arguments. In his statement, Sh.", "called the applicant “a robber and a drunkard”. The presiding judge instructed the jury to disregard the counsel’s statement as referring to the applicant’s character. 8. On 18 February 2005 the jury delivered a guilty verdict. 9.", "On 21 February 2005 the applicant asked the court to replace counsel Sh. alleging that the defence carried out by him had not been effective. The court dismissed the applicant’s request. 10. On the same date the Regional Court found the applicant guilty of murder and sentenced him to fifteen years’ imprisonment.", "11. On 1 March 2005 the applicant asked the Regional Court to appoint legal counsel to represent him before the appeal court. On 8 March 2005 the court refused to appoint a lawyer referring to the relevant legal provisions that did not provide for a right to have a state-appointed lawyer before the appeal court. 12. On 21 July 2005 the Supreme Court of the Russian Federation upheld the judgment of 21 February 2005 on appeal.", "According to the official documents, the applicant was not provided with legal assistance. 13. On 6 June 2007 the Presidium of the Supreme Court quashed the appeal judgment of 21 July 2005 by way of supervisory review. The court noted that the applicant had not been provided with legal assistance in the appeal proceedings and remitted the matter for fresh consideration to the appeal court. The applicant did not attend the hearing.", "He was represented by counsel O. 14. On an unspecified date the applicant was transferred to Moscow. Counsel R. was appointed to represent him. From 1 to 3 August 2007 R. studied the case-file.", "On 7 and 14 August 2004 he met with the applicant at the remand prison. 15. On an unspecified date the applicant submitted a revised statement of appeal. 16. On 16 August 2007 the Supreme Court held a new appeal hearing.", "According to the applicant, he participated in the hearing by means of a video link. R. was present in the courtroom. He did not submit a statement of appeal and made oral submissions to the court. Having examined the applicant’s appeal, the court upheld, in substance, his conviction. The court also dismissed as unsubstantiated the applicant’s complaint about the alleged ineffectiveness of the legal assistance provided by counsel Sh.", "In this connection, the court noted that the applicant had consented to be represented by Sh. both during the investigation and trial. The court also concluded, on the basis of the trial record, that Sh. had taken an active part in the trial. In his closing argument, Sh.", "had supported the applicant’s non-guilty plea and argued that the applicant had not been proved guilty. Lastly, the court took into account that, prior to the jury verdict, the applicant had not complained about the quality of the defence provided by Sh. 17. On 18 August 2008 the Supreme Court dismissed the applicant’s supervisory review complaint against the judgment of 16 August 2007. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF THE CONVENTION 18. The applicant complained under Articles 6 and 13 of the Convention and Article 2 of Protocol No. 7 to the Convention numerous breaches of law allegedly committed by the domestic courts in the course of the criminal proceedings against him. In particular, he alleged that State-appointed lawyers, who had represented him before the trial and appeal courts, had failed to carry out their duties properly. In particular, counsel Sh.", "(1) had made an affirmative remark about the applicant’s guilt during the preliminary court hearing, (2) had referred to the applicant as “a robber and a drunkard” during the closing arguments, (3) had not visited him in prison and (4) had failed to appeal against the guilty verdict in the applicant’s case. He further complained that he had not been represented during the appeal hearing of 21 July 2005 and that State-appointed counsel R., who had represented him at the appeal hearing of 16 August 2007, had not provided an effective legal assistance. The applicant also alleged that the prosecution had failed to disclose promptly certain evidence to him, that he had been convicted on the basis of inadmissible evidence, that one member of the jury had been appointed in breach of applicable laws and that he had not been provided with adequate facilities to prepare for his defence. Lastly, he submitted that the supervisory-review hearings had not been unfair. The Court will examine the applicant’s grievances from the standpoint of Article 6 of the Convention, which, in so far as relevant, reads as follows: “1.", "In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... . ... 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 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. ...” 19. The Government considered that the criminal proceedings against the applicant had been conducted in strict compliance with the domestic rules of criminal procedure and disclosed no violation of the applicant’s rights set out in Article 6 §§ 1 and 3 of the Convention.", "The Government pointed out that the applicant had consented to be represented by counsel Sh. who had conducted his defence during the investigation and trial and that the applicant had not complained about his alleged incompetency during the investigation or trial. He had raised this issue only after the jury had delivered a guilty verdict in his case. The Government admitted that the applicant had not been provided with legal assistance before the appeal court on 21 July 2005. However, on 6 June 2007 the supervisory-review court had expressly acknowledged the violation of the applicant’s right to legal assistance, had quashed the judgment of 21 July 2005 and had remitted the matter for fresh consideration to the appeal court.", "In a new set of appeal proceedings, counsel R. had been appointed to represent the applicant. R. had studied the materials of the case-file, had met with the applicant and had taken part in the appeal hearing. The applicant had consented to be represented by R. The defence carried out by counsel R. had been competent and effective. The mere fact that R. had not filed an additional statement of appeal was not sufficient to disclose a violation of Article 6 of the Convention. 20.", "The applicant maintained his grievances as regards legal representation provided by counsel Sh. He claimed that he had repeatedly asked the presiding judge to replace counsel Sh., however, the judge had ignored his requests and failed to record them in the trial minutes. As regards the appeal proceedings, the applicant submitted that, despite the quashing of the first appeal judgment and remittal of his case for fresh consideration, he had maintained his victim status. The new appeal hearing had not remedied the deficiencies of the first one. Counsel R. had met with the applicant only briefly and had refused to draft a statement of appeal against the applicant’s conviction.", "The applicant further claimed that he had not consented to be represented by R. and that the written statement to this effect on his behalf had been forged by an officer of the remand prison where the applicant had been detained. Lastly, the applicant argued that he had been unable to communicate with his lawyer given that he had participated in the appeal hearing by means of a video link and the lawyer had been in the courtroom. A. Admissibility 1. Legal assistance 21. As regards the applicant’s complaint concerning the effectiveness of legal assistance, the Government’s argument relating to the loss of victim status by the applicant is closely linked to the merits of his complaints under Article 6 §§ 1 and 3 of the Convention.", "Accordingly, the Court finds it necessary to join it to the merits of the complaint and will revert to it subsequently (see Sakhnovskiy v. Russia, no. 21272/03, §§ 34-36, 5 February 2009). 22. The Court therefore considers that the complaint about the alleged ineffectiveness of the legal assistance 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.", "It must therefore be declared admissible. 2. Other alleged violations 23. As regards the remainder of the applicant’s grievances concerning disclosure and admissibility of evidence, appointment of the members of the jury, lack of adequate facilities to prepare for trial, and alleged unfairness of the supervisory-review proceedings, the Court finds, regard being had to the material in its possession and in so far as these complaints fall within its competence, that there is no appearance of a violation of the rights and freedoms set out in the Convention. 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.", "B. Merits 1. General principles 24. The general principles relating to effective participation in criminal proceedings are well established in the Court’s case-law and have been summarised as follows (see Sakhnovskiy, cited above): “94. The requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1, and therefore the applicant’s complaints under paragraphs 1 and 3 of Article 6 should be examined together (see Vacher v. France, 17 December 1996, § 22, Reports of Judgments and Decisions 1996-VI).", "95. The Court reiterates that while Article 6 § 3 (c) confers on everyone charged with a criminal offence the right to ‘defend himself in person or through legal assistance ...’, it does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court’s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial (see Quaranta v. Switzerland, 24 May 1991, § 30, Series A no. 205). In that connection it must be borne in mind that the Convention is intended to ‘guarantee not rights that are theoretical or illusory but rights that are practical and effective’ and that assigning counsel does not in itself ensure the effectiveness of the assistance he or she may afford an accused (see Artico v. Italy, 13 May 1980, § 33, Series A no.", "37, and Imbrioscia v. Switzerland, 24 November 1993, § 38, Series A no. 275). ... 97. An accused’s right to communicate with his lawyer without the risk of being overheard by a third party is one of the basic requirements of a fair trial in a democratic society and follows from Article 6 § 3 (c) of the Convention (see Castravet v. Moldova, no 23393/05, § 49, 13 March 2007). If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective (see inter alia the Artico judgment, cited above, § 33).", "98. As regards the use of a video link, the Court reiterates that this form of participation in proceedings is not, as such, incompatible with the notion of a fair and public hearing, but it must be ensured that the applicant is able to follow the proceedings and to be heard without technical impediments, and that effective and confidential communication with a lawyer is provided for (see Marcello Viola, cited above).” 2. Application to the present cases 25. The Court notes that the applicant referred to many acts and omissions on the part of the judicial authorities and State-appointed counsel. Having regard to the material submitted by the parties, the Court does not consider it necessary to examine each of the applicant’s allegations.", "In deciding whether the criminal proceedings against the applicant were fair and, in particular, whether the legal assistance provided by State-appointed counsel was effective, the Court will examine the proceedings as a whole and focus its analysis on the issue as to whether the appeal court made reparation for the violation of the applicant’s right to effective legal assistance, if any. 26. The Court observes that, according to the applicant, the first appeal hearing of 21 July 2005 fell short of the requirements set out in Article 6 of the Convention. 27. In this connection the Court notes, and it is not disputed by the Government, that the appeal judgment of 21 July 2005 was quashed by way of supervisory review expressly because of the authorities’ failure to provide the applicant with legal assistance in the appeal proceedings.", "However, the Government claimed that the authorities had done everything in their power to ensure that, at the rehearing of the case in 2007, the applicant was duly represented. The Court will, accordingly, examine the second set of appeal proceedings. 28. The Court has considered the arguments furnished by the Government in support of their position and accepts that lawyer R. was a qualified lawyer and that he was prepared to assist the applicant in his defence before the appeal court. However, these arguments are not decisive; the Court must consider whether the arrangements for the conduct of the proceedings and, in particular, for contact between lawyer R. and the applicant respected the rights of the defence (compare Sakhnovskiy, cited above, § 101).", "29. The Court reiterates that the relationship between a lawyer and his client should be based on mutual trust and understanding. Of course, it is not always possible for the State to facilitate such a relationship: there are inherent temporal and logistical constraints in respect of meetings between a detained person and his lawyer. Notwithstanding possible difficulties or restrictions, such is the importance attached to the rights of the defence that the right to effective legal assistance must be respected in all circumstances (see Sakhnovskiy, cited above, § 102). 30.", "The Court’s major concern in the present case is that in the course of the appeal hearing the applicant was not in the courtroom and was able to communicate with his lawyer only by means of a video link. The Court has already expressed doubts as to the lack of privacy of communication afforded by means of a video-conferencing system installed and operated by the State (see Sakhnovskiy, cited above, § 104). The Court has no reason to reach a different conclusion in the present case. It considers that the applicant might legitimately have felt ill at ease when communicating with State-appointed counsel via a video link. The Government did not explain why it was impossible to provide for different arrangements for the conduct of the appeal hearing.", "The Court notes that the appeal hearing was held in Moscow. The applicant and counsel R. were also in Moscow. It is obvious that R. would not have encountered any difficulty in being in the same room with the applicant during the appeal hearing. Nor does the Court discern any compelling reasons to justify the authorities’ decision to arrange for the applicant’s participation in the appeal hearing via a video link rather than ensuring his presence in the courtroom. 31.", "Regard being had to the above, the Court concludes that the arrangements made by the Supreme Court were insufficient to ensure that the applicant had effective legal assistance during the appeal hearing. Nor can the Court consider that those arrangements have made reparation for the deficiency of the first appeal hearing as regards the applicant’s right to effective legal assistance. Accordingly, the applicant may therefore still claim to be a victim within the meaning of Article 34 of the Convention. The Court therefore rejects the Government’s objection and finds that there has been a violation of Article 6 §§ 1 and 3 of the Convention. 32.", "In the light of the foregoing, the Court does not consider it necessary to examine the remainder of the applicant’s allegations concerning the legal assistance provided to him during the investigation and trial. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 33. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 34.", "The applicant claimed 91,791 Russian roubles (RUB) and 20,000 euros (EUR) in respect of pecuniary and non-pecuniary damage respectively. 35. The Government submitted that there had been no causal link between the violation found and the pecuniary damage alleged. They also considered that the applicant’s claim of non-pecuniary damage had been excessive. In their opinion, the finding of a violation would constitute sufficient just satisfaction.", "36. The Court firstly notes that in the present case it has found a violation of Article 6 §§ 1 and 3 (c) of the Convention. The Court reiterates that when an applicant has been convicted despite a potential infringement of his rights as guaranteed by Article 6 of the Convention he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings, if requested (see Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005-IV, and Sakhnovskiy v. Russia [GC], no. 21272/03, § 112, 2 November 2010).", "The Court reiterates, in this connection, that the Russian Code of Criminal Procedure provides that criminal proceedings may be reopened if the Court finds a violation of the Convention. 37. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 4,000 in respect of non‑pecuniary damage. B.", "Costs and expenses 38. The applicant also claimed EUR 3,150 (legal fee) and RUB 997.83 (postage) for the costs and expenses incurred before the Court. 39. The Government submitted that the present case had not been particularly complex and the amount claimed in respect of the legal fee appeared to be excessive. 40.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court notes that EUR 850 has already been paid to the applicant by way of legal aid. Having regard to the documents submitted by the applicant in support of his claims, the Court awards EUR 23 under this head. 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 the legal assistance admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) 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 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 23 (twenty-three 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 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıHelen KellerDeputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF KOLCHANOV AND OTHERS v. RUSSIA (Applications nos. 47563/16 and 6 others - see appended list) JUDGMENT STRASBOURG 14 December 2017 This judgment is final but it may be subject to editorial revision. In the case of Kolchanov and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Luis López Guerra, President,Dmitry Dedov,Jolien Schukking, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 23 November 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention.", "Some applicants also raised other complaints under the provisions of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 6.", "The applicants complained principally of the inadequate conditions of their detention. They relied on Article 3 of the Convention, which reads as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 7. The Court notes that the applicants were kept in detention in poor conditions. The details of the applicants’ detention are indicated in the appended table. The Court refers to the principles established in its case‑law regarding inadequate conditions of detention (see, for instance, Kudła v. Poland [GC], no.", "30210/96, §§ 90‑94, ECHR 2000‑XI, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 139‑165, 10 January 2012). It reiterates in particular that extreme lack of space in a prison cell or overcrowding weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see, amongst many authorities, Karalevičius v. Lithuania, no. 53254/99, §§ 36–40, 7 April 2005). 8.", "In the leading case of Sergey Babushkin v. Russia, no. 5993/08, 28 November 2013, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention were inadequate.", "10. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention. III. REMAINING COMPLAINTS 11. In applications nos.", "50004/16 and 51355/16, the applicants also submitted complaints under Article 13 of the Convention, in accordance with the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Sergey Babushkin v. Russia (cited above, §§ 38-45, pertaining to the absence of an effective remedy to complaint about the conditions of detention in Russia). IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 12. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 13. Regard being had to the documents in its possession and to its case‑law (see, in particular, Sergey Babushkin v. Russia, (just satisfaction), no. 5993/08, 16 October 2014, and Mozharov and Others v. Russia, no. 16401/12 and 9 others, 21 March 2017), the Court considers it reasonable to award the sums indicated in the appended table.", "14. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the applications admissible; 3.", "Holds that these applications disclose a breach of Article 3 of the Convention concerning the inadequate conditions of detention; 4. Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table); 5. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 14 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtLuis López Guerra 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 Facility start and end date Duration Inmates per brigade Sq. m. per inmate Number of toilets per brigade Specific grievances Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 47563/16 26/07/2016 Vladimir Alekseyevich Kolchanov 25/03/1959 FKU IK-11 Bor, Nizhniy Novgorod Region 01/07/2009 to 31/08/2016 7 year(s) and 2 month(s) 120 inmate(s) 2 m² 8 toilet(s) overcrowding, lack of requisite medical assistance, poor quality of food, lack of privacy for toilet, lack of or inadequate hygienic facilities 5,500 50004/16 11/08/2016 Zaur Mukhamedovich Shebzukhov 27/08/1986 IK-5 Startsevo Krasnoyarsk 01/09/2015 to 22/08/2016 11 month(s) and 22 day(s) 3 inmate(s) 3 m² overcrowding, lack of or insufficient natural light, lack of fresh air, lack of or insufficient electric light, mouldy or dirty cell, lack of privacy for toilet, passive smoking, no or restricted access to shower, poor quality of clothes, lack of requisite medical assistance Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 5,000 51355/16 13/10/2016 Konstantin Ivanovich Kryazhevskikh 29/12/1980 IK-29 Kirov Region 18/11/2010 to 08/11/2016 5 year(s) and 11 month(s) and 22 day(s) 4 inmate(s) 3.2 m² overcrowding, lack of or insufficient electric light, lack of fresh air, lack of privacy for toilet, lack of or insufficient natural light, no or restricted access to shower, poor quality of food, lack or inadequate furniture, lack of or poor quality of bedding and bed linen Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 5,300 63004/16 12/10/2016 Sergey Nikolayevich Tsarev 08/05/1980 IK-34 Krasnoyarsk 17/11/2012 pending More than 4 year(s) and 11 month(s) and 8 day(s) 146 inmate(s) 8 toilet(s) overcrowding, lack of or inadequate hygienic facilities, lack of privacy for toilet, physical outdoor exercises in inappropriate clothes 8,300 63747/16 12/10/2016 Aleksandr Nikolayevich Ivanov 05/11/1985 IK-11, Bor, Nizhniy Novgorod region 01/10/2012 to 28/04/2017 4 year(s) and 6 month(s) and 28 day(s) 2.1 m² overcrowding, no or restricted access to warm water, lack or insufficient quantity of food, lack of appropriate underwear, clothing and shoes 6,800 64433/16 26/10/2016 Roman Sergeyevich Kovalev 15/09/1984 IK-11 Nizhegorodskiy Region 17/12/2012 pending More than 4 year(s) and 10 month(s) and 8 day(s) 140 inmate(s) 2.3 m² 6 toilet(s) no or restricted access to warm water, poor quality of food, lack of or restricted access to leisure or educational activities 8,000 75870/16 30/11/2016 Aleksey Viktorovich Derin 18/06/1977 IK-11 Nizhniy Novgorod Region 03/03/2016 pending More than 1 year(s) and 7 month(s) and 22 day(s) 120 inmate(s) 2.2 m² lack or insufficient quantity of food, lack of privacy for toilet, no or restricted access to toilet, sharing cells with inmates infected with contagious disease 7,000 [1] Plus any tax that may be chargeable to the applicants." ]

[ "FOURTH SECTION HAŁKA AND OTHERS v. POLAND (Application no. 71891/01) JUDGMENT STRASBOURG 2 July 2002 FINAL 02/10/2002 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 Hałka And Others v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrM. Pellonpää,MrA.", "Pastor Ridruejo,MrJ. Makarczyk,MrsV. Strážnická,MrR. Maruste,MrS. Pavlovschi, judges,and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 11 June 2002, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 71891/01) 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 four Polish nationals, Stefania Hałka (“the first applicant”) and her three daughters Małgorzata Rudecka (“the second applicant”), Anna Rusak (“the third applicant”), Wiesława Hałka-Bogdańska (“the fourth applicant”) (“the applicants”), on 15 March 2000. 2. The Polish Government (“the Government”) were represented by their Agent, Mr K. Drzewicki, of the Ministry of Foreign Affairs. The applicants were, exceptionally, granted leave to be represented by the fourth applicant (Rule 36 § 4 of the Rules of Court).", "The latter was also granted leave to use the Polish language in the proceedings before the Court (Rule 34 § 3 of the Rules of Court). 3. The applicants alleged, in particular, that their right to a “hearing within a reasonable time” had not been respected. 4. The application was allocated to the Fourth Section of the Court.", "Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. On 23 October 2001 the Fourth 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. It also gave priority to the application, pursuant to Rule 41 of the Rules of Court. 5.", "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 (Rule 52 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The first and the second applicant were born in 1927 and 1950 respectively.", "The third and the fourth applicant were born in 1954. The first applicant lives in Józefów and her three daughters in Warsaw, Poland. 7. From 1939 to 1944, Jan Hałka, the first applicant's husband, was a member of the Polish resistance troops of the underground Home Army (Armia Krajowa). In 1944 he was arrested by the NKVD and the Polish political police and imprisoned in a labour camp in Siberia.", "He was kept in Borowice (former USSR) from November 1944 to February 1946. He died on 17 November 1986. 8. On 8 December 1994 the applicants filed an application with the Warsaw Regional Court for compensation under section 8 § 2(a) of the Law of 23 February 1991 on annulment of convictions whereby persons were persecuted for their activities aimed at achieving independence for Poland (Ustawa o uznaniu za nieważne orzeczeń wydanych wobec osób represjonowanych za działalność na rzecz niepodległego buty Państwa Polskiego) (“the 1991 Act”). 9.", "In 1996 the first applicant personally went to the court and asked a judge to fix a date for a hearing as soon as possible. She submitted that she was an elderly person and that the court should therefore give priority to her case. 10. In 1998 she again went in person to the Warsaw Regional Court and asked the judge to set a date for a hearing as soon as possible. 11.", "On 11 May 2000 she sent a letter to the court, asking for a hearing date to be set and for information on the proceedings. She maintained that her previous applications for the proceedings to be accelerated had been to no avail and that the period of total inactivity on the part of that court had exceeded five years. 12. On 1 October 2000 she complained to the Minister of Justice about the lack of progress in the proceedings. 13.", "On 4 December 2000 the Warsaw Regional Court held a hearing in the applicants' case. On the same date the court gave judgment and awarded the first applicant and her three daughters compensation in the amount of 8,075 Polish zlotys (PLN) each. Since no party appealed within the statutory time-limit of seven days, the first-instance decision became final on 12 December 2000. 14. On 19 March 2002 the Warsaw Regional Court informed the first and the third applicant that they could collect the sums awarded from the Financial Department of the Warsaw Regional Court on 25 March 2002.", "They did so. It appears from the material produced by the applicants that the second and the fourth applicant have not yet received their share of the compensation awarded. II. RELEVANT DOMESTIC LAW AND PRACTICE 15. The Law of 23 February 1991 on annulment of convictions whereby persons were persecuted for their activities aimed at achieving independence for Poland sets out rules concerning the conditions under which certain politically-motivated convictions rendered between 1 January 1944 and 31 December 1956 can be declared null and void, and provides for the State's civil liability for such convictions.", "According to section 8 § 1 of the Law, a victim of repression is entitled to compensation from the State Treasury for his or her wrongful conviction. This provision states: “A person whose conviction has been declared null and void shall be entitled to compensation from the State Treasury for pecuniary and non-pecuniary damage which he has suffered as a consequence of his conviction. Where the person concerned has since died, this entitlement shall be vested in his spouse, children and parents.” On 21 May 1993 the Law was amended to the effect that its provisions became applicable to persons who had been persecuted or convicted for political reasons by the Stalinist Soviet authorities. At the material time, the relevant part of Section 8 § 2(a) provided, in so far as relevant: “Entitlement to compensation referred in paragraph 1 shall also be conferred on persons ... who have been persecuted by Soviet judicial, prosecuting or extra-judicial authorities; acting by virtue of an agreement concluded on 26 July 1944 between the Polish Committee of National Liberation (“PKWN” Polski Komitet Wyzwolenia Narodowego) and the government of the USSR; in relation to activities undertaken by them with the aim of achieving independence for Poland, or if the persecution in question happened on the ground that they had undertaken such activity. Applications for compensation for pecuniary or non-pecuniary damage should be lodged with the Warsaw Regional Court ....” 16.", "Later, on 3 February 1995, the 1991 Act was again amended, this time to the effect that all regional courts could deal with applications lodged by such persons. The second amendment took effect on 1 April 1995. Lastly, the 1991 Act was amended on 16 July 1998. The third amendment took effect on 14 August 1998. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 17. The applicants complained that the length of the proceedings was incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. That Article, in its relevant part, 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. Applicability of Article 6 § 1 18. The applicability of Article 6 to the relevant proceedings has not been contested before the Court. The Court sees no reason to hold otherwise.", "The proceedings in question concerned a dispute over the applicants' right to compensation for their late husband's and father's unjustified detention, which is a “civil right” within the meaning of Article 6 § 1 of the Convention (see, Humen v. Poland [GC], no. 26614/95, 15 October 1999, § 57, unreported). B. Period to be taken into consideration 19. The parties agreed that the period to be taken into consideration began on 8 December 1994 when the applicants lodged their claim with the Warsaw Regional Court.", "The Court notes that the proceedings on the merits ended on 4 December 2000, when the Warsaw Regional Court gave judgment. However, the applicants' claim was – although not in its entirety – only satisfied on 25 March 2002, when the first and the third applicant received their shares of the compensation awarded (see paragraphs 13-14 above). 20. The Court reiterates that, for the purposes of Article 6 § 1 of the Convention, the termination of the proceedings on the merits of the claim does not always constitute the end of a “determination of a civil right” within the meaning of that provision. What is decisive is the point at which the right asserted by a claimant actually becomes “effective”, that is to say, when his or her judicially-determined claim is finally satisfied (see, among other examples, Dewicka v. Poland, no.", "38670/97, 4 April 2000, § 42). 21. Since the claim of the first and the third applicant was satisfied on 25 March 2002, the period to be examined under Article 6 § 1 amounts to 7 years, 3 months and 17 days. As regards the second and the fourth applicant, it appears from the material in the Court's possession that they have not yet received the compensation from the State and that the “determination of [their] civil claim” is still not completed. It thus follows that, in respect of these two applicants, the relevant period currently exceeds 7 years and 3 months.", "C. Admissibility 22. The Court finds 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 application must therefore be declared admissible. D. Merits 1.", "The applicants' submissions 23. The applicants submitted that their case had not been complex. The trial court did not need to obtain fresh evidence. Moreover, in order to give the final ruling, it held only one hearing. 24.", "They further maintained that the excessive length of the proceedings had put a severe strain on them, in particular in view of the first applicant's great age. Referring to what was at stake for them in the proceedings, they stressed that, on account of the political situation in Poland, they were for a long time unable to vindicate their claim. Furthermore, the nature of their claim and the result of the proceedings had been of crucial importance to all of them because they had also been seeking redress for the tarnished honour and reputation of their family. In their view, the nature of the claim had required the domestic courts to display “special diligence” in handling the case. The applicants also added that, despite the fact that they had been awarded the compensation on 4 December 2000, they did not receive it until 25 March 2002.", "Moreover, on that date it was only paid to two applicants (see paragraph 14 above). 25. Lastly, the applicants stressed that the authorities should have foreseen that the courts would have to deal with many similar applications lodged by victims of repression. In their opinion, the fact that the Warsaw Regional Court had been inundated with thousands of compensation cases was the direct result of the legislative mistake made by the authorities. Moreover, the remedial measures taken by the authorities had come too late and had not resulted in an increase in the court's efficiency.", "The authorities had accordingly been fully responsible for the slow conduct of the proceedings in their case. 2. The Government's submissions. 26. The Government accepted that the case had not been particularly complex.", "27. They also acknowledged that the applicants had not contributed to the length of the proceedings. 28. On the other hand, the Government argued that the applicants' claim had already been satisfied by the domestic courts because the Warsaw Regional Court had awarded each of them compensation in the amount of 8,075 Polish zlotys. As to the conduct of the relevant authorities, the Government considered that, unlike in cases concerning employment, pensions and invalidity pensions, the court had not been required to handle the applicants' case with “special diligence”.", "29. The Government further stressed that since 1991 a total of 15,000 similar applications for rehabilitation or for compensation had been lodged with the Warsaw Regional Court. That had resulted in an excessive workload for that court. However, as all the claimants were elderly persons, the court had decided to give priority to applications submitted by victims of repression who were still alive. The examination of applications filed by heirs of such persons had been postponed to a later date.", "Moreover, the Government asserted that the authorities had increased the number of judicial and administrative posts in the Warsaw Regional Court in order to clear the backlog of compensation cases. 30. Lastly, the Government underlined that the measures taken by the Polish authorities had resulted in a substantial reduction of the backlog. They cited the relevant statistics, according to which in 1998 there had been 580 applications for compensation filed with the Criminal Division of the Warsaw Regional Court; in 1999 there had been 476; in 2000 there had been 273; and 256 in 2001. They stressed that there had been an increase in applications examined and terminated, that is to say 525 in 1998, 599 in 1999, 638 in 2000 and 912 in 2000.", "31. Basing their argument on the Trickovic v. Slovenia judgment (judgment of 12 June 2001, no 39914/98), the Government maintained that a temporary backlog in court business did not entail the liability of the Polish authorities because they had taken the appropriate remedial action with the requisite promptness. 32. In conclusion, the Government invited the Court to find that there had been no violation of Article 6 § 1 of the Convention. 3.", "The Court's assessment. 33. 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 applicants and of the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; and Humen v. Poland cited above, § 60). 34.", "The Court notes that the parties agreed that the case was not particularly complex (see paragraphs 23 and 26 above). It does not see any reason to hold otherwise. 35. As regards the conduct of the applicants, the Court observes that the Government acknowledged that the applicants had not in any way contributed to the length of the proceedings (see paragraph 27 above). 36.", "As to the conduct of the authorities, the Court notes that the applicants' case lay dormant for the very substantial period of six years from 8 December 1994 (when they initiated the proceedings) to 4 December 2000 (when the final ruling was given). Furthermore, the claim was – only in part – satisfied as late as 25 March 2002, that is to say some 16 months after it had become enforceable. It appears also that the claims of the second and the fourth applicants have still not been satisfied (see paragraphs 13-14 above). 37. The Court accepts that, in view of the large number of similar applications lodged under the 1991 Act, the Warsaw Regional Court had to deal with an increased case-load.", "However, exceptional situations and particularly important issues were at stake in the relevant proceedings. The applicants' case did not concern an ordinary compensation claim but a claim which could not have been vindicated under the former totalitarian system. Due to the political situation in Poland, the applicants were able to submit an application for compensation as late as fifty years after the relevant events (see paragraph 15 above). Taking into consideration the first applicant's age and the long time she had been waiting for redress, over seven years of litigation must be considered a very considerable period (see, mutatis mutandis, Dewicka v Poland cited above, § 55). The Government argued that the authorities had taken prompt remedial action in order to deal with the backlog in the Warsaw Regional Court (see paragraphs 29-30 above).", "The Court considers, however, that the measures applied by the authorities to remedy the situation did not result in any significant acceleration of the proceedings in the applicants' case. The Court therefore finds that, given what was at stake in the proceedings, the remedial action relied on by the Government cannot exonerate the authorities from their responsibility for the total delay in the proceedings (see, Kurzac v. Poland no 31382/96, 22 February 2001, §§ 34‑35, unreported). 38. Consequently, the Court concludes that an overall period of more than seven years cannot be deemed to satisfy the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. 39.", "There has therefore been a violation of Article 6 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 40. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 41.", "The applicants did not claim any particular sum in respect of pecuniary and non-pecuniary damage. However, they requested the Court to grant them just satisfaction in an amount it considered equitable, given the detriment suffered by them on account of the length of the proceedings in their case. In particular, they stressed that very personal issues had been at stake for them in the litigation and that the excessive duration of the proceedings had seriously affected the first applicant's health. 42. The Government did not address this matter.", "43. The Court considers that the applicants have certainly suffered non-pecuniary damage, such as distress and frustration resulting from the protracted length of the proceedings, which cannot sufficiently be compensated by the finding of a violation. Taking into account the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicants a total sum of 10,000 euros (“EUR”) under that head. B. Costs and expenses 44.", "The applicants did not seek to be reimbursed for any costs or expenses in connection with the proceedings before the Court. C. Default interest 45. Having regard to the fact that the Court makes its award in euros, it considers it appropriate to apply a default interest rate of 7.25 %. 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 applicants, 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; (b) that simple interest at an annual rate of 7.25 % shall be payable from the expiry of the above-mentioned three months until settlement; Done in English, and notified in writing on 2 July 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O'BoyleNicolas BRATZA Registrar President" ]

[ "FOURTH SECTION CASE OF BURLYA AND OTHERS v. UKRAINE (Application no. 3289/10) JUDGMENT STRASBOURG 6 November 2018 FINAL 06/02/2019 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Burlya and Others v. Ukraine, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Paulo Pinto de Albuquerque, President,Ganna Yudkivska,Faris Vehabović,Egidijus Kūris,Iulia Antoanella Motoc,Marko Bošnjak,Péter Paczolay, judges,and Marialena Tsirli, 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.", "3289/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by nineteen Ukrainian nationals, whose particulars are set out in the Appendix (“the applicants”), on 11 January 2010. 2. The applicants were represented by the European Roma Rights Centre, a non-governmental organisation (NGO) based in Budapest. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna. 3.", "The applicants alleged that the attack on their homes in the course of an anti-Roma “pogrom”, which the authorities had allegedly been complicit in or had at least failed to prevent or to investigate effectively, as well as their inadequate living conditions following their displacement as a result of that attack, had breached Articles 3, 8, 13, 14 of the Convention and Article 1 of Protocol No. 1. 4. On 11 February 2016 the application was communicated to the Government. 5.", "The seventeenth and the eighteenth applicants had died on 16 October 2017 and 24 April 2013 respectively and certain individuals expressed their wish to pursue the application in their stead (see paragraphs 64 to 78 below). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicants are Ukrainian nationals of Roma ethnicity. Before 10 September 2002 the applicants lived in the village of Petrivka, Ivanivskyy District, Odessa Region (hereinafter also “the village”).", "They currently live in Berezivka District, Odessa Region. A. The events of 7 to 10 September 2002 7. On 7 September 2002 a 17-year-old ethnic Ukrainian was murdered in the village, allegedly by a Romany man who was apparently convicted of the murder afterwards. It appears that this occurred in the course of an altercation between Romany men and other youngsters from the village at a local bar or dancehall.", "8. On 8 September 2002 a crowd of village residents gathered and demanded that the Roma be expelled from the village. According to the statement of the village mayor, Mr M.S., made in the course of a subsequent criminal investigation, the local officials attempted to defuse the situation and urged the villages not to do anything illegal. 9. On the same day the village council met.", "Among those present were: a representative of the Ivanivskyy District State Administration (“the District Administration”) and the head of the Ivanivskyy District Police Department (“the District Police Department”). According to the minutes of the meeting submitted by the applicants, in his opening remarks the mayor said, inter alia: “... today a cruel crime was committed [in the village] by a group of residents of Gypsy ethnicity. One student of [the village high school] was murdered and three others were injured and are now in hospital in a serious state. This crime was made possible by the fact that no appropriate measures are being taken against them in the event of their [engaging in crimes]. Everybody knows that the spread of drug addiction, which is taking place in our village, is their fault.", "Today a meeting of villagers took place at which a negative opinion was expressed about the banditry and other [forms of crime] on the part of this category of people ... I invite the council members to speak responsibly and to express their opinion about the crime committed and about the decision of the villagers. I would like this meeting not to turn into something which aggravates inter-ethnic relations.” 10. At the close of the meeting the council decided, in particular, to “support the decision of the meeting of the village residents to expel persons of Gypsy ethnicity from the village”. 11.", "On 9 September 2002 the village council met again. The heads of the District Administration and the District Police Department and the chairperson and members of the Ivanivskyy District Council were present. The village council examined the question of “bringing the decision of the village council [of 8 September] concerning the expulsion of the persons of Gypsy ethnicity into compliance with legal norms”. The head of the District Administration invited the village council members to carefully consider the wisdom of their decision, drawing a clear line between crime‑related problems and inter-ethnic relations. A council member, D., stated that whatever the wording of the decision it would have no legal consequences and that legal action against drug dealers would also be ineffective.", "In fact, it was not possible to keep the situation under control. D. furthermore stated that the neighbours of the Roma residents were saying that it was necessary to cut off their gas supply and to burn down the Roma’s houses. At the close of the meeting the village council decided to ask law enforcement authorities “to ensure the expulsion of socially dangerous individuals, regardless of ethnic origin, from the village”. 12. On the evening of the same day the mayor and the local police advised the applicants to leave the village, as a “pogrom” was about to start.", "Electricity and gas supplies to their houses were cut. Subsequently, in the course of the night of 9-10 September 2002 a crowd of several hundred people, allegedly led by a certain Mr O.M., ransacked the houses belonging to the Roma, destroying their belongings. A number of police officers were present but did not intervene to prevent the looting and apparently concentrated solely on preventing human casualties. The house where the first applicant lived had burned down. According to the Government, the results of the expert analysis of the causes of the fire were inconclusive (see paragraph 118 below).", "B. The applicants’ statements concerning their particular situation 13. The applicants submitted a number of written statements from the applicants addressed to Ms Duducehava, the leader of a Roma association, and Mr Stoyanov, a lawyer who represented a number of applicants in the domestic criminal proceedings (see below). The statements bear various dates from 2004 and 2007, contain descriptions of the events of 7‑10 September 2002, and ask for help in dealing with the authorities. According to the general tenor of the statements, the applicants’ had been urged to leave by the police prior to the pogrom, and in their absence their houses had been ransacked by the mob – in particular, doors and windows had been smashed, and furniture and belongings destroyed or stolen.", "14. According to the fifth applicant’s statement, dated 17 November 2007, she and the fourth applicant (her husband) had been away from the village at the time of the events and had only learned about them when they had returned on 20 September. She had had to sell her house “at half the price” (“за полцены”), as had other Roma victims of the pogrom. The seventh, eighth, thirteenth and sixteenth applicants’ statements, as well as the statements of some other former Roma residents of Petrivka, were similarly worded, speaking of the houses having been sold for less than their normal price (for instance, Mrs M. Burlya, the second applicant’s wife, characterised the price for which her house had been sold as “very cheap”). 15.", "The applicants submitted eight undated photographs showing the ruins of one or several houses, certain photographs showing signs of fire. The origin of these photographs is unclear. In her statement to Ms Duducehava in 2004 the sixth applicant referred to certain photographs showing damage to her and her relatives’ houses. 16. The seventh and eighth applicants stated that all the Roma had left the village before the attack started.", "17. Applicants identified in the Appendix asserted in their statements to Ms Duducehava, Mr Stoyanov or to the police in the course of the subsequent criminal investigation that they had been away from the village at the time of the events of 7-10 September 2002 and of the attack and had only learned about it later. 18. In her statement to Mr Stoyanov dated 18 November 2007 the ninth applicant stated that she had been at home with her two granddaughters (aged ten and fifteen at the time) when the attack started. Stones had started flying through the windows, four attackers had broken down the door and started shouting, and the older granddaughter had pleaded with the attackers not to kill them.", "The attackers had not touched the applicant or her granddaughters; the applicant had then fled. However, in her statement to the police dated 26 September 2002 this applicant stated that she had fled the village prior to the attack and had returned the next day to find her home ransacked. In her statement (addressed to Ms Duducehava) and dated 13 June 2004 this applicant complained of having been expelled from her home but did not mention that she had personally witnessed any attack. C. Aftermath of the events 19. According to a report published on 20 September 2002 in the regional newspaper Porto Franko and information given at a press conference held on 12 September 2002 by the Secretary of State (Державний секретар) for the Ministry of the Interior and by the head of the Odessa Regional Police Department (“the Regional Police”), police officers had been present in force and had observed the attack.", "However, they had not attempted to prevent or stop it, apparently concentrating solely on preventing casualties. 20. The events were reported in a number of regional and national newspapers. 21. The applicants alleged that after the attack they had had to move to another town and live with family and friends in overcrowded and inadequate conditions.", "D. Criminal investigation 22. On 10 September 2002 the Ivanivka district police initiated criminal proceedings against persons unknown on suspicion of disorderly conduct committed in a group (хуліганство вчинене групою осіб). 23. On 10 September 2002 police investigators from Ivanivka, Berezivka, and several other districts conducted on-site examinations of the damaged houses in Petrivka (which included the taking of fingerprints). A regional police investigator conducted further on-site examinations in December 2002 and January 2003.", "24. On 12 September 2002 it was decided to constitute an investigative team composed of a senior investigator from the regional police department and investigators and other police officers from the Ivanivka district and three other districts. 25. From 12 September to 9 October 2002 the regional police investigator obtained a number of expert opinions concerning the material found on the scene (notably assessing the damage there). 26.", "On 20 September 2002 an officer of the Ivanivka police questioned neighbours of some of the applicants. Those neighbours stated that on the night of the attack they had seen around 150 and 300 people near the applicants’ houses. 27. From 23 September 2002 to 27 January 2003 at least sixty village residents, including O.М. and P.M. (who were later accused by the applicants’ representative Ms Duducehava of having a role in the attack ‑ see paragraph 36 below), were questioned by the police – four of them by Ivanivka police officers and the rest by the regional police investigator.", "The villagers generally stated that there had long been tensions in the village between the Roma and non-Roma populations (many mentioning that this was connected with the alleged involvement of Roma residents in the drug trade), and that on the night of 9 September 2002 several hundred individuals had ransacked the houses of the Roma residents. This had been done to ensure that Roma would be expelled from the village. Some expressed approval of the attackers’ actions (as having been triggered by the authorities’ inaction against the drug trafficking), but denied that they had personally taken part in the attack. 28. The police also questioned a number of applicants, who gave statements largely consistent with the account of events set out in paragraphs 7-17 above.", "29. On 14 November 2002 a certain Mr V. – apparently a Roma and a Petrivka resident at the time – was questioned. He stated that on 9 September he had been called in to Ivanivka district police station and told that residents of Petrivka would be attacking Roma houses. Upon learning this, he returned to the village and helped to evacuate his family, as well as other Roma residents, to another village. 30.", "The police recognised the applicants listed in the Appendix as having the official status of aggrieved parties or of civil claimants (see paragraphs 53 and 54 below). 31. In January 2003 (in the summary provided by the Government the relevant dates seem to be misstated as being in January 2002 and January 2007) the regional police investigator questioned three officers of the “Berkut” special police unit. They stated that about 2,000 persons had participated in the pogrom. They had asked the officers not to interfere in their actions.", "They had entered the houses and asked the individuals there not to resist and to leave. 32. In February 2003 the police obtained an expert opinion in an attempt to identify the voices on a video cassette. It appears that the video cassette contained a recording of a meeting of village residents held before the pogrom. The expert concluded that no voice could be identified owing to the poor quality of the recording.", "33. On 4 February 2003 the police suspended the investigation for failure to identify the perpetrators. On 17 February 2003 the regional prosecutor’s office ordered that it be resumed. 34. On 20 February 2003 the Ivanivsky district prosecutor’s office (“the DPO”) refused to institute criminal proceedings against the village council’s officials for lack of constituent elements of a crime in their actions.", "35. On 1 April 2003 the regional police investigator suspended it again. 36. On 27 February 2005 Ms Duducehava, the chairperson of Romani Zbora, an NGO, wrote to the Odessa regional prosecutor’s office asking it to institute criminal proceedings against the persons who had participated in the attack and the officials who had allowed it. Specifically, she named Mr O.M., Mr P.M. and Mr I.D., all of whom, she alleged, had incited the attack; she named M.S., the chairman of the village council, and O.V., the head of the district police department, as being among the officials who had allowed it.", "She named the first fifteen and the seventeenth to nineteenth applicants as persons whose property had been damaged, summarising their statements to her (see, in particular, paragraph 13 above). 37. On 28 March 2005 the Odessa regional prosecutor’s office informed Ms Duducehava that an investigation into disorderly conduct had been initiated and suspended on 1 April 2003 but that operational measures were being taken to identify the perpetrators (see paragraph 58 below for a summary description of the legislative framework in respect of such measures). Twenty-three individuals, including those whose statements had been added to Ms Duducehava’s complaint, had been recognised as aggrieved parties or civil claimants. Concerning the failure of the police to prevent the disorderly conduct in question, the head of the Regional Police had imposed disciplinary sanctions on the police officers at fault.", "38. On 21 November 2005 Mr I. Stoyanov, a lawyer representing a number of the applicants, complained to the President of Ukraine and the Prosecutor General that the crime committed had been incorrectly classified as merely disorderly conduct, even though it could be characterised as an act of discrimination and mass disorder. The identity of the guilty parties was well known. 39. On 31 December 2005 the head of the regional police informed Mr Stoyanov that the investigation had been suspended on 1 April 2003 and that the regional prosecutor’s office had examined the case and left the decision to suspend it in force.", "40. On 25 January 2006 the DPO informed Mr Stoyanov of the decision not to institute criminal proceedings against the village officials (see paragraph 34 above) and stated that Mr Stoyanov could obtain information about the situation in the hooliganism case from the regional police, who were in charge of it. 41. On 27 January 2006 the Ivanivka district police took over the investigation in respect of the hooliganism case and decided to resume it. On 5 April 2006 they suspended it again.", "42. On 22 August 2008 Mr Stoyanov wrote to the Prosecutor General’s Office asking to be informed about the progress of the operational measures to identify the perpetrators and to be allowed to study the case file. 43. On 25 September 2008 the DPO informed Mr Stoyanov that the investigation had been lawfully suspended and that the aggrieved parties could only examine the case file once the investigation had been completed. 44.", "The applicants submitted a copy of a letter from the district police dated 13 July 2009 addressed to Mr Stoyanov. The letter informed Mr Stoyanov, in response to his query, that on 10 February 2009 the investigation had been renewed and on 2 March 2009 suspended again for failure to identify the perpetrators. No reason for the alleged renewal was mentioned. The Government argued that the letter was not genuine (see paragraphs 88 to 91 below). E. Judicial proceedings 1.", "Quashing of the village council’s decision 45. On 21 March 2003 the Ivanivskyy District Court (“the District Court”), having heard an appeal by the DPO, quashed the village council’s decision of 9 September 2002 on the grounds that it was contrary to the Constitution and had been taken under the pressure exerted by a crowd of angry villagers in order to calm them down and prevent the lynching of the Roma. 2. Civil claim for damages 46. On 23 December 2005 the applicants (except the fourth and sixteenth) lodged with the District Court a civil claim for damages against the District Administration and the village council.", "47. On 23 November 2007 the District Court rejected the applicants’ claim, holding that it fell within the jurisdiction of the Odessa District Administrative Court. No appeal was lodged. 3. Administrative proceedings for the investigating authorities’ inaction to be declared unlawful 48.", "On 3 May 2007 the first three and the fifth to nineteenth applicants lodged a claim seeking to have the failure of the DPO and the district police to investigate the incident declared unlawful. 49. On 9 February 2008 the Odessa Circuit Administrative Court rejected the claim without considering it on the merits, holding that it fell outside the jurisdiction of the administrative courts. On 17 March 2008 the Odessa Administrative Court of Appeal upheld this ruling. 4.", "Complaints to courts in the context of criminal procedure 50. On 5 June 2008 the District Court initiated proceedings concerning the claim brought by the first three and the fifth to nineteenth applicants under the Code of Criminal Procedure in which they challenged the decision to suspend the investigation. On 19 August 2008 and 8 April 2009 Mr Stoyanov lodged additional complaints on behalf of the first to third, sixth to fifteenth and seventeenth to nineteenth applicants in these proceedings. In those complaints, they stated that they had never been questioned and had never been recognised as aggrieved parties (потерпілі). They asked the court to order the police to recognise them as such.", "According to the applicants, at the time of the application to the European Court of Human Rights the proceedings were still pending before the District Court and no decision had been made. II. RELEVANT DOMESTIC LAW A. Constitution of Ukraine 51. Article 24 of the Constitution of Ukraine provides as follows: “...", "There shall be no privileges or restrictions based on race, skin colour, ... [or] ethnic or social origin ...” B. Criminal Code of 2001, as worded at the material time 52. Articles 67, 161, 294, 296, 365 and 367 of the Code read as follows: Article 67. Circumstances aggravating a punishment “1. For the purposes of imposing a punishment, the following circumstances shall be deemed to be aggravating: ... (3) the commission of a crime on the grounds of racial, national or religious enmity or hostility; ...” Article 161.", "Violation of citizens’ equality on the grounds of their race, nationality or religious beliefs “1. Intentional acts aimed at inflaming ethnic, racial or religious hostility and hate, or attacking ethnic dignity or insulting citizens in connection with their religious beliefs – as well as the direct and indirect limitation of rights or the conferring of direct or indirect privileges on the basis of race, skin colour, political, religious or other beliefs, sex, ethnic or social origin, property status, place of residence, language or other characteristics – shall be punishable by a fine of up to fifty times the level of monthly non-taxable income or by correctional work for a period of up to two years, or by restriction on liberty for a period of up to five years, with or without a prohibition on occupying certain positions or engaging in certain activities for up to three years. 2. The same acts, where combined with violence, deceit, or threats or committed by a person in a position of authority, shall be punishable by correctional work for a period of up to two years or by imprisonment for up to five years. 3.", "The acts described in paragraphs 1 and 2 of this Article, where committed by an organised group or if they have caused death or have resulted in other grave consequences, shall be punishable by imprisonment for two to five years.” Article 294. Mass disorder (rioting) “1. Organisation and participation in mass disorder associated with violence against persons, pogroms, arson, destruction of property, occupation of buildings, [or] forceful expulsion of citizens... shall be punishable by five to eight years’ imprisonment. 2. The same acts, where they led to death or other grave consequences, shall be punishable by eight to fifteen years’ imprisonment.” Article 296.", "Disorderly conduct (hooliganism) “1. Disorderly conduct, namely a serious breach of public order motivated by flagrant disrespect for the community, combined with particular impudence and exceptional cynicism ... 2. ... committed by a group of persons shall be punishable by a restriction on liberty for up to five years or imprisonment for up to four years.” Article 365. Excess of power or office “1. Excess of power or office, namely the intentional commission of acts by an official which go manifestly beyond the scope of the rights and powers vested in him or her and which cause serious damage to the State or public interest or to the lawful interests, rights and freedoms of natural or legal persons shall be punishable by [the obligation to undertake] correctional works for a period of up to two years or by a limitation on liberty for a period of up to five years or by imprisonment for up five years and by a prohibition on occupying certain positions or engaging in certain activities for up to three years.", "... 3. Any actions provided by paragraph 1 or 2 of this Article, if they had any grave consequences, shall be punishable by seven to ten years’ imprisonment and by a prohibition on the right to occupy certain positions or engage in certain activities for up to three years.” Article 367. Neglect of official duty “1. Neglect of official duty – that is to say failure to perform or improper performance on the part of an official of his or her official duties owing to negligence, where it causes any significant damage to the legally protected rights and interests of individual citizens, State and public interests or those of legal entities, shall be punishable by a fine amounting to between fifty and one hundred and fifty times the [level of monthly non-taxable] income or by correctional work for up to two years or by a restriction on liberty for up to three years and by a prohibition on occupying certain positions or engaging in certain activities for up to three years. 2.", "The same act, if it has any grave consequences, shall be punishable by imprisonment for two to five years and a prohibition on occupying certain positions or engaging in certain activities for up to three years with or without a fine amounting to between a hundred and two hundred and fifty times the [level of monthly non-taxable] income.” C. Code of Criminal Procedure of 1960 (in effect at the relevant time) 53. Article 28 of the Code provided that a person who had sustained pecuniary damage as a result of a crime could lodge a civil claim against an accused or persons liable for the actions of the accused. Article 50 required the investigator or the court to deliver a formal decision recognising the person as a civil plaintiff or refusing such recognition. 54. Article 49 provided that a person who had sustained non-pecuniary, physical or property damage as a result of a crime could be recognised as an aggrieved party.", "It required the investigator or the court to issue a formal decision recognising the person as an aggrieved party or refusing such recognition. 55. Article 206 of the Code provided that a pre-trial investigation in a criminal case could be suspended, in particular, if the investigation had failed to identify the perpetrator. 56. Article 121 provided that any disclosure of information about pre-trial investigation had to be authorised by the investigator in charge of the case or the prosecutor.", "57. Under Articles 234-36 of the Code, the acts of an investigator could be appealed against to a prosecutor. The investigator’s acts and the decisions of the prosecutor in respect of complaints could also be appealed against before a court, but the latter would only examine them at the preliminary hearing of the case in question – that is to say after the relevant investigation had been completed and the case had been sent to court with a bill of indictment. D. Operational-Search Activities Act of 1992 58. Section 2 of the Act describes operational search activities as a system of open and covert search, intelligence and counterintelligence measures.", "Section 8 provides that in the course of operational search activities the relevant law enforcement units can interview individuals, conduct controlled purchases, examine documents, enter and examine premises (including in a covert manner), infiltrate criminal groups, engage in wiretapping and surveillance, employ informers, create decoy companies and establishments, etc. III. RELEVANT INTERNATIONAL DOCUMENTS 59. The relevant parts of the second report on Ukraine by the European Commission against Racism and Intolerance (ECRI), adopted on 14 December 2001, read as follows: “56. As is the case in some European countries, the Roma/Gypsy population of Ukraine is faced with situations of severe socio-economic disadvantage, but also with manifestations of prejudice, discrimination and violence on the part of the majority population and sometimes on the part of the authorities, particularly law enforcement officials.", "ECRI expresses concern at this situation and considers that policies are urgently needed to address the position of the Roma/Gypsy communities in Ukraine in order to ensure that the members of these communities enjoy in practice the same rights as the rest of the population of Ukraine. ECRI believes that the first necessary step towards developing an appropriate response to the problems faced by the Roma/Gypsy population of Ukraine is the recognition on the part of the authorities that such problems exist and that they need to be addressed ... ... 58. Another priority area for action identified by ECRI is the behaviour of the law enforcement officials vis-à-vis members of the Roma/Gypsy communities. In this respect, ECRI notes with concern frequent reports of excessive use of force, ill‑treatment, verbal abuse and destruction of property by law enforcement personnel. Discriminatory practices are also reported to be widespread and include arbitrary checks, unwarranted searches, confiscation of documents and, as noted in ECRI’s first report, discriminatory enforcement of crime prevention policies targeting persons with criminal records.", "ECRI urges that action be taken to address manifestations of unlawful behaviour on the part of law enforcement officials generally, including through a more effective institutional response to such manifestations and through training and awareness raising measures. In addition, noting reports that the response of the police to crimes committed by the general population against Roma/Gypsies is often inadequate, ECRI recommends that the Ukrainian authorities take measures to ensure that the police react promptly and effectively to all crimes, including those committed against Roma/Gypsies and, in line with its recommendations formulated above, to ensure that the racist element of such offences is duly taken into account.” 60. The relevant parts of the third report on Ukraine by the ECRI, adopted on 29 June 2007, read as follows: “76. As previously indicated, Roma face a number of problems in their relationship with the police and other law enforcement agencies. ECRI has received reports according to which some police officers illegally arrest and harass members of Roma communities...", "Attempts to find a common understanding between Roma organisations and the Ministry of Interior, the Office of the Prosecutor and law enforcement officials have reportedly yielded few results. ECRI has also received reports according to which Roma do not receive an adequate response from the police when they are the victims of crime.” 61. On 27 November 2002 the Council of Europe’s Advisory Committee on the Framework Convention for the Protection of National Minorities (“the Advisory Committee”) published its first opinion regarding Ukraine’s compliance with that Convention. It concerned the first monitoring cycle and was based on the Advisory Committee’s visit to Ukraine in December 2001. The relevant parts of the opinion read: “30.", "The Advisory Committee considers that Ukraine has not been able to secure full and effective equality between the majority population and Roma and that the situation of Roma remains difficult in such fields as employment and housing... These problems are exacerbated by the unsatisfactory situation of Roma in the educational system... The Advisory Committee is of the opinion that these issues merit increasing attention. ... 36. The Advisory Committee notes with concern that societal attitudes towards Roma remain negative, and sociological studies suggest that the prejudices towards Roma are markedly more widespread than towards persons belonging to other national minorities.", "The Advisory Committee believes that it would be helpful to design further initiatives aimed at promoting inter-cultural dialogue between Roma and others. 37. The Advisory Committee notes with concern that there have been incidents of discrimination and ill-treatment of Roma, including by law-enforcement officials, which have been reported inter alia by the Parliamentary Ombudsman. It is also concerned about credible reports about discrimination and hostility, including by law-enforcement officials, concerning asylum-seekers and other persons who have arrived in Ukraine relatively recently... The Advisory Committee deeply regrets that there appears to be some reluctance within the law-enforcement bodies to acknowledge and examine these problems, and it urges the authorities to increase the vigour with which these incidents are investigated and prosecuted.” 62.", "The Advisory Committee’s second opinion on Ukraine, issued on 30 May 2008, reads, in the relevant part: “79. Some interlocutors informed the Advisory Committee that persons belonging to national minorities are affected by unjustified and/or unlawful stop and search procedures which are carried out by law-enforcement officials. Roma, as well as persons belonging to visible minorities living in various regions of Ukraine, seem to be particularly targeted by this practice which is allegedly accompanied, in certain cases, by calls for bribes. Raids and home searches in Roma settlements, sometimes accompanied by an excessive use of force, have reportedly not ceased. Cases of ill-treatment by the police are still being reported, and the complaints brought against the officials under suspicion are often not properly investigated.", "Moreover, there are reports of Roma convicted of crimes and subsequently sentenced to imprisonment, without substantive proof of guilt. By contrast, law-enforcement agencies are reported to be more reluctant to investigate crimes committed against Roma. Widespread negative stereotypes of the Roma population seem to be prevalent also within law enforcement agencies as well as the judiciary... and no doubt contribute to the risk of unequal treatment by these institutions.” THE LAW I. PRELIMINARY MATTERS A. Death of two applicants 63.", "The seventeenth and the eighteenth applicants died after this application had been lodged (see paragraph 5 above). 1. The parties’ submissions 64. The applicants’ representatives initially informed the Court of that fact in their letter of 23 February 2018. They stated that the seventeenth applicant’s wife and son and the eighteenth applicant’s wife and granddaughters wished to pursue the application in their stead.", "On that occasion they furthermore stated that the nineteenth applicant had also died and named certain individuals who wished to pursue the application in his stead. 65. In response to the Court’s invitation to provide evidence, the applicants’ representatives stated that in fact the nineteenth applicant had not died. On that occasion they also submitted that Ms Raisa Mikitovna Tsynya and Ms Lyubov Leontivna Tsynya – respectively, the wives of the seventeenth and eighteenth applicants – as well as Ms Ramina Nikolaevna Tsynya, Lyubov Nikolaevna Tsynya and Evgenya Tsynya – the eighteenth applicant’s granddaughters, had expressed their wish to pursue the application on behalf of the respective applicants. They submitted authority forms signed by those individuals and death certificates.", "66. The Government submitted that the individuals purporting to pursue the application on behalf of the deceased had “failed to provide any supporting documents related to their relationship or consanguinity with the deceased, such as birth certificate, marriage certificate and more important (sic) inheritance certificates”. They invited the Court to refuse those individuals’ requests that they be allowed to pursue the application on behalf of the deceased. 67. The applicants’ representatives responded by submitting a copy of the marriage certificate showing that Lyubov Tsynya was the eighteenth applicant’s wife.", "As to Raisa Tsynya, they submitted that she had only been the seventeenth applicant’s partner (that is to say they had not been married to each other) and that she was therefore in no position to provide a marriage certificate. They pointed out that in the case of Velikova v. Bulgaria ((dec.), no. 41488/98, ECHR 1999‑V (extracts)) the Court had allowed an unmarried partner to pursue a complaint following the death of the applicant. The applicants’ representatives submitted that the individuals in question were vulnerable and poor and could not be expected to provide certificates of inheritance. 2.", "The Court’s assessment 68. The Court firstly notes that the applicants died after they had lodged the application, a situation which according to its case-law is viewed differently from those instances where the applicant has died beforehand. Where the applicant has died after the application was lodged, the Court has accepted that the next of kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014, with further references). In such cases, the decisive point is not whether the rights in question are or are not transferable to the heirs wishing to pursue the procedure, but whether the heirs can in principle claim a legitimate interest in requesting the Court to deal with the case on the basis of the applicant’s wish to exercise his or her individual and personal right to lodge an application with the Court (see Singh and Others v. Greece, no.", "60041/13, § 26, 19 January 2017). 69. It is not contested that the individuals wishing to pursue the application on behalf of the deceased applicants have no formal status as their heirs. However, this in itself is not decisive as long as they can lay a claim to be their next of kin (contrast Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII – where the Court accepted that a relative who had not finalised his status as a heir nevertheless had such standing ‑ with Thévenon v. France (dec.), no.", "2476/02, ECHR 2006‑III, ‑ where it did not recognise the locus standi of an individual who was not the applicant’s relative, even though he was his friend and universal legatee). 70. As far as the seventeenth applicant is concerned, there is no evidence before the Court which would show that the individuals purporting to pursue the application on his behalf are his next of kin, and the individuals in question have not explained why they could not provide such evidence. 71. While initially the seventeenth applicant’s son was mentioned by the applicants’ representatives as wishing to pursue the application, there was no follow-up and the applicants’ representatives made no reference to him again after the Court’s request for evidence (see paragraphs 64 and 65 above).", "72. As to the seventeenth applicant’s unmarried partner, she did not pursue any domestic proceedings on his behalf and was not recognised as such either by any domestic authority or the Government (contrast, for example, Velikova (dec.), cited above, Vogrinčič and Others v. Slovenia (dec.), nos. 15829/05 and 18618/06, 28 June 2011, and Ivko v. Russia, no. 30575/08, § 66, 15 December 2015). Even after clarifying her status as his unmarried partner, she has not described her relationship with the applicant in any detail, such as the period of their cohabitation, common children, etc.", "(contrast, for example, Velikova (dec.), cited above, and Pisarkiewicz v. Poland, no. 18967/02, § 29, 22 January 2008). 73. Given these circumstances, the Court concludes that it has not been shown that the individuals purporting to pursue the application in the seventeenth applicant’s stead have a legitimate interest in doing so. Accordingly, they do not have standing to pursue the proceedings.", "74. Given that the Court will continue to examine the other applicants’ complaints, which are based entirely on the same facts, no particular circumstance relating to respect for the rights guaranteed by the Convention or its Protocols requires the Court to continue the examination of the application in respect of the seventeenth applicant (see, for example, Grigoryan and Sergeyeva v. Ukraine, no. 63409/11, § 45, 28 March 2017). 75. The Court accordingly finds that, as far as that applicant is concerned, the conditions in which a case may be struck out of its list, as provided in Article 37 § 1 of the Convention, are satisfied and decides to strike the application in respect of the seventeenth applicant out of its list.", "76. As far as the eighteenth applicant is concerned, the application is being pursued by his wife. The Court has no reason to doubt that she may pursue the application in his stead. By contrast, the individuals claiming to be that applicant’s granddaughters did not submit any evidence in support of that claim and, therefore, have not demonstrated that they have the requisite standing to pursue the application in his stead. 77.", "Accordingly, the Court holds that the eighteenth applicant’s wife has standing to continue the present proceedings in his stead. 78. However, reference will still be made to “the eighteenth applicant” throughout the ensuing text. B. Victim status of some applicants 1.", "The parties’ submissions 79. The Government submitted that the second, fourth, eighth, fourteenth, sixteenth and nineteenth applicants had not been recognised as victims in the domestic criminal proceedings (see the Appendix) and had not submitted any evidence to show that they had been affected by the events in issue in the case. Moreover, in the course of the domestic investigation the police did not examine the houses of the fifth, thirteenth, fourteenth and nineteenth applicants. The Government considered this to constitute evidence that their houses had not been damaged in the attack. Accordingly, they could not claim to be victims of the alleged violations of the Convention.", "80. The applicants responded that what was important in this context was the ineffectiveness of the domestic investigation, not those applicants’ formal status in those proceedings. Moreover, they pointed out that they had complained about the authorities’ failure to confer on some of them the formal status of aggrieved parties in the domestic proceedings (see paragraph 50 above). The applicants furthermore submitted that the fact that the houses of the fifth, thirteenth, fourteenth and nineteenth applicants and the damage done to them had not been examined by the police was attributable to the ineffectiveness of the investigation rather than to any fault on the applicants’ part. 2.", "The Court’s assessment 81. The Court notes that in her letter to the regional prosecutor’s office of 27 February 2005 (see paragraph 36 above) an official of the Romani Zbora NGO, acting on behalf of all the applicants other than the sixteenth (Ms Tsykolan), identified them as victims of the attack, enclosing their statements to that effect. In its response, the regional prosecutor’s office did not contest their situation as victims; on the contrary, it apparently implied that all of them had been granted formal status in the investigation (see paragraph 37 above). In view of the Government’s observations, the latter assessment by the prosecutor’s office appears to have been incorrect as no formal decision to grant the status of aggrieved parties to the second, fourth, eighth, fourteenth, sixteenth and nineteenth applicants was ever taken. However, neither does it appear that any formal decision was taken refusing them that status, even though the domestic law appears to have required such a formal decision (see paragraphs 53 and 54 above).", "In fact, there is no indication that there has been any decision-making or assessment of facts in respect of those applicants on the part of the domestic authorities. 82. The Court reiterates, in this respect, that according to the Court’s long-established case-law, the concept of “victim” must be interpreted autonomously and irrespective of domestic concepts such as those concerning an interest or capacity (see, for example, Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 47, ECHR 2013 (extracts)). Therefore, a lack of recognition of applicants at the domestic level does not, in and of itself, prevent them being considered to be “victims” within the meaning of Article 34 of the Convention, which denotes the person or persons directly or indirectly affected by the alleged violation at issue (ibid.).", "83. As to the Government’s argument that the houses of the fifth, thirteenth, fourteenth and nineteenth applicants had not been examined by the police – which, in the Government’s opinion, signified that those houses had not been damaged – the Court is unable to perceive any specific basis for this conclusion in the domestic investigation material made available to it. Moreover, as far as fifth and thirteenth applicants are concerned, this argument would appear to contradict the formal decision of the domestic authorities to grant them the status of aggrieved parties. 84. Given that the Government did not submit specific evidence – in particular any reasoned domestic decision – to rebut the applicants’ account that they had been displaced from their homes and that their homes had been damaged in the course of the events of 7 to 10 September 2002, the Court considers that all the applicants, except the sixteenth, can claim to be victims of the violations of the Convention alleged by them.", "85. As far as the sixteenth applicant is concerned, the Court notes that she has not submitted any evidence (beyond the applicants’ own assertion) to show that she was affected by the events in issue in the present application. She was granted no formal status at the domestic level and her name was not mentioned either in the Romani Zbora NGO’s complaint of 27 February 2005 (see paragraph 36 above) or in the lawyer’s complaints concerning the failure to recognise some of the other applicants as aggrieved parties (see paragraph 50 above). Therefore, the sixteenth applicant has not laid out an arguable case that she is a victim of the alleged violations of the Convention. 86.", "Therefore the Court, upholding the Government’s objection, considers that the application has to be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention, in so far as it concerns the sixteenth applicant. 87. Accordingly, in the following discussion, unless otherwise specified, the first to fifteenth and eighteenth to nineteenth applicants are collectively referred to as “the applicants”. C. Question of an abuse of the right of individual application 88. The Government did not consider the letter of 13 July 2009 addressed to Mr Stoyanov and indicating that the investigation had been renewed briefly in 2009, which the applicants had submitted (see paragraph 44 above), to be genuine.", "In particular it did not bear the appropriate police letterhead, did not bear the appropriate stamp, and was in Russian (even though normally it should have been in Ukrainian), and no record of it having been sent could be found in the district police department’s register of outgoing correspondence. The letter, therefore, appeared to have been forged. The Government accordingly invited the Court to consider the production of that letter to constitute abuse of the right of application and to reject the application on that ground. 89. The applicants insisted that the letter of 13 July 2009 was genuine.", "The fact that it was in Russian was not unusual since that language was widely used in the region. It bore a letterhead and a stamp. They provided a written statement from their representative Mr Stoyanov confirming that the letter was genuine. According to him, he had also visited Ivanivka police station on 7 November 2016 and the registrar there had confirmed to him that the 2009 letter had indeed been sent. The applicants also provided a new letter dated 21 October 2016 and signed by the deputy head of the investigation department at Ivanivka police station and confirming, in essence, that the 2009 letter was genuine.", "90. As to the letter of 21 October 2016, the Government submitted that the police were investigating the circumstances under which it had been issued. Moreover, the grounds for the issuance of this letter were doubtful since the police department’s register of outgoing correspondence had been stored for five years and then destroyed in 2014, so it was impossible to verify whether the letter of 13 July 2009 had been issued. 91. On the basis of the material in its possession, the Court is unable to conclude that the letter of 13 July 2009 was forged and that the applicants committed an abuse.", "In fact, the key objection to its genuineness raised by the Government – namely that it could not be found in the police department’s register of outgoing correspondence – appears to contradict the Government’s own submission that that register had been destroyed in 2014 before this application was communicated (compare paragraphs 88 and 90 above). Moreover, the issuance of that 2009 letter was reconfirmed by the police as recently as 21 October 2016, after the Government had submitted their observations. Accordingly, this objection must be rejected. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION, TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION 92.", "The applicants complained under Article 3 of the Convention that the attack on their houses and their destruction had amounted to inhuman and degrading treatment, for which the State was responsible on the grounds that the authorities had been complicit in the attack and had failed to protect them from it and to investigate it effectively. They furthermore argued that the State was responsible for the degrading living conditions that they had experienced following their displacement. In addition, they complained that on account of the above they had suffered discrimination owing to their Roma ethnic origin, contrary to Article 14, taken in conjunction with Article 3. 93. The invoked provisions read: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 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.” A.", "Two groups of applicants 94. In examining the above complaints the Court finds it appropriate to distinguish between two groups of applicants: Group I applicants – applicants who were present in the village in the run-up to the attack of the night of 9-10 September 2002 and had to flee their homes in the village under the threat of that attack – namely, the second, third, sixth to ninth, eleventh, thirteenth to fifteenth, eighteenth and nineteenth applicants; Group II applicants – the applicants who, by their own admission, were away from their homes at the time of the events in question (see the Appendix for references to the relevant statements), and so had no knowledge of the imminent attack, having only learned about the damage done to them afterwards – namely the first, fourth, fifth, tenth and twelfth applicants. B. Group I applicants 1. Admissibility (a) Exhaustion of domestic remedies (i) The parties’ submissions 95.", "In the Government’s opinion, the applicants should have realised that the criminal investigation was incapable of establishing with sufficient clarity any given person’s criminal responsibility for violence committed by a mob. Instead, a claim for damages against the local council or the police department was the only effective remedy available to them. In fact, the applicants had lodged a claim for damages against the council on 23 December 2005 seeking damages in respect of their expulsion (see paragraph 46 above). By using this remedy they had forfeited the right to assert that it had not been effective. However, they had then failed to appeal against the first-instance court’s decision dismissing their claim (see paragraph 47 above).", "They had also failed to lodge an administrative claim for damages against the police. The Government provided examples of the domestic courts’ case-law according to which such claims for damages could be considered effective. 96. The Government also pointed out that the applicants had failed to challenge before a more senior prosecutor the decisions to suspend criminal proceedings. 97.", "The applicants pointed out that the Court had found violations of the Convention where States had failed to conduct an effective criminal investigation into mob violence (see Ouranio Toxo and Others v. Greece, no. 74989/01, § 43, ECHR 2005‑X (extracts); Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, no. 71156/01, § 124, 3 May 2007; and Identoba and Others v. Georgia, no. 73235/12, §§ 75-78, 12 May 2015). For them, this was a clear indication that they could have expected an effective criminal investigation into the attack.", "They had sought to initiate such a criminal investigation and had thus complied with the requirement to exhaust domestic remedies. It had only been after it had become clear that the investigation was ineffective that they had applied to the Court. (ii) The Court’s assessment 98. The relevant principles of the Court’s case-law concerning the rule of exhaustion of domestic remedies are set out in Mocanu and Others v. Romania, [GC], nos. 10865/09 and 2 others, §§ 120-127, ECHR 2014 (extracts).", "99. In response to the Government’s submission that the applicants had to lodge civil claims for damages, the Court observes that, in fact, a criminal investigation was initiated in connection with the attack on the applicants’ houses, and the applicants played an active role in it (see paragraphs 30‑44 above and 109 below). Accordingly, the applicants made use of a domestic remedy which, according to the Court’s case-law, constitutes an effective domestic remedy for such complaints (see, for example, M.C. and A.C. v. Romania, no. 12060/12, § 61, 12 April 2016).", "Since the investigation concerned the attack in general, its outcome was important for all applicants, regardless of whether or not they had been granted formal status in the domestic proceedings (see, mutatis mutandis, D.H. and Others v. the Czech Republic [GC], no. 57325/00, §§ 120-22, ECHR 2007‑IV). 100. As to the Government’s argument that the applicants could have appealed to a more senior prosecutor against the decision to suspend the investigation, the Court notes that the applicants’ representatives did in fact raise arguments before the Prosecutor General questioning the validity of the suspension – namely the failure to identify the perpetrators; and the regional prosecutor’s office examined that complaint on the merits, having left in force the decision to suspend the investigation (see paragraphs 38 and 39 above). Given that the applicants did not have access to the case file (see paragraph 43 above), the Court is not convinced that they could have presented more detailed arguments in this respect (compare Betayev and Betayeva v. Russia, no.", "37315/03, § 89, 29 May 2008). 101. In the light of the foregoing, the Court considers that the application cannot be rejected for failure to exhaust domestic remedies. The Government’s objection must therefore be dismissed. (b) Compliance with the six-month rule (i) The parties’ submissions 102.", "The Government submitted that the applicants’ complaints had been lodged outside of the six-month period. They presented two arguments in this respect. 103. Firstly, the Government argued that the criminal proceedings instituted in respect of the attack had been definitively suspended on 5 April 2006; this decision had been notified to the applicants on 25 September 2008 at the latest, and the investigation had remained dormant ever since. The Government did not consider as genuine the letter of 13 July 2009 addressed to Mr Stoyanov and indicating that the investigation had been renewed briefly in 2009 (see paragraphs 44 and 91 above).", "Moreover, in the applicants’ claim lodged in 2007 with the administrative court the applicants had stated that they already considered the investigation to be ineffective. Thus, the applicants must have realised at the very latest by 25 September 2008 that the criminal investigation was ineffective and should then have applied to the Court. However, the applicants had actually applied to the Court more than six months after that date. 104. Secondly, the Government also argued that the village council’s decision concerning the expulsion of the Roma from the village had been quashed with effect from 21 April 2003, when the domestic court’s judgment of 21 March 2003 (see paragraph 45 above) had become final and enforceable.", "Accordingly, the council’s decisions “could not serve as the basis for any actions” as of the former date. The applicants had lodged their application more than six years after that date. 105. Referring to the Court’s judgment in Chiragov and Others v. Armenia ([GC], no. 13216/05, § 137, ECHR 2015), the applicants submitted that the requirement for applicants to display due diligence in pursuing their claims was less pressing in cases concerning loss of property than in cases concerning violent loss of life, given that in the former the evidence was less likely to deteriorate over time.", "They referred to their arguments concerning the letter of 13 July 2009, which indicated that the investigation had been restarted in 2009 (see paragraphs 44 and 89 above). (ii) The Court’s assessment 106. The relevant principles of the Court’s case-law concerning the six-month rule period are set out in Mocanu and Others (cited above, §§ 259‑66). In accordance with those principles in cases concerning an investigation into ill-treatment, applicants are expected to take steps to keep track of the investigation’s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation (ibid., § 263). That obligation of diligence incumbent on applicants contains two distinct but closely linked aspects: on the one hand, applicants must contact the domestic authorities promptly concerning progress in the investigation in question – which implies the need to complain to them in a diligent manner, since any delay risks compromising the effectiveness of the investigation; on the other hand, they must lodge their application with the Court promptly as soon as they become aware or should have become aware that the investigation is not effective (ibid., § 264).", "107. The Court agrees with the Government that had the applicants complained about the village council’s resolution of 9 September 2002 as such, it would have had to hold that such a complaint had been lodged outside the six-month period. The Court considers, however, that the applicants referred to the village council’s resolution as mere evidence of the authorities’ implication in the attack on their homes which was the subject of the subsequent criminal investigation. 108. As far as the criminal investigation and the applicants’ compliance with the obligation of diligence in that respect are concerned, the Court notes that the applicants’ compliance with the first aspect of that obligation is not contested (see paragraph 95 above).", "109. As to the second aspect (see paragraph 106 in fine above), the Court notes that throughout the investigation the applicants maintained regular contact with the authorities, displaying active interest in the proceedings (compare M.C. and A.C. v. Romania, cited above, § 78; also contrast Narin v. Turkey, no. 18907/02, § 46, 15 December 2009, and Frandeş v. Romania (dec.), no. 35802/05, § 21, 17 May 2011).", "The suspension of proceedings was neither triggered nor influenced in any manner by the applicants’ activity or lack thereof (see M.C. and A.C. v. Romania, cited above, § 75). 110. Following its initial suspension in 2003, the criminal investigation was briefly renewed in 2006 (see paragraphs 35 and 41 above). Moreover, the applicants were assured that measures to identify the perpetrators were ongoing even in the period during which the formal investigation was suspended (see paragraph 37 above).", "Given the secrecy which characterised this stage of the proceedings, it was reasonable for the applicants to put their trust in such assurances (ibid., § 77; see also paragraph 56 above). Finally, on 13 July 2009 – that is to say less than six month before this application was lodged with the Court – the applicants were informed that the investigation had again been renewed (see paragraph 44 above). As the Court found above, it has no sufficient grounds to doubt that the letter in question is genuine (see paragraph 91 above). 111. Under such circumstances the Court cannot fault the applicants for having put their trust in the system (ibid., § 77), giving the authorities the benefit of the doubt and awaiting further progress before applying to the Court, so long as there was a realistic possibility, on the basis of the information the applicants were receiving from the authorities, that the investigative measures could be advancing (compare Mocanu and Others, cited above, § 280).", "112. In the light of the foregoing, the Court considers that the application has not been lodged out of time. The Government’s objection must therefore be dismissed. (c) Conclusion as to admissibility 113. The Court accordingly concludes that the complaints of the Group I applicants under Article 3 of the Convention (taken both alone and in conjunction with Article 14 of the Convention) are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention.", "No other grounds for declaring them inadmissible have been established. They must therefore be declared admissible. 2. Merits (a) The parties’ submissions 114. The applicants maintained that there had been a violation of Article 3 on account of the authorities’ acquiescence in the attack (most notably on the part of the village council and of the police), their failure to prevent and effectively investigate it, and the applicants’ degrading post‑displacement living conditions.", "115. The applicants submitted that the village council’s resolution had constituted incitement to violence. In this respect they referred to Ouranio Toxo and Others (cited above, § 42). The applicants may not have feared for their lives upon returning to inspect their properties but it would be unreasonable to expect them to continue living in a place where the only protection they could expect was advance warning to flee. The fact that most of the applicants had not witnessed the attack on their homes did not preclude the applicability of Article 3, since – according to the Court’s judgment in M.S.S.", "v. Belgium and Greece ([GC], no. 30696/09, §§ 249-64, ECHR 2011) – Article 3 could be engaged in the event that members of a particularly vulnerable group were made homeless in aggravated circumstances. 116. The Government submitted that the threshold of severity required to bring Article 3 into play had not been reached. Relying, in particular, on the Court’s judgments in Selçuk and Asker v. Turkey (24 April 1998, § 77, Reports of Judgments and Decisions 1998‑II), and Ayder and Others v. Turkey (no.", "23656/94, § 109, 8 January 2004), they argued that according to the Court’s case-law two factors were decisive for the triggering of the application of Article 3 in respect of the destruction of a home, namely (i) the factor of surprise and (ii) the applicant personally observing the destruction of his or her home. Neither of those had been present in the instant case since the Roma (i) had been warned by the village mayor and the police of the possibility of a pogrom, and (ii) had left; moreover, none of them had observed the attack. This also applied to the ninth applicant, who had not mentioned in her early statements that she had personally witnessed the attack (see paragraph 18 above). 117. There was no evidence that the authorities had instigated, the less so carried out, the destruction of the applicants’ property.", "On the contrary, the village mayor and police officers had warned the applicants of the possible pogrom and had asked them to leave their houses. Apparently there had been some police officers present during the “pogrom”, but there was no evidence that they instigated the violence, let alone participated in it. It appears that the police first contained the mob and then, when it became feasible, dispersed it. The local council’s decision regarding expulsion was quickly quashed. In short, there was no evidence that expulsion of the applicants had been part of State policy (see also paragraph 154 below).", "118. Neither was there evidence that the applicants’ houses had been burned, which had been a factor in finding a violation in the cases of Selçuk and Asker and Ayder (both cited above) and Moldovan and Others v. Romania (no. 2), nos. 41138/98 and 64320/01, ECHR 2005‑VII (extracts)). Only the home of the first applicant had burned down and there was no conclusive evidence that this had been due to arson rather than to an accident (see paragraph 12 above).", "The other homes were damaged but not destroyed, as evidenced by the fact that the applicants and other Roma residents had been able to visit their homes and to sell them afterwards. The applicants had not provided evidence concerning either the exact extent of damage to their homes or of the allegedly harsh living conditions they had experienced following their displacement. (b) The Court’s assessment (i) Relevant general principles (α) Attribution of responsibility 119. A Contracting State will be responsible under the Convention for violations of human rights caused by acts of its agents carried out in the performance of their duties (see, for example, V.K. v. Russia, no.", "68059/13, § 174, 7 March 2017). However, a State may also be held responsible even where its agents are acting ultra vires or contrary to instructions (see Moldovan and Others, cited above, § 94). The acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of other individuals within its jurisdiction may also engage that State’s responsibility under the Convention (see Cyprus v. Turkey [GC], no. 25781/94, § 81, ECHR 2001‑IV). (β) Minimum level of severity 120.", "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. Further factors include the purpose for which the ill‑treatment was inflicted, together with the intention or motivation behind it, although the absence of any intention to humiliate or debase the victim cannot conclusively rule out the finding of a violation of Article 3. Regard must also be had to the context in which the ill-treatment was inflicted, such as an atmosphere of heightened tension and emotions. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering.", "However, even in the absence of these aspects, where treatment humiliates or debases an individual ‑ showing a lack of respect for or diminishing his or her human dignity – or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition set forth in Article 3 (see Bouyid v. Belgium ([GC], no. 23380/09, §§ 86 and 87, ECHR 2015, with further references therein). 121. It should also be emphasised that Article 3 cannot be limited to acts of physical ill-treatment; it also covers the infliction of psychological suffering (see R.B. v. Hungary, no.", "64602/12, § 45, 12 April 2016). The Court has thus held that a mere threat of torture can constitute inhuman treatment (see Gäfgen v. Germany [GC], no. 22978/05, § 108, ECHR 2010). The Court has reached the same conclusion in respect of a fear of future assaults where there had already been a history of domestic violence (see Eremia v. the Republic of Moldova, no. 3564/11, § 54, 28 May 2013).", "The Court also found Article 3 to be applicable in a case where armed and masked police officers had entered the applicants’ home (where an infant had been present), pointed guns at the applicants and shouted death threats (see Hristovi v. Bulgaria, no. 42697/05, § 80, 11 October 2011). In East African Asians v. United Kingdom (Commission’s report of 14 December 1973, Decisions and Reports 78-A, p. 62, § 207) the European Commission on Human Rights considered the meaning of degrading treatment under Article 3 of the Convention and stated that “treatment of an individual may be said to be “degrading” in the sense of Article 3 “if it grossly humiliates him before others or drives him to act against his will or conscience” (paragraph 195 of the Commission’s opinion). It further held that “... discrimination based on race could, in certain circumstances, of itself amount to degrading treatment within the meaning of Article 3 of the Convention. ...[P]ublicly to single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity...” (ibid., paragraph 207).", "122. Not every form of threatening behaviour, however, even if it involves a large group of individuals, will bring Article 3 into play (see, for example, Karaahmed v. Bulgaria, no. 30587/13, §§ 74-77, 24 February 2015, which involved mostly verbal intimidation of Muslim worshippers by a crowd of protesters), even though where threats reach a certain level of seriousness and target victims as members of a particular ethnic or racial group, they may bring Article 8 into play (see Király and Dömötör v. Hungary, no. 10851/13, § 43, 17 January 2017, where the applicants, Roma residents of a village, were in their houses and had to observe a threatening demonstration, which involved anti-Roma speeches and the throwing of objects at their houses, and which was overseen and contained but not dispersed by the police). 123.", "The Court has further held that in the event of threatening actions on the part of third parties, a significant police presence protecting the applicants has a role in attenuating its effect so as to make Article 3 inapplicable while Article 8 was still engaged (see R.B. v. Hungary, cited above, §§ 51 and 52). By contrast, in Identoba and Others (cited above, § 70), the Court, in categorising the treatment suffered by the applicants at the hands of private protestors as falling within the ambit of Article 3, found relevant the inadequacy of police protection provided to the applicants. In a different context, the Court, in finding the treatment suffered by applicants to be contrary to Article 3 and even to constitute torture, found it relevant that they had been detained in a place where there had been no rule of law (“zone de non-droit”) and the most elementary guarantees of rights had been suspended and where, therefore, they had had no protection from abuse (see Azzolina and Others v. Italy (nos. 28923/09 and 67599/10, §§ 134 and 137, 26 October 2017).", "(γ) Positive obligations 124. The obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals. This positive obligation to protect is to be interpreted in such a way as not to impose an excessive burden on the authorities, bearing in mind, in particular, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources. Accordingly, not every risk of ill-treatment could entail for the authorities a Convention requirement to take measures to prevent that risk from materialising. However, the required measures should, at least, provide effective protection in particular of children and other vulnerable persons and should include reasonable steps to prevent ill‑treatment of which the authorities had or ought to have had knowledge (see O’Keeffe v. Ireland [GC], no.", "35810/09, § 144, ECHR 2014 (extracts)). 125. Furthermore, Article 3 requires that the authorities conduct an effective official investigation into the alleged ill‑treatment, even if such treatment has been inflicted by private individuals (see T.M. and C.M. v. the Republic of Moldova, no.", "26608/11, § 38, 28 January 2014). 126. An investigation into serious allegations of ill-treatment must be both prompt and 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 for use as the basis of their decisions. They must take all reasonable steps available to them to secure evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no.", "39630/09, §§ 183 and 184, ECHR 2012, with further reference therein). 127. Generally speaking, for an investigation to be effective, the institutions and persons responsible for carrying it out must be independent of those targeted by it. This means not only a lack of any hierarchical or institutional connection but also practical independence. Whatever mode is employed, the authorities must act of their own motion.", "In addition, in order to be effective the investigation must be capable of leading to the identification and punishment of those responsible. It should also be broad enough to permit the investigating authorities to take into consideration not only the actions of the State agents who directly used force but also all the surrounding circumstances. Although this is not an obligation of results to be achieved but of means to be employed, 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 the required standard of effectiveness (see Bouyid, cited above, §§ 118-20). 128. When investigating violent incidents such as acts of ill‑treatment, State authorities have a duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events at hand.", "Proving racial motivation will admittedly often be difficult in practice. The respondent State’s obligation to investigate possible racist overtones to a violent act is an obligation to use its best endeavours and is not absolute. The authorities must do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of racially motivated violence (see, mutatis mutandis, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005‑VII). Treating violence and brutality with a discriminatory intent on an equal footing with cases that have no such overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights.", "A failure to make a distinction in the way situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see Identoba and Others, cited above, § 67). (ii) Application of the above-mentioned principles to the present case (α) Substantive aspect of Article 3, taken in conjunction with Article 14 129. The Court considers it necessary, at this juncture, to (i) comment on the motives behind the attack on the applicants’ homes and (ii) to assess the authorities’ role in the applicants’ displacement. 130. As to the former matter, it is sufficient for the Court to note that it has never been substantively in dispute either domestically or before this Court that the attack on the applicants’ houses was motivated by anti-Roma sentiment among the villagers.", "Admittedly, the mob appears to have been motivated in part by desire for revenge against the families of those involved in the murder which had triggered the events (compare Fedorchenko and Lozenko v. Ukraine, no. 387/03, § 68, 20 September 2012, where Roma houses were burned in an attack allegedly targeting houses of drug dealers). 131. As to the role of the authorities in respect of the attack, it appears that not only local police in the village but also police at the district level knew about the pogrom being prepared sufficiently ahead of time to call Roma residents to a meeting and to warn them to leave (see paragraph 29 above). That being so, there is no information as to why they did not intervene to protect the applicants’ homes.", "In particular, it has not been argued in any of the domestic decisions that the violence erupted so abruptly or so overwhelmed the police resources as to justify a decision to limit police intervention and merely attempt to minimise the damage by advising the applicants to flee (contrast Király and Dömötör, cited above, §§ 63-69, and P.F. and E.F. v. the United Kingdom (dec.), no. 28326/09, §§ 40-47, 23 November 2010). 132. The case-file material shows that State agents explicitly urged the applicants to leave the village because they were either unwilling or considered themselves unable to protect them from mob violence.", "The Court also considers it established that police officers were present at the ransacking of the applicants’ houses but made no intervention worthy of note. This presence, coupled with the decision of the village council of 9 September 2002 appearing to endorse the expulsion of “socially dangerous individuals” from the village (see paragraph 11 above), created the appearance of official approval for the attackers’ actions. 133. While it is a positive fact that the council’s decision was quashed several months later (see paragraph 45 above), this is immaterial for the assessment of the gravity of the attack and its impact on the applicants at the time that it occurred and in its immediate aftermath. Also, while the council’s decision of 9 September 2002 did not refer to the ethnicity of individuals to be expelled, there could be no doubt, given the context and its previous decision of 8 September 2002, that Roma residents were targeted by it.", "134. Therefore, the applicants who had been warned about the attack were put in a situation where they had to conclude that, because of their family relations and their ethnicity, they could not count on the protection of the law in the place where they had lived in regular accommodation for a substantial period of time (see the Appendix). The decision to leave their homes before the attack was thus not a result of the exercise of their free will but their way of protecting their physical integrity. Their feelings of fear, anguish, helplessness and inferiority were further exacerbated by understanding that their homes would likely be plundered, but that they were unable to protect them without putting their lives at risk. All in all, it grossly diminished their dignity.", "The Court concludes that the role of the police, which chose not to protect the applicants but advise them to leave before the “pogrom” (see paragraph 12 above) – and the fact that those events involved the invasion and ransacking of the applicants’ homes by a large mob that was driven by sentiment aimed at them as Roma (that is to say members of a vulnerable group) – was such as to constitute an affront to the applicants’ dignity sufficiently serious as to be categorised as “degrading” treatment. This assessment renders it unnecessary for the Court to resolve the dispute between the parties as to whether the ninth applicant was at home at the time of the attack and had to confront the attackers (see paragraph 18 above). 135. The Court, accordingly, does not agree with the Government’s assessment (see paragraph 118 above) that for Article 3 to be found applicable within the context of damage to property it is essential for the applicants to have watched his or her house being destroyed. The relevance of the presence or absence of any given circumstance should not be taken in isolation but should rather be seen in the context of all the circumstances of the case (see, mutatis mutandis, Gäfgen, cited above, § 88).", "In view of the above findings, the Court does not find this factor decisive in the present case. 136. As follows from the above discussion, the Court considers it established that: (i) the attack on the applicants’ homes was motivated by anti-Roma sentiment; (ii) the police failed to take any measures to protect the applicants’ homes from the attack and no objective reason was given for their inaction; (iii) the village council’s resolution and in particular the police presence and passivity at the scene of the attack created an appearance of official endorsement for the attack; and (iv) the attack constituted degrading treatment, in particular on account of the attitude of the authorities. 137. There has, accordingly, been a violation of the substantive aspect of Article 3, taken together with Article 14 of the Convention, in respect of the Group I applicants.", "(β) Procedural aspect of Article 3, taken in conjunction with Article 14 138. The Court notes that the domestic investigation into the attack was characterised by a number of serious omissions. 139. To start with, the Court notes that there was abundant evidence before the investigating authorities that the local authorities, including the local police, knew that the attack was being prepared, did not take any steps to prevent it and stood by as it unfolded, apparently limiting themselves to avoiding human casualties (see, for example, the police officers’ statements in paragraph 31 above). However, no steps whatsoever were apparently taken to investigate this aspect of the case.", "To cite but one example, the offence which was being investigated, hooliganism (that is unmotivated violence), did not appear to cover any involvement of the State actors in the events, although there were other provisions in the Criminal Code of Ukraine which could have constituted a more appropriate ground for launching a criminal investigation into the events (see, for example, Articles 365 and 367 of the Criminal Code, paragraph 52 above, and compare Identoba and Others, cited above, § 76). 140. Moreover, despite the presence of abundant information indicating that the local police and the mayor knew about the attack being prepared (see, for example, paragraphs 13 and 29 above), no effort was made to clarify how much and when they knew, what the source of their information was, whether they knew any organisers of the attack, whether they were in contact with them, and why they limited their role to warning the applicants to leave rather than taking any steps to avert the attack. 141. The Court also notes that the local police, who clearly played a role in the events being investigated, took an active part in the investigation itself.", "Thus, the district police played an active role in the examination of the damaged houses and collecting statements in the early stage of the investigation (see paragraphs 23 and 26 above) and then had formal control over the investigation after its active phase was over and it had been suspended (see paragraph 41 above). It is true that the person in charge of the key, active part of the investigation was a senior investigator of the regional police. However, that investigator was assisted by a team which included officers from the local police (see paragraph 24 above). 142. Circumscribing the investigation in such a fashion and the failure to explore such a clearly required line of inquiry – apparently without reasonable justification – indicates not only inadequacy and lack of thoroughness in the investigation (compare Identoba and Others, cited above, § 75) but also a lack of independence (see, mutatis mutandis, Mustafa Tunç and Fecire Tunç v. Turkey [GC], no.", "24014/05, § 222, 14 April 2015). 143. Even leaving aside the role of the authorities in the events, the steps taken to identify perpetrators who were private individuals were also insufficient. Of three individuals specifically identified as instigators of the pogrom – O.M., P.M. and I.D. (see paragraph 36 above) – apparently only two – O.M.", "and P.M. – were questioned. According to the summary of their statements provided by the Government, they denied any personal involvement in the attacks on the Roma houses. However, there is no indication as to whether they were questioned about their alleged role in the instigation of the attacks. Moreover, it appears that while witnesses uniformly denied that they had personally taken part in the attack on Roma houses, it appears that no witnesses – not even O.M. and P.M. – were questioned as to whether they knew any of the attackers.", "This is particularly striking in the case of the police officers who were present on the scene and who personally observed the attack and the attackers (see paragraph 31 above). 144. Lastly, despite clear evidence to the effect that the attack targeted members of a specific ethnic group, it was investigated as an ordinary disturbance, and the relevant provision of the Criminal Code – which is specifically aimed at supressing violence based on racial and other prejudice (Article 161 of the Code, paragraph 52 above) – was never invoked. Even considering the hooliganism offence, the only one invoked by the authorities, no attention was apparently given to anti-Roma prejudice as a possible aggravating circumstance (see Article 67 of the Criminal Code, at paragraph 52 above). In short, there is no evidence that the authorities have conducted any investigation into anti-Roma prejudice as a likely motive of the crime (compare Fedorchenko and Lozenko, cited above, § 69).", "145. The above findings in this particular case should also be seen against the background of international reports describing a pattern of persistent anti-Roma prejudice, in particular on the part of certain law-enforcement officers, in Ukraine (see paragraphs 59-62 above; see also Fedorchenko and Lozenko, cited above – in particular §§ 33 and 68). 146. The above-mentioned considerations are sufficient for the Court to find that the investigation into the incident cannot be considered as having been effective. 147.", "There has, accordingly, been a violation of the procedural aspect of Article 3, taken in conjunction with Article 14, in respect of the Group I applicants. (γ) Remaining complaints 148. In view of its findings above, the Court considers that it is not necessary to examine the remaining aspects of the Group I applicants’ complaints under Article 3 of the Convention, either taken alone or in conjunction with Article 14, because those aspects are subsumed by the already examined complaints under those provisions. C. Group II applicants Admissibility 149. The Group II applicants (see paragraph 94 above and the Appendix) were, by their own admission, away from their homes at the time of the events in question and so had no knowledge of the imminent attack and were not prompted to flee their homes, having only learned about the damage done to them afterwards (see, mutatis mutandis, Kolyadenko and Others v. Russia, nos.", "17423/05 and 5 others, § 152, 28 February 2012). Having regard to its analysis and conclusions above concerning the Group I applicants, the Court finds that the situation of the Group II applicants does not fall within the ambit of Article 3 and can be sufficiently addressed under Article 8 of the Convention (see below). 150. It follows that the first, fourth, fifth, tenth and twelfth applicants’ complaints under Article 3, taken alone or in conjunction with Article 14, are incompatible with the Convention ratione materiae and should be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. III.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION, TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION 151. Under Article 8 of the Convention the applicants (both Groups I and II) complained that the respondent State had been responsible for the attack on their homes, had failed to protect them from it and to investigate it effectively and that the State was responsible for the inadequate living conditions that they had experienced following their displacement. They also complained that on account of the above they had suffered discrimination owning to their Roma origin, contrary to Article 14, taken in conjunction with Article 8. 152. Article 8 of the Convention 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.” A. The parties’ submissions 1. The Government 153.", "On the basis of the same arguments as those presented in respect of the Article 3 complaints, the Government argued that the applicants had failed to exhaust the available domestic remedies and to comply with the six-month rule (see paragraphs 95, 96, 103 and 104 above). The applicants disagreed. 154. The Government furthermore submitted that there was no evidence that the removal of the Roma from the village had been part of the State’s policy. In particular, the village council’s resolution had been adopted under pressure from the mob and had then immediately been challenged by the prosecutor and quashed, so it had in no way reflected State policy.", "There was no evidence of any threat to the Roma in the village after 9 September 2002, even though a certain resentment towards them might still remain. Many of them had been able to safely return and reside in their houses until they had sold them. They had not provided sufficient proof that they had sold their houses for less than their market price or that the proceeds had been insufficient to obtain new housing elsewhere. The Government considered this factor, together with the fact that they had been able to sell and move, decisive in the assessment of the applicants’ Article 8 complaint. In this respect they compared the Court’s findings in (i) Fadeyeva v. Russia (no.", "55723/00, § 121, ECHR 2005‑IV) (where the applicant was unable to move and this was a factor in finding of a violation) and (ii) Hatton and Others v. the United Kingdom ([GC], no. 36022/97, § 127, ECHR 2003‑VIII) (where the house prices in the applicants’ area and, accordingly, their ability to move, were not affected by aircraft noise). In the Government’s opinion, that case-law was relevant because the applicants in the present case had essentially exercised their right to relocate from an environment (in the village) that they had found oppressive. Furthermore, there was no evidence that the applicants’ living conditions had deteriorated after they had moved from the village, and nor had they sought any help in improving them. 155.", "Accordingly, the Government considered that the applicants’ complaint was manifestly ill-founded and, alternatively, that there had been no violation of the provisions invoked by the applicants. 2. The applicants 156. The applicants considered that the fact that the village council resolution had been adopted under the pressure of the mob did not rule out State responsibility. They cited in this respect the case of Sampanis and Others v. Greece (no.", "32526/05, §§ 82-83, 5 June 2008), where non-Roma parents’ violent opposition to the enrolment of Roma children in school did not dispense the State of the responsibility to ensure equal study conditions for those children. 157. The fact that some of the applicants had been reduced to living in their destroyed homes while they worked out what to do in no way diminished the fact that they should not have been expected to remain in their homes in such conditions. The comparison made by the Government between the applicants’ situation and a mere decline in house prices showed a continuing failure to grasp the seriousness of the trauma they had suffered. B.", "The Court’s assessment 1. Admissibility 158. Above, the Court has examined and dismissed the Government’s objections related to the exhaustion of domestic remedies and compliance with the six-month rule. It considers that those objections should likewise be dismissed as far as they relate to the applicants’ complaints under Article 8, taken alone and in conjunction with Article 14. 159.", "Moreover, contrary to the Government’s submissions, the above-mentioned complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. They are not inadmissible on any other grounds. They must therefore be declared admissible. 2. Merits (a) Relevant general principles 160.", "The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see X and Y v. the Netherlands, judgment of 26 March 1985, § 23, Series A no. 91). 161. Furthermore, the Court has not excluded the possibility that the State’s positive obligation under Article 8 to safeguard an individual’s physical integrity may extend to questions relating to the effectiveness of a criminal investigation (see Moldovan and Others, cited above, § 96, which cites Osman v. the United Kingdom, judgment of 28 October 1998, § 128 Reports 1998-VIII).", "162. Whether a case be analysed in terms of (i) a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph 1 of Article 8 or (ii) an “interference by a public authority” to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (see Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, § 41, Series A no. 172).", "163. The Court has dealt with cases of harassment motivated by racism which involved no physical violence. It found that the manner in which the criminal-law mechanisms had been implemented was a relevant factor for its assessment of whether the protection of the applicants’ rights had been defective to the point of constituting a violation of the respondent State’s positive obligations under Article 8 of the Convention (see Király and Dömötör, cited above, § 72). (b) Application of the above-mentioned principles to the present case 164. The Court has found it established that there were grave failures on the part of the domestic authorities to protect the Group I applicants from the attack on their homes, which led it to find a violation of Article 3, taken in conjunction with Article 14 of the Convention.", "165. The same conclusions are also valid for the Group II applicants because the only difference between them and the former group was that they were absent from the village at the time of events of 7-10 September 2002 and only returned to the village later to find their homes damaged. That factor was decisive for the Court in finding that the level of seriousness needed to bring Article 3 into play was not reached in respect of those applicants. However, that does not prevent Article 8 from being engaged (see Wainwright v. the United Kingdom, no. 12350/04, § 43, ECHR 2006‑X).", "166. The Court finds it established that the homes of all applicants other than the sixteenth were targeted in the attack (see paragraph 84 above) and they suffered displacement from their homes as a result. 167. The Court is not convinced by the Government’s argument that the attack only led to the applicants being displaced for a brief period of time since they were able to return to the village afterwards and later freely chose to sell their houses and move. It acknowledges that in the present case, unlike in the case of Moldovan and Others (cited above, §§ 22, 25 and 26), there are no particular facts showing that the applicants were actively prevented from returning to the village.", "In fact, the applicants appear to implicitly admit that some of them were in fact able to return and live in their houses until they sold them. At the same time, the Court finds that it would have been unreasonable to expect the applicants to permanently live in damaged houses in a locality where the authorities had clearly communicated to them that they would have no protection against mob violence – particularly in circumstances where no investigation has been conducted and no person has been held responsible for the attack. 168. There can be no doubt, therefore, that the damage caused to the applicants’ houses constituted grave and unjustified interferences with the applicants’ right to respect for their private and family life and home. 169.", "The Court reiterates its findings above concerning: (i) the lack of any objective reason for the authorities’ failure to protect the applicants; (ii) the authorities’ role in the attack; (iii) the absence of an effective domestic investigation; and (iv) the general background of prejudice against Roma in Ukraine at the material time – in particular that manifested by certain law enforcement officers (see paragraphs 59-62 above). 170. Those considerations are sufficient for the Court to find that there has been a violation of Article 8, taken in conjunction with Article 14 of the Convention, on account of the role the authorities played prior to and in the course of the attack on the applicants’ homes and their failure to conduct an effective investigation into the attack. 171. In view of its findings above, the Court considers that it is not necessary to examine the remaining aspects of the applicants’ complaints under the aforementioned provisions of the Convention because those aspects are subsumed by the already examined complaints under those provisions.", "IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1, TAKEN ALONE AND IN CONJUCTION WITH ARTICLE 14 172. The applicants (both Groups I and II) complained of a violation of Article 1 of Protocol No. 1, taken alone and in conjunction with Article 14 of the Convention on account of the damage done to their houses and the destruction of their household items.", "Article 1 of Protocol No. 1 reads: 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.", "The parties’ submissions 173. On the basis of the same arguments as those presented in respect of the Article 3 and 8 complaints, the Government argued that the applicants had failed to exhaust the available domestic remedies and to comply with the six-month rule (see paragraphs 95, 96, 103, 104 and 153 above). The applicants disagreed. 174. The Government also submitted that the applicants had failed to substantiate their arguments.", "In this context they referred to the Court’s decision in Lisnyy and Others v. Ukraine and Russia ((dec.), nos. 5355/15, 44913/15 and 50853/15, 5 July 2016). The Government argued that the applicants’ explanation that they had supposedly lost their title documents owing to the attack on their homes was not convincing since (i) the applicants had been warned ahead of time of the attack, (ii) some houses had been sold (so it follows that the owners did have the relevant title documents), (iii) copies of title documents could be obtained from State registries and archives, and (iv) in their civil claims lodged in the criminal case some applicants claimed very specific amounts (suggesting that they must have had some documents on which to base those claims). Accordingly, the Government considered that the applicants’ complaint under Article 1 of Protocol No. 1 was manifestly ill-founded.", "175. The applicants disagreed with the Government concerning the degree of damage to their homes, relying on photographs that they provided (see paragraph 15 above) and their own statements. They considered a comparison with the Lisnyy and Others case misguided since, unlike in that case, the very fact that their homes had been damaged was not in dispute; it was only the extent of that damage that was in dispute. Moreover, they belonged to a particularly vulnerable group by virtue of their Roma ethnicity and being in a situation tantamount to that of internally displaced persons. Referring in particular to the statements of the thirteenth and sixteenth applicants (see paragraph 14 above), they stated that only “some” of them had sold their houses for “a small amount of money”.", "They considered that it was for the Government to search the registers and archives for proof of the applicants’ ownership. They furthermore considered the Government’s conclusion (that their complaint was manifestly ill-founded for lack of proof) to have been based on racist stereotypes about the Roma as being rootless. B. The Court’s assessment 176. The Court notes that the Government also raised objections as to the applicants’ failure to exhaust domestic remedies and to comply with the six-month rule.", "However, it does not consider it necessary to examine these objections, given that this part of the application is, in any event, inadmissible for the following reasons. 177. The Court notes that the applicants have failed to provide any evidence in support of their claims (see Lisnyy and Others (dec.), cited above, §§ 28-32, and contrast Kerimova and Others v. Russia, nos. 17170/04 and 5 others, §§ 292-93, 3 May 2011). The applicants have not refuted the Government’s submission, supported by statements by some of the applicants made in the domestic proceedings (see paragraph 14 above), that the former Roma residents of Petrivka were able to sell their homes in that village after the attack, strongly suggesting that they had had proof of title.", "178. However, the applicants did not provide any details of those deals or any relevant documentation. Neither have they provided detailed descriptions of the property they lost, including the houses and the household items, or specified which of the applicants were the owners. They did not refer to any specific efforts by them or their representatives to obtain evidence from any public records which may remain available even if the Court is prepared to accept their assertion that their documents were lost as a result of their displacement. The latter also concerns the first applicant.", "It is true that it is undisputed that the house where he used to live was seriously damaged by fire (see paragraph 118 above) and so likely could not be sold. However, it remains the case that he has not provided any evidence of the title or any effort to obtain such evidence from public records, or even a detailed description of his property. 179. In such circumstances the Court considers that the applicants have failed to develop and substantiate their complaint or to provide a cogent explanation for their inability to do so. Accordingly, their complaint under Article 14, taken in conjunction with Article 1 of Protocol No.", "1 is likewise unsubstantiated. 180. The Court concludes that this part of the application is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 181. The applicants complained that they had no effective remedy in respect of their other complaints.", "They relied on Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 182. The Government contested that argument. 183. The Court, having declared inadmissible certain complaints under Article 3 and Article 1 of Protocol No. 1 (taken alone and in conjunction with Article 14, see paragraphs 150 and 180 above) concludes that there is no arguable claim for the purposes of Article 13 in respect of those complaints (see, for example, Valeriy Fuklev v. Ukraine, no.", "6318/03, § 98, 16 January 2014); therefore, the complaint under Article 13 in that part must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 (a) and 4. 184. The remainder of the complaint under Article 13 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.", "185. However, in view of its findings above, the Court does not find it necessary to examine it separately because it is subsumed by the already examined complaints under Articles 3 and 8 of the Convention (see, mutatis mutandis, Sergey Savenko v. Ukraine, no. 59731/09, § 48, 24 October 2013). VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 186.", "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 187. The first three, the fifth to fifteenth, the eighteenth and nineteenth applicants claimed 85,984.52 euros (EUR) each in respect of non-pecuniary damage. Their claims in respect of pecuniary damage are set out in the Appendix. The fourth applicant claimed EUR 36,684 for non-pecuniary damage but submitted no claim for pecuniary damage.", "188. The Government considered that there was no causal link between the damage claimed and the violations found. In any event they considered the claims excessive. 189. In view of its findings above concerning the applicants’ complaint under Article 1 of Protocol No.", "1, the Court rejects the applicants’ claim in respect of pecuniary damage. On the other hand, ruling on an equitable basis, the Court considers it reasonable to award the following amounts in respect of non-pecuniary damage: (i) EUR 11,000 to the second, third, sixth to ninth, eleventh, thirteenth to fifteenth, eighteenth and nineteenth applicants each, plus any tax that may be chargeable on those amounts; and (ii) EUR 9,000 to the first, fourth, fifth, tenth and twelfth applicants each, plus any tax that may be chargeable on those amounts. B. Costs and expenses 190. The applicants made no claim for costs and expenses.", "Accordingly, the Court makes no award under this head. C. Default interest 191. 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 strike the application in the part pertaining to the seventeenth applicant out of its list; 2.", "Holds that the eighteenth applicant’s wife, Ms Lyubov Leontivna Tsynya, has standing to continue the present proceedings in his stead; 3. Declares the application in the part pertaining to the sixteenth applicant inadmissible; 4. Declares: admissible (a) the complaints under Article 3, taken alone and in conjunction with Articles 13 and 14 of the Convention, presented by the second, third, sixth to ninth, eleventh, thirteenth to fifteenth, eighteenth and nineteenth applicants; and (b) the complaints under Article 8, taken alone and in conjunction with Articles 13 and 14 of the Convention; 5. Declares the remainder of the application inadmissible; 6. Holds that there has been a violation of the substantive aspect of Article 3, taken in conjunction with Article 14 of the Convention, in respect of the second, third, sixth to ninth, eleventh, thirteenth to fifteenth, eighteenth and nineteenth applicants; 7.", "Holds that there has been a violation of the procedural aspect of Article 3, taken in conjunction with Article 14 of the Convention, in respect of the second, third, sixth to ninth, eleventh, thirteenth to fifteenth, eighteenth and nineteenth applicants; 8. Holds that there has been a violation of Article 8, taken in conjunction with Article 14 of the Convention, on account of the role the authorities played prior to and in the course of the attack on the applicants’ homes and their failure to conduct an effective investigation into the attack; 9. Holds that it is not necessary to examine the remaining aspects of the applicants’ complaints; 10. Holds (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 11,000 (eleven thousand euros) to each of the second, third, sixth to ninth, eleventh, thirteenth to fifteenth, eighteenth and nineteenth applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 9,000 (nine thousand euros) to each of the first, fourth, fifth, tenth and twelfth applicants, 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; 11. Dismisses the remainder of the applicants’ claim for just satisfaction.", "Done in English, and notified in writing on 6 November 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliPaulo Pinto de AlbuquerqueRegistrarPresident APPENDIX No. Group (see § 94) First name patronymic LASTNAME Year of birth Lived in Petrivka since Granted status in domestic proceedings (§ 30)? If not, complained about it (§ 50)? Amount claimed for pecuniary damage, EUR Was the applicant present in the village in the course of the events of 7-10 September 2002 (source of information)?", "1. II Boris Trofimovich BURLYA 1951 1973 Yes n/a 10,414.45 No (statement to police, 14/11/02) 2. I Anatoliy Georgiyevich BURLYA 1954 n/i1 No Yes 4,068.79 Apparently yes (statement to Ms Duducehava, 13/06/04) 3. I Artur Leonidovich BURLYA 1980 1997 Yes n/a 4,256.23 Yes (statement to police, 2/12/02) 4. II Ivan Makarovich BURLYA 1958 n/i No No No claim No (the fifth applicant’s statement to Mr Stoyanov, 17/11/07) 5.", "II Natalya Yakovlevna BURLYA 1957 1986 Yes n/a 4,148.75 No (statement to Mr Stoyanov, 17/11/07) 6. I Valentina Ivanovna BURLYA 1966 1979 Yes n/a 5,288.05 Yes (statement to police, 7/10/02) 7. I Yekaterina Trofimovna BURLYA 1936 1975 Yes n/a 2,773 Yes (statement to police, 9/10/02) 8. I Ivan Ivanovich CHUBEY 1963 n/i No Yes 5,117.80 Yes (statement to Mr Stoyanov, 18/11/07) 9. I Valentina Yakovlevna CHUBEY 1937 n/i Yes n/a 5,104.90 Yes (statement to police, 26/09/02) 10.", "II Fedor Fedorovich LUPASHCHENKO 1955 1980 Yes n/a 5,743.77 No (statement to police, 10/10/02) 11. I Ivan Georgiyevich LUPASHCHENKO 1944 1981 Yes n/a 6,124.68 Yes (statement to police, 10/10/02) 12. II Ivan Ivanovich LUPASHCHENKO 1959 1981 Yes n/a 4,128.98 No (statement to police, 24/10/02) 13. I Nikolay Fedorovich LUPASHCHENKO 1968 1990 Yes n/a 5,184.01 Yes (statement to police, 30/10/02) 14. I Snezhana Fedorovna LUPASHCHENKO 1974 n/i No Yes 4,471.20 Yes (statement to Mr Stoyanov, 18/11/07) 15.", "I Vladimir Ivanovich LUPASHCHENKO n/i 1981 Yes n/a 5,687.02 Yes (statement to police, 10/10/02) 16. n/a Natalya Vladimirovna TSYKOLAN 1978 n/i No No No claim According to her statement to Ms Duducehava of 18/11/07, yes 17. n/a Fedor Yakovlevich TSYNYA 1944 1980 Yes n/a 4,507.31 No (statement to police, 10/10/02) 18. I Ivan Yakovlevich TSYNYA 1942 1960 Yes n/a 6,085.98 Yes (statement to police, 30/09/02) 19. I Yakov Fedorovich TSYNYA 1970 n/i No Yes 5,004.30 Apparently yes (statement to Ms Duducehava, 16/06/04) 1 No information available" ]

[ "FIRST SECTION CASE OF DVORSKI v. CROATIA (Application no. 25703/11) JUDGMENT STRASBOURG 28 November 2013 THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 20/10/2015 This judgment may be subject to editorial revision. In the case of Dvorski v. Croatia, 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 5 November 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 25703/11) 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 Ivan Dvorski (“the applicant”), on 16 April 2011.", "2. The applicant was represented by Ms S. Maroševac Čapko, a lawyer practising in Rijeka. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The applicant in particular alleged that his right to a fair trial including the right to legal assistance of his own choosing and his right not to incriminate himself, under Article 6 §§ 1 and 3 (c) of the Convention, had been violated.", "4. On 28 June 2011 the applicant’s complaints were communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1986 and lives in Rijeka.", "6. On 13 March 2007 between 2 and 3.30 a.m. in Vežica, a residential neighbourhood of Rijeka, three murders, an armed robbery and an arson attack were committed. 7. During the same day, a number of people from Vežica were brought in for questioning at the Rijeka Third Police Station of the Primorsko-Goranska Police Department (Policijska uprava Primorsko-goranska, Treća policijska postaja Rijeka; hereinafter “Rijeka Police Station”). 8.", "Around 1.00 p.m. the same day, the applicant was brought to the Rijeka Police Station for an interview. Blood samples were taken from him for DNA analysis and the police searched his flat and mobile phone and seized a number of his personal items. 9. The applicant was kept at Rijeka Police Station until his arrest on 14 March 2007 at 9.50 a.m. in connection with the above offences. 10.", "According to the applicant, from the moment he was brought to Rijeka Police Station, he was put in a windowless cell with no light and kept without food and water until about 6 p.m. on 14 March 2007. 11. According to the Government, the applicant had been kept in a detention room, although he had spent most of the time in an interview room. The detention room had been under video surveillance. In the interview room the applicant had been under the constant guard of a police officer and therefore could have asked for food or drink or to go to the toilet at any time.", "The detention room had been equipped with sanitary facilities and artificial light, but it had also had a window which had been secured with metal bars. There had also been a bed and a number of blankets to ensure rest. The applicant had been provided with hot meals and drinks and the Government submitted receipts for orders made in that respect. 12. Meanwhile, on 14 March 2007 the applicant’s parents hired a lawyer, G.M., to represent the applicant.", "However, the police denied him access to the applicant (see paragraph 21 below). 13. On the same date at 6 p.m. the applicant agreed to be represented by a lawyer, M.R. who arrived at Rijeka Police Station at around 7.45 p.m. The questioning of the applicant began at 8.10 p.m.", "According to the record of the applicant’s questioning, the police warned him of his right not to incriminate himself and to remain silent and he expressly stated that his lawyer was M.R. 14. In the presence of M.R., three police officers and the Rijeka County State Attorney (Županijski državni odvjetnik u Rijeci), the applicant confessed that he had, together with L.O. and R.L.J., gone to Đ.V.’s flat in Vežica on the night of 13 March 2007, where he had taken a certain amount of money from Đ.V. and had then shot and killed him, his girlfriend and his father, after which he had set their flat on fire in order to destroy any trace of him having been there.", "He also stated that he had promised L.O. and R.LJ. that he would confess to the crimes and take the blame on him if they would be arrested. The applicant further stated that he had confessed to the crimes of his own free will and that he had not been under any form of pressure or coercion. By signing the record of the statement he also attested that he had been warned of his right not to incriminate himself.", "The questioning of the applicant ended at 11 p.m., with a short break in between in which the applicant had used the toilet. 15. The lawyer hired by the applicant’s parents, G.M., lodged an action in the Rijeka County Court (Županijski sud u Rijeci) on 15 March 2007 asking that he be allowed to contact the applicant. 16. On 15 March 2007 the Rijeka Police lodged a criminal complaint against the applicant and L.O.", "and R.L.J. with the Rijeka County State Attorney’s Office (Županijsko državno odvjetništvo u Rijeci) concerning the above-mentioned three murders, armed robbery, and arson. 17. On the same date, the applicant was brought before an investigating judge of the Rijeka County Court. When asked by the investigating judge whether his lawyer was M.R., who had been present during his police questioning, or G.M., who had a power of attorney signed by the applicant’s parents, the applicant stated that he was revoking the power of attorney to M.R.", "and granting it to G.M. by signing it himself. 18. During questioning before the investigating judge the applicant complained that he had never hired M.R. and that he had expressly asked the police officers to call lawyer G.M.", "However, he had never been informed that G.M. had come to the police station. He also complained that he had been deprived of food until after he had given his statement and that during arrest he had been under the influence of drugs and alcohol. 19. On 16 March 2007 the Rijeka County State Attorney’s Office asked the investigating judge of the Rijeka County Court to open an investigation against the applicant, L.O.", "and R.L.J., on the suspicion that on 13 March 2007 they had committed three aggravated murders and arson in Vežica. 20. The investigating judge again heard the applicant on 16 March 2007 in the presence of G.M. The applicant remained silent and refused to answer any questions put to him by the investigating judge or the prosecution. 21.", "On the same date, G.M. lodged a request for disqualification of the Rijeka County State Attorney and all his Deputies with the investigating judge. The investigating judge forwarded the request to the Rijeka County State Attorney’s Office. The relevant part of the request reads: “About thirty minutes ago the defence lawyer learned that the Rijeka County State Attorney, D.H., had been present during the questioning of Ivan Dvorski as a suspect by police officers of Rijeka Police Station on 14 March 2007 at around 7 p.m., and in presence of ‘defence lawyer’ M.R. On the same date at around 10.40 a.m. the mother of Ivan Dvorski, L.J.D., who lives and works in Italy, called [G.M.]", "and asked him to defend her son Ivan, who was suspected of the offence of aggravated murder. Around 10.45 a.m. the defence lawyer came to Rijeka Police Station but the police officers refused to let him see Ivan Dvorski and they also did not tell [Ivan Dvorski] that his mother had hired a lawyer. The defence lawyer stayed in Rijeka Police Station until 12.00 p.m. He wanted to file a criminal complaint against an unknown person for abuse of power and extracting a confession, but the police officers refused to take his complaint on the grounds that he had no power of attorney and pushed him out of the police station. The defence lawyer immediately informed the Rijeka Deputy County State Attorneys, D.K.", "and I.B., about the incident and they made an official note in their case file. Therefore, at around 12.30 p.m. the Rijeka State Attorney already knew that [G.M.] had been hired by [Ivan Dvorski’s] mother and that he could not contact his client. The [Rijeka] County Court was also immediately informed. At around 1.30 p.m. Ivan Dvorski’s father signed a power of attorney for the defence of his son.", "A legal trainee, B.P., [then] tried to submit this power of attorney to the police but was told to ‘fuck off with that power of attorney’ and therefore it was not submitted. At around 3.00-3.30 p.m. defence lawyer [G.] M. again tried to contact his client in Rijeka Police Station but was denied access to him ... However, the defendant was never informed that a defence lawyer had been hired and that he had come to Rijeka Police Station. Around 3.30 p.m. the defence lawyer informed the Chief of the Primorsko-Goranska Police Department ... Mr. V., who apparently made an official note concerning their conversation. However, the defendant was never informed that a defence lawyer had been hired and also never asked whether he wanted to be represented by the lawyer hired by his family.", "Besides that, ever since he was brought to Rijeka Police Station [Ivan Dvorski] asked on a number of occasions that [G.M.] be called but was told by the police officers that they had tried but there had been no answer. When he was brought to the police station, blood samples were taken from the defendant. They show that he had a high level of alcohol and drugs in his blood. Between 1.00 p.m. on 13 March 2007 and around 7.00 p.m. on 14 March 2007 (these time periods are only known to the defence lawyer from informal sources because he had no access to the Rijeka County State Attorney’s case file) the defendant was never given any food.", "It is clear that although all these facts were known to the Rijeka State Attorney, D.H., he disregarded them and, although personally present, allowed the defendant to be questioned in presence of a lawyer who had [neither been requested by him] nor [...] hired by his family. This amounts to extracting a confession contrary to Article 225 § 8 of the Code of Criminal Procedure. Namely, the Rijeka State Attorney, since about 12.30 p.m. [on 14 March 2007], knew who the defence lawyer was. On the same date the defence lawyer sent the power of attorney to the Primorsko-Goranska Police Department and written complaints were also sent to the Supreme Court of the Republic of Croatia, the State Attorney General of the Republic of Croatia, the Rijeka County State Attorney’s Office, the Croatian Bar Association, the Ministry of Justice, the Ministry of the Interior, the Chief of the Primorsko-Goranska Police Department and the Rijeka County Court. ...” 22.", "On 16 March 2007 an investigation was opened in respect of the applicant, L.O. and R.L.J. on the suspicion that on 13 March 2007 they had committed the three aggravated murders and arson in Vežica. 23. On 23 March 2007 the State Attorney General of the Republic of Croatia (Glavni državni odvjetnik Republike Hrvatske) dismissed G.M.’s request for disqualification of the Rijeka County State Attorney on the grounds that there were no reasons for his disqualification.", "On 26 March 2007 the Rijeka County State Attorney dismissed the request for disqualification of his Deputies on the same basis. 24. On 28 March 2007 G.M. informed the Rijeka County Court that he would no longer represent the applicant and on 30 March 2007 the President of the Rijeka County Court appointed a legal aid lawyer, S.M.Č., to represent the applicant. 25.", "During the investigation a number of witnesses were heard, and a report on the inspection of the crime scene and search and seizure, as well as medical, fire and ballistic expert reports, were obtained by the investigating judge. 26. On 12 July 2007 the Rijeka County State Attorney’s Office indicted the applicant, L.O. and R.L.J. in the Rijeka County Court on three counts of aggravated murder and one count of arson committed on 13 March 2007 in Vežica.", "27. The applicant, represented by lawyer S.M.Č., lodged an objection against the indictment with the Rijeka County Court on 24 July 2007 on the grounds that it had contained numerous substantive and procedural flaws. He also argued that he had given his statement to the police under the influence of alcohol and drugs. 28. The applicant’s objection against the indictment was dismissed as ill-founded by a three-judge panel of the Rijeka County Court on 28 August 2007.", "29. On 9 October 2007, the first day of the trial, the applicant and the other accused pleaded not guilty to all charges and the trial court heard evidence from seven witnesses. 30. Another hearing was held on 11 October 2007, at which the trial court examined video recordings of the crime scene investigation and the autopsy of the victims. 31.", "Further hearings were held on 12 November 2007 and 11 January 2008, at which the trial court heard evidence from nine witnesses. 32. At a hearing on 14 January 2008 two toxicological experts, a fingerprint expert, a ballistics expert and a DNA expert gave evidence. The defence made no objection in respect of their evidence. At the same hearing four other witnesses gave evidence.", "33. At a hearing held on 15 January 2008 the trial court heard another toxicological expert and a pathologist, as well as thirteen other witnesses. The defence made no objections in respect of the evidence of the expert witnesses but asked the trial court to commission a psychiatric report concerning the applicant. 34. At the same hearing the defence lawyer asked that a handwriting expert’s report be commissioned in respect of the applicant’s signature on the record of his statement given to the police on 14 March 2007.", "She argued that the applicant had not signed any record during his questioning by the police. 35. The trial court considered for the time being not necessary to commission a psychiatric report and thus dismissed the applicant’s request in that regard. However, it commissioned a handwriting expert’s report in respect of the signature on the record of the applicant’s statement given to the police. 36.", "On 23 January 2008 the handwriting expert submitted her report. She found that the applicant had signed the record of his statement given to the police on 14 March 2007. 37. Another hearing was held on 12 March 2008, at which a medical expert, fire expert witnesses and one other witness gave evidence. The handwriting expert also gave oral evidence confirming her previous findings.", "The applicant’s lawyer challenged the veracity of these findings and motioned to have another report commissioned, but the motion was dismissed by the trial court. At the same hearing, the trial court commissioned a psychiatric report in respect of the applicant and the other accused. 38. On 2 April 2008 the applicant asked the Rijeka County Court to call lawyer G.M. as a witness in connection with the alleged unlawful extraction of his confession by the police.", "He pointed out that G.M. had not been allowed to see him while he had been in police custody and stated that he had been forced by the police officers to confess. 39. On 24 April 2008 the two psychiatric experts submitted their report to the Rijeka County Court. They found that the applicant suffered from borderline personality disorder and addictions to heroin and alcohol.", "However, they found no distinctive mental disorder or illness. They concluded that, even assuming that he had been intoxicated at the time when the murders had been committed, he had retained the mental capacity to understand the nature of his acts, although it had been diminished to a degree. As to his mental capacity concerning the charge of arson, they concluded that, at the time when the offence had been committed, the applicant had been able to understand the nature of his acts and to control his actions. 40. At a hearing on 26 June 2008 the psychiatric experts confirmed their findings and the parties made no objections to their evidence.", "The trial court also dismissed the applicant’s request that lawyer G.M. be heard as a witness on the grounds that all relevant facts had already been established. 41. At the same hearing one of the accused, R.L.J., confirmed the course of the events as described by the applicant in his statement given to the police on 14 March 2007. R.L.J., however, claimed that he had not personally participated in the killings because he had panicked and had left the flat when he had heard fighting.", "42. After R.L.J. gave his statement, the Deputy County State Attorney amended the indictment. The applicant was charged with three aggravated murders, armed robbery and arson, and L.O. and R.LJ.", "were charged with armed robbery and aiding and abetting the perpetrator of an offence. The applicant and the other accused pleaded not guilty to the charges listed in the amended indictment. 43. On 27 June 2008 L.O. gave oral evidence confirming the course of the events as described by R.L.J.", "He stated that after the applicant had gotten into a fight with Đ.V., he had heard gunshots, after which he had panicked and had left the flat. 44. At the same hearing the parties made their closing arguments. The applicant’s defence lawyer argued that it had not been proven that the applicant had committed the offences he was charged with. She pointed out, however, that if the trial court considered differently, then the applicant’s confession to the police and his sincere regret had to be taken into consideration in sentencing him.", "45. On 30 June 2008 the Rijeka County Court found the applicant guilty of the three charges of aggravated murder and of the charges of armed robbery and arson and sentenced him to forty years’ imprisonment. The trial court firstly examined the applicant’s confession against the confession of the other co-accused and found that his confession was essentially consistent with the evidence provided by his co-accused, L.O. and R.L.J. When finding the applicant guilty the trial court took into account his confession and examined it against the evidence from the case file.", "46. The trial court in particular relied on the search and seizure records and the photographs depicting the accused L.O. holding the same type of handgun as was used for the murders. Based on the witness statements, and the recording of a nearby video surveillance, the trial court concluded that the applicant and the other co-accused had come to the flat of Đ.V. on the critical date.", "Furthermore, the ballistic reports and the crime scene reports indicated that the details of the statements of the applicant and his co-accused were accurate, and the course of the events was ascertained based on the fire, ballistic and toxicological reports and the DNA report. The trial court also found that the statements of the accused as to the manner in which the murders had been carried out were supported by the autopsy report, the evidence of the pathologist provided at the trial, the crime scene report and the witness statements about the gunshots that had been heard in the flat of Đ.V. Furthermore, as to the arson charges, the trial court examined the materials from the crime scene investigation and the evidence from the fire expert report, as well as medical records and damage reports submitted by the victims, and the statements of a number of residents in the building where the fire occurred. 47. As regards the request made by the defence to hear lawyer G.M.", "(see paragraphs 38 and 40 above), the Rijeka County Court noted: “The request made by the [Ivan Dvorski’s] defence to hear lawyer G.M. as a witness ... was dismissed as irrelevant. Namely, the documents from the case file do not reveal that there was any extraction of a confession by the police, but only [a record of] the time that lawyer [M.]R. came [to the police station], whereupon the questioning of [Ivan Dvorski] in presence of the lawyer to whom he had signed a power of attorney started ... Nobody, including [Ivan Dvorski’s] defence lawyer who was present during the police questioning – lawyer [M.]R., has alleged any extraction of a confession and there is no indication of that in the record of Ivan Dvorski’s statement, [who] at the time [was] only a suspect.” 48. The applicant lodged an appeal against the first-instance judgment with the Supreme Court (Vrhovni sud Republike Hrvatske) on 6 November 2008. He complained, inter alia, that the conviction had been based on his confession to the police, which had not been given in presence of a lawyer of his own choosing, namely G.M., but in the presence of a lawyer, M.R., who had been offered to him by the police.", "The applicant also referred to the request for disqualification of the Rijeka County State Attorney and all his Deputies lodged by G.M. on 16 March 2007, highlighting the part of that request which stated that he had been denied food during his police detention. 49. On 8 April 2009 the Supreme Court dismissed the applicant’s appeal as ill-founded. As regards his complaints concerning his statement given to the police, that court noted: “...", "The lawfulness of [the statement given to the police] was not put into doubt by the appellant’s complaints that lawyer M.R. had not been his lawyer and that his lawyer had been G.M., who had been hired by his father and mother on the same day, nor was its lawfulness put into doubt by the complaints that the appellant had been denied food in the period between 1.00 p.m. on 13 March 2007 and 7.00 p.m. on 14 March 2007 until he had agreed to hire lawyer M.R., since according to the record of his arrest (pages ...) the appellant had been arrested at 9.50 a.m. on 14 March 2007 and lawyer M.R. had arrived [at the police station] at 6.45 p.m. on the same day.” 50. The applicant lodged a further appeal against the appellate judgment with the Supreme Court on 14 September 2009 reiterating his previous arguments. 51.", "On 17 December 2009 the Supreme Court, acting as the court of final appeal, dismissed the applicant’s appeal as ill-founded. That court stressed that the record of the applicant’s statement suggested that the applicant had chosen lawyer M.R. to represent him during the police questioning and that lawyer M.R. had provided him adequate legal advice. The Supreme Court also noted that nothing in the case file indicated that the applicant had been ill-treated or forced to confess.", "52. The applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) on 11 March 2010. He complained, inter alia, that he had been ill-treated during his police detention and that he had been forced to confess. He also complained that he had been denied the chance to have a lawyer of his own choosing conduct his defence. 53.", "On 16 September 2010 the Constitutional Court dismissed the applicant’s constitutional complaint. The Constitutional Court, endorsing the reasoning of the Supreme Court, noted that the proceedings as a whole had been fair and that there was no evidence in the case file that the applicant had been ill-treated during his police detention. II. RELEVANT LAW A. Domestic law 54.", "The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette no. 56/1990, 135/1997, 113/2000, 28/2001, 76/2010) read as follows: Article 23 “No one shall be subjected to any form of ill-treatment ...” Article 29 “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law. In the case of suspicion of a criminal offence or criminal charges [being brought], the suspect, defendant or accused shall have the right: ... - to defend himself in person or with the assistance of a defence lawyer of his own choosing, and if he does not have sufficient means to pay for legal assistance, to be given it free as provided by law, ...” 55. The relevant provisions of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 129/2000, 51/2001, 105/2004, 84/2005, 71/2006) provide: AGGRAVATED MURDER Article 91 “A sentence of imprisonment of not less than ten years or long-term imprisonment shall be imposed on anyone who: ... 6. murders another in order to commit or to cover up another criminal offence, ...” ROBBERY Article 218 “(1) Whoever, by use of force against a person or using threats of a direct attack on a person’s life or limb, takes away movable property from another with intent to unlawfully appropriate it shall be punished by imprisonment for one to ten years.", "(2) If the perpetrator commits the robbery as a member of a group or a criminal organisation, or if, during the robbery, a weapon or dangerous instrument is used, the perpetrator shall be punished by imprisonment for three to fifteen years.” ENDANGERING LIFE AND PROPERTY BY DANGEROUS ACT OR MEANS Article 263 “(1) Whoever endangers the life or limb of others or property of considerable value by [setting a] fire ... shall be punished by imprisonment for six months to five years.” ... (3) If the criminal offences referred to in paragraphs 1 and 2 of this Article are committed at a place where a number of people are gathered ... the perpetrator shall be punished by imprisonment for one to eight years. ...” AGGRAVATED CRIMINAL OFFENCES AGAINST PUBLIC SAFETY Article 271 “(1) If by the criminal offence referred to in Article 263, paragraph 1 ... of this Code the serious bodily injury of another or extensive material damage was caused, the perpetrator shall be punished by imprisonment for one to eight years.” 56. 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 and 62/2003) provide as follows: Article 62 “(1) A defendant may be represented by a lawyer at any stage of the proceedings, as well as before their commencement when prescribed by this Act. ... ... (4) The defendant’s legal guardian, spouse or common-law spouse, linear blood relative, adoptive parent or adopted child, sibling or foster parent may hire a lawyer for the defendant, unless the defendant expressly refuses it.", "... (6) A defence lawyer must present his power of attorney to the authorities conducting the proceedings. The defendant may also grant a power of attorney to a lawyer orally before the authority conducting the proceedings, in which case it must be entered into the record.” Article 177 “ ... (5) In the course of the investigation the police authorities shall inform the suspect pursuant to Article 237 paragraph 2 of this Code. Upon the request of the suspect, the police authorities shall allow him to hire a lawyer and for that purpose they shall stop interviewing the suspect until the lawyer appears or at the latest three hours from the moment the suspect asked to appoint the lawyer. ... If the circumstances show that the chosen lawyer will not be able to appear within this period of time, the police authorities shall allow the suspect to appoint a lawyer from the list of lawyers on duty provided to the competent police authority by the county branches of the Croatian Bar Association ...", "If the suspect does not hire a lawyer or if the requested lawyer fails to appear within the time period provided, the police authorities may resume interviewing the suspect ... The State Attorney has the right to be present during the questioning. The record of [any] statement given by the defendant to the police authorities in presence of a lawyer may be used as evidence in the criminal proceedings. ...” B. Relevant international law materials Right of access to a lawyer of own choosing during police custody (a) Council of Europe Rules adopted by the Committee of Ministers 57.", "Rule 93 of the Standard Minimum Rules for the Treatment of Prisoners (Resolution (73)5 of the Committee of Ministers of the Council of Europe) provides: “An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representation ... and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him and to receive, confidential instructions. At his request, he shall be given all necessary facilities for this purpose. ... Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official.” 58. Furthermore, the recommendation of the Committee of Ministers to Member States of the Council of Europe on the European Prison Rules (Rec (2006)2), adopted on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies, in so far as relevant, reads as follows: “Legal advice 23.1All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice.", "23.2Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense. ... 23.5A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.” (b) United Nations International Covenant on Civil and Political Rights 59. Article 14 § 3 (b) of the International Covenant on Civil and Political Rights (ICCPR) provides that everyone charged with a criminal offence is to be entitled “[t]o have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 60.", "The applicant complained that he had been ill-treated during his police detention. 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.” Admissibility 1. The parties’ arguments 61. The applicant submitted that between 1 p.m. on 13 March 2007 and 7 p.m. on 14 March 2007 he had been kept in police detention in a windowless cell with no light and without food and water and that the domestic authorities had failed to respond appropriately to his complaints in this respect. 62.", "The Government argued that the applicant had failed to exhaust domestic remedies in respect of his Article 3 complaints, as he had not brought a criminal complaint against the police officers or a civil action for damages against the State. They further argued that he had submitted his application to the Court outside the six-month time-limit, as his complaints concerned his police detention on 14 March 2007 and his application had been lodged with the Court on 16 April 2011. 63. In any event, the Government considered that the applicant had failed to substantiate his complaints of ill-treatment during his police detention. In this respect, the Government provided photographs of the detention facilities in Rijeka Police Station and service orders for food and drinks during the police operation in which the applicant had been arrested.", "They pointed out that the photographs showed that the applicant had been kept in appropriate conditions with all necessary facilities and that the food service orders showed that food and drink had been given to the applicant during his police detention. The Government further submitted that only about twenty police officers had taken part in the police operation, while significant amounts of food had been ordered in the period of the applicant’s arrest and detention. 2. The Court’s assessment 64. The Court finds that it is not necessary to address all of the Government’s objections, as the complaint under Article 3 of the Convention is in any event inadmissible for the following reasons.", "65. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). 66.", "According to the Court’s settled case-law, 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 level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI, and Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III). 67.", "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 Labita, cited above, § 120). 68. Measures depriving a person of his liberty may often involve such an element. Nevertheless, 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, cited above, §§ 93-94, and Riviere v. France, no. 33834/03, § 62, 11 July 2006).", "69. Allegations of ill-treatment must be supported by appropriate evidence (see Labita, cited above, § 121). The Court has held on many occasions that in assessing evidence it has generally applied the standard of proof “beyond reasonable doubt”, but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). 70.", "The Court notes that there is no dispute between the parties that the applicant was placed in the detention facilities of Rijeka Police Station which are depicted on the photographs provided by the Government. These photographs show that the detention room is equipped with appropriate sanitary facilities and a bed, as well as an artificial light and a window allowing daylight to come into the room. There is no reason for the Court to consider that these facilities differed in any respect during the applicant’s detention, and the Court does not consider that placing the applicant there when he was not being interrogated discloses any appearance of treatment contrary to Article 3 of the Convention. 71. As regards the applicant’s complaints that he was not given food or water during police detention, the Court observes that the receipts for food and drink service orders provided by the Government show that on 13 March 2007 the police ordered seventy hot meals with the purpose of facilitating the investigation in the present case.", "On 14 March 2007, the day of the applicant’s police detention, as well as that of two other co-suspects, an additional thirty-five hot meals and thirty-six soft drinks were ordered. 72. Whereas this does not necessary show that the applicant received any of the food or drink ordered, it does indicate that the number of hot meals ordered significantly exceeded the number required by the police officers themselves. In this respect it is also to be noted that none of the applicant’s co-accused ever complained that they had been denied food or water during police detention. In these circumstances, the Court cannot consider the applicant’s mere assertion that he was not given any food or water during police detention sufficiently substantiated.", "73. Thus, as the applicant’s submissions have not otherwise in any way substantiated his allegations of ill-treatment during the police questioning on 13 and 14 March 2007, the Court finds that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 74. The applicant complained that he had not had a fair trial.", "In support of his complaint the applicant argued that following his arrest he had not been allowed to be represented by a lawyer of his choice; that the services of the lawyer who had represented him had fallen short of the requirements of a good defence; that he had been questioned in a coercive environment; that he had been forced to incriminate himself without the benefit of legal advice from a lawyer of his own choosing and that his conviction was based on the statements made while unrepresented by the lawyer of his choice. He relied on Article 6 §§ 1 and 3 (c) of the Convention, which, in so far as relevant, read 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; ... “ A. Admissibility 1. The parties’ submissions 75.", "The Government submitted that the power of attorney of 16 April 2011, which the applicant’s representative had provided to the Court, had not been signed by the applicant. In their view, the applicant’s signature on the power of attorney did not correspond to his actual signature. They also pointed out that during 2011 the applicant had neither met nor communicated with the lawyer representing him in the proceedings before the Court. The lawyer had, however, visited him in September 2010, but at that time the Constitutional Court had still not served its decision on the applicant so there had been no reason for him to sign a power of attorney to be represented in proceedings before the Court. Therefore, the Government requested that the application be struck out from the list of cases.", "76. The applicant argued that he had given the power of attorney to his representative in September 2010. He had given her a power of attorney before the decision of the Constitutional Court had been served on him because, having in mind the public pressure that had been put on the authorities to secure a conviction in his case, he had expected that the Constitutional Court would dismiss his constitutional complaint. Since the prison in which he had been serving his prison sentence was some distance from Rijeka, where his lawyer had her office, they had arranged to take all necessary steps, including the power of attorney, for lodging an application with the Court in September 2010. The exact date on the power of attorney granted by him had been filled in later with the applicant’s knowledge and consent.", "Besides that, he had been in constant contact with his representative – either through his mother, who had been visiting him regularly, or by telephone. 2. The Court’s assessment 77. The Court reiterates at the outset that the representative of the applicant must produce a “power of attorney or a written authority to act” (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 52, ECHR 2012).", "Therefore, a simple written authority would be valid for the purposes of the proceedings before the Court, in so far as it has not been shown that it was made without the applicant’s understanding and consent (see Velikova v. Bulgaria, no. 41488/98, § 50, ECHR 2000-VI). 78. Furthermore, neither the Convention nor the Rules of Court impose any specific requirements on the manner in which the form of authority must be drafted or require any form of certification of that document by any national authority. What is important for the Court is that the form of authority should clearly indicate that the applicant has entrusted his or her representation before the Court to a representative and that the representative has accepted that commission (see Ryabov v. Russia, no.", "3896/04, §§ 40 and 43, 31 January 2008). 79. The Court notes in the present case that the power of attorney, dated 16 April 2011, included in the case file bears the applicant’s name and is signed in handwriting. The Court is unable by mere observation, and in the absence of direct and convincing evidence to the contrary, to doubt that the signature on the power of attorney is the applicant’s. 80.", "The Court also notes that the applicant provided detailed information concerning his contacts with his representative which do not appear unreasonable and unconvincing. Moreover, there is nothing in the case file that could call into question the lawyer’s account or her exchange of information concerning the applicant with the Court (see Hirsi Jamaa and Others, cited above, § 55). 81. In these circumstances, the Court has no reason to doubt the validity of the power of attorney. Consequently, it rejects the Government’s objection.", "The Court further considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 82.", "The applicant submitted that throughout his detention in Rijeka Police Station the lawyer hired by his parents, G.M., had been unable to contact him. G.M. had therefore filed numerous complaints with various domestic authorities, including a request for disqualification of the Rijeka State Attorney and all his Deputies, by which he had sought to cease that illegal situation. Instead, the police had only allowed lawyer M.R., notably the former chief of the Primorsko-Goranska Police Department, to contact the applicant in order for the applicant to make a self-incriminating statement. Lawyer M.R.", "had been called by the police officers and not by the applicant as he had been a person whom the police officers could trust to make the applicant confess to the crimes he had been suspected of. The fact that lawyer M.R. had never asked the applicant to pay for legal representation proved that he had been cooperating with the police. 83. The representation of the applicant by M.R.", "had fallen short of the requirements of a good defence. They had only had twenty-five minutes to discuss the case, which had been disproportionate to the severity of the crimes the applicant had been accused of and the fact that he had been questioned for almost three hours. This, together with the fact that the applicant had been starved and kept in inhumane conditions and that he had been under the influence of drugs and alcohol, had made the applicant confess to the crimes. Furthermore, the applicant complained that the trial court had relied on his statement given to the police and dismissed his request to hear certain witnesses, including lawyer G.M., which would have allowed it to elucidate the circumstances of the applicant’s questioning at the police station and the accusations held against him. Therefore, he had not had a fair trial.", "84. The Government argued that the applicant had had the benefit of all the guarantees of a fair trial during the criminal proceedings against him and that the proceedings, taken as a whole, had been fair. Throughout the proceedings the applicant had been represented by a qualified lawyer and he had effectively participated at the trial having had every opportunity to question witnesses and to make all his comments. Furthermore, the applicant’s case had been examined at three instances including the Constitutional Court. The first-instance judgment had been based on his confession but also on a number of other evidence from the case file.", "As to the applicant’s right not to incriminate himself, the Government submitted that it had not been infringed in any respect, since he had confessed to the crimes of his own free will and conscience, after consulting a lawyer. In this respect they pointed out that the applicant had signed his statement by which he had expressly confirmed that he had not been coerced or pressured to make the statement. The circumstances of the case revealed that there had been no reason for the police officers to question his mental ability to understand the circumstances in which he had found himself and to make a fully conscience statement. 85. The applicant had been given sufficient time, according to the record of his questioning approximately two hours, in which to consult with his lawyer and had given his statement thereafter.", "Lawyer M.R. had been chosen by the applicant from a list of lawyers provided in every police station and the applicant had granted him a power of attorney. In the presence of that lawyer, he had given a statement to the police which had been made without any pressure or coercion. The fact that the applicant had been represented by another lawyer in later stages of the proceedings was irrelevant to the fact that M.R. had been his chosen lawyer who had represented him in accordance with their agreement and defence strategy at that stage.", "2. The Court’s assessment (a) General principles 86. The applicant alleged that he did not have a fair trial and complained of a violation of Article 6 §§ 1 and 3 (c). The Court first notes that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial in criminal proceedings as set forth in paragraph 1 of the same Article. Accordingly, the applicant’s complaint will be examined under these provisions taken together (see, among other authorities, Poitrimol v. France, 23 November 1993, § 29, Series A no.", "277‑A; Benham v. the United Kingdom, 10 June 1996, § 52, Reports of Judgments and Decisions 1996‑III; Krombach v. France, no. 29731/96, § 82, ECHR 2001‑II; Kulikowski v. Poland, no. 18353/03, § 55, 19 May 2009; Sakhnovskiy v. Russia [GC], no. 21272/03, § 94, 2 November 2010; Zagorodniy v. Ukraine, no. 27004/06, § 52, 24 November 2011; and Neziraj v. Germany, no.", "30804/07, § 45, 8 November 2012). 87. In this context, the Court reiterates that Article 6 of the Convention, read as a whole, guarantees the right of an accused to participate effectively in a criminal trial (see Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 60, ECHR 2000-II). In particular, the accused must have the opportunity to organise his defence in an appropriate way and without restriction as to the opportunity to put all relevant defence arguments before the trial court and thus to influence the outcome of the proceedings (see Luchaninova v. Ukraine, no.", "16347/02, § 62, 9 June 2011). 88. In order to exercise his right of defence, the accused should normally be allowed to effectively benefit from the assistance of a lawyer from the initial stages of the proceedings (see Salduz v. Turkey [GC], no. 36391/02, § 52, 27 November 2008). The right of everyone charged with a criminal offence to be effectively defended by a lawyer is one of the fundamental features of a fair trial (see Krombach v. France, cited above, § 89).", "89. A person charged with a criminal offence who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing (see Campbell and Fell v. the United Kingdom, 28 June 1984, § 99, Series A no. 80; Pakelli v. Germany, 25 April 1983, § 31, Series A no. 64; and Whitfield and Others v. the United Kingdom, nos. 46387/99, 48906/99, 57410/00 and 57419/00, § 48, 12 April 2005).", "Notwithstanding the importance of a relationship of confidence between lawyer and client, this right cannot be considered to be absolute (see Prehn v. Germany (dec.), no. 40451/06, 24 August 2010). The national authorities may override the defendant’s wish relating to legal representation when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice (see Croissant v. Germany, 25 September 1992, §§ 29 and 30, Series A no. 237-B, and Pavlenko v. Russia, no. 42371/02, § 98, 1 April 2010).", "90. The Court further reiterates its established case-law according to which the State cannot normally be held responsible for the actions or decisions of an accused person’s lawyer (see Stanford v. the United Kingdom, 23 February 1994, § 28, Series A no. 282‑A) because the conduct of the defence is essentially a matter between the defendant and his counsel, whether appointed under a legal aid scheme or privately financed (see Czekalla v. Portugal, no. 38830/97, § 60, ECHR 2002‑VIII; see also Bogumil v. Portugal, no. 35228/03, § 46, 7 October 2008).", "Nevertheless, in the case of a manifest failure by counsel appointed under the legal aid scheme, or in certain circumstances a privately paid lawyer, to provide effective representation, Article 6 § 3 (c) of the Convention requires the national authorities to intervene (see Güveç v. Turkey, no. 70337/01, §§ 130-131, ECHR 2009). 91. As regards the privilege against self-incrimination and the right to remain silent, the Court reiterates that these are generally recognised international standards which lie at the heart of a fair procedure. Their aim is to provide an accused person with protection against improper compulsion by the authorities and thus to avoid miscarriages of justice and secure the aims of Article 6 of the Convention.", "The right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent and presupposes that the prosecution in a criminal case will seek to prove the case against the accused without resorting to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In examining whether a procedure has impaired the very essence of the privilege against self-incrimination, the Court must examine the nature and degree of any compulsion, the existence of any relevant safeguards in the procedure and the use to which any material so obtained is put (see Bykov v. Russia [GC], no. 4378/02, § 92, 10 March 2009). 92. The Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial (see Salduz, cited above, § 54).", "At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure has tended to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task is, among other things, to help to ensure that the right of an accused not to incriminate himself is respected (see Pavlenko, cited above, § 101). (b) Application of these principles to the present case 93. The Court considers, in view of the applicant’s complaints, that the central issue raised in this case is the applicant’s right to retain counsel of his own choice; and whether as a result of not having that opportunity, he was prevailed upon in a coercive environment to incriminate himself without the benefit of effective legal advice. 94.", "The Court notes at the outset that the present case does not concern a situation in which the applicant was provided with a legal aid lawyer by the police, but rather a situation in which he was offered a choice of lawyer provided by the police, whose services the applicant had to pay for from his own funds. Therefore, the following wording of Article 6 § 3 (c) is applicable in the present case: “Everyone charged with a criminal offence has the following minimum rights: ... to defend himself ... through legal assistance of his own choosing ...”. Thus, the Court considers that, in principle, an accused in criminal proceedings who is bearing the costs of his or her legal representation has the right to choose his or her defence lawyer, save for in exceptional circumstances where it is necessary to override this right in the interests of justice or where this is associated with justifiable and significant obstacles (see Pavlenko, cited above, § 98, and Klimentyev v. Russia, no. 46503/99, §§ 116-119, 16 November 2006). 95.", "The Court notes that when the applicant was arrested by the police, his family contacted lawyer G.M. to represent him. G.M., according to his account of the events (see paragraph 21 above), which the Government did not dispute, arrived at Rijeka Police Station on 14 March 2007 at around 10.45 a.m., before the questioning of the applicant by the police commenced. At that time G.M. did not have the power of attorney.", "The police did not allow him to see the applicant, neither did they tell the applicant that G.M. had been hired as his defence lawyer by his parents. 96. Later on the same date, at around 1.30 p.m., a legal trainee in G.M.’s office tried to contact the applicant at Rijeka Police Station, submitting a power of attorney signed by the applicant’s father authorising G.M. to represent the applicant, but was again denied access without the applicant being told that G.M.", "was trying to contact him. At the same time, G.M. informed other relevant domestic authorities about the conduct of the police officers refusing him access to the applicant. 97. The Court notes that the documents in the criminal case file against the applicant do not reveal any good reasons for not allowing the lawyer G.M.", "to provide legal assistance to the applicant during police questioning, and neither the national courts nor the Government have provided any arguments in respect of the matter. The applicant, when brought before the investigating judge on 15 March 2007, the day after his arrest, expressly stated that he wished to be represented by lawyer G.M. (see paragraph 17 above), to whom the police officers had denied access without providing any relevant reasons. Instead, without having told the applicant that G.M. had been hired as his defence lawyer by his parents, the police officers, according to the Government (see paragraph 85 above), offered the applicant a list of lawyers in accordance with Article 177 § 5 of the Code of Criminal Procedure (see paragraph 56 above) in order for him to choose one to represent him during police questioning, and from this list of lawyers, M.R.", "was hired to represent the applicant. 98. The Court observes that the Government never provided the list of lawyers which was allegedly presented to the applicant. The Court also notes that the Government did not dispute that M.R. had been the former chief of the Rijeka Police and that this lawyer had never charged the applicant for his services, which would normally be expected of a privately hired lawyer.", "In these circumstances, the Court has serious doubts as to whether the police acted in good faith and whether M.R. was a lawyer who would actually have been chosen by the applicant if he knew that his parents had engaged services of lawyer G.M. The fact that the applicant signed a power of attorney in favour of this lawyer authorising him to be present during his police questioning, in the circumstances of the present case, has no bearing on this finding, since it is the Court’s well-established principle that the Convention is intended to guarantee rights that are practical and effective and not theoretical and illusory (see Airey v. Ireland, 9 October 1979, § 24, Series A no. 32; Imbrioscia v. Switzerland, 24 November 1993, § 38, Series A no. 275; and Salduz, cited above, § 55).", "99. Therefore, the Court excludes any possibility that by merely signing the power of attorney and providing a statement to the police, the applicant explicitly and unequivocally waived his right to retain G.M. as the lawyer of his own choosing and instead consented to be represented by M.R. This is because the right to counsel, being a fundamental right among those which constitute the notion of a fair trial and ensuring the effectiveness of the rest of the guarantees laid down in Article 6 of the Convention, is a prime example of those rights which require the special protection of the “knowing and intelligent waiver” standard established in the Court’s case-law (see Pishchalnikov v. Russia, no. 7025/04, §§ 77-79, 24 September 2009).", "100. The foregoing considerations raise serious concerns as to the manner in which the domestic authorities acted and as to the applicant’s representation by a lawyer of his own choosing during the pre-trial interrogation by the police, guaranteed under Article 6 § 3 (c) of the Convention. It consequently calls for the Court’s careful scrutiny in assessing whether the proceedings as a whole fall short of the requirements of a fair trial as required under Article 6 of the Convention. 101. In this respect the Court notes that during the criminal proceedings the applicant never complained that the lawyer M.R.", "had failed to provide him with adequate legal advice. The record of the applicant’s statement to the police does not reveal any deficiencies in the advice given to the applicant concerning his rights. His statement was given over the course of several hours, during which time the applicant never refused to provide further information, and at the end of the questioning he acknowledged the accuracy of the information provided by signing the record of the statement. 102. Furthermore, the Court observes that it has found that the applicant failed to substantiate his allegations that he was subjected to ill-treatment or that the conditions of his police detention were inadequate (see paragraph 73 above).", "Accordingly, there are no grounds to believe that any pressure was exerted on him or that there was any defiance of his will. 103. Equally, the Court notes that the psychiatric report commissioned during the trial found that the applicant was able to understand the nature of his acts and to control his actions at the time when the offences were committed, which was only one day before he made the incriminating statements (see paragraph 39 above). Moreover, although the applicant claimed that he was under the influence of drugs and alcohol during police questioning, there is no concrete evidence in the case file to support such an assertion or to suggest that the degree of his addiction was such as to prevent him from understanding the nature and purpose of his questioning. 104.", "During the trial before the Rijeka County Court the applicant was given an opportunity to put forward all his arguments concerning the circumstances in which he had given his statement, and after he had raised the argument that he had never signed the record of the statement, he was afforded an effective opportunity to challenge the authenticity of his signature. However, the evidence adduced, namely the handwriting expert’s report, conclusively confirmed that the applicant had signed the statement by which he had given his confession to the police (see paragraph 36 above). Therefore, it cannot be said that the applicant’s objections regarding the admissibility of his statement as evidence were ignored by the trial court (see, by contrast, Desde v. Turkey, no. 23909/03, § 130, 1 February 2011). 105.", "Throughout the court proceedings the applicant had the benefit of effective legal advice, and the trial court afforded him an adequate opportunity to participate in the proceedings and to put forward his arguments in respect of the charges and all the relevant evidence adduced; his arguments were duly taken into account. The Court also notes that in his closing arguments at the trial the applicant, through his representative, presented the confession he had given to the police while represented by the lawyer M.R. as a proof of his sincere regret for the crimes committed in order for it to be taken into account as a mitigating factor in the sentencing procedure (see paragraph 44 above). 106. Furthermore, the Court notes that the applicant’s confession was not the central platform of the prosecution’s case (see, by contrast, Magee v. the United Kingdom, no.", "28135/95, § 45, ECHR 2000‑VI), and that the trial court relied on his statement interpreting it in the light of a complex body of evidence assessed by the court (compare Bykov, cited above, § 103). Specifically, when convicting the applicant, the trial court relied on the statements of a number of witnesses cross-examined during the trial, numerous expert reports and the records of the crime-scene investigation and searches and seizures, as well as relevant photographs and other physical evidence (see paragraphs 29-43 and 45-46 above). In addition, the trial court had at its disposal the confessions made by the applicant’s co-accused at the trial and neither the applicant nor his co-accused ever argued that any of their rights had been infringed when they had made those statements. 107. Therefore, although the applicant was not represented by a lawyer selected on the basis of a fully informed choice during the police questioning, the Court does not consider that this rendered the proceedings as a whole unfair (compare O’Kane v. the United Kingdom (dec.), no.", "30550/96, 6 July 1999), since all the applicant’s rights were adequately secured during the trial and his confession was not the sole, let alone the decisive, evidence in the case and as such did not call into question his conviction and sentence (compare Gäfgen v. Germany [GC], no. 22978/05, § 187, ECHR 2010; and, by contrast, Martin v. Estonia, no. 35985/09, § 95-96, 30 May 2013). 108. Against the above background, and in view of the principle that the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1 of the Convention (see, for example, Zagorodniy, cited above, § 51) and the requirement for the Court to evaluate the fairness of the criminal proceedings as a whole (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos.", "26766/05 and 22228/06, § 118, ECHR 2011), the Court considers that it has not been shown that the applicant’s defence rights have been irretrievably prejudiced or that his right to a fair trial under Article 6 has been adversely affected (see, mutatis mutandis, Mamaç and Others v. Turkey, nos. 29486/95, 29487/95 and 29853/96, § 48, 20 April 2004, and Sarıkaya v. Turkey, no. 36115/97, § 67, 22 April 2004; and, by contrast, Martin, cited above, § 97). 109. Accordingly, in the light of these considerations, given the particular circumstances of the present case, the Court concludes that there has been no violation of Article 6 § 1 read in conjunction with § 3 (c) of the Convention.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 110. Lastly, the applicant complained that his requests to hear certain witnesses had been denied without good reason. 111. 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 complaint 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 1. Declares unanimously the complaint concerning the applicant’s right to a fair trial admissible and the remainder of the application inadmissible; 2. Holds by five votes to two that there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention. Done in English, and notified in writing on 28 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenIsabelle Berro-LefèvreRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges I. Berro-Lefèvre and J. Laffranque is annexed to this judgment. I.B.L.S.N. DISSENTING OPINION OF JUDGES BERRO-LEFÈVRE AND LAFFRANQUE Unfortunately we are unable to follow the majority in finding no violation of Article 6 § 1 read in conjunction with Article 6 § 3 (c) of the Convention. We consider that there was a violation of Article 6 §§ 1 and 3 (c), for the following reasons. Central issue of this case and previous case-law of the Court The central issue of this present case is the applicant’s right under Article 6 § 3 (c) of the Convention to defend himself through legal assistance of his own choosing.", "As a result of his not having had this opportunity, it cannot be excluded that the applicant was prevailed upon in a coercive environment to incriminate himself. The foregoing affected the entire trial, made it unfair and led to a violation of Article 6 § 1. Recently the Court dealt with a similar issue in the case of Martin v. Estonia, no. 35985/09, 30 May 2013, where it found a violation because the counsel of the applicant’s own choosing was denied access to him. The Court pointed out in this connection that the guarantees in Article 6 § 3 (c) are specific aspects of the right to a fair hearing set forth in paragraph 1 of that provision, which must be taken into account in any assessment of the fairness of proceedings.", "In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings. The Court also had regard to the subsequent use of statements made by the applicant during the preliminary investigation in breach of his defence rights. It is unfortunate that in the present case the majority did not follow the approach adopted unanimously in Martin v. Estonia. Violation of the right to be represented by counsel of one’s own choosing In the present case, when the applicant was arrested by the police his family engaged the services of lawyer G.M. to represent him.", "However, the police denied G.M. access to the applicant without giving any valid reason. Furthermore, the applicant had never been informed that G.M. had come to the police station, even though he had expressly stated that he wished to be represented by G.M. Instead, according to the Government, the police offered the applicant a list of lawyers from which to choose one to represent him during police questioning, the Government failed to produce that list before the Court.", "We are concerned that in § 94 of the judgment, without any explanation, the majority use the expression “legal aid lawyer provided by the police” and “choice of lawyer provided by the police” as if they somehow considered it normal, or even legitimate, that the police should provide a lawyer for a suspect. This does not exactly correspond to the relevant national law cited in § 56 of the judgment: Article 177 § 5 of the Code of Criminal Procedure of Croatia provides for the police authorities to allow the suspect to appoint a lawyer from the list of lawyers on duty provided to the competent police authority by the county branches of the Croatian Bar Association. We fail to see the meaning of the distinction made by the majority in § 94 of the judgment between a situation where the applicant is “provided with a legal aid lawyer by the police” and a situation where he “was offered a choice of lawyer provided by the police, whose services the applicant had to pay for from his own funds”. To us the question of payment in this connection is irrelevant, since in many legal systems even the legal aid lawyers’ fees need to be paid subsequently by the accused. How the lawyer is paid should not, as such, be a criterion in establishing whether there is “legal assistance of one’s own choosing” or not.", "In the present case it is rather the fact that the lawyer M.R. did not charge the applicant for his services that raises questions about the good faith of the police. The Government do not dispute that the appointed lawyer, M.R., was a former chief of Rijeka Police and that when acting as his lawyer he never charged the applicant for his services. The Court has constantly held that a person charged with a criminal offence who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing (see Campbell and Fell v. the United Kingdom, 28 June 1984, § 99, Series A no. 80).", "It is true that notwithstanding the importance of a relationship of confidence between lawyer and client, this right cannot be considered to be absolute, but the national authorities may override the defendant’s wish relating to legal representation only when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice (Pavlenko v. Russia, no. 42371/02, § 98, 1 April 2010). We are unable to accept the actions of the police in preventing lawyer G.M. from contacting the applicant, and failing to inform the applicant of G.M.’s presence in the police station despite applicant’s wish to be represented by him, or the way the lawyer M.R. was involved in the case.", "Contrary to the principles cited above, the documents in the criminal case file against the applicant do not reveal any good – let alone relevant and sufficient – reasons for not allowing lawyer G.M to assist the applicant during the police questioning, and neither the national courts nor the Government have produced any arguments in that respect. In the circumstances M.R.’s background and the fact that he did not charge the applicant are also relevant and worrying. To our mind there was no waiver on the part of the applicant of his right to retain G.M., since the applicant had not been informed of G.M.’s arrival at the police station when he signed the power of attorney with M.R. It is noteworthy that the majority also had serious doubts as to whether the police acted in good faith and whether M.R. was a lawyer the applicant would actually have chosen had he known about the other lawyer, G.M., hired by his parents (§ 98 of the judgment).", "The majority also acknowledge that the mere signature by the applicant of the power of attorney with M.R. did not constitute a “knowing and intelligent waiver” of his right to retain G.M. as lawyer. Therefore it is even more striking that, despite having serious concerns as to the manner in which the domestic authorities acted (see § 100 of the judgment) and the failure to allow the applicant to be represented by a lawyer of his own choosing during the pre-trial interrogation – a crucial moment in the criminal proceedings –, the majority found no violation of Article 6 § 3 (c). For us these serious concerns, including the manner in which M.R.’s services were proposed to the applicant by the police are valid grounds for a finding of a violation.", "Possible pressure by the police to confess Furthermore, the applicant consistently maintained that his statement was obtained in a coercive environment. Since it is established that the police and the Rijeka County State Attorney questioned the applicant while at the same time preventing him from meeting lawyer G.M., and suggested that he choose another lawyer proposed by them, the applicant’s allegations of pressure exerted by the authorities do not appear completely misplaced. Therefore the finding of the majority in § 106 of the judgment that the applicant never argued that any of his rights had been infringed when he made his statement seems to be in contradiction with the statement of facts in § 38 of the judgment, which reads: “On 2 April 2008 the applicant asked the Rijeka County Court to call lawyer G.M. as a witness in connection with the alleged unlawful extraction of his confession by the police. He pointed out that G.M.", "had not been allowed to see him while he had been in police custody and stated that he had been forced by the police officers to confess.” In addition, we fail to adhere to the conclusion made by the majority in § 105 of the judgment: “The Court also notes that in his closing arguments at the trial the applicant, through his representative, presented the confession he had given to the police while represented by the lawyer M.R. as a proof of his sincere regret for the crimes committed in order for it to be taken into account as a mitigating factor in the sentencing procedure.” In § 42 of the judgment it is stated that the applicant pleaded not guilty to the charges and in § 44 it is said that during the closing arguments: “The applicant’s defence lawyer argued that it had not been proven that the applicant had committed the offences he was charged with. She pointed out, however, that if the trial court considered differently, then the applicant’s confession to the police and his sincere regret had to be taken into consideration in sentencing him.” Thus the lawyer used a common tactic of alternative pleadings and used the confession, in the event of sentencing, as a mitigating circumstance, which is by no means the same as maintaining the confession the applicant had given to the police while represented by the lawyer M.R. Confession as evidence and overall fairness of the criminal proceedings Although the applicant had the benefit of adversarial proceedings in which he was represented by a lawyer, the detriment he suffered because of the breach of due process at the pre-trial stage of the proceedings was not remedied by the subsequent proceedings. We think that the serious shortcomings in respect of legal assistance at such an important stage of pre-trial events seriously undermined the position of the applicant’s defence at the trial as well.", "In these subsequent proceedings his confession was held to be admissible as evidence, and even though other evidence was adduced and the confession was not the sole evidence, it nevertheless played a decisive role, without any importance being attached to the circumstances in which the confession had been made (see Panovits v. Cyprus, no. 4268/04, § 75, 11 December 2008). For all these reasons we conclude that there has been a violation of Article 6 §§ 1 and 3(c) of the Convention on account of the infringement of the applicant’s right to defend himself through legal assistance of his own choosing." ]

[ "FOURTH SECTION CASE OF SZENK v. POLAND (Application no. 67979/01) JUDGMENT STRASBOURG 22 March 2005 FINAL 22/06/2005 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 Szenk 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, andMr M. O’Boyle, Section Registrar, Having deliberated in private on 1 March 2005, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1.", "The case originated in an application (no. 67979/01) 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 Bogdan Szenk (“the applicant”), on 26 July 2000. 2. The applicant was represented by Mr Andrzej Rzepliński of the Polish Helsinki Foundation of Human Rights. The Polish Government (“the Government”) were represented by their Agents, Mr Krzysztof Drzewicki and, subsequently, by Mr Jakub Wołąsiewicz of the Ministry of Foreign Affairs.", "3. The applicant complained under Article 6 of the Convention that his right to a fair hearing within a reasonable time had been breached. He also complained that the circumstances of the case amounted to an infringement of his right to the peaceful enjoyment of his possessions within the meaning of Article 1 of Protocol No. 1. 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. By a decision of 1 June 2004, the Court declared the application partly admissible. 6.", "The applicant and the Government each filed observations on the merits (Rule 59 § 1). 7. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1929 and lives in Warsaw. 9. The applicant’s parents owned a two-storey building in Warsaw. By virtue of the 1945 Decree on the Ownership and Use of Land in Warsaw the Warsaw municipality (and after 1950 the State Treasury) became the owner of all plots of land located in Warsaw.", "The decree provided for a possibility to obtain the perpetual lease of a plot of land on request. On 23 November 1948 the applicant’s parents filed such a request. At the beginning of the 1950s they were deprived of the right to manage the property and forced to renounce the rent collected from their tenants. 10. On 5 July 1967 the Board of the Warsaw National Council examined their request lodged in 1948.", "It refused to grant the applicant’s parents the perpetual use (former perpetual lease) of the land and declared that the building located on that land had become the property of the State. 11. On 4 December 1967 the Ministry of Municipal Administration dismissed the applicant’s appeal against that decision. It found that the building in question was not a small one-family house, which would qualify it for exclusion from the so-called “communal administration” of properties, provided for by a law adopted in 1957. As the building was covered by that administration, the Ministry considered that granting the perpetual use of the land would have no justification.", "12. On 17 June 1991 the applicant filed with the Ministry of Construction a request for the annulment of the decision of 4 December 1967. On 1 April 1992 the Minister refused the request, considering that the challenged decision had been issued in accordance with the law. The applicant appealed. On 23 July 1993 the Supreme Administrative Court dismissed his appeal.", "13. Subsequently, the First President of the Supreme Court filed with that court an extraordinary appeal against that judgment. 14. On 7 February 1995 the Supreme Court quashed the 1993 judgment of the Supreme Administrative Court and the decision of the Minister of Construction. It considered that they had relied on the conformity of the 1967 decisions with the “communal administration” of properties, whereas the law providing for such administration had been adopted after the date of lodging the request for perpetual lease and therefore could not apply to the circumstances of the case.", "The court observed that the 1945 decree obliged the municipality to grant requests for perpetual use of land unless the use of that land by its former owner would be incompatible with its function set forth in the development plan. The Supreme Court pointed out that the organs dealing with the applicant’s request had not examined the issue of such compatibility. It made reference to the constitutionally guaranteed protection of property, pointing out that the applicant’s property had been expropriated on unspecified legal grounds and no compensation had been awarded therefor. 15. On 24 August 1995 the Minister of Construction, having regard to the Supreme Court’s judgment, declared that the part of the decision of 4 December 1967 concerning those flats in the disputed building which had been already sold by the municipality to their tenants had been issued in breach of the law.", "However, it was impossible to declare the decision null and void since, under applicable law, if more than ten years had elapsed from the date on which such an unlawful decision had been given, the Minister could only declare that it had been issued in breach of the law. The Minister annulled the remainder of that decision. In consequence, the appellate proceedings in respect of that part of the July 1967 decision were re-opened. 16. On 23 November 1995 the Warsaw Self-Governmental Board of Appeal quashed the decision of 5 July 1967 and remitted the case for re-examination.", "17. In 1996 the applicant lodged with the Board of Appeal a complaint about the inactivity of the Mayor of Warsaw, who was competent to deal with the case. 18. On 16 September 1996 the Warsaw-Centre Municipal Office requested the applicant to provide it with a copy of judicial decisions identifying his parents’ heirs. On 3 and on 23 October 1996 the applicant submitted the requested information.", "On 23 October 1996 three heirs of the former co-owner Ms J.K. declared their wish to join the proceedings. On 30 October 1996 the former co-owner D.K., who had later changed her name to D.Sz., also declared her wish to do so. 19. On 21 November 1996 the Warsaw-Centre Municipal Office requested the Department of Town Planning and Architecture of the District Office Praga Południe to submit an extract from the town planning scheme concerning the plot under dispute. 20.", "Also on 21 November 1996 the Warsaw-Centre Municipal Office informed the applicant about the problems hindering it from taking the requested decision. The first problem consisted in the fact that the applicant’s mother had lodged her request to be granted the right to perpetual use before the State Treasury became officially the owner of the plot. Another difficulty arose from the fact that the heirs of Ms J.K. – the former co-owner of the plot – had not submitted to the Office their legal titles to the ownership. Finally, it was necessary for the Office to obtain the extract from the town planning scheme concerning the plot. In order to clarify the legal consequences arising from the first problem the Office had posed a legal question to the Supreme Administrative Court, asking if the requirements of the 1945 Decree were fulfilled when the request had been lodged before the plot in question came officially into the ownership of the State Treasury.", "The applicant was informed that as soon as the answer was provided the Office would proceed further with his request. 21. On 29 November 1996 one of the heirs of the former co-owner presented to the Office a decision stating that the part of the plot belonging to the late Ms J.K. had been inherited by six persons (Ms Z.W., Mr H.K., Mr M.K., Ms T.P., Ms K.F and Ms R.K.). She additionally informed the Office that certain other inheritance proceedings concerning the estate of Ms J.K.’s late heirs were pending. 22.", "On 9 December 1996 the Warsaw-Centre Municipal Office received the extract from the town planning scheme concerning the plot. 23. The examination of the case not having commenced for over a year, the applicant lodged with the Board of Appeal a complaint about the inactivity of the Mayor of Warsaw. On 21 February 1997 the Board of Appeal found the applicant’s complaint well-founded and ordered the Mayor to finish the examination of the case by 31 March 1997. 24.", "On 22 February 1997 one of the heirs of the former co-owner Ms J.K. informed the Office that the inheritance proceedings concerning the estate were still pending. 25. On 30 April 1997 the applicant requested the Office to issue in his case not one but two decisions granting him the right to perpetual use of the plot concerned. He argued that before the plot came into the ownership of the State Treasury, it constituted two separate plots. In consequence, the Office should restore the original legal situation of the property and should issue two separate decisions granting the applicant the right to perpetual use of the separate plots of land.", "26. On 30 April 1997, at the request of the Office, an expert submitted an evaluation report concerning the value of the plot. 27. On 28 July 1997 one of the heirs of the former co-owner informed the Office that the inheritance proceedings had been terminated. She submitted a copy of the court’s decision of 18 June 1997.", "The decision awarded the estate to Mr M.K., Mr H.K. and Mr R.A.K. 28. On 15 September 1997 the applicant submitted to the Municipal Office a copy of a request lodged with the court by a certain Ms H.K. She requested the court to quash the court’s decision of 18 June 1997 in the part concerning the estate of Mr M.K.", "She argued that already by 2 March 1978 she had been declared his heir. 29. On 30 September 1997 the applicant requested the Office to grant him the perpetual use but only in regard to a part of the presently existing plot. This part of the plot had earlier constituted a separate plot. 30.", "On 16 December 1997 the Warsaw-Centre Municipal Office requested the Deputy Director of the Board of the District Praga Południe to prepare a so‑called “map of legal status” of the plot. 31. On 29 January 1998 the Supreme Court quashed the decision of 18 June 1997 concerning the estate of Mr M.K. As a result, Ms H.K. inherited the entire estate of the late Mr M.K.", "On 14 May 1998 the District Office Praga Południe informed the Warsaw-Centre Municipal Office that the lawful division of the building was impossible because it did not possess a mandatory anti-fire wall. In the light of this information the Office decided that an expert opinion should be prepared. On 22 June 1998 the expert submitted the opinion. He stated that the lawful division of the building was possible. 32.", "On 16 July 1999 the Municipal Office requested the District Office Praga Południe to issue a decision confirming the division of the plot was possible and an approval of the division of the plot. 33. On 15 July 1999 the Office requested Ms H.K. to provide it with a copy of the court’s decision which had awarded her the estate of the late Mr M.K. She did so on 30 July 1999.", "34. On 29 July 1999 the Warsaw-Centre Municipal Office informed the applicant and other heirs of the former co-owners that it had instituted ex officio administrative proceedings concerning the division of the plot. It was explained that the decision approving the division of the plot would make it possible to determine the parties’ shares in the co-property and that, in turn, this would make it possible to give a decision conferring the right to perpetual use of the plot. By a letter of 30 July 1999 the parties to the proceedings were requested to appear within a fourteen days time-limit in order to express their opinion concerning the planned division of the plot. 35.", "On 18 August 1999 Ms H.K. and on 23 August 1999 Ms Z.W expressed their consent to the division. 36. Due to the fact that not all persons summoned to do so, including the applicant, had expressed their consent to the planned division of the plot, on 2 September 1999 the Office discontinued the proceedings in its part concerning the division. On 15 September 1999 the applicant appealed against that decision to the Board of Appeal.", "37. On 27 September 1999 the applicant lodged with the Supreme Administrative Court a complaint about the further inactivity on the part of the Mayor and the Office. 38. On 2 March 2000 that court ordered the Mayor to deal with the case within three months. The court considered that the manner in which the proceedings had been conducted disclosed improper functioning of the administrative authority concerned and a flagrant breach of the provisions of the Code of Administrative Procedure relating to the time-frame within which administrative cases should be dealt with.", "39. On 10 July 2000 the Board of Appeal dismissed the applicant’s appeal against the decision of 2 September 1999 to discontinue the proceedings concerning the division of the plot. On 8 August 2000 the applicant lodged a further appeal against that decision. On 7 January 2002 the Supreme Administrative Court dismissed his appeal. 40.", "On 25 July 2000 the Mayor of Warsaw stayed the proceedings concerning the applicant’s request to grant him the perpetual use of the plot of land relying on the fact that the perpetual users of the land had not expressed their consent to division of the property and obliged thereby all heirs to institute civil proceedings in which a court would give a decision on such division. The applicant appealed. On 22 August 2001 the Board of Appeal allowed his appeal and discontinued the proceedings IN SO FAR as they related to the decision of 25 July 2000 to stay the proceedings. The Board of Appeal observed that the decision of the civil court on the division of the estate of the late former owners was wholly unnecessary for the continuation of the administrative proceedings at hand, a decision determining the shares of the heirs in the estate having already been given in the inheritance proceedings. 41.", "The applicant appealed against this decision. On 30 September 2003 the Supreme Administrative Court dismissed his appeal, observing that the second-instance decision of 22 August 2001 was in fact favourable to him. 42. The proceedings concerning the applicant’s request for award of the right to perpetual use of the plots concerned are pending. II.", "RELEVANT DOMESTIC LAW A. Inactivity of an administrative organ 43. According to the Code of Administrative Procedure cases shall be handled without undue delay and the time of their examination, even if they are complex, shall not exceed two months (Article 35 § 3). Having failed to comply with the time-limit prescribed by the Code, the administrative organ must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new time-limit. Article 37 of that Code provides: “§ 1. A complaint about failure to handle a case within the time-limit set forth in Article 35 or fixed under Article 36 can be lodged with an administrative organ of a higher level.", "§ 2. [That] organ, having found the complaint well-founded, shall fix an additional time-limit for the completion of the case ...” 44. Further remedies in respect of inactivity on the part of an administrative organ are provided for by the Law on the Supreme Administrative Court. Under Section 17 of that Law a party to administrative proceedings may lodge with the Supreme Administrative Court a complaint about such inactivity. 45.", "Section 26 of the Law provides that the Court, having found such a complaint well-founded, shall oblige the administrative organ concerned to issue a decision or to perform an activity. 46. Section 34 of the Law on the Supreme Administrative Court sets out the requirement of the exhaustion of available remedies before lodging a complaint with that court. Accordingly, the complaint concerning alleged inactivity should be preceded by the lodging of a complaint with an administrative organ of a higher level, pursuant to the above-mentioned Article 37 of the Code of Administrative Procedure. B.", "Decree on the Ownership and Use of Land in Warsaw 47. In accordance with the Decree of 26 October 1945 on the Ownership and Use of Land in Warsaw (dekret o własności i użytkowaniu gruntów na obszarze m. st. Warszawy) the ownership of all land was transferred to the municipality. The decree provided in so far as relevant: “Article 5. Buildings and other objects located on the land being transferred to the municipality’s ownership remain the property of those who have owned them so far, unless specific provisions provide otherwise. Article 7.", "(1) The owner of a plot of land ... can within 6 months after the taking of possession of the land by the municipality file a request to be granted ... the right to a perpetual lease (wieczysta dzierżawa) with a peppercorn rent (czynsz symboliczny). ... (2) The municipality shall grant the request if the use of the land by the former owner is compatible with its function set forth in the development plan (plan zabudowania). ... (4) In case the request is refused, the municipality shall offer the person entitled, as long as it has spare land in its possession, a perpetual lease of land of equal value, on the same conditions, or the right to construct on such land. (5) In case no request, as provided for in paragraph (1), is filed, or the former owner is for any other reasons not granted a perpetual lease or the right to construct, the municipality is obliged to pay compensation pursuant to Article 9. Article 8.", "In case the former owner is not granted the right to a perpetual lease or the right to construct, all buildings located on the land shall become the property of the municipality, which is obliged to pay, pursuant to Article 9, compensation for the buildings which are fit to be used or renovated. Article 9. ... (2) The right to compensation begins to apply six months after the day of taking the land into possession by the municipality of Warsaw and expires three years after that date. ...” 48. Under Article XXXIX of the Decree of 11 October 1946 introducing the Property Law (prawo rzeczowe) and the Law on Land and Mortgage Registers, the right to construct and the right to a perpetual lease could be transferred into temporary ownership (własność czasowa).", "Article 40 of the Law of 14 July 1961 on Administration of Land in Towns and Estates (ustawa o gospodarce terenami w miastach i osiedlach) replaced temporary ownership with perpetual use (użytkowanie wieczyste). 49. Pursuant to Article 33(2) of the Local State Administration Act of 20 March 1950, ownership of property situated in Warsaw was assigned to the State Treasury. 50. The Local Self-Government Act of 10 May 1990 re-established local self-government.", "Pursuant to Article 5(1), ownership of land which had previously been held by the State Treasury and which had been within the administrative territory of municipalities at the relevant time was transferred to the municipality. C. Perpetual use 51. The right to perpetual use is regulated by the Civil Code. An individual or a legal entity may be granted such a right over land owned by the State or a local authority. The right comprises a right to use the land to the exclusion of others for ninety-nine years, on payment of a yearly fee.", "The person entitled to the right can dispose of it. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 52. The applicant alleged a violation of Article 6 § 1 of the Convention, arguing that the proceedings in which he tried to vindicate his rights to compensation by way of award of the right to perpetual use provided for by the 1946 Decree on the Ownership and Use of Land in Warsaw, have been excessively lengthy. 53.", "The relevant provisions of Article 6 § 1 read: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal ...” A. Period to be taken into consideration 54. The Court notes that the proceedings began on 17 June 1991 and are still continuing. They have therefore already lasted over thirteen years, of which a period of over eleven years and ten months falls within the Court’s temporal competence, Poland having recognised the right of individual petition as from 1 May 1993. Given its jurisdiction ratione temporis, the Court can only consider the period which has elapsed since 1 May 1993, although it will have regard to the stage reached in the proceedings on that date (see, among other authorities, Zwierzyński v. Poland, no.", "30210/96, § 123, ECHR 2000-XI). B. Reasonableness of the length of the proceedings 55. The Court will assess the reasonableness of the length of the proceedings in the light of the circumstances of the case and having regard to the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities. It will also take account of what is at stake for the applicant (see, among many other authorities, Biskupska v. Poland, no. 39597/98, § 43, 11 July 2003).", "56. The Government submitted that the case was very complex, mainly due to the unclear legal status of the disputed property. This, in the Government’s view, resulted mainly from the fact that it was not obvious whether this property was composed of one or of two plots. This lack of clarity further originated from the fact that in the 1970s and 1980s seven flats in the building were sold to their tenants who had thereby acquired shares in the right to perpetual use of the plot. Under domestic law they therefore became entitled to give their consent to the administrative division of the property, sought by the applicant.", "As some of them refused to give such consent, the case had to be brought to a civil court, competent to deal with this issue in contentious proceedings. Moreover, another set of inheritance proceedings relating to the estate of one of the legal predecessors of the holders of the right to perpetual use rendered the proceedings even more complex. The Government were of the view that the case was dealt with without undue delays. 57. The applicant argued that the civil law aspects of the case, referred to by the Government, could not by themselves explain the overall length of the proceedings.", "Even if this was the case, the respondent Government would in any event be responsible also for delays in the civil proceedings. Moreover, the conduct of the proceedings by the administrative authorities was several times strongly criticised by the Supreme Administrative Court, for the last time in its judgment of 2 March 2000. In conclusion, the length of the proceedings was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. 58. The Court observes that the case disclosed a certain complexity, having regard in particular to the fact that the legal background of the cases concerning land in Warsaw is indeed complicated (see §§ 53-56 above, Beller v. Poland, judgment of 1 February 2005, no.", "51837/9, § 70). However, this complexity is not sufficient to justify the overall length of the proceedings concerned. 59. As to the applicant’s conduct, the Court observes that he contributed to the prolongation of the proceedings in that he appealed against the decision of the Board of Appeal given on 22 August 2001. The Court notes that the Supreme Administrative Court later held, in its judgment of 30 September 2003 by which it examined this appeal, that the applicant had erroneously considered that this decision was to his detriment, whereas it was in fact favourable to him.", "The Court is of the view that otherwise there is no indication that the applicant contributed to the prolongation of the proceedings. 60. The Court observes in connection with the conduct of the authorities that the manner in which they proceeded with the applicant’s case was twice criticised by the authorities which examined the applicant’s complaints about the unreasonable length of the proceedings. The Mayor has been ordered on two occasions to issue a decision in the applicant’s case and given time-limits therefor (§§ 23 and 38 above). The Court notes that none of those orders was complied with.", "Further, there were ten months of a near total inactivity between November 1995 when the case was lodged with the Warsaw Municipal Office and September 1996 when the next steps were taken in the proceedings (§§ 16-18 above). The Court further notes that it was only after one year from November 1995 that this Office requested a town-planning authority to submit a town-planning scheme relevant for the case. Likewise, a basic legal analysis of the issues involved in the case was made one year later (§ 20 above). Subsequently, it took the Office two years to request a competent authority to prepare a so-called ‘map of legal status’ of the plot (§ 30 above). The Office further needed two years and six months to realise that there was no mandatory ‘anti-fire wall’ on the property and to require that an expert opinion be prepared as to whether such a wall was indeed mandatory.", "The applicant’s appeal to the Supreme Administrative Court against a decision of 10 July 2000 waited for its turn to be examined by that Court for one year and six months (§§ 39-41 above). The proceedings are still pending. 61. Consequently, having regard to all the circumstances of the case, the Court considers that the overall length of the proceedings complained of exceeded what was reasonable. There has therefore been a violation of Article 6 § 1 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 62. The applicant complained of an infringement of his right to the peaceful enjoyment of his possessions within the meaning of Article 1 of Protocol No. 1.", "The Government contested this. Article 1 of Protocol No. 1 reads: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 63.", "The Court observes that the domestic proceedings to determine the applicant’s claims are currently pending. Therefore, IN SO FAR as the applicant relies on Article 1 of Protocol No. 1 to the Convention, the Court considers that it would be premature to take a position on the substance of this complaint. IN SO FAR as the applicant complains about the length of those proceedings, the Court considers that Article 1 of Protocol No. 1 complaint does not give rise to any separate issue (see, for example, Zanghì v. Italy, judgment of 19 February 1991, Series A no.", "194-C, § 23, Di Pede v. Italy, judgment of 26 September 1996, Reports of Judgments and Decisions 1996‑IV, p. 17, § 35). III. 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 sought compensation for pecuniary and non-pecuniary damage in the amount of USD 3,276,000. 66. The Government submitted that IN SO FAR as the applicant’s claims related to the alleged pecuniary damage, the applicant had not adduced any evidence to show that he suffered any actual loss on account of the protracted character of the proceedings. As to non-pecuniary damage, the Government submitted that the amount claimed by the applicant was 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 the Court is of the view that the applicant must have sustained some non-pecuniary damage, which the mere finding of a violation cannot adequately compensate. The Court decides to award on an equitable basis EUR 5,000 under this head. B.", "Costs and expenses 68. The applicant did not seek further reimbursement of legal costs and expenses in connection with the proceedings before the Court. C. Default interest 69. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 2. Holds that there is no need to examine the complaint under 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 according to Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above 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 March 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O’BoyleNicolas BratzaRegistrarPresident" ]

[ "FOURTH SECTION CASE OF KUBASZEWSKI v. POLAND (Application no. 571/04) JUDGMENT STRASBOURG 2 February 2010 FINAL 02/05/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kubaszewski 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 Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 12 January 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "571/04) 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 Czesław Kubaszewski (“the applicant”), on 8 December 2003. 2. The applicant was represented by Mr A. Zielonacki, 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 proceedings brought against him under the relevant provisions of the Civil Code regulating the protection of personal rights had infringed his right to freedom of expression under Article 10 of the Convention. 4. On 10 November 2008 the President of the Fourth Section of the Court 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). 5.", "The applicant and the Government each filed written observations (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1944 and lives in Kleczew. A.", "The session of the Municipal Council 7. At the material time the applicant was a member of the Kleczew Municipal Council. 8. On 22 March 2000, in the course of a session of the Kleczew Municipal Council, the applicant gave a speech in his capacity as a member of the Council. The purpose of the debate was to take a vote on whether the Municipal Board (Zarząd Gminy) had made appropriate use of the 1999 municipal budget.", "In this context the applicant made the following statements: “What the members of the Municipal Council received is all lumped together; it is unclear what costs how much ... According to the Municipal Council’s resolution of 22 June 1999, spending on investments was to be increased. The money was to be spent on modernising and renovating the purification plant and building access to it.” 9. The applicant had doubts as to whether that investment had in fact been made. He also referred to another investment project, the sanitary sewage system, saying: “It is unclear how many metres have been built.", "It is important, because this is public money. Everyone knows how to spend his own money, but where public money is concerned, it is being spent as much as possible.” 10. The applicant further compared the Kleczew municipality with the neighbouring Wilczyn municipality, which had had a small budget but had managed to construct an interceptor sewer at much less expense, which was an example of rational public spending (gospodarność), and said: “And this is shocking; with contractors earning 660,880 zlotys, is this not money laundering in our municipality?” 11. The applicant asked the members of the Board many other questions relating to the 1999 budget. 12.", "During a break in the session the applicant gave an interview to a journalist from the local newspaper, the Local Express (Ekspres Powiatowy). 13. On 24 March 2000 the “Local Express” published an article entitled “Where is the million?” with the subtitle “Kleczew municipal councillor accuses Municipal Board of money laundering”. The article read that “according to the councillor’s statement made at the session of the Municipal Council, one million zlotys from the municipal budget allocated for the autonomous activity of the municipality has disappeared”. The article went on to cite the following statement made by the applicant: “...", "I made these calculations because there was something not right here, a million is missing and I am sure of that. Maybe the Municipal Board is money laundering? I will inform the institutions which deal with controlling the municipalities of the matter” B. Civil proceedings against the applicant 14. On 10 May 2000 seven members of the Kleczew Municipal Board lodged a claim with the Konin Regional Court (Sąd Okręgowy) for the protection of their personal rights.", "Among other things, they sought an order requiring the applicant to publish an official apology in the local newspaper. 15. On 17 April 2002 the Poznań Regional Court gave judgment finding that the statements made by the applicant at the Council meeting on 22 March 2000 and given to the press had been untrue and had infringed the plaintiffs’ personal rights (by tarnishing their good name and reputation). The court further found that the plaintiffs were public officials and their good name, reputation and reliability were of great importance. It ordered the applicant to publish an official apology in the Local Express and to make a statement of apology at the next Municipal Council session for his statements made at the 22 March 2000 session and subsequently reproduced in the Local Express of 24 March 2000.", "16. On an unspecified date the applicant appealed against that judgment. 17. On 28 November 2002 the Poznań Court of Appeal (Sąd Apelacyjny) partly amended the first-instance judgment. It found that most of the applicant’s statements made at the session on 22 March 2000 had fallen within the limits of permissible criticism and that the applicant, as a representative of the local community acting in their interest, had had the right to ask critical questions relating to the way public money was spent by the Municipal Board.", "The court found, however, that the applicant’s allusion to money laundering made during the session of the Municipal Council had gone beyond the limits of permissible criticism and that by that statement, referring to a type of crime traditionally associated with organised criminal groups, the applicant had infringed the plaintiffs’ personal rights. The court ordered the applicant to publish an official apology for his allusion to money laundering in the Local Express and to make the same apology at the next session of the Municipal Council. 18. On an unspecified date the applicant lodged a cassation appeal with the Supreme Court (Sąd Najwyższy). 19.", "On 1 August 2003 the Supreme Court refused to entertain that appeal. 20. The applicant appealed against that decision but, on 17 October 2003, the Supreme Court dismissed his appeal as inadmissible in law. C. Criminal proceedings against the applicant 21. On 27 July 2007 the Konin District Prosecutor instituted criminal proceedings against the applicant for making false accusations about another person before a prosecuting body.", "Notification of the possible commitment of a crime was lodged by the Mayor of Kleczew. 22. The criminal proceedings against the applicant are pending. II. RELEVANT DOMESTIC LAW Personal rights and their protection under the Civil Code 23.", "Article 23 of the Civil Code contains a non-exhaustive list of rights known as “personal rights” (dobra osobiste). This provision states: “The personal rights of an individual, such as health, liberty, reputation (cześć), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected under civil law regardless of the protection laid down in other legal provisions.” 24. Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. Under that provision, a person faced with the threat of an infringement may demand that the prospective perpetrator refrain from the wrongful activity, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia, request that the wrongdoer make a relevant statement in an appropriate form, or demand satisfaction from him or her.", "If an infringement of a personal right causes financial loss, the person concerned may seek damages. 25. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads: “The court may grant a suitable sum as pecuniary compensation for non-pecuniary damage (krzywda) suffered by anyone whose personal rights have been infringed. Alternatively, without prejudice to the right to seek any other relief that may be necessary to remove the consequences of the infringement, the person concerned may ask the court to award a suitable sum for the benefit of a specific social interest.", "...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 26. The applicant alleged a breach of 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.", "... 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 27. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. Arguments of the parties (a) The Government 28. The Government admitted that the domestic courts’ decisions had amounted to an interference with the applicant’s right to freedom of expression. They submitted, however, that the interference had been justified under Article 10 § 2 of the Convention.", "29. The Government further submitted that in the course of numerous internal control proceedings, all charges relied on by the applicant concerning the alleged irregularities in rational spending of public money had been found to be untrue. They produced relevant documents to support their allegations. 30. They also submitted that there were criminal proceedings pending against the applicant for formulating false accusations and that, taking into account the applicant’s behaviour, he should not be given any credibility.", "31. In conclusion, the Government submitted that the interference with the applicant’s freedom of expression could be reasonably considered “necessary” in a democratic society for the protection of the reputation or rights of others and was proportionate within the meaning of Article 10 § 2 of the Convention. (b) The applicant 32. The applicant’s lawyer submitted that the municipal authorities had acted mainly in order to keep the applicant away from the financial issues of the municipality. He considered the municipal authorities’ actions “unjustified and unfair”.", "2. The Court’s assessment (a) Existence of an interference 33. There is no dispute that the domestic court’s judgments ordering the applicant to publish an official apology amounted to an interference with the exercise of his right to freedom of expression. The Court sees no cause to conclude otherwise (see, for example, Societe Prisma Presse c. France (dec.), no. 71612/01).", "(b) Prescribed by law 34. The interference referred to above was “prescribed by law”; it was based on the relevant provisions of the Civil Code providing for the protection of personal rights. (c) Legitimate aim 35. The Court is ready to accept the Government’s submissions that the interference with the applicant’s freedom of expression pursued a legitimate aim, namely the protection of the reputation or rights of individual Municipal Board members. (d) Necessary in a democratic society (i) The relevant principles 36.", "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, 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 that 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 (see the following judgments: Handyside v. theUnited Kingdom, 7 December 1976, Series A no. 24, p. 23, § 49; Lingens v. Austria, 8 July 1986, Series A no.", "103, p. 26, § 41; and Jersild v. Denmark, 23 September 1994, Series A no. 298, p. 23, § 31). 37. 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 a 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 (see the above-mentioned Lingens judgment, p. 25, § 39). 38. There is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV), especially when the speech is given by an elected representative (see, mutatis mutandis, Castells v. Spain, 23 April 1992, § 42, Series A no.", "236 and Jerusalem v. Austria, no. 26958/95, § 38, ECHR 2001‑II). Moreover, the limits of acceptable criticism are wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his words and deeds by journalists and the public at large, and he must consequently display a greater degree of tolerance (see Lingens v. Austria, cited above, § 42; Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, p. 1567, § 54; and Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 30, ECHR 2003-XI).", "39. In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against the applicant and the context in which he made them. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see Lingens, cited above, pp. 25-26, § 40, and Barfod v. Denmark, judgment of 22 February 1989, Series A no. 149, p. 12, § 28).", "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 based their decision on an acceptable assessment of the relevant facts (see Jersild, cited above, p. 24, § 31). (ii) Application of the above principles to the instant case 40. The Court has to examine whether, taking into consideration all the relevant circumstances of the present case, the domestic court’s judgment, by which the applicant was ordered to make an official apology in the Local Express for his allusion to money laundering and to make the same apology at the next session of the Municipal Council, amounted to a disproportionate interference with the applicant’s right to freedom of expression. In other words, the Court has to assess whether the sanction applied to the applicant answered a “pressing social need” and was “proportionate to the legitimate aim pursued”, as well as whether the reasons adduced by the national authorities in justification thereof were “relevant” and “sufficient”. 41.", "The Court notes at the outset that the second-instance court found all the statements made by the applicant during the Municipal Council session, except for the statement concerning the alleged money laundering, to constitute an acceptable element of a public debate falling within the scope of freedom of expression. The Court will thus limit its examination to the latter statement. 42. At the material time the applicant was a member of the Municipal Council and his speech was given in that capacity during a session of the Municipal Council. The session was devoted to deciding on whether the Municipal Board had made appropriate use of the municipal budget in conformity with its statutory obligation.", "The Court considers that this was the best time and place to discuss any alleged financial irregularities concerning the municipal budget. In this respect the Court recalls that while freedom of expression is important for everybody, it is especially so for elected representatives of the people. They represent the electorate, draw attention to their preoccupations and defend their interests. Accordingly, interferences with their freedom of expression call for the closest scrutiny on the part of the Court (see Castells v. Spain, cited above, pp. 22-23, § 42).", "43. In the light of the above, the Court considers that the applicant’s allegations of money laundering were part of a political debate. Even if the statement contained harsh words, it was not made personally against a specific person but against the whole Municipal Board, whose members are politicians and, as noted above, for whom the limits of acceptable criticism are wider than as regards a private individual. It is precisely the task of an elected representative to ask awkward questions when it comes to public spending and to be hard-hitting in his criticism of fellow politicians responsible for the management of the public purse. The latter must be expected to display a greater degree of tolerance than private individuals when exposed, in a political setting, to scathing remarks about their performance or policies (see, mutatis mutandis, Lombardo and Others v. Malta, no.", "7333/06, § 54, 24 April 2007). The Court reiterates its view expressed in numerous judgments that very strong reasons are required to justify restrictions on political speech. Allowing broad restrictions on political speech in individual cases would undoubtedly affect respect for the freedom of expression in general in the State concerned (see, among many other authorities, Feldek v. Slovakia, no. 29032/95, § 83, ECHR 2001‑VIII, and Sürek v. Turkey (no. 1) [GC], cited above, § 61).", "44. The Court further notes that, in contrast to cases such as Sanocki v. Poland, no. 28949/03, § 5, 17 July 2007 or Janowski v. Poland [GC], no. 25716/94, § 14, ECHR 1999‑I, the statements made by the applicant did not contain any offensive statements ad personam. 45.", "As regards the reasons given by the domestic courts, the Court welcomes the second-instance court’s judgment which found that most of the applicant’s statements had fallen within the limits of permissible criticism and that the applicant, as a representative of the local community acting in their interest, had had the right to ask critical questions relating to the way public money was spent by the Municipal Board. The Court is also satisfied that the party who felt offended had recourse to means of civil law which, in the Court’s view, are appropriate in cases of defamation. 46. Lastly, the Court reiterates that the nature and severity of the penalty imposed are factors to be taken into account when assessing the proportionality of the interference (see, for example, Sürek v. Turkey (no. 1) [GC], cited above, § 64, and Chauvy and Others v. France, no.", "64915/01, § 78, ECHR 2004-VI). In the present case the sanction imposed on the applicant was relatively light (see paragraph 17 above). 47. The Court observes, however, that neither the first-instance nor the appellate courts took into account the fact that the members of the Municipal Board, being politicians, should have shown a greater degree of tolerance in face of criticism. Accordingly, the Court finds that the domestic authorities failed to take into consideration the crucial importance of free political debate in a democratic society.", "Thus, the national authorities cannot be considered as having applied the standards embodied in Article 10 of the Convention and the Court’s case-law. 48. Taking into account the above considerations the Court finds that the domestic courts overstepped the narrow margin of appreciation afforded to member States, and that there was no reasonable relationship of proportionality between the measures applied by them and the legitimate aim pursued. 49. The authorities therefore failed to strike a fair balance between the relevant interests of, on the one hand, the protection of politicians’ rights and, on the other, an elected representative’s right to freedom of expression in exercising this freedom where issues of public interest are concerned.", "50. In those circumstances the Court finds that the interference with the applicant’s exercise of his freedom of expression was not “necessary in a democratic society” within the meaning of paragraph 2 of Article 10 of the Convention. 51. There has therefore been a violation of Article 10 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 52. The applicant also alleged a breach of Article 13 in that the Supreme Court had refused to entertain his cassation appeal. 53. The Court has already found that the provisions of the Code of Civil Procedure which allow the highest domestic court to refuse the examination of unmeritorious cassation appeals or cassation appeals in which no serious issue of law arises are not incompatible with the general obligation to secure an effective remedy under Article 13 of the Convention (see, for example, (see Zmaliński v. Poland, (dec.) no. 52039/99, 16 October 2001).", "54. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 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 100,000 euros (EUR) in respect of non‑pecuniary damage. 57. The Government considered this claim exorbitant and requested that it be rejected. 58.", "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 1,000 in respect of non‑pecuniary damage. B. Costs and expenses 59. The applicant, who was represented by a lawyer, also claimed 38,984.56 Polish zlotys (PLN) in respect of costs and expenses, including PLN 4,200 for costs of legal representation before the Court.", "He produced two copies of bills from which it emerges that he paid his lawyer PLN 400. 60. The Government likewise considered these claims exorbitant and requested that they be rejected. 61. 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 1,000 for the proceedings before the Court. C. Default interest 62. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 10 of the Convention admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 10 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months 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 Polish zlotys at the rate applicable on the date of settlement: (i) EUR 1,000 (one thousand euros) in respect of non-pecuniary damage plus any tax that may be chargeable; (ii) EUR 1,000 (one thousand euros) in respect of costs and expenses plus any tax that may be chargeable to the applicant; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 2 February 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıNicolas Bratza Deputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF ZOKHIDOV v. RUSSIA (Application no. 67286/10) JUDGMENT STRASBOURG 5 February 2013 FINAL 08/07/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Zokhidov 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 André Wampach, Deputy Section Registrar, Having deliberated in private on 15 January 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "67286/10) 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 an Uzbek national, Mr Rustam Zokhidov (“the applicant”), on 19 November 2010. 2. The applicant was represented by Ms Y. Korneva, a lawyer practising in St Petersburg. 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 he was extradited to Uzbekistan he would run a risk of being subjected to ill-treatment, and that he had not been afforded effective remedies in respect of that grievance; that his detention pending extradition had been unlawful; that he had not been promptly informed of the reasons for his detention; and that there had been no effective and speedy judicial review of his detention. 4. On 19 November 2010 the President of the First Section indicated to the respondent Government that the applicant should not be extradited to Uzbekistan until further notice (Rule 39 of the Rules of Court). On the same date the application was granted priority under Rule 41 of the Rules of Court. 5.", "On 17 March 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 6. In March and August 2012 the parties submitted further written observations at the request of the President of the Chamber (Rule 54 § 2 (c) of the Rules of Court). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1972 and is currently serving a term of imprisonment in Uzbekistan. A. The background to the case and the applicant’s arrival in Russia 8. In 1999-2000 the applicant started studying Islam and attending a mosque in the town of Urgut, Uzbekistan.", "9. On an unspecified date in 2000 a local police officer summoned the applicant to the police station and questioned him extensively on his reasons for attending the mosque. The police officer entered the applicant’s name in a special book. After the conversation, the applicant stopped going to the mosque as he was afraid. 10.", "On an unspecified date in 2005 the applicant arrived in Russia to look for work. He settled in St Petersburg, where his wife and minor daughter joined him in 2006. According to the applicant, in St Petersburg he lived in a community of Uzbek migrants, taking up temporary jobs such as street cleaner, and so his command of Russian remained poor. B. Criminal proceedings against the applicant in Uzbekistan 11.", "On 7 May 2010 an investigator of the Urgut branch of the National Security Service (“the Urgut NSS”) instituted criminal proceedings against the applicant in connection with his presumed participation in Hizb ut‑Tahrir (“HT”), a religious organisation recognised as extremist and banned in Uzbekistan (Article 159 § 1 of the Uzbek Criminal Code (“the UCC”)). The applicant was suspected of having participated, in the period between 2001 and 2005, in the above-mentioned organisation by creating secret cells for it at the place of his residence and organising the meetings of its members with a view to creating an “Islamic Caliphate”. 12. On 21 May 2010 the Samarkand department of the National Security Service (“the Samarkand NSS”) charged the applicant, in connection with his presumed membership of HT, with public appeals to overthrow the constitutional order of Uzbekistan committed as part of an organised group (Article 159 § 3 (a) of the UCC), preparation and dissemination of extremist materials constituting a threat to national security and public order (Article 244 § 3 of the UCC) and participation in an extremist organisation (Article 244 § 1 of the UCC). The decision stated, among other things, that, after joining HT, the applicant had recruited new members for the organisation, had organised meetings for them, at which he had called for the seizure of State power, and had stored and disseminated the organisation’s extremist materials.", "13. On 21 May 2010 the Samarkand City Court ordered the applicant’s placement in custody. On the same day the applicant’s name was put on a wanted list. C. Proceedings concerning the applicant’s detention with a view to extradition 14. On 14 July 2010 the applicant was arrested in St Petersburg.", "His arrest record of the same date stated that he had been arrested in accordance with the Minsk Convention as a person who was on an international wanted list. The arrest record contained the following pre-typed statement, signed by the applicant: “I have been informed of the receipt of the competent foreign authority’s notification that they are sending an extradition request, a detention [order] or a final judgment convicting [me] (to be filled in if the documents mentioned have been received at the time of the compilation of the record)”. 15. The arrest record also contained the following statement, signed by the applicant: ”Concerning [his] arrest [the applicant] stated: as to the reasons why [I am] being sought in the territory of the Republic of Uzbekistan [I] don’t know anything”. 16.", "On 15 July 2010 the applicant was interviewed by the acting prosecutor of the Frunzenskiy District of St Petersburg (“the district prosecutor”). Following the interview, the district prosecutor compiled two documents entitled “express interview record of a person arrested under an international warrant” (лист экспресс-опроса задержанного по межгосударственному розыску) and an “explanation” (объяснение). Both documents were signed by the applicant. 17. The interview record contained pre-typed fields, with information to be filled in, such as the applicant’s name, date and place of birth, data concerning his identity documents, the authority which had arrested him in Russia, and whether he had applied for political asylum or was in possession of information relating to State secrets.", "The document did not contain any description of the charges in connection with which the applicant was wanted; it only referred to the Articles of the UCC, as follows: “... 8. Date of initiation of search, Article: 01.06.2010, circular 2010/316, Article 159 § 3 (a), Article 244-I § 3 (a), Article 244-2 of the Criminal Code of Uzbekistan. ... 16. Statement of the detained, which State he considers himself to be a national of, his account of the reasons for his criminal prosecution: [the applicant] considers himself a citizen of Uzbekistan, he learnt that he is being sought by the Uzbek law‑enforcement authorities at the time of his arrest.” 18. The “explanation” of 15 July 2010 started with the pre-typed statement: “I have a good command of Russian and do not need the services of an interpreter”, signed by the applicant.", "It continued with the information that the applicant had arrived in Russia in 2005 to work, had not previously applied for registration or asylum and that he had learnt that he was wanted by the Uzbek authorities at the time of his arrest on 14 July 2010. The explanation did not contain any reference to the charges on which the applicant was wanted. 19. On 15 July 2010 the district prosecutor ordered the applicant’s placement in custody with reference to Article 61 of the Minsk Convention. The decision stated that the applicant was wanted by the Uzbek authorities “for having committed crimes under Articles 159 § 3 (a), 244-I § 3 (a), and 244-2 of the Uzbekistan Criminal Code”, without providing any further information in that regard.", "It further noted that on 14 July 2010 the Uzbek authorities had confirmed their intention to request the applicant’s extradition and had forwarded the Samarkand City Court’s detention order in respect of the applicant. No time-limits for the applicant’s detention were set in the decision and the applicant was not provided with a copy of it. 20. On 16 August 2010 the Russian General Prosecutor’s Office (“the Russian GPO”) received the request by their Uzbek counterpart for the applicant’s extradition (see paragraph 33 below). 21.", "On 18 August 2010 the applicant appointed a lawyer, Mrs K., to represent him in the domestic proceedings, and it appears that she had access to him on the same date. 22. On 24 August 2010 the district prosecutor again ordered the applicant’s detention. He referred to the extradition request received from the Uzbek authorities, and the Uzbek court’s detention order and relied on Article 466 § 2 of the Russian Code of Criminal Procedure (“the CCrP”). The applicant was not provided with a copy of that decision.", "23. On 15 September 2010 the applicant, through his lawyer, complained to the Frunzenskiy District Court of St Petersburg (“the District Court”) under Article 125 of the CCrP that his detention was unlawful, and requested to be released. He submitted that he had a poor command of Russian, except for some basic communication, that he had not been explained, in a language he understood, the reasons for his arrest and placement in custody and accusations against him, and that he had signed the arrest and interview records, as well as the “explanation”, without understanding their meaning, under stress, and on the instructions of the prosecutor, who had allegedly told him that they would “just talk” and that he then would invite an interpreter for him. The applicant further complained that the detention orders of 15 July and 24 August had been unlawful. As regards the former, it had not set any time-limits for the detention and referred only to Article 61 of the Minsk Convention.", "The applicant had not been provided with a copy of that detention order or a translation of it into Uzbek. The second decision had ordered the applicant’s detention de novo, without setting any time-limits for it, which contradicted decision no. 101-O of the Constitutional Court. None of the detention orders set out the procedure for challenging them before the courts. 24.", "On 15 September 2010 the district prosecutor requested the District Court to extend the applicant’s detention until 15 January 2011. On the same date the applicant’s lawyer requested the District Court to secure, before examining the extension request, the translation into Uzbek of the documents concerning the applicant’s detention and extradition, including the detention orders of 15 July and 24 August 2010 and the documents concerning his criminal prosecution in Uzbekistan and the Uzbek court’s detention order, and to give him time to acquaint himself with those documents. It appears that her request was turned down. 25. By a decision of 15 September 2010 the District Court granted the prosecutor’s request and extended the applicant’s detention until 15 January 2011.", "It can be seen from the decision and the hearing record that an interpreter for the applicant participated in the hearing. As regards the applicant’s argument that he had not been made aware of the reasons for his arrest and detention, the District Court noted that in his explanation of 15 July 2010 the applicant had stated that he did not need the services of an interpreter. 26. On 17 September 2010 the District Court returned to the applicant’s lawyer her complaint of 15 September 2010 on the ground that she had failed to enclose a representation mandate (ордер). She appealed against the decision of 17 September 2010 and on 26 October 2010 the District Court informed her that her appeal would be examined by the St Petersburg City Court (“the City Court”) and that she would be advised of the hearing date by that court.", "27. On 18 September 2010 the applicant’s lawyer appealed against the detention order of 15 September 2010 to the City Court and on 18 October 2010 the District Court received an additional appeal statement from her. In those appeal statements the applicant’s lawyer reiterated that the authorities had failed to inform her client of the reasons for his arrest and the charges against him, as had been stated in her complaint under Article 125 of the CCrP of 15 September 2010. She also stressed that the applicant’s poor command of Russian had been recognised by the District Court, which had considered it necessary to secure an interpreter’s presence at the hearing of 15 September 2010. 28.", "On 10 November 2010 the City Court set aside the decision of 15 September 2010. The case was examined with the participation of an interpreter for the applicant. The court found that at the time of his arrest on 14 July 2010 the applicant had not been advised of his right to an interpreter and a lawyer. Moreover, the District Court had recognised at the hearing of 15 September 2010 that the applicant’s command of Russian was poor and had appointed an interpreter for him. By dismissing, without sufficient reasons, the applicant’s request to have access to the case-file materials with the participation of an interpreter, the District Court had breached his right to state his case in court.", "By the same decision the court extended the applicant’s detention until 30 November 2010. 29. On 22 November 2010 the District Court extended the applicant’s detention until 15 January 2011. The case was examined in the presence of an interpreter. 30.", "On 9 December 2010 the applicant retracted his appeal against the decision of 17 September 2010, considering that it was devoid of purpose and could not lead to his release because on 22 November 2010 the District Court had already authorised his detention until 15 January 2011. 31. On 12 January 2011 the City Court upheld the decision of 22 November 2010 on appeal and on 14 January 2011 the District Court extended the applicant’s detention until 15 April 2011. 32. On 14 April 2011 the St Petersburg City Court ordered the applicant’s release from custody owing to the fact that it had set aside the decision to extradite the applicant to Uzbekistan (see below).", "D. Extradition proceedings 33. On 16 August 2010 the Russian GPO received their Uzbek counterpart’s request for the applicant’s extradition. The document also stated, among other things, that without Russia’s consent the applicant would not be extradited to a third-party State, or be prosecuted or punished for offences committed before extradition and not mentioned in the extradition request, and that he would be free to leave Uzbekistan after serving his sentence. The request further stated that he would be provided with medical assistance, if necessary, and secured the right to a fair trial, and that his criminal prosecution was not discriminatory. Lastly, the document mentioned that the Uzbek legislation prohibited torture and inhuman and degrading treatment and that Uzbekistan had abolished the death penalty.", "34. On 5 September 2010 the applicant’s lawyer, K., informed the prosecuting authorities that she was representing the applicant in the extradition proceedings and requested to be informed if any decisions concerning the applicant’s extradition had been taken. 35. On 9 September 2010 a deputy Prosecutor General decided to extradite the applicant to Uzbekistan. The prosecutor’s decision enumerated the charges against the applicant and stated that his actions were punishable under Russian criminal law.", "The extradition order was granted in respect of actions aimed at the overthrow of the constitutional order, public appeals inciting extremist activities and participation in an organisation banned by a court decision owing to its extremist activities, which were proscribed by Russian criminal law. Lastly, it noted that no reasons had been established which precluded the applicant’s extradition to Uzbekistan. In the applicant’s submission, he was not informed of that decision. 36. On 30 September 2010 the applicant’s lawyer renewed her request to the Russian GPO to be informed whether any decisions had been issued in respect of her client in the extradition proceedings.", "37. On 15 October 2010 the Russian GPO informed K. that on 9 September 2010 it had decided to extradite the applicant to Uzbekistan and that since the latter had not made use of his right to challenge it in the courts, the order had become final. However, his extradition had been stayed owing to his application for asylum lodged on 1 October 2010 (see below). 38. On 18 October 2010 the applicant complained about the extradition order before the St Petersburg City Court, submitting that neither he himself nor his lawyer had been furnished with a copy of the extradition order, and requesting that the time-limits for appealing against it be reinstated.", "With reference to reports by UN bodies, NGOs such as Human Rights Watch, and the judgments of the European Court in the cases of Ismoilov, Muminov, Yuldashev and Karimov v. Russia he argued that he ran a real risk of being exposed to ill-treatment in case of his extradition to Uzbekistan. He also argued that the legal classification of his acts by the Russian GPO under the Russian criminal law had been incorrect and that the limitation period for his criminal prosecution had expired. 39. On 19 November 2010 the President of the First Section granted the applicant’s request for an interim measure and indicated to the Russian Government under Rule 39 of the Rules of Court that they should not extradite the applicant to Uzbekistan until further notice. The Court’s letter of the same date, addressed to both parties, in so far as relevant, reads as follows: “On 19 November 2010 the President of the Section to which the case has been allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to your Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited to Uzbekistan until further notice.", "The parties’ attention is drawn to the fact that failure of a Contracting State to comply with a measure indicated under Rule 39 may entail a breach of Article 34 of the Convention. In this connection, reference is made to paragraphs 128 and 129 of the Grand Chamber judgment of 4 February 2005 in the case of Mamatkulov and Askarov v. Turkey (applications nos. 46827/99 and 46951/99) as well as point 5 of the operative part.” 40. On 26 November 2010 the City Court dismissed the applicant’s complaint against the extradition order. As regards the risk of ill-treatment, the court considered that the applicant’s reference to reports from various international actors, as well as judgments of the European Court which had not become final, was not indicative of the existence of such a risk for the applicant personally, and that his submissions in that regard were speculative and “not objectively confirmed”.", "It also noted that in issuing the decision to extradite the applicant the Russian GPO had taken into account their Uzbek counterpart’s assurances that he would not be subjected to treatment in breach of Article 3. 41. The applicant appealed against the decision, reiterating that, as a person accused of participation in a proscribed religious and extremist organisation and of crimes against State security, he ran an increased risk of ill-treatment and torture in case of his extradition. In this connection, he relied on reports from various international organisations, which specifically pointed out that individuals accused of membership of HT were particularly exposed to a risk of torture. He also referred to the case-law of the European Court mentioned in his previous complaint to the City Court.", "He further asserted that the assurances provided by the Uzbek authorities were unreliable and insufficient, and averred that the Russian GPO had given an incorrect legal classification of the offences imputed to him by the Uzbek authorities under the Russian criminal law, and that his criminal prosecution had become time-barred under Russian law. 42. On 28 February 2011 the Supreme Court of the Russian Federation (“the Supreme Court”) set aside the decision of 26 November 2011 and instructed the first-instance court to verify the applicant’s allegations concerning the legal classification of his acts under the Russian criminal law and the expiry of the limitation periods for his criminal prosecution. 43. On 14 April 2011 the City Court set aside the extradition order in respect of the applicant, finding that the Russian GPO’s legal classification of his acts under the Russian criminal law was incorrect and that his criminal prosecution had become time-barred.", "By the same decision it ordered the applicant’s release. 44. On 8 June 2011 the Supreme Court dismissed an appeal by the Russian GPO against the decision of 14 April 2011, endorsing the reasoning of the City Court. The Supreme Court also noted that in taking its decision it had taken into account the conclusions of the European Court made in a number of similar cases to the effect that ill-treatment of detainees in Uzbekistan constituted a serious problem and that the guarantees of the Uzbek authorities were not sufficient to dispel the risk of such treatment. E. Asylum proceedings 45.", "On 1 October 2010 the applicant filed an application for asylum with the St Petersburg branch of the Federal Migration Service (“the FMS”). 46. By a telegram of 4 October 2010 the applicant’s lawyer informed the Russian GPO that her client had lodged an asylum application. 47. On 11 November 2010 an official of the St Petersburg branch of the FMS interviewed the applicant in connection with his asylum application.", "In the applicant’s submission, he informed the official that he was persecuted in his home country on account of his religious beliefs. 48. On 17 November 2010 the St Petersburg branch of the FMS notified the applicant that on 16 November 2010 it had discontinued its examination of his asylum application with reference to Article 2 § 1 of the Refugees Act (commission by the asylum seeker of serious non-political crimes in his home country). 49. On 19 November 2010 the applicant appealed to the FMS against the refusal to examine his application for asylum on the merits.", "Relying on reports by various international organisations, he submitted that, as a person accused of membership of HT, he belonged to an identifiable group in respect of which credible sources had reported an increased risk of ill‑treatment by the Uzbek authorities. He also referred to the European Court’s findings in the Muminov case and other judgments concerning the extradition or expulsion to Uzbekistan of presumed members of HT. He therefore claimed that he was persecuted by the Uzbek authorities on account of the political and religious opinions imputed to him and stressed that the interviewing officer had limited his questioning to the circumstances of his arrival in Russia and questions as to whether he had a valid registration or a work permit, and had disregarded his submission that he had become a refugee sur place because he had become aware of his criminal prosecution in Uzbekistan only after his arrest and detention in Russia. 50. By a telegram of 19 November 2010 the applicant’s lawyer notified the Russian GPO that her client had lodged an appeal against the refusal to consider his application for asylum.", "51. On 12 January 2011 the applicant’s lawyer supplemented her client’s complaint to the FMS of 19 November 2010 with further extensive references to reports by the UN Committee against Torture, Human Rights Watch and Amnesty International, and information from the Russian Ministry of the Foreign Affairs. She also extensively cited the judgments of the European Court in the cases of Muminov, Ismailov and Others, Yuldashev, Abdulazhon Isakov and Karimov v. Russia. 52. On 18 February 2011 the FMS set aside the decision of 16 November 2010 and informed the applicant that his request for asylum would be examined on the merits.", "53. On 17 March 2011 the St Petersburg branch of the FMS dismissed the applicant’s request for refugee status. It reasoned that he had applied for asylum only two and a half months after his arrest with a view to extradition and that he had breached the residence regulations and submitted false information in that regard, which indicated that the charges levelled against him in Uzbekistan were not without foundation. Moreover, he was wanted by the Uzbek authorities on suspicion of participation in HT, which had been banned as an extremist organisation by the Russian Supreme Court. The decision did not mention the applicant’s arguments concerning the risk of ill-treatment.", "54. The applicant had access to a copy of that decision on 8 June 2011, following which he challenged it before the FMS. In his complaint the applicant reiterated his arguments concerning the risk of ill-treatment, with reference to materials stemming from international governmental and non‑governmental organisations and the judgments of the European Court. In particular, he stressed that he was wanted by the Uzbek authorities on account of imputed political and religious beliefs and extremist activities and thus belonged to an identifiable group particularly targeted by the authorities and ran an increased risk of ill-treatment. He also submitted that he had left Uzbekistan in 2005 of his own free will to look for a job and had at that time not been aware of his criminal prosecution, which had been initiated only in 2010.", "The applicant stressed that he had become aware of the substance of the accusations against him only on 29 September 2010, when some of the documents concerning the charges against him had been translated into Uzbek, and that immediately after that he had applied for refugee status. 55. In the applicant’s submission, for the duration of the examination of his appeal against the decision of 17 March 2011 the St Petersburg branch of the FMS had issued him with a residence registration [свидетельство о регистрации] attesting to the lawfulness of his stay in Russia. The registration address given in the document was that of the St Petersburg branch of the FMS. That address had been used in the notarially certified authority form the applicant issued for his lawyer, K. 56.", "On 15 July 2011 the FMS dismissed the applicant’s complaint about the decision of 17 March 2011. It noted that, according to information from the Russian Ministry of Foreign Affairs, the human rights situation in Uzbekistan was “ambiguous”. Whilst the country had ratified all major UN instruments, in 2000-2001 the Uzbek authorities had arrested hundreds of followers of HT on suspicion of their participation in several explosions in Tashkent. Moreover, the Uzbek authorities considered that members of HT had actively participated in the Andijan events of 2005. It further cited the Ministry as stating that “with a view to securing internal stability the leadership of Uzbekistan is conducting a strict policy of control over attitudes and mind frames in all segments of Uzbek society, and of suppression of all terrorist and fundamentalist religious threats, backed up by the security forces and the judicial system”.", "The FMS went on to note that it endorsed the findings of its regional branch as to the absence of any circumstances indicating that the applicant would be unlawfully persecuted in Uzbekistan and pointed out that he had resided unlawfully in Russia after his arrival because his registration and work permits had been forged. The decision was silent on the applicant’s arguments concerning the risk of ill‑treatment in case of his return to his home country. 57. On 9 August 2011 officials of the St Petersburg branch of the FMS seized the applicant’s residence registration document. On the same date the applicant requested them to issue him with a residence registration for the address at which he actually resided in St Petersburg, submitting that he would challenge the refusals to grant him asylum in the courts and that he would need the impugned document in order to do so.", "According to the applicant, his request received no reply. On the same date he complained about the refusals of the migration authorities to grant him asylum (decisions of 17 March and 15 July 2011) to the Frunzenskiy District Court of St Petersburg, giving his actual address of residence. 58. On 24 August 2011 the Frunzenskiy District Court refused to entertain the applicant’s complaint on the ground that the address given in his lawyer’s authority form and that indicated by the applicant differed and that the applicant had failed to prove that he was registered at the actual address indicated by him. 59.", "On 10 September 2011 the applicant complained about the decisions refusing to grant him asylum to the Dzerzhinskiy District Court of St Petersburg (“the Dzerzhinskiy District Court“). He reiterated the arguments he had raised before the migration authorities, including his submissions concerning the risk of ill-treatment, and averred that both migration authorities in dismissing his asylum application had disregarded his detailed submissions on that matter, supported with references to European Court judgments and materials from international organisations. 60. On 25 November 2011 the Dzerzhinskiy District Court dismissed the applicant’s complaint. It noted that, according to Article 10 § 3 of the Refugees Act, an asylum seeker was to lodge a complaint about a migration authority’s decision (a) within one month of receiving written notification of such decision, or within a month of having lodged a complaint, should he receive no written reply to it, or (b) within three months of learning of the refusal to grant him asylum.", "As regards the decision of 17 March 2011, the court found that the applicant had received written notification of it on 21 March 2011 and had obtained a copy of the decision not later than 8 June 2011, whilst he had lodged his complaint with the court on 10 September 2011. Accordingly, he had missed the time-limits for challenging the impugned decision before a court. Moreover, the applicant had made use of his right to challenge the decision of 17 March 2011 before the FMS. As to the decision of the FMS dated 15 July 2011, the Dzerzhinskiy District Court refused to examine the applicant’s complaint in that part on the ground that he had no valid registration in St Petersburg and that he had, accordingly, to lodge his complaint with the court having territorial jurisdiction over the FMS, which was located in Moscow. 61.", "On 5 December 2011 the applicant appealed against the District Court’s decision to the St Petersburg City Court. He furnished the Court with a copy of his appeal statement and a certificate of posting showing that it was despatched to the City Court on that date. F. The applicant’s deportation to Uzbekistan 1. The applicant’s account 62. At 7 a.m. on 21 December 2011 several individuals who introduced themselves as police officers and officials of the St Petersburg branch of the FMS burst into the flat occupied by the applicant and his family on the pretext of an identity check.", "The applicant immediately called his lawyer, K., and switched his mobile to conference call mode so as to enable her to participate in the conversation. The applicant and K. informed the intruders that proceedings concerning his application for refugee status were pending before the appellate court and the applicant showed them a stamped copy of his appeal statement. They also informed them that he could not be returned to Uzbekistan because the Court had applied Rule 39 in his case, which was pending before it. The applicant showed the officers a copy of the Court’s letter. The applicant’s lawyer also informed the officers that she was on her way to the flat, but at that moment the connection was cut.", "Despite these explanations, the applicant was handcuffed, placed in a car and taken to an unknown destination. His relatives were not allowed to follow him. 63. Upon the applicant’s lawyer’s advice, the applicant’s wife and brother immediately went to search for the applicant at several police stations and the FMS premises in the Frunzenskiy District of St Petersburg, and K. herself contacted the St Petersburg immigration detention centres but their attempts produced no results. K. also informed the head of the foundation “Right to Asylum”, Ms E.Z., and the local office of the United Nations High Commissioner for Refugees about the applicant’s disappearance.", "64. At about 3 p.m. on the same day, the applicant’s wife informed K. that the applicant had called her from a third person’s mobile phone and had told her that he was at the premises of the St Petersburg branch of FMS, following which the phone had been taken from him and switched off and she had been unable to reach him. At about 3.10 p.m. K. called the department for refugees and forced migrants of the St Petersburg branch of the FMS, informed them of the applicant’s situation and stressed that she was looking for him. Her interlocutor, who introduced himself as E.Sh., replied that he had no information regarding the applicant, the reasons for his arrest or his whereabouts. 65.", "At about 8 p.m. K. and the applicant’s wife complained to the investigation department of the Frunzenskiy District of St Petersburg about the applicant’s disappearance but the latter authority refused to follow up on their complaint. 66. At about 8.40 p.m. on the same day, K. was informed that a man who was unknown to the applicant’s family had recently contacted the applicant’s relatives and told them that the applicant was at Pulkovo airport and that he would be soon put on a plane to Samarkand, Uzbekistan. The man stated that the applicant had asked him to call his relatives because the applicant “was being guarded by two Interpol officers” who would not allow him to make any phone calls. K. conveyed that information to Ms E.Z.", "and the office of the United Nations High Commissioner for Refugees and called the duty unit of the North-Western transport prosecutor’s office, which was responsible for Pulkovo airport, where she spoke to officer A.A. She informed him of the applicant’s situation and requested him to take urgent steps to prevent her client’s unlawful transfer to Uzbekistan. A.A. promised her that he would report the situation to his superiors. 67. At about 9.30 p.m. K. was informed that the applicant had called his relatives from an unknown mobile number and had swiftly told them that he was on the plane, where he had been requested to sign some papers but had refused, and that before his transfer to the airport he had been held at the premises of the department for refugees and forced migrants of the St Petersburg branch of the FMS. The connection had suddenly been cut.", "68. According to a written statement by Ms E.Z., between 8.40 p.m. and 8.50 p.m. on 21 December 2011 K. informed her that the applicant had been taken to Pulkovo airport to be transferred to Uzbekistan. Ms E.Z. then immediately conveyed that information to Ms T.K., head of the criminal law department of the Office of the Representative of the Russian Federation at the European Court of Human Rights, and requested the latter to take urgent measures to prevent the applicant’s transfer. At about 9.40 p.m. T.K.", "informed Ms E.Z. that she had taken all possible steps to notify the competent authorities, including the Russian GPO, with a view to preventing the applicant’s forced transfer; however, she was not sure, given the late hour, whether this would produce any results. Meanwhile, Ms E.Z. informed the Office of the Ombudsman of Russia of the risk of the applicant’s forced transfer to Uzbekistan. At 10 p.m. Ms E.Z.", "contacted the transport prosecutor’s office responsible for Pulkovo airport. The on-duty officer, Mr A.A., confirmed to Ms E.Z. that the applicant’s lawyer K. had already informed him about the risk of the applicant’s forced transfer to Uzbekistan. In reply to Ms E.Z.’s request that urgent steps be taken to prevent the transfer, he informed her that he had sent an officer to verify whether the applicant had been checked in for the flight, to which Ms E.Z. immediately replied that the applicant must already be on the plane and that his unlawful transfer to Uzbekistan would be in breach of the international obligations of the Russian Federation.", "However, instead of taking any steps, A.A. started asking her various questions, such as whether the applicant had bought a ticket for the flight, whether a criminal case had been opened into his abduction, and so on. In her statement Ms E.Z. further submitted that immediately after her call A.A. was contacted by the Office of the Ombudsman of Russia, whose officials yet again explained to him the legal consequences of the applicant’s transfer to Uzbekistan. At 10.40 p.m. Ms E.Z. again contacted A.A. to ask him whether the applicant had been taken off the flight, to which A.A. replied in the negative.", "He further told her that the applicant’s name was not among the persons who had bought tickets for the flight or those who had been checked in for it and that no check had been conducted inside the plane because the airstairs had already been removed from it. A.A. disregarded Ms E.Z.’s remarks that to search for the applicant in the list of checked-in passengers was useless because in several previous cases individuals, such as Mr Abdulkhakov and Mr Dzhurayev, had been unlawfully transferred from Russia without being formally checked in. 2. Information submitted by the Government 69. On 21 December 2011 the head of the St Petersburg branch of the FMS issued a decision on the applicant’s deportation with reference to Articles 10 § 5 and 13 § 2 of the Refugees Act.", "The decision stated that on 25 November 2011 the Dzerzhinskiy District Court had dismissed the applicant’s complaint about the migration authorities’ refusals to grant him asylum, that that decision had become final on 6 December 2011, and that there were no legal grounds for the applicant’s stay in Russia. 70. On 21 December 2011 officers of the FMS conducted a check at the applicant’s place of residence with a view to verifying whether he had left Russia. Having established that he had not, they took him to the premises of the St Petersburg branch of the FMS, where a decision concerning his deportation was served on him in the presence of an interpreter. In the Government’s submission, the applicant did not express the intention to challenge the deportation order against him.", "71. Subsequently the applicant was taken to Pulkovo airport, where he passed through passport control and the Federal Security Service (“the FSB”) officers “stamped his passport to prove that he had crossed the State border of the Russian Federation”. The applicant was conveyed to the plane and took flight no. FV-879 from St Petersburg to Samarkand, its departure time being 8 p.m. 72. The Government presented no documents in support of their submissions, except a copy of the deportation order.", "G. Events in Russia and Uzbekistan following the applicant’s deportation 73. On 22 December 2011 the applicant’s lawyer, K., learnt that after the applicant’s plane had landed in Samarkand, Uzbekistan, he had immediately been brought to the Samarkand Department of the Ministry of the Interior and taken from there to Tashkent by officers of the National Security Service. 74. Subsequently, K. complained about the applicant’s transfer to Uzbekistan to the Russian GPO and the investigation department of the Frunzenskiy District of St Petersburg. 75.", "On 10 February 2012 the Russian GPO replied to K. that by a final decision of 8 June 2011 the Supreme Court had set aside the extradition order in respect of the applicant. On 19 August 2011 the Russian GPO had informed their Uzbek counterpart that they could not extradite the applicant. According to the information available to the Russian GPO, on 21 December 2011 the head of the St Petersburg branch of the FMS had issued a deportation order in respect of the applicant and the latter had been deported on the same date. The St Petersburg prosecutor’s office was examining whether the deportation order had been well-founded. 76.", "In K.’s submission, after his transfer to Uzbekistan the applicant was held in detention and in April 2012 the Samarkand City Court convicted him of the offences for which his extradition had been sought and sentenced him to eight years’ imprisonment. The applicant was represented by a court‑appointed lawyer, his relatives were not admitted to the court hearings and he refused their help. Moreover, he informed them that their telephones were being tapped and they were being shadowed and told them that he had been “advised” to tell them to discontinue their communication with his lawyer in Russia “in order to avoid any problems”. At a short meeting with him, in the presence of the prison escort officers, the applicant’s wife noticed a bruise and an abrasion on the left side of his face. In her submission, he looked exhausted and told her that he had not been provided with a copy of the judgment convicting him, and that he had been “advised” not to appeal against it because otherwise he would obtain a longer imprisonment term and his relatives would have problems.", "The Uzbek authorities disregarded the applicant’s relatives’ requests to be provided with a copy of the trial judgment. All the lawyers they contacted in Uzbekistan with a view to securing legal assistance for the applicant refused to take up his case, saying that it was political and that becoming involved in the case could lead to their losing their lawyer’s licences. II. RELEVANT INTERNATIONAL AND DOMESTIC LAW AND PRACTICE A. Extradition proceedings 1.", "The Code of Criminal Procedure 77. Chapter 54 of the Code of Criminal Procedure (“CCrP”) of 2002 governs the procedure to be followed in the event of extradition. 78. An extradition decision made by the Prosecutor General may be challenged before a court (Article 463 § 1). In that case the extradition order should not be enforced until a final judgment is delivered (Article 462 § 6).", "79. A court is to review the lawfulness and validity of a decision to extradite within a month of receipt of a request for review. The decision should be taken in open court by a panel of three judges in the presence of a prosecutor, the person whose extradition is sought, and the latter’s legal counsel (Article 463 § 4). 80. Issues of guilt or innocence are not within the scope of judicial review, which is limited to an assessment of whether the extradition order was made in accordance with the procedure set out in the applicable international and domestic law (Article 463 § 6).", "81. Article 464 § 1 lists the conditions under which extradition cannot be authorised. Thus, the extradition of the following should be refused: a Russian citizen (Article 464 § 1 (1)) or a person who has been granted asylum in Russia (Article 464 § 1 (2)); a person in respect of whom a conviction has become effective or criminal proceedings have been terminated in Russia in connection with the same act for which he or she is being prosecuted in the requesting State (Article 464 § 1 (3)); a person in respect of whom criminal proceedings cannot be launched or a conviction cannot become effective in view of the expiry of the limitation period or on another valid ground in Russian law (Article 464 § 1 (4)); or a person in respect of whom extradition has been blocked by a Russian court in accordance with the legislation of the Russian Federation and international treaties (Article 464 § 1 (5)). Finally, extradition should be denied if the act that serves as the basis for the extradition request does not constitute a criminal offence under the Russian Criminal Code (Article 464 § 1 (6)). 82.", "Where a foreign national whose extradition is being sought is being prosecuted, or is serving a sentence, for another criminal offence in Russia, his extradition may be postponed until the prosecution is terminated, the penalty is lifted on any valid ground, or the sentence is served (Article 465 § 1). 2. Decisions of the Russian Supreme Court 83. In its ruling no. 11 of 14 June 2012, the Plenary Session of the Russian Supreme Court indicated, with reference to Article 3 of the Convention, that extradition should be refused if there were serious reasons to believe that the person might be subjected to torture, inhuman or degrading treatment in the requesting country.", "Extradition could also be refused if exceptional circumstances disclosed that it might entail a danger to the person’s life and health on account of, among other things, his or her age or physical condition. Russian authorities dealing with an extradition case should examine whether there were reasons to believe that the person concerned might be sentenced to the death penalty, subjected to ill‑treatment or persecuted because of his or her race, religious beliefs, nationality, ethnic or social origin or political opinions. The courts should assess both the general situation in the requesting country and the personal circumstances of the person whose extradition was sought. They should take into account the testimony of the person concerned and that of any witnesses, any assurances given by the requesting country, and information about the country provided by the Ministry of Foreign Affairs, by competent institutions of the United Nations, and by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. B.", "Detention pending extradition and judicial review of detention 1. The Russian Constitution 84. 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.” 85. Article 46 of the Constitution provides, among other things, that everyone should be guaranteed judicial protection of his or her rights and freedoms, and stipulates that decisions, actions or inaction on the part of State bodies, local self-government authorities, public associations and officials may be challenged before a court. 2. The 1993 Minsk Convention 86.", "The CIS Convention on legal assistance and legal relations in civil, family and criminal cases (“the Minsk Convention”), to which both Russia and Uzbekistan are parties, provides that in executing a request for legal assistance, the requested party applies its domestic law (Article 8 § 1). 87. A request for extradition must be accompanied by a detention order (Article 58 § 2). Upon receipt of a request for extradition, measures should be taken immediately to find and arrest the person whose extradition is sought, except in cases where that person cannot be extradited (Article 60). 88.", "A person whose extradition is sought may be arrested before receipt of a request for his or her extradition. In such cases a special request for arrest containing a reference to the detention order and indicating that a request for extradition will follow must be sent (Article 61 § 1). A person may also be arrested in the absence of such a request if there are reasons to suspect that he has committed, in the territory of the other Contracting Party, an offence for which extradition may be requested. The other Contracting Party must be immediately informed of the arrest (Article 61 § 2). 89.", "A person arrested pursuant to Article 61 must be released if no request for extradition is received within forty days of the arrest (Article 62 § 1). 3. The Code of Criminal Procedure 90. Article 1 § 3 of the CCrP provides that general principles and norms of international law and international treaties to which the Russian Federation is a party are a constituent part of its legislation concerning criminal proceedings. Should an international treaty provide for rules other than those established in the CCrP, the former are to be applied.", "91. The term “court” is defined by the CCrP as “any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by this Code” (Article 5 § 48). The term “judge” is defined by the CCrP as “an official empowered to administer justice” (Article 5 § 54). 92. Chapter 13 of the CCrP (“Preventive Measures”) governs the use of preventive measures (меры пресечения) while criminal proceedings are pending.", "Such measures include placement in custody. Custody may be ordered by a court on an application by an investigator or a prosecutor if a person is charged with an offence carrying a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be used (Article 108 §§ 1 and 3). An initial period of detention pending investigation may not exceed two months (Article 109 § 1). A judge may extend that period up to six months (Article 109 § 2). Further extensions of up to twelve months, or in exceptional circumstances, up to eighteen months, may only be granted 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 then be released immediately (Article 109 § 4). If the grounds serving as the basis for a preventive measure have changed, the preventive measure must be cancelled or amended. A decision to cancel or amend a preventive measure may be taken by an investigator, a prosecutor or a court (Article 110). 93. Chapter 16 (“Complaints about acts and decisions by courts and officials involved in criminal proceedings”) provides for the judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of adversely affecting the constitutional rights or freedoms of the parties to criminal proceedings (Article 125 § 1).", "The competent court is the court with territorial jurisdiction over the location at which the preliminary investigation is conducted (ibid.). Following the examination of the complaint, a judge can issue a decision to declare the challenged act, inaction or decision of the law-enforcement authority unlawful or unjustified and to instruct that authority to rectify the indicated shortcoming or to dismiss the complaint (Article 125 § 5). 94. Chapter 54 (“Extradition of a person for criminal prosecution or execution of sentence”) regulates extradition procedures. Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, a prosecutor must decide on the preventive measure to be applied to the person whose extradition is sought.", "The measure must be applied in accordance with established procedure (Article 466 § 1). If a request for extradition is accompanied by a detention order issued by a foreign court, a prosecutor may impose house arrest on the individual concerned or place him or her in detention “without seeking confirmation of the validity of that order from a Russian court” (Article 466 § 2). 4. Relevant case-law of the Constitutional and Supreme Courts of Russia 95. On 4 April 2006 the Constitutional Court examined an application by Mr N., who had submitted that the lack of any limitation in time on the detention of a person pending extradition was incompatible with the constitutional guarantee against arbitrary detention.", "In its decision no. 101‑O of the same date, the Constitutional Court declared the application inadmissible. In its view, the absence of any specific regulation of detention matters in Article 466 § 1 did not create a legal lacuna incompatible with the Constitution. Article 8 § 1 of the Minsk Convention provided that, in executing a request for legal assistance, the requested party was to apply its domestic law, which in the case of Russia was the procedure laid down in the CCrP. Such procedure comprised, in particular, Article 466 § 1 of the Code and the norms in its Chapter 13 (“Preventive Measures”), 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 the examination of extradition requests.", "Accordingly, Article 466 § 1 of the CCrP did not allow the authorities to apply a custodial measure without complying with the procedure established in the CCrP or the time-limits fixed in the Code. The Court also refused to analyse Article 466 § 2, finding that it had not been applied in Mr N.’s case. 96. On 1 March 2007 the Constitutional Court in its decision no. 333‑O‑P held that Articles 61 and 62 of the Minsk Convention, governing a person’s detention pending the receipt of an extradition request, did not determine the body or official competent to order such detention, the procedure to be followed, or any time-limits.", "Under Article 8 of the Minsk Convention, the applicable procedures and time-limits were to be established by domestic legal provisions. 97. The Constitutional Court further reiterated its settled case-law to the effect 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 could 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, in that it required a court to examine whether the arrest was lawful and justified.", "The Constitutional Court held that Article 466 § 1 of the CCrP, 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 and within the time-limits established in Chapter 13 of the CCrP. 98. On 19 March 2009 the Constitutional Court, by its decision no. 383‑O-O, dismissed as inadmissible a request for a review of the constitutionality of Article 466 § 2 of the CCrP, stating as follows: ”[This provision] does not establish time-limits for custodial detention and does not establish the grounds and procedure for choosing a preventive measure, it merely confirms a prosecutor’s power to execute a decision already delivered by a competent judicial body of a foreign state to detain an accused.", "Therefore the disputed norm cannot be considered to violate the constitutional rights of [the claimant] ...” 99. On 10 February 2009 the Plenary Session of the Russian Supreme Court adopted Directive Decision No. 1, aimed at clarifying the application of Article 125 of the CCrP. It stated that acts or inaction on the part of investigating and prosecuting authorities, including a prosecutor’s decision to hold a person under house arrest or to place him or her in custody with a view to extradition, could be appealed against to a court under Article 125 of the CCrP. The Plenary stressed that in declaring a specific decision, act or inaction on the part of a law enforcement authority unlawful or unjustified, a judge was not entitled to annul the impugned decision or to order the official responsible to revoke it or to carry out any specific acts, but could only instruct him or her to rectify the indicated shortcomings.", "Should the authority concerned fail to comply with the court’s instructions, an interested party could raise that matter before a court, which could issue a special decision [частное определение] drawing the authority’s attention to the situation. 100. On 29 October 2009 the Plenary Session of the Russian Supreme Court adopted Directive Decision No. 22, stating that, pursuant to Article 466 § 1 of the CCrP, only a court could order the placement in custody of a person in respect of whom an extradition check was pending when the authorities of the country requesting extradition had not submitted a court decision ordering his or her placement in custody. The judicial authorisation of the placement in custody in that situation was to be carried out in accordance with Article 108 of the CCrP and following a prosecutor’s request for that person to be placed in custody.", "In deciding to remand a person in custody, a court was to examine if there existed factual and legal grounds for applying that preventive measure. If the extradition request was accompanied by a detention order made by a foreign court, a prosecutor was entitled to place the person in custody without a Russian court’s authorisation (Article 466 § 2 of the CCrP) for a period not exceeding two months, and the prosecutor’s decision could be challenged in the courts under Article 125 of the CCrP. In extending a person’s detention with a view to extradition a court was to apply Article 109 of the CCrP. 101. In a recent ruling, no.", "11 of 14 June 2012, the Plenary Session of the Russian Supreme Court held that a person whose extradition was sought could be detained before the receipt of an extradition request only in cases specified in international treaties to which Russia was a party, such as the Minsk Convention. Such detention should be ordered and extended by a Russian court in accordance with the procedure, and within the time-limits, established by Articles 108 and 109 of the CCrP. The detention order should mention the term for which the detention or extension was ordered and the date of its expiry. If the request for extradition was not received within a month, or forty days if the requesting country was a party to the Minsk Convention, the person whose extradition was sought should be immediately released. C. Status of refugees 1.", "The 1951 Geneva Convention on the Status of Refugees 102. Article 33 of the UN Convention on the Status of Refugees of 1951, which was ratified by Russia on 2 February 1993, provides as follows: “1. No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.” 2.", "Refugees Act 103. The Refugees Act (Law no. 4258-I of 19 February 1993), as in force at the material time, incorporated the definition of the term “refugee” contained in Article 1 of the 1951 Geneva Convention, as amended by the 1967 Protocol relating to the Status of Refugees. The Act defines a refugee as a person who is not a Russian national and who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, ethnic origin, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, unwilling to return to it (section 1 § 1 (1)). 104.", "The Act does not apply to anyone believed on reasonable grounds to have committed a crime against peace, a war crime, a crime against humanity, or a serious non-political crime outside the country of refuge prior to his admission to that country as a person seeking refugee status (section 2 § 1 (1) and (2)). 105. A person who has applied for refugee status or who has been granted refugee status cannot be returned to a State where his life or freedom would be imperilled on account of his race, religion, nationality, membership of a particular social group or political opinion (section 10 § 1). 106. Decisions of the law-enforcement authorities taken in connection with the Refugees Act can be appealed against to a higher-ranking authority or a court (Article 10 § 2).", "The decision can be challenged within one month of receipt of a written notification of it or, in case of lack of a written reply, within one month after the complaint was lodged, and within three months after the asylum seeker has become aware of the refusal to grant him or her refugee status (Article 10 §§ 2 and 3). An individual who has been notified of the refusal to grant him or her asylum and who has made use of his or her right of appeal against the refusal, should there be no other legal grounds for him or her to remain, has to leave the territory of the Russian Federation within three working days of receipt of the notification of the decision dismissing his or her complaint (Article 10 § 5). An individual failing to comply with this requirement and refusing to leave Russian territory of his or her own free will is deported (expelled) from the territory together with the members of his or her family in accordance with the provisions of the Act, the relevant legislation and the international agreements to which the Russian Federation is a party (Article 13 § 2). III. INTERNATIONAL MATERIALS A.", "Reports on Uzbekistan by the UN institutions and NGOs 107. For relevant reports on Uzbekistan during the period between 2002 and 2007 and, in particular, on the situation of persons accused of membership of HT, see Muminov v. Russia, no. 42502/06, §§ 67‑72 and 73‑74, 11 December 2008. 108. Referring to the situation regarding torture in Uzbekistan, the report of the UN Special Rapporteur on Torture to the 3rd Session of the UN Human Rights Council on 18 September 2008 states as follows: “741.", "The Special Rapporteur ... stressed that he continued to receive serious allegations of torture by Uzbek law enforcement officials ... ... 744. In light of the foregoing, there is little evidence available, including from the Government, that would dispel or otherwise persuade the Special Rapporteur that the practice of torture has significantly improved since the visit which took place in 2002 ...” 109. In its 2010 report (CCPR/C/UZB/CO/3), the UN Human Rights Committee, stated, in so far as relevant: “11. The Committee notes with concern the continued reported occurrence of torture and ill-treatment, the limited number of convictions of those responsible, and the low sanctions generally imposed, including simple disciplinary measures, as well as indications that individuals responsible for such acts were amnestied and, in general, the inadequate or insufficient nature of investigations on torture/ill-treatment allegations. It is also concerned about reports on the use, by courts, of evidence obtained under coercion, despite the 2004 ruling of the Supreme Court on the inadmissibility of evidence obtained unlawfully ... ... 19.", "The Committee is concerned regarding the limitations and restrictions on freedom of religion and belief, including for members of non-registered religious groups. It is concerned about persistent reports on charges and imprisonment of such individuals. It is also concerned about the criminalization, under article 216-2 of the Criminal Code, of “conversion of believers from one religion to another (proselytism) and other missionary activities” (CCPR/C/UZB/3, para. 707). (art.", "18) ...” 110. In Amnesty International’s 2009 Report on Uzbekistan, published in May 2009, that organisation stated that it continued to receive persistent allegations of widespread torture and ill-treatment, from persons suspected of being members of banned Islamic groups or of having committed terrorist offences. The report stressed that the Uzbek authorities were continuing to actively seek extradition of those persons, particularly presumed members of HT, from the neighbouring countries, including Russia, and that most of those returned to Uzbekistan were held incommunicado, which increased their risk of being tortured or ill-treated. 111. On 1 May 2010 Amnesty International issued a document entitled “Uzbekistan: A Briefing on Current Human Rights Concerns”, stating the following: “Amnesty International believes that there has been a serious deterioration in the human rights situation in Uzbekistan since the so-called Andizhan events in May 2005.", "... Particularly worrying in the light of Uzbekistan’s stated efforts to address impunity and curtail the use of cruel, inhuman and degrading treatment have been the continuing persistent allegations of torture or other ill-treatment by law enforcement officials and prison guards, including reports of the rape of women in detention. ... Furthermore, Amnesty International is concerned about reports of human rights violations carried out in the context of the stated aim of protecting national security and the fight against terrorism, following a number of reported attacks and killings throughout the country in 2009. .... Amnesty International is concerned that the authorities’ response to attacks which occurred in May and August 2009 has been inconsistent with the obligations to respect the prohibitions against arbitrary detention and torture or other ill-treatment and the right to fair trial as enshrined in the ICCPR.", "There were reported attacks in the Ferghana Valley and the capital Tashkent in May and August 2009 respectively; and a pro-government imam and a high-ranking police officer were killed in Tashkent in July 2009. The Islamic Jihad Union (IJU) claimed responsibility for the attacks in the Ferghana valley: attacks on a police station, a border checkpoint and a government office in Khanabad on 26 May 2009, as well as a suicide bombing at a police station in Andizhan the same day. At least three people died in a shoot-out between unidentified armed men and security forces in Tashkent on 29 August 2009. ... Authorities blamed the Islamic Movement of Uzbekistan (IMU), the Islamic Jihad Union (IJU) and the unregistered Islamist Hizb-ut-Tahrir party, banned in Uzbekistan, for the attacks and killings.", "These crimes were followed by reports of new waves of arbitrary detentions. Among the scores detained as suspected members or sympathizers of the three above‑named organizations were men and women who attended unregistered mosques, studied under independent imams, had travelled or studied abroad, or had relatives who lived abroad or were suspected of affiliation to banned Islamist groups. Many are believed to have been detained without charge or trial for lengthy periods, allegedly subjected to torture and/ or sentenced after unfair trials. In September 2009, at the start of the first trial of individuals charged in connection with the May attacks in the Ferghana Valley, human rights activists reported that the proceedings were closed to the public, despite earlier assurances by the President and the Prosecutor General that the trial would be both open and fair. However, independent observers were not given access to the court room.", "Relatives of some of the defendants told human rights activists that defence lawyers retained by them were not given access to the case materials and were denied access to the court room. At least 30 men were arrested in October 2009 in Sirdaria on suspicion of involvement in the July killings in Tashkent and of being members of Hizb-ut-Tahrir. Relatives of some of the accused insisted the men had no connection with Hizb‑ut‑Tahrir or armed groups, but merely practised their faith outside state‑registered mosques. Relatives alleged that some of the accused had been tortured in pre-trial detention in an attempt to force them to confess to participating in the July killings. The mother of one of the men arrested said that her son’s face was swollen and his body covered in bruises, that needles had been inserted in the soles of his feet and electroshocks applied to his anus, and that he had difficulties eating, standing or walking.", "In April 2010 a court in Dzhizakh sentenced 25 men to terms of imprisonment from between two to 10 years in connection with the July and August 2009 attacks. All were convicted of attempting to overthrow the constitutional order and of religious extremism. At least 12 of the men had alleged in court in March 2010 that their confessions had been obtained under torture and the trial judge had ordered an investigation into these allegations, but ultimately found their allegations of torture to be unfounded. Independent observers reported that the men had admitted to having participated in prayer meetings and having practiced sports together, but had denied that they were part of a group intent on overthrowing the constitutional order. Furthermore, Amnesty International is concerned by the risk of refoulement within extradition procedures.", "The Uzbekistani authorities continue to actively seek the extradition, in the name of national security and the fight against terrorism, of members or suspected members of banned Islamic movements or Islamist parties, such as Hizb-ut-Tahrir, or people suspected of involvement in the May 2005 Andizhan events, from neighbouring countries as well as the Russian Federation. ... Despite assertions by Uzbekistan that the practice of torture has significantly decreased, Amnesty International continues to receive reports of widespread torture or other ill-treatment of detainees and prisoners. According to these reports, in most cases the authorities failed to conduct prompt, thorough and impartial investigations into the allegations of torture or other ill‑treatment. Amnesty International is concerned that impunity prevails as prosecution of individuals suspected of being responsible for torture or other ill‑treatment remains the exception rather than the rule.", "... Allegations have also been made that individuals returned to Uzbekistan from other countries pursuant to extradition requests have been held in incommunicado detention, thereby increasing their risk of being tortured or otherwise ill-treated and have been subjected to unfair trial. In one case in 2008, for example, a man who was returned to Uzbekistan from Russia was sentenced to 11 years’ imprisonment after an unfair trial. His relatives reported that, upon his return to Uzbekistan, he was held incommunicado for three months during which time he was subjected to torture and other ill-treatment in pre-trial detention. He did not have access to a lawyer of his own choice and the trial judge ruled evidence reportedly adduced as a result of torture admissible.” 112.", "In January 2011 Human Rights Watch released its annual World Report for 2010. The chapter entitled “Uzbekistan”, in so far as relevant, states: “Uzbekistan’s human rights record remains abysmal, with no substantive improvement in 2010. Authorities continue to crackdown on civil society activists, opposition members, and independent journalists, and to persecute religious believers who worship outside strict state controls ... ... Criminal Justice, Torture, and Ill-Treatment Torture remains rampant in Uzbekistan. Detainees’ rights are violated at each stage of investigations and trials, despite habeas corpus amendments that went into effect in 2008. The Uzbek government has failed to meaningfully implement recommendations to combat torture that the United Nations special Rapporteur made in 2003.", "Suspects are not permitted access to lawyers, a critical safeguard against torture in pre-trial detention. Police use torture and other illegal means to coerce statements and confessions from detainees. Authorities routinely refuse to investigate defendants’ allegations of abuse. ... On July 20, 37-year-old Shavkat Alimhodjaev, imprisoned for religious offenses, died in custody. The official cause of death was anemia, but Alimhodjaev had no known history of the disease.", "According to family, Alimhodjaev’s face bore possible marks of ill-treatment, including a swollen eye. Authorities returned his body to his family’s home at night. They insisted he be buried before sunrise and remained present until the burial. Authorities have not begun investigating the death. ... Freedom of Religion Although Uzbekistan’s constitution ensures freedom of religion, Uzbek authorities continued their unrelenting, multi-year campaign of arbitrary detention, arrest, and torture of Muslims who practice their faith outside state controls or belong to unregistered religious organizations.", "Over 100 were arrested or convicted in 2010 on charges related to religious extremism. ... Key International Actors The Uzbek government’s cooperation with international institutions remains poor. It continues to deny access to all eight UN special procedures that have requested invitations, including those on torture and human rights defenders ...” 113. The chapter entitled “Uzbekistan 2011” in the Amnesty International annual report for 2011, released in May of the same year, in so far as relevant, states as follows: “Reports of torture or other ill-treatment continued unabated. Dozens of members of minority religious and Islamic groups were given long prison terms after unfair trials ... ...", "Torture and other ill-treatment Despite assertions by the authorities that the practice of torture had significantly decreased, reports of torture or other ill-treatment of detainees and prisoners continued unabated. In most cases, the authorities failed to conduct prompt, thorough and impartial investigations into these allegations. Several thousand people convicted of involvement with Islamist parties or Islamic movements banned in Uzbekistan, as well as government critics and political opponents, continued to serve long prison terms under conditions that amounted to cruel, inhuman and degrading treatment. Uzbekistan again refused to allow the UN Special Rapporteur on torture to visit the country despite renewed requests. ... Counter-terror and security Closed trials started in January of nearly 70 defendants charged in relation to attacks in the Ferghana Valley and the capital, Tashkent, in May and August 2009 and the killings of a pro-government imam and a high-ranking police officer in Tashkent in July 2009.", "The authorities blamed the Islamic Movement of Uzbekistan (IMU), the Islamic Jihad Union (IJU) and the Islamist Hizb-ut-Tahrir party, all banned in Uzbekistan, for the attacks and killings. Among the scores detained as suspected members or sympathizers of the IMU, the IJU and Hizb-ut-Tahrir in 2009 were people who attended unregistered mosques, studied under independent imams, had travelled abroad, or were suspected of affiliation to banned Islamic groups. Many were believed to have been detained without charge or trial for lengthy periods. There were reports of torture and unfair trials. ... •In April, Kashkadaria Regional Criminal Court sentenced Zulkhumor Khamdamova, her sister Mekhriniso Khamdamova and their relative, Shakhlo Pakhmatova, to between six and a half and seven years in prison for attempting to overthrow the constitutional order and posing a threat to public order.", "They were part of a group of more than 30 women detained by security forces in counter-terrorism operations in the city of Karshi in November 2009. They were believed to have attended religious classes taught by Zulkhumor Khamdamova in one of the local mosques. The authorities accused Zulkhumor Khamdamova of organizing an illegal religious group, a charge denied by her supporters. Human rights defenders reported that the women were ill-treated in custody; police officers allegedly stripped the women naked and threatened them with rape. •Dilorom Abdukadirova, an Uzbek refugee who had fled the country following the violence in Andizhan in 2005, was detained for four days upon her return in January, after receiving assurances from the authorities that she would not face charges.", "In March, she was detained again and held in police custody for two weeks without access to a lawyer or her family. On 30 April, she was convicted of anti-constitutional activities relating to her participation in the Andizhan demonstrations as well as illegally exiting and entering the country. She was sentenced to 10 years and two months in prison after an unfair trial. Family members reported that she appeared emaciated at the trial and had bruises on her face. ... Freedom of religion The government continued its strict control over religious communities, compromising the enjoyment of their right to freedom of religion.", "Those most affected were members of unregistered groups such as Christian Evangelical congregations and Muslims worshipping in mosques outside state control. •Suspected followers of the Turkish Muslim theologian, Said Nursi, were convicted in a series of trials that had begun in 2009 and continued into 2010. The charges against them included membership or creation of an illegal religious extremist organization and publishing or distributing materials threatening the social order. By December 2010, at least 114 men had been sentenced to prison terms of between six and 12 years following unfair trials. Reportedly, some of the verdicts were based on confessions gained under torture in pre-trial detention; defence and expert witnesses were not called; access to the trials was in some cases obstructed while other trials were closed.” B.", "Council of Europe documents relating to the disappearance of applicants in respect of whom interim measures had been applied by the Court 114. In a decision (CM/Del/Dec(2012)1144/18) adopted on 6 June 2012 at the 1144th meeting of the Ministers’ Deputies, the Committee of Ministers reiterated its concerns about repeated incidents of disappearance of applicants in respect of whom interim measures had been applied by the Court, and continued as follows: “The Deputies 1. recalled that in the Iskandarov case, despite the government’s assertion that the applicant’s kidnapping had not been imputable to the State authorities, the Court found violations of the Convention on account of the applicant’s arbitrary deprivation of liberty by the Russian State agents and his subsequent removal to Tajikistan in breach of the State’s obligation to protect him against the risk of ill-treatment; 2. recalled further that at its last meeting the Committee expressed its profound concern that similar incidents had subsequently taken place in respect of other applicants whose applications are pending before the Court and in which the Court applied interim measures in order to prevent their extradition in view of the imminent risk of serious violations of the Convention faced by them; 3. deplored the fact that, notwithstanding the serious concerns expressed in respect of such incidents by the President of the Court, the Committee of Ministers and by the Russian authorities themselves, they were informed that yet another applicant disappeared on 29 March 2012 in Moscow and shortly after found himself in custody in Tajikistan; 4. took note of the Russian authorities’ position according to which the investigation in the Iskandarov case is still ongoing and had not at present established the involvement of Russian State into the applicant’s kidnapping; 5. regretted however that up to now, neither in the Iskandarov case nor in any other case of that type have the authorities been able to make tangible progress with the domestic investigations concerning the applicants’ kidnappings and their transfer, nor to establish the responsibility of any state agent ...” THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 115. The applicant complained that his removal to Uzbekistan had breached Article 3 of the Convention and that he had not had effective remedies in respect of that grievance, contrary to Article 13 of the Convention. These provisions read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Submissions by the parties 116.", "The Government argued that the domestic authorities had carefully examined the applicant’s allegation that he would run a risk of being subjected to ill-treatment if he was returned to the requesting country. According to the information of the Russian Ministry of Foreign Affairs and the Intelligence Department of the FSB, there were no circumstances precluding his extradition. Moreover, the Uzbekistan GPO had assured its Russian counterpart that the applicant would not be extradited to a third country without the consent of the Russian authorities; that he would be criminally prosecuted and would serve his sentence only in connection with the offences in respect of which his extradition was being sought; that after serving his sentence he would be free to leave Uzbekistan; and that he would receive medical assistance if necessary and be secured the guarantees of a fair trial. Furthermore, Uzbekistan had abolished the death penalty and the UCC stipulated that criminal proceedings were to be conducted on the basis of equality of arms and that no one could be subjected to torture or inhuman or degrading treatment. 117.", "The Government further submitted that it had been open to the applicant to challenge the extradition order in the courts and that, following such a complaint, the St Petersburg City Court had set aside the extradition order and had released the applicant from custody. 118. With reference to reports from various international bodies, the applicant argued that, as a person accused of participation in a proscribed religious organisation considered extremist by the requesting authorities, he ran a real risk of ill-treatment if removed to Uzbekistan. He averred that there was abundant information from reliable international sources showing that individuals in his situation were specifically targeted by the Uzbek authorities for ill-treatment and that, accordingly, the risk of him being subjected to such treatment was significantly higher. 119.", "The applicant further argued that the Government’s reference to the information from the Russian Foreign Ministry and the FSB was irrelevant and could not be considered a thorough assessment of his personal situation and his allegations regarding the risk of ill-treatment. He maintained that the domestic authorities had disregarded his allegations of the risk of ill‑treatment both in the extradition and asylum proceedings, despite the information he had relied on stemming from reputable international organisations and concerning the specific situation of individuals accused of membership of Hizb ut-Tahrir, and they had heavily relied on the assurances of the Uzbek authorities, which were neither reliable nor sufficient. In particular, in the asylum proceedings the Russian authorities had explicitly refused to take into account a number of relevant materials he had relied on, preferring to briefly mention only the information from the Russian Ministry of Foreign Affairs. B. The Court’s assessment 1.", "Admissibility 120. 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. 2.", "Merits (a) Article 3 (i) General principles 121. The Court reiterates at the outset that 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 (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94), and that the right to political asylum is not explicitly protected by either the Convention or its Protocols (see Salah Sheekh v. the Netherlands, no. 1948/04, § 135, ECHR 2007 I (extracts)). 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 individual concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3.", "122. In such a case, Article 3 implies an obligation not to deport the person in question to that country (see Saadi v. Italy [GC], no. 37201/06, § 125, 28 February 2008). Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention, or otherwise (see Soering v. the United Kingdom, 7 July 1989, § 91, Series A no. 161).", "123. The assessment of whether there are substantial grounds for believing that the applicant faces a real risk of being subjected to treatment in breach of Article 3 inevitably requires that the Court assess the conditions in the receiving country against the standards of that Convention provision (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005‑I). These standards 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 (see Hilal v. the United Kingdom, no.", "45276/99, § 60, ECHR 2001‑II). 124. In determining whether it has been shown that the applicant runs a real risk of suffering treatment proscribed by Article 3 if expelled, the Court will examine the issue in the light of all the material placed before it or, if necessary, material obtained proprio motu (see Saadi, cited above, § 128). Since the nature of the Contracting States’ responsibility under Article 3 in cases of this kind lies in the act of exposing an individual to the risk of ill‑treatment, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the expulsion (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 107, Series A no. 215).", "125. It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005). Where such evidence is adduced, it is for the Government to dispel any doubts about it (see Ryabikin v. Russia, no. 8320/04, § 112, 19 June 2008).", "126. As regards the general situation in a particular country, the Court has held on several occasions that it can attach certain importance to the information contained in recent reports from independent international human-rights-protection bodies and non-governmental organisations (see Saadi, cited above, § 131, with further references). At the same time, the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Article 3 (ibid.). 127. 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 (see Mamatkulov and Askarov, cited above, § 73).", "(ii) Application of these principles to the present case 128. Turning to the circumstances of the present case, the Court observes that the applicant raised the issue of his risk of being subjected to ill-treatment if he was returned to Uzbekistan both in the extradition and asylum proceedings. Having regard to his submissions, the Court is satisfied that they remained consistent and that he advanced a number of specific and detailed arguments in support of his grievance. Among other things, he claimed that the Uzbek law-enforcement authorities systematically resorted to the use of torture and ill-treatment against detainees and stressed that persons accused of membership of proscribed religious organisations considered extremist, such as the HT, as well as those suspected of crimes against State security, ran an increased risk of being subjected to treatment in breach of Article 3. In support of his allegations the applicant relied on reports by various reputable international organisations and the findings of this Court in a number of cases concerning similar situations where applicants had faced return or had been removed to Uzbekistan in connection with criminal proceedings on charges connected to participation in HT, religious extremism or attempted overthrow of the constitutional order (see paragraphs 38, 41, 49, 51, 54 and 59 above).", "129. Having regard to the extradition proceedings, the Court points out that in the final round the domestic courts set aside the extradition order in respect of the applicant. Whilst the Supreme Court in its decision briefly noted that it had also taken into account the European Court’s findings concerning the ill-treatment of detainees in Uzbekistan and the insufficiency of the assurances provided by the requesting party, the Court considers that it is clear from the first-instance and the appellate courts’ decisions that the main reason for their refusal of the applicant’s extradition was of a more “technical” nature, namely the fact that his prosecution had become time‑barred under the Russian law (see paragraphs 43 and 44 above). 130. As regards the asylum proceedings, the Court observes that the migration authorities in their decisions to refuse the applicant’s asylum request mainly referred to the fact that he had waited too long before applying for refugee status and had breached the residence regulations by submitting false information.", "Despite the applicant’s detailed submissions concerning his risk of being subjected to ill-treatment if he was returned to his home country, supported with reference to information stemming from various international organisations and judgments of this Court, the decisions of the migration authorities were silent on those specific arguments (see paragraphs 53 and 56 above). Although the FMS decision of 15 July 2011 contained a vague statement to the effect that there were no circumstances indicating that the applicant would be “unlawfully persecuted” in Uzbekistan, in the absence of an explanation of the exact meaning of that phrase, and having regard to the decisions of the migration authorities, the Court is unable to accept that they carried out a thorough assessment of the applicant’s allegations concerning the risk of ill-treatment. Lastly, having regard to the applicant’s submissions concerning the circumstances surrounding the enforcement of the deportation order against him (see paragraphs 62-68 above), which were not contested by the Government, the Court is not convinced that he was provided with any reasonable opportunity to raise the matter before the authorities who had ordered his deportation to Uzbekistan and carried out the order (compare Muminov, cited above, § 90). 131. Having regard to the foregoing, the Court is not persuaded that the applicant’s grievance was thoroughly examined by the domestic authorities and has, accordingly, to assess whether at the time of his removal from Russia there existed a real risk that he would be subjected in Uzbekistan to treatment proscribed by Article 3.", "132. It was not contested between the parties that the applicant left the territory of Russia on 21 December 2011. Hence, it is that date that the Court will take into consideration when carrying out its assessment of the applicant’s submissions under Article 3. 133. The Government argued that, according to the information of the Russian Ministry of Foreign Affairs and the FSB, there were no circumstances which would preclude the applicant’s extradition to Uzbekistan.", "Whilst noting that the Government failed to elaborate on that point, the Court reiterates that in cases concerning aliens facing expulsion or extradition it is entitled to compare material referred to by the Government with information from other reliable and objective sources (see Salah Sheekh, cited above, § 136, and Gaforov v. Russia, no. 25404/09, § 129, 21 October 2010). 134. In this connection, the Court observes, firstly, that it has had occasion to deal with a number of cases raising the issue of a risk of ill‑treatment in the event of extradition or expulsion to Uzbekistan from Russia or another Council of Europe member State. It has found, with reference to information from various sources relating to the period between 2002 and 2007, that the general situation with regard to human rights in Uzbekistan was alarming, and material from reliable international sources has demonstrated the persistence of a serious issue of ill-treatment of detainees, the practice of torture against those in police custody being described as “systematic” and “indiscriminate” (see, for example, Ismoilov and Others v. Russia, no.", "2947/06, § 121, 24 April 2008, and Muminov, cited above, § 93). 135. In recent judgments concerning the same subject and covering the period after 2007 until recently, after having examined the latest available information, the Court has found that there was no concrete evidence to demonstrate any fundamental improvement in that area (see, among many others, Garayev v. Azerbaijan, no. 53688/08, § 71, 10 June 2010; Abdulazhon Isakov v. Russia, no. 14049/08, § 109, 8 July 2010; Yuldashev v. Russia, no.", "1248/09, § 93, 8 July 2010; Sultanov v. Russia, no. 15303/09, § 71, 4 November 2010; Yakubov v. Russia, no. 7265/10, §§ 81 and 82, 8 November 2011; and Rustamov v. Russia, no. 11209/10, § 125, 3 July 2012). Against this background, and having regard to the information summarised in paragraphs 108-113 above, the Court cannot but confirm that the issue of ill-treatment of detainees remains a pervasive and enduring problem in Uzbekistan.", "At the same time, the Court reiterates that it has consistently emphasised that reference to a general problem concerning human rights observance in a particular country is normally insufficient to bar extradition (see Kamyshev v. Ukraine, no. 3990/06, § 44, 20 May 2010, and Shakurov v. Russia, no. 55822/10, § 135, 5 June 2012). 136. As regards the applicant’s personal situation, the Court notes that he was wanted by the Uzbek authorities on charges of public appeals to overthrow the constitutional order of Uzbekistan, participation in an extremist organisation, and preparation and dissemination of extremist materials constituting a threat to national security and public order, all in connection with his presumed membership of HT, a proscribed religious organisation (Articles 159 and 244 of the UCC).", "In its Muminov judgment, the Court considered that there were serious reasons to believe in the existence of the practice of persecution of members or supporters of that organisation and found that reliable sources confirmed the existence of a practice of torture against persons accused of offences in connection with presumed membership of HT, such as crimes under Article 159 and 244 of the UCC, with a view to extracting self-incriminating confessions and to punishing those persons, who were perceived by the public authorities to be involved in religious or political activities contrary to State interests (Muminov, cited above, § 95). 137. Since the above-mentioned judgment the Court has examined further cases concerning persons accused of criminal offences in connection with their presumed membership of HT in Uzbekistan and found, with reference to materials covering the period between 2009 and 2011, that there existed a persistent pattern of persecution of such individuals evidenced by credible allegations of torture, ill-treatment and also deaths in custody (see, among the most recent authorities, Yakubov, cited above, §§ 84-85 and 87, and Rustamov, cited above, § 127). In those cases the Court established that such persons were at an increased risk of ill-treatment and that their extradition or expulsion to Uzbekistan would give rise to a violation of Article 3. 138.", "The Court considers it important to reiterate in connection with what has been stated above that in the case of Saadi it held that where an applicant alleges that he or she is a member of a group 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 NA. v. the United Kingdom, no. 25904/07, § 116, 17 July 2008). The Court considers that this reasoning applies in the present case, where the applicant is accused of membership of a group in respect of which reliable sources confirm a continuing pattern of ill‑treatment and torture on the part of the authorities (see paragraphs 107, 110, 111 and 113 above).", "139. It is also significant for the Court that the criminal proceedings against the applicant were opened in the aftermath of terrorist attacks in the Fergana Valley which had taken place in 2009. During the period following the incident, reputable international NGOs stated that the Uzbek authorities blamed HT, among other organisations, for the attacks and killings and reported a wave of arbitrary arrests of persons suspected of involvement with HT, followed by their incommunicado detention, charges of religious extremism or attempted overthrow of the constitutional order, and their ill‑treatment and torture to obtain confessions (see paragraphs 110, 111and 113 above). In the Court’s view, the fact that the charges against the applicant date from a period close to the above-mentioned events can also be regarded as a factor intensifying the risk of ill-treatment for him. 140.", "In view of the foregoing, the Court considers that it has been demonstrated that there are substantial grounds to believe that the applicant faced a real risk of treatment proscribed by Article 3. In so far as the Government may be understood to argue that the prohibition of torture by the UCC negated such a risk, it is reiterated that the existence of domestic laws guaranteeing respect for fundamental rights in principle is not in itself sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention (see, among many other authorities, Saadi, cited above, § 147 in fine). 141. As to the assurances given by the Uzbek authorities and relied on by the Government, the Court notes that the Russian Supreme Court, even in its brief statement in that regard, expressed doubts about their reliability (see paragraph 44 above). In any event, it considers that they were couched in general terms and no evidence has been put forward to demonstrate that they were supported by any enforcement or monitoring mechanism (see, by contrast, Othman (Abu Qatada) v. the United Kingdom, no.", "8139/09, §§ 188-89, 17 January 2012). 142. In the light of the considerations mentioned above, the Court considers that the applicant’s deportation to Uzbekistan gave rise to a violation of Article 3. (b) Article 13 143. In view of the foregoing, the Court does not find it necessary to deal separately with the applicant’s complaint under Article 13 of the Convention, which essentially contains the same arguments as already examined by the Court under Article 3 of the Convention (see Gaforov, cited above, § 144).", "II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 144. The applicant complained that his detention from 14 July to 15 September 2010 had been unlawful, in breach of Article 5 § 1 (f) of the Convention, which reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f) the lawful arrest or detention of ... a person against whom action is being taken with a view to ... extradition.” A. Submissions by the parties 145.", "The Government argued that, in view of the existence of a foreign court’s detention order in respect of the applicant, his detention between 14 July and 15 September 2010 had been authorised by two prosecutor’s orders pursuant to Article 466 of the CCrP, and that it complied with the requirements of the Minsk Convention. On 15 September 2010, that is, two months after the initial order to place the applicant in custody had expired, the courts had extended his detention in accordance with Articles 108 and 109 of the CCrP. The Government acknowledged that the fact that the decisions of 15 July and 24 August 2010 did not contain specific time-limits for the applicant’s detention was indicative of an “uncertainty” which was incompatible with Article 5 § 1 (f), but concluded that, overall, his detention during the period complained of had still been lawful and not in breach of the said Convention provision. 146. Referring to the Court’s findings in the case of Dzhurayev v. Russia (no.", "38124/07, 17 December 2009) and the Constitutional Court’s decisions nos. 101-O and 333-O-P, the applicant submitted that neither Article 466 of the CCrP nor Article 61 of the Minsk Convention established a procedure for ordering the detention of a person with a view to extradition. Moreover, those provisions did not set any time-limits for such detention. As to the Government’s reference to Articles 108 and 109 of the CCrP, those provisions governed the procedure for the placement of a person in custody by a court and not by a prosecutor. Lastly, he stressed that the Government had acknowledged that the lack of time-limits in the prosecutor’s detention orders was incompatible with Article 5 § 1 (f).", "B. The Court’s assessment 1. Admissibility 147. 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. 2. Merits (a) General principles 148. The Court notes that the applicant complained about a specific period of his detention, namely between 14 July and 15 September 2010. Accordingly, it will examine this complaint as submitted by the applicant.", "149. It further observes that it is common ground between the parties that during the period in question the applicant was detained with a view to his extradition from Russia to Uzbekistan. 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 that respect, 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). 150. The Court reiterates, however, that it falls to it 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, and Nasrulloyev v. Russia, no.", "656/06, § 70, 11 October 2007). 151. The Court must therefore ascertain whether the domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. On this last point, the Court emphasises 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 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 Nasrulloyev, cited above, § 71, 11 October 2007, with further references). (b) Application of these principles to the present case 152. Turning to the circumstances of the present case, the Court observes that the main controversy between the parties is whether the prosecutors’ detention orders, which referred, among other things, to the detention order issued by an Uzbek court, could serve as a legal basis for the applicant’s detention for the period between 14 July and 15 September 2010. 153. The Government argued that, given the existence of the Uzbek court’s detention order, the applicant’s detention during the impugned period was governed by Article 466 of the CCrP and was in accordance with the requirements of the Minsk Convention.", "The Court observes, however, that the Russian prosecutor’s detention order of 15 July 2010 contained no reference to Article 466 of the CCrP, presumably because that provision, as follows from its wording, started to apply only from the moment of receipt of the extradition request. In the applicant’s case that request was received on 16 August 2010 (see paragraph 20 above). Hence, the Court must assess what was the legal basis for the applicant’s detention from 14 July to 16 August 2010. 154. In this connection, the Court notes that the Government in their submissions, as well as the prosecutor in his detention order of 15 July 2010, referred to Article 61 of the Minsk Convention.", "However, the Court agrees with the applicant’s argument that Article 61 of the Minsk Convention does not establish any procedural rules to be followed when placing a person in custody before an extradition request has been received. Indeed, the Minsk Convention refers back to domestic law, providing that the requested party should apply its national legal provisions when executing a request for legal assistance, including a special request for arrest pending the receipt of an extradition request as mentioned in its Article 61 (see paragraph 86 above). It follows that Article 61 of the Minsk Convention can serve as a legal basis for detention only in conjunction with corresponding domestic legal provisions establishing the grounds and the procedure for ordering detention, as well as the applicable time-limits (see the Constitutional Court’s decision cited in paragraph 96 above). However, neither the prosecutor in his decision nor the Government referred to any provision in domestic law authorising the former authority to place the applicant in custody pending the receipt of an extradition request. Accordingly, from 14 July to 16 August 2010 the applicant was in a legal vacuum that was not covered by any domestic legal provision clearly establishing the grounds of his detention and the procedure and time‑limits applicable to that detention pending the receipt of the extradition request.", "155. It further seems that after the receipt of the extradition request on 16 August 2010, the applicant’s detention started to be governed by Article 466 § 2 of the CCrP. However, that provision remains silent on the procedure to be followed when ordering or extending the detention of a person whose extradition is sought. Nor does it set any time-limits for detention pending extradition (see paragraph 94 above). The Court also observes that in its decision of 19 March 2009 specifically concerning Article 466 § 2 the Constitutional Court, whilst finding that the impugned provision did not violate a person’s constitutional rights by not establishing any grounds or procedure for ordering detention pending extradition or time-limits for such detention, did not explain, which legal provisions did govern such a procedure and what time-limits were to be applied in situations covered by Article 466 § 2 (see paragraph 98 above).", "156. Accordingly, the Court cannot but note the absence of any precise domestic provisions which would establish under what conditions, within what time-limits and by a prosecutor of which hierarchical level and territorial affiliation the issue of detention is to be examined after the receipt of an extradition request. 157. The ambiguity of Article 466 § 2 of the CCrP is amply illustrated by the circumstances of the present case, where, although the extradition request was received on 16 August 2010, it was not until 24 August 2010, that is, eight days later, that the prosecutor ordered the applicant’s detention on the basis of Article 466 § 2 of the CCrP (see paragraph 22 above). During that entire period the applicant remained unaware of the grounds for his detention and the time-limits for it.", "158. Further, it is significant for the Court that the detention order of 24 August 2010 did not refer to any domestic legal provision, be it a provision from Chapter 13 of the CCrP or otherwise, confirming the competence of that particular prosecutor (the prosecutor of the Frunzenskiy District of St Petersburg) to order the applicant’s detention. Nor did the decision set any time-limit on the applicant’s detention or refer to any domestic legal provision establishing such a time-limit. 159. It follows that the applicant’s detention from 16 August to 15 September 2010 was based on a legal provision, namely Article 466 § 2 of the CCrP, which, on account of its lack of clear procedural rules, was neither precise nor foreseeable in its application.", "160. The Court also is also mindful of the Government’s acknowledgement of the fact that the lack of time-limits in both detention orders contributed to the state of uncertainty in which the applicant found himself during the period of time under consideration. 161. It is further noted that in a recent ruling the Russian Supreme Court gave an authoritative interpretation of Russian legal provisions applicable to detention pending extradition, including detention both before and immediately after the receipt of an extradition request (see paragraph 101 above). The Court notes, however, that that ruling was adopted on 14 June 2012, long after the applicant’s release.", "It therefore cannot alter the conclusion that at the time of the applicant’s detention the Russian legal provisions governing detention pending the receipt of an extradition request, and any eventual extension of detention following the receipt of such a request, were neither precise nor foreseeable in their application. In any event, it follows from the ruling that the applicant’s detention should have been ordered and extended by a Russian court rather than by a prosecutor. 162. In view of the foregoing, the Court concludes that from 14 July to 15 September 2010 the applicant was kept in detention without a specific legal basis or clear rules governing his situation, which fact is incompatible with the principles of legal certainty and the protection from arbitrariness, which are common threads throughout the Convention and the rule of law (see, mutatis mutandis, Yudayev v. Russia, no. 40258/03, § 59, 15 January 2009, and Baranowski v. Poland, no.", "28358/95, § 56, ECHR 2000-III). The deprivation of liberty to which the applicant was subjected during that period was thus not circumscribed by adequate safeguards against arbitrariness. Russian law at the material time therefore fell short of the “quality of law” standard required under the Convention. The national system failed to protect the applicant from arbitrary detention, and his detention cannot be considered “lawful” for the purposes of Article 5 § 1 of the Convention. 163.", "There has therefore been a violation of Article 5 § 1 (f) of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION 164. The applicant complained under Article 6 § 3 (a) that he had not been provided with a translation of the decisions concerning his placement in custody of 15 July and 24 August 2010, and that he had been deprived of his right to be informed promptly, in a language he understood, of the reasons for his arrest and the charges against him. The Court considers that this complaint should be examined under Article 5 § 2 of the Convention, which reads as follows: “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.” A. Submissions by the parties 165. The Government argued that at the time of his arrest the applicant had been informed of the reasons for it, and that this was confirmed by the arrest record, signed by him. Moreover, when interviewed on 15 July 2010, the applicant had said that he spoke Russian and refused the services of an interpreter. Thus, it was clear from the arrest and interview records of 15 July 2010 that the applicant had been informed that he had been arrested and placed in custody because his name was on an international wanted list. 166.", "The applicant submitted that he had a poor command of Russian because after his arrival in the country he had stayed within the Uzbek community. He had not been provided with a translation into Uzbek of the detention orders of 15 July and 24 August 2010. The Frunzenskiy District Court had dismissed his request to have access to a translation of those documents into his mother tongue and, accordingly, he had been deprived of his right to be informed of the reasons for his arrest and the charges against him, which situation had only been remedied at the hearing on 22 November 2010. He further argued that when he had been visited for the first time by his lawyer, who spoke some Uzbek, in detention, he had told her that he thought he had been arrested because of irregularities in his identity papers. 167.", "The applicant further stressed that it could be seen from the arrest record that he had not been asked which language he wished to be interviewed in, and that the interview record of 15 July 2010 mainly contained information taken from the documents he had had in his possession at the time of his arrest. The applicant had not, in reality, understood the meaning of the statement that he “had a good command of Russian and did not need the services of an interpreter” which he had signed. Moreover, during the interviews on 14 and 15 July 2010 he had been able to understand only simple questions – such as whether he had a family and a job. The applicant further stressed that it had been the prosecutor’s office which had informed the District Court at the hearing of 15 September 2010 of the need to provide him with the services of an interpreter, and that the St Petersburg City Court in its decision of 10 November 2010 had confirmed that the applicant’s command of Russian was poor and that the prosecutors had not advised him at the time of his arrest of his right to legal representation and to have an interpreter. B.", "The Court’s assessment 1. Admissibility 168. 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.", "2. Merits 169. The Court reiterates that paragraph 2 of Article 5 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph 2 any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4. Whilst this information must be conveyed “promptly” (in French: “dans le plus court délai”), 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 Čonka v. Belgium, cited above, § 50, with further references). It also reiterates that paragraph 2 of Article 5, as paragraph 4, makes no distinction between persons deprived of their liberty by arrest and those deprived of it by detention (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 414). 170. Turning to the facts of the present case, and in so far as the applicant may be understood to complain that he was not provided with written translations of the prosecutors’ detention orders, the Court considers it important to emphasise that Article 5 § 2 neither requires that the necessary information be given in a particular form nor that it should consist of a complete list of the charges held against the arrested person.", "Furthermore, when a person is arrested with a view to extradition, the information given may be even less complete (see Kaboulov v. Ukraine, no. 41015/04, § 144, 19 November 2009). However, this information should be provided to the detained in an adequate manner so that the persons knows of the reasons relied on to deprive him of his liberty, as well as has some information concerning the accusations brought against him or her by the requesting country (see Shamayev and Others, cited above, §§ 413 and 422, ECHR 2005‑III). 171. Hence, the Court must assess whether, in the circumstances of the present case, the applicant was promptly informed about the reasons for his arrest and detention and the charges against him.", "In this regard, it observes that it follows from the materials available that when examining the issue of the applicant’s detention the domestic courts considered that he had a poor command of Russian, since they appointed interpreters for him, who participated in all the hearings concerning his detention (see, in particular, paragraphs 25, 28 and 29 above). The applicant did, however, submit, and this appears to be supported by copies of his interview record and his “explanation” of 15 July 2010, that he was able to understand and answer in Russian basic questions concerning his arrival in Russia, his family and his employment situation (see paragraphs 17 and 18 above). 172. Having regard to the applicant’s arrest and interview records, as well as his explanation (see paragraphs 14, 15, 17 and 18 above), the Court notes that those documents contained a reference to the fact that he was wanted by the Uzbek authorities, and it is prepared to accept that the applicant was able to infer that he was being sought by them. It points out, however, that none of the documents mentioned above outlined, even briefly, the reasons why the Uzbek authorities’ were searching for him.", "Indeed, the interview record of 15 July 2010 contained only a reference to the numbers of several Articles from the Uzbekistan Criminal Code (see, by contrast Khudyakova v. Russia, no. 13476/04, § 81, 8 January 2009, and compare Rusu v. Austria, no. 34082/02, §§ 38-40, 2 October 2008). 173. The Court also does not lose sight of the fact that at the time of the events described above the applicant was not represented and that his lawyer, who spoke some Uzbek and could have explained to him what those documents implied, assuming that such form of notification met the requirements of Article 5 § 2 of the Convention (see, mutatis mutandis, Saadi v. the United Kingdom [GC], no.", "13229/03, § 84, ECHR 2008), stepped in the proceedings only on 18 August 2010, that is, more than a month later (see, by contrast, Khudyakova, cited above, § 81). 174. Having regard to the foregoing, the Court considers that the applicant was not promptly provided with sufficient information concerning his arrest and detention and the charges brought against him (see Rusu, cited above, § 40; Shamayev and Others, cited above, §§ 421-22; and Saadi, cited above, § 84, where a delay of seventy-six hours in providing reasons for detention was found to be incompatible with the promptness requirement under Article 5 § 2). 175. Accordingly, there has been a violation of Article 5 § 2 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 176. The applicant complained that he had been deprived of an effective opportunity to challenge the prosecutors’ detention orders of 15 July and 24 August 2010 and that his complaint in that regard had not been examined speedily. He relied on Article 5 § 4 of the Convention, which reads as follows: “4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Submissions by the parties 177.", "The Government argued that it had been open to the applicant to complain about his detention ordered on 15 July and 24 August 2010 under Article 125 of the CCrP to the Frunzenskiy District Court, that is, the court which had jurisdiction to examine complaints by persons held in custody in the Frunzenskiy District of St Petersburg, and that that court had the power to order the applicant’s release. In particular, under Article 125 § 5 a judge could declare a decision by a law-enforcement authority unlawful or unjustified and instruct the authority to rectify the indicated shortcomings. In the same procedure, should the court find that a person was unlawfully detained with a view to extradition, it was open to it, pursuant to Article 1 § 3 of the CCrP and Article 46 of the Constitution, to apply provisions established by an international treaty and to order such detainee’s release from custody. 178. The Government further submitted that on 15 September 2010 the applicant’s lawyer had complained to the Frunzenskiy District Court under Article 125 of the CCrP about the detention orders of 15 July and 24 August 2010.", "However, the court had returned the complaint to her and instructed her to rectify several shortcomings. The lawyer had failed to comply with the court’s instructions and had chosen to appeal against the decision of 17 September 2010. Following her withdrawal of the appeal on 9 December 2010, the proceedings were terminated. Accordingly, the Government concluded that the applicant had had an opportunity to obtain review of his detention. 179.", "At the same time, the Government conceded that the applicant had not been provided with copies of the prosecutors’ detention orders of 15 July and 24 August 2010 and had not been advised of the procedure for challenging those decisions, which fact had prevented him from obtaining a speedy review of his detention and was in breach of Article 5 § 4 of the Convention. The fact that the applicant’s lawyer had managed to lodge a complaint about those detention orders did not remedy the breach of applicant’s right to a speedy review of his detention under Article 5 § 4. 180. The applicant stressed that the Government had confirmed that he had neither been provided with copies of the prosecutors’ detention orders nor had the procedure for challenging them in the courts explained to him, and that they had acknowledged that there had been a breach of the requirement of “speediness” under Article 5 § 4 on that account. 181.", "The applicant further submitted that although the Frunzenskiy District Court had received his appeal statement against the decision of 17 September 2010 on 26 October 2010, the appeal hearing had been scheduled only for 9 December 2010. However, by that time, in a decision of 15 September 2010, the Frunzenskiy District Court had already extended his detention until 15 January 2011 and that extension had been confirmed in a decision of 22 November 2010. Hence, after those court decisions the examination of the complaint under Article 125 of the CCrP about the prosecutors’ detention orders had become devoid of any purpose because it could not lead to the applicant’s release. The applicant had nonetheless raised those issues when challenging the decision of 22 November 2010 on appeal. However, on 12 January 2011 the St Petersburg City Court had dismissed his submissions in that part.", "B. The Court’s assessment 1. Admissibility 182. The Court considers 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. 2. Merits (a) Alleged inability to obtain review of the detention ordered by the prosecutors 183. The Government argued that it had been open to the applicant to challenge the prosecutors’ detention orders under Article 125 of the CCrP. 184.", "In this connection, the Court reiterates that where the decision depriving a person of liberty is one taken by an administrative body, Article 5 § 4 obliges the Contracting States to make available to the person detained a right of recourse to a court (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12, and, more recently, in the context of detention pending extradition, Soliyev v. Russia, no. 62400/10, § 50, 5 June 2012). In order to constitute such a “court” an authority must provide the fundamental guarantees of procedure applied in matters of deprivation of liberty (see ibid. ), and the review should be wide enough to bear on those conditions which are essential for the “lawful” detention of a person according to Article 5 § 1 (see E. v. Norway, 29 August 1990, § 50, Series A no.", "181 A). The Court has specifically and consistently emphasised that the reviewing “court” must not have merely advisory functions, but must have the competence to “decide” on the “lawfulness” of the detention and to order release if the detention is unlawful (see, among many other authorities, A. and Others v. the United Kingdom [GC], no. 3455/05, § 202, ECHR 2009; Ireland v. the United Kingdom, 18 January 1978, § 200, Series A no. 25; Chahal, cited above, § 130; and, more recently, Soliyev, cited above, § 52, and Rustamov, cited above, § 175). 185.", "The Court observes that it has stated in a number of earlier cases relating to applicants’ detention pending extradition that Article 125 of the CCrP could not be considered to provide an avenue for judicial complaints by individuals detained with a view to extradition, because Russian courts have consistently refused to examine applications lodged by people in that position, on the ground that they were not party to criminal proceedings against them in Russia (see, for example, Ismoilov and Other, cited above, § 50, 24 April 2008, and Sultanov, cited above, § 91, 4 November 2010, with further references). 186. It is further noted that in its Directive Decision no. 1 of 10 February 2009, aimed at clarifying the practice of the application of Article 125 of the CCrP by the domestic courts, the Supreme Court in plenary session stated that a prosecutor’s decision to place a person in custody pending extradition was also amenable to judicial review under Article 125 of the CCrP (see paragraph 99 above). This approach was subsequently confirmed by Directive Decision no.", "22, issued on 29 October 2009 (see paragraph 100 above). 187. The Government submitted, with reference to Articles 1 § 3 and 125 § 5 of the CCrP and Article 46 of the Constitution, that a court examining a complaint by a person detained pending extradition against detention orders issued by a prosecutor had authority to release such detainee, should it find the underlying detention orders unlawful or unjustified. The Court notes, however, that none of the legal provisions relied on by the Government explicitly provides for the court’s competence to release a detainee in the applicant’s situation (see paragraphs 85 and 90 above). As regards, in particular, Article 125 § 5, it only states that a court examining a complaint lodged under that provision can declare a decision issued by a law-enforcement authority unlawful or unjustified and instruct that body to rectify the indicated shortcomings (see paragraph 93 above).", "188. The Court further observes that in Directive Decision no. 1, which gave an authoritative interpretation of the application of Article 125 of the CCrP, the Supreme Court specifically emphasised that in declaring a decision of a State authority unlawful or not justified, a judge was not entitled to annul it or to order the law-enforcement authority or official to revoke it or to carry out specific procedural acts, but could only instruct them to rectify the shortcomings he had indicated (see paragraph 99 above). Having regard to this authoritative interpretation of the application of Article 125 of the CCrP, the Court has doubts as to whether a domestic court was empowered under that legal provision to order the applicant’s release from custody, or to order the prosecutor under whose detention orders he was detained at the material time to release him, even if it found the impugned detention orders unlawful or unjustified. 189.", "The Court also notes that Directive Decision no. 1 provided for the opportunity for an interested party to complain again to a court about inaction on the part of the law-enforcement authorities should the shortcomings indicated not be rectified, in which case a judge could issue a “special decision“ drawing the authority’s attention to the situation (see paragraph 99 above). However, the Court is not persuaded that that can be regarded as a “power to release”, within the meaning of the case-law summarised above. 190. In any event, the Court takes note of the Government’s statement that the applicant “had not been provided with the prosecutor’s detention orders” (see paragraph 179 above).", "Whilst it is not entirely clear when he was ultimately furnished with them, it follows from the applicant’s lawyer’s complaint of 15 September 2010, and this was not contested by the Government, that she must have been made aware of their content by that date in order to raise before the courts specific arguments concerning their alleged unlawfulness (see paragraph 23 above). However, on the same date the Frunzenskiy District Court authorised an extension of the applicant’s detention until 15 January 2011. Although the appellate court set aside that decision on 10 November 2010 and remitted the case to the first-instance court, it extended the applicant’s detention until 30 November 2010 and, in the new round of proceedings, on 22 November 2010 the District Court again authorised his detention until 15 January 2011. Against this background, and particularly given the existence of court-issued detention orders authorising the applicant’s detention during the period from 15 September 2010 onwards, the Court accepts the applicant’s argument that a complaint about the prosecutor’s detention orders had become devoid of purpose because it could not have led to his release. 191.", "Having regard to the foregoing, the Court concludes that, in the circumstances of the present case, the applicant was deprived of an opportunity to obtain review of the detention orders issued by the prosecutors on 15 July and 24 August 2010. 192. There has therefore been a violation of Article 5 § 4 of the Convention. (b) Speediness of review 193. In view of the findings made above, the Court does not consider it necessary to examine the applicant’s complaint about lack of a speedy review of his detention relating to the same proceedings.", "V. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 194. The applicant complained that, as a result of his removal to Uzbekistan in breach of the interim measure indicated by the Court under Rule 39, the respondent Government had failed to comply with their obligations under Article 34 of the Convention, which reads as follows: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” 195. The Government acknowledged that the applicant’s deportation had been in breach of the interim measure indicated by the Court and that he had been unlawfully deported from Russia. They stated, however, that the domestic authorities had had no intention of breaching Article 34 and that the applicant had been deported owing to the fact that the FMS had not been aware of the application of Rule 39 of the Rules of Court.", "Moreover, the interim measure had concerned only the applicant’s removal in the form of extradition and all the domestic authorities involved in the extradition proceedings had been informed of the application of Rule 39. The FMS was not competent to order the extradition of individuals, and the issue of the applicant’s possible deportation had not arisen at the time when the interim measure had been applied. The applicant had had access to the deportation decision with the assistance of an interpreter and had not expressed any intention of appealing against it. 196. The applicant argued that, contrary to the Government’s submission, the FMS officials who had carried out his deportation had been aware of the Court’s application of Rule 39 because he and his lawyer had not only told them about it but he had also shown them the Court’s letter to that effect when they had burst into his flat on 21 December 2011 and had taken him away.", "In any event, the FMS was a structural division of the Ministry of the Interior and thus part of the Government of the Russian Federation. From the information made available to the Government after notice of the applicant’s case had been given to it, it was clear that the FMS had already been involved in the assessment of the issue of whether he was to be returned to Uzbekistan at the time when the extradition proceedings were pending. Accordingly, it was for those State bodies, including the Russian GPO and the Office of the Representative of the Russian Federation at the European Court of Human Rights, to ensure that the information on the Court’s application of the interim measure was brought to the attention of all authorities involved. 197. The applicant further stressed that the extraordinarily precipitated enforcement of the deportation order against him and the fact that the authorities hid him from his lawyer on that day strongly contradicted the Government’s assertion that the domestic bodies had not intended to act in breach of the interim measure and Article 34 of the Convention.", "Lastly, he contested their argument that the scope of the interim measure had been limited to extradition. He averred that it had been aimed at preventing the irreparable damage which he risked suffering if he was removed, in any form, to his country of origin, at allowing him to pursue the proceedings before this Court, and at securing him effective Convention protection. 198. The Court reiterates that Article 34 requires the Contracting States to refrain not only from exerting pressure on applicants but also from any act or omission which, by destroying or removing the subject matter of an application, would make it pointless or otherwise prevent the Court from considering it under its normal procedure (see Mamatkulov and Askarov, cited above, § 102, and Paladi v. Moldova [GC], no. 39806/05, § 87, 10 March 2009).", "199. In cases such as the present one, where it is plausibly asserted that there is a risk of irreparable damage to the enjoyment by the applicant of one of the core rights under the Convention, the object of an interim measure is to maintain the status quo pending the Court’s determination of the justification for the measure. Thus, being intended to ensure the continued existence of the matter that is the subject of the application, the interim measure goes to the substance of the Convention complaint. As far as the applicant is concerned, the result that he or she wishes to achieve through the application is the preservation of the asserted Convention right before irreparable damage is done to it. Consequently, the interim measure is sought by the applicant, and granted by the Court, in order to facilitate the “effective exercise” of the right of individual petition under Article 34 of the Convention in the sense of preserving the subject matter of the application when that is judged to be at risk of irreparable damage through the acts or omissions of the respondent State (see Mamatkulov and Askarov, cited above, § 108; Shamayev and Others, cited above, § 473; and Aoulmi v. France, no.", "50278/99, § 103, ECHR 2006‑I (extracts)). 200. Accordingly, and the Court considers it particularly important to emphasise this, indications of interim measures given by it permit it not only to carry out an effective examination of the application but also to ensure that the protection afforded to the applicant by the Convention is effective; such indications subsequently allow the Committee of Ministers to supervise execution of the final judgment. Such measures thus enable the State concerned to discharge its obligation to comply with the final judgment of the Court, which is legally binding by virtue of Article 46 of the Convention (see Mamatkulov and Askarov, cited above, § 125; Shamayev and Others, cited above, § 473; and Aoulmi, cited above, § 108). 201.", "Turning to the circumstances of the present case, the Court observes that on 19 November 2010 it indicated to the Russian Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited to Uzbekistan until further notice (see paragraph 4 above). 202. Having regard to the Government’s submissions, the Court observes that whilst they acknowledge that the applicant was deported in breach of the interim measure indicated by the Court and that this was contrary to Article 34, they submit that the FMS authorities that carried out the deportation order were not aware of the application of Rule 39 of the Rules of Court and it was not their intention to act in non-compliance with Article 34, and that, in any event, the impugned measure only concerned the applicant’s removal in the form of extradition. 203. The Court would note in the first place that it is not persuaded by the Government’s allegation that the FMS was not aware of the interim measure indicated to the Government.", "Even assuming that the FMS officials had not known about it prior to the day of the applicant’s deportation – a hypothesis favourable to the Government – it can be seen from the applicant’s detailed submissions concerning the events of 21 December 2011 that he not only told them that he could not be returned to Uzbekistan because the European Court had applied Rule 39 in his case but also showed them a copy of the Court’s letter to that effect. It further seems that the applicant’s lawyer, who was able to participate in their telephone conversation via conference mode, also alerted them to that fact (see paragraph 62 above). Having regard to the fact that these submissions were not contested by the Government, the Court is unable to accept their argument in this regard as convincing. 204. In so far as the Government claimed that the domestic authorities had not intended to act in non-compliance with their obligations under Article 34, the Court reiterates that the intentions underlying the acts or omissions in question are of little relevance when assessing whether Article 34 of the Convention was complied with (see Paladi, cited above, § 87).", "In any event, in this connection the Court cannot but take note of the precipitated manner in which the applicant’s deportation was carried out, as well as his submissions, uncontested by the Government, to the effect that he was prevented from contacting his lawyer after he had been taken from his flat, and that the authorities, in fact, did everything to conceal his whereabouts from his lawyer and relatives and flatly denied the fact of his detention at the FMS premises when the lawyer contacted them, although the Government acknowledged in their submissions to the Court that he had been held there before being taken to Pulkovo airport (see paragraphs 62, 64 and 70 above). 205. The Court further points out that its letter informing the Government of the application of Rule 39 of the Rules of Court in the applicant’s case did, indeed, state that the applicant should not be extradited to Uzbekistan until further notice (see paragraph 39 above). In this connection it observes that whilst the formulation of the interim measure is one of the elements to be taken into account in its analysis of whether a State has complied with its obligations under Article 34, in making its assessment the Court must have regard not only to the letter but also to the spirit of the interim measure indicated by it (see Paladi, cited above, § 91), or, in other words, to the purpose of the measure. 206.", "Furthermore, in examining a complaint concerning this issue under Article 34, the Court will not re-examine whether its decision to apply interim measures was correct. It is for the respondent Government to demonstrate to the Court that the interim measure was complied with or, in an exceptional case, that there was an objective impediment which prevented compliance and that the Government took all reasonable steps to remove the impediment and to keep the Court informed about the situation (see Grori v. Albania, no. 25336/04, § 184, 7 July 2009, and Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 161, ECHR 2010 (extracts)). 207.", "Having regard to the principles enunciated above and the circumstances of the applicant’s hasty removal, the Court considers that in this type of case, where a risk of irreparable damage to one of the core Convention rights is alleged by the applicant and the interim measure has been applied with a view, among other things, to preserving the status quo and the subject matter of the application, it should not be open to a Contracting State to circumvent the purpose of the interim measure by transferring such individual to a State which is not a party to the Convention, thereby depriving the applicant of its effective protection. The Court notes, moreover, that in the present case this was the country which had sought his extradition. 208. It is true that as a result of the applicant’s removal to Uzbekistan the Court is prevented from securing to him the practical and effective benefit of the Convention right asserted, namely to protect him from treatment contrary to Article 3 of which he had been found to face a real risk in the requesting country at the relevant time (see Labsi v. Slovakia, no. 33809/08, § 151, 15 May 2012).", "Indeed, the applicant’s transfer to Uzbekistan removed him from Convention protection and frustrated the purpose of the interim measure, which was to maintain the status quo pending the Court’s examination of the application and to allow its final judgment to be effectively enforced. 209. Whilst in the present case it appears that the applicant was able, at least at the time when the parties exchanged their additional observations, to maintain contact with his lawyer and family, the Court is concerned by his submission, uncontested by the Government, to the effect that in Uzbekistan he was persistently advised to cut off such communication (see paragraph 76 above). In any event, the fact that the Court was able to examine the applicant’s complaints does not prevent an issue arising under Article 34 (see Shamayev and Others, cited above, § 517). 210.", "Lastly, the Court takes into account that the Government, in fact, acknowledged that by deporting the applicant to Uzbekistan, they had failed to comply with their obligations under Article 34 of the Convention. 211. Having regard to the foregoing, the Court concludes that there has been a violation of Article 34 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 212.", "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 213. The applicant made no claims in respect of pecuniary damage. As regards non-pecuniary damage, he claimed 30,000 euros (EUR) in respect of the mental suffering he had endured as a result of his removal to Uzbekistan in breach of Articles 3 and 34 of the Convention, as well as in respect of the unlawfulness of his detention, the fact that he had not been informed of the reasons for it or the accusations made against him by the Uzbek authorities, and the fact that he had been unable to obtain the review of the prosecutors’ detention orders and that the related proceedings had not been speedy. 214.", "The Government submitted that, should the Court find a breach of any of the applicant’s Convention rights, a finding of a violation would constitute sufficient just satisfaction. They further argued that the amount claimed by the applicant was, in any event, excessive. 215. The Court observes that in the present case it has found a combination of grievous violations of Articles 3, 5 §§ 1, 2 and 4 of the Convention, and established that the respondent Government has failed to comply with its obligations under Article 34 of the Convention. Accordingly, it finds that the applicant has suffered non-pecuniary damage which cannot be compensated solely by the above findings of violations.", "Therefore, it awards to the applicant the amount claimed, that is, EUR 30,000, in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant. B. Costs and expenses 216. The applicant also claimed EUR 14,766 and 13,747 Russian roubles (RUB) for the costs and expenses incurred in connection with his representation before the domestic courts and this Court, those amounts broken down as follows: (a) RUB 389,178.9 for 150 hours of work by the lawyer in connection with the applicant’s representation before the domestic authorities, comprising, among other things, drafting of legal documents, participation in the applicant’s interviews with the migration authorities and the examination of his complaints in the asylum and extradition proceedings before the courts of first instance and appeal courts, as well as the proceedings concerning his detention, at a rate of EUR 60 per hour; (b) RUB 207,562.08 for 48 hours of legal drafting of documents submitted to the Court, at a rate of EUR 100 per hour; (c) RUB 13,747 in respect of travel expenses in connection with the examination of the applicant’s appeals against the extradition order before the Supreme Court of Russia in Moscow; (d) RUB 41,771.869 in respect of postal expenses, calculated as 7% of the costs and expenses incurred. 217.", "The Government claimed that the costs and expenses incurred in connection with the applicant’s representation at the domestic level, as well as the travel expenses, should not be compensated because they were not connected to the proceedings before the Court. They also noted that there were no documents to prove that those expenses, or the postal expenses, had actually been incurred. 218. The Court reiterates that, according to its case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, among many other authorities, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).", "It also observes that costs and expenses incurred in the domestic proceedings with a view to preventing the alleged violations of the Convention from occurring are also recoverable, in accordance with its case-law (see, for example, I.J.L. and Others v. the United Kingdom (just satisfaction), nos. 29522/95, 30056/96 and 30574/96, § 18, 25 September 2001). 219. Having regard to the principles mentioned above, the Court disagrees with the Government and finds that the costs and expenses to which the applicant referred as incurred by him at the domestic level were aimed at seeking redress through the domestic legal system for the aforementioned alleged violations.", "Having furthermore regard to the details submitted by the applicant in support of his claims, including the representation agreements, the lawyer’s timesheets and copies of the tickets relating to travel in connection with the examination of the applicant’s appeals against the extradition order, the Court considers that those expenses were actually incurred. It notes at the same time that the applicant did not furnish any documents confirming his postal expenses, and whilst it accepts that the present case was rather complex and required a certain amount of research and preparation, it considers nonetheless that these were not required to the extent alleged by the applicant. In sum, having regard to all the materials in its possession, it awards the applicant EUR 11,000 under this head, plus any tax that may be chargeable to the applicant. C. Default interest 220. 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 3 of the Convention on account of the applicant’s removal to Uzbekistan; 3. Holds that it is not necessary to examine separately the applicant’s complaint under Article 13 of the Convention; 4. Holds that there has been a violation of Article 5 § 1 (f) of the Convention in respect of the applicant’s detention from 14 July to 15 September 2010; 5.", "Holds that there has been a violation of Article 5 § 2 of the Convention; 6. Holds that there has been a violation of Article 5 § 4 of the Convention on account of the applicant’s inability to obtain a review of the detention orders of 15 July and 24 August 2010; 7. Holds that it is not necessary to examine separately the applicant’s complaint under Article 5 § 4 of the Convention about lack of a speedy review of his detention relating to the same proceedings; 8. Holds that the respondent State has failed to comply with its obligations under Article 34 of the Convention; 9. 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: (i) EUR 30,000 (thirty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 11,000 (eleven 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; 10.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 5 February 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachIsabelle Berro-Lefèvre Deputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF CHRISTODOULOU v. CYPRUS (Application no. 30282/06) JUDGMENT STRASBOURG 16 July 2009 FINAL 16/10/2009 This judgment may be subject to editorial revision. In the case of Christodoulou v. Cyprus, 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, judges,Costas Pamballis, ad hoc judge,and Søren Nielsen, Section Registrar, Having deliberated in private on 25 June 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 30282/06) against the Republic of Cyprus lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Cypriot nationals, Ms Elsa Christodoulou and Ms Lydia Christodoulou (“the applicants”), on 18 July 2006.", "2. The applicants were represented by C. Melas and Associates, lawyers practising in Limassol. The Cypriot Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus. 3. On 10 July 2007 the Court decided to communicate the complaints concerning the length of the proceedings and the fairness of the costs order made by the Supreme Court to the Government.", "It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3). 4. Mr G. Nicolaou, the judge elected in respect of Cyprus, was unable to sit in the case (Rule 28 of the Rules of Court). The Government accordingly appointed Mr C. Pamballis to sit as an ad hoc judge (Rule 29). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1964 and 1936 respectively and live in Paphos. A. First instance proceedings before the Rent Control Tribunal 6. The applicants rented a souvenir shop together in Paphos.", "On 2 March 2001 they filed an application (K2/01) before the Rent Control Tribunal (”the RCT”) challenging the amount of rent they paid the respondents and seeking its reduction. 7. On 22 March 2001 the RCT ordered that the application be served abroad on the respondents in Athens. 8. On 11 April 2001 the respondents filed their defence.", "9. Upon completion of the pleadings, the applicants, on 27 April 2001, requested the RCT to list the application for mention. 10. The application was listed for directions six times between 21 June 2001 and 20 December 2001. No court records are available for this period.", "11. On 25 February 2002 the respondents filed an application for discovery and inspection of documents. 12. On 28 February 2002 the respondents requested that the RCT carry out a local survey. With the applicants’ agreement, this was carried out on the same day.", "13. The case was listed for a directions hearing to be held on 7 March 2002 with a view to setting a hearing date after the parties’ lawyers had the opportunity to inform the court of their decision regarding the manner in which the court’s expert would testify. 14. On the above date the respondents requested leave to amend their valuation. 15.", "The application was set down to be heard on 25 April 2002 and the court directed that its expert would testify and be cross-examined on that day. 16. The hearing started on the above date. Following the expert’s testimony, the respondents requested that cross-examination take place on another date to allow their expert to assess the evidence given and prepare their cross-examination. The applicants’ lawyer objected.", "17. The court granted the adjournment and set the case down for 23 May 2002 after discussing the suitability of that date for the lawyers. Costs were ordered against the respondents. 18. The hearing continued on the above date with the cross-examination of the RCT’s expert by the respondents’ lawyer.", "When this finished the hearing was adjourned to 13 June 2002 at the applicants’ request. 19. The hearing continued on 13 June 2002 with the cross-examination of the RCT’s expert by the applicants’ lawyer. At the end of the hearing the respondents requested the court to join the application with another three applications (K10/00, K12/00 and K13/00) as they all concerned the determination of the rental value of shops which were situated in the same complex. The parties agreed and the court issued an order joining the applications.", "As the lawyers considered there was not enough time for the testimony and cross-examination of the respondents’ expert the hearing was fixed for 19 September 2002, following the summer vacation. 20. On the above date the court accepted the parties’ request that the evidence of the expert be given at the same time for all the cases followed by separate cross-examination by each lawyer. After the examination-in-chief of the first witness, the examination-in-chief of the second witness was interrupted due to that witness’s ill health. 21.", "The hearing continued on 24 October 2002 and was then adjourned to 12 December 2002. It was further adjourned, however, on that date, as the respondents’ expert could not attend due to a health problem. 22. The hearing was then listed for 20 February 2003. It continued on that date and then on 22 April 2003.", "The hearing was initially due to continue the next day but was instead adjourned to 19 and 24 June 2003 in order to allow the lawyer in one of the applications to prepare his client’s defence. 23. On 12 June 2003, however, the court cancelled the first session as one of the trial judges would be abroad. It further issued an order separating the applications (see paragraph 18 above) and stated that separate decisions would be delivered. 24.", "On 24 June 2003 the parties’ lawyers addressed the court. 25. On 27 November 2003 the court rejected the evidence given by the respondents’ expert and, on the basis of the evidence of the expert it had appointed, ordered a reduction in the rent paid by the applicants. Costs were awarded in favour of the applicants. B.", "Appeal proceedings before the Supreme Court 26. On 7 January 2004 the respondents lodged an appeal before the Supreme Court. 27. By letter dated 9 January 2004 the Registrar of the RCT of Paphos informed the Chief Registrar of the Supreme Court that the records of the proceedings would be transcribed and sent to the Supreme Court by 31 March 2004. 28.", "By a letter dated 9 March 2004 the Supreme Court informed the appellants that their appeal had been entered in the register (appeal no. 11939). 29. By letter 12 May 2004 the Registrar of the RCT of Paphos sent the case file, the court records, the judgment and the list of exhibits to the Supreme Court. 30.", "The appeal was listed for a preliminary hearing on 22 October 2004. On that date directions were given for the submission of written outlines of submissions to be made at the appeal hearing. 31. These were filed on 6 December 2004. 32.", "On 14 January 2005 the applicants informed the court that they had appointed a new lawyer. 33. On 15 April 2005 the appeal was submitted to the Supreme Court but in the absence of an available date it was not set down for hearing. 34. On 23 August 2005 the Chief Registrar of the Supreme Court informed the parties that the appeal had been set down for hearing on 22 November 2005.", "Following an exchange on the matters raised between the court and the parties the hearing was adjourned at the parties’ request until 20 December 2005. 35. On the latter date the parties addressed the court and judgment was reserved. The applicants’ lawyer stated that he was in complete agreement with the first-instance judgment. 36.", "On 27 January 2006 the Supreme Court upheld the appeal and set aside the RCT’s decision. It ordered a retrial of the case. The Supreme Court found that the RCT had erred in its assessment of the evidence that had been put before it. In this connection, it noted that the RCT had failed to take into account the average rental rate of the shops in the area and relevant factors such as the age, condition and facilities of those shops when assessing the rental value of the shop in question. Secondly, it found substantial errors in the valuation made by the RCT’s expert which included the failure to make the necessary adjustments when comparing different properties and to determine the advantages and disadvantages of the properties compared.", "The court considered that the valuation given by the RCT’s expert had been ill-founded and unreliable and that therefore the RCT should not have relied on it. Similarly, the court found that the valuation of the respondents’ expert (the appellants at the appeal stage) had been unsound. In this connection, it noted that this valuation had defined the area in question very narrowly and as a result had not taken into account other nearby shops which should have been considered for comparison purposes. The Supreme Court therefore concluded that overall no evidence had been put forward which would enable the determination of a fair rent in respect of the applicants’ shop. 37.", "Finally, the Supreme Court ordered that the costs of both the first instance and appeal proceedings be paid by the applicants (the respondents at the appeal stage). C. Retrial proceedings before the Rent Control Tribunal 38. Following a request by the Registrar of the RCT of Limassol- Paphos, the Supreme Court, in a letter dated 16 March 2006, gave directions for the retrial of the application. 39. On 6 April 2006 the application was brought before a newly composed RCT and was listed for a directions hearing on 16 May 2006 in view of the possibility of a friendly settlement.", "40. On the latter date the application was fixed for hearing on 21 September 2006. On that date the respondents requested that they be given time to consider the court’s proposals with regard to a settlement. With the applicants’ agreement the application was set down for hearing on 19 October 2006. On the latter date the parties informed the court that they accepted its proposals concerning determination of the rent.", "The applicants’ lawyer claimed his costs [for the retrial] and the respondents’ lawyer claimed the costs of the first trial and appeal. 41. On that date the court determined the rent as agreed and ordered that the respondents pay the retrial costs, as assessed by the Registrar and approved by the court, unless the parties reached a different agreement. D. Other steps taken by the applicants for the recovery of costs 42. During the retrial proceedings, by letter dated 24 May 2006, the applicants’ lawyer requested the Attorney-General to consider whether it would be possible for the State to pay the costs of the proceedings in view of the fact that the errors for which the case was sent back for retrial had not been committed by the applicants.", "43. By letter dated 31 May 2006 the Attorney-General replied that this was not possible since the proceedings in question concerned a trial between private parties and, further, that it was for the courts to take into account all relevant circumstances when determining the matter of costs. II. RELEVANT DOMESTIC LAW 44. Section 43 of the Courts of Justice Law 1960 (Law no.", "14/1960, as amended) provides as follows: “The costs of, and incident to, any civil proceedings, in any court, shall, unless otherwise provided by any law in force for the time being, or any subsidiary legislation, be in the discretion of the court and the court shall have full power to determine by whom and to what extent such costs shall be paid”. 45. Order 59 of the Civil Procedure Rules sets out the rules concerning costs. Rule 1 of this Order provides as follows: “Subject to the provisions of any law or Rules, the costs of, and incident, to any proceeding shall be in the discretion of the Court or Judge, who may authorise an executor, administrator or trustee who has not unreasonably instituted, or carried on, or resisted any proceeding, to have his costs paid out of a particular estate or fund.” 46. Regulation 13 (a) of the Rent Control Rules of 1983 provides: “The award of costs is a matter in the discretionary power of the court.", "The outcome of the case is not the sole factor for the award of costs but all the circumstances of the case must be taken into account.” 47. Section 5 of the Rent Control Law 23/1983 (as amended) provides that the procedure before the Rent Control Tribunal is a summary procedure not bound by the rules of evidence. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS TO THE LENGTH OF THE PROCEEDINGS 48. 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 fair... hearing within a reasonable time by [a] ... tribunal...” 49.", "The Government contested that argument. 50. The period to be taken into consideration began on 2 March 2001 and ended on 19 October 2006. It thus lasted approximately five years and seven months for two levels of jurisdiction at three instances. 51.", "The Government observed that the applicants’ application before the RCT had been joined with another three applications and that there had been a great volume of evidence and a large number of witnesses. Lengthy examinations-in-chief and cross-examinations had taken place. Furthermore, the Government noted that there had not been any significant periods of inactivity. Any intervals had been during the summer vacations when the courts were closed. Lastly, they pointed out that the parties in the proceedings, and the applicants in particular, had applied for adjournments and had not acted diligently, being therefore to a great extent responsible for the length of the proceedings.", "52. The applicants submitted that the overall length of the proceedings had been excessive, in particular considering their simple nature. During the first set of proceedings before the RCT the case had been listed for directions several times. The Government, however, had not been able to provide the Court with the relevant records explaining these delays. There had been long intervals between hearing dates set by the RCT.", "For example on 24 October 2002 it fixed the hearing for 12 December 2002, then one for 20 February 2003 and then one for 22 April 2003. They further observed that the judge of the RCT sat in Paphos, only on Thursday. They pointed out that proceedings before the RCT were of a summary nature with the object of speedy and effective administration of justice. Finally, they submitted that there had been substantial delays in the appeal proceedings. In particular, the hearing of the appeal had begun more than one year and eleven months after it had been lodged.", "This delay had not been explained by the Government. A. Admissibility 53. 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 54. 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). 55.", "The Court finds, firstly, that the case was not complex and that there were no major delays attributable to the applicants during the proceedings. During the first-instance proceedings, however, there was one period of delay between 21 June 2001 and 20 December 2001 for which the Government have not been able to account (see paragraph 10 above). Moreover, the accumulation of intervals between subsequent adjournments had the effect of prolonging these proceedings. 56. The Court further finds that unjustifiable delay occurred in the proceedings before the Supreme Court.", "These proceedings lasted just over two years with the case remaining dormant for most of this period. The Court notes that the case was set down for hearing one year and ten months following the lodging of the appeal and that a period of more than eleven months elapsed from the filing of the parties’ outlines on 6 December 2004 until 22 November 2005 (see paragraphs 31-34 above) when the hearing had been due to take place. Even though after this date the proceedings were concluded promptly, the judgment being delivered approximately only a month following the hearing, the Court cannot ignore the overall delay that occurred in these proceedings. 57. Bearing in mind that the questions before the RCT were relatively simple and that the tribunal applied a summary procedure (see paragraph 47 above), the Court finds that the total length of proceedings at three instances, two of them at the same level, was excessive.", "In particular, the delay which occurred at the appeal stage contributed significantly to the prolongation of the proceedings and was unwarranted. 58. In this connection, the Court states that Article 6 § 1 imposes on the Contracting States the duty to organise their judicial system in such a way that their courts can meet each of its requirements (see Frydlender, § 45, cited above). 59. The Court therefore considers that in the instant case the length of the proceedings failed to meet the “reasonable time” requirement.", "There has accordingly been a breach of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS TO THE FAIRNESS OF THE PROCEEDINGS 1. As to the fairness of the costs order 60. The applicants complained under Article 6 of the Convention that the proceedings had been unfair.", "In particular, they complained that costs had been unfairly ordered against them, in view of the fact that they had not been responsible for the errors committed by the first-instance court. Furthermore, they complained that they had not been heard in relation to this matter and that the Supreme Court’s judgment had not been reasoned in this respect. 61. The Government submitted that, considering the limited and technical nature of the issues arising in costs proceedings, Article 6 of the Convention was not applicable. In any event the applicants had not raised the question of costs before the court or addressed the Supreme Court on this matter, although they had had the right to do so at any stage of the hearing of their appeal or in their written addresses.", "The applicants had known that the Supreme Court would decide on the issue of costs at the end of its judgment. The Government referred to the judgment of the Supreme Court in the case of Kypros Economides and Christos A. Theodoulou v. the Republic of Cyprus through the Council of Ministers, the Minister of the Interior and Director of Town Planning (appeal no. 3196, 4 July 2007) in which the appellants had raised the issue of costs before the Court in their written pleadings and the Supreme Court had addressed the matter in its judgment and applied the general rule that costs follow the outcome of the case. 62. Furthermore, the Government claimed that the applicants had not paid the costs ordered by the Supreme Court, as could be seen from the terms of the final settlement.", "In the Government’s view they could not therefore claim to be “victims” within the meaning of Article 34 of the Convention. Finally, the Government pointed out that the applicants had adopted the valuation of the RCT’s expert in its entirety and, on appeal, had adopted both the valuation and the first-instance judgment. It could therefore be said that this expert had also acted as their valuer in so far as the substance of the case was concerned. The retrial had been ordered because of defects in that valuation. 63.", "The applicants disputed the Government’s submissions. They firstly submitted that although it was general practice that costs on appeal followed the result, in the event that the Supreme Court ordered a retrial the general practice was that the costs followed the result of the retrial. The applicants relied on three judgments of the Supreme Court in which that court had upheld the appeal, ordered a retrial of the case and where the costs of the first-instance and appeal proceedings consisted of trial costs following the retrial proceedings (Antonis Papaioannou v. Nikou Nicolaou, appeal no. 11744, 15 June 2005; A. Athanasiou v. Loizias & Sons Contracting & Building (Overseas) Ltd, appeal no. 8120, 3 December 1993; and Elli Simillidou v. Demetris Stergiou and another, appeal no.", "9048, 18 November 1996). The applicants therefore submitted that there had been no reason to raise the issue before the Supreme Court. Furthermore, they observed that although they had been given the costs of the retrial as part of the friendly settlement they had concluded (see paragraph 40 above), they had had to pay the costs of the first-instance and appeal proceedings. The applicants submitted a receipt by the respondents’ lawyer dated 14 January 2008 confirming that the applicants had paid the costs of both the first-instance and the appeal proceedings. Finally, the applicants argued that the RCT’s expert could not be considered as their valuer.", "64. The Court reiterates that Article 6 § 1 is applicable to costs proceedings, provided that the legal costs which form the subject matter of the proceedings were incurred during the resolution of a dispute which involved the determination of civil rights and obligations (see Beer v. Austria, no. 30428/96, § 12, 6 February 2001, and Baumann v. Austria, no. 76809/01, § 48, 7 October 2004). Since the costs order in the present case was clearly related to the principal civil claim, Article 6 § 1 of the Convention is also applicable to the costs procedure.", "65. The Court reiterates that it is not its function to act as a court of appeal, or as a court of fourth instance, from the decisions taken by domestic courts. It is the role of the domestic courts to interpret and apply the relevant rules of procedural or substantive law (see, amongst many authorities, Edwards v. the United Kingdom, judgment of 16 December 1992, Series A no. 247-B, § 34, and Fehr v. Austria, no.19247/02, § 32, 3 February 2005). 66.", "In the present case the Supreme Court ordered a retrial of the case and granted the costs of both the first-instance and appeal proceedings against the applicants. However, there was no basis on which the applicants could claim a right as such to obtain a costs order, the domestic courts enjoying a wide measure of discretion in this area. Nor does the Court find in the circumstances that the costs order was arbitrary. First of all, the applicants did lose the case on appeal regardless of the retrial order. Secondly, and most importantly, the applicants have not argued that the costs order against them deprived them of effective access to a court, and no such conclusion can be drawn from the facts of the case.", "67. Furthermore, insofar as the applicants impugn the allegedly unfair procedure before the Supreme Court and lack of sufficient reasoning in its decision on costs, the Court would note that the parties could make any submissions they thought fit on costs during the Supreme Court’s proceedings. Moreover, costs’ issues are of an ancillary and largely technical nature to which the guarantees of Article 6 of the Convention must apply with due flexibility, particularly in the higher courts (see, mutatis mutandis, Sutter v. Switzerland, 22 February 1984, § 30, Series A no. 74, and Sawoniuk v. the United Kingdom (dec.), no. 63716/00, ECHR 2001-VI).", "68. Having regard to the foregoing, the Court finds that there is no indication in the present case that the costs order issued by the Supreme Court infringed the fairness requirement of Article 6 § 1 of the Convention. It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. 2. As to the lack of a further appeal 69.", "The applicants further complained under the same provision that they did not have the right to appeal against the Supreme Court’s judgment. In this connection they maintained that there was no third judicial instance in Cyprus before which they could complain about the Supreme Court’s errors. 70. The Court reiterates that neither Article 6 nor any other provision of the Convention or its Protocols guarantee a right to have a civil case heard by three judicial instances (see, amongst other authorities, Miedzyzakladowa Spoldzielnia Mieszkaniowa Warszawscy Budowlani, no. 13990/04, decision of 26 October 2004).", "Furthermore, the Cypriot Constitution does not guarantee such a right. 71. 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. III. 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 applicants claimed 7,553.98 euros (EUR) in respect of pecuniary damage. These were the costs of the first-instance and appeal proceedings they had had to pay to the other party. The applicants submitted a bill of costs in this respect and the receipt of payment.", "Furthermore, the applicants claimed EUR 10,000 for non-pecuniary damage. 74. The Government contested these claims. 75. 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 applicants must have sustained non-pecuniary damage because of the unreasonable length of the proceedings. Ruling on an equitable basis, it awards them EUR 3,200 each under that head, plus any tax that may be chargeable on that amount. B. Costs and expenses 76. The applicants also claimed EUR 5,000 for the costs and expenses incurred before the Court.", "They submitted an invoice in this respect. 77. The Government submitted, in general, that a claim for costs incurred before the Court was not recoverable without the requisite proof. 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 were reasonable as to quantum.", "In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 jointly for the proceedings before the Court, plus any tax that may be chargeable to the applicants. 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 and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention as to the length of the proceedings; 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 3,200 (three thousand two hundred euros) each in respect of non-pecuniary damage and EUR 1,500 (one thousand and five hundred euros) jointly in respect of costs and expenses, plus any tax that may be chargeable to the applicants; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants’ 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. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "SECOND SECTION CASE OF EVRİM İNŞAAT A.Ş. v. TURKEY (Application no. 19173/03) JUDGMENT STRASBOURG 9 February 2010 FINAL 09/05/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Evrim İnşaat A.Ş.", "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,András Sajó,Nona Tsotsoria,Işıl Karakaş, judges,and Sally Dollé, Section Registrar, Having deliberated in private on 19 January 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 19173/03) 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 company, Evrim İnşaat A.Ş. (“the applicant company”), on 20 April 2003. 2.", "The applicant company was represented by Mr M.A. Erol, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3. On 8 December 2008 the President of the Second 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 company, Evrim İnşaat A.Ş., is a construction firm operating in Istanbul. 5. On 10 June 1987 the applicant company signed a contract with a cooperative called Ülkü Kent Yapı Kooperatifi (“the cooperative”) for the construction of dwellings on land belonging to the latter.", "6. In November 1991 the applicant company completed the construction of 65% of the project. However, following the election of a new board of directors by the general assembly of the cooperative, the applicant company’s contract was terminated by the cooperative. 1. Compensation proceedings before the Istanbul Commercial Court 7.", "On 22 July 1992 the cooperative brought an action in the 5th Chamber of the Istanbul Commercial Court (“the first case”) claiming damages from the applicant company on the ground that it had failed to fulfil the terms of the contract. The cooperative argued that the construction of the dwellings should have been completed by 31 August 1991, whereas the applicant company had only done 65% of the work by November 1991. 8. On the same date the applicant company brought a counter action in the 7th Chamber of the Istanbul Commercial Court (“the second case”) claiming damages from the cooperative. The applicant company argued that the cooperative had terminated the contract without giving any reasons.", "9. On an unspecified date the two cases were joined by the 5th Chamber of the Istanbul Commercial Court. In the course of the proceedings the court sought expert opinions five times, which caused substantial delays. For example, on 23 June 1993 the court decided to obtain an expert opinion on the dispute. The case file was transmitted to the experts on 10 September 1993 but their report was not submitted to the court until 13 December 1995.", "10. On 12 May 1999, in the first case, the Istanbul Commercial Court ruled in favour of the cooperative and allowed part of its claim for damages. The parties appealed. 11. On 22 December 1999, in the second case, the Istanbul Commercial Court dismissed the applicant company’s claim for damages, holding that it had failed to prove the damage caused by the termination of the contract by the cooperative.", "12. On 15 June 2000 the Court of Cassation upheld the lower court’s judgment in the first case. The applicant company requested rectification of that decision. 13. On 8 December 2000 the Court of Cassation ruled in favour of the applicant company and quashed its decision of 15 June 2000.", "The case was remitted to the lower court. 14. On 19 March 2001 the Istanbul Commercial Court decided to obtain a new expert opinion on the matter. This opinion was submitted to the court on 3 May 2001. 15.", "On 12 December 2001 the Istanbul Commercial Court ruled in favour of the applicant company and ordered the cooperative to pay 1,806,424,884 Turkish liras. The cooperative appealed. 16. On 30 September 2002 the Court of Cassation upheld the above judgment. That decision was sent to the Istanbul Commercial Court on 30 October 2002 and was served on the applicant on 14 March 2003.", "2. Proceedings for additional compensation 17. On 4 June 2003 the applicant company brought an action in the Istanbul Commercial Court (Istanbul Asliye Ticaret Mahkemesi) against the cooperative requesting additional compensation (munzam zarar), under Article 105 of the Code of Obligations, for the damage it had sustained as a result of the low interest rate applied to the debt. 18. On 30 December 2005 the Istanbul Commercial Court dismissed the action, holding that the applicant company had failed to prove the alleged damage.", "The applicant company appealed. On 20 June 2007 the Court of Cassation upheld the judgment. On 17 March 2008 the Court of Cassation dismissed a request by the applicant company for rectification. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 19.", "The applicant complained that the length of the first set of compensation proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention, which insofar as relevant reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 20. The Government contested that argument. 21. The period to be taken into consideration began on 22 July 1992 and ended on 30 September 2002. It thus lasted some ten years and two months at two levels of jurisdiction.", "A. Admissibility 22. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 23. The 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). 24. 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).", "25. 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. 26. There has accordingly been a breach of Article 6 § 1.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 27. In a letter dated 23 August 2004, the applicant company raised a further complaint under Article 13 of the Convention, alleging that there were no remedies in domestic law in respect of the complaint under Article 6 of the Convention. 28. The Government contested the complaint.", "29. The Court notes that this complaint was introduced more than six months after the conclusion of the proceedings in question. It follows that it must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention, for non-compliance with the six-month rule. III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.", "1 TO THE CONVENTION 30. The applicant company complained that the excessive length of the proceedings had also infringed its right to the peaceful enjoyment of possessions, as guaranteed by Article 1 of Protocol No. 1. 31. The Government submitted that there had been no violation of this provision.", "32. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 33. However, having regard to its finding under Article 6 § 1 (see paragraph 26 above), the Court considers that it is not necessary to examine separately whether there has also been a violation of Article 1 of Protocol No. 1 (see Öztunç v. Turkey, no.", "74039/01, §32, 27 March 2007, and Zanghì v. Italy, 19 February 1991, § 23, Series A no. 194-C). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 34. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 35. The applicant claimed 287,180 euros (EUR) in respect of pecuniary damage and EUR 15,000 for non-pecuniary damage. 36. The Government submitted that the amounts claimed were excessive. 37.", "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 applicant company must have sustained some non-pecuniary damage. Accordingly, deciding on an equitable basis, it awards the applicant company EUR 6,000 in respect of non-pecuniary damage. B. Costs and expenses 38.", "The applicant company also claimed EUR 10,000 for costs and expenses incurred before the Court. It did not however submit any documents in support of that claim. 39. The Government contended that request was unsubstantiated. 40.", "According to the Court’s case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the above criteria and the applicant company’s failure to substantiate its claim, the Court makes no award under this head. C. Default interest 41. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that it is not necessary to make a separate examination of the merits of the complaint under Article 1 of Protocol No. 1; 4. Holds (a) that the respondent State is to pay the applicant company, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into new Turkish liras 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 company’s claim for just satisfaction. Done in English, and notified in writing on 9 February 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléFrançoise TulkensRegistrarPresident" ]

[ "CASE OF SALMAN v. TURKEY (Application no. 21986/93) JUDGMENT STRASBOURG 27 June 2000 This judgment is subject to editorial revision before its reproduction in final form in the official reports of selected judgments and decisions of the Court. In the case of Salman v. Turkey, The European Court of Human Rights, sitting, in accordance with Article 27 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), as amended by Protocol No. 11[1], and the relevant provisions of the Rules of Court2, as a Grand Chamber composed of the following judges: MrL. Wildhaber, President,MrJ.-P. Costa,MrA.", "Pastor Ridruejo,MrL. Ferrari Bravo,MrG. Bonello,MrJ. Makarczyk,MrP. Kūris,MrsF.", "Tulkens,MrV. Butkevych,MrJ. Casadevall,MrsN. Vajić,MrsH.S. Greve,MrA.B.", "Baka,MrR. Maruste,MrsS. Botoucharova,MrM. Ugrekhelidze,MrF. Gölcüklü, ad hoc judge, and also of Mr M. de Salvia, Registrar, Having deliberated in private on 2 February and 31 May 2000, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.", "The case was referred to the Court, as established under former Article 19 of the Convention[3], by the European Commission of Human Rights (“the Commission”) on 7 June 1999, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention. It originated in an application (no. 21986/93) against the Republic of Turkey lodged with the Commission under former Article 25 by a Turkish national, Mrs Behiye Salman, on 20 May 1993. The Commission's request referred to former Articles 44 and 48 and to Rule 32 § 2 of former Rules of Court A[2]. 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 Articles 2, 3, 13, 18 and former Article 25 of the Convention.", "2. On 20 September 1999 a panel of the Grand Chamber decided that the case would be examined by the Grand Chamber of the Court (Article 5 § 4 of Protocol No. 11 and Rules 100 § 1 and 24 § 6 of the Rules of Court). The Grand Chamber included ex officio Mr R. Türmen, the judge elected in respect of Turkey (Article 27 § 2 of the Convention and Rule 24 § 4), Mr L. Wildhaber, the President of the Court, Mrs E. Palm, Vice-President of the Court, and Mr J.-P. Costa and Mr M. Fischbach, Vice-Presidents of Sections (Article 27 § 3 of the Convention and Rule 24 §§ 3 and 5 (a)). The other members appointed to complete the Grand Chamber were Mr A. Pastor Ridruejo, Mr G. Bonello, Mr J. Makarczyk, Mr P. Kūris, Mrs F. Tulkens, Mrs V. Strážnická, Mr V. Butkevych, Mr J. Casadevall, Mrs H.S.", "Greve, Mr A.B. Baka, Mr R. Maruste and Mrs S. Botoucharova (Rules 24 § 3 and 100 § 4). Subsequently Mr Türmen, who had taken part in the Commission's examination of the case, withdrew from sitting in the Grand Chamber (Rule 28). On 22 October 1999 the Turkish Government (“the Government”) appointed Mr F. Gölcüklü to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). Mr Fischbach and Mrs Strážnická, who were unable to take part in the further consideration of the case, were replaced by Mrs N. Vajić and Mr M. Ugrekhelidze, substitute judges (Rule 24 § 5 (b)).", "3. The Registrar received the memorial of the applicant on 2 December 1999 and the memorial of the Government on 4 January 2000. 4. A hearing took place in public in the Human Rights Building, Strasbourg, on 2 February 2000. There appeared before the Court: (a) for the GovernmentMrM.", "Özmen, Agent,MsY. Kayaalp,MrO. Zeyrek,MsM. Gülsen,MrH. Çetinkaya,Advisers; (b) for the applicantMsA.", "Reidy, Counsel,MsF. Hampson,MrO. Baydemir,MsR. Yalçindağ,MrM. Kilavuz,Advisers.", "The Court heard addresses by Ms Reidy and Mr Özmen. 5. On 31 May 2000 Mrs Palm, who was unable to take part in further consideration of the case, was replaced by Mr L. Ferrari Bravo (Rules 24 § 5 (b) and 28). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6.", "The facts of the case, particularly concerning events on 28 and 29 April 1992 when Agit Salman, the applicant's husband, was detained by police and subsequently died, were disputed by the parties. The Commission, pursuant to former Article 28 § 1 (a) of the Convention, conducted an investigation with the assistance of the parties. The Commission heard witnesses in Ankara from 1 to 3 July 1996 and in Strasbourg on 4 December 1996 and 4 July 1997. The witnesses included the applicant; her son Mehmet Salman; her brother-in-law İbrahim Salman; Ahmet Dinçer and Şevki Taşçı, police officers who apprehended Agit Salman; Ömer İnceyılmaz, Servet Ozyılmaz and Ahmet Bal, custody officers on duty over the period of Agit Salman's detention; İbrahim Yeşil, Erol Çelebi and Mustafa Kayma, interrogation team officers who took Agit Salman to the hospital; Tevfik Aydın, the Adana public prosecutor who attended the autopsy; Dr Ali Tansı, the doctor at the Adana State Hospital who declared that Agit Salman was dead; Dr Fatih Şen, who conducted the autopsy; Dr Derek Pounder, Professor at Aberdeen University, a forensic expert called by the applicant, and Dr Bilge Kirangil, a member of the Istanbul Institute of Forensic Medicine which had reviewed the autopsy carried out by Dr Fatih Şen. The Commission also requested an expert opinion on the medical issues in the case from Professor Cordner, Professor of Forensic Medicine at Monash University, Victoria (Australia) and Director of the Victorian Institute of Forensic Medicine.", "7. The Commission's findings of fact, which are accepted by the applicant, are set out in its report of 1 March 1999 and summarised below (Section A). The Government's submissions concerning the facts and the expert medical reports are also summarised below (Sections B and C respectively). A. The Commission's findings of fact 8.", "Agit Salman, the applicant's husband, worked as a taxi driver in Adana. At the time of events in this case he was 45 years old. He had no history of ill-health or heart problems. 9. On 26 February 1992 Agit Salman was taken into custody by police officers from the anti-terrorism branch of the Adana Security Directorate.", "İbrahim Yeşil was the officer in charge of interrogating him. Agit Salman was released at 5.30 p.m. on 27 February 1992. He told the applicant and their son Mehmet that he had been beaten and immersed in cold water during the night of his detention. He remained off work for two days with a chill. 10.", "During an operation conducted to apprehend a number of persons suspected of involvement with the PKK (Workers' Party of Kurdistan), police officers came to the applicant's house in the early hours of 28 April 1992, looking for Agit Salman. He was on a wanted list for activities which included attending the Newroz (Kurdish New Year) celebrations on 23 March 1992 and involvement in starting a fire and in an attack on the security forces in which one person died and four were injured. However, Agit Salman was out working in his taxi. 11. Police officers located Agit Salman at a taxi rank at Yeşilova at about 1 a.m. on 28 April 1992.", "Assistant Superintendent Ahmet Dinçer and officers Şevki Taşçı and Ali Şarı took him into custody. The apprehension report of the officers made no mention of any struggle or the necessity to use force to place Agit Salman in the police car. There was an inconsistency between their written statements later given to the public prosecutor on 22 May 1992 when they stated that some pushing and pulling might have occurred and their evidence to the Commission. In their oral evidence to the Commission delegates, Ahmet Dinçer and Şevki Taşçı were adamant that they had to lead Agit Salman by the arms to the car but this did not involve the use of force and he did not receive any knocks or marks in the process. Mehmet Salman heard from the taxi drivers at the taxi rank that his father had not resisted arrest, nor had two taxi drivers who were asked to give statements by the public prosecutor heard that Agit Salman had resisted arrest.", "12. Agit Salman was not taken to a doctor before being placed in a cell in the custody area. The Commission found that it was not established that he had suffered any injury on arrest or that he showed any signs of ill-health or respiratory difficulties. 13. The custody officer on duty, Ömer İnceyılmaz, entered Agit Salman's arrival in the custody area as occurring at 3 a.m. on 28 April 1992.", "There was no information recorded or evidence accounting for the time which elapsed between his apprehension, which took place according to the arresting officers' report at 1.30 a.m., and his registration in the custody area at 3 a.m. 14. Assistant Superintendent İbrahim Yeşil was the leader of the interrogation team assigned to Agit Salman. His team included officers Erol Çelebi, Mustafa Kayma and Hasan Arinç. 15. Two other suspects are known to have been apprehended in connection with the same operation: Behyettin El, taken into custody on 25 April 1992, and Ferhan Tarlak, detained also on 28 April 1992.", "A third suspect, Ahmet Gergin, was also detained in the custody area in relation to the offences under investigation. İbrahim Yeşil took a statement from Behyettin El and Ahmet Gergin on 29 April 1992. Behyettin El stated that he had been interrogated before the arrival of Ferhan Tarlak, which would have been on or before 28 April 1992. 16. No records existed of the movements of detainees to and from their cells, for example, noting the times of interrogations.", "The police officers concerned in the events denied in their statements to the public prosecutor taken between 18 and 25 May 1992 that Agit Salman had been interrogated during his detention, in particular, as no interrogations would take place before the operation was completed. İbrahim Yeşil, Mustafa Kayma and Hasan Arinç gave oral evidence to the same effect to the Commission's delegates. The Commission found that their assertion that Agit Salman had not been questioned during the twenty four hours following his apprehension to be implausible, inconsistent and lacking in credibility (see the Commission's analysis of the evidence, Commission's report of 1 March 1999, §§ 271-78). Taking into account also the other evidence, it found that Agit Salman had been questioned by the interrogation team during his period of detention. 17.", "In the early hours of 29 April 1992 İbrahim Yeşil, Mustafa Kayma, Hasan Arinç and Erol Çelebi brought Agit Salman to the Adana State Hospital. Dr Ali Tansı examined him immediately. His heartbeat, breathing and other vital functions had stopped, cyanosis had developed on the face and ears and the pupils were dilated. He declared that Agit Salman was dead on arrival and concluded that he had died fifteen to twenty minutes previously. 18.", "According to a statement signed by the police officers who had said they had brought Agit Salman to hospital at 2 a.m. on 29 April 1992, the custody officer had informed them at 1.15 a.m. that Agit Salman was ill. The suspect told them that his heart was giving him trouble and they took him without delay to the State Hospital emergency ward. 19. On 29 April 1992 Dr Fatih Şen, the forensic doctor at Adana, examined the body in the presence of the public prosecutor. The examination record noted that there were two dried 1 cm by 3 cm graze wounds at the front of the right armpit, a fresh 1 cm by 1 cm graze on the front of the left ankle and an old traumatic ecchymosis measuring 5 cm by 10 cm on the front of the chest.", "There were no injuries from a pointed instrument or firearm. He concluded that an autopsy was necessary to discover the cause of death. The documents indicate that the autopsy was carried out the same day. Samples of organs were sent for analysis. 20.", "At about 1 p.m. on 29 April 1992 Mehmet Salman was brought by the police to the Security Directorate, where the public prosecutor informed him that his father had died of a heart attack. İbrahim Salman went to the forensic department on 30 April 1992 to identify the body. The body was released to the family who undertook to bury it the day before May Day. The family washed the body at the cemetery. İbrahim Salman saw bruises and visible marks in the armpits.", "There were marks in the back resembling holes. There were marks on one foot, which was swollen. Four colour photographs of the body were taken on behalf of the family. 21. On 21 May 1992 Dr Fatih Şen issued the autopsy report.", "It repeated the physical findings of the examination record, this time describing the ecchymosis on the front of the chest as purple. The internal examination disclosed that the lungs weighed 300 g each and were oedematic and that the heart, weighing 550 g, was larger than the norm. The brain was oedematic. There was some indication of arteriosclerosis in certain vessels and the parietal layer of the myocard adhered tightly to the heart. The sternum was fractured and the surrounding soft tissues revealed fresh haemorrhage which could have been caused by attempted resuscitation.", "Reference was made also to the histopathological report of 18 May 1992, which found chronic bronchitis in the lungs, arteriosclerotic changes narrowing the lumen in the coronary arteries and chronic constructive pericarditis, chronic myocarditis, myocardial hyperplasy and hypertrophy in the heart. The toxicology report of 14 May 1992 found no abnormalities. The report concluded that the actual cause of death could not be established and suggested that the case should be referred to the Istanbul Forensic Medicine Institute. 22. On 22 May 1992 the photographs taken by the family were handed over to the public prosecutor.", "23. Statements were taken by the public prosecutor from the interrogating team (İbrahim Yeşil, Hasan Arinç, Mustafa Kayma and Erol Çelebi) on 18 May 1992. Statements were taken from the arresting officers Ahmet Dinçer, Ali Sarı and Şevki Taşçı and the custody officers Ahmet Bal, Servet Ozyılmaz and Ömer İnceyılmaz on 22 May 1992. Statements were also taken from Behyettin El and Ferhan Tarlak on 8 May 1992, the applicant on 26 May 1992, Temir Salman (the father of Agit Salman) on 29 May 1992, Hasan Çetin and Abdurrahman Bozkurt, two taxi drivers, on 29 and 30 June 1992 respectively and from Dr Ali Tansı on 30 June 1992. 24.", "On 15 July 1992 the Istanbul Forensic Medicine Institute issued its opinion, which was signed by seven members of the First Specialist Committee, including Dr Bilge Kirangil. This report recalled that Agit Salman had been pushed and shoved during his arrest, that he had become unwell before his interrogation or, as was claimed, that he had died during interrogation. It deduced from the witness statements that he had been in his cell until he complained that his heart was giving him trouble, at which point he was taken immediately to hospital. The report took up the findings of the internal and external examination conducted at the autopsy. It concluded that, apart from small, fresh, traumatic abrasions on the ankle and the old purple ecchymosis on the front of the chest, no other traumatic injuries were identified.", "The fresh haemorrhage around the sternum could be attributed to a resuscitation attempt. There was no evidence to suggest that he had died from any direct trauma. The superficial traumas on his body could be attributed to his resistance and struggle on arrest or his being put in the police vehicle, although they could have been inflicted directly. They were not independently fatal. The relatively large size of the heart, the sclerosis in the heart arteries and the signs of an old infectious disease on the membrane and muscles of the heart, pointed to a long-standing heart disease.", "The report concluded that, although the deceased had lived and worked actively prior to his arrest, his death within twenty-four hours of being apprehended could have been caused by cardiac arrest connected with neurohumoral changes brought about by the pressure of the incident in addition to his existing heart disease. 25. On 19 October 1992 the Adana public prosecutor issued a decision not to prosecute. He stated that at about 1.15 a.m. on 29 April 1992 Agit Salman had informed officers that his heart was giving him trouble and he had been taken to Adana State Hospital, where he died. According to the forensic report, Agit Salman had had a long-standing heart disease, any superficial injuries could have occurred during his arrest and death was the result of a heart attack brought on by the pressure of the incident and his heart problem.", "There was no evidence justifying a prosecution. 26. On 13 November 1992 the applicant appealed against the decision not to prosecute, claiming that Agit Salman had been interrogated and had died under torture. 27. On 25 November 1992 the President of the Tarsus Assize Court rejected the applicant's appeal.", "28. On 22 December 1992 the Minister of Justice referred the case to the Court of Cassation under Article 343 of the Code of Criminal Procedure. On 16 February 1994 the Court of Cassation quashed the non-prosecution decision and sent the case back to the Adana public prosecutor for the preparation of an indictment. 29. In an indictment dated 2 May 1994, ten police officers (Ömer İnceyılmaz, Ahmet Dinçer, Ali Sarı, Şevki Taşçı, Servet Ozyılmaz, Ahmet Bal, Mustafa Kayma, Erol Çelebi, İbrahim Yeşil, Hasan Arinç) were charged with homicide in case no.", "1994/135. Hearings took place before the Adana Assize Court on, inter alia, 27 June, 26 September, 31 October and 1 December 1994. The defendants pleaded not guilty. Oral statements were given by six of the ten police officers (Ahmet Dinçer, Şevki Taşçı, Mustafa Kayma, Erol Çelebi, İbrahim Yeşil and Hasan Arinç) maintaining their written statements and denying any ill-treatment of Agit Salman. The court also heard Temir Salman, the father of Agit Salman, the applicant and Dr Ali Tansı, the doctor on duty in the emergency ward at Adana State Hospital.", "A written statement was obtained from Behyettin El. 30. In its decision of 26 December 1994, the Adana Assize Court found that it could not be established that the defendants had exerted force or used violence on Agit Salman or threatened him or tortured him in order to force him to confess. The superficial traumas on his body could have derived from other causes, for example, when he was arrested. The forensic reports indicated that Agit Salman had died from his previous heart condition being compounded by superficial traumas.", "However, there was no evidence proving that the traumas were caused by the accused. It acquitted the defendants on the ground of inadequate evidence. 31. The applicant, who had been a party to the proceedings as a complainant, did not appeal against the acquittal which became final on 3 January 1995. 32.", "The Commission found, in light of the written and oral evidence, the photographs and the medical opinions given by Professor Pounder and Professor Cordner, that Agit Salman had died rapidly, without a prolonged period of breathlessness. There were marks and abrasions on his left ankle for which there was no explanation and there was bruising and swelling on the sole of the left foot, which could not have been caused accidentally. These were consistent with the application of falaka (see paragraph 71 below). The bruise in the centre of the chest had not been dated with any accuracy by histopathological means and had not been shown to be dissociated from the broken sternum. These injuries together could not have been caused by cardiac massage.", "The Commission also disbelieved the oral evidence of officers İbrahim Yeşil, Mustafa Kayma and Erol Çelebi that cardiac massage had been applied, noting that this had first been mentioned as having occurred when evidence was given before its delegates in July 1996, four years after the events. The Commission concluded that Agit Salman had been subjected to torture during interrogation, which had provoked cardiac arrest and thereby caused his death. 33. On 24 January 1996 the applicant was summoned to the anti-terrorism branch of the Adana Security Directorate. A statement was taken by officers, on which her thumbprint was placed.", "It was headed “Concerning her application for help to the European Human Rights [institutions]” and began, “The witness was asked: You are asked to explain whether you applied to the European Human Rights Association, if you asked for help and whether you filled in the application form. Who mediated in your application?” The statement purported to set out her explanations as to how she came to submit her application to the Commission. She confirmed that the legal aid documents had been filled in by her. In her oral evidence, which the Commission found credible and substantiated, the applicant claimed that she had been blindfolded, kicked and struck at the Directorate and that the officers had told her to drop the case. 34.", "The applicant was summoned a second time. A report dated 9 February 1996, signed by police officers, listed details of the applicant's income and expenditure and confirmed her declaration of means. On this or another date, she was taken before the public prosecutor and again asked about her statement of means. No threats were made during that interview. B.", "The Government's submissions on the facts 35. The Government referred to the evidence given by the police officers, the autopsy report and the report of the Istanbul Forensic Medicine Institute, and the oral evidence of Dr Bilge Kirangil before the Commission's delegates. 36. Agit Salman had suffered from a pre-existing heart disease. When he was arrested, he sustained minor injuries.", "The bruise on his chest, which was purple and therefore old, predated his arrest. During his detention in the custody area at Adana Security Directorate, he was not interrogated as the operation had not yet been completed. At about 1 a.m., he called for assistance and told the custody officer that his heart was giving him trouble. The custody officer sought help from the officers of the interrogating team who were waiting nearby for the next stage of the operation. These officers put Agit Salman, who was having difficulty breathing, in a police van and drove him to the hospital.", "On the way, they stopped the van and Mustafa Kayma briefly applied mouth-to-mouth resuscitation and cardiac massage. They took Agit Salman to the emergency ward, where they were told that he had died. 37. The autopsy and the report of the Istanbul Forensic Medicine Institute established that Agit Salman had not suffered any major trauma, that the broken sternum was caused by cardiac massage and that he had died of natural causes, despite all possible assistance being given. 38.", "In her evidence before the Commission delegates, Dr Bilge Kirangil had expressed the opinion that the bruise on the chest was at least 2 to 3 days old and unrelated to the broken sternum and that the oedema in the brain was indicative of a prolonged period of breathlessness prior to death. No findings could be drawn from the photographs, which were amateur and of poor quality. She did not consider the lack of proper forensic photographs to be a major deficiency. There had been no findings of ill-treatment in the Institute's report since there was no evidence of such. Cardiac arrest as in this case could be triggered by hormonal or environmental factors, such as extremes of temperature.", "If a direct blow had caused the bruise and fractured the sternum, she would have expected to see contusion and ecchymosis on the back surface of the sternum and bruising on the front and back surface of the right ventricle of the heart. While the lungs of an individual who had been breathless for thirty minutes could generally be expected to increase to a weight of 500 to 600 g, this was not necessarily the case but depended on the individual (see the summary of Dr Kirangil's evidence, Commission's report, §§ 233-41). C. The expert medical reports 1. Report of Professor Pounder submitted on 26 November 1996 on behalf of the applicant 39. Professor Pounder was Professor of the Department of Forensic Medicine at the University of Dundee, and was, inter alia, a Fellow of the Royal College of Pathologists, Overseas Fellow of the Hong Kong College of Pathologists, a Fellow of the Faculty of Pathology of the Royal College of Physicians of Ireland and a Fellow of the Royal College of Pathologists of Australasia.", "The report was drafted, inter alia, on the basis of the domestic autopsy documents and statements and testimony of witnesses. It may be summarised as follows. 40. The autopsy findings indicated that Agit Salman suffered from pre-existing natural heart disease, namely, chronic inflammation involving pericardial adhesions, which was old and inactive. In the distant past, he might have suffered from rheumatic heart disease, which would have manifested itself at that time as an acute febrile illness, without necessarily any symptoms of heart involvement.", "The heart was enlarged, weighing 550 g, showing that the heart muscle had increased to compensate. 41. A heart with a weight greater than 500 g might give rise to sudden unexpected death at any time as a consequence of an abnormality of heart rhythm. This might be precipitated by physical or emotional stress or occur apparently spontaneously without any precipitating event. 42.", "In addition to the heart disease, there were four injuries. At the front of the right armpit, there were two abrasions, each 3 cm by 1 cm and described as dried and parchmented. It was not apparent whether they had been dissected to discover if there was any associated bruising but, given the description, it was reasonable to accept they were post-mortem changes. There were two grazes measuring 1 cm by 1 cm on the front of the left ankle and described as fresh and bloody. It appeared that these must have been caused during the period of police detention, but their location and size did not point to any specific cause.", "There was a 5 cm by 10 cm bruise in the centre of the chest, which was described as old and purple in colour. The sternum was fractured, with fresh bleeding in adjacent soft tissues. 43. The bruise to the chest directly overlay the fracture to the sternum. The haemorrhage around the fracture suggested that the fracture was produced before and not after death.", "The production of such a fracture would be sufficient to induce an abnormality in the rhythm of the underlying heart and thus cause a sudden death. Consequently, the fracture of the sternum represented a possible cause of death. While, theoretically, a fracture could be produced by a fall, it would be unusual, requiring impact on a raised object or edge and it would be associated with injuries to other parts of the body. Cardiac massage could also produce a fracture if very considerable force was applied. The fracture could also have been produced by a blow.", "In that case, bruising of the skin would be expected, even if the death which followed was rapid. Although Dr Fatih Şen characterised the bruise on the chest as old and by implication as resulting from a different event, his own view was that, given that the bruise directly overlay the fracture, it would require compelling medical evidence to conclude that they were unrelated. Dr Şen's opinion on the age of the bruise was based on the subjective, naked-eye assessment of the colour. However, the bruise was described as purple, which was entirely consistent with a fresh bruise. A bruise 2 to 3 days old would have been expected to have developed a yellowish tinge.", "A simple histopathological test would have clearly established whether it was a fresh bruise or an old bruise. Such a bruise would not have occurred as a result of the hand pressure applied during cardiac massage. His opinion was that, given the contiguity of the bruise and fracture and the absence of any clear evidence that the bruise occurred on a separate occasion, the bruise and fracture occurred at the same time as a result of a blow, which precipitated an abnormality of heart rhythm. 44. The autopsy findings, in particular the weight of the lungs (300 g each, that is, close to the minimum) indicated that the death was very rapid rather than prolonged.", "In individuals dying slowly with gradual heart failure, a lung weight of 500 to 600 g was common and up to 1,000 g could occur. This was the result of accumulation of fluid in the lungs consequent on the failure of the pumping action of the heart and was expressed clinically by breathlessness and difficulty in breathing. Deaths involving instantaneous collapse were associated with light lung weight as in this case. A relatively slow death would also be associated with a congested liver. Thus, the autopsy findings and histopathological examination weighed heavily against the possibility of a prolonged dying period with symptoms of breathlessness and pointed rather towards a rapid death.", "45. As regarded the autopsy procedures, these were seriously deficient. Although the only two theoretical possibilities for the fracture were external heart massage or a blow, no steps were taken to establish conclusively whether or not massage had been performed. The statement in the autopsy report that it could have been caused by massage did not represent a full and frank statement and could be misread to imply that Dr Şen had knowledge that such resuscitation was attempted whereas he did not. He should have distinguished fact from speculation.", "There was also a need to include as much descriptive detail as possible concerning the bruise, fracture and heart disease and in this respect the detail was manifestly insufficient. 2. Additional Report of Professor Pounder submitted on 26 November 1996 on behalf of the applicant 46. In the addendum of 26 November 1996, there was an analysis of the four photographs, which were described as being of poor quality. However, the photograph of the soles of the feet nonetheless showed a distinctive purple-red discolouration of the sole of the left foot, with mild swelling.", "The right little toe had a white glistening band at its base. The discolouration of the instep and sole of the left foot was strongly suggestive of bruising with associated minor swelling and was not consistent with post-mortem gravitational pooling of blood. Bruising of this extent could not be produced as a result of post-mortem injury and injury in such a location was unlikely to be caused by a fall sustained while the victim was alive. Therefore the injury was strongly suggestive of one or more blows to the foot. The mark to the right little toe was strongly suggestive of a ligature mark, although there was no congestion such as to suggest tight application of a ligature while the victim was alive; nor was the appearance suggestive of the passage of electricity.", "Neither possibility could be excluded and the mark was unusual. 47. The red injuries to the front of the left ankle, taken with the injuries to the sole of the left foot, suggested that the ankles were restrained by a mechanism across the front of both ankles and that, so restrained, the person was struck on the sole of his left foot. 48. The marks in the right armpit were not clearly shown.", "Their position, alignment and colouration were not what would normally be expected of post-mortem artefactual injury and raised the possibility of an electrical contact mark produced while the victim was alive. Combined with the unusual marking to the right little toe, it raised the suspicion of the use of electricity with one terminal tied round the little toe and the other terminal applied to the right armpit. Whether or not the marks were electrical burns could have been established by histopathological examination. 49. The photograph of the back showed post-mortem artefactual staining, with white areas of contact pallor.", "There were distinct marks, including a bright red abrasion at the spine at waist level and above this two dark reddish marks. Above these was a horizontal line of pink bruising or abrasion. All these could be post-mortem injuries, caused by the manipulation of the body over a rough or cutting surface. They could also have been caused before death. To distinguish the two would have required dissection.", "50. The photographs indicated that the autopsy dissection was inadequate in that the back was not dissected, nor were the sole of the left foot or the injuries to the ankle. It was not clear whether the injury to the armpit was dissected. They also indicated that the description of the body in the autopsy was incomplete. 3.", "Report of Professor Cordner submitted on 12 March 1998 at the request of the Commission 51. This report was drawn up by Professor Cordner, instructed by the Commission's delegates (see paragraph 6 above), on the basis of the domestic medical evidence, the witness testimonies, the reports of Professor Pounder and the photographs supplied by the applicant. 52. As regarded the photographs, the variation in colour or mottling on the foot represented bruising. He considered that the photograph was too blurred to conclude that the white glistening band on the right little toe was associated with a ligature nor could he reach any conclusion that the marks in the right armpit were the result of the application of electrical devices.", "On the legs, he noted, in addition to the marks which could correspond to the abrasions on the left ankle, small areas of reddening on the front and inner side of the right ankle. He agreed with Professor Pounder's findings on the back and noted in addition other areas of redness. Without the benefit of a dissection and/or histology of the dissection, the nature of the marks was uncertain. They could have been caused before death or be a post-mortem phenomenon. Bruising of the soles of the feet was relatively unusual and represented at least moderately severe force.", "Beating on the sole of the foot could cause such bruising. A person with such an injury would not be able to walk without at least an obvious limp. 53. As regarded the ageing of the chest bruise, recent authors in forensic medicine agreed that caution should be exercised. It was not practicable to construct an accurate calendar of colour changes as was done in earlier textbooks as there were too many variables.", "If the purple colour of the chest bruise was relied on to distinguish its age from the “fresh” haemorrhage around the sternal fracture, this was an invalid conclusion. The materials did not permit a distinction in age to be drawn between the two. A recent study issued to show the level of disagreement amongst authors concluded that the only point of agreement was that a bruise with identifiable yellowing was more than 18 hours old. Thus, the purple bruise could be fresh (that is, less than 24 hours old) but could be older. 54.", "Concerning the broken sternum, there had been no complaint of chest pain so one could infer that it occurred shortly before or around the time of death. His view was that there was a coincidence of two injuries (the bruise and the fracture) which could not be distinguished in age, or there was just one injury. If there was no chest bruise when Agit Salman was taken into custody, the issue was relatively easily resolved. Most pathologists would tend to regard them, prima facie, as one injury or state that there was a rebuttable presumption that they were one injury. As regarded the possibility of the bruising and fractured sternum being caused by an attempt at resuscitation, significant chest bruising was rare in this context.", "Sternal fractures caused by cardiopulmonary resuscitation were usually associated with fractured ribs and not with surrounding haemorrhage or overlying bruising. If the chest bruise and fracture with accompanying haemorrhage were the result of one trauma, it was not one associated with a resuscitation attempt. A fracture from a fall onto a flat surface would be unusual. A heavy direct fall onto a relatively smooth broad protrusion could cause such an injury but he had no recollection of having seen this as an isolated accidental injury (that is, without injuries to other parts of the body occurring at the same time). A blow from a fist, knee or foot could also cause such an injury.", "55. Lungs with oedema sufficient to be regarded as a sign of heart failure and to cause breathlessness of twenty to thirty minutes weighed more than 300 g. The lung weights in this case fitted with a substantially more rapid death. The oedema found in the brain was not significant, the weight of the victim's brain being slightly under the average brain weight for a man of his age. 56. The finding of underlying heart disease was undisputed.", "In his view, the best explanation for the death was as follows. Before he died, Agit Salman sustained significant traumas to the sole of his left foot and to the front of his chest, causing bruising and prima facie fracturing the sternum and causing a surrounding haemorrhage. Fear and pain associated with these events resulted in a surge of adrenalin increasing the heart rate and raising blood pressure. This put a severe strain on an already compromised heart, which caused cardiac arrest and a rapid death. Alternatively, the compression of the chest associated with the fracturing of the sternum fatally disturbed the rhythm of the heart without leaving observable damage.", "The weakness of this opinion lay in the conclusion that the chest injuries represented one trauma rather than two, and this depended partly on circumstantial factors and could not be completely resolved. However, even allowing for the possibility that they were separate injuries, the chest bruise could still be regarded as fresh and as having occurred while in custody, in which case the formal cause of death would be the same, namely, cardiac arrest in a man with heart disease following the occurrence of injuries to the left foot and chest. If the fractured sternum was regarded as due to an attempt at resuscitation, the cause of death would only change if it was concluded that the bruise occurred prior to being taken into custody. 57. The critical task of an autopsy in this case was to evaluate the circumstances in which it was proposed that this man died, in particular, whether it was a natural death in custody or not.", "In this evaluation, the age of the chest bruise was critical. Even allowing for Dr Şen's view of the age based on colour, the autopsy should have been conducted in a way which allowed another pathologist at another time to come to his or her own view. Important observations had to be justified objectively. In the absence of photographs, histology was the obvious way for Dr Şen to establish the truth of his view. The lack of proper photographs had also seriously impeded the investigation and evaluation of this case.", "Deficiencies also appeared in the insufficient subcutaneous dissection to seek out bruises not visible externally and the absence of a histological examination of the lesions critical to the proper evaluation of the circumstances of the death. 58. Professor Cordner had met Professor Pounder professionally. He had not met either Dr Kirangil or Dr Şen. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 59. The principles and procedures relating to liability for acts contrary to the law may be summarised as follows. A. Criminal prosecutions 60. Under the Turkish Criminal Code all forms of homicide (Articles 448-55) and attempted homicide (Articles 61-62) constitute criminal offences.", "It is also an offence for a State employee to subject anyone to torture or ill-treatment (Article 243 in respect of torture and Article 245 in respect of ill-treatment). The authorities' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutors' offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151).", "If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the exercise of his duty is liable to imprisonment. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure). 61. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout Turkey.", "62. If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor's jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect's status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. An appeal to the Supreme Administrative Court lies against a decision of the council.", "If a decision not to prosecute is taken, the case is automatically referred to that court. 63. By virtue of Article 4, paragraph (i), of Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law (see paragraph 62 above) also applies to members of the security forces who come under the governor's authority. 64.", "If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9 to 14 of Law no.", "353). The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person's life by disobeying an order (Article 89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 60 above) or with the offender's superior. B.Civil and administrative liability arising out of criminal offences 65. Under section 13 of Law no.", "2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. 66. Article 125 §§ 1 and 7 of the Constitution provides: “All acts or decisions of the authorities are subject to judicial review ... ... The authorities shall be liable to make reparation for all damage caused by their acts or measures.” That provision establishes the State's strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people's lives or property, without it being necessary to show a tortious act attributable to the authorities.", "Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons. 67. Article 8 of Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 66), provides: “No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.” 68.", "Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41-46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant's guilt (Article 53). However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule.", "When an act is found to be illegal or tortious and, consequently, is no longer an “administrative” act or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim's right to bring an action against the authority on the basis of its joint liability as the official's employer (Article 50 of the Code of Obligations). III. RELEVANT International reports A. Investigations by the European Committee for the Prevention of Torture (CPT) 69. The European Committee for the Prevention of Torture (CPT) has carried out seven visits to Turkey.", "The first two visits, in 1990 and 1991, were ad hoc visits considered necessary in light of the considerable number of reports received from a variety of sources containing allegations of torture or other forms of ill-treatment of persons deprived of their liberty, in particular, those held in police custody. A third periodic visit took place at the end of 1992, involving a visit to Adana Security Directorate. Further visits took place in October 1994, August and September 1996 and October 1997 (the latter two of which involved a visit to police establishments in Adana). The CPT's reports on these visits, save that of October 1997, have not been made public, such publication requiring the consent of the State concerned, which has not been forthcoming. 70.", "The CPT has issued two public statements. 71. In its public statement adopted on 15 December 1992, the CPT concluded that torture and other forms of severe ill-treatment were important characteristics of police custody. On its first visit in 1990, the following types of ill-treatment were constantly alleged, namely, palestinian hanging, electric shocks, beating of the soles of the feet (falaka), hosing with pressurised cold water and incarceration in very small, dark, unventilated cells. Its medical examinations disclosed clear medical signs consistent with very recent torture and other severe ill-treatment of both a physical and psychological nature.", "The on-site observations in police establishments revealed extremely poor material conditions of detention. On its second visit in 1991, it found that no progress had been made in eliminating torture and ill-treatment by the police. Many persons complained of similar types of ill-treatment – an increasing number of allegations were heard of forcible penetration of bodily orifices with a stick or truncheon. Once again, a number of the persons making such claims were found on examination to display marks or conditions consistent with their allegations. On its third visit, from 22 November to 3 December 1992, its delegation was inundated with allegations of torture and ill-treatment.", "Numerous persons examined by its doctors displayed marks or conditions consistent with their allegations. It listed a number of these cases. On this visit, the CPT had visited Adana, where a prisoner at Adana Prison displayed haematomas on the soles of his feet and a series of vertical purple stripes (10 cm long, 2 cm wide) across the upper part of his back, consistent with his allegation that he had recently been subjected to falaka and beaten on the back with a truncheon while in police custody. At the headquarters of Ankara and Diyarbakır Security Directorates, it found equipment that could be used for torture and the presence of which had no other credible explanation. The CPT concluded in its statement that “the practice of torture and other forms of severe ill-treatment of persons in police custody remains widespread in Turkey”.", "72. In its second public statement, issued on 6 December 1996, the CPT noted that some progress had been made over the intervening four years. However, its findings after its visit in 1994 demonstrated that torture and other forms of ill-treatment were still important characteristics of police custody. In the course of visits in 1996, CPT delegations once again found clear evidence of the practice of torture and other forms of severe ill-treatment by the police. It referred to its most recent visit in September 1996 to police establishments in Adana, Bursa and Istanbul, when it also went to three prisons in order to interview certain persons who had very recently been in police custody in Adana and Istanbul.", "A considerable number of persons examined by the delegations' forensic doctors displayed marks or conditions consistent with their allegations of recent ill-treatment by the police, and in particular of beating of the soles of the feet, blows to the palms of the hands and suspension by the arms. It noted the cases of seven persons who had been very recently detained at the headquarters of the anti-terrorism branch of Istanbul Security Directorate and which ranked among the most flagrant examples of torture encountered by CPT delegations in Turkey. They showed signs of prolonged suspension by the arms, with impairments in motor function and sensation which, in two persons, who had lost the use of both arms, threatened to be irreversible. It concluded that resort to torture and other forms of severe ill-treatment remained a common occurrence in police establishments in Turkey. B.", "The United Nations Model Autopsy Protocol 73. The “Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions” adopted by the United Nations in 1991 includes a Model Autopsy Protocol aimed at providing authoritative guidelines for the conduct of autopsies by public prosecutors and medical personnel. In its introduction, it noted that an abridged examination or report was never appropriate in potentially controversial cases and that a systematic and comprehensive examination and report were required to prevent the omission or loss of important details: “It is of the utmost importance that an autopsy performed following a controversial death be thorough in scope. The documentation and recording of those findings should be equally thorough so as to permit meaningful use of the autopsy results.” 74. In part 2(c), it stated that adequate photographs were crucial for thorough documentation of autopsy findings.", "Photographs should be comprehensive in scope and confirm the presence of all demonstrable signs of injury or disease commented upon in the autopsy report. PROCEEDINGS BEFORE THE COMMISSION 75. Mrs Behiye Salman applied to the Commission on 20 May 1993. She alleged that her husband, Mr Agit Salman had died as a result of being tortured while in police custody. She relied on Articles 2, 3, 6, 13, 14 and 18 of the Convention.", "In the course of the proceedings before the Commission, the applicant further alleged that she had been hindered in the effective exercise of the right of individual petition as guaranteed by former Article 25 § 1. 76. The Commission declared the application (no. 21986/93) admissible on 20 February 1995. In its report of 1 March 1999 (former Article 31)[3], it expressed the unanimous opinion that there had been a violation of Article 2 on account of the death in custody of the applicant's husband; that there had been a violation of Article 3 in that her husband had been tortured; that there had been a violation of Article 13; that there had been no violations of Articles 14 and 18; and that Turkey had failed to comply with its obligations under former Article 25.", "FINAL SUBMISSIONS TO THE COURT 77. In her memorial, the applicant requested the Court to find that the respondent State was in violation of Articles 2, 3, 13, and former Article 25 § 1 of the Convention. She requested the Court to award her just satisfaction under Article 41. 78. The Government requested the Court to dismiss the case as inadmissible on account of the applicant's failure to exhaust domestic remedies.", "In the alternative, they argued that the applicant's complaints were not substantiated by the evidence. THE LAW I. The government's preliminary objection 79. The Government objected that the applicant had not exhausted domestic remedies, as required by Article 35 of the Convention, by making proper use of the available redress through the instituting of criminal proceedings, or by bringing claims in the civil or administrative courts. They referred to the Court's upholding of their preliminary objection in the Aytekin case (see the Aytekin v. Turkey judgment of 23 September 1998, Reports of Judgments and Decisions1998-VII).", "The Government maintained that the applicant had been a party to the criminal proceedings brought against the police officers accused of torturing her husband and causing his death and that she had failed to appeal to the Court of Cassation against their acquittal. The Court of Cassation had previously quashed the decision not to prosecute the officers and could not be considered as an ineffective remedy. The applicant could also have obtained from domestic judicial bodies the compensation for pecuniary and non-pecuniary damage which she sought in the present proceedings. 80. The applicant's counsel submitted at the hearing that the applicant's appeal against the decision not to prosecute had been rejected before she introduced her complaints before the Commission.", "The procedure whereby the Minister of Justice referred the case to the Court of Cassation, which sent the case for trial, was an extraordinary remedy which the applicant was not required to exhaust. She also submitted that a further appeal would have served no purpose in light of the inadequate investigation and lack of evidence before the courts. 81. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first 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, but not that recourse should be had to remedies which are inadequate or ineffective (see the Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, pp. 2275-76, §§ 51-52, and the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1210, §§ 65‑67). 82. The Court notes that Turkish law provides administrative, civil and criminal remedies against illegal and criminal acts attributable to the State or its agents (see paragraphs 59 et seq. above).", "83. With respect to an action in administrative law under Article 125 of the Constitution based on the authorities' strict liability (see paragraphs 65-66 above), the Court recalls that a Contracting State's obligation under Articles 2 and 13 of the Convention to conduct an investigation capable of leading to the identification and punishment of those responsible in cases of fatal assault might be rendered illusory if in respect of complaints under those Articles an applicant were to be required to exhaust an administrative-law action leading only to an award of damages (see the Yaşa v. Turkey judgment of 2 September 1998, Reports 1998-VI, p. 2431, § 74). Consequently, the applicant was not required to bring the administrative proceedings in question and the preliminary objection is in this respect unfounded. 84. As regards a civil action for redress for damage sustained through illegal acts or patently unlawful conduct on the part of State agents (see paragraph 68 above), the Court notes that a plaintiff in such an action must, in addition to establishing a causal link between the tort and the damage he or she has sustained, identify the person believed to have committed the tort.", "In the instant case, no evidence was forthcoming as to which police officer was responsible for the ill-treatment which was alleged by the applicant to have been inflicted on her husband and, indeed, the report from the Istanbul Forensic Medicine Institute, the highest authority in the country, did not establish that any unlawful acts had occurred (see paragraph 24 above). 85. With regard to the criminal-law remedies (see paragraphs 60-62 above), the Court notes that the applicant appealed unsuccessfully against the decision not to prosecute the police officers involved in her husband's detention. The procedure whereby the Minister of Justice referred the case to the Court of Cassation was an extraordinary remedy, which must normally be considered as falling outside the scope of Article 35 § 1 of the Convention. It is, however, the case that the applicant acted as a party in the proceedings which followed the Court of Cassation's decision to send the case for trial.", "The trial ended in an acquittal of the police officers on the basis that there was insufficient evidence to establish that they had ill-treated her husband prior to his death or to establish that he had died because of ill-treatment. This was also the basis for the public prosecutor's original decision not to prosecute. The applicant has argued that in these circumstances a further appeal had no reasonable prospect of success and cannot be regarded as a requirement of the principle of exhaustion of domestic remedies. 86. 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 the Akdivar and Others judgment cited above, p. 1211, § 69, and the Aksoy judgment cited above, p. 2276, §§ 53-54). 87.", "The Court considers that the limb of the Government's preliminary objection concerning civil and criminal remedies raises issues concerning the effectiveness of the criminal investigation that are closely linked to those raised in the applicant's complaints under Articles 2, 3 and 13 of the Convention. It also observes that this case differs from the Aytekin case relied on by the Government as, in that case, the soldier who had shot the applicant's husband had been convicted of unintentional homicide by the Batman Criminal Court. The appeal which was pending before the Court of Cassation concerned both the applicant's and the public prosecutor's claims that he should have been convicted of a more serious degree of homicide. In those circumstances, it could not be said that the investigation conducted by the authorities did not offer reasonable prospects of bringing the person responsible for the death of her husband to justice (see the Aytekin judgment cited above, p. 2827, § 83). 88.", "Consequently, the Court dismisses the Government's preliminary objection in so far as it relates to the administrative remedy relied on (see paragraph 83 above). It joins the preliminary objection concerning remedies in civil and criminal law to the merits (see paragraphs 104-09 below). II. the court's assessment of the facts 89. The Court reiterates its settled case-law that under the Convention system prior to 1 November 1998 the establishment and verification of the facts was primarily a matter for the Commission (former Articles 28 § 1 and 31).", "While the Court is not bound by the Commission's findings of fact and remains free to make its own assessment in the light of all the material before it, it is however only in exceptional circumstances that it will exercise its powers in this area (see, among other authorities, the Akdivar and Others judgment cited above, p. 1214, § 78). 90. The facts in dispute between the parties are closely linked to issues of State responsibility for the treatment and death of Agit Salman while in police custody. The Court will examine together the factual and legal questions as they are relevant to the applicant's complaints under Articles 2, 3 and 13 of the Convention set out below. III.", "alleged violations of article 2 of the Convention 91. The applicant alleged that her husband, Agit Salman, had died as a result of torture at the hands of police officers at Adana Security Directorate. She also complained that no effective investigation had been conducted into the circumstances of the murder. She argued that there had been a breach of Article 2 of the Convention, 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. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” 92. The Government disputed those allegations. The Commission expressed the opinion that Article 2 had been infringed on the ground that Agit Salman had died following torture in police custody and also on the ground that the authorities had failed to carry out an adequate criminal investigation into the circumstances surrounding the death of Agit Salman.", "A. Submissions of those who appeared before the Court 1. The applicant 93. The applicant submitted that her husband had been killed while in custody. The weight of the medical evidence established that he had been subjected to force which had led to cardiac arrest. The authorities had been unable to provide any satisfactory explanation as to how Agit Salman had died but had developed a story clearly designed to cover up the truth.", "She submitted that, where an individual was taken into custody in good health and died, that death must be attributable to the actions of the authorities in the absence of a plausible explanation. No such explanation had been provided for the chest bruise, the broken sternum, the bruising to the left foot, the grazes on the left ankle and the wounds to the armpit. 94. The applicant also asked the Court to endorse the Commission's opinion that there had been a violation of Article 2 of the Convention on the ground that the investigation into the death of her husband had been so inadequate and ineffective as to amount to a failure to protect the right to life. In particular, the investigation was ineffective in providing the necessary medical evidence concerning Agit Salman.", "For example, there was a lack of histopathological analysis of the bruises and no forensic photographs were taken contrary to the recommendations of the United Nations Model Autopsy Protocol (see paragraphs 73-74 above). Both Dr Şen and the Istanbul Forensic Medicine Institute drew subjective conclusions without giving equal weight to the possible causes which cast a negative light on the authorities. Similarly, the public prosecutors made no effort to test the veracity of the police officers' statements or to ensure that the necessary evidence for criminal proceedings was obtained. 2. The Government 95.", "The Government maintained that the applicant's allegations were unfounded. The autopsy and the Istanbul Forensic Medicine Institute report established that Agit Salman died of a cardiac arrest brought on by the excitement surrounding his apprehension and detention. He suffered breathlessness in his cell and was taken to hospital by police officers, who tried to resuscitate him en route, causing the broken sternum. The allegations that he suffered torture are unsubstantiated and based on unreliable photographs and speculations of doctors who did not examine the body. The Government emphasised that the Istanbul Forensic Medicine Institute was a body of the highest professional excellence whose findings could not be put in doubt.", "96. The Government contended that the investigation was adequate and effective. Statements were taken from all relevant witnesses and officials and all appropriate medical and forensic examinations were performed, including the verification of the cause of death by obtaining an expert opinion from the Istanbul Forensic Medicine Institute. The Ministry of Justice referred the case to the Court of Cassation, which quashed the decision not to prosecute the police officers and sent the case for trial. The evidence was examined by the court which acquitted the officers.", "All necessary steps had therefore been taken in investigating the incident. B. The Court's assessment 1. The death of Agit Salman 97. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted.", "Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, pp. 45-46, §§ 146-47).", "98. The text of Article 2, read as a whole, demonstrates that it covers not only intentional killing but also the situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life. The deliberate or intended use of lethal force is only one factor, however, to be taken into account in assessing its necessity. Any use of force must be no more than “absolutely necessary” for the achievement of one or more of the purposes set out in sub-paragraphs (a) to (c). This term indicates that a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether State action is “necessary in a democratic society” under paragraphs 2 of Articles 8 to 11 of the Convention.", "Consequently, the force used must be strictly proportionate to the achievement of the permitted aims (see the McCann and Others judgment cited above, p. 46, §§ 148-49). 99. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Persons in custody are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused (see, among other authorities, Selmouni v. France [GC], no.", "25803/94, § 87, ECHR 1999-V). The obligation on the authorities to account for the treatment of an individual in custody is particularly stringent where that individual dies. 100. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp.", "64-65, § 161). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation. 101.", "The Court finds that the Commission's evaluation of the facts in this case accords with the above principles. 102. Agit Salman was taken into custody in apparent good health and without any pre-existing injuries or active illness. No plausible explanation has been provided for the injuries to the left ankle, bruising and swelling of the left foot, the bruise to the chest and the broken sternum. The evidence does not support the Government's contention that the injuries might have been caused during the arrest, or that the broken sternum was caused by cardiac massage.", "The opinion of Dr Kirangil that the chest bruise pre-dated the arrest and that Agit Salman died of a heart attack brought on by the stress of his detention alone and after a prolonged period of breathlessness was rebutted by the evidence of Professors Pounder and Cordner. In accepting their evidence as to the rapidity of death and the probability that the bruise and broken sternum were caused by the same event – a blow to the chest – the Commission did not fail to accord Dr Kirangil's evidence proper weight nor did it give undue preference to the evidence of Professors Cordner and Pounder. It may be observed that Dr Kirangil signed the Istanbul Forensic Medicine Institute report which was in issue before the Commission and on that basis could not claim to be either objective or independent. There is no substance, moreover, in the allegations of collusion between the two professors made by the Agent of the Government at the hearing. 103.", "The Court finds, therefore, that the Government have not accounted for the death of Agit Salman by cardiac arrest during his detention at Adana Security Directorate and that the respondent State's responsibility for his death is engaged. It follows that there has been a violation of Article 2 in that respect. 2. Alleged inadequacy of the investigation 104. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, the McCann and Others judgment cited above, p. 49, § 161, and the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, p. 329, § 105).", "105. In that connection, the Court points out that the obligation mentioned above is not confined to cases where it is apparent that the killing was caused by an agent of the State. The applicant and the father of the deceased lodged a formal complaint about the death with the competent investigation authorities, alleging that it was the result of torture. Moreover, the mere fact that the authorities were informed of the death in custody of Agit Salman gave rise ipso facto to an obligation under Article 2 to carry out an effective investigation into the circumstances surrounding the death (see, mutatis mutandis, the Ergi v. Turkey judgment of 28 July 1998, Reports 1998-IV, p. 1778, § 82, and the Yaşa judgment cited above, p. 2438, § 100). This involves, where appropriate, an autopsy which provides a complete and accurate record of possible signs of ill-treatment and injury and an objective analysis of clinical findings, including the cause of death.", "106. Turning to the particular circumstances of the case, the Court observes that the autopsy examination was of critical importance in determining the facts surrounding Agit Salman's death. The difficulties experienced by the Commission in establishing any of those facts, elements of which were still disputed by the parties before the Court, derives in a large part from the failings in the post-mortem medical examination. In particular, the lack of proper forensic photographs of the body and the lack of dissection and histopathological analysis of the injuries and marks on the body obstructed the accurate analysis of the dating and origin of those marks, which was crucial to establishing whether Agit Salman's death had been provoked by ill-treatment in the twenty-four hours preceding his death. The unqualified assumption by Dr Şen that the broken sternum could have been caused by cardiac massage was included in his report without seeking any verification as to whether such massage had been applied and was in the circumstances misleading.", "The examination of Dr Şen's findings by the Istanbul Forensic Medicine Institute did not remedy these shortcomings. It compounded them by confirming that the autopsy disclosed that Agit Salman had died of a heart attack provoked by the combination of a pre-existing heart disease and the excitement of his apprehension. 107. The lack of medical support for the applicant's allegations of torture was the basis for the public prosecutor's decision of 19 October 1992 not to prosecute and the Adana Assize Court's decision of 26 December 1994 to acquit the police officers. The Court considers that the defects in the autopsy examination fundamentally undermined any attempt to determine police responsibility for Agit Salman's death.", "Furthermore, the indictment named indiscriminately all the officers known to have come into contact with Agit Salman from the time of his arrest to his death, including the three custody officers on duty over the period. No evidence was adduced concerning the more precise identification of the officers who did, or could have, ill-treated Agit Salman. 108. In these circumstances, an appeal to the Court of Cassation, which would only have had the power to remit the case for reconsideration by the first-instance court, had no effective prospect of clarifying or improving the evidence available. The Court is not persuaded therefore that the appeal nominally available to the applicant in the criminal-law proceedings would have been capable of altering to any significant extent the course of the investigation that was made.", "That being so, the applicant must be regarded as having complied with the requirement to exhaust the relevant criminal-law remedies. 109. The Court concludes that the authorities failed to carry out an effective investigation into the circumstances surrounding Agit Salman's death. This rendered recourse to civil remedies equally ineffective in the circumstances. It accordingly dismisses the criminal and civil limb of the Government's preliminary objection (see paragraphs 84-88 above) and holds that there has been a violation of Article 2 in this respect.", "IV. alleged violations of article 3 of the Convention 110. The applicant complained that her husband was tortured before his death. She invoked Article 3 of the Convention which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 111. The applicant submitted that her husband was subjected to treatment amounting to torture whilst in the custody of Adana Security Directorate.", "She relied on the marks on his feet and ankles as showing that he had been subjected to falaka. He had also received a blow to the chest powerful enough to break the sternum. No other plausible explanation for the injuries on his body had been forthcoming from the authorities. She further argued that the claim that he had been tortured had never been properly investigated by the authorities, in violation of the procedural aspect of Article 3 of the Convention. 112.", "The Government denied that there was any sign of torture revealed by the medical evidence. They also disputed that there were any failings in the investigation. 113. The Court has found above that the Government have not provided a plausible explanation for the marks and injuries found on Agit Salman's body after he was taken into custody in apparent good health (see paragraph 102 above). Moreover, the bruising and swelling on the left foot combined with the grazes on the left ankle were consistent with the application of falaka, which the European Committee for the Prevention of Torture reported was one of the forms of ill-treatment in common use, inter alia, at the Adana Security Directorate.", "It was not likely to have been caused accidentally. The bruise to the chest overlying a fracture of the sternum was also more consistent with a blow to the chest than a fall. These injuries, unaccounted for by the Government, must therefore be considered attributable to a form of ill-treatment for which the authorities were responsible. 114. In determining whether a particular form of ill-treatment should be qualified as torture, consideration must be given to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment.", "As noted in previous cases, it appears that it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering (see the Ireland v. the United Kingdom judgment cited above, pp. 66-67, § 167). In addition to the severity of the treatment, there is a purposive element, as recognised in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which came into force on 26 June 1987, which defines torture in terms of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information, inflicting punishment or intimidating (Article 1 of the United Nations convention). 115. Having regard to the nature and degree of the ill-treatment (falaka and a blow to the chest) and to the strong inferences that can be drawn from the evidence that it occurred during interrogation about Agit Salman's suspected participation in PKK activities, the Court finds that it involved very serious and cruel suffering that may be characterised as torture (see also Selmouni cited above, §§ 96-105).", "116. The Court concludes that there has been a breach of Article 3 of the Convention. 117. It does not deem it necessary to make a separate finding under Article 3 of the Convention in respect of the alleged deficiencies in the investigation. V. alleged violation of article 13 of the Convention 118.", "The applicant complained that she had not had an effective remedy within the meaning 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.” 119. The Government argued that the investigation into the incident and the prosecution and trial of the police officers provided an effective remedy into the applicant's allegations. Furthermore, she had failed to avail herself of the possibility of appeal against the acquittal of the police officers and had therefore not made use of the available effective remedies. 120. The Commission, with whom the applicant agreed, was of the opinion that the investigation and criminal trial were rendered ineffective by the inadequate forensic investigation.", "The applicant also contended that the attempt of the authorities to concoct a story to conceal what had occurred gave rise to a serious aggravation of the violation of Article 13 in this case. 121. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention.", "Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see the Aksoy judgment cited above, p. 2286, § 95; the Aydın v. Turkey judgment of 25 September 1997, Reports 1997-VI, pp. 1895-96, § 103; and the Kaya judgment cited above, pp. 329-30, § 106). Given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life and including effective access for the complainant to the investigation procedure (see the Kaya judgment cited above, pp. 330-31, § 107).", "122. On the basis of the evidence adduced in the present case, the Court has found that the respondent State is responsible under Articles 2 and 3 of the Convention for the death and torture in custody of the applicant's husband. The applicant's complaints in this regard are therefore “arguable” for the purposes of Article 13 (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, § 52, and the Kaya and Yaşa judgments cited above, pp. 330-31, § 107, and p. 2442, § 113, respectively).", "123. The authorities thus had an obligation to carry out an effective investigation into the circumstances of the death of the applicant's husband. For the reasons set out above (see paragraphs 104-09), no effective criminal investigation can be considered to have been conducted in accordance with Article 13, the requirements of which may be broader than the obligation to investigate imposed by Article 2 (see the Kaya judgment cited above, pp. 330-31, § 107). The Court finds, therefore, that the applicant has been denied an effective remedy in respect of the death of her husband and thereby access to any other available remedies at her disposal, including a claim for compensation.", "Consequently, there has been a violation of Article 13 of the Convention. VI. Alleged practice by the authorities of infringing articles 2, 3 and 13 of the convention 124. The applicant maintained that there existed in Turkey an officially tolerated practice of violating Articles 2, 3 and 13 of the Convention, which aggravated the breach of which she and her husband had been the victims. Referring to other cases concerning events in south-east Turkey in which the Commission and the Court had also found breaches of these provisions, the applicant submitted that they revealed a pattern of denial by the authorities of allegations of serious human-rights violations as well as a denial of remedies.", "125. Having regard to its findings under Articles 2, 3 and 13 above, the Court does not find it necessary to determine whether the failings identified in this case are part of a practice adopted by the authorities. VII. alleged violation of FORMER article 25 of the Convention 126. Finally, the applicant complained that she had been subjected to serious interference with the exercise of her right of individual petition, in breach of former Article 25 § 1 of the Convention (now Article 34), which provided: “The Commission may receive petitions addressed to the Secretary General of the Council of Europe 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, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions.", "Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right.” 127. The applicant submitted that she was summoned three times by the authorities. On the first occasion, she was blindfolded and beaten, forced to sign a document and told explicitly to drop her case before the Commission. On the two other occasions, she was questioned at length about her application for legal aid to the Commission. She submitted that this disclosed an interference with the free exercise of her right of individual petition.", "128. The Commission, whose delegates heard evidence from the applicant, accepted that she had been summoned on at least two occasions. This was substantiated by the documents provided by the Government, which showed that officers of the anti-terrorism branch had questioned her about her application, and not merely her legal aid claim. The Commission also found that her claims that she had been blindfolded, struck and kicked at the anti-terrorism branch headquarters were credible and substantiated, although it did not make any specific finding of ill-treatment in so far as any questioning of an applicant about her application by the police was, in its view, incompatible with the State's obligations under former Article 25 of the Convention. 129.", "The Government asserted that the applicant was contacted by the authorities in order to verify the declaration of means she had submitted in her application for legal aid to the Commission. She was asked only about her possessions and income and not subjected to any intimidation or pressure. In any event, she could not seriously claim to have been intimidated as she had been free to pursue the domestic proceedings against the police officers without any hindrance or fear. 130. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by former Article 25 (now Article 34) that applicants or potential applicants should be able to communicate freely with the Convention organs without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see the Akdivar and Others judgment cited above, p. 1219, § 105; the Aksoy judgment cited above, p. 2288, § 105; the Kurt v. Turkey judgment of 25 May 1998, Reports 1998-III, p. 1192, § 159; and the Ergi judgment cited above, p. 1784, § 105).", "In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy (see the above-mentioned Kurt judgment, loc. cit.). Furthermore, whether or not contacts between the authorities and an applicant are tantamount to unacceptable practices from the standpoint of former Article 25 § 1 must be determined in the light of the particular circumstances of the case. In this respect, regard must be had to the vulnerability of the complainant and his or her susceptibility to influence exerted by the authorities (see the Akdivar and Others and Kurt judgments cited above, p. 1219, § 105, and pp. 1192-93, § 160, respectively).", "In previous cases, the Court has had regard to the vulnerable position of applicant villagers and the reality that in south-east Turkey complaints against the authorities might well give rise to a legitimate fear of reprisals, and it has found that the questioning of applicants about their applications to the Commission amounts to a form of illicit and unacceptable pressure which hinders the exercise of the right of individual petition in breach of former Article 25 of the Convention (ibid.). 131. In the instant case, it is not in dispute between the parties that the applicant was questioned by police officers from the Adana anti-terrorism branch on 24 January 1996 and by police officers again on 9 February 1996. The document recording the first interview shows that the applicant was questioned, not only about her declaration of means, but also about how she introduced her application to the Commission and with whose assistance. Furthermore, the Government have not denied that the applicant was blindfolded while at the Adana anti-terrorism branch headquarters.", "132. The Court finds that blindfolding would have increased the applicant's vulnerability, causing her anxiety and distress, and discloses, in the circumstances of this case, oppressive treatment. Furthermore, there is no plausible explanation as to why the applicant was questioned twice about her legal aid application and in particular why the questioning was conducted on the first occasion by police officers of the anti-terrorism branch, whom the applicant had claimed were responsible for the death of her husband. The applicant must have felt intimidated by these contacts with the authorities. This constituted undue interference with her petition to the Convention organs.", "133. The respondent State has therefore failed to comply with its obligations under former Article 25 § 1 of the Convention. VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 134. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 135.", "The applicant claimed loss of earnings of 39,320.64 pounds sterling (GBP). She submitted that her husband, who worked as a taxi driver at the time of his death and was 45 years old, earned the equivalent of GBP 242.72 per month. Taking into account the average life expectancy in Turkey in that period, the calculation according to actuarial tables resulted in the capitalised sum quoted above. 136. The Government made no observations on the amount claimed, refuting that any violations requiring an award of just satisfaction had occurred.", "137. As regards the applicant's claim for loss of earnings, the Court's case-law establishes that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention and that this may, in appropriate cases, include compensation in respect of loss of earnings (see, among other authorities, the Barberà, Messegué and Jabardo v. Spain judgment of 13 June 1994 (Article 50), Series A no. 285-C, pp. 57-58, §§ 16-20, and Çakıcı v. Turkey [GC], no. 23657/94, § 127, ECHR 1999-IV).", "The Court has found (see paragraph 103 above) that the authorities were liable under Article 2 of the Convention for Agit Salman's death. In these circumstances, there was a direct causal link between the violation of Article 2 and the loss by his widow and children of the financial support which he provided for them. The Court notes that the Government have not queried the amount claimed by the applicant. Having regard, therefore, to the detailed submissions by the applicant concerning the actuarial basis of calculation of the appropriate capital sum to reflect the loss of income due to Agit Salman's death, the Court awards the sum of GBP 39,320.64 to the applicant for pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of payment. B. Non-pecuniary damage 138.", "The applicant claimed, having regard to the severity and number of violations, GBP 60,000 in respect of her husband and GBP 10,000 in respect of herself for non-pecuniary damage. 139. The Government made no observations on the amounts claimed, refuting that any violations requiring an award of just satisfaction had occurred. 140. The Court recalls that it has found that the authorities were responsible for the death of the applicant's husband and that he had been tortured in police custody before he died.", "In addition to violations of Articles 2 and 3 in that respect, it has also found that the authorities failed to provide an effective investigation and remedy in respect of these matters, contrary to the procedural obligation under Article 2 of the Convention and in breach of Article 13. In addition, the applicant was subjected to intimidation while pursuing her application. In these circumstances and having regard to the awards made in comparable cases, the Court awards, on an equitable basis, the sum of GBP 25,000 for the non-pecuniary damage suffered by Agit Salman and to be held by the applicant as surviving spouse, and the sum of GBP 10,000 for the non-pecuniary damage suffered by the applicant in her personal capacity, such sums to be converted into Turkish liras at the rate applicable at the date of payment. C. Costs and expenses 141. The applicant claimed a total of GBP 28,779.58 for fees and costs incurred in bringing the application, less the amounts received from the by way of legal aid from the Council of Europe.", "This included fees and costs incurred in respect of attendance at the taking of evidence before the Commission's delegates at hearings in Ankara and Strasbourg and attendance at the hearing before the Court in Strasbourg. A sum of GBP 10,035 is listed as fees and administrative costs incurred in respect of the Kurdish Human Rights Project (KHRP) in its role as liaison between the legal team in the United Kingdom and the lawyers and the applicant in Turkey, which included GBP 2,800 for translation costs. A sum of GBP 4,235.98 was claimed in respect of work undertaken by lawyers in Turkey. 142. The Government made no comments on the fees claimed.", "143. Save as regards the translation costs, the Court is not persuaded that the fees claimed in respect of the KHRP were necessarily incurred. Deciding on an equitable basis and having regard to the details of the claims submitted by the applicant, it awards the applicant the sum of GBP 21,544.58 together with any value-added tax that may be chargeable, less the 11,195 French francs received by way of legal aid from the Council of Europe, such sum to be paid into the applicant's sterling bank account in the United Kingdom as set out in her just satisfaction claim. D. Default interest 144. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 7.5% per annum.", "FOR THESE REASONS, THE COURT 1. Dismisses by sixteen votes to one the Government's preliminary objection; 2. Holds by sixteen votes to one that there has been a violation of Article 2 of the Convention in respect of the death of Agit Salman in custody; 3. Holds unanimously that there has been a violation of Article 2 of the Convention in that the authorities failed to carry out an adequate and effective investigation into the circumstances of Agit Salman's death in custody; 4. Holds unanimously that there has been a violation of Article 3 of the Convention; 5.", "Holds by sixteen votes to one that there has been a violation of Article 13 of the Convention; 6. Holds unanimously that the respondent State has failed to comply with its obligations under former Article 25 § 1 of the Convention; 7. Holds by sixteen votes to one (a) that the respondent State is to pay the applicant, within three months, the following sums, to be converted into Turkish liras at the rate applicable at the date of settlement: (i) GBP 39,320.64 (thirty-nine thousand three hundred and twenty pounds sterling sixty-four pence) for pecuniary damage; (ii) GBP 35,000 (thirty-five thousand pounds sterling) for non-pecuniary damage; (b) that simple interest at an annual rate of 7.5% shall be payable on these sums from the expiry of the above-mentioned three months until settlement; 8. Holds by sixteen votes to one (a) that the respondent State is to pay the applicant, within three months and into the latter's bank account in the United Kingdom, in respect of costs and expenses, GBP 21,544.58 (twenty-one thousand five hundred and forty-four pounds sterling fifty-eight pence) together with any value-added tax that may be chargeable, less FRF 11,195 (eleven thousand one hundred and ninety-five French francs) to be converted into pounds sterling at the rate applicable at the date of delivery of this judgment; (b) that simple interest at an annual rate of 7.5% shall be payable on these sums from the expiry of the above-mentioned three months until settlement; 9. Dismisses unanimously the remainder of the applicant's claims for just satisfaction.", "Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 27 June 2000. Luzius WildhaberPresident Michele de SalviaRegistrar In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Mrs Greve joined by Mr Bonello; (b) dissenting opinion of Mr Gölcüklü. L. W.M. de S. CONCURRING OPINION OF JUDGE GREVE JOINED BY JUDGE BONELLO I have voted with my colleagues in the majority in this case. The facts of the case suffice for the court's finding of violations as pronounced in the judgment.", "I do however, find it necessary to elaborate on a few aspects of the judgment where I believe the majority have made inferences beyond what is merited by the facts. 1. Agit Salman was subjected to torture at the Adana Security Directorate but beyond this few conclusions as to the circumstances can be reached In paragraph 115 the majority concludes that Agit Salman was ill-treated when interrogated about his suspected participation in PKK activities. I cannot share this inference. There is absolutely no information in the case file supporting a presumption that Agit Salman was tortured during interrogation and no possibility of establishing the issues addressed under the assumed interrogation.", "The Turkish authorities denied that Agit Salman was interrogated at all when in the custody of the Adana Security Directorate. What can be established from the evidence available to the Court is this: The nature and degree of the ill-treatment inflicted on Agit Salman when in the custody of the Adana Security Directorate involved very serious and cruel suffering that may be characterised as torture. The body of Agit Salman showed injuries, some of which are compatible with him having been subjected to falaka, and a blow to the chest. It is known that Agit Salman was wanted by the Security Directorate as he was suspected of alleged participation in PKK activities. Whether his ill-treatment and death occurred prior to interrogation as claimed by the Turkish authorities, or in connection with interrogation – or after interrogation for that matter – is of no relevance to the Court's conclusion concerning torture.", "2. The post-mortem examination of Agit Salman gives limited information and leaves a number of questions unanswered The investigation carried out by the Commission in the case of Agit Salman was based on the understanding that his body had been subjected to an autopsy, that is, an autopsy as this term is normally understood (see in this context, for example, how “autopsy” is described in the United Nations Model Autopsy Protocol as referred to in paragraphs 73 of the judgment and also in Recommendation no. R (99) 3 of the Committee of Ministers of the Council of Europe to member States on the harmonisation of medico-legal autopsy rules of 2 February 1999). There are strong reasons in Agit Salman's case for referring to a post-mortem medical examination of Agit Salman rather than an autopsy. In particular, the significance of information in the case may be overlooked or confused due to the general inferences which may be made from a reference to an autopsy.", "Concerning the “autopsy” of Agit Salman, the following information which raises serious questions concerning the content of the examination is available: (a) The autopsy report dated 29 April 1992 states that Agit Salman had died at Adana State Hospital on that very day and that his death occurred “in suspicious circumstances”. The autopsy had been requested in a letter of that date by the Adana public prosecutor. The report states, inter alia, that “In the framework of the autopsy performed at ... in the presence of ..., parts of the deceased have been received for examination ..., there is no objection to burial and the detailed report will be produced later, ... as no other ... reason for examination is observed [emphasis added]”. The report is signed by the public prosecutor Tevfik Aydın and the forensic medical expert Dr Fatih Şen. (b) Concerning the autopsy, Dr Şen later gave the following witness statement: “In most of our autopsies, we weigh every organ individually: the brain, the heart, the liver, the spleen, the kidneys, all included.", "The weight of the heart of a normal adult male varies between 350 g and 450 g. Since we found a heart of 550 g in this case, a size greater than normal, I concluded that the heart was larger than normal. This is an objective evaluation, made entirely visually – that the heart was oversized [emphasis added]. Well, in cases where we cannot arrive at the cause of death macroscopically, that is visually, we take small pieces of the organs for microscopic examination. As you will see in the report, these include almost all organs: from lungs, the coronary arteries of the heart, the heart muscle, the liver, the spleen, the suprarenal gland, the kidneys, the brain, the cerebellum and the spinal cord. As the result of the examination of the corpse we made on 29 April 1992 and the autopsy conducted the same day, I indicated all the macroscopic (what can be seen with the eye) and the microscopic (laboratory) examinations in the conclusion of my autopsy report [emphasis added].” This leaves open the question, at the very least, whether in the case of Agit Salman all organ samples were actually removed from the body and weighed separately or whether the weights were estimated visually.", "The latter may be the most likely, considering also the remarkably short time-span between Agit Salman's death, some time between 1.20 a.m. and 2 a.m. on 29 April 1992, and the release of his body for burial. The body was released only after all relevant examinations had been carried out, at about noon that same day, some ten hours after death had occurred – that is, ten hours of which only a few were ordinary working hours. Agit Salman's son had been sought by the security forces at approximately 12 noon to be questioned about his father's health, only to be told that his father had died and that he was expected to take the body with him from the morgue. In his witness statement, Dr Şen described his working conditions as follows: “[I] was a physician working alone in Adana at the time. I was carrying out the forensic work for the entire Adana region alone.", "I did not have a single assistant either. I found the interpretation and presentation of a report on this issue [the death of Agit Salman] by only one person to be inadequate. Since that was my opinion, I stated in my report that it should be sent to the Istanbul Forensic Medicine Institute.” The public prosecutor Tevfik Aydın also gave information about his workload in his witness statement, saying: “I think we heard about it [the death] either through a police message or when the hospital officials reported it to our clerk. If we are available at that moment we go immediately but if, let us say, I am in another hospital examining a body or if I am inspecting the scene of a road accident, I go whenever I have finished that business. It sometimes happens that we receive notification of a death from two, three or four places at the same time.", "So we attend to those calls one after the other, depending on how we can work out the itinerary.” The photographs taken of Agit Salman before he was buried show that, while an ordinary autopsy had been carried out – with the removal of entire organs, the opening of the skull, etc. – the medical examination was carried out with an extraordinary effort to ensure a minimal impact on the appearance of the body when released for burial, and the time required for such an exercise is not consistent with an ordinary and rougher approach. If the “autopsy” was limited, the subsequent elaborate considerations of the exact meaning to be given to the weight of Agit Salman's heart and lungs, in particular, are likely to be flawed. (c) The detailed “autopsy report” in Agit Salman's case is only dated 21 May 1992. In contradistinction to an ordinary autopsy report, the conclusion in this report is based not solely on the medical findings in the autopsy as such but also on “the findings of the judicial investigation”.", "About the latter, Dr Şen has explained: “The information given in the record of examination of the corpse is judicial investigation information for us. In the conclusion to our autopsy report, we rely on that information as well. As you may notice, we use the words 'judicial investigation'. In the autopsy report, the reference to the judicial investigation concerns the information supplied to us from outside, in the record of the examination of the corpse. We call this judicial investigation.” The autopsy report does not itself contain this added information and its content thus cannot be read out of the report.", "(d) Some of the injuries/irregularities to which the photographs of Agit Salman bear witness, and which his wife and brother described in their statements, are not recorded in the “autopsy” documents. When the “autopsy” was performed, it was not known to the authorities that the dead person would later be photographed or that there would be an international court case examining Agit Salman's death. The day after Agit Salman's death and examination an identification report ascertained that his body had been examined by the public prosecutor on duty before it was transported to the morgue for autopsy. On the day of the death and the “autopsy”, it was noted that “it was discovered that it was not possible to show the body to someone who knew the deceased and get a clear identification, and the relatives of the deceased applied to the prosecution today and because of their presence” were brought to the morgue for identification. This is not correct.", "The security forces had picked up Agit Salman's son to inform him of his father's death and told the son that he was expected to take his father's body with him, only some ten hours after Agit Salman had died. To conclude, I find the post-mortem medical examination of Agit Salman and the investigation into his death to be so dismal that, at best, they gave no proper guidance as to the true causes of Agit Salman's death, and, at worst, were utterly misleading. In short, they were not in conformity with the State's obligation to investigate loss of life in detention. The investigation/examination may have been superficial simply because the true cause of death was not considered to be important in a case where the next of kin were not expected to pursue the matter. One should thus not jump to the conclusion that the shortcomings stem from a premeditated cover-up.", "This, however, does not limit the responsibility of the Turkish authorities to ensure proper investigations in a case like this. 3. The sole fact that someone has acted as a medico-legal expert does not deprive the expert of independence and impartiality As emphasised in the above-mentioned Recommendation no. R (99) 3, it is important that medico-legal experts exercise their functions with total independence and impartiality, and that they should be objective in the exercise of their functions. The sole fact that someone has acted as a medico-legal expert cannot be a reason for questioning that person's objectivity or independence.", "I thus cannot share my colleagues' negative remarks in paragraph 102 of the judgment concerning Dr Kirangil of the Istanbul Institute of Forensic Medicine. DISSENTING OPINION OF JUDGE GÖLCÜKLÜ (Translation) I regret that I am unable to share the view of the majority in this case for the reasons set out below. 1. I agree that the Minister of Justice's appeal to the Court of Cassation against the decision not to prosecute was not available to the applicant and that the appeal was an extraordinary one. However, I do not agree with the opinion of the majority that once the criminal proceedings were initiated as a result of the appeal by the Minister of Justice, the applicant was dispensed from exhausting the whole criminal procedure because that procedure was an extraordinary one owing to the nature of the initiating appeal.", "That conclusion does not reflect the facts of Turkish law. I would like to underline that, notwithstanding the nature of the initiating motion or appeal, the criminal proceedings in the Turkish courts follow the general ordinary rules, as they did in the instant case. For this very reason, the applicant did not hesitate to intervene in the criminal proceedings and did not feel this to be superfluous merely because the proceedings in question were extraordinary ones owing to the nature of the initiating appeal. In view of the fact that the proceedings ensuing from the appeal of the Minister of Justice were of an entirely ordinary nature and that the applicant, acting in the full capacity of an intervener, carried on with the proceedings in the court of first instance, it cannot be said that the applicant was not required to seek a remedy under domestic law. 2.", "In my view, the underlying problem is that the applicant started to follow the rules of domestic law by intervening in the criminal proceedings but did not pursue the proceedings when it came to the appellate stage. Apparently, she simply gave up without having any acceptable reason for doing so. The applicant did not invoke any development that had taken place during the proceedings which would justify her not exhausting the legal remedies. In this regard, I am not convinced that the acquittal would amount to a reasonable excuse for the applicant's not pursuing the appellate review, given the fact that the appellate review would be carried out by the Court of Cassation, the court which quashed the non-prosecution decision prior to the criminal proceedings at first instance. 3.", "This also means that the appellate review which would be carried out by the Court of Cassation cannot be regarded as unavailable or ineffective. The Court of Cassation's decision quashing the non-prosecution decision at the outset of the whole procedure sufficiently proved the contrary. It must also be noted that the Court of Cassation's examination is in no way confined to reviewing the legality of the decision of the first-instance court. The court is equally competent to examine the merits of the case. It therefore cannot be said beforehand that the Court of Cassation would not enter into the merits of the case, thus leaving out the assessment of the evidence already gathered at first instance.", "It must be stressed that supervision of the assessment of evidence by the first-instance court is the prime issue in the appellate review carried out by the Court of Cassation. I am not convinced that the state of the evidence would affect the appellate review adversely. I find no basis for such an assumption. Given that the Commission based its conclusions mainly on the evidence collected by the domestic authorities, it was equally possible for the Court of Cassation to evaluate the same body of evidence as the Commission and reach a similar conclusion. I therefore do not agree with the view of the majority that the appellate review of the Court of Cassation would have been ineffective.", "4. I should have been satisfied if the majority of the Court had set out the reasons for departing from the grounds of the judgment of 23 September 1998 in the case of Aytekin v. Turkey (Reports of Judgments and Decisions 1998-VII). In that case, the Court gave significant weight to the intervention of the applicant, Mrs Gülten Aytekin, in the criminal proceedings. The Court also concluded that, as a consequence of that intervention, the applicant should have pursued the compensation remedies before the administrative courts in parallel to the criminal proceedings in which she had intervened (loc. cit., p. 2828, § 84).", "It is clear that this conclusion is independent of the conviction by the domestic court, because the Court said “in parallel to the criminal proceedings” to mean that it should have been pursued prior to the conviction. In the Aytekin judgment, the Court pointed out the prospect of redress underlying the criminal proceedings (ibid.). Proceedings under the ordinary rules of procedure took place in the Aytekin case similar to those in the Salman case. There was therefore nothing in the procedure to prevent Mrs Behiye Salman from achieving a similar result to that in the Aytekin case, only Mrs Salman gave up and left the legal steps incomplete. In my opinion, it is not legally well-founded to assume that the Court of Cassation would – in any event – have upheld the acquittal by the court below.", "That could not be predicted in the absence of the necessary appeal by Mrs Salman. In conclusion, I must state that the circumstances of the present case do not justify departing from the standards of the Aytekin judgment. I am thus unable to share the view of the majority set out in paragraphs 82 and 83 of the judgment. 5. As to the violation of Article 2, I voted for finding a violation, but only with respect to the manner in which the investigation into Agit Salman's death was conducted.", "As to the responsibility for Agit Salman's death, I share entirely the partly dissenting opinion on the point of Mr Alkema, a member of the Commission (see the Commission's report in this case). There is no doubt that, as he said, “the conditions for applicability of Article 2 set out in paragraph 312 of the report (intentional killing or the outcome of permitted use of force) have ... not been met”. He continued: “To quote from paragraph 284: 'There was no disagreement amongst the various doctors and experts that Agit Salman had an underlying heart disease'. This heart condition ... was apparently not known to those responsible for Agit Salman's arrest and detention.” It could be accepted that the circumstances of the treatment that Agit Salman was subjected to could have caused the heart failure and consequently Agit Salman's death. There is, however, no proof of intentional killing.", "The force applied to Agit Salman might amount to a violation of Article 3. But there is no evidence that the officers in charge could and ought to have foreseen that their ill-treatment would be lethal in effect. Thus, the conditions for applying Article 2 exclusively to this ill-treatment are not fulfilled. 6. As regards the finding of a violation of Article 13 of the Convention, I refer to my dissenting opinion in the case of Ergi v. Turkey (judgment of 28 July 1998, Reports 1998-IV).", "Further, once the conclusion has been reached that there has been a violation of Article 2 of the Convention on the grounds that there was no effective investigation into the death that has given rise to the complaint, no separate question arises under Article 13. The fact that there was no satisfactory and adequate investigation into the death which resulted in the applicant's complaints, both under Article 2 and Article 13, automatically means that there was no effective remedy before a national court. On that subject, I refer to my dissenting opinion in the case of Kaya v. Turkey (judgment of 19 February 1998, Reports 1998-I) and the opinion expressed by a large majority of the Commission (see Aytekin v. Turkey, application no. 22880/93, Commission's report of 18 September 1997; Ergi v. Turkey, application no. 23818/94, Commission's report of 20 May 1997; and Yaşa v. Turkey, application no.", "22495/93, Commission's report of 8 April 1997). 7. As to the application of Article 41 of the Convention, I dissent from the majority judgment, firstly, as regards just satisfaction and, secondly, as regards the manner of reimbursing costs, for the following reasons. 8. To begin with, the compensation.", "In the great majority of cases the Court has pointed out and clearly affirmed the speculative and fictitious nature of claims in respect of pecuniary damage where primarily “actuarial calculations” were entailed and consequently has nearly always dismissed this type of claim. 9. In the rare, exceptional cases in which it awarded the applicant a specified sum for pecuniary damage, it determined the amount on an equitable basis, never exceeding reasonable limits and thereby avoiding any speculative calculation. 10. In the instant case the Court – ignoring its settled case-law – has not only undertaken speculative “actuarial calculations” but has moreover considered it just and reasonable to award the applicant an unprecedented and more than excessive sum (39,320.64 pounds sterling (GBP) plus GBP 35,000).", "The average sum is between GBP 15,000 and GBP 20,000. I consider that the credibility and persuasive force of judicial decisions stem from consistency of case-law and adherence to it, which means avoiding extremes. By way of justifying what has just been said, I take the liberty of referring to earlier judgments of the Court, as illustrations. I set out the relevant paragraphs in full below[4]. Kurt judgment of 25 May 1998(Forced disappearance – Violation) [A. Non-pecuniary damage] [Claim] “171.", "The applicant maintained that both she and her son had been victims of specific violations of the Convention as well as a practice of such violations. She requested the Court to award a total amount of 70,000 pounds sterling (GBP) which she justified as follows: GBP 30,000 for her son in respect of his disappearance and the absence of safeguards and effective investigative mechanisms in that regard; GBP 10,000 for herself to compensate for the suffering to which she had been subjected on account of her son's disappearance and the denial of an effective remedy with respect to his disappearance; and GBP 30,000 to compensate both of them on account of the fact that they were victims of a practice of 'disappearances' in south-east Turkey.” [Award] “174. The Court recalls that it has found the respondent State in breach of Article 5 in respect of the applicant's son. It considers that an award of compensation should be made in his favour having regard to the gravity of the breach in question. It awards the sum of GBP 15,000, which amount is to be paid to the applicant and held by her for her son and his heirs.” Tekin judgment of 9 June 1998(Violation of Article 3) [A.", "Damage] [Claim and award] “75. The applicant claimed compensation in respect of non-pecuniary damage of 25,000 pounds sterling (GBP) and aggravated damages of GBP 25,000.” ... “77. The Court considers that an award should be made in respect of non-pecuniary damage bearing in mind its findings of violations of Articles 3 and 13 of the Convention. Having regard to the high rate of inflation in Turkey, it expresses the award in pounds sterling, to be converted into Turkish liras at the rate applicable on the date of settlement (see the above-mentioned Selçuk and Asker judgment, p. 917, § 115). It awards the applicant GBP 10,000.", "78. The Court rejects the claim for 'aggravated damages' (see the above-mentioned Selçuk and Asker judgment, p. 918, § 119).” Ergi judgment of 28 July 1998(Violation of Articles 3 and 13) [A. Non-pecuniary damage] [Claim] “107. The applicant submitted that he, his deceased sister and the latter's daughter had been the victims both of individual violations and of a practice of such violations. He claimed 30,000 pounds sterling (GBP) in compensation for non-pecuniary damage. In addition, he sought GBP 10,000 for aggravated damages resulting from the existence of a practice of violation of Article 2 and of a denial of effective remedies in south-east Turkey in aggravated violation of Article 13.” [Award] “110.", "The Court observes from the outset that the initial application to the Commission was brought by the applicant not only on his own and his sister's behalf but also on behalf of his niece, Havva Ergi's daughter. ... Having regard to the gravity of the violations (see paragraphs 86 and 98 above) and to equitable considerations, it awards the applicant GBP 1,000 and Havva Ergi's daughter GBP 5,000, which amount is to be paid to the applicant's niece or her guardian to be held on her behalf. 111. On the other hand, it dismisses the claim for aggravated damages.” Oğur judgment of 20 May 1999(Violation of Article 2) [A. Damage] [Claim] “95.", "In respect of the damage she had sustained, the applicant claimed 500,000 French francs (FRF), of which FRF 400,000 was for pecuniary damage and FRF 100,000 for non-pecuniary damage. She pointed out that she had had no means of support since the death of her son, who had maintained the family by working as a night-watchman.” [Award] “98. ... Having regard to its conclusions as to compliance with Article 2 and to the fact that the events complained of took place more than eight years ago, the Court considers that it is required to rule on the applicant's claim for just satisfaction. As regards pecuniary damage, the file contains no information on the applicant's son's income from his work as a night-watchman, the amount of financial assistance he gave the applicant, the composition of her family or any other relevant circumstances. That being so, the Court cannot allow the compensation claim submitted under this head (Rule 60 § 2).", "As to non-pecuniary damage, the Court considers that the applicant undoubtedly suffered considerably from the consequences of the double violation of Article 2. ... On an equitable basis, the Court assesses that non-pecuniary damage at FRF 100,000.” (FRF 100,000 being approximately 10,000 pounds sterling) çakıcı judgment of 8 July 1999(Violation of Articles 2, 3, 5 and 13) [A. Pecuniary damage] [Claim] “123. The applicant requested that pecuniary damages be paid for the benefit of his brother's surviving spouse and children. He claimed a sum of 282.47 pounds sterling (GBP) representing 4,700,000 Turkish liras (TRL), which it is alleged was taken from Ahmet Çakıcı on his apprehension by a first lieutenant and GBP 11,534.29 for loss of earnings, this capital sum being calculated with reference to Ahmet Çakıcı's estimated monthly earnings of TRL 30,000,000.” [Award] “125. The Court observes that the applicant introduced this application on his own behalf and on behalf of his brother.", "In these circumstances, the Court may, if it considers it appropriate, make awards to the applicant to be held by him for his brother's heirs (see the Kurt judgment cited above, p. 1195, § 174). ... 127. As regards the applicant's claims for loss of earnings, the Court's case-law establishes that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention and that this may, in the appropriate case, include compensation in respect of loss of earnings (see, amongst other authorities, the Barberà, Messegué and Jabardo v. Spain judgment of 13 June 1994 (Article 50), Series A no. 285-C, pp. 57-58, §§ 16-20).", "The Court has found (paragraph 85 above) that it may be taken as established that Ahmet Çakıcı died following his apprehension by the security forces and that the State's responsibility is engaged under Article 2 of the Convention. In these circumstances, there is a direct causal link between the violation of Article 2 and the loss by his widow and children of the financial support which he provided for them. The Court notes that the Government have not queried the amount claimed by the applicant. Having regard therefore to the detailed submissions by the applicant concerning the actuarial basis of calculation of the appropriate capital sum to reflect the loss of income due to Ahmet Çakıcı's death, the Court awards the sum of GBP 11,534.29 to be held by the applicant on behalf of his brother's surviving spouse and children.” [B. Non-pecuniary damage] [Claim] “128. The applicant claimed GBP 40,000 for non-pecuniary damage in relation to the violations of the Convention suffered by his brother ...” [Award] “130.", "The Court recalls that in the Kurt judgment (cited above, p. 1195, §§ 174-75) the sum of GBP 15,000 was awarded for violations of the Convention under Articles 5 and 13 in respect of the disappearance of the applicant's son while in custody, which sum was to be held by the applicant for her son and his heirs, while the applicant received an award of GBP 10,000 in her own favour, due to the circumstances of the case which had led the Court to find a breach of Articles 3 and 13. In the present case, the Court has held, in addition to breaches of Articles 5 and 13, that there has been a violation of the right to respect for life guaranteed under Article 2 and torture contrary to Article 3. Noting the awards made in previous cases from south-east Turkey concerning these provisions (see, concerning Article 3, the Aksoy judgment cited above, pp. 2289-90, § 113, the Aydın judgment cited above, p. 1903, § 131, the Tekin judgment cited above, pp. 1521-22, § 77; and, concerning Article 2, the Kaya judgment cited above, p. 333, § 122, the Güleç v. Turkey judgment of 27 July 1998, Reports 1998-IV, p. 1734, § 88, the Ergi v. Turkey judgment of 28 July 1998, Reports 1998-IV, p. 1785, § 110, the Yaşa judgment cited above, pp.", "2444-45, § 124, and Oğur v. Turkey [GC], no. 21594/93, § 98, ECHR 1999-III) and having regard to the circumstances of this case, the Court has decided to award the sum of GBP 25,000 in total in respect of non-pecuniary damage to be held by the applicant for his brother's heirs ...” Mahmut Kaya judgment of 28 March 2000(Violation of Articles 2, 3 and 13) [A. Pecuniary damage] [Claim] “133. The applicant claimed 42,000 pounds sterling (GBP) in respect of the pecuniary damage suffered by his brother who is now dead. He submitted that his brother, aged 27 at the time of his death and working as a doctor with a salary equivalent to GBP 1,102 per month, can be said to have sustained a capitalised loss of earnings of GBP 253,900.80. However, in order to avoid any unjust enrichment, the applicant claimed the lower sum of GBP 42,000.” [Award] “135.", "The Court notes that the applicant's brother was unmarried and had no children. It is not claimed that the applicant was in any way dependent on him. This does not exclude an award in respect of pecuniary damage being made to an applicant who has established that a close member of the family has suffered a violation of the Convention. ... In the present case, however, the claims for pecuniary damage relate to alleged losses accruing subsequent to the death of the applicant's brother.", "They do not represent losses actually incurred either by the applicant's brother before his death or by the applicant after his brother's death. The Court does not find it appropriate in the circumstances of this case to make any award to the applicant under this head.” [B. Non-pecuniary damage] [Claim] “136. The applicant claimed, having regard to the severity and number of violations, GBP 50,000 in respect of his brother and GBP 2,500 in respect of himself.” [Award] “138. As regards the claim made by the applicant in respect of non-pecuniary damage on behalf of his deceased brother, the Court notes that awards have previously been made to surviving spouses and children and, where appropriate, to applicants who were surviving parents or siblings. ...", "The Court notes that there have been findings of violations of Articles 2, 3 and 13 in respect of the failure to protect the life of Hasan Kaya ... It finds it appropriate in the circumstances of the present case to award GBP 15,000, which is to be paid to the applicant and held by him for his brother's heirs. 139. The Court accepts that the applicant has himself suffered non-pecuniary damage which cannot be compensated solely by the findings of violations. Making its assessment on an equitable basis, the Court awards the sum of GBP 2,500, to be converted into Turkish liras at the rate applicable at the date of payment.” Kılıç judgment of 28 March 2000(Violation of Article 2) [A. Pecuniary damage] [Claim] “100.", "The applicant claimed 30,000 pounds sterling (GBP) in respect of the pecuniary damage suffered by his brother who is now dead. He submitted that his brother, aged 30 at the time of his death and working as a journalist with a salary equivalent to GBP 1,000 per month, could be said to have sustained a capitalised loss of earnings of GBP 182,000. However, in order to avoid any unjust enrichment, the applicant claimed the lower sum of GBP 30,000.” [Award] “102. The Court notes that the applicant's brother was unmarried and had no children. It is not claimed the applicant was in any way dependent on him.", "This does not exclude an award in respect of pecuniary damage being made to an applicant who has established that a close member of the family has suffered a violation of the Convention (see the Aksoy [v. Turkey] judgment [of 18 December 1996, Reports 1996-VI], pp. 2289-90, § 113, where the pecuniary claims made by the applicant prior to his death for loss of earnings and medical expenses arising out of detention and torture were taken into account by the Court in making an award to the applicant's father who had continued the application). In the present case, however, the claims for pecuniary damage relate to alleged losses accruing subsequent to the death of the applicant's brother. They do not represent losses actually incurred either by the applicant's brother before his death or by the applicant after his brother's death. The Court does not find it appropriate in the circumstances of this case to make any award to the applicant under this head.", "[B. Non-pecuniary damage] [Claim] 103. The applicant claimed, having regard to the severity and number of violations, GBP 40,000 in respect of his brother and GBP 2,500 in respect of himself.” [Award] “105. As regards the claim made by the applicant in respect of non-pecuniary damage on behalf of his deceased brother, the Court notes that awards have previously been made to surviving spouses and children and, where appropriate, to applicants who were surviving parents or siblings. ... The Court notes that there have been findings of violations of Article 2 and 13 in respect of failure to protect the life of Kemal Kılıç, who died instantaneously, after a brief scuffle with unknown gunmen.", "It finds it appropriate in the circumstances of the present case to award GBP 15,000, which amount is to be paid to the applicant and held by him for his brother's heirs.” Ertak judgment of 9 May 2000(Violation of Article 2) [A. Damage] [Claim] “146. The applicant claimed pecuniary damages amounting to 60,630.44 pounds sterling (GBP) for loss of earnings, that sum being calculated with reference to Mehmet Ertak's estimated monthly earnings of 180,000,000 Turkish liras (TRL) at current values, to be held by the applicant on behalf of his son's widow and four children. 147. The applicant claimed a sum of GBP 40,000 for the non-pecuniary damage arising from the violations of the Convention suffered by his son and from the alleged practice of such violations, to be held by him on behalf of his son's widow and four children, as well as a sum of GBP 2,500 for himself on account of the lack of an effective remedy.", "He referred to the Court's previous decisions regarding unlawful detention, torture and the lack of an effective investigation.” [Award] “150. As regards the applicant's claims for loss of earnings, the ... Court has found (see paragraph 131 above) that it may be taken as established that Mehmet Ertak died following his arrest by the security forces and that the State's responsibility is engaged under Article 2 of the Convention. In those circumstances, there is indeed a direct causal link between the violation of Article 2 and the loss by his widow and children of the financial support which he provided for them (see the Çakıcı judgment cited above, § 127). The Court awards the applicant the sum of GBP 15,000, to be held by him on behalf of his son's widow and children. 151.", "As regards non-pecuniary damage, ... the Court has held that there has been a substantive and a procedural violation of Article 2. Noting the awards made in previous cases involving the application of the same provision in south-eastern Turkey (see the Kaya judgment cited above, p. 333, § 122; the Güleç judgment cited above, p. 1734, § 88; the Ergi v. Turkey judgment of 28 July 1998, Reports 1998-IV, p. 1785, § 110; the Yaşa judgment cited above, pp. 2444‑45, § 124; and Oğur v. Turkey [GC], no. 21594/93, § 98, ECHR 1999-III) and having regard to the circumstances of this case, the Court awards the sum of GBP 20,000 in respect of non-pecuniary damage, to be held by the applicant on behalf of his son's widow and four children ...” 11. Lastly, I cannot accept that the legal costs awarded under Article 41 should be paid into the applicant's “bank account in the United Kingdom”.", "This point is an aspect of the general issue of payment of “costs and expenses”. To make clear what I mean, I must go back to certain earlier facts and arguments. The manner of implementing former Article 50 (now Article 41) as regards legal costs (including counsel's fees) was discussed in depth by the old Court because some applicants' lawyers (always the same ones) continually sought, very insistently, to have the costs paid to them direct into their bank account abroad in a foreign currency. The Court always dismissed those applications except in one or two cases in which it agreed to payment in a foreign currency (but always in the country of the respondent State). After deliberating, the Court decided that costs would be paid (1) to the applicant, (2) in the country of the respondent State, and (3) in the currency of the respondent State (if there was a high rate of inflation in the respondent State, the sum was to be expressed in a foreign currency and converted into that State's currency at the date of payment – see the Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, pp.", "1521-22, § 77). In accordance with that decision, all other types of application have been categorically rejected. Whereupon, counsel for the applicant began to seek to have costs paid to the applicant, a national of the respondent State and resident in its territory, in his bank account abroad and in a foreign currency. They have never succeeded. Despite numerous applications of this kind (always by the same counsel), not a single decision has yet been taken allowing such an application.", "Is it not astonishing that almost all the applicants living in very humble circumstances in a small village or hamlet in a remote corner of south-eastern Anatolia should have bank accounts in a town of another European State? 12. If certain counsel have problems with their clients, that is none of the respondent State's business, since the contract between the lawyer and his client is a private one which concerns them alone and the respondent State is not a party to disputes concerning them. 13. I must point out that in the system established by the Convention, the Court has no jurisdiction to issue orders to the Contracting States as to the manner in which its judgments are to be executed.", "In my opinion, any payment under Article 41 must be made to the applicant as before, in the currency of the country and in the country concerned. [1]Notes by the Registry 1-2. Protocol No. 11 and the Rules of Court came into force on 1 November 1998. [3]3.", "Since the entry into force of Protocol No. 11, which amended Article 19, the Court has functioned on a permanent basis. [2]1. Note by the Registry. Rules of Court A applied to all cases referred to the Court before the entry into force of Protocol No.", "9 (1 October 1994) and from then until 31 October 1998 only to cases concerning States not bound by that Protocol. [3]. Note by the Registry. The report is obtainable from the Registry. [4]1.", "Emphasis has been added to some of the phrases and figures." ]

[ "FIRST SECTION CASE OF S.M.M. v. THE UNITED KINGDOM (Application no. 77450/12) JUDGMENT This version was rectified on 15 November 2017 under Rule 81 of the Rules of Court. STRASBOURG 22 June 2017 FINAL 13/11/2017 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.M. v. the United Kingdom, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Linos-Alexandre Sicilianos, President,Kristina Pardalos,Ledi Bianku,Aleš Pejchal,Armen Harutyunyan,Pauliine Koskelo,Tim Eicke, judges,and Abel Campos, Section Registrar, Having deliberated in private on 30 May 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 77450/12) against the United Kingdom lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by S.M.M., a Zimbabwean national who was born in Zimbabwe in 1982 and currently lives in Wembley. He was represented by Mr S. Vnuk of Lawrence Lupin Solicitors.", "The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 4 of the Rules of Court). 2. The United Kingdom Government (“the Government”) were represented by their Agent, Ms M. Addis. 3. The applicant alleged that his detention from 28 November 2008 to 15 September 2011 was in violation of Article 5 § 1 (f) of the Convention.", "4. On 2 September 2013 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in Zimbabwe and lives in London.", "6. The applicant arrived in the United Kingdom in May 2001 and was granted six months’ leave to enter as a visitor. In or around 2003 he began suffering from a mental illness which led to his hearing voices in his head and at least two suicide attempts. 7. In 2004 and 2005 the applicant was convicted of a number of driving offences, including driving otherwise than in accordance with a licence, using a vehicle while uninsured and driving whilst disqualified.", "He was also convicted of resisting or obstructing a police officer and failing to surrender to custody. No custodial sentence was passed. 8. On 18 April 2005 the applicant made an application for asylum. However, the application was refused on 22 June 2005 on non-compliance grounds as the applicant had failed to attend his substantive asylum interview.", "Notice of this decision was served on the applicant on 27 June 2005. On the same day, he was served with notice of liability to removal as an overstayer. 9. The applicant did not appeal against this decision. When he subsequently failed to comply with his reporting conditions he was treated as an absconder.", "10. On 13 August 2007 he was convicted of possessing Class A drugs with intent to supply and sentenced to three years’ imprisonment. He did not appeal against conviction or sentence. 11. While serving his sentence the applicant was prescribed a variety of anti‑psychotic drugs.", "This was the first time he had received any treatment for his mental illness as he had previously declined to engage with psychiatrists and other health care professionals. 12. The applicant made a second asylum application on 27 March 2008. In doing so, he described two violent incidents he had experienced in Zimbabwe: first, he claimed that in 2000 he had been attacked by Zanu-PF supporters with knives, sticks and sandbags while protesting about gay rights; and secondly, he claimed that later that same year he had been arrested for demonstrating and beaten on his back and the soles of his feet while detained at a police station. 13.", "On 30 October 2008 the applicant was interviewed in relation to his second asylum claim. 14. On 14 November 2008 the applicant was served with a notice of liability to automatic deportation. As a consequence, when he completed his sentence on 28 November 2008 he remained in detention under the Secretary of State for the Home Department’s immigration powers. 15.", "On 20 February 2009 the applicant was admitted to hospital for a psychiatric assessment and was sectioned for six days after his mental health deteriorated significantly. 16. On 26 May 2009, a further asylum interview took place following which the applicant submitted further evidence in support of his claim. 17. On 22 October 2009, an interview took place with the applicant for the purposes of obtaining a travel document.", "The applicant refused to provide bio-data for the purposes of the travel document asking to contact his solicitor first. 18. On 3 November 2009 the applicant’s representatives asked the Government to allow them more time to submit medical evidence supporting the applicant’s second asylum claim. The Government did not indicate whether they responded to this request. 19.", "On 3 December 2009 the applicant applied for bail which was refused on 9 December because the tribunal judged he posed an unacceptable risk of absconding. 20. On 16 February 2010 the Secretary of State enquired of the applicant’s representatives about their intentions concerning the medical report. The applicant’s representatives indicated they had requested an appointment and asserted that it would be unreasonable for the Secretary of State to make a decision without awaiting the outcome. On 10 June 2010 the Secretary of State telephoned the applicant’s representatives again to ask what their intentions were regarding the medical report.", "The representatives indicated they would reply in writing. 21. On 22 June 2010 the applicant was interviewed again to obtain further bio-data to issue a travel document but he would not provide further details. 22. On 28 June 2010 the applicant’s representatives wrote to the Secretary of State.", "The letter stated that his detention was unlawful and that he should be released. The representatives sent a second letter to the Secretary of State on 8 July 2010, in which they again requested that the applicant be released due to his medical conditions and pursuant to the Secretary of State’s policy on not detaining mentally ill persons. 23. The Secretary of State replied to these letters on 12 July 2010 in the following terms: “1. The Secretary of State, having considered the particulars of your client’s case, is satisfied that the presumption in favour of release is outweighed by the seriousness of the offence, risk of harm to the public, and risk of absconding and that your client’s detention is justified and lawful.", "2. It has been decided that your client should be detained because: - Your client is likely to abscond if given temporary admission or release. - Your client does not have close enough ties (e.g. family or friends) to make it likely that he will stay in one place. - Your client has previously failed to comply with conditions of his stay, temporary admission or release.", "- Your client has previously absconded. - Your client has used or attempted to use deception in a way that leads us to consider he may continue to deceive. - Your client has not produced satisfactory evidence of his identity, nationality, or lawful basis to be in the United Kingdom. - Your client has previously failed or refused to leave the United Kingdom when required to do so. - It is conducive to the public good for your client to be detained.” 24.", "On 26 July 2010 the Secretary of State set a time limit of 31 August 2010 for the provision of further information in support of the applicant’s asylum claim. 25. On 28 August 2010 the applicant was examined by Dr S. and her expert report, dated 3 October 2010, was sent to the Secretary of State on 22 November 2010. 26. Dr. S noted that the applicant had a number of scars which accorded with his description of the first assault by supporters of Zanu-PF.", "She also noted that he had a clear history of a psychotic illness which was characterised by many first-rank symptoms of schizophrenia. He was being treated but still experienced some symptoms, including auditory hallucinations and ideas of reference. In addition, he had symptoms of post‑traumatic stress disorder, including poor sleep, nightmares, intrusive daytime thoughts, and physical symptoms of fear, hopelessness and isolation. 27. On 3 November 2010 the detention centre where the applicant was detained raised concerns about his mental health.", "He was assessed by the Health Care Manager as unsuitable for detention under the Mental Health Act on 8 November 2010 and on 12 November 2010 as not requiring compulsory mental health treatment. 28. On 16 November 2010 the applicant applied to the tribunal for bail but withdrew his application on 19 November. 29. On 22 November 2010, the medical report was provided to the Secretary of State.", "30. On 14 January 2011 the applicant submitted his application for permission to apply for judicial review, in which he challenged his continuing detention on the grounds that it was contrary to the Secretary of State’s published policy on the detention of persons suffering from serious mental illness (“the mental health concession”); that it was contrary to the Secretary of State’s published policy on the detention of persons who had been victims of torture (“the torture concession”); and that it was contrary to the principles set down in R v. Durham Prison Governor ex parte Hardial Singh [1984] 1 WLR 704 (“the Hardial Singh principles”). The applicant also claimed damages for unlawful detention. 31. On 18 January 2011, the applicant’s representatives sent a new medical report and informed the Secretary of State that they were no longer relying on the medical report provided on 22 November 2010.", "32. On 8 February 2011 the Secretary of State refused the applicant’s second asylum claim and made a deportation order pursuant to section 32(5) of the United Kingdom Borders Act 2007. The applicant’s appeal was dismissed on 7 April 2011. On 4 May he was refused permission to appeal against that decision. 33.", "On 3 June 2011 the applicant was refused permission to apply for judicial review on the papers by Mr Justice Calvert-Smith. In refusing permission, he observed that the mental health concession only applied where the detainee was suffering from a serious mental illness which could not be satisfactorily managed within detention. As a consequence, he concluded that the applicant’s condition fell short of the severity required. 34. With regard to the torture concession, the judge noted that the alleged torture which had happened some eleven years previously and which was said to be the cause or part cause of the mental illness the claimant was suffering from could have no bearing on the reasonableness or otherwise of the current detention.", "Finally, he found that the Hardial Singh principles were not infringed because: “a. the 1st principle is not engaged. b. The 2nd and 3rd principles are not infringed. The dangers of absconscion and reoffending are and have always been real in view of the claimant’s behaviour between July 2005 and his arrest in respect of the drugs matter.", "The recent decision of October 2010 means that the detention is not open-ended. c. the 4th principle is not infringed. There has been no lack of expedition by the defendant since the expiry of the claimant’s sentence in late 2008.” 35. The applicant was released from detention on 15 September 2011 after being granted bail by the Upper Tribunal. 36.", "On 28 October 2011 the applicant was again refused permission to apply for judicial review by Mr Justice Ouseley at a renewed oral hearing in which he heard from representatives for both parties. In the renewed application, the applicant had contended that his detention became unlawful on 28 June 2010, when the pre-action letter was sent to the Secretary of State. However, Mr Justice Ouseley rejected that claim and found that the applicant had no arguable case. In particular, he noted that there was no evidence to suggest that his mental illness could not be satisfactorily managed in detention; that there was no independent evidence that he had been tortured because his scarring was only consistent with an assault by Zanu-PF supporters which did not amount to torture, and there was no scarring consistent with his allegations of ill-treatment at the police station; and finally, that there was nothing to indicate the applicant’s prospects of removal at the relevant time were nil or that efforts did not take place to effect his removal. 37.", "On 22 February 2012 the Court of Appeal, Civil Division refused the applicant permission to appeal the decision of 31 October 2011, finding that the High Court had been correct on every point. There was no independent evidence of torture and the fact that the mental health concession had been clarified on 26 August 2010 to refer to satisfactory management in detention did not mean that the position was otherwise before that date. 38. In the meantime, the applicant had challenged the decision to refuse his asylum claim and sought to appeal to the Court of Appeal. On 28 April 2012 the Secretary of State agreed that the decision of 8 February 2011 refusing the applicant’s asylum claim was flawed and that the case should be remitted to the Upper Tribunal.", "39. On 20 November 2012 the Upper Tribunal allowed the applicant’s asylum appeal on human rights grounds. On 30 January 2013 the deportation order was revoked and the applicant was subsequently granted discretionary leave until 25 September 2013. He applied for further discretionary leave on 26 September 2013. According to the observations submitted, a decision on that application remains outstanding.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. Detention pending deportation 40. The power to detain a person pending deportation is contained in Paragraph 2 of Schedule 3 to the Immigration Act 1971 (“the 1971 Act”), (for details see V.M. v. the United Kingdom, no.", "49734/12, § 52, 1 September 2016). B. Bail 41. There is a dedicated statutory regime giving detained persons a right to apply for bail. He or she may apply to the Secretary of State, the Chief Immigration Officer and the First Tier Tribunal (Asylum and Immigration Chamber).", "Although a bail hearing is not concerned with assessing the lawfulness of the detention, it does consider a number of matters relevant to that issue (including the risk of absconding, the risk of reoffending, the risk of public harm and the prospects of removal or deportation). C. United Kingdom Border and Immigration Authority’s Enforcement Instructions and Guidance 42. Chapter 55.10 of the United Kingdom Border and Immigration Authority’s Enforcement Instructions and Guidance sets out detention policy. Detention should be the exception for those suffering from a serious mental illness, or where there is independent evidence they have been tortured (for details see V.M., cited above, §§ 58-63). 43.", "In 2008, the United Kingdom Border Agency aimed to give half of all asylum applicants a decision within one month of application and to give 80 per cent a decision within two months according to “Management of Asylum Applications by the UK Border Agency”, by the Comptroller and Auditor General for the National Audit Office (HC 124 Session 2008-2009 23 January 2009). D. The Hardial Singh principles 44. In reviewing the continuing legality of immigration detention, the domestic courts apply the principles identified in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 and authoritatively summarised by Lord Justice Dyson in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 at §§ 46-47 (see J.N. v. the United Kingdom, no. 37289/12, § 33, 19 May 2016): “... the following four principles emerge: i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose; ii) The deportee may only be detained for a period that is reasonable in all the circumstances; iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention; iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal.", "Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person “pending removal” for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies.", "Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.” E. Removals to Zimbabwe during the relevant period 45. In RN (Returnees) Zimbabwe CG [2008] UKAIT 00083 the Asylum and Immigration Tribunal indicated that those at risk on return to Zimbabwe were not simply those who were seen to be supporters of the Movement for Democratic Change but anyone who could not demonstrate positive support for Zanu-PF or alignment with the regime. 46. Although there had been voluntary removals in 2007, 2008, 2009 and 2010, prior to 14 October 2010 there was a moratorium on enforced removals to Zimbabwe. 47.", "On 14 October 2010 the policy changed, but the new policy remained in suspense pending the decision of the Upper Tribunal in the case of EM (Zimbabwe) CG [2011] UKUT 98 (IAC). This judgment, which was promulgated on 11 March 2011, found that there had been a well‑established and durable change for the better in Zimbabwe since the guidance in RN. On 18 June 2012 the Court of Appeal allowed the claimant’s appeal against this decision and remitted the case to the Tribunal. On 31 January 2013 the Tribunal reconsidered the case and confirmed the country guidance given in EM. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 5 § 1 (f) OF THE CONVENTION 48. The applicant complained that his detention from 28 November 2008 to 15 September 2011 was in violation of Article 5 § 1 (f) of the Convention as it had not been lawful under domestic law, and it had been unreasonable, arbitrary and disproportionate. Article 5 § 1 (f) of the Convention, 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 ... (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” A. Admissibility 1.", "The parties’ submissions 49. The Government submitted that the applicant had not exhausted his domestic remedies in respect of his arguments that his detention was disproportionately long due to their failure to act with “due diligence”. In particular, they submit that the applicant did not invoke the analogous test in the second and fourth Hardial Singh principles that detention can only be for a period that is reasonable in all the circumstances, and that the Secretary of State should act with reasonable diligence and expedition to effect removal. 50. The applicant did not respond directly to the Government’s arguments but referred to the Court’s general powers of review under Article 5 (1).", "2. The Court’s assessment (a) General principles 51. The rule of exhaustion of domestic remedies in Article 35 § 1 reflects the fundamentally subsidiary role of the Convention mechanism. It normally requires that the complaints intended to be made at international level should have been aired before the appropriate domestic courts, at least in substance, in compliance with the formal requirements and time‑limits laid down in domestic law (see, among many other authorities, Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004‑III; and Nicklinson and Lamb v. the United Kingdom (dec.), nos.", "2478/15 and 1787/15, § 89, 23 June 2015). 52. The object of the rule is to allow the national authorities to address the allegation of a violation of a Convention right and, where appropriate, to afford redress before that allegation is submitted to the Court. If the complaint presented before the Court has not been put, either explicitly or in substance, to the national courts when it could have been raised, the national legal order has been denied the opportunity which the rule on exhaustion of domestic remedies is intended to give it to address the Convention issue Peacock v. the United Kingdom (dec.) 52335/12, § 33, 5 January 2016. (b) Application of the general principles to the present case 53.", "The Court notes the Government’s argument. However, it also takes account of the fact that the Government argued at the same time that the applicant’s detention was not excessively lengthy, because if it had been then the domestic courts would have found as much in their judgments; due to the fact they were applying the Hardial Singh principles. 54. The Court considers these two lines of argument illustrate the difficulty for it to separate out the Hardial Singh principles, as the Government has proposed, where the domestic courts have not expressly done so. The Court accepts that the High Court in its decision of 3 June 2011 concluded that in light of the fourth Hardial Singh principle, there had been “no lack of expedition by the Government”, whereas in the later domestic decisions, that question is not expressly addressed.", "However, as acknowledged in the Government’s second line of argument, it is implicit that, unless expressly invited not to, when the domestic courts were reviewing the continued lawfulness of the applicant’s detention they must be taken to have done so in light of the Hardial Singh principles generally. 55. The Court is mindful of the object of the rule of exhaustion of domestic remedies, which is to allow the national authorities to address the allegation of a violation of a Convention right. However, the applicant has conclusively shown that he was detained for a very long period of just over two and a half years, and that he was vulnerable as someone suffering from serious mental health problems. The Court further notes that there is no indication from the information before it that the domestic courts were invited not to consider the Hardial Singh test as a whole.", "56. Therefore where an applicant is bringing a challenge under the Hardial Singh principles at the domestic level, it may be presumed, unless the domestic courts expressly indicate otherwise, that he is raising in substance all the arguments that this Court would consider under Article 5 § 1 (f). 57. In support of this approach the Court also recalls that it has previously concluded (see J.N., cited above, § 97) that the Hardial Singh principles applied by the United Kingdom courts are almost identical to the test applied by this Court under Article 5 § 1 (f) of the Convention in determining whether or not detention has become “arbitrary”. The Court considers that this reinforces its conclusion in the preceding paragraph.", "58. Accordingly, in light of the facts of this case and its approach to the Hardial Singh principles, this Court considers that by arguing his detention was in breach of those principles, even if he put a particular emphasis on the third principle, the applicant was effectively raising all the relevant arguments under Article 5 § 1 (f) before the domestic courts. That includes the arguments that the Government failed to act with due diligence and consequently his detention was excessively lengthy. As such, he has exhausted his effective remedies. 59.", "Finally, the Court notes for the avoidance of doubt that the situation in this case is different from that in Peacock v. the United Kingdom (no. 52335/12 (dec.), § 38, 5 January 2016). In Peacock, the applicant made arguments concerning the interpretation of domestic legislation and attempted to characterise them as substantively similar to the available Convention arguments. However, the two lines of argument were not similar in content. This approach cannot be valid for circumstances, as in this case, where the arguments at the domestic level and at the Convention level are “almost identical” in substance.", "60. The Government also submitted that the applicant’s other complaints under Article 5 § 1 were manifestly ill-founded. However, the Court is satisfied that they raise complex issues of fact and law, such that it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further considers that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. The parties’ submissions (a) The applicant 61. The applicant submitted that his detention was unlawful for three reasons. First, he had presented sufficient evidence on the severity of his mental health to trigger the mental health concession and by failing to apply it the authorities had acted against the substantive and procedural rules of domestic law.", "Second, he had presented the authorities with evidence that he had been tortured and their failure to apply the torture concession was similarly unlawful. Third, the Secretary of State had failed to apply the third Hardial Singh principle, in particular as there was no prospect of effecting deportation due to the moratorium put in place by the Secretary of State on enforced removals to Zimbabwe which lasted until 14 October 2010. He also argued that his detention was arbitrary and disproportionate, due to its excessive length. (b) The Government 62. The Government relied on the findings of the domestic courts.", "It submitted that those courts’ conclusions that the relevant policy concessions and third Hardial Singh principle had been correctly applied were based on factual assessments and the application of domestic law respectively, which the applicant cannot go behind. 2. The Court’s assessment (a) General principles 63. It is well established in the Court’s case-law under the sub‑paragraphs of Article 5 § 1 that any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f), be “lawful”. In other words, it must conform to the substantive and procedural rules of domestic law (Amuur v. France, 25 June 1996, § 50, Reports 1996‑III, and Abdolkhani and Karimnia v. Turkey, no.", "30471/08, § 130, 22 September 2009). 64. However, the logic of the system of safeguards established by the Convention sets limits upon the scope of the Court’s review. It is in the first place for the national authorities, notably the courts, to interpret and apply the domestic law, even in those fields where the Convention “incorporates” the rules of that law: the national authorities are, in the nature of things, particularly qualified to settle the issues arising in this connection (see V.M., cited above, § 88, with further references). 65.", "In addition to the requirement of “lawfulness”, Article 5 § 1 also requires that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see, among many other authorities, Saadi v. the United Kingdom, cited above, § 6; and Chahal v. the United Kingdom, 15 November 1996, § 118, Reports of Judgments and Decisions 1996‑V). 66. While the Court has not formulated a global definition as to what types of conduct on the part of the authorities might constitute “arbitrariness” for the purposes of Article 5 § 1, key principles have been developed on a case-by-case basis. One such principle established in the case-law is that detention will be “arbitrary” where, despite complying with the letter of domestic law, there has been an element of bad faith or deception on the part of the authorities (see, for example, Bozano v. France, p. 23 § 54 18 December 1986, Series A no. 111, and Čonka v. Belgium, no.", "51564/99, § 39 ECHR 2002-I). Furthermore, the condition that there be no arbitrariness demands that both the order to detain and the execution of the detention genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of Article 5 § 1 (see Winterwerp, v. the Netherlands, 24 October 1979, § 39, Series A no. 33). There must in addition be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention (see V.M., cited above, § 85, with further references). 67.", "Where a person has been detained under Article 5 § 1 (f), the Court, interpreting the second limb of this sub-paragraph, held that, as long as a person was being detained “with a view to deportation”, that is, as long as “action [was] being taken with a view to deportation”, Article 5 § 1 (f) did not demand that detention be reasonably considered necessary, for example, to prevent the individual from committing an offence or fleeing. It was therefore immaterial whether the underlying decision to expel could be justified under national or Convention law (see Chahal, cited above, § 112; Slivenko v. Latvia [GC], no. 48321/99, § 146, ECHR 2003 X; Sadaykov v. Bulgaria, no. 75157/01, § 21, 22 May 2008; and Raza v. Bulgaria, no. 31465/08, § 72, 11 February 2010).", "68. Consequently, the Court held in Chahal that the principle of proportionality applied to detention under Article 5 § 1 (f) only to the extent that the detention should not continue for an unreasonable length of time; thus, it held that “any deprivation of liberty under Article 5 § 1 (f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible” (Chahal, cited above, § 113; see also Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 74, ECHR 2007-II). (b) Application of the general principles to the present case 69.", "The Court notes at the outset that the domestic courts’ conclusions concerning the applicant’s state of mental health and evidence of his torture are factual findings, in which it is not for this Court to interfere (see among other authorities Kemmache v. France (no. 3), 24 November 1994, § 44, Series A no. 296‑C and more recently, Portyanko v. Ukraine (dec.), no. 24686/12, 6 October 2015). Mindful of the scope of its review when examining lawfulness under Article 5 § 1 (see § 64 above), the Court does not find that the applicant has adduced any reason which could require it to diverge from the national courts’ conclusions concerning the applicability of the relevant policy concessions.", "70. The Court must also ascertain whether the relevant domestic law was itself in conformity with Article 5 § 1 (f) of the Convention. In this regard, the applicant’s complaints include a submission that the system of immigration detention in the United Kingdom – in particular, the absence of fixed time-limits and automatic judicial review – does not comply with the “quality-of-law” requirements of Article 5 § 1(f) of the Convention. In the recent case of J.N., cited above, §§ 90-93, the Court expressly rejected this argument. In doing so, it found that, despite the absence of fixed time-limits and/or automatic judicial review, the system of immigration detention was sufficiently accessible, precise and foreseeable in its application because it permitted the detainee to challenge the lawfulness and Convention compliance of his ongoing detention at any time.", "In considering any such challenge, the domestic courts were required to consider the reasonableness of each individual period of detention based entirely on the particular circumstances of that case, applying a test similar to – indeed, modelled on – that required by Article 5 § 1 (f) in the context of “arbitrariness” – the Hardial Singh test (see paragraph 44 above). 71. Therefore, given that the applicant’s detention had a basis in domestic law and that, for the reasons set out above, the applicable law was sufficiently accessible, precise and foreseeable, the applicant’s complaints concerning the “lawfulness” of his detention must be rejected. 72. Turning to the question of whether the applicant was detained with a view to his deportation, the Court accepts the domestic courts’ conclusions that the Secretary of State was right to find that the applicant’s deportation could be effected within a reasonable period under the third Hardial Singh principle.", "In this connection, commenting on the steps taken by the authorities to ready the applicant for deportation whilst the stay on forced removals to Zimbabwe was in place, when refusing permission to renew the application for judicial review on 28 October 2011 (see paragraph 36 above), Mr Justice Ouseley considered that: “It is perfectly clear that the resumption of forced removals [after 14 October 2010] would require an effort of engagement with the Zimbabwe authorities to achieve documentation and circumstances for return which would enable them to take place. That was bound to take time, and there is nothing before me to indicate that the prospects of removal were nil or the efforts did not take place.” 73. This analysis was subsequently accepted by the Court of Appeal. 74. Consequently, the principal question for the Court to consider is whether, at any time between 28 November 2008 (when his criminal sentence ended – see paragraph 14 above) to 15 September 2011 when he was released, the applicant’s detention could be said to have been “arbitrary”.", "Generally speaking, as recalled above (at paragraph 66), detention will be arbitrary where there has been bad faith on the part of the authorities, where detention is not closely connected to the grounds relied on by the authorities, where the place and conditions of detention are not appropriate for its purpose, or where the length of the detention exceeds that reasonably required for the purpose pursued. 75. In the present case there is no suggestion that the authorities have at any time acted in “bad faith”. Furthermore, it cannot be said that the place and conditions of detention were not appropriate for its purpose. As noted above, the applicant was assessed as suitable for immigration detention under the relevant policies.", "The Court notes that when reviewing those decisions, the domestic courts took into account the fact that in November 2010 the applicant’s mental health was assessed under the Mental Health Act and he was found to be unsuitable for detention under that Act (as a mental health patient) and not to require compulsory mental health treatment. The applicant has not provided any reasons which would make it appropriate for this Court now to find that the domestic authorities should have come to different conclusions. 76. In determining whether detention was closely connected to its purpose, the Court has repeatedly stated that there is no “necessity” requirement under Article 5 § 1 (f). However, in the case of vulnerable individuals it has stated that the authorities should at the very least have regard to “less severe measures” (see, for example, Yoh-Ekale Mwanje v. Belgium, no.", "10486/10, § 124, 20 December 2011, which concerned an HIV-positive detainee). 77. In the present case it is of some concern that the period of detention under challenge lasted for over two and a half years, during which time the applicant was exercising his right to bring proceedings challenging the decision to deport him. That said, the Court is satisfied that, in the particular circumstances of this case, the above requirements of Article 5 § 1 have been met. First, it observes that pursuant to the Secretary of State’s published policy on immigration detention, “wherever possible, alternatives to detention should be used” (see V.M., cited above, § 95).", "The domestic courts concluded that he was detained lawfully under that provision, taking into account the fact that the applicant was a repeat offender who had failed to comply with the conditions of his stay and previously absconded, and did not have close ties in the United Kingdom which might mitigate the risk of him absconding again. Similar conclusions can be found in the decisions rejecting the applicant’s bail application (see paragraph 19 above). The applicant withdrew a later bail application in November 2010 (see paragraph 28 above). Secondly, the Court notes that limited – if any – alternatives to detention were available in the present case. Reporting requirements were generally not considered to be an effective safeguard against a risk of absconding, and electronic tagging was not recommended (see V.M., cited above, § 95).", "78. Finally, in determining whether the length of detention exceeded that reasonably required for the purpose pursued, the Court must ask whether the authorities acted with “due diligence”. 79. At the outset the Court notes that the domestic courts did not consider that the authorities had failed to act with due diligence. However, it cannot overlook the fact that the applicant’s second asylum application, made on 27 March 2008, (the resolution of which was decisive for his immigration status) was not decided by the Secretary of State until 8 February 2011, just over 2 years and 10 months later.", "A period that appears significantly longer than necessary, in particular when compared against the stated United Kingdom Border Agency aim to give 80 percent of asylum applications a decision within two months (see paragraph 43 above). 80. Nonetheless, the Court notes that during the two year period from when the applicant began his immigration detention to the resolution of the claim, the authorities were not completely inactive. They conducted a second asylum interview on 26 May 2009, and made two telephone calls to his representatives (see paragraphs 16 and 20). 81.", "In the Government’s submission the delay in processing the asylum claim was due to the fact that the applicant’s representatives asked for additional time to submit medical evidence supporting the asylum claim on 3 November 2009 and asserted that it would be unreasonable for the Secretary of State to take a decision without this evidence. In this connection, the Court notes that when the medical evidence in question was not submitted, the Secretary of State imposed a deadline of 31 August 2010 on the applicant’s representatives to provide it. Moreover, that deadline was not met, and it appears that the medical evidence was initially submitted on 22 November 2010 but then withdrawn and a new and apparently definitive medical report submitted on 18 January 2011 (see paragraphs 25, 29, and 31 above). The Court also recognises that in allowing the applicant’s representatives more time to make their submissions, the Government was seeking to balance the benefit to the applicant of making the fullest possible asylum application against the need to take a speedy decision. 82.", "However, the Court considers that the Secretary of State should have taken more decisive steps to bring the decision making process swiftly to a close. In this connection the Court notes that whilst the applicant was considered sufficiently well to be detained it was accepted that he had serious mental health problems, making him vulnerable. There was therefore a heightened duty on the authorities to act with “due diligence” in order to ensure that he was detained for the shortest time possible (see V.M., cited above, § 96 and Kim v. Russia, no. 44260/13, § 54, 17 July 2014). 83.", "Furthermore, the Court notes that the applicant, being a vulnerable individual, was detained for a very significant period of time. The Court notes that in respect of the period between 9 November 2009, when the applicant first indicated that he intended to provide a medical report to support his second asylum application and 8 February 2011, when his asylum claim was finally decided the government failed to take any significant initiative towards deciding his claim. Moreover, for the period of just over four months after the deadline for that expert report expired and until the final report was ultimately provided, the Court considers there was a heightened need for the government to process and, ultimately, decide the claim diligently and speedily given the amount of time that the applicant had already been in detention (see J.N., cited above, § 105). 84. The Court also recalls that the Government has chosen to put in place a system where there are no fixed time limits on immigration detention (see paragraph 70 above).", "Where an applicant is subject to an indeterminate period of detention, the necessity of procedural safeguards becomes decisive (see Louled Massoud v. Malta, no. 24340/08, § 71, 27 July 2010). Accordingly, in the context of the present case, the Court considers that the necessity to ensure the effectiveness of the available procedural safeguards meant that there was a particular need for the authorities to act with appropriate due diligence in managing the decision making process and following up the deadline ultimately imposed. The Court has already highlighted the difficult balance that the Government was faced with in the circumstances but it notes that by failing to ensure a timeous decision in the applicant’s asylum claim, the domestic authorities also prevented the applicant from challenging that decision sooner before the asylum and immigration tribunals. In this respect, the Court recalls that those tribunals would have been able to examine his asylum claim fully on the merits including any supporting evidence he wished to submit at that stage.", "85. Finally, the Court recognises that the applicant’s behaviour was to some extent contradictory, on the one hand asking for more time to submit documents to support his asylum claim and on the other hand complaining about the length of his detention, a contradiction that may have posed difficulties for the authorities in determining where his intentions lay (see paragraph 81). However, as the Government accepted in their submissions, making reference to the Magna Carta 1215 and the Bill of Rights 1688, the right to liberty is of ancient origin and, even as a matter of domestic law, the burden is on the person who has detained another person to show that he had lawful authority to detain. Therefore it was clear that even if the applicant’s actions were contradictory, the responsibility lay with the Secretary of State to ensure that the detention was (and remained) lawful. In this connection the Court recalls that the applicant was vulnerable and detained for over two and a half years in the context of a legal framework that did not impose time limits on his immigration detention.", "Accordingly, the Court considers that in the circumstances the authorities should have been more diligent in pursuing the applicant’s representatives and following up the provision of the expert evidence, especially after a deadline had been imposed, to ensure the necessary “due diligence”. 86. The applicant claimed before the domestic courts that his detention became unlawful on 28 June 2010. Accordingly, and in light of the above, the Court concludes that the authorities did not act with sufficient “due diligence” from that date until 8 February 2011 when the asylum claim was finally decided; a total period of 7 months and 12 days. 87.", "There has accordingly been a violation of Article 5 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 88. 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 89.", "The applicant claimed one hundred thousand pounds sterling (GBP 100,000) in respect of non-pecuniary damage. 90. The Government argued that this figure was excessive. 91. In this case, the Court has found that the authorities’ failure to act with due diligence was because they did not manage the applicant’s requests relating to his asylum claim efficiently, including his requests to allow him more time to submit evidence (see paragraph 81 above).", "Moreover, that failure occurred largely because the authorities were allowing the applicant time to make the fullest possible asylum claim, and there is nothing to indicate that they would not have decided his claim sooner and ended his immigration detention sooner, had he produced that evidence earlier as requested. The Court also notes in this connection that the applicant withdrew an application for bail (see paragraph 77 above), thereby depriving the domestic courts of the possibility to consider his release during the relevant period. 92. Therefore, in light of the applicant’s conduct and having regard to the particular circumstances of the case, the Court does not consider that it is “necessary”, in the terms of Article 41 of the Convention, to afford the applicant any financial compensation by way of just satisfaction. The Court accordingly holds that the finding of a violation of Article 5 § 1 in itself constitutes adequate just satisfaction for the purposes of the Convention.", "B. Costs and expenses 93. The applicant also claimed fifteen thousand, four hundred and twenty-five pounds and fifty pence (GBP 15,425.50) for the costs and expenses incurred before the Court. 94. 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 seven thousand euros (EUR 7,000) for the proceedings before the Court. C. Default interest 95. 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; 3. Holds; (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: EUR 7,000 (seven 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 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 unanimously, the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 22 June 2017[1], pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel CamposLinos-Alexandre SicilianosRegistrarPresident [1].", "Rectified on 15 November 2017: the date of “30 May 2017” has been replaced by “22 June 2017”." ]

[ "FIFTH SECTION CASE OF R.Š. v. LATVIA (Application no. 44154/14) JUDGMENT STRASBOURG 8 March 2018 FINAL 04/02/2019 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of R.Š.", "v. Latvia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President,Erik Møse,André Potocki,Yonko Grozev,Síofra O’Leary,Mārtiņš Mits,Lәtif Hüseynov, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 30 January 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 44154/14) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Mr R.Š. (“the applicant”), on 9 June 2014. The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 4 of the Rules of Court).", "2. The applicant was represented by Mrs L. Sokolova, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Mrs K. Līce. 3. The applicant alleged that he had been unable to obtain compensation for harm suffered as a result of an aircraft accident, and that the State should bear responsibility for any shortcomings in the legal regulation of the safety of private flights.", "4. On 7 January 2015 the above complaints under Articles 2 and 8 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1983 and lives in Mārupe.", "At the material time the applicant held a pilot licence and was undergoing aviation training. A. Background information 6. In 2008 the applicant used the services of a company, KD.C. (the name of this company was subsequently changed, but it will be referred to hereinafter as “KD.C.” or “the company”).", "D.K. held 100% of the shares in the company (he was its sole owner) and he was also its sole board member. The company provided private flights and organised private pilot training courses. The Civil Aviation Agency had issued the company with a registration certificate for the provision of private pilot training courses. 7.", "The company did not provide commercial flights, therefore it fell outside the scope of the Regulation of the Cabinet of Ministers on Procedures Regarding the Issuing of an Air Operator’s Certificate for Aerial Work (8 May 2007), and was not certified by the Civil Aviation Agency. B. Aircraft accident 8. On 16 August 2008 KD.C. organised a private flight from Riga to Tukums using a multi-engine aircraft, a Piper PA-31 with a maximum allowed mass of 2,900 kg.", "The applicant and six other people boarded the aircraft as passengers. The applicant occupied the front seat of the aircraft, next to the pilot, G.V., and maintained radio communication with the air traffic control service. 9. At around 10 a.m. the pilot, G.V., lost control of the aircraft and it crashed (see paragraph 12 below). As a result, the pilot died and all passengers sustained serious injuries.", "10. According to a forensic medical examination, the applicant suffered serious, life-threatening injuries. He permanently lost the vision in his right eye and sustained other permanent damage to his health. He underwent treatment in Latvia and abroad. After rehabilitation, the applicant was able to continue working as an aviation specialist, but under certain limitations.", "He was not permitted to operate an aircraft independently and was required to undergo medical checks more often than other aviation specialists. C. Investigation into the accident 11. Following the accident on 16 August 2008 officials from the Transport Accident and Incident Investigation Bureau (Transporta nelaimes gadījumu un incidentu izmeklēšanas birojs, hereinafter “the TAIIB”), whose main task was to establish the circumstances of an accident, went to the scene of the accident and carried out an investigation. 12. According to the TAIIB’s final report of 27 June 2009, on the day of the accident, when operating in cloudy weather, G.V., the pilot, made a series of chaotic manoeuvres, as a result of which the aircraft, which was about 30-50 m from the ground, lost altitude.", "The attempts to stabilise it were unsuccessful. As a consequence of hitting the ground and damaging its tank, the aircraft caught fire. 13. The investigation concluded that the primary cause of the accident was “human error” (cilvēka faktors), namely G.V. having insufficient skills and experience to independently operate a multi-engine aircraft in accordance with instrumental flight rules and, in particular, to operate a Piper PA-31 aircraft.", "The pilot had not obtained authorisation from the Civil Aviation Agency to fly that particular type of aircraft. In particular, G.V. had started the “differences training programme” for the Piper PA‑31 aircraft on 1 August 2008, but had not finished it. Nevertheless, on 16 August 2008 he had flown without sufficient qualifications. 14.", "The final report indicated several aspects which had contributed to the accident, such as unfavourable weather conditions with poor visibility, and the “unsafe supervision” (nedroša uzraudzība) carried out by the Civil Aviation Agency “[to ensure] that the aviation legislation and visual flight rules were complied with”. 15. With regard to KD.C., the company which owned the aircraft, the investigation concluded that it had not followed up on the pilot’s differences training programme and its outcome. On the day of the accident the company had not checked whether the pilot’s documents complied with the requirements of the legislation, and it had unjustifiably (nepamatoti) handed over the aircraft to him and verbally authorised him to fly. 16.", "The above report, inter alia, addressed to the Civil Aviation Agency eight recommendations concerning flight safety. The second recommendation advised the Civil Aviation Agency to impose a duty on aircraft owners to set up a procedure for aircraft handovers which would prevent pilots from operating a flight without a licence and would contain confirmation of an appropriate qualification certificate issued by the Civil Aviation Agency. D. Criminal proceedings 1. Investigation 17. On 16 August 2008 a criminal investigation was opened into the aircraft accident.", "In the course of the investigation the police gathered evidence, ordered that forensic examinations be carried out, and interviewed numerous witnesses, including various aviation specialists. 18. Questioned as a witness, D.K. stated that he himself had no experience of operating aircrafts, and that G.V. had been the company’s de facto associate, although legally he had had no contractual relationship with the company; D.K.", "also stated that he had had no doubts that G.V. had had sufficient qualifications, because he had undergone the necessary training and obtaining a certificate had only been a formality. It had been supposed that G.V. would at all times be accompanied by a more experienced instructor during the training flights. On the day of the accident D.K.", "had a telephone conversation with G.V. and the latter informed him that he had finished his “instruction” and would soon be starting a flight. Only afterwards did D.K. find out that another aeroplane had returned to the same airport owing to bad weather conditions. 19.", "The investigation revealed that G.V. had undertaken to fly the aircraft even though he lacked the requisite skills, which had caused the accident in question. On 14 January 2010 the proceedings with regard to G.V. were terminated due to his death. 20.", "The material in the criminal case contained a letter from the TAIIB dated 20 October 2009 which stated, inter alia, that at the material time the legislative acts regulating aviation safety in Latvia had not provided for a procedure setting out how to hand over an aircraft for a general aviation flight. 21. This was further confirmed in a statement given by a TAIIB official during the investigation, that in general aviation, unlike in commercial aviation, there were no established (nebija sakārtots) regulations regarding an aircraft owner’s responsibility in relation to a specific flight and a pilot’s skills. Therefore the recommendations of the TAIIB were adopted to address that issue within the existing system (see paragraph 16 above). During the investigation, an official of the Civil Aviation Agency testified that in commercial aviation, the question of an operator’s responsibility with regard to the qualifications and rights of a pilot was sufficiently regulated, however this regulation did not apply to general aviation flights.", "22. On 24 May 2011 the prosecution indicted D.K. for negligence in the performance of his professional duties (section 197 of the Criminal Law) and violation of air traffic safety or operation regulations (section 257(2) of the Criminal Law). The prosecution alleged that D.K. had handed over the aircraft to G.V.", "knowing that the latter lacked the requisite permit and skills to operate it. On 8 June 2011 the prosecution referred the case for trial. 2. Trial 23. On 22 October 2012 the Tukums District Court found D.K.", "guilty on both counts. It established that D.K. had not applied any measures to verify G.V.’s qualifications. He had given the aircraft to the pilot knowing that the latter lacked the appropriate authorisation and had permitted him to fly. D.K.", "was given a suspended prison sentence of five years. He was also ordered to pay the applicant 20,000 Latvian lati (around 29,000 euros (EUR)) in compensation for non-pecuniary damage. 24. On 15 May 2013 the Zemgale Regional Court, acting as an appellate court, quashed the above judgment and acquitted D.K. In the appeal proceedings, D.K.", "testified that in his telephone conversation with G.V. on 16 August 2008 they had agreed that G.V. would not fly, owing to the bad weather conditions. He explained the inconsistency in relation to his pre‑trial testimony (see paragraph 18 above) as follows. Firstly, he had been a witness at that stage.", "Secondly, he had been interviewed in Latvian, which was not his mother tongue, and he had not been as fluent as was necessary. He had no doubt that G.V. was responsible for the accident, and he could not envisage also being charged in criminal proceedings. 25. With regard to negligence in the performance of his professional duties (see paragraph 44 below), the court deemed that neither the indictment nor the first-instance judgment had shown what professional duties in particular D.K.", "had neglected. Also, not being an aviation specialist, he could not have been regarded as a “special subject” for the purposes of this section of the Criminal Law (an organisation’s responsible employee). 26. Concerning the alleged violation of air traffic safety or operation regulations (see paragraph 45 below), the appellate court concluded that it had not been established precisely what regulations D.K. had violated and by what conduct in particular.", "Besides, section 257 of the Criminal Law required that the prohibited conduct be committed by a transport employee, which D.K. was not. 27. The appellate court indicated that, even though D.K. could not be held criminally liable, KD.C.", "had an obligation to provide compensation for the damage sustained by the victim, and therefore the applicant had rights to seek damages in civil proceedings. 28. Both the applicant and the prosecutor submitted appeals against the appellate court’s judgment. 29. On 9 December 2013 the Senate of the Supreme Court endorsed the appeal court’s findings that it had not been shown that D.K.", "had committed the requisite actus reus. The Senate confirmed that D.K.’s actions did not contain the necessary elements of a crime under sections 197 and 257(2) of the Criminal Law. 30. The Senate stated that the prosecution should not have relied on certain provisions of the Commercial Law, the Civil Law, the Law on Aviation and the Convention on International Civil Aviation (hereinafter “the Chicago Convention”). Those provisions were applicable when determining the civil and not criminal liability of an aircraft owner.", "In accordance with section 34 of the Law on Aviation, a pilot was prohibited from performing his functions in the event that he had not acquired the appropriate qualifications. The above provision had been binding upon the pilot and not D.K. The Senate also stated that only on 18 November 2010 had Part II of Annex 6 to the Chicago Convention, Seventh Edition, come into force, making provision for the liability of an aircraft owner and a pilot; before that date the Chicago Convention provided the responsibility only of the pilot (see also paragraph 58 et seq. below). 31.", "Furthermore, at the material time, no legislation had provided for a procedure for handing over an aircraft to a pilot, designating a person responsible for verifying pilots’ training, or checking flight planning and implementation. Only subsequent to the accident in question had recommendations been issued to the Civil Aviation Agency on the preparation of statutes relevant to flight safety. As of 24 April 2013, section 91 of the Law on Aviation had provided that an aircraft owner or operator was not allowed to hand over an aircraft to a person lacking the appropriate qualifications and insurance cover (see paragraph 55 below). E. Civil proceedings for damages 32. On 13 August 2010 the applicant lodged a claim for damages against KD.C.", "(the company which owned the aircraft), D.K. (the sole owner and board member of the company), and the insurance company. In the claim, inter alia, the applicant relied on sections 1782, 2347 and 2349 of the Civil Law (see paragraphs 42-43 below). In the meantime, by a final decision of the Riga Regional Court of 8 November 2010, KD.C. was declared bankrupt (maksātnespējīgs) upon application by one of its creditors and respective proceedings were started with retrospective effect from 31 December 2008.", "33. On 14 May 2013 the Riga Regional Court, acting as a court of first instance, dismissed the claim in full on the grounds that the defendants had not committed unlawful actions (prettiesiska darbība). There was no dispute that D.K. had agreed to the pilot starting a “differences training programme” for the Piper PA-31 aircraft with a flight instructor, O.G. However, there was no evidence that on 16 August 2008 D.K.", "had allowed the pilot to operate this aircraft carrying seven passengers. On the contrary, the instructor and another witness (J.Z.) had testified that it had been planned that the pilot would operate the aircraft with the flight instructor, who had not arrived at the airport to take the flight on that date because of the bad weather conditions. The pilot had been informed of the bad weather conditions and the fact that the flight instructor would not arrive for the flight. By referring to the investigation carried out by the TAIIB, the Riga Regional Court noted that the primary reason for the accident was “human error” on the part of the pilot, and that the lack of sufficient procedure in relation to handing over an aircraft had contributed to the accident, but was not the sole cause of it.", "Moreover, the applicant had occupied the front seat of the aircraft, next to the pilot, and had maintained radio communication. Taking into account that he was a pilot himself and that he had received information about the unfavourable weather conditions, he could have avoided any damage by choosing not to fly in such circumstances. By referring to the second recommendation (see paragraph 16 above), the court concluded that, at the material time, there had been no obligation for aircraft owners to verify the qualifications and health of pilots. 34. On 24 September 2015 the Civil Cases Chamber of the Supreme Court, acting as an appellate court, dismissed the applicant’s claim in full on the following grounds.", "35. With regard to KD.C., the civil proceedings were terminated because the company had ceased to exist (on 26 May 2015 it had been excluded from the Companies Register) and there was no legal successor. 36. Next, the appellate court found that D.K. could not be held liable under sections 1779 and 1635 of the Civil Law for the damage sustained by the applicant.", "By referring to the investigation carried out by the TAIIB, the appellate court also noted that the primary cause of the accident had been “human error” on the part of the pilot. While the lack of a sufficient procedure in relation to handing over the aircraft had contributed to the accident, there was no causal link between the accident and the actions of D.K., who managed the company. The appellate court also referred to the conclusions made in the criminal proceedings to the effect that D.K. was not liable for the flight operated by the pilot, and the fact that he had been acquitted. Moreover, the appellate court referred to evidence given to the first-instance court and concluded that on 16 August 2008 D.K.", "had not allowed the pilot to operate the aircraft independently and that the pilot’s course of action (to operate the aircraft independently) had been arbitrary and unlawful. It had been planned that the pilot would operate the aircraft with the flight instructor (see paragraph 33 above). In the light of sections 97 and 98 of the Law on Aviation, the owner of the aircraft was the company and not D.K. Thus, the latter could not be held responsible under the Law on Aviation. In so far as the applicant referred to the Chicago Convention, this was inapplicable, because it only provided for the responsibility of a pilot-in-command and, from 18 November 2010 onwards, the responsibility of an owner; D.K.", "was neither a pilot nor an owner. Neither could D.K. be held liable under section 1782 of the Civil Law (see paragraph 43 below) because the pilot had not been an employee of the company. Nor could he be held liable under sections 2347 and 2349 of the Civil Law (see paragraph 42 below). Referring to the conclusions made in the criminal proceedings, the appellate court held that D.K.", "had not engaged in any unlawful (prettiesiska) or liable (vainojama) activity. Therefore, he could not be required to pay damages to the applicant. There was no doubt that the aircraft was a source of dangerous activity, but D.K. was not its owner. Instead, KD.C.", "was the owner of the aircraft, therefore it was liable for loss caused by the source of dangerous activity. 37. The appellate court also refused to hold D.K. liable as a board member of the company. It concluded that, under the relevant provisions of the Commercial Law, board members were liable for damage caused to a company.", "In the present case, the company had not incurred any losses because it had not provided compensation for any damage sustained by the applicant. 38. Lastly, the appellate court dismissed the claim against the insurance company. In the judgment, it stated that the aircraft accident fell outside the terms of the aircraft’s insurance, which provided that compensation was not awarded if an accident was caused by a pilot who had no right to operate an aircraft. In the present case, the pilot had not had a permit to operate the aircraft in question.", "39. In a preparatory meeting on 5 May 2016 the Senate of the Supreme Court dismissed an appeal on points of law by the applicant in the case against KD.C., D.K. and the insurance company. F. Other relevant information 40. In a letter dated 12 May 2015 addressed to the Government regarding the accident in question, the Civil Aviation Agency stated: “As regards the responsibility of the aircraft owner, we note that the legislative acts [at the material time] provided that the owner of an aircraft was responsible for ensuring the maintenance of the aircraft’s airworthiness, but not its safe operation during a flight, which was the pilot’s responsibility.", "In particular, in accordance with Commission Regulation (EC) No 2042/2003 of 20 November 2003 on the continuing airworthiness of aircraft and aeronautical products, parts and appliances, and on the approval of organisations and personnel involved in these tasks, under Annex I (Part M) M.A. 201 (a), the owner is responsible for the continuing airworthiness of an aircraft and shall ensure that no flight takes place unless: the aircraft is maintained in an airworthy condition; and any operational and emergency equipment fitted is correctly installed and serviceable or clearly identified as unserviceable; and the airworthiness certificate remains valid; and the maintenance of the aircraft is performed in accordance with the approved maintenance programme.” II. DOMESTIC LAW AND PRACTICE A. Legislation on the right to compensation 41. Article 92 of the Constitution (Satversme) provides, inter alia, that “any person whose rights are violated without justification has a right to commensurate compensation”.", "Domestic legal provisions pertaining to compensation for pecuniary and non-pecuniary damage under the Civil Law (Civillikums) are quoted in full in Zavoloka v. Latvia (no. 58447/00, §§ 17‑19, 7 July 2009). Sections 1635 and 1779 are also explained in the case of Holodenko v. Latvia (no. 17215/07, § 45, 2 July 2013). B.", "Civil Law 42. Under section 2347 of the Civil Law, if a person is responsible for causing another person bodily injury through an illegal action, the person responsible shall compensate the victim for medical expenses and the loss of future income (paragraph one). A person engaging in activities, which are dangerous for others (transport, enterprise, construction, dangerous substances, etc. ), shall compensate for loss caused by the source of dangerous activity, unless he or she proves that it was incurred owing to force majeure, or through the victim’s own intentional act or gross negligence (paragraph two). Under section 2349 of the Civil Law, the domestic courts shall award compensation for bodily injuries causing mutilation and disfigurement.", "43. Section 1782 provides that a person who fails to exercise due care in choosing agents or other employees, and who fails to satisfy himself or herself as to their abilities and suitability to perform duties as may be imposed on them, shall be liable for losses the agents or employees cause a third party. C. Criminal Law 44. Section 197 criminalises negligence by an organisation’s employee in the performance of his or her professional duties where substantial harm is caused to the organisation or to the lawful rights and interests of another person. 45.", "Section 257(2) criminalises, inter alia, violation by a transport employee of air traffic safety or operation regulations if there are serious consequences (smagas sekas). D. Law on Aviation (as in force at the material time) 46. Section 5 provided that the Ministry of Transport and the Civil Aviation Agency implemented the State policy and administration in the area of the use of the Republic of Latvia’s airspace and civil aviation operations. 47. Section 6 defined the powers of the Civil Aviation Agency.", "These powers comprised, inter alia: carrying out State supervision of the use of the Republic of Latvia’s airspace and civil aviation operations; prohibiting activities related to the use of airspace or the operation of aircrafts in breach of legislative acts; coming up with measures to guarantee aircraft flight safety; and drawing up legislative acts regulating the safety of civil aviation operations. Together with other authorities, the Civil Aviation Agency was also tasked with supervising the training, retraining and raising of the level of qualifications of civil aviation personnel (section 31). 48. Section 33 provided that aviation specialists should carry out their functions pursuant to the domestic and European Union law and the international agreements which were binding upon the Republic of Latvia. 49.", "The relevant parts of section 34 read as follows: “An aviation specialist is prohibited from performing his or her functions if he or she: 1) is unable to present a licence with an appropriate qualification stamp allowing the performance of such functions, or if the specialist’s [possession of] the appropriate qualification has not been verified within the time-limit prescribed; ...” 50. Section 36 provided that the work of a civil aircraft flight crew should be managed by a pilot-in-command. If a civil aircraft flight crew included only one pilot, he or she was also the pilot-in-command. 51. Section 37 set out the duties of the pilot of an aircraft, such as: managing the work of a flight crew so that aircraft flight safety was ensured and the provisions of this Law and other laws of the Republic of Latvia were respected, as well as the requirements of by-laws, instructions and other laws and regulations; implementing measures to prevent danger threatening the aircraft which he or she controlled; rescuing passengers, injured crew members, the aircraft, and its documentation and property on board; and providing medical assistance to those who were injured if the aircraft had an aviation accident.", "52. Section 38 set out the rights of the pilot of an aircraft, such as: taking the final decision on an aircraft taking off, continuing with a flight or landing at an intended flight destination or an alternate aerodrome; or temporarily suspending the departure of an aircraft. 53. Section 96 provided as follows: “An aircraft owner or operator, if the aircraft has been operated by another person, shall be liable for any harm caused by the death or damage to health of a member of the flight crew which occurs during the performance of his or her official duties. The performance of duties shall commence with a flight crew member’s preparation for a flight and shall conclude after the flight at the moment when he or she has fulfilled all of the functions set out in the rules regarding the operation of the aircraft and other regulations.” 54.", "Section 97 provided as follows: “An aircraft owner or operator, if the aircraft is operated by another person, shall be liable for any harm caused to a third party in the territory of the Republic of Latvia by an aircraft in flight or an object that has become separated from that aircraft [where this harm] manifests [itself] in either the death of the third party or damage caused to his or her health, or harm caused to his or her property, if the aircraft owner or operator, in accordance with the procedures laid down in legal acts of the Republic of Latvia, does not prove that the harm occurred according to the fault of the victim himself or herself. The Cabinet [of Ministers] shall determine the procedures by which compensation for harm to a third party or [that third party’s] property shall be provided, if [such harm] is caused by a military or civil aircraft (or an object that has become separated from that aircraft) of the Republic of Latvia which the National Armed Forces of Latvia use for military purposes. For the purposes of this section, an aircraft shall be deemed to be an aircraft in flight from the moment the engines of the aircraft are started before take-off until the moment when the aircraft has finished taxiing after its landing.” 55. On 21 March 2013 the Law on Aviation was supplemented by section 91. This was to have effect from 24 April 2013 onwards and was worded in the following manner: “An aircraft owner and operator is prohibited from handing over an aircraft which is to be flown to a person who does not have a civil aircraft flight crew member licence with an appropriate qualification stamp and who is not insured in accordance with section 111 of this law.” E. Examples of domestic case-law concerning claims against the State for compensation for non-pecuniary damage 56.", "In a judgment of 24 November 2010 in case no. SKC-233/2010, the Civil Cases Chamber of the Senate of the Supreme Court held that there was no specific legal regulation for compensation with regard to actions taken by a domestic court, save for regulation concerning unjustified conviction and administrative arrest. However, such an absence could not be an obstacle to lodging a respective claim, because the third sentence of Article 92 of the Constitution, which provided for the right to receive compensation, was directly applicable. The Administrative Cases Chamber of the Senate of the Supreme Court, in a decision of 24 July 2012 in case SKA-726/2012, held that, in order for a person to seek compensation for an infringement of his or her rights caused by a legal provision adopted by Parliament, he or she could file a civil claim with a court of general jurisdiction, directly referring to the third sentence of Article 92 of the Constitution. Such a claim would be brought against the Republic of Latvia, which would be represented by its Parliament (pret Latvijas Republiku Saeimas personā).", "57. The claimant in civil case no. 04255508, relying on Article 92 of the Constitution and Article 1635 of the Civil Law, alleged liability on the part of the State and requested an award of compensation for non-pecuniary damage in respect of a failure to ensure the safety of soldiers’ skydiving classes and their compliance with legal provisions, which had resulted in the death of the claimant’s son. These skydiving classes had been organised by the National Armed Forces, and the domestic courts established negligence on the part of State officials (they had failed to comply with various provisions of domestic law and internal instructions), as well as a causal connection between that negligence and the death of the soldier. In its judgment of 6 March 2013, the Senate of the Supreme Court, sitting in an extended composition, referring to, inter alia, the State’s positive obligations enshrined in Article 2 of the Convention, ruled that an acquittal in criminal proceedings did not exclude the State’s liability for an accident.", "Consequently, the victim’s relatives had a right to seek compensation for non-pecuniary damage. In its judgment of 31 October 2014 in civil case no. C33137808, the Senate of the Supreme Court, sitting in an extended composition, noted that the State police’s conclusion reached in the course of criminal proceedings as to the absence of pecuniary damage was not binding on a court adjudicating a civil claim, and did not absolve parties to civil proceedings from the obligation to prove the non-existence of pecuniary damage in the course of those proceedings. In another decision of 3 February 2015 in case no. C322451I I, the Civil Cases Division of the Supreme Court upheld a lower court’s ruling awarding compensation for non-pecuniary damage to a victim’s relatives, notwithstanding the fact that criminal proceedings were ongoing in respect of the same events.", "III. INTERNATIONAL LAW AND PRACTICE 58. The Chicago Convention provides that every State has complete and exclusive sovereignty over the airspace above its territory (Article 1). No scheduled international air service may be operated over or into the territory of a contracting State without that State’s special permission (Article 6). Latvia acceded to the Convention on 13 July 1992, and it entered into force in respect of Latvia on 12 August 1992.", "The Sixth Edition of Annex 6 (“Operation of Aircraft”) to the Chicago Convention contains International Standards and Recommended Practices that were applicable on 1 July 2008. It contains three parts: international commercial air transport – aeroplanes (Part I), international general aviation – aeroplanes (Part II) and international operations – helicopters (Part III). 59. Part II reads as follows: FOREWORD Historical background “... Level of safety. The Annex should ensure an acceptable level of safety to passengers and third parties (third parties meaning persons on the ground and persons in the air and in other aircraft).", "Also, as some international general aviation operations (typically under 5,700 kg) would be performed by crews less experienced and less skilled, with less reliable equipment, to less rigorous standards and with greater freedom of action than in commercial air transport operations, it was therefore, accepted that the passenger in international general aviation aircraft would not necessarily enjoy the same level of safety as the fare-paying passenger in commercial air transport. However, it was recognised that in ensuring an acceptable degree of safety for third parties, an acceptable level of safety for flight crews and passengers would be achieved. Freedom of action. The maximum freedom of action consistent with maintaining an acceptable level of safety should be granted to international general aviation. Responsibility.", "The responsibility that devolves under the operator in Annex 6, Part I, should, in Part II of the Annex, fall under the owner and pilot-in-command. ...” Applicability “The Standards and Recommended Practices of Annex 6, Part II, are applicable to international general aviation operations with aeroplanes. The Standards and Recommended Practices represent minimum provisions and, together with those of Annex 6 – Operation of Aircraft, Part I – International Commercial Air Transport – Aeroplanes, now cover the operation of all aeroplanes in international civil aviation, except in aerial work operations. It will be noted that the Standards and Recommended Practices contained in Annex 6, Part II, when applied to the operation of large aeroplanes, are less stringent than those in Annex 6, Part I, applicable to the same or similar aeroplanes when used in commercial air transport operations. Nevertheless, it is considered that, in conjunction with existing provisions in Annexes 1 and 8, Annex 6, Part II, ensures an adequate level of safety for the operations envisaged for the large aeroplanes in question.", "In this connection attention is drawn to the point that the entire performance Standards of Annex 8 are applicable to all aeroplanes of over 5,700 kg mass intended for the carriage of passengers or cargo or mail international air navigation, of which the prototype was submitted for certification on or after 13 December 1964. Moreover, by virtue of Annex 1 the pilot of an aircraft certificated for operation with a minimum crew of at least two pilots must hold a type rating for that aircraft type.” SECTION 2 – GENERAL AVIATION OPERATIONS CHAPTER 2.1 GENERAL 2.1.1 Compliance with laws, regulations and procedures “2.1.1.1 The pilot-in-command shall comply with the laws, regulations and procedures of those States in which operations are conducted. ... 2.1.1.2 The pilot-in-command shall be familiar with the laws, regulations and procedures, pertinent to the performance of his or her duties, prescribed for the areas to be traversed, the aerodromes to be used and the air navigation facilities relating thereto. The pilot-in-command shall ensure that other members of the flight crew are familiar with such of these laws, regulations and procedures as are pertinent to the performance of their respective duties in the operation of the aeroplane. 2.1.1.3 The pilot-in-command shall have responsibility of the operational control.", "...” CHAPTER 2.2 FLIGHT OPERATIONS 2.2.1 Operating facilities “The pilot-in-command shall ensure that a flight will not be commended unless it has been ascertained by every reasonable means available that the ground and/or water facilities including communication facilities and navigation aids available and directly required on such flights, for the safe operation of the aeroplane, are adequate for the type of operation under which the flight is to be conducted ...” 2.2.2 Operational management 2.2.2.1 Operating instructions – general “An aeroplane shall not be taxied on the movement area of an aerodrome unless the person at the controls is an appropriately qualified pilot or: a) has been authorised by the owner ...; b) is fully competent to taxi the aeroplane; c) is qualified to use the radio if radio communications are required; and d) has received instruction from a competent person in respect of aerodrome layout, and where appropriate, information on routes, signs, marking, lights, ATC signals and instructions, phraseology and procedures, and is able to conform to the operational standards required for safe aeroplane movement at the aerodrome.” 2.2.5 Duties of pilot-in-command “2.2.5.1 The pilot-in-command shall be responsible for the operation, safety and security of the aeroplane and the safety of all crew members, passengers and cargo on board. ...” CHAPTER 2.6 AEROPLANE MAINTENANCE 2.6.1 Owner’s maintenance responsibilities “2.6.1.1 The owner of an aeroplane, or in case where it is leased, the lessee, shall ensure that, in accordance with procedures acceptable to the State of Registry [the State on whose register the aircraft is entered]: a) the aeroplane is maintained in an airworthy condition; b) the operational and emergency equipment necessary for an intended flight is serviceable; and c) the certificate of airworthiness of the aeroplane remains valid. 2.6.1.2 The owner or the lessee shall not operate the aeroplane unless it is maintained and released to service under a system acceptable to the State of Registry. ...” CHAPTER 2.7 AEROPLANE FLIGHT CREW 2.7.2 Qualifications “2.7.2.1 The pilot-in-command shall: a) ensure that each flight crew member holds a valid licence issued by the State of Registry...; b) ensure that flight crew members are properly rated; and c) be satisfied that flight crew members have maintained competency. ...” CHAPTER 2.9 SECURITY 2.9.1 Security of aircraft “The pilot-in-command shall be responsible for the security of the aircraft during its operation.” 60.", "Section 3 of Part II, providing for the responsibility of an operator of a flight, is not relevant to the present case, because it applies to international general aviation operations with aeroplanes with a maximum certificated take-off mass exceeding 5,700 kg, or aeroplanes equipped with one or more turbojet engines. THE LAW ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 61. The applicant complained that he had been unable to obtain compensation for harm suffered as a result of an aircraft accident from the various third parties involved (see paragraph 75 below) and that the State should bear responsibility for any shortcomings in the legal regulation of the safety of private flights. The Court, being the master of the characterisation to be given in law to the facts of the case, will consider this complaint under Article 2 of the Convention, the relevant part of which reads: “1. Everyone’s right to life shall be protected by law...” A. Admissibility 1.", "Applicability of Article 2 of the Convention 62. The parties did not contest the applicability of Article 2 of the Convention in the circumstances of the present case. 63. The Court has found Article 2 applicable in a number of cases where an individual has survived a serious incident in which the right to life or physical integrity was at stake (see, for example, Budayeva and Others v. Russia, nos. 15339/02 and 4 others, § 146, ECHR 2008 (extracts) concerning mudslide as a threat to the applicant’s physical integrity, and Iliya Petrov v. Bulgaria, no.", "19202/03, §§ 54 and 70, 24 April 2012 concerning electrocution as an accident putting the applicant’s life in imminent danger). 64. The particular circumstances of the present case (see paragraphs 8‑10,12 above) leave no doubt as to the existence of a threat to the applicant’s life or physical integrity such as to bring his complaints within the ambit of Article 2, which is therefore applicable to the present case. The Court will examine the question of the existence of a positive obligation to protect life under the merits of the applicant’s substantive complaint under Article 2 of the Convention. 2.", "The parties’ observations on admissibility (a) Abuse of the right of application 65. The Government contended that the applicant had abused his right of application. Namely, he had misled the Court by stating that the injuries he had sustained as a result of the aircraft accident had prevented him from pursuing his career as a pilot. It appears that since July 2010 the applicant has been employed as a pilot in an airline company. 66.", "The applicant submitted that after the accident he had been unable to work in his profession for a long period; in his application to the Court he had not alleged that he had been permanently prevented from pursuing his career. He also explained that even though he had regained his ability to work as a pilot, owing to his persisting health problems, his pilot certificate imposed certain limitations on him, such as a ban on his operating an aircraft without another pilot (see paragraph 10 above). (b) Non-exhaustion of domestic remedies 67. The Government argued that the applicant had not exhausted the following domestic remedies. Firstly, with regard to the procedural obligation to investigate, he could have complained to the supervising prosecutor regarding the actions and decision taken in the course of investigation within the criminal proceedings.", "Secondly, at the time when the observations were made in the present case, the proceedings for civil damages against the third parties responsible had been ongoing before a domestic court. The Government contended that the existing legal framework (Article 92 of the Constitution and the relevant provisions of the Civil Law) and the domestic case-law (see paragraph 57 above) had provided for the possibility to claim D.K.’s civil liability (they referred to him as the aircraft’s owner) and to request compensation for the accident of 16 August 2008. The above argument had already been accepted by the Court in several cases against Latvia where it had held that a decision to discontinue criminal proceedings owing to a lack of corpus delicti had no prejudicial effect in civil proceedings (see, for example, Y. v. Latvia, no. 61183/08, § 71, 21 October 2014). Thirdly, the Government contended that, had the applicant believed that the State had not introduced particular regulations to ensure flight safety back in 2008, and that the failure to introduce such regulations had breached his human rights, he should have relied on Article 92 of the Constitution and instituted proceedings before a court of general jurisdiction (they referred to cases SKC-233/2010 and SKA-726/2012, see paragraph 56 above).", "68. The applicant disagreed and contended that he had had no effective remedies. 3. The Court’s assessment (a) Abuse of the right of application 69. The Court reiterates that, under this provision, among other reasons, an application may be rejected as an abuse of the right of individual application if new, important developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 of the Rules of Court, the applicant has failed to disclose that information to the Court (see Gross v. Switzerland [GC], no.", "67810/10, § 28, ECHR 2014, with case-law cited therein). However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (ibid.). In the present case, the available information provided by the applicant in his observations (see paragraph 66 above) does not indicate that he intended to mislead the Court. 70. Accordingly, the Court dismisses the Government’s objection.", "(b) Non-exhaustion of domestic remedies 71. In relation to the Government’s first argument that, with regard to the procedural obligation to investigate, the applicant could have complained to the supervising prosecutor regarding the actions and decisions taken in the course of the investigation within the criminal proceedings, the Court notes that the case was subsequently examined by the domestic courts. The applicant had the possibility to lodge any complaints during the trial, and he pursued them to the highest level of domestic courts by lodging an appeal on points of law (see paragraph 28 above). Moreover, the applicant’s complaint in the present case pertains to the possibility of obtaining compensation from a third party and alleged shortcomings in the legal regulation of the safety of private flights (see paragraph 61 above). In view of these two considerations, the Court dismisses the non-exhaustion argument submitted by the Government.", "72. With regard to the Government’s next argument that the civil proceedings had been ongoing at the time the parties in the present case had exchanged observations, the Court reiterates that the requirement for an applicant to exhaust domestic remedies is normally determined with reference to the date on which an application is lodged with the Court (see Baumann v. France, no. 33592/96, § 47, ECHR 2001-V (extracts)). However, the Court also accepts that the last stage of such remedies may be reached after the lodging of the application but before the Court determines the issue of admissibility (see Karoussiotis v. Portugal, no. 23205/08, § 57, ECHR 2011 (extracts)).", "The applicant lodged his application with the Court on 9 June 2014, while the civil proceedings were ongoing before the appellate court, and his case was finally determined at domestic level on 5 May 2016, when the Senate of the Supreme Court dismissed his appeal on points of law in those civil proceedings (see paragraph 39 above). In the circumstances, there are no grounds for dismissing the applicant’s complaint as premature. Consequently, the Court dismisses the Government’s argument in that regard. 73. Lastly, the Government also argued non-exhaustion with regard to there being a possibility for the applicant to institute civil proceedings under Article 92 of the Constitution for the State’s failure to introduce particular regulations to ensure flight safety.", "The Court observes that, out of the five examples of domestic practice concerning claims against the State in compensation proceedings (see paragraphs 56-57 above), only one of them pertained specifically to legal regulation (case SKA-726/2012). The Court is not persuaded that that case – which concerned an infringement of rights allegedly caused by an existing legal provision – could attest to the effectiveness of the proposed remedy in a different context, such as that of the present case, which pertains to the possibility of obtaining compensation in the context of alleged lacunae in the legal regulation of the safety of private flights. Moreover, the Government have not indicated against which public body such civil proceedings could be directed or even what specific acts or failure to act could be examined in such proceedings, in particular, in view of the Government’s argument that there was no legal obligation on the State to introduce more extensive regulation (see paragraph 77 below). The Court therefore dismisses the Government’s argument about non‑exhaustion of domestic remedies. (c) Conclusion 74.", "The Court considers that the complaint under Article 2 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ observations 75.", "In essence, the applicant upheld his initial submissions. The applicant alleged that “the management of KD.C.” had not verified the pilot’s qualifications before the flight. On the one hand, the applicant invoked several provisions of the domestic law and submitted that they contained a sufficient legal basis for holding at least the owner of the aircraft (referring to KD.C.) and its legal representative (referring to D.K.) liable for an accident (he referred to sections 97 and 98 of the Law on Aviation and section 169 of the Commercial Law), but they had not been held liable in this case.", "On the other hand, the applicant contended that if the Government alleged that the legislation did not require the owner of an aircraft to carry out any checks on the qualifications of their pilots, then the Government should bear responsibility for the shortcomings in the regulatory framework as regards the safety of private flights. In addition, he referred to the audit carried out by the European Commission, which concluded that the Latvian authorities had not introduced unified requirements in Latvian legislation with regard to the employees of aviation companies. 76. The Government contended that, at the moment of accident, the domestic legislation had contained comprehensive and sufficient safeguards for ensuring flight safety, and the legislative framework had been capable of preventing the accident of 16 August 2008. Namely, sections 33-34 and 36‑38 of the Law on Aviation had set out the rights and obligations of an aircraft pilot with regard to ensuring safety during a flight (see paragraphs 46-52 above).", "A similar regulation had been set out in the Chicago Convention. The Government referred to the investigation carried out by the TAIIB, which had found that the primary cause of the accident was the misconduct of the pilot, who had disregarded the legislative provisions and operated the aircraft without the necessary qualifications. 77. In reply to the applicant’s argument that the State had failed to require the aircraft owner to verify the pilot’s qualifications prior to the flight, the Government contended that, at the material time, no EU regulation or legislation in individual member States of the EU had provided for the duty of an aircraft owner to carry out such a check, and therefore there had been no duty on the State to introduce such a regulation. The Government referred to the information provided by the Civil Aviation Agency (see paragraph 40 above), and submitted that the applicable legislative acts at the material time had provided for an aircraft owner’s responsibility for maintaining the airworthiness of an aircraft, while operational safety had had to be ensured by the pilot-in-command.", "Thus, an owner had been responsible for technical maintenance, but the responsibility of ensuring a safe flight had only rested on a pilot. At international level, responsibility of an aircraft owner had only been introduced in 2010. Therefore, the recommendation which the TAIIB had addressed to the Civil Aviation Agency (see paragraph 16 above) following the accident could not be interpreted as creating an assumption that the State had failed to perform its duties or that it should be at fault for the accident. In this connection, the Government added that not every risk to life could entail for the authorities a Convention requirement to take operational measures to prevent that risk (they referred to İlbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey, no. 19986/06, §§ 36-37, 10 April 2012).", "The documents drawn up the by Civil Aviation Agency upon a request by the Government clarified that the audit carried out by the European Commission had concerned commercial flights and not private flights, and that the amendments to the Law of Aviation in April 2013 had not been related to the accident in question (see paragraph 55 above). They also explained that section 3 of Part II of Annex 6 of the Chicago Convention applied only to aeroplanes with a mass exceeding 5,700 kg (see also paragraph 60 above). 2. The Court’s assessment (a) General principles 78. Article 2 does not only concern deaths resulting from the use of force by agents of the State.", "In the first sentence of its first paragraph it places a positive obligation on the Contracting States to take appropriate steps to safeguard the lives of those within their jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998‑III). Such a positive obligation has been found to arise in a range of different contexts examined by the Court. For example, in relation to ensuring safety on board a ship (see Leray and Others v. France (dec.), no. 44617/98, 16 January 2001) or on building sites (see Pereira Henriques and Others v. Luxembourg (dec.), no.", "60255/00, 26 August 2003). In certain circumstances, a State may have positive obligations to protect individuals from a risk to their lives resulting from their own actions or behaviour (see Bone v. France (dec.), no. 69869/01, 1 March 2005, and Kalender v. Turkey, no. 4314/02, §§ 42-50, 15 December 2009). 79.", "The above list of different contexts is not exhaustive. Indeed, in its judgment in Öneryıldız the Grand Chamber observed that the positive obligation under Article 2 must be construed as applying in the context of any activity, whether public or not, in which the right to life might be at stake (see Öneryıldız v. Turkey [GC], no. 48939/99, § 71, ECHR 2004‑X). 80. The obligation on the part of a State to safeguard the lives of those within its jurisdiction has been interpreted so as to include a positive obligation to take regulatory measures as appropriate, measures which must be geared to the special features of the activity in question, with particular regard to the level of the potential risk to human lives involved.", "The regulatory measures in question must govern the licensing, setting up, operation, security and supervision of the activity, and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks. Taking into account the technical aspects of the activity in question, the relevant regulations must also provide for appropriate procedures for identifying shortcomings in the processes concerned and any errors committed by those responsible at different levels (see Öneryıldız, cited above, §§ 89-90, and Budayeva and Others, cited above, §§ 131-32). 81. That said, the Court has also held in many cases that the positive obligation under Article 2 is to be interpreted in such a way as to not impose an excessive burden on the authorities, particularly bearing in mind the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources (see Ciechońska v. Poland, no. 19776/04, § 64, 14 June 2011); this results from the wide margin of appreciation States enjoy, as the Court has previously held, in difficult social and technical spheres such as the one in issue in the instant case (see Hatton and Others v. the United Kingdom [GC], no.", "36022/97, § 100, ECHR 2003-VIII as concerns the regulation of excessive aircraft noise and the means of redress to be provided to the individual within the domestic legal system). 82. The choice of means for ensuring the positive obligations under Article 2 is in principle a matter that falls within the Contracting State’s margin of appreciation. There are a number of avenues for ensuring Convention rights, and even if the State has failed to apply one particular measure provided for by domestic law, it may still fulfil its positive duty by other means (see İlbeyi Kemaloğlu and Meriye Kemaloğlu, cited above, § 37, and Ciechońska, cited above, § 65). 83.", "The Court further notes that the State’s duty to safeguard the right to life not only involves the taking of reasonable measures to ensure the safety of individuals as necessary; in the event of serious injury or death, this duty must also be considered to require the setting up of an effective independent judicial system so as to secure legal means capable of establishing the facts, holding those at fault accountable, and providing the victim with appropriate redress (see Byrzykowski v. Poland, no. 11562/05, §§ 104‑18, 27 June 2006, and Dodov v. Bulgaria, no. 59548/00, § 83, 17 January 2008). If the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation to set up an “effective judicial system” does not necessarily require criminal proceedings to be brought in every case, and may be satisfied if civil, administrative or even disciplinary remedies were available to the victims (see, for example, Vo v. France [GC], no. 53924/00, § 90, ECHR 2004‑VIII, and Calvelli and Ciglio v. Italy [GC], no.", "32967/96, § 51, ECHR 2002‑I). (b) Application in the present case 84. In the present case, the threat to the applicant’s life in the form of life-threatening injuries arose as a result of an aircraft accident when an insufficiently qualified pilot operated a private aircraft. The applicant’s complaint pertains to the possibility of obtaining compensation from a third party against the background of the allegedly insufficient legal regulation of the safety of private flights. Therefore, the Court will start its assessment with a focus on the legal regulation.", "(i) Substantive aspect 85. The Court notes that the applicant did not specifically complain about the licensing, setting up and operation of private flights in Latvia. He instead took issue with the legal regulation of the safety of private flights (see paragraphs 61 and 75 above). The Court will, accordingly, examine international, European and domestic legal regulation in that regard. 86.", "According to the Government, at the material time, the applicable international and European regulatory framework in the field of aviation safety did not require aircraft owners to verify whether a pilot had the appropriate qualifications to operate an aircraft (see paragraph 77 above). 87. In this connection, the Court observes that the international instrument in the area of flight safety, that is the Chicago Convention, which applies to international civil aviation, set out the minimum requirements in the area of general aviation (see paragraphs 58-59 above). Since the parties have referred to the Chicago Convention and the domestic courts have analysed it in the domestic proceedings, the Court will also examine the obligations arising thereof, bearing in mind that the particular flight in the present case pertained to a domestic rather than international domain. The Court cannot discern from the Chicago Convention an obligation to provide in principle for the responsibility of an aircraft owner in the area of private flights at the material time.", "Indeed, as established by the domestic courts, prior to 18 November 2010 the Chicago Convention only provided for the responsibility of a pilot (see paragraphs 30 and 36 above). The Latvian Civil Aviation Agency also confirmed that the applicable European standards provided for a pilot’s responsibility for safety during a flight and an aircraft owner’s responsibility for ensuring that the aircraft was maintained (see paragraph 40 above). Therefore, the legal regulation of the safety of private flights in the respondent State did not fall short of the international or European standards in this regard at the material time. In view of the wide margin of appreciation afforded to the contracting States in such a difficult technical sphere as aviation safety (see paragraph 81 above), the Court considers that the Convention does not go as far as to require that the States introduce higher standards than those recognised under international or European law. That being said, member States may choose to provide a higher standard of protection than that provided for in international or European law.", "Accordingly, the Court will next examine the scope of the legislative framework in the field of aviation safety for private flights in Latvia. 88. At the material time, the principal legislative act in the field of aviation safety in Latvia was the Law on Aviation. It set out the rights and obligations of an aircraft’s pilot in relation to ensuring safety during a flight (see paragraphs 51-52 above) and, inter alia, prohibited a pilot from operating an aircraft without holding a valid licence bearing an appropriate qualification stamp (see paragraph 49 above). At the material time, the responsibility under domestic law for ensuring that an aircraft was operated by a sufficiently qualified pilot lay with the pilot himself (ibid.).", "89. As can be seen from the statements of aviation specialists during the domestic proceedings, at the material time the responsibility of aircraft owners in Latvia was regulated differently in relation to general aviation, including private flights, and commercial flights. In particular, in relation to private flights, there was no requirement for an aircraft owner to provide for a procedure for handing over an aircraft to a pilot, in contrast with commercial flights (see paragraphs 20-21 above). The applicant, who held a pilot licence himself, must have been aware of those differences in the legal framework, as one of a pilot’s duties is to ensure flight safety in accordance with the law (see paragraph 51 above). The Court considers that the differences in safety levels between commercial and general aviation as established in Latvia at the material time do not as such raise an issue under the Convention, provided that the State complies with its positive obligations.", "90. In view of the wide margin of appreciation afforded to the contracting States in such a difficult technical sphere as aviation safety, the contracting States are not required under the Convention to regulate the safety levels of different types of flights in an identical manner (see paragraphs 81-82 above). The Court notes that the domestic regulation at the material time did not fall below the requirements of international and European law as it prescribed in clear and detailed terms a pilot’s responsibility for flight safety in the circumstances at issue. The Court concludes that the respondent State did not overstep its margin of appreciation by not providing a more stringent legislative framework than that incorporated in international or European standards at the relevant time. Accordingly, the State has complied with its positive obligations in this regard.", "The Court finds that there has been no violation of the substantive aspect of Article 2 of the Convention. (ii) Procedural aspect 91. The Court must take a comprehensive look at the procedures that were available to the applicant to establish the circumstances of the aircraft accident, determine those at fault, and provide redress. There were three such procedures: the investigation by the relevant authority, the criminal investigation opened by the prosecution authorities and the civil proceedings which the applicant brought against the various third parties involved. The question is whether in the concrete circumstances any of those satisfied the State’s obligation under Article 2 of providing an effective judicial system.", "92. Firstly, the relevant authority immediately went to the scene of accident and carried out an investigation, the results of which revealed that the primary cause of the accident had been “human error” on the part of the pilot, who had had insufficient skills and experience. There had also been several contributing factors, such as bad weather conditions. The authority also made a number of recommendations concerning flight safety (see paragraphs 11-16 above). 93.", "Secondly, criminal proceedings were instituted promptly and evidence was gathered. However, the pilot could not be held responsible for his failure to ensure flight safety because he had died in the accident, and the criminal proceedings in that regard were terminated owing to his death (see paragraph 19 above). D.K. was prosecuted for negligence and violations of air traffic safety or operation regulations within the same criminal proceedings, but he was eventually acquitted because of the lack of elements of a crime (see paragraphs 22-31 above). The criminal proceedings were not overly lengthy given the complexity of the case.", "Although the criminal proceedings by themselves would be capable of meeting the procedural obligation to ensure effective judicial system in the circumstances (see Öneryıldız, cited above, § 93, and Budayeva and Others, cited above, § 140), the applicant in the present case took issue with one particular aspect, namely the fact that he had been unable to obtain compensation from a third party for damage suffered as a result of the aircraft accident. It is, therefore, necessary to proceed with the examination of the effectiveness of the separate civil proceedings brought by the applicant. 94. Thirdly, the applicant instituted civil proceedings against three respondents – KD.C. (the company which owned the aircraft), D.K.", "(the sole owner and board member of the company), and the insurance company. He could institute such proceedings while the criminal investigation was still ongoing and the civil proceedings were not stayed. While D.K. could not be held liable for the accident under the various provisions relied on by the applicant (see paragraphs 36-37 above), the situation under the domestic law does not appear to be clear cut in respect of KD.C.’s civil responsibility as the owner of the aircraft. The Court observes that, in the course of the criminal proceedings, the domestic authorities had suggested that the applicant sue the owner of the aircraft for damages (see paragraph 27 above).", "The civil courts, however, terminated the subsequent civil proceedings concerning the aircraft’s owner because it had ceased to exist and there was no legal successor, therefore leaving open the question of whether or not the owner, had it not ceased to exist, could have been held responsible under the domestic law (see paragraph 35 above). Lastly, the claim against the insurance company was dismissed because the pilot had not had a permit to operate the aircraft in question (see paragraph 38 above). 95. Even though the circumstances of the aircraft accident and those who had been at fault were duly established following the investigation by the relevant authority and the ensuing criminal and civil proceedings, the applicant could not obtain compensation owing to a variety of factors specific to the case. Firstly, the pilot had died in the accident.", "Secondly, the company which had owned the aircraft had ceased to exist. Thirdly, the insurance contract did not cover situations where an aircraft was operated by an insufficiently qualified pilot. It is therefore that the State cannot be blamed for the applicant’s unsuccessful compensation claim, because mechanisms had been put in place for a person to claim compensation from the various third parties involved in an accident. The Court concludes that the legal system as a whole, faced with an arguable case of a negligent act causing death, provided an adequate and timely response consonant with the State’s obligation under Article 2 of the Convention to provide an effective judicial system. Accordingly, the Court finds that there has been no violation of the procedural aspect of Article 2 of the Convention.", "FOR THESE REASONS, THE COURT, 1. Declares, unanimously, the application admissible; 2. Holds, by six votes to one, that there has been no violation of the substantive aspect of Article 2 of the Convention; 3. Holds, unanimously, that there has been no violation of the procedural aspect of Article 2 of the Convention. Done in English, and notified in writing on 8 March 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Claudia WesterdiekAngelika NußbergerRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Mits is annexed to this judgment. A.N.C.W. PARTLY DISSENTING OPINION OF JUDGE MITS Regrettably, I cannot agree with my colleagues in so far as I think that there has been a violation of the substantive aspect of Article 2 of the Convention. When someone wishes to hire a car, he or she is usually required to produce a valid driving licence. If someone wishes to take a private aircraft to fly, he or she does not need to produce a valid pilot’s licence.", "Is it adequate from the point of view of the State’s positive obligations under Article 2 of the Convention in view of such an inherently dangerous activity as operating an aircraft? Applicable principles 1. Without prejudice to the general principles listed in paragraphs 78-83 of the judgment, the following principles should have formed the basis for the examination of the State’s positive obligations under the substantive limb of Article 2 of the Convention in the present case. First, there is a duty to put in place a legislative and administrative framework providing for effective deterrence against threats to the right to life (see Iliya Petrov v. Bulgaria, no. 19202/03, § 55, 24 April 2012).", "2. Second, in certain areas, the potential for life-threatening accidents that may impact not only on professionals carrying out specific activities, but also the public at large, imposes on the State more compelling responsibility, in terms of strict control mechanisms, towards members of the public who have to live with the real dangers posed by the relevant dangerous activity (see, mutatis mutandis, Cevrioğlu v. Turkey, no. 69546/12, § 67, 4 October 2016). 3. Third, the choice of means for ensuring the positive obligations under Article 2 of the Convention in principle falls within the State’s margin of appreciation.", "There are different avenues to ensure Convention rights, and even if the State has failed to apply one particular measure provided for under domestic law, it may still fulfil its positive duty by other means (see Ilbey Kemaloğlu and Meriye Kemaloğlu v. Turkey, no. 19986/06, § 37, 10 April 2012). Application of the principles in the present case 4. As is noted in paragraph 88 of the judgment, domestic law at the material time set out the rights and obligations of an aircraft pilot in relation to ensuring safety during a flight and prohibited a pilot from operating an aircraft without holding a valid licence. The sole responsibility for ensuring that an aircraft was operated by a sufficiently qualified pilot lay with the pilot himself.", "Neither the owner of an aircraft nor any other authority was obliged to verify that a pilot had the proper qualifications prior to handing over the aircraft to him (see paragraphs 31 and 33 of the judgment). 5. It is true that no obligation with regard to the responsibility of the aircraft owner or other authority can be discerned from the Chicago Convention, which anyway sets out minimum obligations in the area of international general aviation. However, compliance with the obligations under the European Convention on Human Rights does not depend on the existence of such an obligation under another international instrument. 6.", "The responsibility of aircraft owners in Latvia was regulated differently for general aviation, including private flights, compared with commercial flights (see paragraph 21 of the judgment). It must be acknowledged that such a difference in safety levels between commercial and general aviation per se does not raise an issue under the Convention (it is also accepted by the Chicago Convention, see paragraph 59 of the judgment). However, in view of the inherent dangerousness related to the operation of an aircraft, both types of activities – private and commercial flights – bear comparable risks of potentially serious consequences in case of an accident caused by unqualified crew members. Because of the potentially serious consequences – life-threatening accidents could have an impact upon not only the professionals involved (pilots and crew members) but also the public at large – the State has a compelling responsibility under the Convention to ensure control mechanisms in the area of private flights (see paragraph 2 above). 7.", "In view of its margin of appreciation (see paragraph 3 above), the State is free to choose the means to ensure compliance with its positive obligations under Article 2 of the Convention. It may, for example, choose to enact legislation extending the responsibility of owners (as was done after the accident), to oblige the relevant authorities to carry out certification of operators, including owners, that would include producing a list of pilots authorised to operate flights, to introduce more specific control mechanisms (e.g. inspections) or to take other appropriate action. 8. In the present case the Civil Aviation Agency, which was tasked with supervising the use of airspace in Latvia and civil aviation operations, was not entitled to carry out certification of private flight operators.", "The TAIIB acknowledged that in general aviation, unlike in commercial aviation, there were no established regulations regarding an aircraft owner’s responsibility in relation to a specific flight and a pilot’s skills, and recommended that the Civil Aviation Agency impose a duty on aircraft operators, including aircraft owners, to establish a procedure for handing over aircraft which would prevent pilots from operating an aircraft without a licence (see paragraphs 21 and 16 of the judgment). However, the Civil Aviation Agency cannot establish such a procedure if there is no underlying obligation imposed by the competent institution on the aircraft owner. After the accident, such obligation was introduced by legislative amendments providing for the responsibility of aircraft owners (see paragraph 55 of the judgment). 9. It follows that at the relevant time there existed a legislative and administrative framework aimed at preventing threats to the right to life.", "However, this regulatory framework itself was not sufficient to comply with the positive obligations under Article 2 of the Convention since the State was also under an obligation to ensure its effective functioning (see paragraph 1 above, and Cevrioğlu v. Turkey, cited above, § 67). There was no control mechanism at all. The fact that the applicant was unable to obtain compensation for the damage sustained as a result of the accident, for which the sole responsibility lay with the unqualified pilot who had died, underlines the overall inefficacy of the legislative and administrative framework in the area of private flights. Conclusion 10. In view of the fact that the operating of private planes is an inherently dangerous activity triggering the strict responsibility of the State towards members of the public, and despite there being a margin of appreciation as to the means of ensuring compliance with its positive obligations, the existing regulatory framework at the relevant time did not provide for effective deterrence against the threats to the right to life.", "Consequently, it is my opinion that there has been a violation of the substantive limb of Article 2 of the Convention." ]

[ "FIRST SECTION CASE OF GATTI AND OTHERS v. ITALY (Application no. 59454/00) JUDGMENT STRASBOURG 31 July 2003 FINAL 31/10/2003 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 Gatti v. Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrP.", "Lorenzen,MrsF. Tulkens,MrsN. Vajić,MrE. Levits,MrA. Kovler,MrV.", "Zagrebelsky, judges,and Mr S. Nielsen, Deputy Section Registrar, Having deliberated in private on 8 July 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 59454/00) 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 seven Italian nationals, Mr Giovanni Gatti, Mrs Artina Gatti, Mrs Maria Gatti, Mr Anselmo Gatti, Mr Giuseppe Gatti, Mrs Giovanna Gatti and Mrs Carla De Simone (“the applicants”), on 20 July 2000. 2. The applicants are represented by Mr G. Cieri, 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 18 April 2002 the Court declared the application admissible. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicants live in Rome. 5. They are the owners of a flat in Rome, which they had let to G.B. and R.B.F. 6.", "In a writ served on the tenants on 23 July 1992, the applicants informed the tenant of their intention to terminate the lease and summoned them to appear before the Rome Magistrate. 7. By a decision of 17 December 1992, 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 30 August 1993. 8. On 8 October 1993, the applicants served notice on the tenants requiring them to vacate the premises.", "9. On 29 October 1993, they served notice on the tenants informing them that the order for possession would be enforced by a bailiff on 16 December 1993. 10. Between 16 December 1993 and 25 January 2000, the bailiff made thirty-two attempts to recover possession. Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession.", "11. On 27 March 2000, the applicants recovered possession of the flat. II. RELEVANT DOMESTIC LAW 12. 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. A.The system of control of the rents 13. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows. 14.", "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. 15. 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. 16. 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 17. 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”. 18. 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. 19. 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. 20. 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 21. The applicants complained of their prolonged inability to recover possession of their flat, owing to the lack of police assistance. They alleged a violation of their 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.” 22. The applicants 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...” 23. 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). 24. 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 applicants 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 25.", "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 26. The applicants sought reparation for the pecuniary damage they had sustained, which they calculated as follows: 60,000,000 Italian lire (ITL) [30,987.41 euros (EUR)], the sum being the loss of rent for the period from December 1993 (first attempt of the bailiff) to March 2000 (when the applicants recovered possessions of their flat). However, they left the matter to be assessed by the Court in an equitable manner given the impossibility to exactly determine the loss of rent. 27. The Government contested the claim.", "28. As regards the amount claimed by the applicants, the Court considers that they failed to submit itemised particulars of their claim, together with the relevant supporting documents or vouchers, as required under Rule 60 of the Rules of Court. Consequently, the Court decides to reject the claim. B. Non-pecuniary damage 29. The applicants claimed ITL 15,000,000 [EUR 7,746.85] for the non-pecuniary damage.", "30. The Government contested the claim. 31. The Court considers that the applicants must have sustained some non-pecuniary damage. Ruling on an equitable basis, it awards them the amount claimed in full (EUR 1,106.69 for each applicant).", "C. Costs and expenses 32. The applicants also claimed reimbursement of their legal costs and expenses as follows: - ITL 7,500,000 [EUR 3,873.43] for the costs of the enforcement proceedings; - EUR 2,000 for the costs and expenses before the Court. As regards the costs and expenses before the Court, the applicants also left the matter to be assessed by the Court in an equitable manner. 33. As regards the costs of the enforcement proceedings, the Government contested the claim.", "As regards the costs and expenses before the Court, the Government did not make any submissions. 34. On the basis of the information in its possession and the Court’s case-law, the Court considers it reasonable to award each applicant the sum of EUR 285.71 for the costs of the enforcement proceedings and the sum of EUR 285.71 for the costs and expenses incurred before the Court. D. Default interest 35. 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 each of the applicants, 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 1,106.69 (one thousand one hundred six euros and sixty-nine cents) for non-pecuniary damage; (ii) EUR 571.42 (five hundred seventy-one euros and forty-two cents) 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 applicants’ claim for just satisfaction. Done in English, and notified in writing on 31 July 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos Rozakis Deputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF GRISHA v. UKRAINE (Application no. 1535/03) JUDGMENT STRASBOURG 10 August 2006 FINAL 10/11/2006 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 Grisha v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: MrP. Lorenzen, President,MrsS.", "Botoucharova,MrK. Jungwiert,MrV. Butkevych,MrsM. Tsatsa-Nikolovska,MrR. Maruste,MrJ.", "Borrego Borrego, judges,and Mrs C. Westerdiek, Section Registrar, Having deliberated in private on 10 July 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 1535/03) 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 Anatoliy Fedorovich Grisha (“the applicant”), on 9 November 2002. 2. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V.Lutkovska and Mr Y.Zaytsev.", "3. On 23 November 2004 the Court decided to communicate the complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 concerning the non-enforcement of the judgments in the applicant’s favour 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 this case was assigned to the newly constituted Fifth Section (Rule 25 § 5 and Rule 52 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1939 and currently resides in the town of Novogrodovka, Donetsk region, Ukraine. 6.", "In 2000 and 2001, respectively, the applicant instituted two sets of proceedings in the Novogrodovskiy Town Court against the Novogrodovskaya Mining Company No. 1/3 - a State-owned enterprise - to recover unpaid compensation for health damage. 7. On 4 October 2000 the court awarded the applicant UAH 9,999.90[1] in such compensation. 8.", "By another judgment of 10 July 2001 the same court awarded the applicant UAH 32,156.50[2] in compensation for health damage. 9. In October 2001 the applicant instituted proceedings in the Novogrodovskiy Town Court against the Bailiffs’ Service for failure to enforce the judgments in his favour. On 19 December 2001 the court found against the applicant, finding no fault on the part of the bailiff. On 8 April 2002 the Court of Appeal of the Donetsk Region upheld the judgment of the first-instance court.", "On 6 August 2002 the judge of the Novogrodivskyi Local Court returned the applicant’s appeal in cassation as it had been submitted too late. 10. In February 2003 the Novogrodovskaya Mining Company was reorganised and became a structural subdivision of the Selidovugol Mining Company. As the latter thereby became the debtor, the enforcement proceedings were transferred to the Selidovskiy Town Bailiffs’ Service (Отдел Государственной исполнительной службы Селидовского городского управления юстиции). 11.", "The applicant instituted proceedings in the Selidovskiy Town Court of the Donetsk region against the Selidovskiy Town Bailiffs’ Service claiming compensation for material and moral damage caused to him by the non-enforcement of the judgments in his favour. On 27 December 2004 the court found against the applicant. On 11 March 2005 the Court of Appeal of the Donetsk Region upheld the first instance court decision. The applicant appealed against these decisions in cassation. Proceedings are still pending.", "12. The Government informed the Court that the applicant has received UAH 25,779.64; the rest of the debt awarded to the applicant remains unpaid. II. RELEVANT DOMESTIC LAW 13. The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no.", "29439/02, § 17-22, 26 April 2005). THE LAW I. ADMISSIBILITY A. Complaint under Article 2 § 1 of the Convention 14. The applicant complained that the existing situation infringed his right to life under Article 2 § 1 of the Convention, given his low standard of living. The Court reiterates that, according to its case-law, neither Article 2 nor any other provision of the Convention can be interpreted as conferring on an individual a right to enjoy any given standard of living (Wasilewski v. Poland (dec.), no.", "32734/96, 20 April 1999). Moreover, the applicant has not shown that he suffers such destitution as to put his life at risk (see Sokur v. Ukraine (dec.), no. 29439/02, 26 November 2002). It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. B.", "Complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No.1 15. The applicant complained about the length of the non-enforcement of the judgments in his favour. He invoked Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. These Articles 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 ....” 16. The Government submitted no observations on the admissibility of the applicant’s complaints.", "17. The Court concludes that the applicant’s complaint under Article 6 § 1 of the Convention about the delay in the enforcement of the judgments of the Novogrodovskiy Town Court 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. For the same reasons, the applicant’s complaint under Article 1 of Protocol No.", "1 cannot be declared inadmissible. II. MERITS 18. The Government maintained that the responsibility of the State in this situation was limited to the organisation and proper conduct of enforcement proceedings and that the length of the enforcement proceedings had been caused by the critical financial situation of the debtor company and the energy sector of the Ukrainian economy in general. The Government contended that the Bailiffs’ Service performed all necessary actions and cannot be blamed for the delay.", "The regularity of the enforcement proceedings in the present case was confirmed by the domestic courts. The Government argued that the State could not be considered responsible for the debts of its enterprises and that the State annually allocated substantial amounts from its budget to cover part of the disability allowances and other compensatory payments to the workers in the mining industry. 19. The applicant disagreed. 20.", "The Court notes that the judgments in the applicant’s favour have not been enforced for more than five years and nine months. 21. The Court recalls that it has already found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases like the present application (see, Sokur v. Ukraine, cited above, §§ 30-37; Shmalko v. Ukraine, cited above, §§ 55-57). 22.", "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. 23. There has, accordingly, been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1. III.", "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. The applicant claimed EUR 56,235 in respect of pecuniary and non-pecuniary damage. 26.", "The Government maintained that the applicant has not substantiated his claims. 27. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 28. However, in so far as the judgments in the applicant’s favour have not been enforced in full (paragraph 12 above), the Court considers that, if the Government were to pay the remaining judgments debt owed to the applicant, it would constitute full and final settlement of his claim for pecuniary damage.", "29. The Court further considers that the applicant must have sustained non-pecuniary damage, and awards him EUR 2,300 in this respect. B. Costs and expenses 30. The applicant 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 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 complaint under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No. 1 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the judgments debt still owed to him, as well as EUR 2,300 (two thousand three hundred euros) in respect of non-pecuniary damage; (b) that the above amount 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 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 10 August 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident [1] At the material time around 2,091 euros (EUR) [2] At the material time around EUR 7,056.50." ]

[ "SECOND SECTION CASES OF TEŠIĆ v. SERBIA (app. nos. 4678/07 and 50591/12) JUDGMENT STRASBOURG 11 February 2014 FINAL 11/05/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the cases of Tešić v. Serbia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Işıl Karakaş,Dragoljub Popović,András Sajó,Nebojša Vučinić,Helen Keller,Egidijus Kūris, judges,and Stanley Naismith, 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 two applications (nos. 4678/07 and 50591/12) against Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Serbian national, Ms Sofija Tešić (“the applicant”), on 29 December 2006 and 28 May 2012 respectively. 2. The applicant was represented by Mr M. Dodig, a lawyer practising in Temerin. The Serbian Government (“the Government”) were initially represented by their former Agent, Mr S. Carić, and subsequently by their current Agent, Ms Vanja Rodić.", "3. Applications nos. 4678/07 and 50591/12 concern the criminal and civil defamation proceedings, respectively, brought against the applicant by her former lawyer and the applicant’s various complaints in this connection. 4. On 11 December 2012 the applications were communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1934 and lives in Ledinci. In December 2006 her pension was 6,568.30 Serbian Dinars (“RSD”), i.e. approximately 80 Euros (“EUR”).", "6. The relevant facts of the case, as submitted by the parties, may be summarised as follows. A. The criminal case and other related proceedings 7. On 8 April 2005 the Novi Sad Municipal Court, acting on the basis of a private criminal action (privatna krivična tužba) filed on 10 March 2003, found the applicant guilty of criminal defamation (kleveta) and sentenced her to six months’ imprisonment, suspended for a period of two years (uslovna osuda; see paragraph 35 below).", "Ms SN, a journalist, was also found guilty of the same offence and sentenced identically. 8. The Municipal Court noted, inter alia, that on 12 December 2002 Dnevnik, a Novi Sad daily newspaper, had published an article, prepared by Ms SN and based on the information provided by the applicant, to the effect that the latter’s lawyer, Mr NB, had deliberately failed to represent her properly in a pending civil case. The article maintained that this was subsequently confirmed by the Novi Sad Police Department. The Municipal Court described the applicant’s and article’s assertions as lacking any factual basis and being aimed solely at harming the honour and reputation of Mr NB, a highly respected member of the Novi Sad legal community and a former judge.", "9. On 11 January 2006 the Novi Sad District Court upheld this judgment on appeal and endorsed its reasoning. The applicant received the District Court’s decision on 19 July 2006. 10. On 16 August 2006 the applicant filed a request for the reopening of these proceedings.", "11. Following two remittals, on 29 July 2009 the Municipal Court accepted the applicant’s motion and reopened the case. The applicant personally and a number of witnesses were reheard and numerous documents/files were re-examined, but ultimately, on 25 March 2011, both the original conviction and the sentence imposed were reaffirmed in their entirety. The Municipal Court’s reasoning likewise remained the same. It clarified, however, that, whilst the police had indeed filed a criminal complaint against Mr NB on 15 May 2002, by 5 July 2002 the Novi Sad Municipal Public Prosecutor’s Office had informed the applicant of its formal rejection based on the applicable statute of limitation.", "The applicant had thereafter attempted to take over the prosecution of the case in the capacity of a subsidiary prosecutor, but this had ultimately been rejected by the courts by 30 September 2004. 12. On 29 November 2011 the Novi Sad Appeals Court upheld the Municipal Court’s judgment of 25 March 2011. The applicant was served with the Appeals Court’s decision on 21 December 2011. 13.", "On 19 January 2012 the applicant filed a further appeal with the Constitutional Court, complaining, inter alia, about the outcome, fairness and length of the criminal proceedings, as well as the alleged breach of her freedom of expression. This appeal is still pending. B. The civil suit and other related proceedings 14. On 19 December 2006 Mr NB filed a separate civil claim for damages with the Novi Sad Municipal Court, alleging that he had suffered mental anguish due to the publication of the impugned article.", "15. On 31 January 2007 the Municipal Court ruled partly in favour of Mr NB and ordered the applicant to pay RSD 300,000 in compensation, together with default interest, plus costs in the amount of RSD 94,120, i.e. approximately EUR 4,900 Euros in all. 16. In its reasoning the Municipal Court found that: (a) the applicant had already been convicted of defamation within the criminal proceedings (see paragraph 40 below); (b) having examined Mr NB’s professional conduct, her allegations had clearly lacked any factual basis; and (c) this had offended the honour, reputation and dignity of Mr NB and had caused him profound mental anguish (see paragraph 38 below).", "17. On 16 April 2009 the District Court in Novi Sad rejected the applicant’s appeal, and in so doing endorsed the reasons given at first instance. The applicant received the District Court’s decision on 30 April 2009. 18. The applicant could not file an appeal on points of law, revizija, with the Supreme Court in view of the amount of damages awarded.", "19. On 29 May 2009 the applicant thus filed an appeal with the Constitutional Court. This appeal was, effectively, supplemented by memorials of 21 November 2009, 27 June 2011 and 25 November 2011. The applicant complained about the breach of her right to freedom of expression, as well as the procedural fairness. Concerning the former she specifically referred to the disproportionate nature of the damages awarded, and cited the relevant Strasbourg case-law (such as, for example, Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, Series A no.", "316‑B; and Filipović v. Serbia, no. 27935/05, 20 November 2007). The applicant, lastly, complained about the consequent danger to her life and her health, as described at paragraphs 30 and 31 below. 20. On 6 August 2009 the applicant requested that the Constitutional Court order the suspension of the civil enforcement proceedings brought against her (see paragraphs 25-29 below).", "21. On 9 December 2009 the Municipal Court rejected the applicant’s motion for the reopening of the civil proceedings, and on 7 May 2010 the Novi Sad High Court upheld this decision on appeal. 22. On 27 April 2011 the applicant again requested that the Constitutional Court order the suspension of the said enforcement proceedings. 23.", "On 15 December 2011 the Constitutional Court rejected the constitutional appeal on its merits, stating, inter alia, that the impugned decisions had been adopted in accordance with the law, that they had been well-reasoned, and that it was not its function to assess whether the amount of compensation which had been awarded was disproportionate. The Constitutional Court made no mention of the applicant’s complaint concerning her medical situation. 24. The applicant was apparently informed of this decision in the Constitutional Court’s letter of 21 December 2011, and received it by 23 April 2012 at the latest. C. The enforcement proceedings 25.", "On 13 July 2009 Mr NB filed a motion with the Novi Sad Municipal Court, seeking enforcement of its judgment dated 31 January 2007. 26. On 14 July 2009 the Municipal Court issued an enforcement order whereby two thirds of the applicant’s pension were to be transferred to the creditor’s bank account each month, until the sums awarded to the latter have been paid in full (see paragraphs 41-43 below). 27. The said deductions to the applicant’s monthly income began as of 8 August 2009.", "28. In May 2012 the applicant’s monthly pension was RSD 19,707, approximately EUR 170. After deductions, the applicant was left with approximately EUR 60 on which to live. 29. By 30 June 2013 the applicant had paid a total of RSD 496,471.10, i.e.", "approximately EUR 4,350. However, given the accrued and future interest, she would have to continue with the payments for approximately another two years (see paragraphs 44-50 below). D. The applicant’s medical condition 30. The applicant suffered from a number of diseases including cataracts, progressive ocular hypertension, which had allegedly caused a total loss of vision in her left eye, angina pectoris, and clinical depression. She had also had a pacemaker installed several years ago, had suffered a stroke and was in need of hip surgery.", "31. The applicant maintained that she needed a minimum of RSD 5,000 monthly for her medication, i.e. approximately EUR 44, but that she could no longer afford to buy it. E. Other relevant facts 32. On 21 September 2006, concerning the same article published on 12 December 2002, the Novi Sad Municipal Court ruled in favour of Mr NB and ordered Ms SN, Dnevnik, and the Autonomous Province of Vojvodina (as the said newspaper’s founder) jointly to pay RSD 300,000 in compensation for the non-pecuniary damage suffered, together with default interest, plus costs in the amount of RSD 55,600, i.e.", "approximately EUR 4,120 in all. On 13 December 2006 this judgment was upheld by the Novi Sad District Court on appeal. 33. The applicant maintained that on 13 April 2013 her gas supply had been disconnected in view of her continuing inability to pay her utilities. II.", "RELEVANT DOMESTIC LAW, COMMENTARY AND PRACTICE A. The Criminal Code of the Republic of Serbia 1977 (Krivični zakon Republike Srbije; published in the Official Gazette of the Socialist Republic of Serbia – OG SRS – nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89 and 42/89, as well as in the Official Gazette of the Republic of Serbia – OG RS – nos. 21/90, 16/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02 and 80/02) 34. The relevant provisions of this Code read as follows: Article 92 “Whoever, in relation to another, asserts or disseminates a falsehood which can damage his [or her] honour or reputation shall be fined or punished by imprisonment not exceeding six months.", "If an act described in [the above] paragraph has been committed through the press, via radio or television ... [or otherwise through the mass media] ... or at a public meeting, the perpetrator shall be punished by imprisonment not exceeding one year. ... If the defendant proves his [or her] claims to be true or if he [or she] proves that there were reasonable grounds to believe in the veracity of the claims which he [or she] had made or disseminated, he [or she] shall not be punished for defamation, but may be punished for the offence of insult ... or the offence of reproaching someone for the commission of a criminal offence... Whoever, in relation to another, falsely claims or disseminates claims to the effect that he [or she] has committed a crime prosecuted ex officio, shall be punished for defamation even if there were reasonable grounds to believe in their veracity, unless such claims have been made or disseminated pursuant to Article 96 § 2 of this Code. The veracity of the claim that someone has committed a crime prosecuted ex officio may be proved only by means of a final court judgment and through other means of proof only if criminal prosecution or a trial are not possible or are legally precluded.” Article 96 §§ 1 and 2 “... [No one] ... shall ... be punished for insulting another person if he [or she] so does in a scientific, literary or artistic work, a serious critique, in the performance of his [or her] official duties, his [or her] journalistic profession, as part of a political or other social activity or in defence of a right or of a justified interest, if from the manner of his [or her] expression or other circumstances it transpires that there was no [underlying] intent to disparage. In situations referred to above, ... [the defendant] ... shall not be punished for claiming or disseminating claims that another person has committed a criminal offence prosecuted ex officio, even though there is no final judgment to that effect ... , if he [or she] proves that there were reasonable grounds to believe in the veracity of ... [those claims] ...” B.", "The Criminal Code of the Federal Republic of Yugoslavia (Krivični zakon Savezne Republike Jugoslavije; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia – OG SFRY – nos. 44/76, 46/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90 and 54/90, as well as in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – nos. 35/92, 16/93, 31/93, 37/93, 24/94 and 61/01) 35. The relevant provisions of this Code read as follows: Article 4 “It is the criminal legislation which was in force at the time of commission of the crime in question that shall be applied to the perpetrator thereof. If the criminal legislation has been amended once or on several occasions thereafter, the legislation which is more favourable for the perpetrator shall be applied.” Article 51 “... [T]he purpose of a suspended sentence ... is that punishment ... for socially less dangerous acts not be imposed ... when ... it can be expected that an admonition with a threat of punishment (suspended sentence) ... will ... [be sufficient to deter the offender] ... from committing any [other] criminal acts.” Article 52 § 1 “In handing down a suspended sentence, the court shall impose punishment on the person who had committed a criminal act and at the same time order that this punishment shall not be enforced if the convicted person does not commit another criminal act for a ... [specified] ... period of time which cannot be less than one or more than five years in all (period of suspension) ...” Article 53 § 4 “In deciding whether to impose a suspended sentence, the court shall take into account the purpose of [this] sentence, the personality of the offender, his [or her] conduct prior to and following the commission of the criminal act, the degree of his [or her] criminal liability, as well as other circumstances under which the act has been committed.” Article 54 §§ 1 and 2 “The court shall revoke the suspended sentence if, during the period of suspension, the convicted person commits one or more criminal acts for which he or she is sentenced to imprisonment for a term of or exceeding two years.", "If, during the period of suspension, the convicted person commits one or more criminal acts and is sentenced to imprisonment for a term of less than two years or to a fine, the court shall, upon consideration of all the circumstances ... including the similarity of the crimes committed ... decide whether to revoke the suspended sentence ...” Article 93 § 2 “A suspended sentence shall be expunged one year following the date of expiry of the period of suspension, if the convicted person does not commit another criminal act during this time.” Article 94 § 3 “When a conviction has been expunged, information about the conviction may ... be given ... [only] ... to the courts, the public prosecution service and the police in connection with an ongoing criminal case against the person ... [concerned] ... ” C. Subsequent criminal legislation 36. In 2005 the Serbian Parliament enacted a new Criminal Code (Krivični zakonik). It was published in OG RS no. 85/05 and entered into force on 1 January 2006, thus repealing the above-mentioned criminal legislation. The new Code provided for the offence of criminal defamation, in Article 171, but envisaged that only a fine, not a prison term, could be imposed on the perpetrators thereof.", "37. The Criminal Code 2005 was amended on four occasions thereafter. Ultimately, the amendments adopted in 2012, which were published in OG RS no. 121/12 and entered into force on 1 January 2013, repealed Article 171 of the Criminal Code 2005. Criminal defamation thereby ceased to be a criminal offence in the Serbian legal system.", "D. The Obligations Act (Zakon o obligacionim odnosima; published in OG SFRY nos. 29/78, 39/85, 45/89 and 57/89, as well as in OG FRY no. 31/93) 38. Under Articles 199 and 200, inter alia, anyone who has suffered mental anguish as a consequence of a breach of his or her honour or reputation may, depending on its duration and intensity, sue for financial compensation before the civil courts and, in addition, request other forms of redress “which may be capable” of affording adequate non-pecuniary satisfaction. 39.", "Article 200 § 2 provides, inter alia, that when deciding on the exact amount of compensation to be awarded, the courts must take into account all of the relevant circumstances. There is also long-standing domestic case-law to the effect that the courts must be vigilant not to give in to any lucrative animus when it comes to compensation claims filed in respect of alleged breaches of one’s reputation (see, for example, the decision of the Supreme Court of Yugoslavia, Rev. 277/66). E. The Civil Procedure Act 2004 (Zakon o parničnom postupku; published in OG RS nos. 125/04 and 111/09) 40.", "Article 13 provides that a civil court is bound by a final decision of a criminal court in respect of whether a crime was committed, as well as concerning the criminal liability of the person convicted. An acquittal, however, does not rule out a civil suit for damages since the conditions for criminal and civil liability are different (see Komentar Zakona o parničnom postupku, Mr Svetislav R. Vuković, Poslovni biro, Belgrade, 2004, p. 18). F. The Enforcement Procedure Act 2004 (Zakon o izvršnom postupku; published in OG RS no. 125/04) 41. Article 156 § 1 provides, inter alia, that, as part of the enforcement procedure, up to two thirds of a debtor’s pension may be withheld.", "G. The Enforcement Procedure Act 2011 (Zakon o izvršenju i obezbeđjenju, published in OG RS nos. 31/11 and 99/11) 42. Article 148 § 1 of this Act, in its relevant part, corresponds to the substance of Article 156 § 1 of the Enforcement Procedure Act 2004. 43. According to Article 363, the Enforcement Procedure Act 2011 entered into force on 18 September 2011, while pursuant to Article 358 § 1 all pending enforcement proceedings shall be completed on the basis of this new Act.", "H. The Statutory Interest Act 2001 (Zakon o visini stope zatezne kamate; published in OG FRY no. 9/01 and OG RS no. 31/11) 44. Article 1 provides that statutory interest shall be paid as of the date of maturity of a recognised monetary claim until the date of its settlement. 45.", "Article 2 states that such interest shall be calculated on the basis of the official consumer price index plus another 0.5% monthly. 46. Article 3 § 1 sets out the exact method of calculating the interest in question. I. The Constitutional Court’s decision IUz-82/09 of 12 July 2012 published in OG RS no.", "73/12 47. Based on this decision and as of 27 July 2012, the Constitutional Court repealed the method of calculating interest as set out in Article 3 § 1 of the Statutory Interest Act 2001. J. The Statutory Interest Act 2012 (Zakon o zateznoj kamati; published in OG RS no. 119/12) 48.", "Article 2 provides that statutory interest shall be paid as of the date of maturity of a recognised monetary claim until the date of its settlement. 49. Article 3 states that such interest shall be calculated annually based on the Serbian National Bank’s reference interest rate and increased by eight percentage points. 50. This act entered into force on 25 December 2012 and thereby repealed the Statutory Interest Act 2001.", "THE LAW I. JOINDER OF THE APPLICATIONS 51. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 52. The applicant complained, under Article 10 of the Convention, about the breach of her freedom of expression suffered due to her criminal conviction, the subsequent civil defamation judgment rendered against her, and, also, the way in which the latter was enforced domestically, causing her, as it did, extreme financial hardship, numerous health problems and even endangering her very life.", "The applicant additionally referred to Articles 3 and 8 of the Convention in this context, as well as to Article 1 of Protocol No. 1. 53. It being the “master of the characterisation” to be given in law to the facts of any case before it (see, for example, Akdeniz v. Turkey, no. 25165/94, § 88, 31 May 2005), the Court considers that this complaint primarily falls be examined under Article 10 of the Convention, which, insofar 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 ... for the protection of the reputation or rights of others ...” A. Admissibility 1. As regards the criminal proceedings 54. The Government maintained, inter alia, that since the proceedings before the Constitutional Court were still pending in this respect (see paragraphs 13 above), the applicant’s complaint regarding the criminal case brought against her had to be rejected on the grounds of non-exhaustion.", "55. The applicant recalled that she had lodged her application (no. 4678/07) with the Court on 29 December 2006, at which time the constitutional appeal had still not been considered effective. 56. The Court recalls that it has consistently held that a constitutional appeal should, in principle, be deemed effective within the meaning of Article 35 § 1 of the Convention in respect of applications introduced against Serbia as of 7 August 2008 (see Vinčić and Others v. Serbia, no.", "44698/06 and others, § 51, 1 December 2009; see also Rakić and Others v. Serbia, no. 47460/07 and others, § 39, 5 October 2010, and Hajnal v. Serbia, no. 36937/06, §§ 122 and 123, 19 June 2012). It is understood, however, that any complaints concerning subsequent facts, including proceedings and/or decisions, shall have their own, “new”, introduction date. The mere fact that the applicant has relied on the same Article of the Convention in his or her application is not sufficient to validly raise all subsequent complaints made under that provision (see, for example, Allan v. United Kingdom (dec.), no.", "48539/99, 28 August 2001; and Zervakis v. Greece (dec.), no. 64321/01, 17 October 2002). 57. In view of the above, the Court notes that the original criminal proceedings brought against the applicant had ceased to be of relevance as of 29 July 2009, which was when the Municipal Court accepted the applicant’s motion for their reopening (see paragraph 11 above). The subsequent criminal proceedings were concluded by 29 November 2011, hence post 7 August 2008, and the case before the Constitutional Court has been pending since 19 January 2012 (see paragraphs 12 and 13 above).", "In these circumstances, the applicant’s remaining complaint relating to the criminal proceedings following their reopening is premature and must, as such, be rejected under Article 35 §§ 1 and 4 of the Convention on the grounds of non-exhaustion. 2. As regards the civil and enforcement proceedings 58. 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 (as regards the civil and the enforcement proceedings) 1. The parties’ submissions 59. The Government admitted that the applicant’s freedom of expression had been restricted.", "This restriction, however, had been in accordance with the applicable domestic law and had pursued the legitimate aim of protecting the reputation of others. The competent civil courts had also properly assessed the facts and adequately applied the relevant domestic legislation. The applicant’s allegation to the effect that her lawyer, Mr NB, had deliberately failed to represent her properly in a pending civil case, had been a statement of fact in support of which no credible evidence had ever been offered. This statement had likewise not been given in any constructive social context, but merely as an expression of the applicant’s personal dissatisfaction. Further, Mr NB, being a practising lawyer, could not have remained passive in the face of such serious allegations undermining his very livelihood.", "Finally, the Government argued that neither the sum which had been awarded to Mr NB by the civil courts, consistent with damages awarded in other similar cases, nor the manner of its subsequent enforcement could be deemed disproportionate. While, admittedly, the applicant’s pension had been low this could not have absolved her from paying for the profound damage caused to Mr NB. In any event, approximately one third of the total principal sum due to be paid by the applicant consisted of the costs incurred by Mr NB in the course of the civil and enforcement proceedings. 60. The applicant reaffirmed her complaint.", "She added that the newspaper article was the journalist’s responsibility and that she had provided Ms SN with the relevant information but had never seen the piece before its publication. In any event, the fact remained that Mr NB had failed to adequately represent the applicant throughout the proceedings in question. The civil judgments rendered against the applicant amounted therefore to, at best, a disproportionate interference with her freedom of expression, particularly bearing in mind the pension-related deductions imposed in the course of the enforcement proceedings and considering her dire financial and medical situation. 2. The Court’s assessment 61.", "The 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 (see, among many other authorities, Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012 (extracts)).", "Moreover, Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed (see, for example, Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204). 62. The Court has repeatedly upheld the right to impart, in good faith, information on matters of public interest, even where this involved damaging statements about private individuals (see, mutatis mutandis, Bladet Tromsø and Stensaas v. Norway [GC], no.", "21980/93, ECHR 1999‑III). However, account must be taken of the distinction between factual statements on the one hand and value judgments on the other, since the existence of facts can be demonstrated whereas the truth of value judgments is not susceptible to proof (see, for example, Lingens v. Austria, judgment of 8 July 1986, § 46, Series A no. 103; and McVicar v. the United Kingdom, no. 46311/99, § 83, ECHR 2002‑III). 63.", "The nature and severity of the sanction imposed, as well as the “relevance” and “sufficiency” of the national courts’ reasoning, are matters of particular importance in assessing the proportionality of the interference under Article 10 § 2 (see Filipović, cited above, § 55). The amount of any compensation awarded must likewise “bear a reasonable relationship of proportionality to the ... [moral] ... injury ... suffered” by the plaintiff in question (see Tolstoy Miloslavsky, cited above, § 49; see also Steel and Morris v. the United Kingdom, no. 68416/01, § 96, ECHR 2005, where the Court held that the damages “awarded ... although relatively moderate by contemporary standards ... [had been] ... very substantial when compared to the modest incomes and resources of the ... applicants ... ” and, as such, in breach of the Convention). 64. Turning to the present case, the Court notes that both the final civil court judgment rendered against the applicant and the subsequent enforcement order undoubtedly constituted an interference with the applicant’s right to freedom of expression.", "Since they were based on the Obligations Act and the applicable enforcement procedure legislation, however, they were also clearly “prescribed by law” within the meaning of Article 10 § 2 of the Convention (see paragraphs 38 and 41-43 above). Lastly, the judgment in question, as well as the enforcement order, were 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”. 65. In this respect the Court notes that the damages plus costs awarded against the applicant amounted to approximately EUR 4,900 and were, as such, equal to a total of more than sixty of the applicant’s monthly pensions calculated on the basis of the available information as of December 2006 (see paragraphs 15 and 5 above, in that order; see also, mutatis mutandis, Koprivica v. Montenegro, no.", "41158/09, §§ 73-75, 22 November 2011). This sum was also very similar to the amount awarded in a separate civil suit concerning the same issue brought against, inter alios, Dnevnik and the Autonomous Province of Vojvodina, as two certainly more financially viable legal entities (see paragraph 32 above). 66. Furthermore, while it is true that the criminal complaint filed by the police against Mr NB had been rejected by the Novi Sad Municipal Public Prosecutor’s Office, and that the applicant had been informed of this rejection on the grounds of prescription by 5 July 2002 (see paragraph 11 above), it cannot be said that her statement in respect of her former counsel had been merely a gratuitous personal attack. After all, the police had clearly seen some merit in these allegations and the applicant’s subsidiary prosecution was not rejected by the courts until 30 September 2004 (ibid.", "), well after the publication of the impugned article on 12 December 2002 (see, mutatis mutandis, Koprivica, cited above, § 67, in fine). Moreover, the Government’s proposition that a discussion of a practising lawyer’s professional conduct is clearly a matter of no public interest is in itself a dubious one, particularly bearing in mind the role of lawyers in the proper administration of justice. 67. Finally but most strikingly, on 14 July 2009 the Novi Sad Municipal Court issued an enforcement order whereby two thirds of the applicant’s pension were to be transferred to Mr NB’s bank account each month, until the sums awarded to him have been paid in full (see paragraph 26 above), all this notwithstanding that Article 156 § 1 of the Enforcement Procedure Act 2004 had provided that up to two thirds of a debtor’s pension might be withheld, thus clearly leaving room for a more nuanced approach (see paragraph 41 above). The said deductions began as of 8 August 2009, and by 30 June 2013 the applicant had paid a total of approximately EUR 4,350 (see paragraphs 27 and 29 above).", "Nevertheless given the accrued and future interest, she will have to continue with the payments for approximately another two years (see paragraph 29 above). In May 2012 the applicant’s monthly pension was some EUR 170. After deductions, she was hence left with approximately EUR 60 on which to live and buy her monthly medication (see paragraph 28 above). Since the latter would cost her approximately EUR 44, she maintained, and the Government never contested this assertion, that she can no longer afford to buy it (see paragraph 31 above). This is in the Court’s opinion a particularly precarious situation for an elderly person suffering from a number of serious diseases (see paragraph 30 above).", "68. In view of the above, the Court finds that the interference in question was not necessary in a democratic society. Accordingly, there has been a violation of Article 10 of the Convention. 69. Having regard to this finding, the Court further considers that it is also not necessary to examine separately the admissibility or the merits of the applicant’s essentially identical complaints made under Articles 3 and 8 of the Convention and Article 1 of Protocol No.", "1. III. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION 70. Under Article 6 § 1 of the Convention, the applicant complained about the fairness and the length of the criminal proceedings prior to and after their reopening, the fairness and the length of the civil defamation proceedings, and the length of the proceedings before the Constitutional Court instituted on 29 May 2009. 71.", "Article 6 § 1, in so far as relevant, 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 within a reasonable time by an independent and impartial tribunal established by law ...” 72. The Government contested the admissibility, including on the grounds of non-exhaustion, and the merits of the above-alleged violations. A. The Court’s assessment as regards the criminal proceedings (i.e. the complaints made in app.", "no. 4678/07 lodged on 29 December 2006) 73. As already noted above, the Court is of the opinion that the original criminal proceedings brought against the applicant had ceased to be of relevance as of 29 July 2009, which was when the Municipal Court had ordered their reopening (see paragraphs 57 and 11 above, in that order). The applicant’s complaints as regards their fairness are therefore manifestly ill-founded and must, as such, be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 74.", "Concerning the length of the criminal proceedings prior to their reopening, the Court notes that the Convention had entered into force in respect of Serbia on 3 March 2004 and that by 19 July 2006 these proceedings had been terminated (see paragraph 9 above; see also Eckle v. Germany, 15 July 1982, § 84, Series A no. 51). The case in question had therefore lasted for a period of approximately two years and four months within the Court’s competence rarione temporis, during which time the charges brought against the applicant had been examined at two instances. It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 75.", "Turning, lastly, to the issue of fairness and length of the criminal proceedings following their reopening, and for the reasons already explained at paragraphs 56 and 57 above, the Court considers that this part of the application is premature (see paragraph 13 above). It must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. B. The Court’s assessment as regards the civil and constitutional proceedings (i.e. the complaints made in app.", "no. 50591/12 lodged on 28 May 2012) 76. The Court notes that applicant has never specifically complained before the Constitutional Court about the length of the civil defamation suit (see paragraph 19 above). This complaint must therefore, bearing particularly in mind the date of its introduction, be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies (see Vinčić, cited above, § 51; see also paragraph 56 above). 77.", "Concerning the length of the proceedings before the Constitutional Court, it is recalled that the reasonableness of these proceedings must be assessed in the light of the specific circumstances of the case, regard being had in particular to its complexity, the parties’ conduct, and the importance of the issues at stake for the applicant (see, for example, Šikić v. Croatia, no. 9143/08, § 35, 15 July 2010). It is further understood that its role of guardian of the Constitution makes it particularly necessary for a Constitutional Court sometimes to take into account considerations other than the mere chronological order in which cases are entered on the list, such as the nature of a case and its importance in political and social terms (see Šikić v. Croatia, no. 9143/08, § 37, 15 July 2010). Turning to the matter at hand, the Court notes that the impugned proceedings had been instituted on 29 May 2009 (see paragraph 19 above).", "Some two and a half years later, on 21 December 2011, the applicant was informed of the adoption of the decision in her case, although the decision itself would seem to have been served by 23 April 2012 (see paragraph 24 above). Finally, the applicant’s constitutional complaint was of some complexity, and the applicant herself had repeatedly supplemented the original constitutional appeal with additional submissions (see paragraphs 19, 20 and 22 above). In such circumstances, the underlying civil defamation proceeding having themselves lasted for approximately two years and four months (see paragraphs 14-17 above) and despite the applicant’s advanced age and the seriousness of the issues at stake for her, the Court cannot but reject this complaint as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention (compare and contrast to, for example, Nikolac v. Croatia, no. 17117/06, § 17, 10 July 2008, Butković v. Croatia, no. 32264/03, § 27, 24 May 2007, and Šikić, cited above, § 37, where the Court found violations of the reasonable time requirement contained in Article 6 § 1 of the Convention in urgent cases involving labour-related and housing issues; the constitutional proceedings therein had lasted for approximately three years and four months, three years and six months, and three years and nine months, respectively, and considered together with the prior civil proceedings had lasted globally for approximately seven years, six and a half years, and five years within the Court’s competence ratione temporis respectively).", "IV. OBLIGATIONS UNDER ARTICLE 34 OF THE CONVENTION 78. The applicant noted that her former lawyer, who had represented her before the Court prior to Mr Dodig, had twice failed to receive the Court’s correspondence addressed to his office. The applicant maintained that the respondent State had every reason to engage in this interference, hoping that the Court would conclude that she had lost interest in her Strasbourg application. 79.", "The Government made no comment in this regard. 80. Article 34 of the Convention provides as follows: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” 81. According to the Court’s case-law, a complaint under Article 34 of the Convention does not give rise to any issue of admissibility under the Convention (see Cooke v. Austria, no.", "25878/94, § 46, 8 February 2000; and Ergi v. Turkey, judgment of 28 July 1998, § 105, Reports 1998-IV). 82. The Court notes that Article 34 of the Convention imposes an obligation on a Contracting State not to hinder the right of the individual effectively to present and pursue a complaint with the Court. While the obligation imposed is of a procedural nature distinguishable from the substantive rights set out in the Convention and Protocols, it flows from the very essence of this procedural right that it is open to individuals to complain of alleged infringements of it in Convention proceedings (see Manoussos v. the Czech Republic and Germany (dec.), no. 46468/99, 9 July 2002).", "83. It is of the utmost importance for the effective operation of the system of individual application instituted by Article 34 that applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from using a Convention remedy. The issue of whether or not contacts between the authorities and an applicant amount to unacceptable practices from the standpoint of Article 34 must be determined in the light of the particular circumstances (ibid.). 84.", "Turning to the present case, the Court finds that there is an insufficient factual basis for it to conclude that the authorities of the respondent State have interfered in any way with the applicant’s exercise of her right of individual petition, it being noted that the Court cannot speculate as to who may have interfered with the correspondence addressed to the applicant’s former counsel and in which context (see, mutatis mutandis, Juhas Đurić v. Serbia, no. 48155/06, § 75, 7 June 2011). 85. In view of the foregoing, the Court finds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 86.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 87. The applicant claimed EUR 77,000 and EUR 7,000 in respect of pecuniary and non-pecuniary damage, respectively. 88. The Government contested these claims.", "89. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 6,000 in respect of the non-pecuniary damage suffered as a consequence of the violation of her rights guaranteed under Article 10 of the Convention. 90. As regards the pecuniary damage, the Court notes that in May 2012 the applicant’s monthly pension was approximately EUR 170. After deductions, the applicant was left with some EUR 60 on which to live.", "Further, by 30 June 2013 the applicant had paid a total of approximately EUR 4,350 through the enforcement proceedings. However, given the accrued and future interest, she will have to continue with the payments for approximately another two years, and pay an additional EUR 2,000. In these circumstances, having already found the said interference to be disproportionate within the meaning of Article 10 of the Convention and without speculating on the exact amount of damages and costs, plus interest, which might have been adequate, the Court considers it reasonable to award the applicant the additional sum of EUR 5,500 for the pecuniary damage suffered. B. Costs and expenses 91.", "The applicants also claimed a total of EUR 2,736 for the costs and expenses incurred domestically, as well as those incurred before the Court. 92. The Government contested this claim. 93. 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 also reasonable as to their quantum.", "In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,200 covering costs under all heads. C. Default interest 94. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Decides, unanimously, to join the applications; 2.", "Declares, unanimously, the complaint under Article 10 of the Convention, as regards the civil and enforcement proceedings, admissible; 3. Declares, unanimously, the complaints under Article 10, regarding the criminal proceedings, and Article 6 § 1 of the Convention inadmissible; 4. Holds, by 6 votes to 1, that there has been a violation of Article 10 of the Convention as regards the civil and enforcement proceedings; 5. Holds, unanimously, that it is not necessary to examine separately the complaints under Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1; 6.", "Holds, unanimously, that the respondent State has not failed to comply with its obligations under Article 34 of the Convention; 7. Holds, by 6 votes to 1, (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 5,500 (five thousand five hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 2,200 (two thousand two hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 8. Dismisses, unanimously, 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. Stanley NaismithGuido RaimondiRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Sajó is annexed to this judgment.", "G.R.A.S.H.N. DISSENTING OPINION OF JUDGE SAJÓ I regret that I am unable to agree with the majority that there has been a violation of Article 10 of the Convention in this case. My reasons are the following. In the present case the domestic courts found the applicant guilty of criminal defamation and sentenced her to six months’ imprisonment, suspended for a period of two years. Her appeal against the conviction is still pending before the Constitutional Court.", "Whatever her allegations about her lawyers were, and whatever one thinks about prison sentences in a defamation case (a solution abandoned by Serbia in the meantime), the punishment indicates that the offence must have been a serious one. The present case concerns the applicant’s loss of her case in civil proceedings on the same factual grounds. Specifically, the case involves an interference with the applicant’s freedom of expression. The limitation of her freedom of expression was found by the domestic courts to serve the legitimate goal of protecting reputation, in accordance with Article 10 § 2 of the Convention. I personally agree with the methodology which the Court applied in this case, namely that the limitation of freedom of expression is a matter to be considered within the four corners of Article 10 only, and an interference with freedom of expression is a matter of proportionality under that Article (see Karakó v. Hungary, no.", "39311/05, 28 April 2009). However, more recently the Grand Chamber, in determining a conflict between the rights to reputation (private life) and free speech, found that “the outcome of the application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher who has published the offending article or under Article 8 of the Convention by the person who was the subject of that article. Indeed, as a matter of principle these rights deserve equal respect.” (Axel Springer AG v. Germany [GC], no. 39954/08, § 87, 7 February 2012) In the present case the conflict of the applicant’s freedom-of-expression rights and the private-life rights of the defamed lawyer triggers a balancing exercise: “Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts.” (ibid., § 88) Irrespective of the methodology chosen, there are certain elements in the circumstances surrounding the statements at issue that influence the balancing exercise or determine the level of scrutiny for the purposes of the analysis of proportionality. These are, among other factors, the position of the allegedly defamed person (public figure), the function of the speaker (social watchdog function), the nature of the discourse (speech on matters of public interest), the veracity of the statements made, and whether they were made in good faith (see, among other authorities, Axel Springer AG, cited above).", "None of these elements is present in this case: here, the applicant willingly and actively brought to the knowledge of the general public a factually untrue, defamatory statement which was likely to have severe consequences for the defamed person (that is, debarment). The Court’s reference to the existence of an investigation following the complaints made by the applicant against the lawyer cannot be regarded as an indication that there was any truth in the allegations: where a matter is reported to the authorities they have to handle the matter seriously. The result of the investigation is what matters: in this case, given the interests of the defamed lawyer in protection of his reputation, the award was neither irrational nor disproportionate. The private interest in expressing personal discontent by disclosing false factual allegations to the general public is not a matter protected by the Convention. It is probable that the application should have been rejected as an abuse of the right of individual application.", "Nor does the Court claim that an interest in free speech is really affected here. The Court brings a novel consideration into the analysis of proportionality, namely exclusive reliance on the alleged severity of the civil sanction imposed. In other words, Article 10 is applied in the total absence of an interest in freedom of expression. It is true that the Court asserts that the statement at issue cannot be held to be merely a gratuitous personal attack, seeing that the applicant’s request to take over as a subsidiary prosecutor was not rejected for some time (see paragraph 66 of the judgment). Suffice it to say, however, that the complaint did not concern the disputed statement and was barred by the statute of limitations, and the delay cannot be held in any way to be an indication of the factual correctness of the allegation.", "Likewise, I have difficulties in following the second argument put forward by the Court, namely that there is a public-interest element present, given the role of lawyers in the proper administration of justice. This uncontroversial truth cannot be seen to be relevant here, as the statement related to a personal grievance. In the present case the activities of the lawyer cannot be attributed to the State; the lawyer acted within the traditional client-lawyer relationship without any impact on the public interest in the administration of justice. I do not think that compensation in the law of tort (as long as the compensation is not unreasonably connected to the injury caused) should be calibrated by taking into consideration the alleged financial difficulties of the party causing injury. Freedom of expression entails responsibilities, and these responsibilities cannot be different on the grounds of existential difficulties affecting the speaker.", "Poverty cannot be an excuse for irresponsible private injury. Moreover, the State cannot be held responsible for compensating for the financial losses of indigent people when they cause injury, especially where the values of freedom of expression are not at stake. Furthermore, the approach applied in this case seems to tip the balance between the rights in question to the detriment of reputation and private life. An individual will receive fair compensation only if there is a deep pocket to compensate that individual. This logic is hard to reconcile with the fundamentals of modern tort law, which is based on the assumption that the damage caused has to be undone, irrespective of the status of the parties involved.", "People are entitled on an equal footing to the protection of their reputation. The national law did allow for compensation in instalments, and therefore an element of “clemency” or flexibility reflecting the applicant’s personal difficulties is present here. The domestic courts applied the discretion granted by law. It is not for an international court of human rights to review the equity of these lawful discretionary powers. The Court relies on Tolstoy Miloslavsky v. the United Kingdom (13 July 1995, Series A no.", "316‑B). In that case the applicant and the Commission were of the view that the amount of damages awarded – 1.5 million pounds sterling (GBP) – was disproportionate to the legitimate aim of protecting Lord Aldington’s reputation or rights (ibid., § 46). The Court found in that case that under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered (ibid., § 49). This principle was not contested in the present judgment; considerations regarding the injury to reputation suffered are different from the alleged financial difficulties an award imposes on a person who defames someone else. It is true that reasoning similar to that in the present case was adopted in Koprivica v. Montenegro (no.", "41158/09, 22 November 2011), cited in the judgment. That case concerned factually incorrect journalistic information on a matter of the utmost public interest, and it was left undecided to what extent the applicant was able to prove his allegations in the domestic court. It would not be appropriate to speculate in this dissent as to the existence of additional reasons for the finding of a violation in that case. Suffice it to say that the excessive sanctions imposed on a journalist had a clear chilling effect on news-gathering, and it was not the mere existential difficulty caused by the award made by the domestic courts that justified the finding of a violation. I would like to mention one more authority which was relied upon in the Court’s reasoning.", "Steel and Morris v. the United Kingdom (no. 68416/01, § 96, ECHR 2005‑II) contains the following passage: “... the Court considers that the size of the award of damages made against the two applicants may also have failed to strike the right balance. Under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered (see Tolstoy Miloslavsky v. the United Kingdom, [cited above,] § 49). The Court notes on the one hand that the sums eventually awarded in the present case (GBP 36,000 in the case of the first applicant and GBP 40,000 in the case of the second applicant), although relatively moderate by contemporary standards in defamation cases in England and Wales, were very substantial when compared to the modest incomes and resources of the two applicants. While accepting, on the other hand, that the statements in the leaflet which were found to be untrue contained serious allegations, the Court observes that not only were the plaintiffs large and powerful corporate entities but that, in accordance with the principles of English law, they were not required to, and did not, establish that they had in fact suffered any financial loss as a result of the publication of the ‘several thousand’ copies of the leaflets found by the trial judge to have been distributed.” I mentioned above that Tolstoy Miloslavsky was concerned with the proportionality of the award to the injury suffered, and that in this regard the consideration of the defendants’ position is a non sequitur.", "The Tolstoy Miloslavsky argument as applied in Steel and Morris may seem to stop short of a non sequitur, but it is not a statement of principle: what matters for the Court is that the corporate plaintiffs did not establish that they had suffered any financial loss. It is of more interest that the leaflets distributed in that case concerned a matter of public interest, and that there was a violation of Article 6 that had an impact on the protection of the freedom of expression. I understand that the applicant in the present case might be in a very difficult situation as a consequence of the debt she has incurred, and that she has a serious medical condition. In substance, her claim amounts to an allegation of deprivation of possessions (namely a pension) resulting in her health being endangered. This might exceptionally fall within the ambit of Article 1 of Protocol No.", "1. However, it seems to me that the deprivation of possessions was legitimate, that it served the public interest (enforcing civil liability for damage caused) and that it was not disproportionate to that goal. Equitable considerations do not seem to play a role in the case-law of this Court, beyond the concept of “individual and excessive burden”, even assuming that this case involved an issue of possessions." ]

[ "FOURTH SECTION CASE OF MAJEWSKI AND OTHERS v. POLAND (Application no. 64204/01) JUDGMENT STRASBOURG 8 November 2005 FINAL 08/02/2006 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 Majewski and Others 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,andMrM.", "O’Boyle, Section Registrar,Having deliberated in private on 11 October 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 64204/01) 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 Polish nationals, Mr Włodzimierz Majewski (“the first applicant”), Mr Włodzimierz Strzelczyk (“the second applicant”) and Mr Kazimierz Gniłka (“the third applicant”), on 15 September 2000 2. The Polish Government (“the Government”) were represented by their Agents, Mr K. Drzewicki and subsequently, Mr J. Wołąsiewicz of the Ministry for Foreign Affairs. 3.", "On 16 June 2003 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 first and the third applicants were born in 1946 and 1959 respectively, they both live in Bełchatów. The second applicant was born in 1952 and lives in Szczerców.", "5. On 17 March 1989 the applicants filed with the Piotrków Trybunalski Regional Court (Sąd Wojewódzki) an action for payment against the Bełchatow Coal Mine in Rogowiec. On 17 November 1989 the Piotrków Trybunalski Regional Court gave judgment. Both parties to the proceedings appealed. 6.", "On 7 March 1991 the Supreme Court (Sąd Najwyższy) quashed the contested judgment and remitted the case. 7. On 7 June 1993 an expert submitted his opinion to the court. The court held hearings on the following dates: 16 September 1993, 28 June 1994 and 28 July 1994. 8.", "On 11 August 1994 the Piotrków Trybunalski Regional Court gave judgment. Both parties to the proceedings appealed. 9. On 24 March 1995 the Łódź Court of Appeal quashed the contested judgment and referred the case to the lower instance for reconsideration. 10.", "On 22 February, 26 September, 5 November, 10 December 1996 and 3 June 1997 the Regional Court held hearings. 11. On 11 June 1997 the Piotrków Trybunalski Regional Court gave judgment. The applicants appealed. 12.", "On 17 December 1997 the Łódź Court of Appeal (Sąd Apelacyjny) amended the contested judgment and ordered the company B to pay a higher amount of compensation to the applicants. On 11 February 1999 the applicants lodged a cassation appeal against this judgment with the Supreme Court. 13. On 2 September 1999 the Supreme Court dismissed the applicants’ cassation appeal as unsubstantiated. On 16 March 2000 the Supreme Court, at the defendant’s lawyer’s request, amended the judgment of 2 September 1999 and ordered the applicants to pay the cassation fees.", "The decision was served on the applicants on 20 March 2000. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 14. The applicants 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...” 15. The Government contested that argument.", "16. The period to be taken into consideration began only on 1 May 1993, when the recognition by Poland of the right of individual petition took effect. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The Court notes that the proceedings were initiated on 17 March 1989 and ended on 16 March 2000. They thus lasted 10 years, 11 months, 30 days of which 6 years, 10 months and 15 days falls within the Court’s jurisdiction ratione temporis.", "A. Admissibility 17. 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 18. The applicants maintained that the case had not been complex. In conclusion they submitted that there had been a violation of Article 6 § 1. 19. The Government argued that the case had been complex.", "The authorities had shown due diligence in the proceedings. According to the Government, the applicants had contributed to the prolongation of the proceedings as they had appealed against the Regional Court’s judgments. They invited the Court to find that there had been no violation of Article 6 § 1 of the Convention. 20. 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). 21. The Court finds no reason to conclude that the applicants’ exercise of their procedural rights was unreasonable or amounted to dilatory conduct. It is not, therefore persuaded by the Government’s arguments that the applicants had substantially contributed to the length of the proceeding 22. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).", "23. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or 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. 24. There has accordingly been a breach of Article 6 § 1.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 25. 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 26. The applicants claimed 15 000 euros (EUR) in respect of non-pecuniary damage.", "27. The Government contested the claim. 28. The Court considers that the applicants must have sustained non-pecuniary damage such as frustration and distress resulting from the protracted length of the proceedings. Ruling on an equitable basis, it awards each of the applicants EUR 3,000 under that head.", "B. Costs and expenses The applicants did not seek to be reimbursed under this head. C. Default interest 29. 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 each of the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros) in respect of non-pecuniary damage, to be converted into Polish zlotys at a 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 unanimously the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 8 November 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Michael O’BoyleNicolas BRATZARegistrarPresident" ]

[ "THIRD SECTION CASE OF VLADIMIR USHAKOV v. RUSSIA (Application no. 15122/17) JUDGMENT STRASBOURG 18 June 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 Vladimir Ushakov v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Vincent A. De Gaetano, President,Georgios A. Serghides,Paulo Pinto de Albuquerque,Helen Keller,Dmitry Dedov,Branko Lubarda,Alena Poláčková, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 28 May 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 15122/17) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vladimir Nikolayevich Ushakov (“the applicant”), on 4 February 2017. 2. The applicant was represented by Ms L.A. Yablokova, a lawyer practising in St Petersburg. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.", "3. The applicant alleged that on account of the refusal by the Russian court to order his daughter’s return to Finland, in application of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, he was a victim of an infringement of his right to respect for his family life within the meaning of Article 8 of the Convention. 4. On 16 June 2017 notice of the application was given to the Government. It was also decided to give priority to the application, in accordance with Rule 41 of the Rules of Court.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Background 5. The applicant was born in 1977 and lives in Vantaa, Finland. 6.", "The applicant has been living and working in Finland since 1999 on the basis of a permanent residence permit. 7. In 2009 the applicant married a Russian national, Ms I.K., in Helsinki. After the marriage the couple settled in Vantaa, Finland, living in a flat owned by the applicant. I.K.", "had a temporary residence permit (expired in summer 2015). 8. On 24 December 2012 I.K. gave birth to a daughter, V. The parents exercised joint custody in respect of the child, in accordance with Finnish law. The applicant also has two children from a previous marriage, both residing in Vantaa.", "V. had a temporary residence permit in Finland (expired in December 2014). On an unspecified date she acquired Russian nationality. 9. In January 2013 I.K. suffered two strokes and was partially paralysed.", "She was admitted to hospital. 10. The applicant took parental leave to take care of V. I.K.’s parents (most often her father) often visited from Russia to help care for V. while I.K. was undergoing medical treatment. 11.", "In April 2013 I.K. was discharged from hospital. She had not, however, fully recovered mobility in one hand and one leg. 12. Relations between the applicant and I.K.", "apparently deteriorated, and in June 2013 I.K. travelled to Russia, accompanied by her father, for further medical treatment and physiotherapy. V. remained with the applicant. 13. Since the applicant had to return to work, in July 2013 he took V. to his parents in Norway, where V. was taken care of by her paternal grandmother and aunt.", "14. Following her return to Finland in August 2013, I.K. instituted proceedings with a view to having the child returned to Finland under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). 15. In October 2013 the applicant brought V. back to Finland, and the proceedings for the return of the child were discontinued.", "B. Divorce, child custody and residence proceedings in Finland. Removal of the child from Finland to Russia 16. Meanwhile, in August 2013 I.K. initiated divorce proceedings, asking the court to grant her sole custody of V. and to determine V.’s place of residence as being with her. 17.", "Between November 2013 and March 2014 five interim decisions were issued by the Vantaa District Court (“the District Court”) determining that, pending resolution of the proceedings, the applicant and I.K. should have joint custody of V. and that the latter should reside with the applicant. 18. On 14 November 2013 the District Court addressed the applicant’s concern that there was a risk of I.K.’s taking V. to Russia without his consent and ordered that V.’s passport be handed in to the police. 19.", "On 23 December 2013 the District Court noted that there was no risk of the child’s being taken outside Finland as her passport had been handed in to the police. 20. On 11 April 2014 the District Court dissolved the marriage between the applicant and I.K. 21. On 23 December 2014 the District Court held that the applicant and I.K.", "should have joint custody of V. and that V. was to reside with the applicant. The court also established a detailed schedule setting out I.K.’s contact with V. up until 2019. In taking that decision the District Court took into account I.K.’s state of health, in particular the fact that she had not completely recovered mobility in one hand and one leg after her stroke and was still undergoing rehabilitation procedures, which made it difficult for her to react quickly to the toddler’s active behaviour and to prevent potentially dangerous situations. The judgment was enforceable pending a decision in appeal proceedings. 22.", "I.K. appealed against the above judgment. 23. On 20 November 2015 the Helsinki Court of Appeal dismissed I.K.’s appeal and upheld the judgment of 23 December 2014. The Court of Appeal confirmed that, since the applicant and I.K.", "had joint custody of their daughter, I.K. had no right to remove V. from Finland without the applicant’s consent. 24. I.K. lodged a further appeal with the Supreme Court of Finland.", "25. On 26 February 2016 the Supreme Court refused I.K. leave to appeal. 26. In the meantime, while the appeal proceedings were pending, on 5 February 2015 I.K.", "took V. to Russia without the applicant’s consent. She informed him by email that she did not intend to come back to Finland. 27. On 20 February 2015 the applicant applied to the Finnish Ministry of Justice to have the child returned to Finland under the Hague Convention. 28.", "The Finnish Ministry of Justice sent an enquiry to the Ministry of Science and Education of the Russian Federation, which confirmed that the child was residing with I.K. in St Petersburg. C. Proceedings in Russia 1. Proceedings for V.’s return to Finland under the Hague Convention 29. On 6 August 2015, after failed attempts to come to an agreement with I.K.", "as regards V.’s return to Finland, the applicant lodged an application with the Dzerzhinskiy District Court of St Petersburg seeking the child’s return to Finland on the basis of the Hague Convention. 30. I.K. objected to V.’s return to Finland. Relying on Article 13 (b) of the Hague Convention, she claimed that V. was already settled in her new environment in Russia, that she did not speak the Finnish language, that V.’s return to Finland would separate them and that it would thus be psychologically traumatic for her.", "She further indicated that V. had been removed to Russia so that she could be provided with the medical assistance she needed and, finally, that the applicant was suffering from a mental disorder. 31. The childcare authority involved in the proceedings considered that the child’s interests would best be met if she continued to reside with her mother, I.K. 32. The Ombudsman for Children in St Petersburg considered that V.’s removal from Finland to Russia had not been unlawful since the applicant and I.K.", "had joint custody of the child and the child’s removal to Russia did not diminish the applicant’s rights on the territory of the Russian Federation; moreover, V. had a number of medical conditions which could expose her to a risk of physical harm in the event of her return to Finland. 33. By a judgment of 2 December 2015, the Dzerzhinskiy District Court granted the applicant’s request and ordered that the child be returned to Finland immediately. The court found, and it was common ground between the parties, that V.’s place of habitual residence was Finland and that her removal from Finland had taken place without the applicant’s consent. It concluded, therefore, that the child’s removal had been in breach of the applicant’s custody rights.", "It also found that there were no grounds for granting an exception to the child’s immediate return under Article 13 (b) of the Hague Convention: the argument concerning the risk of V. suffering psychological harm in the event of her return to Finland and the allegation that the applicant was suffering from a mental disorder were found unsubstantiated; I.K. had provided no evidence to the effect that the medical assistance necessitated by V.’s state of health could not been provided to the latter in Finland; V.’s return to Finland would not entail her separation from I.K. since the Finnish Court had determined that the parties should have joint custody of the child and had set out a detailed schedule of I.K.’s contact with V. 34. However, on 3 February 2016 the St Petersburg City Court (“the City Court”) quashed the above judgment on appeal and rejected the applicant’s request for V.’s return to Finland. The City Court held that since the judgment of the Vantaa District Court of 23 December 2014 ‒ which had determined V.’s residence as being with the applicant in Finland ‒ had not yet entered into force, I.K.’s actions in bringing V. to Russia had not been unlawful.", "The circumstances of the removal of the child, a national of the Russian Federation, to Russia had not violated the applicant’s parental rights. The City Court noted that at the time of the child’s removal, as well as the time of the examination of the appeal, she had not had a valid Finnish residence permit. The City Court also took into account the following facts: that since February 2015 V. had been permanently resident in St Petersburg ‒ at the address where I.K. was registered ‒ where suitable conditions had been created for her life and development; that both parties had registered places of residence in Russia; that at the time of her removal V. had been aged two years and one month, of which she had spent several months (from July to October 2013) in Norway, where she had been taken by the applicant without I.K.’s consent; and finally that V. did not speak Finnish and since February 2015 had been attending various medical facilities and nursery school in Russia. In view of the foregoing, the City Court came to the conclusion that Finland was not the State in which V. was habitually resident.", "Since February 2015 V. had integrated well into the Russian social and family environment and her retention in Russia was therefore not unlawful within the meaning of Article 3 of the Hague Convention. V.’s attendance at a kindergarten in Finland for a short period of time between November 2014 and January 2015 did not constitute sufficient proof of integration into the social environment in Finland such that Finland could be considered as the child’s habitual place of residence. Lastly, the City Court noted that the report of the Ombudsman for Children in St Petersburg stated that both parents had parental authority in respect of V., that the applicant’s rights were not diminished on the territory of the Russian Federation, and that the removal of the child from her mother in Russia to her father in Finland for the purposes of permanent residence in Finland could, on account of her numerous medical conditions, cause her physical harm. The court further noted that medical documents contained in the case file confirmed that the child had a number of medical conditions. It concluded that this circumstance ‒ which under Article 13 (b) of the Hague Convention constituted an exception to immediate return ‒ also led to the conclusion that there were no grounds for granting the applicant’s request.", "35. The applicant lodged an appeal on points of law with the Presidium of the City Court. 36. On 12 May 2016 a judge of the St Petersburg City Court refused to refer the case for consideration by the Presidium of that Court. 37.", "On 4 August 2016 a judge of the Supreme Court of Russia refused to refer the case for consideration by the Civil Chamber of that Court. 2. Child residence and child maintenance proceedings 38. On 7 September 2016 the Primorskiy District Court of St Petersburg ruled that V. should reside with her mother, I.K., in St Petersburg and ordered the applicant to pay child maintenance starting from 8 June 2015. 39.", "Referring to temporary financial difficulties and insisting on V.’s return in Finland, the applicant has not been complying with the above‑mentioned judgment. 40. On 5 October 2016 enforcement proceedings were instituted against the applicant. Restrictive measures were applied against him by the bailiffs service in the form of a prohibition on exiting the Russian territory. That decision currently prevents the applicant from travelling to Russia.", "41. As of 13 February 2018 the applicant’s child maintenance arrears amounted to 494,644 Russian roubles (RUB)[1]. 42. The applicant has not seen his daughter since she left Finland. II.", "RELEVANT INTERNATIONAL LAW AND PRACTICE A. The Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 43. The Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) entered into force between Russia and Finland on 1 January 2013. It provides, in so far as relevant, as follows: Article 1 “The objects of the present Convention are – a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. ...” Article 3 “The removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.", "The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” Article 4 “The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.” Article 11 “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.” Article 12 “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.", "...” Article 13 “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.” Article 14 “In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.” Article 19 “A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.” B. Explanatory Report to the Hague Convention 44. The Explanatory Report to the Hague Convention, prepared by Elisa Pérez-Vera and published by The Hague Conference on Private International Law (HCCH) in 1982 ( “the Explanatory Report”), provides as follows: 1. The notion of ‘the best interests of the child’ “21.", "... the legal standard ‘the best interests of the child’ is at first view of such vagueness that it seems to resemble more closely a sociological paradigm than a concrete juridical standard. 24. ... [the philosophy of the Hague Convention] can be defined as follows: the struggle against the great increase in international child abductions must always be inspired by the desire to protect children and should be based upon an interpretation of their true interests. ... the right not to be removed or retained in the name of more or less arguable rights concerning its person is one of the most objective examples of what constitutes the interests of the child. ... the true victim of the ‘childnapping’ is the child himself, who suffers from the sudden upsetting of his stability, the traumatic loss of contact with the parent who has been in charge of his upbringing, the uncertainty and frustration which come with the necessity to adapt to a strange language, unfamiliar cultural conditions and unknown teachers and relatives.", "25. It is thus legitimate to assert that the two objects of the Convention – the one preventive, the other designed to secure the immediate reintegration of the child into its habitual environment – both correspond to a specific idea of what constitutes the ‘best interests of the child’. However ... it has to be admitted that the removal of the child can sometimes be justified by objective reasons which have to do either with its person, or with the environment with which it is most closely connected. Therefore the Convention recognizes the need for certain exceptions to the general obligations assumed by States to secure the prompt return of children who have been unlawfully removed or retained.” 2. The notion of the child’s ‘habitual residence’ and the ‘wrongfulness of his or her removal or retention’ “64.", "Article 3 [of the Hague Convention] as a whole constitutes one of the key provisions of the Convention, since the setting in motion of the Convention’s machinery for the return of the child depends upon its application. In fact, the duty to return a child arises only if its removal or retention is considered wrongful in terms of the Convention. 66. ... the notion of habitual residence [is] a well-established concept in the Hague Conference, which regards it as a question of pure fact, differing in that respect from domicile. 68.", "The first source referred to in Article 3 is law, where it is stated that custody ‘may arise ... by operation of law’. That leads us to stress one of the characteristics of this Convention, namely its application to the protection of custody rights which were exercised prior to any decision thereon. This is important, since one cannot forget that, in terms of statistics, the number of cases in which a child is removed prior to a decision on its custody are quite frequent. Moreover, the possibility of the dispossessed parent being able to recover the child in such circumstances, except within the Convention’s framework, is practically non-existent, unless he in his turn resorts to force, a course of action which is always harmful to the child. 71.", "... from the Convention’s standpoint, the removal of a child by one of the joint holders without the consent of the other, is equally wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise. The Convention’s true nature is revealed most clearly in these situations: it is not concerned with establishing the person to whom custody of the child will belong at some point in the future, nor with the situations in which it may prove necessary to modify a decision awarding joint custody on the basis of facts which have subsequently changed. It seeks, more simply, to prevent a later decision on the matter being influenced by a change of circumstances brought about through unilateral action by one of the parties.” 3. The exceptions to the principle of the child’s prompt return under Article 13 (b) of the Hague Convention “34. ... [the exceptions] to the rule concerning the return of the child must be applied only as far as they go and no further.", "This implies above all that they are to be interpreted in a restrictive fashion if the Convention is not to become a dead letter ... The practical application of this principle requires that the signatory States be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them – those of the child’s habitual residence – are in principle best placed to decide upon questions of custody and access. As a result, a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child’s residence, would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration. 113. ... the exceptions [in Articles 13 and 20] do not apply automatically, in that they do not invariably result in the child’s retention; nevertheless, the very nature of these exceptions gives judges a discretion – and does not impose upon them a duty – to refuse to return a child in certain circumstances.", "114. With regard to Article 13, the introductory part of the first paragraph highlights the fact that the burden of proving the facts stated in sub-paragraphs (a) and (b) is imposed on the person who opposes the return of the child ... 116. The exceptions contained in [Article 13] (b) deal with situations where international child abduction has indeed occurred, but where the return of the child would be contrary to its interests ... Each of the terms used in this provision, is the result of a fragile compromise reached during the deliberations of the Special Commission and has been kept unaltered. Thus it cannot be inferred, a contrario, from the rejection during the Fourteenth Session of proposals favouring the inclusion of an express provision stating that this exception could not be invoked if the return of the child might harm its economic or educational prospects, that the exceptions are to receive a wide interpretation ...” 4. The use of expeditious procedures by judicial or administrative authorities “104.", "The importance throughout the Convention of the time factor appears again in [Article 11 of the Hague Convention]. Whereas Article 2 of the Convention imposes upon Contracting States the duty to use expeditious procedures, the first paragraph of this Article restates the obligation, this time with regard to the authorities of the State to which the child has been taken and which are to decide upon its return. There is a double aspect to this duty: firstly, the use of the most speedy procedures known to their legal system; secondly, that applications are, so far as possible, to be granted priority treatment. 105. The second paragraph [of Article 11 of the Hague Convention], so as to prompt internal authorities to accord maximum priority to dealing with the problems arising out of the international removal of children, lays down a non-obligatory time‑limit of six weeks, after which the applicant or Central Authority of the requested State may request a statement of reasons for the delay.", "Moreover, after the Central Authority of the requested State receives the reply, it is once more under a duty to inform, a duty owed either to the Central Authority of the requesting State or to the applicant who has applied to it directly. In short, the provision’s importance cannot be measured in terms of the requirements of the obligations imposed by it, but by the very fact that it draws the attention of the competent authorities to the decisive nature of the time factor in such situations and that it determines the maximum period of time within which a decision on this matter should be taken.” C. The Convention on the Rights of the Child 45. The relevant provisions of the United Nations Convention on the Rights of the Child, which was signed in New York on 20 November 1989 and entered into force in respect of Russia on 15 September 1990, read as follows: Preamble “The States Parties to the present Convention, ... Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community, Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, ... Have agreed as follows: ...” Article 3 “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.", "...” Article 7 “1. The child shall be registered immediately after birth and shall have the right from birth ... to know and be cared for by his or her parents. ...” Article 9 “1. States Parties shall ensure that a child shall not be separated from his or her parents against their will. ...” Article 18 “1.", "States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. ...” III. RELEVANT DOMESTIC LAW A.", "Constitution of the Russian Federation 46. The generally recognised principles and norms of international law and the international treaties to which the Russian Federation is a party are an integral part of its legal system. If an international treaty to which the Russian Federation is a party establishes other rules than those provided for by law, the rules of the international treaty must apply (Article 15 § 4). B. Code of Civil Procedure of the Russian Federation 47.", "The procedure for the examination of applications for the return of children unlawfully removed to, or retained in, the Russian Federation, and for securing protection for rights of access in respect of such children in accordance with international treaties to which the Russian Federation is a party, is governed by Chapter 22.2 of the Code. 48. The Code provides that an application for the return of a child is to be lodged with a court by a parent or other individual who believes that his/her custody or access rights have been violated, or by a prosecutor (Article 244.11). 49. The application for return must be examined by the court, with the mandatory participation of a prosecutor and the relevant childcare authority, within forty-two days of its receipt, including time for the preparation of the hearing and the drawing up of the judgment (Article 244.15).", "50. A judgment handed down in a case concerning the return of a child unlawfully removed to, or retained in, Russia must contain the reasons why the child must be returned to the State of his/her habitual residence ‒ in accordance with the international treaty to which the Russian Federation is a party ‒ or the reasons for refusing the request for return in accordance with the international treaty (Article 244.16). 51. An appeal may be lodged against the judgment within ten days. The appeal must be examined within one month of its receipt by the appellate court (Article 244.17).", "C. Family Code of the Russian Federation 52. The Code provides that parents enjoy equal rights and discharge equal duties with respect to their children (Article 61 § 1). 53. The exercise of parental rights must not be detrimental to the children’s interests. Providing for the children’s interests is the principal object of parental care.", "Parents who exercise parental rights to the detriment of the rights and interests of the children are answerable under procedures established by law (Article 65 § 1). 54. The rights and obligations of parents and children are determined by the law of the State where they have a joint place of residence. If parents and children do not have a joint place of residence, their rights and obligations must be determined in accordance with the law of the State where the children have citizenship. At a plaintiff’s request, child maintenance obligations and other relationships between parents and children may be determined in accordance with the law of the State where the children permanently reside (Article 163).", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF THE OUTCOME OF THE PROCEEDINGS FOR THE CHILD’S RETURN UNDER THE HAGUE CONVENTION 55. The applicant complained that the refusal by the City Court of his application for the return of his daughter to Finland amounted to a violation of his right to respect for his family life under Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2.", "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 56. 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 (a) The Government (i) Initial observations 57. The Government submitted that there had been no interference with the applicant’s right to respect for his family life, since he had not lost personal ties with his daughter. The applicant had never sought contact with V. in Russia by bringing this issue before the childcare authority or the courts. His lack of contact with the child had thus resulted from his own failure to act.", "If, however, the Court were to find that there had been an interference with the applicant’s right to respect for his family life, the Government considered that it had been in accordance with the law, proportionate and necessary in a democratic society. 58. Relying on the arguments set forth in the City Court’s appeal decision of 3 February 2016 (see paragraph 34 above), the Government claimed that Finland had not been the country of V.’s habitual residence, that her removal to and retention in Russia had not been wrongful for the purposes of the Hague Convention, and that in any event V.’s health constituted an exception to her immediate return in application of Article 13 (b) of the Hague Convention. The Government noted in this connection that V. suffered from atopic dermatitis, allergic rhinitis, muscular hypotension, delayed speech, flat feet and iron deficiency. Therefore, she needed to be monitored by medical specialists, as well as to follow a special diet, take medicines, undergo massages, wear orthopedic shoes for preventive purposes, swim, develop fine motor skills and general motor skills, engage in constructive activity, do articular gymnastics and undergo vestibular stimulation.", "The Government relied on a report by a medical psychologist of the St Petersburg’s Centre for Complex Rehabilitation and Development of the Child dated 8 September 2015, which stated that due to her neurotic state, V. was regularly seeing a child psychologist to alleviate emotional tension and anxiety, as well as a speech therapist. The medical psychologist expressed the opinion that V. should remain with the mother, as she was the only person who could provide the required care, and that a change of place of residence would be harmful to V.’s mental development. The fact that the City Court had not examined the availability of the equivalent therapy in Finland did not as such undermine the validity of its decision. The Government therefore concluded that the judgment of the City Court refusing the application for V.’s return to Finland had been based on law. 59.", "The Government further submitted that the interference with the applicant’s right to respect for his family life had been necessary to ensure the best interests of the child. The City Court concluded that the mere fact that the child had resided in Finland had not been sufficient to consider Finland as the place of her habitual residence. The City Court noted that the parties were Russian nationals and had their registered place of residence in the Russian Federation. Apart from the parties’ stable bonds with the Russian Federation, the City Court also had due regard to the fact that V. had spent a considerable part of her life outside of Finland, had not integrated into the linguistic and social environment of that country, and did not understand the Finnish language but spoke Russian, which was her mother tongue. She had attended a nursery school in Finland and been exposed to a Finnish-speaking environment for a very limited period of time, and had lived in Norway for several months.", "The domestic court had objectively and comprehensively examined all of the above-mentioned pieces of evidence, and had taken due account of the fact that V. had spent a significant part of her life in St Petersburg and had successfully integrated into a new environment, and that her tender age required the constant presence of her mother. It had concluded that to order V.’s return to her father in Finland would be contrary to her interests and could cause her harm. The City Court made an assessment of the documents in the case file, the parties’ explanations and the opinions of the competent domestic authorities, including the childcare authority and the Commissioner for the Rights of the Child in St Petersburg, in line with the provisions of the Hague Convention. 60. The Government concluded that the interpretation by the domestic courts of the Hague Convention had been consistent with the recognised common principles of its application and interpretation, with due regard to the facts of the case and the interests of the child.", "(ii) Additional observations 61. In their additional observations the Government stressed that the City Court had not relied on the fact that the parties and V. were Russian nationals registered as residing in Russia as a decisive circumstance for the purpose of determining the country of V.’s habitual residence. The City Court had taken those factors into account along with various other circumstances. The fact that the applicant had two other children from a previous marriage residing in Finland had not been examined by the Russian courts, as the applicant had never raised it. 62.", "The Government argued that it had remained open to the applicant to seek contact with V. in Russia with the assistance of the childcare authorities, the Commissioner for Children’s Rights in St Petersburg and the court. The exercise by the applicant of his right to have contact with his daughter would not have meant that he had consented to the child’s removal from Finland or acknowledged the jurisdiction of the Russian courts. The Government explained the functioning of the mediation and reconciliation procedures at the Office of the Children’s Ombudsman in St Petersburg, which, according to statistical data, had been quite successful in resolving about 60 per cent of childcare disputes. They further mentioned the creation in 2013 of the Federal Institute of Mediation under the Ministry of Education and Science of the Russian Federation (Central Authority in Russia), which could also have provided the applicant with mediation services, had he chosen to have recourse to them. 63.", "The Government further stated that since the City Court had refused to consider Finland as the place of V.’s habitual residence, the civil aspects of international child abduction contained in the Hague Convention had not been applicable to the present case. Therefore neither Article 3 (a) of the Hague Convention providing that custody rights were determined by the law of the State where the child habitually resided, nor the Finnish Act on Child Custody and Right of Access applied to the legal relationship between the parties. 64. The Government noted that the applicant had not been discharging his duty to support V. financially for a long time. 65.", "Lastly, the Government provided four examples of cases where the Russian courts had granted return applications lodged by “left-behind” fathers in the absence of any circumstances – in contrast to the present case – indicating that the children should not be returned. They submitted copies of the relevant decisions. (b) The applicant 66. The applicant disagreed with the Government’s assertion that there had been no interference with his right to respect for his family life in the present case. He emphasised that he had been granted custody rights in respect of his daughter, rather than just contact rights, which is why following her wrongful removal from Finland to Russia he had chosen to have recourse to lodging a return application under the Hague Convention and not to pursue contact proceedings.", "While the proceedings in Russia were pending he had attempted, through his legal representative, to arrange meetings with V., in vain. He had not sought assistance from the Russian childcare authorities and the Children’s Ombudsman in securing his contact with V., as he had had little hope that such an application could yield any result. He had also feared that a court claim for contact in Russia would have been regarded as his acquiescence to V.’s wrongful removal and recognition of the jurisdiction of the Russian courts. 67. The applicant argued that the quashing by the City Court of the judgment of 2 December 2015 ordering V.’s immediate return to Finland had amounted to unlawful and disproportionate interference with his rights under Article 8 of the Convention, as it had not been necessary in a democratic society.", "He challenged the City Court’s interpretation of the provisions of the Hague Convention regarding its basic concepts, such as “habitual residence”, “wrongfulness of the removal”, and “exceptions to immediate return”. In interpreting those concepts, the court had applied approaches characteristic of the national law, without regard to their autonomous meaning in the light of the Hague Convention. He criticised the court’s finding that Finland had not been the place of his daughter’s habitual residence despite the fact that she had been born in Finland and had lived there for over two years prior to her removal to Russia, where she had never been before. The applicant noted in this connection that I.K. had not disputed the fact that Finland had been the country of V.’s habitual residence (see paragraphs 14 and 33 above).", "68. The applicant also challenged the conclusion of the City Court to the effect that, since the judgment of the Vantaa District Court of 23 December 2014 determining V.’s residence as being with the applicant in Finland had not yet entered into force, I.K.’s actions in taking V. to Russia had not been unlawful. Even if the judgment of 23 December 2014 had not yet entered into force at the time when V. had been removed to Russia, he and I.K. had joint custody of V. under Finnish family law, namely section 6(1) of the Child Custody and Rights of Access Act (no. 361/1983).", "Under the Act, custody of a child born in Finland to parents who were married at the time of the child’s birth was shared between the child’s parents. 69. The applicant deplored the fact that the City Court had taken into account circumstances which had occurred after V.’s removal to Russia, rather than V.’s past experience in Finland prior to her removal. He also deplored that it had put emphasis on the parties’ Russian nationality and registered place of residence in the Russian Federation. As regards the City Court’s reference to V.’s lack of knowledge of the Finnish language, the applicant pointed out that the child had only just turned two years old when she had been removed to Russia, that both he and the child’s mother spoke Russian with V., and that V. had only recently started attending a kindergarten in Finland and could therefore not yet have mastered the Finnish language.", "70. The applicant argued that there were no grounds to believe that V.’s return would expose her to any psychological or physical harm or otherwise place her in an intolerable situation within the meaning of Article 13 (b) of the Hague Convention. As regards the City Court’s reference to V.’s “numerous medical conditions”, the applicant submitted that the medical conditions in question were trivial as they were often present in children living in Nordic countries with cold weather, limited exposure to the sun and high humidity. There had been nothing to suggest that the monitoring and treatment required by V. had been unavailable to her in Finland, a country with a high standard of living and social and medical care. Nor had there been anything to suggest the existence of other grounds justifying the refusal of the application for return under Articles 12, 13 and 20 of the Hague Convention.", "71. The applicant further submitted that there was a lack of consistency in the City Court’s application of the Hague Convention provisions. Having found that Finland had not been the country of V.’s habitual residence, the City Court should have come to the conclusion that the Hague Convention was not applicable to the case. Nevertheless, it had proceeded with the examination of circumstances constituting an exception to V.’s return under Article 13 (b) of the Hague Convention. 72.", "The applicant believed that the City Court could not have raised the issue of whether V. had adapted to her life in Russia, since less than one year had elapsed between the child’s removal from Finland and the commencement of the return proceedings. 73. The applicant further submitted that although V.’s residence permit in Finland had indeed expired in December 2014, there would have been no legal obstacles to obtaining a new one from the competent Finnish authorities. He supported his argument by a relevant statement from the Ministry of Justice of Finland. 74.", "The applicant concluded that the City Court had upset the balance of the competing interests of the child and his parents, as it had not ruled in favour of securing the best interests of V., but in favour of the child’s mother. 75. The applicant informed the Court that owing to temporary financial difficulties, he had been unable to pay child maintenance to I.K. and was therefore prevented from visiting V. in Russia (see paragraph 40 above). 2.", "The Court’s assessment (a) The general principles 76. In Neulinger and Shuruk v. Switzerland ([GC], no. 41615/07, §§ 131-40, ECHR 2010), and X v. Latvia ([GC], no. 27853/09, §§ 92-108, ECHR 2013) the Court articulated a number of principles which have emerged from its case-law on the issue of the international abduction of children, as follows. 77.", "In the area of international child abduction the obligations imposed by Article 8 on the Contracting States must be interpreted in the light of the requirements of the Hague Convention and those of the Convention on the Rights of the Child of 20 November 1989, as well as the relevant rules and principles of international law applicable in relations between the Contracting Parties. 78. The decisive issue is whether the fair balance that must exist between the competing interests at stake: those of the child, of the two parents, and of public order, has been struck, within the margin of appreciation afforded to States in such matters, taking into account, however, that the best interests of the child must be of primary consideration and that the objectives of prevention and immediate return correspond to a specific conception of “the best interests of the child”. 79. There is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests must be paramount.", "The same philosophy is inherent in the Hague Convention, which associates this interest with restoration of the status quo by means of a decision ordering the child’s immediate return to his or her country of habitual residence in the event of unlawful abduction, while taking account of the fact that non-return may sometimes prove justified for objective reasons that correspond to the child’s interests, thus explaining the existence of exceptions, specifically in the event of a grave risk that the child’s return would expose him or her to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13 (b)). 80. The child’s interest comprises two limbs. On the one hand, it dictates that the child’s ties with its family must be maintained, except in cases where the family has proved particularly unfit. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family.", "On the other hand, it is clearly also in the child’s interest to ensure its development in a sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development. 81. In the context of an application for return made under the Hague Convention, which is accordingly distinct from custody proceedings, the concept of the best interests of the child must be evaluated in the light of the exceptions provided for by the Hague Convention, which concern the passage of time (Article 12), the conditions of application of the Convention (Article 13 (a)) and the existence of a “grave risk” (Article 13 (b)), and compliance with the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms (Article 20). This task falls in the first instance to the national authorities of the requested State, which have, inter alia, the benefit of direct contact with the interested parties. In fulfilling their task under Article 8, the domestic courts enjoy a margin of appreciation which, however, remains subject to European supervision.", "Hence, the Court is competent to review the procedure followed by domestic courts, in particular to ascertain whether the domestic courts, in applying and interpreting the provisions of the Hague Convention, have secured the guarantees of the Convention and especially those of Article 8. 82. A harmonious interpretation of the European Convention and the Hague Convention can be achieved, provided that the following two conditions are observed. Firstly, the factors capable of constituting an exception to the child’s immediate return in application of Articles 12, 13 and 20 of the said Convention, particularly where they are raised by one of the parties to the proceedings, must genuinely be taken into account by the requested court. That court must then make a decision that is sufficiently reasoned on this point, in order to enable the Court to ascertain that those questions have been effectively examined.", "Secondly, those factors must be evaluated in the light of Article 8 of the Convention. 83. Lastly, Article 8 of the Convention imposes on the domestic authorities a particular procedural obligation in this respect: when assessing an application for a child’s return, the courts must not only consider arguable allegations of a “grave risk” for the child in the event of return, but must also make a ruling giving specific reasons in the light of the circumstances of the case. Both a refusal to take account of objections to the return capable of falling within the scope of Articles 12, 13 and 20 of the Hague Convention and insufficient reasoning in the ruling dismissing such objections would be contrary to the requirements of Article 8 of the Convention and also to the aim and purpose of the Hague Convention. Due consideration of such allegations, demonstrated by reasoning of the domestic courts that is not automatic and stereotyped, but sufficiently detailed in the light of the exceptions set out in the Hague Convention, which must be interpreted, is necessary.", "This will also enable the Court, whose task is not to take the place of the national courts, to carry out the European supervision entrusted to it. (b) Application of these principles to the present case 84. The Court notes that a parent and child’s mutual enjoyment of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see, most recently, Edina Tóth v. Hungary, no. 51323/14, § 49, 30 January 2018). Consequently, the relationship between the applicant and his daughter falls within the sphere of family life under Article 8 of the Convention.", "That being so, the Court must determine whether there has been a failure to respect the applicant’s family life. “Respect” for family life implies an obligation for a State to act in a manner calculated to allow these ties to develop normally (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 221, ECHR 2000‑VIII). 85. The Court observes that in February 2015, while the couple in the instant case was in the middle of divorce and custody proceedings in Finland, the child’s mother took the child, aged two years and one month at the material time, to Russia and never returned to Finland.", "The primary interference with the applicant’s right to respect for his family life may not therefore be attributed to an action or omission by the respondent State, but rather to the actions of a private individual. 86. That action nevertheless placed the respondent State under positive obligations to secure for the applicant his right to respect for his family life, which included taking measures under the Hague Convention with a view to ensuring his prompt reunification with his child (see R.S. v. Poland, no. 63777/09, § 58, 21 July 2015, and K.J.", "v. Poland, no. 30813/14, § 53, 1 March 2016). It remains therefore to be ascertained whether, in discharging its obligations under the Hague Convention, Russia has complied with its positive obligations under Article 8 of the Convention. 87. The Court observes that by the final decision of 3 February 2016 the City Court refused the applicant’s request for V.’s return to Finland, which amounted to an interference with his right to respect for his family life.", "This interference had its legal basis in the Hague Convention, which entered into force between Russia and Finland on 1 January 2013, and the City Court acted in what it considered to be pursuit of the legitimate aim of protecting the rights and freedoms of the child. 88. The Court must therefore determine whether the interference in question was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention, interpreted in the light of the relevant international instruments, and whether when striking a balance between the competing interests at stake, appropriate weight was given to the child’s best interests, within the margin of appreciation afforded to the State in such matters. In order to do so, the Court will have regard to the reasoning advanced by the City Court for its decision. 89.", "The Court observes that under Article 3 of the Hague Convention, the removal or retention of a child is to be considered wrongful where “it is in breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention” (see paragraph 43 above). 90. The Explanatory Report states that the notion of habitual residence is a question of pure fact, differing in that respect from domicile. It also emphasises that from the Hague Convention standpoint, the removal of a child by one of the joint custody holders without the consent of the other is equally wrongful; this wrongfulness derives not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law and has interfered with their normal exercise. The Explanatory Report further clarifies that the setting in motion of the Convention’s machinery for the return of the child depends entirely on whether the removal or retention is considered wrongful in terms of the Convention and that in the absence of the wrongfulness of the removal or retention, no duty to return arises (see paragraph 44 above).", "91. The Court observes that in the present case the City Court held that Finland had not been the State of V.’s habitual residence against the background of the following circumstances: the parties and the child were Russian nationals and had their registered residence in Russia; V. did not have a valid Finnish residence permit; since February 2015 she had been permanently residing in St Petersburg where she had been attending medical facilities and nursery school; she had been two years and one month old at the time of her removal, and had already spent three months (July to October 2013) in Norway; and she did not speak Finnish and had not been integrated in the Finnish social environment. The City Court further considered that since the judgment of the Vantaa District Court of 23 December 2014 ‒ which had determined V.’s residence as being with the applicant in Finland ‒ had not entered into force when the removal had taken place in February 2015, I.K.’s actions in bringing V. to Russia and retaining her there had not been wrongful for the purposes of the Hague Convention. The City Court eventually dismissed the applicant’s request for his daughter’s return to Finland on the grounds that her state of health, as it appeared from the documents contained in the case file, constituted an exception to her immediate return in application of Article 13 (b) of the Hague Convention (see paragraph 34 above). 92.", "The Court will ascertain whether the above interpretation and application of the provisions of the Hague Convention by the City Court secured the guarantees of the applicant’s rights under Article 8 of the Convention. The Court notes, first of all, that the City Court’s refusal to acknowledge Finland as the State of V.’s habitual residence does not sit well with the facts of the present case. The Court notes, in particular, that the applicant’s daughter was born in December 2012 in Finland, where she had lived all her life prior to her removal to Russia in February 2015. By temporarily staying with her paternal grandmother in Norway between July and October 2013, she had not ceased to be habitually resident in Finland. Neither could I.K.", "have created a new habitual residence for V. in Russia, where the child had never been before, on the day of her removal from Finland. Only V.’s experience immediately preceding her removal from Finland, rather than the one that followed the removal, should have been taken into account by the City Court in determining the issue of her habitual residence for the purposes of Article 3 of the Hague Convention. 93. The Court further observes that the City Court’s conclusion to the effect that the child’s removal to and retention in Russia had not been wrongful in the absence of a final decision by the Finnish courts determining V.’s residence as being with the applicant in Finland contradicts the obvious meaning of Article 3 of the Hague Convention which transpires from the text, the Explanatory Report and the recognised common practice (see paragraph 89 above, and Monory v. Romania and Hungary, no. 71099/01, § 81, 5 April 2005).", "The Court observes in this connection that even in the absence of a final decision by the Finnish courts determining the issues of custody and residence of the child, under Finnish law the applicant and I.K. had joint custody of the child, which both of them were actually exercising (see paragraphs 8 and 68 above). It further observes that the child’s removal to and retention in Russia by I.K. had taken place unbeknownst to the applicant and without his consent, which breached his rights protected by law and interfered with their normal exercise. Therefore, it appears that the provisions of the applicable law were in the present case interpreted and applied in such a way as to render meaningless the applicant’s lack of consent for V.’s departure to Russia and subsequent stay there for permanent residence (see R.S.", "v. Poland, cited above, § 67). 94. The above factual elements, which are not disputed by the parties (see paragraph 33 above), would normally have been sufficient to reach the conclusion that V.’s removal from Finland, the State where she had been habitually resident immediately prior to such removal, had been wrongful in terms of the Hague Convention. This would then have triggered the duty under the Hague Convention to return V. to Finland. 95.", "The Court observes, however, that regardless of its refusal to acknowledge Finland as the State of V.’s habitual residence and to recognise that V.’s removal was in breach of the Hague Convention, the City Court did not dismiss from the outset the applicability of Article 3 of the Hague Convention (contrary to the Government’s assertion in paragraph 63 above), but proceeded with the examination of whether V.’s return would be contrary to her interests and arrived at the conclusion that the latter’s state of health constituted an exception to such return, in application of Article 13 (b) of the Hague Convention. 96. The Court reiterates that it is not its task to take the place of the competent domestic authorities in determining whether a grave risk existed that the child would be exposed to any harm within the meaning of Article 13 of the Hague Convention if she returned to Finland. However, the Court is in a position to ascertain whether the domestic courts, in applying and interpreting the provisions of that convention, secured the guarantees set forth in Article 8 of the Convention, particularly taking into account the child’s best interests (see paragraph 81 above). 97.", "The Court observes that it was the child’s mother I.K. who opposed the child’s return. It was therefore for her to make and to substantiate any potential allegation of specific risks under Article 13 (b) of the Hague Convention (see paragraph 44 above). While that provision is not restrictive as to the exact nature of the “grave risk” – which could entail not only “physical or psychological harm” but also “an intolerable situation” – it cannot be read, in the light of Article 8 of the Convention, as including all of the inconveniences necessarily linked to the experience of return. Nor can it arise solely from separation from the parent who was responsible for the wrongful removal or retention.", "The exception provided for in Article 13 (b) concerns only situations which go beyond what a child might reasonably be expected to bear (see see X v. Latvia, cited above, § 116; Maumousseau and Washington v. France, no. 39388/05, §§ 69 and 73, 6 December 2007; and K.J. v. Poland, cited above, §§ 64 and 67). 98. In the instant case, I.K.", "objected to V.’s return to Finland, giving the following reasons: that V. was already settled in her new environment in Russia, that she did not speak Finnish, and that her return to Finland would lead to their separation and would thus be psychologically traumatic for her. She further indicated that V. had been removed to Russia so that she could be provided with the medical assistance she needed and, finally, that the applicant was suffering from a mental disorder (see paragraph 30 above). 99. Although the Dzerzhinskiy District Court, in examining the case at first instance, had duly addressed all the arguments raised by I.K. and concluded that there were no circumstances capable of constituting an exception under Article 13 (b) of the Hague Convention for V.’s return to Finland (see paragraph 33 above), the City Court, acting as a court of appeal, limited its assessment to a simple reference to “V.’s numerous medical conditions”, which could cause her physical harm in the event of her return to Finland.", "It thus qualified the child’s state of health as an exception to her return under Article 13 (b) of the Hague Convention. 100. As can be seen from the Government’s submissions, the medical documents referred to by the City Court showed that V. suffered from a number of rather common conditions present in many children, including atopic dermatitis, allergic rhinitis, muscular hypotension, flat feet, iron deficiency and delayed speech, and that the treatment she required involved monitoring by medical specialists, following a special diet, taking medicines, undergoing massages, wearing orthopedic shoes, swimming, developing fine motor skills and general motor skills, engaging in constructive activity, doing articular gymnastics and undergoing vestibular stimulation. The Government also relied on a report by a medical psychologist of the St Petersburg’s Centre for Complex Rehabilitation and Development of the Child, stating that V. had been regularly seeing a child psychologist, who considered that V.’s mother was the only person who could provide V. with the required care, and that any change of place of residence would be harmful to V.’s mental development (see paragraph 58 above). 101.", "The Court notes, however, that the text of the City Court’s decision of 3 February 2016 did not contain any details of V.’s medical conditions. Nor did it mention what kind of treatment they required, the course of V.’s current treatment in Russia or the availability of the equivalent treatment in Finland. No assessment was made of other objections raised by I.K. to V.’s return to Finland, which was important for the assessment of V.’s best interests, in particular whether her return to Finland would entail separation from her mother (whether I.K. had access to Finland, whether she would face any sanctions upon her return there, whether the applicant might deprive her of custody or prevent her from having contact with the child, and so on).", "102. The Court considers in this regard that whereas circumstances that could have justified applying the exception under Article 13 (b) of the Hague Convention to the general rule of the child’s prompt return may have existed but were not mentioned in the domestic decisions, it is not the Court’s task to take the place of the national authorities and to establish them. 103. In the light of the foregoing, the Court considers that the City Court failed to genuinely consider and give a sufficiently reasoned decision on whether V.’s state of health, or any other circumstances advanced by I.K., indeed constituted an exception to her immediate return in application of Article 13 (b) of the Hague Convention and to evaluate it in the light of Article 8 of the Convention. 104.", "Having regard to the circumstances of the case seen as a whole, the Court concludes that the interpretation and application of the provisions of the Hague Convention by the City Court failed to secure the guarantees of Article 8 of the Convention, that the interference with the applicant’s right to respect for his family life had not been “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention, and that the respondent State failed to comply with its positive obligations under Article 8 of the Convention to secure to the applicant the right to respect for his family life. 105. There has therefore been a violation of Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 106.", "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 107. The applicant claimed compensation for non‑pecuniary damage sustained as a result of the alleged violation of the Convention in an amount to be determined by the Court. 108. The Government considered that, since the applicant had failed to quantify his claim for non-pecuniary damage, his claim should be rejected.", "109. The Court considers that the applicant must have suffered, and continues to suffer, distress and emotional hardship as a result of the Russian court’s refusal to order his daughter’s return to Finland, which is not sufficiently compensated for by the finding of a violation of the Convention. In the light of the circumstances of the case, and making an assessment on an equitable basis as required by Article 41, the Court awards the applicant 16,250 euros (EUR) under this head. B. Costs and expenses 110.", "The applicant also claimed 500,000 Russian roubles (RUB) for the costs and expenses incurred before the domestic courts and the Court, of which RUB 350,000 had been incurred in the proceedings before the Russian courts and the remaining sum of RUB 150,000 – in the proceedings before the Court. The applicant supported his claim by copies of legal services agreements with Ms L.A. Yablokova and relevant receipts of payment. 111. The Government submitted that the applicant’s claim was unreasonable and excessive and should be rejected. 112.", "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 accepts the applicant’s claims and awards the sum of EUR 6,800 covering costs under all heads. C. Default interest 113. 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 six votes to one, that there has been a violation of Article 8 of the Convention; 3. 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, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 16,250 (sixteen thousand two hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 6,800 (six thousand eight 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 18 June 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen Phillips Vincent A.", "De GaetanoRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Dedov is annexed to this judgment. V.D.G.J.S.P. DISSENTING OPINION OF JUDGE DEDOV I regret that I cannot agree with the majority in the present case that there has been a violation of Article 8 of the Convention. In my view, the circumstances of the present case are similar to those in the case of X v. Latvia ([GC], no. 27853/09, ECHR 2013) which led, however, to the opposite result in the Court’s analysis.", "In both cases the mother of an “abducted” child of a very young age (three years old in both cases) produced reports supporting the existence of a “grave risk” which could entail not only “physical or psychological harm” but also “an intolerable situation”. In X v. Latvia the applicant (the mother who “abducted” the child) submitted a psychologist’s certificate concluding that there existed a risk of trauma for the child in the event of immediate separation from her mother, bearing in mind the child’s age and her close emotional ties to her mother. In the present case the mother provided the court of first instance with a report by a medical psychologist from the St Petersburg Centre for Complex Rehabilitation and Development of the Child dated 8 September 2015, which stated that due to her neurotic state, V. was regularly seeing a child psychologist to alleviate emotional tension and anxiety, as well as a speech therapist. The medical psychologist expressed the opinion that V. should remain with the mother, as she was the only person who could provide the required care, and that a change of place of residence would be harmful to V.’s mental development. According to paragraph 58 of the judgment, the report was referred to by the Government in their submissions, but the report was in the case file of the national courts from the very beginning (as is apparent from the date of the report).", "However, the District Court disregarded the report, saying that “the argument concerning the risk of V. suffering psychological harm in the event of her return to Finland and the allegation that the applicant was suffering from a mental disorder were found unsubstantiated” (see paragraph 33 of the judgment). In the X v. Latvia judgment the Court reacted by stating that “the refusal to take into account such an allegation, substantiated by the applicant in that it was based on a certificate issued by a professional, the conclusions of which could disclose the possible existence of a grave risk within the meaning of Article 13, first paragraph, (b) of the Hague Convention, was contrary to the requirements of Article 8 of the Convention” (§ 117). The St Petersburg City Court demonstrated the same reaction in the present case by quashing on appeal the decision of the District Court concerning the immediate return of the child. However, the Court criticised the City Court for not providing any details of the child’s medical conditions. Yet the details were in the report.", "Again, paragraphs 100 and 101 of the judgment create the impression that the report was available to the Government alone and not to the national courts and to the parties, which is not true. As is apparent from the case file, the report was submitted to the District Court by the mother. There is no doubt that the adversarial proceedings were impeded and that the applicant did not have the opportunity to exercise his procedural rights. The Appeal Court and the City Court dismissed the father’s request for his daughter’s return to Finland on numerous grounds based on the documents provided by the parties in the case file, including the young age of the child, her close attachment to her mother, her integration into Russian society, and the necessary measures taken by the mother as her custodian relating to her medical rehabilitation. The Appeal Court referred to the numerous documents contained in the case file.", "However, the Court concluded in paragraph 100 of the judgment that the medical documents referred to by the City Court showed that the child suffered from a number of “rather common conditions present in many children, including atopic dermatitis, allergic rhinitis, muscular hypotension, flat feet, iron deficiency and delayed speech, and that the treatment she required involved monitoring by medical specialists, following a special diet, taking medicines, undergoing massages, wearing orthopaedic shoes, swimming, developing fine motor skills and general motor skills, engaging in constructive activity, doing articular gymnastics and undergoing vestibular stimulation”. I am a judge; I am not a doctor in a position to draw conclusions about “rather common medical conditions”. But, as is clear from the case file, the child underwent a complex medical rehabilitation programme under the supervision of medical specialists in Russia to resolve her problems. This was organised by the mother only after the child’s removal to Russia. The mother did not have the opportunity to organise the child’s rehabilitation in Finland because the child’s father would not agree to it.", "It appears from the decisions of 23 December 2012 of the Vantaa District Court in Finland, available in the case file of both the Court and the Russian courts, that the parents had different views about the medical care that should be provided to the child, and that the father preferred to visit the doctor from time to time “when it was necessary”. As a judge, I can conclude that if the child were returned to the father, the rehabilitation programme would be terminated. I am sure that this is not in the best interests of the child. In this connection I cannot understand the majority’s argument in paragraph 101 of the judgment that the national court failed to examine the availability of the equivalent treatment in Finland. No doubt such treatment is available, but the problem is that the father never agreed to make use of that possibility.", "Moreover, it is confirmed by the case file and not disputed by the parties that the father worked a lot and did not have the opportunity to care for the child himself. That is why he sent the child to his parents and to a kindergarten. Further, in the same paragraph the Court stressed that no assessment had been made of other objections raised by the mother, which was important for the assessment of the child’s best interests, and in particular whether her return to Finland would entail separation from her mother. I am sorry to have to point this out, but the City Court decided in favour of the mother; therefore, it did evaluate all the possible consequences, including the mother’s own difficult situation due to her state of health and the lack of possibilities for her to live in Finland independently. By contrast, the father’s mobility is much greater, taking into account the fact that it takes just three hours to get to St Petersburg from Helsinki by train.", "In this respect I would like to point out that, according to the Court’s case-law (see X v. Latvia, cited above, §§ 104-106), the assessment of the child’s best interests is considerably limited by the purposes of the Hague Convention on the Civil Aspects of International Child Abduction. The national courts are required to examine only those factors capable of constituting an exception to the child’s immediate return. The analysis should cover the entire family situation, the separation from one of the parents and the best interests of the child in general. That is why the Court was not impressed in the present case by the findings of the City Court that the child socialised in Russia and did not speak Finnish, and that it would be difficult for her to integrate into society in Finland. Because, seen from this perspective, even if it would not be in the best interests of the child, she should be returned to her father.", "As I already mentioned in my opinion annexed to the judgment in the case of Adžić v. Croatia (no. 22643/14, 12 March 2015), the Hague Convention has systemic deficiencies. It does not take into account the young age of the child and his or her close relationship with the mother after birth, the vulnerability of the mother, who usually does not have any income in a foreign country or any place to live, who is completely dependent on her husband, having only a temporary residence permit, and for whom the only purpose of moving to another country is to enjoy family life with her husband. There are hundreds or even thousands of such clone cases. This case is no exception: the Finnish courts decided that the child should reside with her father and that the mother could visit her two days per week.", "In all such cases the divorced mothers have no chance to have the place of residence determined in their favour. Therefore, it is obvious that, in the event of the child’s return, the mother would be deprived of her own custodial rights. The Hague Convention provides in its Preamble that the interests of children are of paramount importance in matters relating to their custody. This provision is vague and controversial for several reasons. The Hague Convention focuses on the determination of custody rather than on the best interests of the child.", "But the best interests of the child are not limited to the issue of custody. The Russian courts discussed the issue of the child’s habitual residence and established that she was not integrated into Finnish society, having been placed in a Russian-speaking environment from birth up to the time of her removal to St Petersburg. However, this issue does not make any sense in terms of the Hague Convention because the latter’s primary purpose is to protect the right to custody. Finally, the Hague Convention does not regulate situations, such as that in the present case, where the parents were granted joint custody. The Russian courts demonstrated that the quality of care provided by the mother was better, but that is not what the Hague Convention requires.", "All these deficiencies, in my view, should lead to a different perception of the interplay between the Convention for the Protection of Human Rights and Fundamental Freedoms and the Hague Convention. Today the Hague Convention predominates entirely over Article 8 of the Convention because no comprehensive analysis of the best interests of the child is possible for either the national courts or for the European Court of Human Rights. The Court, in my humble view, is therefore placed in a position that runs counter to its role to protect vulnerable persons and to fight against discrimination. The whole reasoning in the judgment gives the impression that the Court is analysing the respondent State’s compliance with the Hague Convention. Instead, greater emphasis should be placed on the Court’s primary role, namely to decide whether the respondent State complied with its positive obligations under Article 8 of the Convention.", "I admire the words of the Australian judge (see paragraph 15 of the X v. Latvia judgment) who stated as follows: “... however, it is not of course for me to say whether the child’s presence in Latvia is the consequence of a wrongful removal or retention. With all due respect, it is for the Latvian judge to rule on that question.” This judge has a better understanding of family life than the whole Hague Convention, which pursues the opposite idea in Article 15: “The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful ...” It is noteworthy that Article 15 of the Hague Convention was not cited (and therefore, not taken into consideration by the Court in dealing with general principles) in the X v. Latvia judgment. By contrast, Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (known as “the Brussels II bis Regulation”) was cited in paragraph 42 of the X v. Latvia judgment and reads, in particular, as follows: “(13) In the interest of the child, this Regulation allows, by way of exception and under certain conditions, that the court having jurisdiction may transfer a case to a court of another Member State if this court is better placed to hear the case.” Behind those ideas expressed by the Australian judge and the EC Council there is a legal doctrine which is designed to give more protection to a vulnerable woman and to take into consideration all the conditions in which the child is placed in the woman’s home country and the entire family situation. In the present case the applicant (father) sought in the national courts nothing more than the immediate return of the child because his custody rights had been violated. And this is, unfortunately, the only question which was to be decided under the Court’s case-law: if there is no grave risk, other difficulties can easily be regarded as tolerable even if they are not in the best interests of the child.", "As a result, the Russian authorities were deprived of their margin of appreciation as safeguarded under the Convention. The Court has recognised that the authorities enjoy a wide margin of appreciation, in particular when deciding on custody. However, stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of access, 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. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed (see Sahin v. Germany [GC], no. 30943/96, § 65, ECHR 2003‑VIII, and Sommerfeld v. Germany [GC], no.", "31871/96, § 63, ECHR 2003‑VIII (extracts). [1]. Approximately EUR 6,750 at the current official exchange rate." ]

[ "FIRST SECTION CASE OF A.K. AND L. v. CROATIA (Application no. 37956/11) JUDGMENT STRASBOURG 8 January 2013 FINAL 08/04/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of A.K.", "and L. v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Elisabeth Steiner,Nina Vajić,Mirjana Lazarova Trajkovska,Julia Laffranque,Linos-Alexandre Sicilianos,Erik Møse, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 4 December 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 37956/11) 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 Ms A.K., a Croatian national (“the first applicant”) on her own behalf and on behalf of her son L. (“the second applicant”), on 27 May 2011. On 24 June 2011 the Section President decided to grant anonymity to the applicants under Rule 47 § 3 of the Rules of Court. 2.", "The first applicant was represented by Ms L. Kušan, a lawyer practising in Ivanić Grad. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. On 6 July 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The first applicant was born in 1987. The second applicant, L., the biological son of the first applicant was born on 10 December 2008. 5.", "By a decision of the K. Welfare Centre (“the Centre”) of 19 December 2008 L. was placed in a foster family in another town, on the ground that the first applicant was unemployed and had no income, was supported by her mother, attended a special needs programme in school and lived with her mother and a mentally ill brother in an old and dilapidated house without heating. 6. The first applicant consented to having L. placed in a foster family. A. Proceedings related to divesting the first applicant of her parental rights 7.", "On an unspecified date the Centre lodged a request with the K. Municipal Court, seeking that the first applicant be divested of her parental rights in respect of L. 8. The first applicant was unrepresented in those proceedings. 9. On 10 May 2010 the K. Municipal Court divested the first applicant of her parental rights in respect of her son L., on the ground that the first applicant had a mild mental disability and was not able to provide proper care to L. The relevant part of the decision reads: “On 28 April and 4 June 2009 a social worker visited the family of A.K. and established that the home was untidy and the respondent looked unkept, was wearing dirty clothes, had greasy hair and smelled unpleasant as a result of a lack of personal hygiene.", "When asked by the social worker when she had last taken a bath, she shrugged and looked at her mother. The respondent was advised to maintain good personal hygiene in the interest of transferring good habits to her child. Since the living premises ... were equally untidy during the second visit she was told that proceedings for divesting her of parental rights would be instituted. At a meeting held on 10 February 2010 the Centre ... concluded that the respondent suffered from a mild mental disability which was not being treated by a psychiatrist; that she lived in poor conditions in untidy premises and did not maintain her personal hygiene. Upon the birth of her son, L., she had said that she was not capable of caring for him, and L. was placed in a foster family.", "She had visited him twice in the first year and showed no interest in the child. Against this background the team of experts concluded that the respondent had abandoned the child because in the year during which the child had been placed in foster care she had not created an appropriate home environment for the child ... The mother of the child opposed the request and asked that the child be given back to her so that she could try to care for him. In order to establish the relevant facts this court ordered a psychiatric examination of the mother. The psychiatrist ... stressed that the respondent is a person with a mild mental disability ...", "Since childhood she has been behind in her mental development and lived in a sheltered environment. At school she was enrolled in a special needs programme and with some effort completed training to be a florist, but has never worked. ... ongoing psychiatric treatment is needed. During the examination the psychiatrist conducted a short interview with the respondent, who correctly stated her date of birth, confirmed that she had gone to school, that she had never been employed, and that she did some chores at home without specifying what. When asked whether she could cook, she answered that she could only prepare milk.", "When asked about the care of the child she said that she knew that a child had to be changed and fed, but could not explain how. She does not take any medicine and is not seeing a psychiatrist. The expert ... stresses that A.K. is intellectually under developed, that is to say, she has a mild mental disability, and has an aggravated form of scoliosis. On the basis of her mental and physical condition the respondent is not capable of caring for her son ... ...", "This court accepts the opinion of the expert ... and considers that the mother ... is not able to care for L. Owing to her health – advanced scoliosis – she is not able to pick the child up, hold him in her arms, run after him, or prevent him from hurting himself, because the scoliosis prevents her from moving quickly. In addition, at the hearings held before this court, [the court] established that the mother spoke with difficulty and had a limited vocabulary, which indicated a risk that, if entrusted to his mother’s care, the child would not learn to speak or would learn to do so with a delay. It is questionable whether he would be able to start his schooling on time, because he would surely be behind in his development in comparison with other children of the same age; this court cannot allow that to happen, because the child has the right to a life of good quality in orderly surroundings with all the necessary care, and, above all, in sanitary conditions, none of which he would have with his mother. In her reply the respondent stated that she wished to try to care for her son L., but this court, in order to protect the well being of the child, cannot allow such an experiment. ...” This decision was served on the first applicant on 17 May 2010.", "10. After a chance meeting with her former teacher with whom she discussed her family issues, the first applicant applied for legal aid in order to lodge an appeal. However, the decision granting her the right to a legal aid lawyer was adopted only after the time-limit for lodging the appeal had already expired. B. Proceedings related to restoring the first applicant’s parental rights 11.", "On 28 October 2010 the first applicant’s legal aid lawyer lodged a request with the K. Municipal Court, asking it to restore her parental rights in respect of L. The first applicant alleged that her living conditions had significantly changed after the decision divesting her of her parental rights had been adopted. Thus, her mentally ill brother no longer lived in the same household but had been placed in an institution; the house had been partly renovated and heating had been installed. 12. She also argued that a mild mental disability should not be a reason for depriving her of her parental rights and that the allegations that she did not know how to prepare meals or care for a child had not been true. Furthermore, no expert opinion had established that she had a speech problem and had limited vocabulary or a limited ability to reason which would create a risk that the child, if entrusted to her care, would not learn how to speak.", "13. Also, the allegations by the Centre that she had visited her son only twice during his first year of life had been untrue, since she had visited him once a month until, after the decision divesting her of her parental rights had become final, the same Centre had ceased to pay her monthly allowance and she had no longer had the means to pay for the trip to visit L. 14. On 10 December 2010 the first applicant informed the Centre that in a telephone conversation with L.’s guardian, on 7 December 2010 she had learned that L. had been put up for adoption. She asked the Centre to provide her with all the relevant information concerning the adoption of her son L. 15. On 14 December 2010 the Centre replied that L. had been adopted by a final decision of 15 October 2010 and that no consent for adoption was needed from a parent who had been divested of parental rights, and that such a parent could not be a party to adoption proceedings.", "No further information could be given to her since the data concerning the adoption were confidential. 16. On 28 January 2011 the K. Municipal Court dismissed the first applicant’s request to restore her parental rights on the ground that L. had meanwhile been adopted. II. RELEVANT DOMESTIC AND COMPARATIVE LAW A.", "Domestic law 17. The Family Act (Obiteljski zakon, Official Gazette no. 116/2003 of 22 July 2003), in so far as relevant, reads as follows: Section 114 “(1) A court shall, in non-contentious proceedings, divest a person of his or her parental rights if he or she abuses or seriously infringes parental responsibility, obligations and rights. (2) A parent shall be considered to have abused or seriously infringed parental responsibility, obligations and rights if he or she: 1. has inflicted bodily or psychological harm on a child, including exposing that child to violence between adult members of the child’s family; 2. has sexually abused a child; 3. has exploited a child by forcing it to carry out excessive labour or labour that is not compatible with the child’s age; 4. has allowed a child to consume alcoholic drinks, drugs or other narcotics; 5. has incited a child to socially unacceptable behaviour; 6. has abandoned a child; 7. has not provided for a child with whom he or she lives for a period exceeding three months; 8. has not created, without good reason, adequate conditions for living with a child with whom he or she does not live; 9. has not provided for the basic needs of a child with whom he or she lives or has not complied with the measures imposed by the competent body aimed at the protection of the child’s wellbeing; 10. has abused the rights of a child in another manner. (3) The competent welfare centre shall institute proceedings for divesting a parent of parental rights as soon as it learns about the circumstances under paragraph 2 of this section.", "Such proceedings may also be instituted by the other parent, a child or a court of its own motion. (4) The parental rights shall be restored by a court decision when the reasons for divesting a parent of such rights cease to exist. (5) Proceedings under paragraph 4 of this section may be instituted by the parent who has been divested of his or her parental rights, or by a social welfare centre. (6) Where the proceedings for divesting one or both parents of parental rights have been instituted the competent welfare centre shall appoint a special guardian to the child concerned. ...” Section 119 “(1) Once adoption has been established parental custody [of the adopted child] shall cease.", "...” Section 125 “(1) Adoption may be established if it is in the interest of the child. ...” Section 129 “(1) Adoption shall require the consent of both parents, except where otherwise provided. ...” Section 130 “Adoption shall not require the consent of a parent who is ... 1. divested of parental rights ...” Section 135 “(1) Adoption proceedings shall be carried out by the competent welfare centre of its own motion ...” Section 138 ... “(3) A parent whose consent for adoption is not required shall not be a party to the adoption proceedings.” Section 139 “If necessary, the competent welfare centre shall hear the child’s other relatives about the circumstances relevant to the adoption decision.” Section 144 “(1) Once adoption has taken place, all rights and obligations between the child and his blood relatives shall cease. ...” Section 267 “The court [conducting the proceedings] shall be particularly mindful that the rights and interests of children, persons suffering from mental ailments or persons who, for other reasons, are not able to care for themselves and protect their rights and interests, are adequately protected.” B. Participation in adoption proceedings for a parent divested of his/her parental rights in the law of other Council of Europe Member States 18.", "The comparative review as regards the extent to which a parent divested of his/her parental rights is entitled to participate in subsequent adoption proceedings of his/her child concerns forty-one member States of the Council of Europe, namely, Albania, Armenia, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Estonia, Cyprus, Czech Republic, Finland, France, Former Yugoslav Republic of Macedonia, Georgia, Germany, Greece, Hungary, Italy, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom (England and Wales). 19. The forty-one member States under consideration give a varied picture of legislation in respect of the participation of parents divested of their parental rights in subsequent adoption proceedings. In twelve of them, namely, in Austria, Belgium, Cyprus, Finland, Germany, Liechtenstein, Malta, the Netherlands, Portugal, Romania, Switzerland and the United Kingdom the divestment of parental rights has no effect per se on the generally necessary consent of a birth parent to adoption. In most of these jurisdictions, however, the consent of the birth parent can be dispensed with on grounds very similar to the ones allowing for prior divestment proceedings.", "20. In Cyprus, for instance, the court may dispense with the consent of the birth parent if the parent abandoned, neglected or abused the child or systematically failed to fulfil parental duties, especially regarding nutrition and maintenance. 21. In Germany, a substitution of the otherwise always necessary consent of a parent to an adoption is possible in cases similar to those where the deprivation of parental rights can be justified, including persistent and gross/particularly serious violation of parental duties or indifference to the child amounting to such a persistent and gross breach of duty. The consent of a parent may further be dispensed with where he/she is permanently incapable of caring for and bringing up the child as the result of a particularly serious psychological illness or a particularly serious mental or psychological handicap and the child’s development would as a result be seriously endangered.", "The person whose consent is to be substituted for that of the parent is party to the proceedings and is to be heard as such. 22. In Belgium denial of consent can be regarded as abusive by the court, thus justifying it being disregarded. Likewise, in Austria, consent can be replaced by a court order if there is no justification for refusal of consent. 23.", "In the Netherlands, the birth parents’ inherent right to veto an adoption may be disregarded if the child and the parent have hardly ever lived together as a family, if the parent has abused his or her authority over the child, if he or she has seriously neglected the care and upbringing of the child or if the parent has been irrevocably convicted of a criminal offence equally capable of justifying the divestment of parental rights. In case-law it has been established that a veto may also be disregarded if the parent has abused the right of veto. In this respect, the Supreme Court of the Netherlands held that a parent, in exercising the right of veto, is under the obligation to attach particular weight to the interests of the child. 24. In Malta deprivation of parental rights does not automatically lead to the loss of participatory rights in adoption proceedings for the birth parents, but the very fact of the deprivation may be brought up by the court to justify dispensing with their otherwise necessary consent to adoption.", "Furthermore, for reasons of abandonment, neglect or abuse of the child, and also if the court is satisfied that it is in the best interest of the child to be adopted, parental consent can be dispensed with. 25. In Portugal parents divested of their parental rights participate, as a rule, in the adoption proceedings and their consent to it is necessary, unless the child has already been placed in foster care further to a judicial decision or in a family or an institution for the purpose of adoption. After the placement of the child in a family selected for adoption or in an institution for the purpose of adoption no participation rights in the adoption proceedings remain for the birth parents. 26.", "In Romania the birth parents lose all participatory rights in adoption proceedings from the time when the child is placed under guardianship. In this case the guardian’s consent is needed for the adoption. 27. Depending on the structure of the relevant national legislation, either an otherwise necessary parental consent to an adoption can be dispensed with under certain circumstances or, from the outset, the participatory rights of the birth parents are overridden for reasons comparable to the ones justifying disposal of the consent. It is not necessarily obvious that the latter setting automatically awards the parent with fewer rights than the former.", "If a parent whose consent is dispensed with has no additional right to be heard in the adoption proceedings, for example, to explain the refusal of the consent, his/her position can be equivalent to that of a parent whose participation rights have been overridden in the first place. A double guarantee of this kind, namely a right to consent to an adoption backed by a separate right to be heard in the event that the former is dispensed with, is provided for in Germany. Similarly, in the Netherlands, exercise of the right to veto an adoption - afforded also to parents divested of their parental rights - inherently requires the active participation of the parent in the adoption proceedings. 28. In nine member States, namely Bulgaria, Former Yugoslav Republic of Macedonia, Ireland, Italy, Lithuania, Monaco, Norway, Poland and Sweden, a participation right is awarded to the parent divested of his/her parental rights from the outset in adoption proceedings, taking the form of a right to be informed of the adoption proceedings and a right to be heard or to give their opinion without that opinion having any binding effect upon the court.", "29. In Italy the birth parents shall be informed of the initiation of pre-adoption proceedings by the court and they may become party to the proceedings as well as be represented by counsel. 30. In Bulgaria, Ireland, Lithuania and Sweden the birth parents are invited to express their views and opinions in the adoption proceedings even though these have no binding effect on the court. 31.", "In Former Yugoslav Republic of Macedonia and Poland the birth parents participate in the proceedings as third parties or interested parties. 32. In twenty of the member States under consideration here, namely in Albania, Armenia, Bosnia and Herzegovina, Czech Republic, Estonia, France, Georgia, Greece, Hungary, Latvia, Luxembourg, Moldova, Montenegro, Russia, Serbia, Slovakia, Slovenia, Spain, Turkey and Ukraine, a parent divested of parental rights is not afforded a role of any kind in the following adoption proceedings. 33. In most of these member States the right to participate is expressly ruled out.", "In Albania and the Czech Republic, however, no regulations exist suggesting a role in adoption proceedings for parents divested of their parental rights and whose consent is thus not needed for the adoption. There is, however, also no express prohibition in this regard. C. International law 34. The UN Convention on the Rights of the Child of 20 November 1989, which entered into force in respect of Croatia on 8 October 1991 (Official Gazette - International Agreements 15/1990), in so far as relevant, reads as follows: Article 9 “1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.", "Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.” “2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.” Article 21 “States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary ...” 35. On 15 January 2001 the Council of Europe’s Committee of Experts on Family Law adopted a White Paper on principles concerning the establishment and legal consequences of parentage. The relevant part reads 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.” 36.", "The European Convention on the Adoption of Children of 2008 (revised), elaborated within the Council of Europe, entered into force on 1 September 2011, has been ratified by seven States and signed by fifteen, but not Croatia. It mainly confirmed the principles of the 1967 Convention of the same name. Article 5 of the 2008 Convention provides as follows: Article 5 – Consents to an adoption “1 Subject to paragraphs 2 to 5 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 the father; or if there is neither father nor mother to consent, the consent of any person or body who is entitled to consent in their place; b the consent of the child considered by law as having sufficient understanding; a child shall be considered as having sufficient understanding on attaining an age which shall be prescribed by law and shall not be more than 14 years; c the consent of the spouse or registered partner of the adopter. 2 The persons whose consent is required for adoption must have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin. The consent must have been given freely, in the required legal form, and expressed or evidenced in writing.", "3 The competent authority shall not dispense with the consent or overrule the refusal to consent of any person or body mentioned in paragraph 1 save on exceptional grounds determined by law. However, the consent of a child who suffers from a disability preventing the expression of a valid consent may be dispensed with. 4 If the father or mother is not a holder of parental responsibility 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. 5 A mother’s consent to the adoption of her child shall be valid when it is given at such time after the birth of the child, not being less than six weeks, as may be prescribed by law, or, if no such time has been prescribed, at such time as, in the opinion of the competent authority, will have enabled her to recover sufficiently from the effects of giving birth to the child. 6 For the purposes of this Convention “father” and “mother” mean the persons who according to law are the parents of the child.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 37. The first applicant complained that hers and her son’s right to respect for family life had been infringed in that she could not effectively participate in the proceedings concerning her parental rights, and that her son was put up for adoption without her knowledge, consent or participation in the adoption proceedings. She relied on Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2.", "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1. The parties’ arguments 38. The Government argued that the first applicant had no locus standi as regards L. and that the only persons who could have brought any complaints on his behalf were his adoptive parents, since his adoption had become final on 15 October 2010. 39. They further contended that Article 8 was not applicable to the present case, arguing that the relationship between the first applicant and her son had deteriorated to such an extent that it no longer represented a family life and that their blood relation alone was not enough to maintain it.", "They stressed that the child had been placed in a foster family from its birth, that the first applicant had ceased to care for the child, and that the child had been adopted by third persons. 40. The Government also maintained that the first applicant had failed to exhaust all available domestic remedies since she had not lodged an appeal against the decision of the K. Municipal Court of 10 May 2010 depriving her of her parental rights in respect of L. and subsequently a constitutional complaint in the event that her appeal was unsuccessful. 41. They finally submitted that the application had been lodged outside the six-month time-limit as the final domestic decision depriving the first applicant of her parental rights had been adopted on 10 May 2010 and served on her on 17 May 2010.", "42. As regards her right to represent L., the first applicant replied that even though she had been divested of her parental rights, she nevertheless had the right to bring complaints on behalf of her biological child in order to protect his interests. 43. The first applicant contested the Government’s arguments as to the applicability of Article 8 and asserted that removing a child from its parent’s care, divesting the parent of parental rights and putting a child up for adoption were all extreme measures, which in her case had had an enormous effect on her family life. 44.", "As regards the exhaustion of domestic remedies, the first applicant submitted that she had not lodged an appeal against the decision of 10 May 2010 because she was not able to understand the legal issues and the meaning of the court proceedings. Since she had been unrepresented in those proceedings, she had not been able to use any remedies. 45. As regards the compliance with the six-month rule, the first applicant replied that she could not understand the meaning of the proceedings for divesting her of her parental rights and the effect of that decision and that only by chance had she been made aware of the true meaning of the decisions adopted. She had then applied for legal aid and used all the legal paths that had still been at her disposal, such as a request that her parental rights in respect of L. be restored.", "The final decision in those proceedings was adopted on 28 January 2011. 2. The Court’s assessment (a) Standing of the first applicant to act on behalf of L. 46. The Court observes that following the decision of 10 May 2010, depriving the first applicant of her parental rights, the legal parental ties between the first applicant and her son L. were severed. L. was subsequently put up for adoption and the adoption was finalised on 15 October 2010.", "This factor is not, however, decisive of whether the first applicant is able to introduce complaints on behalf of L. The conditions governing the individual applications under the Convention are not necessarily the same as national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 34 and, while those purposes may sometimes be analogous, they need not always be so (see, mutatis mutandis, Norris v. Ireland, 26 October 1988, § 31, Series A no. 142). 47. The Court would draw attention to the principle that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions, both procedural and substantive, be interpreted and applied so as to render its safeguards both practical and effective (see amongst other authorities, Loizidou v. Turkey (preliminary objections), 23 March 1995, §§ 70-72, Series A no.", "310). The position of children under Article 34 calls for careful consideration, as children must generally rely on other persons to present their claims and represent their interests, and may not be of an age or capacity to authorise any steps to be taken on their behalf in any real sense (P.C. and S. v. the United Kingdom (dec.), no. 56547/00, 11 November 2001). The Court considers that a restrictive or technical approach in this area is to be avoided.", "48. In the present case the Court notes that L. was adopted and that his legal representatives under the national law are now his adoptive parents. Therefore, in respect of any issues concerning the facts occurred after the adoption had become final, his only representatives under national law would be his adoptive parents. However, all issues relevant for his right to respect for his private and family life which occurred in the proceedings concerning the severing of his ties with his biological mother before his adoption, should be examined by the Court (see, mutatis mutandis, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, ECHR 2000-VIII, § 138; Moretti and Benedetti v. Italy, no.", "16318/07, § 32, 27 April 2010; Z. v. Slovenia, no. 43155/05, § 114, 30 November 2010; Diamante and Pelliccioni v. San Marino, no. 32250/08, § 146, 27 September 2011; and M.D. and Others v. Malta, no. 64791/10, § 27, 17 July 2012).", "49. In that respect the Court notes that it is in principle in the interest of a child to preserve the ties with its biological parents, save where weighty reasons exist to justify severing those ties. In the present proceedings before the Court L., owing to his tender age, is not in a position to represent his interests. It is only the first applicant who is able to argue, on his behalf as well, that severing the ties between her as his biological mother and L. also affected his right to respect for his family life. 50.", "The Court accordingly concludes that the Government’s objection as regards the locus standi of the first applicant to represent L. in the proceedings before the Court must be dismissed. (b) Applicability of Article 8 of the Convention to the present case 51. In its well established case-law the Court has emphasised that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life. Furthermore, the natural family relationship is not terminated by reason of the fact that the child is taken into public care (see Johansen v. Norway, 7 August 1996, § 52, Reports of Judgments and Decisions 1996‑III, and Olsson v. Sweden (no. 1), 24 March 1988, § 59, Series A no.", "130). 52. As to the present case, the Court notes that the first applicant gave birth to her son, L. in December 2008. Although the child was placed in a foster family soon after his birth, it would appear that the first applicant continued to visit her son. The Court has already held that family ties exist between a child and its biological parent with whom the child has never lived (see Keegan v. Ireland, 26 May 1994, § 45, Series A no.", "290). In the Court’s view there existed a bond between the first applicant and her son from the moment of the child’s birth which bond amounted to a “family life”. Therefore, Article 8 is applicable in the present case. (c) Exhaustion of domestic remedies and compliance with the six-month rule 53. The Court notes that the applicants’ complaints relate to a series of events which ended with the adoption of L. Different proceedings took place before the national authorities.", "The Court considers that the question of exhaustion of domestic remedies, as submitted by the Government, as well as the issue of compliance with the six-month rule are closely linked to the substance of the complaint. Thus, the Court decides to join the objections to the merits of the case. (d) Conclusion 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 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 first applicant argued that she was intellectually incapable of following the court proceedings for divesting her of her parental rights or understanding the true nature of those proceedings, let alone arguing her case and understanding the decision adopted.", "She further contended that final separation between her and her biological son through the adoption proceedings, in which she had not participated and her son’s rights had not been protected, violated both hers and her son’s right to respect for their family lives. 56. The Government submitted that the first applicant, as a person who was not divested of legal capacity, had been able to represent her interests in the proceedings before the national courts. The court conducting the proceedings for divesting the first applicant of her parental rights had carefully examined all the relevant facts, commissioned the relevant medical reports and reached adequate conclusions. The first applicant, who had successfully completed professional education, had been capable of engaging the services of a lawyer had she so wished.", "57. As regards the adoption proceedings, they submitted that the first applicant had no longer had parental rights in respect of L. when those proceedings had been conducted. 2. The Court’s assessment (a) Whether there was an interference 58. The Court has already cited that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (see paragraph 54 above).", "Domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 (see Johansen, cited above, § 52; Haase v. Germany, no. 11057/02, § 82, ECHR 2004‑III (extracts); and X v. Croatia, no. 11223/04, § 45, 17 July 2008). 59. In the present case the measures taken by the State in respect of the first applicant’s relationship with her son L. originated in a decision of 10 May 2010 whereby the first applicant was divested of her parental rights in respect of her son and in his adoption.", "60. There is no doubt that divesting a parent of his or her parental rights and putting a child up for adoption are both very restrictive measures, the latter of which results in the complete disruption of the relationship between a parent and a child. In this case those measures amounted to an interference with the applicants’ right to respect for their family life as guaranteed by paragraph 1 of Article 8 (see X v. Croatia, cited above, § 45). (b) Legality of the interference and legitimate aim 61. The Court accepts that the measures at issue had a basis in national law, namely, the Family Act and that the relevant Croatian legislation is designed to protect children.", "There is nothing to suggest that it was applied in the present case for any other purpose. The Court accepts therefore that the decisions at issue were aimed at protecting the best interests of the child, which is a legitimate aim within the meaning of paragraph 2 of Article 8 (see Keegan, cited above, § 44; Görgülü v. Germany, no. 74969/01, § 37, 26 February 2004; Glesmann v. Germany, no. 25706/03, § 101, 10 January 2008; and X v. Croatia, cited above, § 46). It remains to be determined whether the interference could be regarded as “necessary in a democratic society”.", "(c) Necessity in a democratic society 62. The central issue in this case is whether the procedures followed respected the applicants’ family life or constituted an interference with the exercise of the right to respect for family life which could not be justified as necessary in a democratic society. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. The Court reiterates that it is an interference of a very serious order to split up a family. The Court recognises that, in reaching decisions in so sensitive an area, local authorities are faced with a task that is extremely difficult.", "To require them to follow on each occasion an inflexible procedure would only add to their problems. They must therefore be allowed a measure of discretion in this respect. On the other hand, predominant in any consideration of this aspect of the present case must be the fact that the decisions may well prove to be irreversible as in a case where a child has been taken away from his parents and freed for adoption. This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences (see B. v. the United Kingdom, 8 July 1987, Series A no. 121, § 63; X v. Croatia, cited above, § 47; and R. and H. v. the United Kingdom, no.", "35348/06, § 76, 31 May 2011). 63. It is true that Article 8 contains no explicit procedural requirements, but this is not conclusive of the matter. The relevant considerations to be weighed by a local authority in reaching decisions on children in its care must perforce include the views and interests of the natural parents. The decision-making process must therefore, in the Court’s view, be such as to ensure that their views and interests are made known to, and duly considered by, the local authority and that they are able to exercise in due time any remedies available to them.", "In the Court’s view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as necessary within the meaning of Article 8 (see B. v. the United Kingdom, cited above, § 64; and X v. Croatia, cited above, § 48). 64. In the procedures applicable to the determination of issues relating to family life parents normally have a right to be heard and to be fully informed, although restrictions on these rights could, in certain circumstances, find justification under Article 8 § 2. The Court will examine these aspects in order to determine whether the proceedings have been conducted in a manner which is fair and affords due respect to the interests protected by Article 8 (see B. v. the United Kingdom, cited above, § 65; Tysiąc v. Poland, no.", "5410/03, § 113, ECHR 2007‑...; and X v. Croatia, cited above, § 49). 65. In the present case the Court is not called upon to determine whether the adoption of the first applicant’s child was justified as such, but rather to determine whether the procedures followed were in compliance with the requirements of Article 8 of the Convention. The course of events concerning the first applicant’s child is set out in paragraphs 7 to 16 above. 66.", "The Court notes that immediately after his birth L., the biological son of the first applicant, was placed in foster care by a decision of the K. Welfare Centre. When the child was about a year and five months old the first applicant was divested of her parental rights in respect of L. Following the decision to that effect, L. was put up for adoption by the competent Social Welfare Centre. The first applicant, who by the time she was granted legal assistance could no longer use any remedies in respect of the decision divesting her of parental rights, made an attempt to have her parental rights restored – a possibility envisaged under the relevant domestic law (section 114 §§ 4 and 5 of the Family Act). However, her request was dismissed, since in the meantime L. had been put up for adoption and adopted by third parties, following adoption proceedings to which the first applicant was not a party, nor had she been informed of them. 67.", "The Court considers that the above events, which led to a gradual severance of the ties between a biological mother and her son, are to be seen in their continuity and assessed as a whole. 68. In this context, reference should also be made to the European Convention on the Adoption of Children, which is not binding on Croatia. This text allows that where the mother or father 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 accepts that the consent of the father or mother or both may be dispensed with by law if they do not hold parental responsibility.", "69. The Court notes also that a vast majority of the member States have in their legal systems a possibility of divesting a parent of his or her parental rights. As regards the role of a parent divested of parental rights in any further proceedings concerning adoption of their child, the legal systems of the member States differ. While approximately half of the member states do recognise, at least to a certain extent, the right of a parent divested of his or her parental rights to participate in the adoption proceedings, the other half does not. 70.", "In view of the above, the Court, without having to decide about the compliance of legislation which does not allow a parent divested of parental rights to participate in the adoption proceedings with Article 8 of the Convention, will examine whether sufficient safeguards for the protection of the applicants’ private and family life were provided at any stage of the process of severing the applicants’ mutual ties. 71. As regards the proceedings for divesting parents of their parental rights, the Court notes that the Croatian Family Act contains detailed provision concerning the issue of divesting a parent of his or her parental rights. Thus, it is provided that a parent is to be divested of parental rights if he or she abuses or seriously infringes parental responsibility, obligations and rights. The grounds for such a measure are listed in section 114(2) of the Family Act.", "Procedures to be followed are also envisaged by that Act. The interests of a child are protected by appointment of a special guardian in these proceedings (section 114(6) of the Family Act). The courts conducting any proceedings under the Family Act are obliged to ensure that the interests of persons suffering from mental ailments or of persons who, for other reasons, are not able to protect their rights and interests, are adequately protected (section 267 of the Family Act). The Court is thus satisfied that the Croatian legislation provides for adequate safeguards as regards the interests of parents and their children in the proceedings for divesting the parents of parental rights. 72.", "The first applicant, despite the requirement under section 267 of the Family Act, in the proceedings divesting her of her parental rights was not represented. The national authorities established that she had a mild mental disability and that despite the need for ongoing psychiatric treatment she was not receiving any such treatment. She was enrolled in a special needs programme at school, had a speech impediment and a limited vocabulary. The Court considers that the national authorities should have ensured that, in view of the importance of the proceedings at issue for her right to respect for her family life, the first applicant’s interests were adequately protected in the proceedings at issue. That the first applicant could not properly understand the full legal effect of such proceedings and adequately argue her case and thus protect her rights and interests as the biological mother of L., is evidenced by her above-described personal circumstances.", "73. However, despite the findings of the national authorities that the first applicant suffered from a mild mental disability, and the assessment of the court conducting the proceedings in question that she had a speech impediment and a limited vocabulary, that same court allowed her to remain unrepresented. The Court finds it difficult to accept that a person whose speech impediment and limited vocabulary were taken as grounds to fear that she would not be able to teach her child to speak properly, would be able to argue her case in proceedings before the national courts concerning her parental rights. 74. The first applicant sought legal aid which was granted, but only after the time-limit for lodging the appeal had already expired.", "In these circumstances the lawyer acting on behalf of the applicant choose the only path that was still available for the protection of the first applicant’s parental rights in respect of L. by attempting to restore them under section 114(5) of the Family Act. 75. Owing to the decision of 10 May 2010 divesting the first applicant of her parental rights in respect of L., the first applicant was subsequently excluded from the adoption of L. Therefore, in the proceedings preceding a decision of such paramount consequences, the applicants’ rights and interests should have been adequately protected by the first applicant being provided with proper assistance by a lawyer in the interests of affording her the requisite consideration of her views and protection of her interests as well as those of her biological son L. from the standpoint of preserving ties with his biological mother. 76. While those proceedings were pending, the first applicant learned on 7 December 2010 that L. had already been adopted.", "The proceedings for restoring the first applicant’s parental rights were therefore terminated on 28 January 2011. No further remedy would have served any purpose, since no proceedings concerning the first applicant’s parental rights could be continued owing to the fact that L. had already been adopted. 77. The Court further notes that the first applicant was not informed of the adoption proceedings and was not heard at any time in that connection. Since she was not a party to the adoption proceedings she had no right to use any remedy in the context of those proceedings.", "78. While the Court can accept that her consent, owing to the fact that she had been divested of her parental rights, was not necessary in the adoption proceedings, it nevertheless considers that where, as in Croatia, a national system allows for parental rights to be restored, it is indispensable that a parent be given an opportunity to exercise that right before the child is put up for adoption, should such a possibility have any meaning. In the present case, by not informing the first applicant about the adoption proceedings the national authorities deprived her of the opportunity to seek restoration of her parental rights before the ties between the biological parent and child were finally severed by the child’s adoption. She was thus prevented from enjoying her right guaranteed by the Family Act. 79.", "The foregoing reveals, in the opinion of the Court, insufficient involvement of the first applicant in the decision-making process. 80. Against this background the Court considers that there were no adequate safeguards at any stage of the process of severing the ties between the applicants. It finds that there has been a violation of Article 8 of the Convention and dismisses the Government’s objections as to the exhaustion of domestic remedies and compliance with the six-month rule. II.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 81. The first applicant also complained, under Article 6 of the Convention, that she had not been a party to the adoption proceedings, that she had not given her consent to the adoption and that she had never been informed that such proceedings had been instituted. In this connection, the first applicant complained that her child’s guardian had been an employee of the Centre that had carried out the adoption proceedings, and claimed that she had influenced the initiation of the adoption proceedings instead of protecting the first applicant’s rights. 82. The Government contested these arguments.", "83. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 84. The Court finds, however, that this complaint essentially overlaps with the issues which have been examined under Article 8 of the Convention. Having found a violation of this provision, the Court holds that no separate issue arises under Article 6 § 1 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 85. The first applicant complained that her child had been taken from her owing to her mental disability and physical invalidity and that therefore she had been discriminated against on that basis. She relied on Article 14 of the Convention, the relevant part of which reads: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. Admissibility 86. The Government argued that the first applicant had failed to exhaust domestic remedies because she had not lodged an action for the protection against discrimination under the Prevention of Discrimination Act.", "87. The first applicant replied that she had not been required to use the remedy relied on by the Government because her parental rights could not be restored by means of that remedy. 88. The Court considers that the first applicant could in no manner address the situation complained of outside the proceedings conducted before the national authorities which concerned the relationship between her and her son, namely those divesting her of parental rights, the proceedings where she attempted to have her parental rights restored; and the adoption proceedings concerning L. Therefore, the first applicant was not required to institute any separate proceedings under the Prevention of Discrimination Act. 89.", "The Court considers further that this complaint is closely linked to the one concerning the first applicant’s right to respect for her private and family life under Article 8 of the Convention and must also therefore be declared admissible. B. Merits 90. The first applicant argued that her biological son had been taken from her by the national authorities on the basis of her disability and that that amounted to discrimination contrary to Article 14 of the Convention. 91.", "The Government maintained that L. had been separated from his biological mother, the first applicant, owing to her failure to secure adequate conditions for them to live together and not her disability and that therefore there had been no discrimination on any ground in the case at issue. 92. The Court reiterates that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and its Protocols, since it protects individuals placed in similar situations from any discrimination in the enjoyment of the rights set forth in those other provisions. Where a substantive Article of the Convention or its Protocols has been relied on both on its own and in conjunction with Article 14 and a separate breach has been found of the substantive Article, the Court may not always consider it necessary to examine the case under Article 14 as well, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A no. 45; Chassagnou and Others v. France [GC], nos.", "25088/94, 28331/95 and 28443/95, § 89, ECHR 1999-III; and Timishev v. Russia, nos. 55762/00 and 55974/00, § 53, ECHR 2005-XII). 93. As to the present case, the Court notes that the first applicant claimed that L. had been taken from her solely on the basis of her disability, while the Government claimed that he had been taken owing to lack of adequate conditions for their living together. 94.", "The Court considers that the main issue in the present case is the procedures followed by the national authorities in separating L. from the first applicant, his biological mother. In this regard the Court has already found a violation of Article 8 of the Convention after establishing shortcomings in the proceedings. In view of the Court’s analysis under that Article and the violation found, the Court considers that in the circumstances of the present case it is not necessary to examine any further complaint under Article 14 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 95.", "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 96. The first applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage. 97. The Government deemed the sum claimed excessive.", "98. Having regard to all the circumstances of the present case, the Court accepts that the first applicant has suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the first applicant EUR 12,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to her. B. Costs and expenses 99.", "The first applicant also claimed EUR 4,400 for the costs and expenses incurred before the Court. 100. The Government deemed the sum claimed excessive. 101. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 for the proceedings before it, plus any tax that may be chargeable to the first applicant. C. Default interest 102. 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 objections as to the exhaustion of domestic remedies and compliance with the six-month rule and rejects them; 2.", "Declares the application admissible; 3. Holds that there has been a violation of Article 8 of the Convention; 4. Holds that there is no need to examine the complaint under Article 6 of the Convention; 5. Holds that there is no need to examine the complaint under Article 14 of the Convention; 6. Holds (a) that the respondent State is to pay the first applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement: (i) EUR 12,500 (twelve thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,000 (two thousands euros), plus any tax that may be chargeable to the first 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; 7.", "Dismisses the remainder of the first applicant’s claim for just satisfaction. Done in English, and notified in writing on 8 January 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]

[ "SECOND SECTION CASE OF ENUKIDZE AND GIRGVLIANI v. GEORGIA (Application no. 25091/07) JUDGMENT STRASBOURG 26 April 2011 FINAL 26/07/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Enukidze and Girgvliani v. Georgia, 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,András Sajó, judges,Irakli Adeishvili, ad hoc judge,and Stanley Naismith, Section Registrar, Having deliberated in private on 27 April 2010 and 22 March 2011, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no.", "25091/07) 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 Georgian nationals, Mrs Irina Enukidze and Mr Guram Girgvliani (“the applicants”), on 11 June 2007 and 17 March 2008 respectively. On 24 August 2007, Mrs Irina Enukidze (“the first applicant”) died. On 17 March 2008 Mr Guram Girgvliani (“the second applicant”), her husband, informed the Court of his intention to pursue the proceedings in his own name as well as on behalf of his late wife. For the sake of the readability and other practical considerations, the Court will continue referring to both applicants in the present judgment. 2.", "The applicants were represented by Mr Shalva Shavgulidze and Mr Davit Jandieri, lawyers practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr Levan Meskhoradze. 3. The applicants alleged, in particular, that their son had been killed by Ministry of the Interior officials because he had upset senior officials in that Ministry as well as the Minister’s wife, and that the investigation carried out by the authorities had not been effective. 4.", "On 24 June 2008 the Court decided to communicate the complaints under Articles 2, 6 § 1 and 13 of the Convention to the Government (Rule 54 § 2(b) of the Rules of Court) and to rule on the admissibility and merits of the application at the same time (Article 29 § 3 of the Convention). On the same date it also requested the Government to submit a copy of all the criminal case materials related to the homicide of the applicants’ son, both on paper and on data storage devices, including the fourteen exhibits (see paragraph 159 below), as well as a copy of the full file concerning the criminal proceedings directed against L.B.-dze under Article 371-1 of the Criminal Code (see paragraph 194 below). 5. On 22 December 2008, as well as filing their observations on the admissibility and merits of the present application, the Government submitted eight volumes of documentary evidence related to the homicide case only. Volume no.", "8 confirmed that video recordings, including the fourteen exhibits, also formed part of that criminal case file. However, none of those recordings was enclosed. As to the file concerning the criminal proceedings against L.B.-dze, the Government did not produce a single item of evidence, limiting themselves to the explanation that, after having examined a number of witnesses, the relevant domestic authorities had discontinued those proceedings. 6. The applicants submitted their observations in reply, together with their claims for just satisfaction, on 24 May and 9 July 2009.", "The Government commented on the applicants’ submissions on 14 July 2009. 7. On 6 October 2009 the Court decided to hold a hearing on the admissibility and the merits of the case. 8. On 9 November 2009 the Court drew the Government’s attention to their failure to submit the fourteen exhibits and other video recordings which formed part of the homicide case as well as the case materials concerning the criminal proceedings against L.B.-dze, including the decision on the discontinuation of those proceedings.", "Referring to its case-law on the respondent States’ obligations under Article 38 of the Convention (Medova v. Russia, no. 25385/04, §§ 76-80, ECHR 2009‑... (extracts)), the Court again requested the Government to submit the missing items of evidence, emphasising that they should reach the Court by 1 December 2009 at the latest. 9. By a faxed letter of 1 December 2009, the Government informed the Court, without attaching a copy of the relevant postal receipt in support, that the requested items of evidence had been sent by ordinary mail. 10.", "On 14 December 2009, reiterating its request for the above‑mentioned items of evidence, the Court also invited the Government, in view of the forthcoming hearing, to submit additional documents – the classified internal memo addressed by D.A.-aia to the Minister of the Interior (see paragraph 49 below) and the documents concerning the preparation and implementation of the presidential pardon of 24 November 2008 and the four convicts’ release on licence on 5 September 2009 (see paragraphs 204-205 below). 11. On 15 December 2009 the items of evidence posted by the Government on 1 December 2009 (see paragraph 9 above) finally reached the Court. They consisted of the fourteen exhibits in the homicide case and of certain materials concerning the proceedings against L.B.-dze under Article 371‑1 of the Criminal Code. The additional documents requested by the Court on 14 December 2009 (see the preceding paragraph) were submitted by the Government on 12 January 2010.", "12. On 26 April 2010 the Government submitted further written comments on the admissibility and merits of the application. Those comments had not been requested by the Court, given its earlier decision to adopt an oral procedure, but were nevertheless included in the case file pursuant to Rule 38 § 1 of the Rules of Court and transmitted to the applicants on the same date. 13. A hearing took place in public in the Human Rights Building, Strasbourg, on 27 April 2010 (Rule 59 § 3).", "On the same date the Court advised the parties that the adversarial written procedure was definitively closed and that no further pleadings would be entertained. There appeared before the Court: (a) for the GovernmentMrsT. Burjaliani, First Deputy Minister of Justice,Mr L. Meskhoradze, Agent, (b) for the applicantsMrSh. Shavgulidze and Mr D. Jandieri, Counsels,MrG. Girgvliani, Applicant,MrsK.", "Kvantaliani, Adviser. The Court heard addresses by Mrs T. Burjaliani and Mr D. Jandieri. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 14. The first applicant was born in 1956.", "She died on 24 August 2007. The second applicant was born in 1950 and lives in Tbilisi. 1. Background to the case 15. On 27 January 2006, at around 11 p.m., a group of friends met at the Café Chardin in Tbilisi.", "In the group were T.S.-aia, the Minister of the Interior’s wife, D.A.-aia, Director of Constitutional Security at the Interior Ministry, his deputy O.M.-ov, V.S.-dze, Director of the General Inspectorate of the Interior Ministry, G.D.-dze, Head of Press at the Ministry and the Minister’s spokesman, and A.K.-dze, a lady friend of T.S.‑aia. Another woman, Th.M.-dze, a friend of A.K.-dze, was also with them. 16. Mr Sandro Girgvliani, the applicants’ 28-year-old only son, and a friend of his, L.B.-dze, were sitting at another table in the same room. 17.", "According to the applicants D.A.-aia, O.M.-ov, V.S.-dze and G.D.‑dze are very well-known public figures in Georgia who, with V.M.‑shvili, the Georgian Minister of the Interior, played an active part in the so-called Rose Revolution that brought about the resignation of President E. Shevardnadze in November 2003 (see The Georgian Labour Party v. Georgia, no. 9103/04, §§ 11-13, 8 July 2008). According to the applicants, the government relies on the support of these trusted aides. 18. As submitted by the applicants, on the evening in question Sandro Girgvliani and L.B.-dze, both young bankers, arrived at the Café Chardin later than the group of friends mentioned above.", "The applicants’ son was actually hoping to see Th.M.-dze, whom he was apparently courting. On entering the café, he went up to the table where T.S.-aia, the Interior Minister’s wife, and her friends were sitting to say hello to Th.M.-dze. After greeting Th.M.-dze with a kiss, he went to sit with L.B.-dze at a nearby table. At one point he signalled to Th.M.-dze to join them at his table and she temporarily changed tables. The discussion between Sandro Girgvliani and Th.M.-dze, which lasted between 20 and 30 minutes, was apparently quite tense, punctuated with lively gestures that suggested they were disagreeing about something.", "Because of this, A.K.-dze went up to Th.M.‑dze twice, to ask her if everything was all right and if she needed any help. Th.M.-dze said all was well and she would soon be going back to A.K.‑dze’s table. When she finally did so the Minister of the Interior’s wife asked her if there was anything wrong. Th.M.-dze said that the young man she had been talking to was a friend and that there was no problem. 19.", "On 28 January 2006, at about 3 p.m., Sandro Girgvliani’s body was found by three friends, with the help of a local man, near the cemetery in Okrokana, a suburb of Tbilisi, 6.3 km from the Café Chardin. 20. According to an expert report drawn up by forensic specialists on 28 January 2006, after inspecting the crime scene, and the photographs appended to it, Sandro Girgvliani’s body, naked from the waist up, was discovered lying in the snow in the woods near the cemetery. Visual examination of the body revealed numerous parallel linear wounds on the left arm and shoulder, three 8 cm wounds to the neck, a similar wound to the throat and numerous bruises and lesions, some deep, to the chest. A pocketknife was found in the victim’s trouser pocket.", "21. The autopsy carried out on 28 January 2006 by the National Forensic Bureau established that the victim had 12 cuts of different sizes on his throat, caused by a sharp object, and one lesion on the left shoulder. Three of the wounds to the throat were deep enough to have damaged the muscles. One of them, measuring 0.5 cm in diameter, had reached the pharynx. According to a State expert who examined a sample of skin taken from the throat, the wounds had been caused by a sharp, pointed object with a handle, probably a knife.", "A very large number of cuts of different sizes – from 4 to 15 cm long – were found on the left shoulder, the left forearm, the right shoulder, the fingers, the belly, both knees and tibias, the thighs, the forehead, the nose, and around the eyes. Analyses revealed the presence of alcohol but no drugs in the blood. According to the experts, the amount of alcohol in the victim’s blood at the time of death was insignificant (0.35 ‰). 22. The report concluded that death had been caused by the wound to the pharynx.", "The victim had died of asphyxia when blood from the wound to his pharynx was sucked into the airways. It was a serious, life-threatening wound. 2. The part of the investigation carried out by the Ministry of the Interior 23. On 28 January 2006 criminal proceedings were instituted by the Ministry of the Interior for murder (Article 108 of the Criminal Code).", "On the same day criminal proceedings were instituted on counts of false imprisonment (Article 143 § 2 of the Criminal Code) and criminal association (Article 179 § 2 of the Criminal Code). Also on the same day, the two cases were joined. 24. On 28 January 2006 L.B.-dze was questioned as a witness. He explained that on 27 January 2006, at around 8 p.m., Sandro Girgvliani, himself and some colleagues of theirs went to the Keiser inn.", "They ordered various dishes, and beer and vodka. They left the inn at about 1 a.m. The applicants’ son and L.B.-dze took one taxi and their colleagues took another one. On the way, Mr Girgvliani suggested stopping off at the Café Chardin for a coffee. According to L.B.-dze, they met several people they knew in the café and stayed there until about 2 a.m., when they left and started walking down Leselidze Street towards the main road.", "A silver Mercedes ML pulled up alongside them. Two men got out and grabbed L.B.-dze by the neck to push him into the car. One of them pushed the applicants’ son into the car, holding his hands behind his back. 25. L.B.-dze asked the three kidnappers what they wanted.", "One of them said that, to start with, he wanted to know what they had in their pockets. L.B.-dze and Sandro Girgvliani showed him their mobile phones, which the man confiscated and placed in the glove compartment. The same man then asked them for proof of identity. L.B.-dze gave him his work pass, which was also confiscated. L.B.-dze and Mr Girgvliani took the men for policemen, but when the car started heading uphill, out of Tbilisi, the applicants’ son asked where they were going, as there was no police station in that direction.", "By way of an answer, the man sitting next to him elbowed him in the ribs. L.B.-dze asked the same question, but to no avail. Mr Girgvliani then demanded that they show their police badges, and was again elbowed in the ribs. The man sitting next to the driver finally answered that they would soon see where they were going and find out what would happen when they got to “the top”. Everyone then remained silent for a moment.", "On the way out of Tbilisi, the driver called someone on his mobile phone, saying: “We’re on our way up. The road is fine; you can come up in your car”. Near Okrokana cemetery they stopped the car, pulled L.B.‑dze and the applicants’ son out and pushed them towards the cemetery. L.B.‑dze was dragged along by the driver of the vehicle and the man who had been sitting in the front. Suddenly he felt a violent blow to the neck and collapsed.", "His captors then started kicking him while one of them held a pistol to his head. At the same time, Sandro Girgvliani was being beaten by the third man. 26. A short time later, L.B.-dze saw a fourth man, who had not been in the car. The man came up to him, aimed a gun at him and said he was only getting the punishment he deserved.", "He then kicked him in the face, fired a shot into the air then walked over to where Sandro Girgvliani was being beaten and started hitting him too. 27. At one point the two men beating Sandro Girgvliani came over to those who were beating L.B.-dze and said “the other bastard’s got away”. They then made L.B.-dze take his clothes off, hit him some more and left him there. 28.", "L.B.-dze managed to get up, with difficulty, and made his way back to the road. He walked along the road to a service station, where he woke up the watchman. He waited with the watchman until the early morning, when he was able to ask a passer-by to let him use his mobile phone to call the police. When questioned subsequently, the watchman confirmed L.B.-dze’s story. 29.", "At the end of that interview L.B.-dze said that he was still in shock and could not remember any other details at that time. 30. On 28 January 2006 L.B.-dze was granted civil party status and was questioned again in that capacity. He confirmed his previous statements and added that he had been pistol-whipped around the head. 31.", "On 28 January 2006 the colleagues with whom Sandro Girgvliani and L.B.-dze had spent the evening until 12.20-12.30 a.m. were all questioned. They confirmed that the applicants’ son and L.B.-dze had taken a taxi. They had not heard about the subsequent events and Sandro Girgvliani’s death until the next day. 32. On 29 January 2006 L.B.-dze was arrested and placed under investigation for concealment of murder.", "33. On 29 January 2006 the waiters, the manager and the accountant at the Café Chardin were interviewed. They stated that on Fridays and Saturdays a percussionist played the drums in their café and a DJ played music. One of the waitresses said that table no. 5 had been occupied by G.D.-dze, the spokesperson for the Minister of the Interior, and 6 or 7 other people.", "According to her, G.D.-dze and his friends had left the café at around 2.40 a.m. She had not noticed any trouble or fight that evening. However, she would not have been able to overhear any unpleasant verbal exchanges between the clients because of the music played between 10 p.m. and 1 a.m. The person who had served coffee to the applicants’ son said that Mr Girgvliani had been joined by a friend who had gone to the toilets. The two had only ordered coffee and had left after about 20 minutes. 34.", "On 30 January 2006 the investigating authority ordered the heads of all the police stations in Tbilisi to search their districts for silver Mercedes ML cars, to draw up lists of the owners, to get their photographs and their mobile and ordinary phone numbers and to find out about their professional contacts, friends, families and any possible criminal connections. The results of these investigations, which went on until 1 March 2006, were communicated to the investigating authorities by stages. 35. On 30 January 2006, L.B.-dze, when questioned as an accused person, gave new information. He said that a young woman he did not know had joined them at their table in the Café Chardin.", "The applicants’ son had greeted her warmly. At the same time L.B.-dze had been talking to an acquaintance. He had nevertheless noticed that the discussion between the applicants’ son and the lady concerned had grown tense. He could not hear what they were talking about because Sandro Girgvliani and the lady were sitting very close to each other and the music was loud. After ten minutes the lady had stood up, angry, and gone back to the other table, around which there were other ladies but also some muscular-looking men.", "Sandro Girgvliani did not tell L.B.-dze who the woman was. No-one in the café had had an argument with Sandro. At the cemetery, when the applicants’ son was being beaten, L.B.-dze had not been able to see him, but he had heard his screams. Later, a fourth man had joined the other assailants. He had a gun.", "According to L.B.-dze, it was not impossible that that man had someone else with him, as Sandro Girgvliani was a strong man and it would not have been easy to hold him still while they subjected him to the kind of torture indicated by the marks on his body. It was also after that man arrived that the applicants’ son had let out a terrible scream. Sometimes the man in question left Sandro Girgvliani and came over to hit L.B.-dze. As he was being kicked in the face, L.B.-dze had had to cover his face, so he could not see exactly what was happening to his friend and how many men were beating him. 36.", "On 30 January 2006 L.B.-dze was released, there being no evidence against him. 37. On 30 January 2006 some clients of the Café Chardin who had known Sandro Girgvliani were questioned. They said they had witnessed no altercation in the café. 38.", "On an unspecified date the investigator in charge of the case asked the mobile phone operators to provide lists of all the numbers which had been in communication on 28 January 2006 from certain antennas in Tbilisi, between midnight and 2 a.m. for some antennas and between 1 and 3.30 a.m. for others. On 31 January and 16 February 2006, the two operators supplied the data concerned in table form. 39. On 30 January 2006 the investigator found that the crime could have been committed for reasons of personal revenge against L.B.-dze, who had left his wife to live with another woman. The Tbilisi City Court then ordered the monitoring of the telephone conversations of L.B.-dze’s ex-wife and his new wife from 31 January to 1 March 2006.", "40. On 31 January 2006 the investigator requested and obtained from one of the mobile phone operators a list of all the telephone numbers dialled between 10 and 31 January 2006 from the telephone of G.A.-ia, the first Deputy Director of Constitutional Security at the Ministry of the Interior. 41. When questioned on 31 January 2006, Sandro Girgvliani’s lady friend Th.M.-dze made the same statements as on 13 March 2006 (see paragraphs 98-108 below), except that she did not mention Sandro Girgvliani’s having insulted G.D.-dze. 42.", "According to an expert medical report of 31 January 2006, L.B.-dze had numerous bruises on his face and other parts of his body. They were considered light injuries that did not affect his ability to work. 43. On 6 February 2006 the first applicant was granted civil party status. 44.", "When questioned on 16 February 2006, A.K.-dze said that the discussion between Th.M.-dze and Sandro Girgvliani had been calm and she had not noticed whether O.M.-ov had left the café to go looking for cigarettes. The remainder of her testimony was the same as that given on 13 March 2006 (see paragraphs 111-112 below). 45. D.A.-aia, V.S.-dze, G.D.-dze and T.S.-aia were also heard on 16 February 2006. The statements they made were essentially the same as those they made on 12 March and 20 June 2006 (see paragraphs 113‑123 below).", "However, T.S.-aia, the Minister’s wife, said nothing about asking Th.M.-dze if “everything was all right” when she came back to their table after talking to Sandro. 46. When questioned on 16 February 2006, O.M.-ov said that on the evening of 27 January 2006 he had gone with his friend and hierarchical superior D.A.-aia to the Café Chardin. He had had a drink. He had no recollection of seeing Th.M.-dze change tables.", "There had been no incident or altercation. He said he had eventually found the cigarettes the Minister’s wife had asked for at an all-night vendor’s near B. supermarket. At about 3 a.m. they had all gone home in good spirits. Other than that, O.M.-ov gave the same account of events as on 22 July 2006 (see paragraph 199 below). 47.", "Throughout the month of February 2006 shop assistants, night vendors and caretakers of establishments located on Leselidze street were questioned. None of them had noticed anything of relevance. 48. On 28 February 2006 recordings made by the surveillance camera at the home of a wealthy businessman located on the road to Okrokana were seized from the head of security at the property, who also worked as a guard at the Ministry of the Interior. The recordings were of the period between 2 and 3 a.m. on 28 January 2006.", "49. On 5 March 2006 the Chief Prosecutor of Georgia, on the basis of “the Ministry of the Interior’s memo of 24 February 2006”, decided to take the case away from the Ministry of the Interior and hand it over to the Tbilisi City Prosecutor’s Office. 50. According to the criminal case file submitted to the Court, the memo in question was a classified internal document sent by D.A.-aia to the Minister of the Interior. It revealed, inter alia, that D.A.-aia was the person responsible in the Ministry of the Interior for elucidating the important aspects of the case.", "In the first part of the note D.A.-aia reported the same facts to the Minister as those described by L.B.-dze in his statements concerning the kidnapping and the assault that caused Sandro Girgvliani’s death (see paragraphs 25-28 above). It went on to explain that on the night in question he had been in the Café Chardin himself with a group of friends until 3.30 a.m., celebrating V.S.-dze’s birthday. G.A.-ia, his subordinate, had also been invited by V.S.-dze. According to D.A.-aia, he had spoken to G.A.-ia several times on the telephone from the Café Chardin to find out if he was coming. After confirming that he would be coming, G.A.-ia had informed D.A.-aia around 3 a.m. that he would not be able to make it after all.", "51. In the same memo, D.A.-aia explained to the Minister that on 2 February 2006 a regional manager from his department had informed him that a Mercedes ML that had been seized as evidence in a criminal case was being taken to Kutaisi. D.A.-aia had taken an interest in the vehicle and, on learning that it was a silver Mercedes ML, had decided to question a number of Ministry employees about it. He had thus been able to establish that on 28 January 2006 around 1.30 a.m. the car had left the courtyard of the Ministry with G.A.-ia and two other Ministry staff members, A.A.‑uri and A.Gh.-ava, on board. After seeking the necessary information from the mobile phone operator, D.A.-aia had been able to reconstitute G.A.‑ia’s movements and to conclude that on the night concerned he had been in the vicinity of the cemetery at Okrokana and had spoken on the phone with M.B.‑dze, another Ministry employee.", "52. Lastly, in the same written memo, D.A.-aia informed the Minister that he had asked G.A.-ia if he had been present at the scene of the crime on the night in question. G.A.-ia, strangely unsettled, had denied being there. 53. According to D.A.-aia, all this seemed to indicate that G.A.‑ia, A.A.‑uri, A.Gh.-ava and M.B.-dze might have had a hand in committing the crime in question.", "He asked the Minister to decide what course of action should be taken. 3. The part of the investigation carried out by the Tbilisi City Prosecutor’s Office 54. On 6 March 2006 the Tbilisi City Prosecutor’s Office cancelled the decision granting the first applicant civil party status on the ground that only the direct victim of the crime, that is, the son, was entitled to civil party status. As the direct victim in this case was dead, the only standing one of his parents could claim was as his heir.", "55. On 6 March 2006, L.B.-dze, in his civil party capacity, applied to the investigator in charge of the case, stating that he did not need to be assisted by counsel and that he declined the services of the two lawyers assigned to his case. 56. That same day, L.B.-dze was asked to assist in identifying the presumed perpetrators of the crime, without the assistance of a lawyer. 57.", "L.B.-dze identified G.A.-ia, the first Deputy Director of Constitutional Security at the Ministry of the Interior, “without any doubt”, as one of the people who had taken part in his kidnapping and assault at the cemetery in Okrokana. 58. L.B.-dze identified A.Gh.-ava, a subordinate of G.A.-ia’s, as “possibly being” the driver of the Mercedes ML, but he could not be certain. 59. L.B.-dze also said that A.A.-uri, another of G.A.-ia’s subordinates, “was probably” the man who had sat next to Sandro Girgvliani in the car.", "When asked by the prosecutor if he was 100% certain, L.B. said that he could not be 100% sure but that A.A.-uri resembled the man concerned. 60. Finally, when faced with four unknown persons among whom M.B.‑dze, the second Deputy Director of Constitutional Security at the Ministry of the Interior, had been placed, L.B.-dze said that the man next to M.B.-dze could be one of the perpetrators of the crime, but he was not 100% sure. The man’s face and stature resembled the man who had beaten Sandro, who was the one with whom he had had the least contact.", "61. On 6 March 2006 G.A.-ia, A.Gh.-ava and A.A.-uri, but also M.B.‑dze, were arrested. 62. On 6 March 2006 L.B.-dze was questioned as a civil party. 63.", "According to the video recording of the interview, the investigator asked L.B.-dze if he wished to be assisted by a lawyer. L.B.-dze said he did not. He then confirmed his previous statements, adding that Sandro Girgvliani had made a phone call to someone from the taxi before suggesting that they stop by the Café Chardin. When they entered the café, L.B.-dze had gone to the toilet and then joined Sandro Girgvliani at a table. By the time Th.M.-dze had joined them at their table, music was playing.", "Th.M.-dze and the applicants’ son had been sitting quite close to one another, so it had been impossible for him to hear what they were talking about. Anyway, a friend had come to sit and talk to L.B.-dze for 2 to 5 minutes. This last sentence does not appear in the record of the interview included in the case file. According to L.B.-dze, Th.M.-dze and Sandro Girgvliani had not had an argument, but the discussion between them had been tense. 64.", "L.B.-dze added that he himself had not had any argument with anyone in the café. He could not say for sure whether Sandro Girgvliani had, as he had left him to go to the toilet. 65. L.B.-dze explained that when they had left the café, he and Sandro Girgvliani had not crossed the room together, but they had gone out into the street together. That statement does not appear in the record of the interview in the case file.", "However, the video recording shows that when L.B.‑dze said that, the investigator suggested including the following wording in the record, which he dictated himself: “I cannot remember if Sandro and I went out through the café door together. (...) it is possible that I was a little way behind him.” L.B.-dze then added himself that if he remembered rightly, before leaving the café he had gone to the toilet again. The investigator told him to note it down in the record. 66. In answer to the investigator’s question whether anyone could have followed them as they left the café, L.B.-dze said he did not think so.", "67. Lastly, the investigator asked L.B.-dze if he thought the assailants had intended to kill him with Sandro. L.B.-dze thought they probably had not, considering that they had just abandoned him there, still alive, instead of killing him. 68. Still on 6 March 2006, L.B.-dze was questioned again, with no lawyer present, about the fourth person who had arrived on the scene later.", "69. L.B.-dze said he could not rule out the possibility that the person concerned had not come alone. It was this man who had fired the shot in the air. In answer to a question from the investigator, L.B.-dze replied that he had indeed been invited by an MP into his office in the Parliament to look at a photograph and say whether he recognised the man in it. L.B.-dze had said that he could not be sure, but he thought the man in the photo “looked just like” the fourth man, who had joined them at the cemetery later.", "The MP had recorded the procedure, with L.B.-dze’s consent, and as the man in the photo was O.M.-ov, the recording had been made public. To the investigator, L.B.-dze said that the man in the photograph resembled the “fourth man”, but that he could be mistaken. 70. When questioned on 6 March 2006, G.A.-ia said that he had been at work late on 27 January 2006 in the evening. Before going home, he had decided to stop by the Café Chardin, with A.A.-uri and A.Gh.-ava, to wish V.S.-dze a happy birthday.", "He had been invited, he explained. To get there, he had taken a Mercedes ML that was parked in the Ministry courtyard, having been impounded as evidence in a criminal case. G.A.-ia explained that he had given A.A.-uri number plates with the number WAW-293 to put on the car. 71. The three men had stopped the car in Leselidze street near the café.", "Only G.A.-ia had got out of the car. At the entrance to the café, he found someone he did not know (Sandro Girgvliani) insulting G.D.-dze’s mother. On hearing this, G.A.-ia asked what the problem was. In response, Mr Girgvliani insulted him too and walked away. G.A.-ia decided to follow him “to find out why he was hurling insults”.", "He returned to the car and asked A.A.-uri, who was at the wheel, to follow the two men. He also asked his two colleagues if they had their pistols on them, as he thought they might need to make an arrest. When they replied that they were not armed, G.A.-ia called M.B.-dze on the phone and asked him to come and help them and to bring his gun. 72. A.A.-uri pulled up alongside Sandro Girgvliani and L.B.-dze, and G.A.-ia got out of the car and asked the two men to show their identity documents.", "Mr Girgvliani asked him in a very disparaging tone who he was. G.A.-ia said they were from the Ministry of the Interior and asked him for his papers again. Sandro Girgvliani and L.B.-dze insulted him again. The discussion grew more heated and A.A.-uri got out of the car and told them to calm down. Sandro Girgvliani pushed him and A.A-uri fell over.", "According to G.A.-ia, Mr Girgvliani and L.B.-dze told the other men that they could go anywhere they liked and sort things out. They all decided to get in the car and go somewhere else. They drove twice round the main square in Tbilisi, while G.A.-ia tried to understand why Sandro Girgvliani had been insulting G.D.-dze. Then they stopped the car and told Sandro Girgvliani and his friend to get out, but they refused, saying that was no place to talk and they should go elsewhere. So they had gone to Okrokana, and stopped the car near the cemetery.", "Then they had all got out and started fighting. It was a bright night and there was fairly good visibility. 73. M.B.-dze had soon come along to assist his colleagues. He had dealt mainly with Sandro.", "When Sandro Girgvliani had escaped, G.A.-ia had told M.B.-dze not to bother following him. The scuffle had lasted 15 minutes and it must have been 2 a.m. when they left Okrokana. 74. G.A.-ia also maintained that on the way back from Okrokana he had received phone calls from D.A.-aia and G.D.-dze asking him if he was coming to V.S.-dze’s birthday party (cf. paragraph 154 below).", "75. When questioned on 6 March 2006, M.B.-dze maintained that after receiving a call for help from his superior, G.A.-ia, around 1.30 a.m., he had taken his weapon and gone to the Ministry of the Interior to pick up an official car, thinking that it would be necessary to arrest someone. When he reached Leselidze street he realised his colleagues had gone, so he called G.A.-ia, who told him they were on their way to Okrokana. When he drove there he spotted the Mercedes ML “which he thought his colleagues were using”. He headed towards the cemetery, where the noise was coming from.", "He found Sandro Girgvliani lying on the ground and L.B.-dze putting up a fight. His colleagues were accordingly concentrating their efforts on L.B.‑dze. Sandro Girgvliani had got up again, however, and attacked him. They had started to wrestle. Sandro Girgvliani’s clothes were ripped in the struggle.", "At one point M.B.-dze thought he saw a knife in Sandro Girgvliani’s hand. He took his gun out and fired into the air. That was when Sandro Girgvliani had taken the opportunity to run away. The struggle had lasted no longer than 15 minutes. 76.", "M.B.-dze stated that neither he nor his colleagues had used any sharp weapons, and that he could only assume that, after escaping, Sandro Girgvliani must have injured himself on the wire fencing round the tombs or in the bramble bushes. 77. When questioned on 6 March 2006, A.Gh.-ava confirmed G.A.-ia’s account of events. He also said that he and his colleagues had identified themselves to Sandro Girgvliani and L.B.-dze as employees of the Ministry of the Interior. He said that Sandro Girgvliani and L.B.-dze had got into the car of their own free will.", "A.Gh.-ava confirmed, like M.B.-dze, that it had been a clear night and that none of his colleagues had been carrying a knife or any other sharp object. 78. When questioned on 7 March 2006, A.A.-uri gave exactly the same account as G.A.-ia, A.Gh.-ava and M.B.-dze. As to the origins of Sandro Girgvliani’s wounds, A.A.-uri made the same suppositions as M.B.-dze. 79.", "On 7 March 2006 a public prosecutor from Tbilisi City Prosecutor’s Office placed G.A.-ia, A.Gh.-ava, A.A.-uri and M.B.-dze under investigation for wilful bodily harm resulting in death (Article 119 of the Criminal Code) and premeditated false imprisonment by a group of persons with life-threatening violence (Article 143 § 2 (a), (c) and (h) of the Criminal Code). On 8 March 2006 they were remanded in custody. 80. On 8 March 2006 L.B.-dze, with no lawyer present, was called to identify the “fourth man”, who had arrived last at the cemetery. According to the video recording of this investigative measure, among the four men in the line-up to be presented to L.B.-dze, O.M.-ov took the third position from the left.", "The public prosecutor then invited L.B.-dze into the room and asked him to look carefully at the four men. L.B.-dze hesitated before saying: “I can’t be 100% sure ... the man must have been bigger, but I don’t know..., I don’t recognise, let’s say, going by the face..., I could say it was the second man from the left, or the third from the left.” The public prosecutor replied: “So you do not recognise any of these four people for sure.” L.B.-dze explained that he did not “recognise anyone for sure, but the two men he had picked out looked like the assailant who had arrived last at the cemetery”. The public prosecutor then invited him to write the report, including sentences he dictated to him: “Among the four individuals presented to me, I am unable to identify anyone as the individual who on 28 January 2006 committed the unlawful acts against me and against Sandro Girgvliani”. The public prosecutor then asked L.B.-dze to start a new paragraph, and L.B.-dze complied. The doubts and resemblances noted by L.B.-dze are not mentioned in the record of the proceedings, which also contains another error: according to the record, O.M.-ov was in the third position from the right, not from the left as seen in the video recording.", "81. When questioned on 8 March 2006, the barman from the Café Chardin explained that the musicians generally played as long as there were still clients in the establishment. A waitress, R.A., said that the percussionist played the bongo drums on Fridays and at the weekend, from 10 p.m. until 2 a.m. On the evening in question R.A. had recognised G.D.-dze and O.M.‑ov as soon as they had walked into the café. Even if she would not have been able to hear an argument with all the noise, R.A. could safely say that there had been no trouble at Sandro Girgvliani’s table or at the table where G.D.-dze, O.M.-ov and their friends had sat. One of G.D.‑dze’s friends, whose name she could not recall, had asked her what brands of cigarettes she sold.", "As she had not had the brand the person wanted, he had gone looking for them elsewhere. 82. On 8 March 2006 the café’s accountant, a waiter L.M., a waitress and three patrons present in the café were questioned. They all said that there had been no trouble that evening. L.M.", "said he knew G.D.-dze, who had been at table no. 5 with some friends, by sight. They had still been there when he had finished work at 3.30 a.m. According to L.M., music was playing in the café from 10 p.m. to 2 a.m. 83. In spite of what it says in the corresponding reports, the video recordings of the above interviews are not included in the criminal case file submitted to the Court.", "84. On 9 March 2006, during a reconstruction at the scene of the crime, L.B.-dze said that the two men who had taken him out of the car and beaten him had stayed with him until the end. Some way off he could see Sandro Girgvliani lying on the ground covering his face with his hands, while the man who had elbowed him in the car to keep him quiet stood over him. L.B.-dze also said that the fourth assailant had probably arrived at the cemetery about ten minutes after them. Before Sandro Girgvliani had run away, L.B.-dze had heard a terrible scream and a shot fired into the air.", "According to the video recording of this investigative measure, L.B.‑dze said that when he managed to get to his feet again he started calling Sandro Girgvliani’s name, hoping to find him. He continued to call him, but in vain, after reaching the road. When no answer came he had started walking. He had tried to flag down a car, but no-one would stop for a half-naked man in the state he was in. 85.", "On 10 March 2006 L.B.-dze was questioned again, with no lawyer present, the prosecutor simply explaining that he had the right to be represented, before proceeding with his questions. He was questioned, inter alia, about the contradiction between his statements to the authorities and those he had made on television concerning the moment when they left the café. On television he had stated that he and Sandro Girgvliani had had no run-in with G.A.-ia when they were leaving the café. 86. L.B.-dze then explained that, first of all, inside the café there had been no incident resembling an argument or an altercation, but he did not exclude the possibility of some “latent conflict” between his friend and the other people in the café.", "Secondly, outside the café, that is to say, once they had stepped out into the street, there had been no incident or trouble of any kind. He could not, however, exclude the possibility that his friend had exchanged angry words with someone as they left the café, without him noticing. The prosecutor then reminded him that he had stopped off at the toilets when Sandro Girgvliani started making his way out of the café and that he had followed him out but had not been right beside him. L.B.‑dze agreed that something might have happened to his friend on the way out without him noticing. The prosecutor then dictated the following entry for the record: “I do not remember if there was any trouble when we left the café, because I seem to remember I went to the toilet.", "So I cannot say whether any incident occurred at that juncture”. The prosecutor explained that by “incident” he meant an exchange of words. L.B.-dze agreed. 87. Insisting heavily on the possibility that an incident might have occurred on the way out of the café, the prosecutor asked L.B.-dze if he could say with any certainty that the accused G.A.-ia had not been there when they left the café.", "L.B.-dze could not say whether he had or had not been there. 88. The prosecutor then asked L.B.-dze about his statement on television that O.M.-ov could have been one of the men who had assaulted them at the cemetery. The prosecutor reminded him that he had not been able to identify O.M.-ov on 8 March 2006 and asked him for an explanation. According to the video recording, L.B.-dze replied that although he had not been able to identify O.M.-ov, he could not rule out the possibility that he had been at the cemetery.", "When asked whether O.M.-ov really had been there or not, L.B.-dze repeated that he could not say he had not been there. To include these answers in the record, the prosecutor dictated to L.B.-dze: “I cannot say for sure that O.M.-ov was not one of the people who assaulted us at the cemetery ... I was unable to identify O.M.-ov, but I cannot exclude the possibility that he or any other person took part in the crime.” 89. On 10 March 2006, the second applicant informed the prosecutor that he consented to his wife, the first applicant, being given standing as heir to the civil party, given that, pursuant to Article 68 § 2 of the Code of Criminal Procedure (“the CCP”), both parents could not claim that standing simultaneously. The first applicant was given that status on the same day.", "90. On 11 March 2006 statements made by B.E. on 2 March 2006 were verified at the scene of the crime. This young man, who lives in Okrokana, had helped Sandro Girgvliani’s friends to find his body in the woods. B.E.", "showed the place where, in the gorges of the river that runs past the cemetery, he had first spied the traces of a bloodied body that had fallen down in the snow. With Sandro Girgvliani’s friends they had followed the regular blood stains along the path. The young man confirmed that all along the way the traces of only one injured person had been visible. 91. On 13 March 2006 a test run showed that the offenders would have needed 17 minutes and 33 seconds to drive from the Café Chardin to the cemetery in Okrokana 6.3 km away and back.", "O.M.-ov would have needed 18 minutes and 20 seconds to get to the B. supermarket 5.5 km from the café. 92. According to a letter from the management of the Café Chardin, dated 14 March 2006, the surveillance camera only covered the area occupied by the bar and did not record pictures. 93. When questioned on 15 March 2006, the bouncers at the café said that they had been in the entrance, between the two doors.", "The music had been loud and people had had to raise their voices to be heard. They reported that there had been no disturbance inside the café. They would not have been able to hear any argument outside because of the music. They could see out into the street through the large windows, but they would not necessarily have noticed any incident. In any event, their job was not to keep an eye on what went on in the street but to keep an eye on the inside of the café and the entrance.", "94. On 13 March 2006 the first applicant said that she had seen Th.M.‑dze’s interview on television, where Th.M.-dze said that L.Tch.‑shvili, a chauffer of the Ministry of the Interior, had bought T.S.‑aia two packets of cigarettes at the start of the evening. Considering that two hours was not enough time for T.S.-aia to have smoked two packets of cigarettes, the first applicant requested that the people present that evening be asked about the real reasons why O.M.-ov had left the café at the same time as her son and L.B.-dze. She also requested that O.M.-ov be asked how it was that the security camera at the B. supermarket showed that he had not gone there that evening. 95.", "She further requested leave to take part in the above investigative measures, in conformity with Article 69 (i) of the CCP. 96. On 15 March 2006 the first applicant’s requests were rejected by the public prosecutor, on the grounds that the points raised had already been elucidated and there was no need to repeat the investigative measures concerned. 97. However, the applicant subsequently learned that, to clarify the points she had raised on 13 March 2006 the prosecutor had questioned A.K.-dze and Th.M.-dze on 13 March 2006 and D.A.-aia, V.S.-dze, T.S.‑aia and G.D.-dze on 20 June 2006, without informing her or inviting her to attend the proceedings.", "(a) Statements made by the members of the group of friends of the Minister of the Interior’s wife i. Th.M.-dze, Sandro Girgvliani’s lady friend 98. When questioned on 13 March 2006, Th.M.-dze stated that on the evening of 27 January 2006, at around 10.30 p.m., her friend A.K.-dze came to pick her up from her home to take her out for the evening. She had difficulty walking from her building to the car as the streets of Tbilisi were covered with ice. Th.M.-dze saw that A.K.-dze was not alone in the car; there was also the wife of the Minister of the Interior, whom she knew well, together with V.S.-dze, Director of the General Inspectorate of the Interior Ministry, whom she had not met before. The car was driven by V.S.-dze’s chauffeur.", "They headed for the Café Chardin. They found a table there and the Minister of the Interior’s wife asked V.S.-dze’s chauffeur to go and find her some K-brand cigarettes. The chauffeur, L.Tch.-shvili, left and returned ten minutes later with two packets of K cigarettes. L.Tch.-shvili then left the café and went to wait in the car for the rest of the evening. 99.", "At around midnight Th.M.-dze received a phone call from Sandro. It appears they had had a tiff and he wanted to make up. She refused to see him, but Sandro Girgvliani insisted. Th.M.-dze misled him into thinking she was at a café in another part of the town and said she did not want to see him. To take the phone call, she had gone out into the café lobby, where the music was not so loud.", "100. Some 30-40 minutes after that phone call, D.A.-aia and O.M.‑ov had joined the Minister of the Interior’s wife and her group of friends. 5 to 10 minutes later, G.D.-dze had also joined them. 101. At about 1.15 or 1.20 a.m. Sandro Girgvliani and L.B.-dze entered the Café Chardin.", "Sandro Girgvliani went up to Th.M.-dze, gave her a kiss and asked her how she was. He then went to talk to some other people he knew in the room. 15 or 20 minutes later, he signalled to Th.M.-dze that he was about to leave. When Th.M.-dze asked him where he was going Sandro Girgvliani told her he was drunk and had to go home. Instead of leaving, however, he sat down at a nearby table with L.B.-dze and ordered a coffee.", "He then signalled to Th.M.-dze to come and join him. Th.M.-dze discreetly changed tables a few minutes later. The applicants’ son asked her who the men were with whom she had come to spend the evening. Th.M.-dze said they were friends of her friends and that she did not really know them. So Sandro Girgvliani asked her what she was doing spending her evening with strangers.", "She said it was of no importance whom she spent her evenings with and expressed surprise that he should have come all the way to the Café Chardin to ask her such a question. Sandro Girgvliani then asked her what she was doing with “that poof”, referring to G.D.-dze, the Minister of the Interior’s spokesman. According to Th.M.-dze, the tone of their conversation, which lasted 15-20 minutes, was “stilted” and Sandro Girgvliani was gesticulating. At one point A.K.-dze left the Minister of the Interior’s wife and her friends and went over to Th.M.-dze to ask her if everything was all right. Th.M.-dze said it was.", "A.K.-dze then went to the toilet and, on the way back, asked Th.M.-dze what she was doing. Th.M.‑dze said she would return to their table shortly. At the end of the conversation, Sandro Girgvliani suggested that Th.M.-dze leave the café with him. She said she would join him later and asked him to call her in half an hour. Th.M.-dze then went back to her table.", "The Minister’s wife asked her if “everything was all right”. Th.M.-dze said she was fine. 102. Ten minutes later Sandro Girgvliani and L.B.-dze got up to leave the café. On his way out, Sandro Girgvliani waved goodbye to Th.M.‑dze, who waved back and said she would join him later.", "103. Th.M.-dze stated that before she said the words “I’ll see you later” she heard the Minister’s wife ask O.M.-ov to go and buy some cigarettes, as there were only 2 or 3 left in the last packet. O.M.-ov, who was sitting next to Th.M.-dze, got up and blocked Th.M.-dze’s view; she had to lean over to tell Sandro Girgvliani she would join him. O.M.-ov went towards the exit at about the same time as Sandro Girgvliani and L.B.-dze. Th.M.-dze could not see the door from where she was sitting, so she did not see who left first, O.M.-ov or Sandro Girgvliani and his friend.", "She could see the door to the toilets, however, and maintained that she did not see any of the three men go to the toilet before leaving the café. 104. Th.M.-dze waited for Sandro Girgvliani to call her, as arranged, looking at her watch every so often. That was how she could be so sure that O.M.-ov, who had left the café at the same time as Sandro Girgvliani and L.B.-dze, was gone for 30-40 minutes. When Sandro Girgvliani failed to call her, Th.M.-dze got annoyed and said she was leaving.", "A.K.-dze said they would all soon be leaving anyway. Th.M.-dze got the impression that they were waiting for O.M.-ov to come back before leaving the café. 105. O.M.-ov came back 30-40 minutes later with the cigarettes in his hand. He looked cold.", "Th.M.-dze asked him if it was cold outside. He said it was. He explained that he had been unable to find any K-brand cigarettes in the vicinity and had had to go further afield – “to the B. supermarket” – to find them. 106. At about 2.50 a.m. the evening came to an end and at about 3 a.m. they all got up to leave.", "V.S.-dze’s chauffeur drove Th.M.-dze and A.K.‑dze home. D.A.-aia took the Minister of the Interior’s wife home. 107. It was 3.10 a.m. when Th.M.-dze got home. 108.", "In answer to a question from the prosecutor, Th.M.-dze said she had not had a tense conversation with Sandro Girgvliani or his friend L.B.‑dze. Apart from calling one of them a “poof”, Sandro Girgvliani had not insulted the people she was with. In answer to another question, Th.M.‑dze said there was an 80% chance that the other people in the party had not overheard the insult in question, as Sandro Girgvliani was speaking in a normal tone and the music was loud. She also said that when she had gone back to her friends she had not told them what Sandro Girgvliani had called G.D.-dze. She further stated that there had been no contact between the applicants’ son and L.B.-dze and the group of friends at the other table.", "109. In a television interview Th.M.-dze stated that O.M.-ov had followed Sandro Girgvliani and L.B.-dze out of the café. 110. Subsequent examination of the video recorded by the surveillance system at the B. supermarket did not reveal that O.M.-ov had gone there on the night in question. ii.", "A.K.-dze, Th.M.-dze’s friend 111. When questioned for the second time, on 13 March 2006, A.K.‑dze stated that she and her friends went to pick up Th.M.-dze from her home around 10.30 a.m. She said she did not notice exactly when Th.M.-dze went over to join Sandro Girgvliani at his table. However, the 5‑10‑minute conversation between Mr Girgvliani and Th.M.-dze had been calm and Sandro had not spoken at any time to any of the people in the group she was with. A.K.-dze maintained that she did not hear Mr Girgvliani insult anyone. When Th.M.-dze came back to her table, A.K.-dze asked her who the young man was that she had been talking to.", "Th.M.-dze told her he was a friend and he wanted her to leave with him. A.K.-dze had told her that she might as well go, as that was what he wanted. Th.M.-dze had been in good spirits. A.K.-dze confirmed that O.M.-ov had left the café at one point to buy cigarettes for the Minister of the Interior’s wife. She thought he was gone about 20-25 minutes.", "She confirmed that at the beginning of the evening the Minister’s wife had had a packet or two of cigarettes with her. A.K.-dze did not smoke. She categorically denied going over to Th.M.‑dze when she was talking to Sandro, to see if she was all right. 112. According to the record of that interview, the interview was filmed, but contrary to what it says in the file, the video recording was not included in the criminal case file submitted to the Court.", "iii. D.A.-aia, Director of Constitutional Security at the Interior Ministry 113. When questioned on 12 March and 20 June 2006, D.A.‑aia reiterated that he had arrived at the café with O.M.-ov at about 11.30 p.m., in his official car. He confirmed that the Minister of the Interior’s wife had asked O.M.-ov to go and fetch some K-brand cigarettes. D.A.-aia had nodded to O.M.-ov to do as she asked and had given him the keys to the official car.", "D.A.-aia had learned later that outside the café O.M.-ov had asked D.A.-aia’s chauffeur to take the car and go looking for cigarettes. According to D.A.-aia, O.M.-ov was away for 20 minutes and came back with a packet of cigarettes which he said he had bought “near B. supermarket”. According to D.A.-aia, O.M.-ov had appeared calm. 114. D.A.-aia said that he had not smoked on the evening in question.", "He confirmed that he had spoken to G.A.-ia several times on the telephone to see if he was coming to join the party. After first confirming that he was coming, at about 3 a.m. G.A.-ia said he would not be joining them after all. Since arriving at the café, D.A.-aia had used O.M.-ov’s mobile phone, with his own SIM card in it, as the battery in his own mobile phone was flat. 115. D.A.-aia maintained that no member of his group had had any altercation or incident with the people present in the café.", "116. Lastly, D.A.-aia explained that he had immediately informed the Minister of the Interior of what one of his department’s regional directors had reported to him on 2 February 2006 (see paragraphs 50-52 above). The Minister had instructed him in writing to continue investigating and discover the truth of the matter. iv. V.S.-dze, Director of the General Inspectorate of the Interior Ministry 117.", "When questioned on 12 March and 20 June 2006, V.S.‑dze confirmed what Th.M.-dze had said about the period prior to their arrival at the café. He added, however, that before going he had made a phone call to D.A.-aia telling him to bring their mutual friend G.A.-ia along. According to D.A.-aia, G.A.-ia was supposed to join them, but in the end he did not come. 118. V.S.-dze confirmed that at one point Th.M.-dze had gone over to another table and at another juncture the Minister of the Interior’s wife had sent O.M.-ov to buy her some cigarettes.", "According to V.S.-dze, O.M.‑ov had returned 15-20 minutes later. V.S.-dze did not smoke. He too said that there had been no incident or altercation between his friends and any other person in the café. v. T.S.-aia, the Minister of the Interior’s wife 119. When questioned on 12 March and 20 June 2006, T.S.-aia said that V.S.-dze had come to pick her and A.K.-dze up at her home in his chauffeur-driven official car.", "They had then gone to pick up Th.M.‑dze They were at the café by about 11 p.m. D.A.-aia and O.M.-ov arrived at about 12.30 a.m. and G.D.-dze arrived at about 1.15 a.m. The remainder of her account corroborated V.S.-dze’s version of events. 120. T.S.-aia did add, however, that when Th.M.-dze came back to their table after talking to Sandro, she asked her if “everything was all right”. Th.M.-dze, who was calm, said she was fine.", "T.S.-aia confirmed that later in the evening she had asked O.M.-ov to go and get her some K‑brand cigarettes. O.M.-ov had returned 20-25 minutes later. She further stated that shortly after they reached the café, V.S.-dze’s chauffeur had brought her two packets of cigarettes which he had bought near the B. supermarket. T.S.‑aia also said that there had been no altercation between her friends and any of the other people present in the café. Come midnight they had all wished V.S.-dze a happy birthday 121.", "D.A.-aia had driven T.S.-aia home in his official car. O.M.‑ov and G.D.-dze were with them in the car. vi. G.D.-dze, Head of Press at the Ministry of the Interior and spokesman for the Minister 122. When questioned on 20 June 2006, G.D.-dze explained that his friend the Minister’s wife had called to say that she was dining at the Café Chardin and invited him to join her.", "G.D.-dze got to the café around 11.50 p.m. In answer to a question from the prosecutor, G.D.-dze said that he did not usually smoke, but on the evening in question he had smoked the cigarettes that were on the table. Indeed, everyone in the party, except D.A.‑aia and V.S.-dze, had smoked the same cigarettes. At one point he had noticed that there were none left, but later someone had brought some more. He had not noticed who had gone to buy more cigarettes.", "123. G.D.-dze did not know whether their colleague G.A.-ia had also been expected in the café that evening. He had no knowledge of any incident or altercation between his friends and anyone else in the café that evening and he had not heard anyone insult him. vii. L.Tch.-shvili, V.S.-dze’s chauffeur 124.", "When questioned on 12 March 2006, V.S.-dze’s chauffeur confirmed that he had bought two packets of K-brand cigarettes for the Minister of the Interior’s wife at the start of the evening. Later, when he was waiting in the car for the party to end, O.M.-ov had called him and taken him to a nearby car park where D.A.-aia’s official car was parked. L.Tch.‑shvili had closed his car and walked towards O.M.-ov. As he passed by the Café Chardin he saw G.A.-ia, who was walking fast. He greeted him, but received no reply.", "G.A.-ia was alone. In the car park O.M.-ov told L.Tch.-shvili that he had been drinking and did not want to take D.A.‑aia’s official car to go and buy some cigarettes. He asked L.Tch.-shvili to drive. They drove off in search of the cigarettes and found some near the B. supermarket. They got back to the café about 30 minutes later.", "(b) Subsequent investigative steps 125. On 22 March 2006 the statements made by G.G., one of Sandro Girgvliani’s friends who had discovered the body, were verified at the scene of the crime. He explained that the police had arrived before them and there were many footprints in the snow at the cemetery. G.G. pointed out the place under a tree where he had seen what looked like the red imprint left by a bloodied face.", "The friends had gone through the cemetery and started to explore the river gorges. They asked a young village lad who was out bird-hunting (see paragraph 19 above) to help them. The lad spotted what looked like a large blood stain in the snow some way off. They saw that it led to other stains, some of which indicated that Sandro Girgvliani had had to lie down in the snow to rest at regular intervals. At one point they realised that the applicants’ son must have fallen off a ledge and tried to climb back up into the wood.", "At the edge of the wood he had turned into the bushes and fallen in the brambles. 126. On 23 March 2006 the first applicant complained to the investigator in charge of the case that, in breach of section 86 § 2 of the law on detention, the four accused were sharing the same cell in prison no. 7 in Tbilisi. She argued that this gave them an opportunity to coordinate their stories to prevent the truth from emerging.", "She requested that the detainees be separated forthwith, in conformity with Article 161 § 1 of the CCP. 127. That same day the first applicant submitted the same request to B.A.-aia, the director of the Prisons Department of the Ministry of Justice, and also to the Chief Public Prosecutor. 128. On 30 March 2006 the first applicant complained to the Public Prosecutor’s Office that she had received no reply to her complaint of 23 March 2006.", "129. On 29 March 2006 the first applicant complained to the investigator in charge of the case that B.A.-aia, the above-mentioned director of the Prisons Department, who was also the brother of D.A.-aia, was making sure the four accused were as comfortable as possible in prison, inter alia, by allowing them access to alcohol and drugs. The detainees in the neighbouring cells would often hear them laughing and having a good time. The first applicant maintained that B.A.-aia was treating them like that to prevent them from incriminating his brother D.A.-aia. She requested that the authorities stop supplying the accused with drink and drugs and test them within 48 hours to detect the presence of alcohol and drugs in the bloodstream.", "She also requested authorisation to take part in this verification procedure as the civil party’s heir. 130. No action was taken on this complaint. 131. On 27 April 2006 the head of the Prison Department’s welfare service informed the first applicant that the four accused had indeed been placed in the same cell from 8 to 23 March 2006, because of renovation work in Tbilisi’s prison no.", "7. Once the work was completed, they had been separated. The documents submitted to the Court by the Government for the hearing confirm that the accused were placed in the same cell. There is also documentary evidence that on 21 February and 25 March 2006 a company did some renovation work in prison no. 7.", "132. On 28 April 2006 section 86 § 2 of the law on detention was amended and the words “persons under investigation in the same criminal case shall be detained separately” were deleted. 133. The first applicant considered that the comfort and leniency clearly shown to the four accused by the authorities was designed to prevent them from incriminating the senior Ministry of the Interior officials and the Minister’s wife who had been at the Café Chardin. She submitted that, in actual fact, G.A.-ia, A.A.-uri and A.Gh.-ava, three of the accused, had gone to the café after being summoned there by telephone to punish her son for having insulted the Minister of the Interior’s spokesman.", "134. On 25 April 2006 the Tbilisi City Prosecutor’s Office asked the Department of Constitutional Security of the Ministry of the Interior, directed by D.A.-aia, for a copy of the criminal case file in which the Mercedes ML featured as evidence. 135. The file shows that the vehicle was seized on 19 October 2005 as having been acquired with the proceeds of crime. On 13 December 2005, when the investigation into the present case was under way, the owner of the car lodged a complaint with the Chief Public Prosecutor’s Office and the Minister of the Interior, claiming that on 6 December 2005 he had seen his car being driven in Tbilisi with new number plates (WAW – 293).", "He said he had followed the car and taken photos of it, and had asked the driver by what right he was driving a car known to have been seized. In response, the chauffeur had threatened him. Saying that he could identify the driver, the owner of the car demanded that an investigation be opened without delay. On 13 December 2005 the Chief Public Prosecutor’s Office referred the complaint to the Department of Constitutional Security of the Ministry of the Interior for “immediate verification”. However, the complaint was not followed up.", "On 4 February 2006 the investigator in charge of the case took the car keys from G.A.-ia to send the vehicle to Kutaisi and discovered that the seals had been broken. He immediately informed his superior in Kutaisi and asked him to take action. 136. On 1 May 2006, at the request of the investigator in charge of the case of Sandro Girgvliani and L.B.-dze, the Tbilisi City Court decided to dismiss the four accused from their respective posts in the Ministry of the Interior. 137.", "On 1 May 2006 the first applicant requested that the Minister’s wife, G.D.-dze, D.A.-aia, V.S.-dze, O.M.-ov, A.K.-dze and Th.M.-dze be heard again in her presence, given that the recording made by the surveillance camera at B. supermarket that she had managed to obtain did not reveal that O.M.-ov had gone there on the night in question. She pointed out that a similar request she had made on 13 March 2006 had been rejected on the grounds that the points raised had already been elucidated. She asked to be informed of the investigative measures which had helped elucidate the points raised in her complaint, as well as the conclusions that had been reached. 138. On 9 May 2006 her request was rejected because the people concerned had already been heard several times precisely to clarify the questions raised by the applicant in her complaint.", "To see the content of their statements she would have to wait for the case to be referred for trial, when she would have access to the criminal file. 139. On 3 May 2006 the investigator invited the applicants and the first applicant’s father to be questioned about the applicant’s public statement that someone, acting through a third party, had offered her family a sum of money in exchange for their silence. On 4 May 2006 the applicants and the first applicant’s father explained that they had expressed their indignation at such a proposal and that the person who had delivered the message could be risking his life if ever the truth were to come out. The person concerned had told them that if they did not accept the money and remain silent, their lives could be in danger.", "140. The file shows that on 3 May 2006 the prosecuting authorities offered the four accused, in the presence of their lawyer, a plea-bargaining arrangement. In particular, they were offered a suspended sentence in return for identifying any senior Ministry of the Interior official or other person who had had a hand in the crime. 141. According to the relevant video recordings, the four accused rejected that proposal.", "A.A.-uri replied: “Everyone who was there is now in prison.” A.Gh.-ava said: “I am naming no names, like I said the first time I was questioned, I know nothing and nobody was involved.” M.B.‑dze declared that nobody else, including the Minister of the Interior’s wife’s friends, was involved in the crime. After reading the offer in full, he repeated that, “dear to him as his freedom was”, he could not accept. G.A.‑ia said: “I cannot name any senior officials who were involved in the case.” The public prosecutor asked for an explanation. G.A.-ia said that he could not accept the offer. The public prosecutor asked him again: “You mean nobody else was involved – is that it?” G.A.-ia said yes.", "With the help of the public prosecutor and his lawyer, he stated in the record: “No member of the Ministry of the Interior or any other person was involved in this crime; so I cannot name anybody and must therefore reject the offer.” 142. On 18 May 2006, one of the mobile telephone operators gave the public prosecutor a CD with the list of numbers G.A.-ia had been in contact with on the night in question, showing the location of the antennas covering the various calls. The list showed that G.A.-ia had been near the “Chardin” antenna at 1.56 a.m. and that later, at 2.17 and 2.35 a.m., he had had two telephone conversations via the “Okrokana” antenna. At 2.54 a.m. he was already back in the centre of Tbilisi near the main square and the Café Chardin. For the other calls, the number G.A.-ia had spoken to was indicated, but not for the two above-mentioned calls.", "However, cross-checking this information with other information found in another volume of the case file shows that at 2.17 and 2.35 a.m. D.A.-aia called G.A.-ia in Okrokana. 143. On 16 May 2006 the four accused refused to have their statements verified at the scene of the crime. 4. The trial 144.", "On 21 June 2006 the preliminary investigation was closed. The first applicant and L.B.-dze were given five volumes of the criminal case file for consultation. On 22 June 2006 the whole case concerning both Sandro Girgvliani and L.B.-dze was sent before the Tbilisi City Court for trial. 145. On 20 June 2006 G.A.-ia, A.A.-uri, A.Gh.-ava and M.B.-dze were charged with wilful bodily harm resulting in death, and premeditated false imprisonment by a group of persons with life-threatening violence and destruction of another person’s property (Articles 119 and 143 § 2 (a), (c) and (h) and 187 § 1 of the Criminal Code).", "G.A.-ia was also charged with abuse of authority under Article 333 § 1 of the Criminal Code. Appended to the indictment was a list of the items of evidence collected by the prosecuting authorities during the investigation. 146. On 27 June 2006 the Tbilisi City Court commenced its examination of the case. As the first applicant had not had access to the materials in the case file during the investigation, in conformity with Article 69 (j) of the CCP, and had not been informed of the referral of the case for trial until 24 June 2006, she said she needed an extra three days to study the five volumes of the criminal case file and prepare her position.", "She pointed out in this connection that, unlike the civil party, the accused had had unrestricted access to the file throughout the preliminary investigation, in keeping with Article 76 § 3 of the CCP. 147. On 27 June 2006 her request was refused on the grounds that the first applicant and her lawyer had had access to the file during the investigation and after the case had been referred for trial, and they would have access to it throughout the trial. 148. At the hearing on 27 June 2006 L.B.-dze reiterated in full the various statements he had made during the investigation.", "He explained that he and Sandro Girgvliani had left the café together. G.A.-ia had also been armed and both he and A.Gh.-ava had beaten him. He had been forced at gunpoint to take his clothes off. His assailants had taken his clothes away, leaving him in his underpants and socks. He had not been fully able to identify O.M.-ov, but could only be 70% sure that the man in the photograph was one of the assailants (see paragraph 80 above).", "149. At the hearing on 29 June 2006 Th.M.-dze fully confirmed the various statements she had made during the investigation. In her opinion Sandro Girgvliani had guessed she was at the Café Chardin because he had heard the sound of the bongo drums during their telephone conversation (see paragraph 99 above). When she talked to Sandro Girgvliani at his table, she had her back to her friends and could not tell whether G.D.-dze had heard Sandro Girgvliani insult him. Th.M.-dze had not smoked any K-brand cigarettes.", "According to her, only the Minister’s wife had smoked those cigarettes. At the table nobody had asked whether G.A.-ia was supposed to join them. 150. On 30 June 2006 D.A.-aia fully confirmed the statements he had made during the investigation. Notably, he reiterated that the mobile phone he had used in the café was O.M.-ov’s, with his own SIM card in it, as the battery in his own mobile phone was flat.", "He added that the telephone number (8 77 79 89 60) that featured most frequently in the lists of calls made and received by each of the Ministry of the Interior officials present in the café that night was the number of a colleague of his called M-eli. 151. However, the criminal case materials contained a letter dated 2 March 2006 issued by the relevant mobile company, according to which the telephone number 8 77 79 89 60 belonged to a certain K.N.-dze from the limited liability company “Falko”. Furthermore, the records of the telephone calls made and received by some of the persons involved, which had been obtained by the investigation at various stages and included in the case file, disclosed that the number in question had been contacted during the night in question by: -G.A.-ia at 12.31 a.m., 1.04 a.m., 1.26 a.m., 1.46 a.m., 2.01 a.m. and 2.12 a.m.; -D.A.-aia at 1.28 a.m.; -G.D.-dze at 1.32 a.m., 1.36 a.m., 1.45 a.m.; -O.M.-ov at 1.26 a.m. and 1.27 a.m. In addition, those records also showed that G.D.-dze and V.S.-dze had contacted another telephone number – 877 76 76 90 – several times between 1.50 and 1.55 a.m., and that D.A.-aia had called G.D.-ze at 1.56 a.m. 152.", "Giving evidence on 30 June 2006, the Minister’s wife T.S.-aia fully confirmed the various statements she had made during the investigation. She added that she had not been told that G.A.-ia had also been invited to the party. D.A.-aia had often been on the telephone, but she had not heard what he was talking about because of the noise. 153. On 30 June 2006 V.S.-dze also fully confirmed the statements he had made during the investigation.", "He stated that he had learnt from D.A.‑ia that G.A.-ia had been supposed to join their party in the café. 154. Also on 30 June 2006, G.D.-dze fully confirmed the statements he had made during the investigation, adding that he had not been told that G.A.-ia had also been invited to the party (cf. paragraph 74 above). He also said that it was not impossible that D.A.-aia or someone else had used his telephone, which he had left on the table.", "At one point someone had called his number asking to speak to D.A.-aia. He himself had not made any calls to the accused. G.D.-dze also added that nobody had insulted him in the café. 155. In their testimonies on 30 June 2006, O.M.-ov and A.K.-dze fully confirmed the statements they had made during the investigation.", "O.M.‑ov said that he had been unaware that their group in the café had been waiting for G.A.-ia. A.K.-dze said that she could not really remember, but did not exclude the possibility that she had gone over to Sandro Girgvliani’s table to say something to Th.M.-dze. 156. At the hearing on 3 July 2006, L.Tch.-shvili confirmed the statements he had made during the investigation. He added that O.M.‑ov had called him from a number he did not recognise.", "157. Also on 3 July 2006, G.A.-ia confirmed the statements he had made during the investigation, adding that as Deputy Director of the Ministry of the Interior he had no need to receive instructions from anybody to arrest an individual who was breaking the law under his nose. He acknowledged, however, that as time passed the discussion had gone beyond the limits of a routine job. Sandro Girgvliani had insulted G.D.-dze’s mother and the “mothers of the KGB” who were inside the café. G.A.-ia said that he had not been carrying a gun that evening.", "On the way to Okrokana he had called G.D.-dze’s number to speak to D.A.-aia, whom he had been unable to contact by any other means. 158. On the same day A.A.-uri, A.Gh.-ava and M.B.-dze refused to testify and remained silent. 159. Still on 3 July 2006, the first applicant requested that the court, in conformity with Articles 69 (j), 439 § 4, 440 § 1 and 485 § 2 of the CCP, examine the following items of evidence publicly and with the participation of the parties (“the fourteen exhibits”): i. the video of the verification of L.B.-dze’s statements, recorded at the scene of the crime on 9 March 2006; ii.", "the video of the verification of G.G.’s statements, recorded at the scene of the crime on 22 March 2006; iii. the video of the verification of B.E.’s statements, recorded at the scene of the crime on 11 March 2006; iv-vii. the videos of 6 March 2006 showing L.B.-dze identifying G.A.‑ia, A.A.-uri, A.Gh.-ava and M.B.-dze; viii. the video of 8 March 2006 showing L.B.-dze identifying O.M.‑ov; ix. the video of 6 March 2006 showing L.B.-dze’s second interview; x. the video of 10 March 2006 showing L.B.-dze’s additional hearing; xi.", "the two video cassettes of 13 March 2006 showing Th.M.-dze’s additional questioning; xii. the compact disc containing the images recorded by the surveillance camera at the home of B.P., a wealthy businessman, on the road from Tbilisi to the Okrokana cemetery (the Tbilisi-Kojori road); xiii. four compact discs of 13 March 2006, with recordings of Th.M.‑dze’s additional questioning; xiv. a sketch tracing the presumed movements of Sandro Girgvliani at the scene of the crime. 160.", "On 3 July 2006 the court allowed this request only in respect of the exhibits numbered iii and xii above, but only ordered the publication of a written summary of the two video recordings concerned. The court pointed out that the people whose statements were recorded on the other CDs concerned had already been heard by the court. Furthermore, the records of these investigative measures, which had been filmed, were in the case file and the applicant had never challenged them. 161. On 5 July 2006 the first applicant requested that the evidence in the case file be made public and examined at the hearing, in keeping with Article 484 of the CCP.", "162. The court rejected that request on the same day, holding that the evidence had already been examined in public and it was not necessary to examine it again. 163. On 5 July 2006 L.B.-dze’s lawyer requested that the two mobile phone operators be asked to supply records of all the telephone calls made and received by the four accused but also by the seven people who had sat at the same table in the café as the Minister of the Interior’s wife. The first applicant joined in this request, arguing that the case file did not contain necessary information concerning telephone calls that might have been made between the four accused and their friends in the café, or between the accused, their friends in the café and V.S.-dze’s chauffeur waiting in the car.", "She maintained that without that information it was impossible to know whether G.A.-ia had really had an altercation with her son which had nothing to do with the Ministry of the Interior officials sitting in the café, or whether, as she suspected, after being insulted by her son the officials had called G.A.-ia to come and punish Sandro. 164. That request was rejected on 5 July 2006. 165. At the hearing on 5 July 2006 L.B.-dze asked to be heard again.", "He then said that now he had seen O.M.-ov again and listened to him and observed him when the court had heard him as a witness, he could now say with certainty that he was indeed the man who had joined the other assailants at the cemetery and participated, with particular cruelty, in the attack on him and Sandro. L.B.-dze further stated that he had also been observing M.B.-dze since the start of the trial and was now convinced that he had not been present in Okrokana. What he had said about the behaviour of the fourth man, who had arrived at the cemetery after the others, therefore concerned O.M.-ov and not M.B.-dze. L.B.-dze further explained that at the time of the investigation he had believed that the public prosecutor and he were on the same side. Later, however, he had realised that the prosecutor was strongly backing the hypothesis of an altercation between Sandro Girgvliani and G.A.-ia in the entrance to the café.", "During the different identification parades on 6 March 2006 the prosecutor had advised him not to request the assistance of a lawyer, as the suspects had just been arrested and no time should be lost. The prosecutor had also advised L.B.-dze that it would be “better” if he could not identify O.M.-ov. 166. On 5 July 2006 L.B.-dze was placed under investigation for intentionally perverting the course of justice with manifestly contradictory statements (see paragraphs 194-203 below). 167.", "On 5 July 2006 the president of the court decided to allow the parties an hour to prepare their closing statements. The first applicant protested that she needed a week, because she had not had time to familiarise herself properly with the case file, either between the time when the case was referred for trial and the start of the trial or during the actual trial, which had only lasted nine days. If she was to be able to defend her rights, she needed a week. 168. Her request was rejected.", "169. On 5 July 2006 L.B.-dze’s lawyer, having regard to the available records of a selection of the telephone calls made and received by G.A.‑ia, D.A-aia, G.D.-dze and O.M.-ov on the night in question, asked the judge to order the two mobile phone operators in Tbilisi to communicate the names of the subscribers with the telephone numbers 8 77 79 89 60, 8 77 48 48 45, 8 99 96 00 01 and 8 99 75 10 89 (see paragraphs 150-151 above). The first applicant additionally requested that the records of the phone calls of A.A.‑uri, A.Gh.-ava and M.B.-dze, as well as all those present at the Minister’s wife’s table, also be provided. The public prosecutor objected that that information had nothing to do with the charges. 170.", "The judge rejected these requests the same day. The lawyers then challenged the judge, arguing that if he did not consider it necessary to obtain information so important for the case, he was clearly partial and incapable of pronouncing a fair judgment. The judge rejected the challenge outright. 171. On 6 July 2006 the Tbilisi City Court, in view of the abrogation on 28 April 2006 of Article 119 of the Criminal Code, reclassified the offences as crimes under the new Article 117 § 6 of that code.", "It thus found G.A.‑ia guilty of premeditated false imprisonment by a group of persons with life‑threatening violence (Article 143 § 2 (a), (c) and (h) of the Criminal Code), wilful bodily harm resulting in death (Article 117 § 6 of the Criminal Code), abuse of authority (Article 333 § 1 of the Criminal Code) and destruction of another person’s property (Article 187 § 1 of the Criminal Code). A.A.-uri, A.Gh.-ava and M.B.-dze were found guilty of the crimes provided for in the above-mentioned Articles 143 § 2 (a), (c) and (h), 117 § 6 and 187 § 1. 172. G.A.-ia was sentenced to 8 years’ imprisonment (7 years under Article 143 § 2 (a), (c) and (h), 6 years under Article 117 § 6, 1 year under Article 333 § 1 and 1 year under Article 187 § 1 of the Criminal Code). The other three accused were sentenced to 7 years’ imprisonment each (6 years under Article 143 § 2 (a), (c) and (h), 6 years under Article 117 § 6 and 1 year under Article 187 § 1 of the Criminal Code).", "173. The prosecution appealed against that decision, asking for the sentences to be increased to eight and nine years respectively. The first applicant joined in the appeal, in conformity with Article 25 § 1 of the CCP. She did not consider it worthwhile lodging a separate appeal as the appeal court would have examined the case only within the framework of the charges specified in the first-instance judgment (Article 450 of the CCP) and would not have been able to reclassify them as aggravated murder (Article 109 of the Criminal Code) as she would have wished, or to refer the case for additional investigation (Articles 498 and 501-504 of the CCP). 174.", "On 18 July 2006 the offenders were placed in Avchala prison no. 10. 175. On 20 and 26 July and 11 September 2006 the first applicant appealed to the president of the court that examined the case at first instance and on 3 August 2006, to the president of the criminal section of that court, requesting access to the fourteen exhibits in the case file before it was sent to the Court of Appeal (Articles 69 (j) and 485 § 2 of the CCP). The president of the court did not reply.", "The first applicant reiterated her request on 11 September 2006. On 18 September 2006 she was told that the case file containing the exhibits had already been sent to the Court of Appeal. 176. On 6, 17 and 30 October, 24 November and 8 December 2006 the first applicant asked the Tbilisi Court of Appeal to give her access to the fourteen exhibits in question. She pointed out that on 3 July 2006 the court of first instance had rejected the same request and that she had applied in vain to the president of the court on 20 and 26 July and 11 September 2006.", "She argued that without access to the evidence concerned she would be unable to properly defend her rights in the appeal proceedings. 177. No reply was received to any of these requests, except that of 8 December 2006, which was rejected on the same day. The applicant later challenged that decision, together with the appeal court’s judgment, on points of law. 178.", "On 8 December 2006 the applicant asked the Court of Appeal: - to order the two mobile phone operators to produce the records of the telephone calls made and received between midnight and 12 noon on 28 January 2006 on the telephone numbers of the four accused, the seven people who were at the same table in the café as Th.M.-dze, and also L.Tch.-shvili, stating the location of the corresponding antennas; - to give her access to the recording made by the surveillance camera at the home of a wealthy businessman on the road to Okrokana between midnight and 12 noon on 28 January 2006. The applicant explained that only a recording covering the period between 2 and 3 a.m. had been included in the case file by the investigating authorities and that did not show the traffic using that road before 2 a.m. and after 3 a.m.; - to question G.D.-dze, Th.M.-dze, T.S.-aia and A.K.-dze in order to double-check the telephone numbers these people had used on the night in question. 179. On 8 December 2006 the applicant’s request was rejected. 180.", "On 8 December 2006 the applicant asked the Court of Appeal to summon the two Ministry of the Interior investigators who had been in charge of the investigation prior to 5 March 2006, to question them about the records they had seized from the mobile phone companies but not included in the case file. She also asked the Court of Appeal to obtain those records and any other evidence the investigators might have gathered and not included in the case file. 181. Her request was rejected. 182.", "On 11 December 2006 the four accused refused to attend the hearing and informed the Court of Appeal that they would be represented by counsel. 183. On the same date, 11 December 2006, the Tbilisi Court of Appeal upheld the first-instance judgment in full. Concerning L.B.-dze’s identification of O.M.-ov, it found the allegation ill-founded, pointing out that, in any event, M.B.-dze had confessed to being the fourth assailant, who had arrived last at the cemetery. Lastly, the Court of Appeal explained that the court of first instance would not have been able to examine the question of O.M.-ov’s involvement anyway, as O.M.-ov was not concerned by the criminal case as referred for trial (Article 450 of the CCP).", "184. On 19 December 2006 and 4 January 2007, the first applicant applied to the Court of Appeal to give her access to the fourteen exhibits, to enable her to defend her rights at least in cassation. She received no reply. 185. On 21 December 2006 the first applicant applied to the Principal State Prosecutor, requesting the investigators who had been in charge of her son’s case to be placed under investigation for abuse of authority and destruction of evidence.", "In particular she maintained: - that the offenders’ deeds had been deliberately misclassified as wilful bodily harm resulting in death, when her son had in fact been the victim of a crime under Article 109 of the Criminal Code, namely aggravated murder (committed by a group, with particular cruelty, out of self-interest, to order); - that the investigating authorities had failed to consider the possibility suggested by various aspects of the case that D.A.-aia, V.S.-dze, G.D.-dze, O.M.-ov, T.S.-aia, Th.M.-dze and A.K.-dze or any one of them had been involved in the crime; - that the investigating authorities of the Ministry of the Interior in charge of the investigation between 28 January and 5 March 2006 had destroyed evidence. In particular, the applicant alleged that she had obtained, by chance, a copy of the decisions of 31 January and 1 February 2006 in which the Tbilisi City Court found lawful such investigative measures as requiring the mobile phone companies to submit the records of all the phone calls made and received between 10 January and 31 January 2006 on the telephones of A.Gh.-ava and M.B.-dze. However, the records of those calls, the records of their seizure, the investigators’ request for the Tbilisi City Court to allow the seizure and the two decisions mentioned above had not been included in the case file, so the court had not been able to examine them. As they were missing from the case file, the applicant presumed that the evidence must have been destroyed or concealed. In its stead, on 11 May 2006 the investigating authorities of the Tbilisi City Prosecutor’s Office had placed in the case file, for the same telephone numbers, a selection of the records of the calls concerned, namely, those made between 1.28 and 2.58 a.m. on 28 January 2006.", "That incomplete information, however, did not serve the purpose of an effective investigation. 186. The Chief Public Prosecutor having failed to reply, the applicant reiterated her request on 16 February 2007, demanding a prompt reply. 187. The Chief Public Prosecutor again failed to reply.", "188. On 11 January 2007 the first applicant lodged a cassation appeal against the appeal judgment of 11 December 2006 and all the procedural decisions pronounced in the appeal proceedings, including the decision of 8 December 2006 denying her access to the different items of evidence. In particular, she asked for the judgment of the Court of Appeal to be quashed, the procedural decisions set aside and the case referred to the Tbilisi Court of Appeal for fresh examination. The applicant stressed that her aim was to have a full and exhaustive investigation carried out. If this had been done earlier, the complicity between the four accused and the Minister’s wife’s friends in the café would have been demonstrated.", "189. On 16 February 2007 the first applicant asked the Supreme Court of Georgia, when examining her appeal, to grant her access to the fourteen exhibits. She reiterated that without examining that evidence she would not be able to defend her interests as a civil party (Articles 15 §§ 3 and 5, 69 (k), 447 § 1 and 485 § 2 of the CCP). Her request went unanswered. 190.", "L.B.-dze and the four convicted persons also lodged cassation appeals. 191. On 27 July 2007, the Supreme Court of Georgia, acting as final court of appeal, found that the guilt of the four officials concerning the destruction of another person’s property (Article 187 § 1 of the Criminal Code) had not been validly demonstrated and acquitted them of that charge, reducing each of their prison sentences by six months, but upheld the remainder of the earlier judgment. 192. Concerning the complaint about the repeated refusal of access to evidence, the Supreme Court noted that the matter had been examined at first instance and that there had subsequently been no particularly important grounds to justify its further examination in application of Article 553 § 4 of the CCP.", "In addition, no appeal had been lodged against the decisions of the court of first instance. Lastly, the purpose of the first applicant’s demands had mainly been to prosecute persons external to the criminal case in point as brought against the four accused persons. However, a court was not a criminal prosecution body under Articles 15 § 5 and 439 § 3 of the CCP and the scope of its deliberations was confined to the charges in the indictment (Article 450). 193. The Supreme Court’s decision was served on the parties and the civil parties on 30 July 2007.", "5. Criminal proceedings against L.B.-dze for perverting the course of justice 194. After accusing O.M.-ov at the hearing on 5 July 2006, L.B.-dze was charged with perverting the course of justice by making manifestly contradictory statements (Article 371-1 of the Criminal Code). 195. On 11 July 2006 he was questioned in this connection in the presence of his lawyer.", "He explained that at the different identification parades on 6 March 2006 (see paragraph 56 above) he had not been assisted by any lawyer who could have advised him. The investigator, on the other hand, had impressed on him that it would be “extremely serious if he identified the wrong person and that he should think carefully”. L.B.-dze had been able to identify G.A.-ia without any doubt. The investigator had then told him that for the other suspects it would be sufficient for him to say whether there was a physical resemblance. L.B.-dze remembered that when he had been invited into an MP’s office he had said that the man in the photograph looked like the fourth man, who had arrived later at the cemetery, but as he was not certain, he preferred not to incriminate him.", "He had not really been able to dispel his doubts until he had seen O.M.-ov give evidence in court. Only then had he been convinced, by the way O.M.-ov moved and spoke, that he was indeed the fourth assailant. To make absolutely sure, however, he had borrowed a video recording of O.M.-ov’s hearing from the first applicant which had apparently been made in secret. After watching the recording several times, L.B.-dze had been able to identify O.M.-ov with certainty. He repeated that he could not exclude the possibility that there had been more than four assailants at the cemetery, but he had only seen four.", "L.B.-dze pointed out that he had said several times in court that he did not know who M.B.-dze was. He also specified that on 6 March 2006 he had not identified that person as the fourth assailant (see paragraph 60 above). The fourth assailant had kicked him in the face, held a gun against his head and eye and threatened to kill him, and pistol-whipped him. He had then gone over to hit Sandro Girgvliani before coming back to him again. According to L.B.-dze, when it was all over and he found himself alone with his assailants, O.M.-ov had suggested to his friends that they take a photograph of their bruised and naked victim with a mobile phone.", "196. At the end of the record of that interview it is mentioned that the lawyer had wanted to ask L.B.-dze some additional questions, but the investigator would not authorise it. 197. On 12 July 2006 L.B.-dze, as an accused person, requested that criminal proceedings be brought against O.M.-ov, with himself as a civil party, and that a thorough medical check-up be carried out to determine how serious the after-effects of the ill-treatment he had suffered on 28 January 2006 were. 198.", "On 13 July 2006 his request was rejected, on the grounds that the criminal case being investigated was against L.B.-dze, for perverting the course of justice, not against O.M.-ov. The right of application to the prosecuting authorities was explained to him. 199. On 22 July 2006 O.M.-ov was questioned as a witness in the case. He said that at around midnight on 27 January 2006 D.A.-aia had called him in his office and asked him to go down to the courtyard of the Ministry so they could take the official car together.", "They were already in town when D.A.-aia told him that he was going to the Café Chardin to wish V.S.-dze a happy birthday. As D.A.-aia’s mobile phone battery was flat O.M.-ov lent him his and D.A.-aia put his SIM card in it. In the café O.M.-ov found the Minister’s wife, the young women mentioned earlier and V.S.-dze. O.M.‑ov ordered an alcoholic beverage. About an hour and a half after they arrived in the café, the Minister’s wife asked him to go and find her some K-brand cigarettes, a brand they did not stock in the café.", "D.A.-aia gave him his car keys. He had been drinking, however, and did not want to drive, so, using G.D.-dze’s mobile phone he called V.S.-dze’s chauffeur to drive him. Before leaving the café, he went to the toilet. Outside, he met V.S.-dze’s chauffeur, who took him away in D.A.-aia’s car in search of cigarettes. They bought the cigarettes from a night vendor near the B. supermarket.", "He then went back to the café. He must have been away for 20-25 minutes. According to O.M.-ov, the statement made by L.B.-dze on 5 July 2006 was untrue and merely the result of pressure brought to bear by the first applicant and anti-Government activists. 200. On 6 July 2006 the first applicant applied to the Chief Public Prosecutor requesting that, in the light of L.B.-dze’s statement of 5 July 2006, and in conformity with Articles 22, 261 and 263 § 1 of the CCP, O.M.-ov be arrested immediately as a prime suspect and placed under investigation, and that she be given status in the case as the civil party’s heir.", "She requested that the case be taken away from the Tbilisi City Prosecutor’s Office, which had failed to conduct an effective investigation, and that the Chief Public Prosecutor’s Office take charge of the investigation of O.M.-ov’s case. 201. On 11 July 2006 her request was referred to the Tbilisi City Prosecutor’s Office, which informed the first applicant on 25 July 2006 that, in the framework of the criminal proceedings against L.B.-dze, the statement he had made on 5 July 2006 would be verified and an “objective and lawful” decision taken. 202. On 3 August 2006 the first applicant requested that the criminal proceedings against L.B.-dze be taken out of the hands of the Tbilisi City Prosecutor’s Office for the reasons mentioned above and that the Chief Public Prosecutor’s Office take charge of the case.", "That request was rejected as unfounded by a prosecutor from the Chief Public Prosecutor’s Office on 4 August 2006. 203. Neither the first applicant nor her lawyer found out what the outcome of the criminal proceedings against L.B.-dze had been. On receiving the observations of the Government (see paragraphs 5 above and 294 below), the applicant party learned that the case had been discontinued. 6.", "Pardon and release on licence of the convicted persons 204. On 24 November 2008 the President of Georgia, along with pardoning 363 other prisoners, decided to grant G.A.-ia, A.A.‑uri, A.Gh.‑ava and M.B.-dze a measure of clemency and reduce the remainder of their respective sentences by half. 205. As that measure made them eligible for release on licence, the four men applied to the competent body in the Prisons Department of the Ministry of Justice on 14 August 2009 to be released. According to the certificates appended to their requests by the prison authorities, the men’s behaviour had been good (calm, courteous and on good terms with the prison authorities) and none had received any reprimand while in detention.", "Based on a unanimous favourable decision of the board on 21 August 2009, which described the crime committed by G.A.-ia, A.A.-uri, A.Gh.-ava and M.B.-dze as “physical aggression towards other persons which resulted from a verbal altercation” (“urTierTSelaparakebis niadagze fizikuri Seuracxyofa miayenes moqalaqeebs”), the Tbilisi City Court decided, on 5 September 2009, to release the four convicts on licence. It noted in particular that the men had served two-thirds of their sentences as reduced on 24 November 2008 (Article 72 § 8 of the CCP), and took their good behaviour into account. In the court’s opinion their continued detention was no longer necessary to reform them. 7. Claim for damages 206.", "On 6 July 2009 the second applicant applied to the Tbilisi City Court requesting that the four men be ordered to pay him 200,000 Georgian laris ((“GEL), approximately 84,000 euros (“EUR”)) for the non-pecuniary damage he had suffered. He said that the pain caused by the murder of his only son and the ill-treatment inflicted on him before he died was a source of immeasurable suffering that would remain with him all his life. 207. To have his claim examined the second applicant had to pay a State tax of GEL 3,000 (approximately EUR 1,262). 208.", "By a judgment of 5 February 2010, the four individuals were ordered, in first instance, jointly to pay the applicant GEL 40,000 (approximately EUR 16,832) in respect of non-pecuniary damage. It was also decided to refund GEL 600 (approximately EUR 254) of the State tax he had had to pay. 209. As submitted by the applicants on 23 December 2010 and confirmed by the Government on 24 February 2011, the Tbilisi City Court’s judgment of 5 February 2010 had by that time become final and enforceable. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. The Criminal Code 210. The Amendment Act of 28 April 2006 amended Articles 109, 117, 119, 143, 187, 333 and 371-1 of the Criminal Code. The relevant provisions of the Code read as follows: Article 59 §§ 1 and 4 (as in force prior to the amendment of 29 December 2006) “Where several crimes are committed, sentences shall be pronounced for each crime. If the crimes committed include lesser offences as well as serious or particularly serious crimes, the harshest sentence shall absorb the lighter one, or the sentences for each crime shall be added together, in part or in full, in order to determine the final sentence.", "However, the final prison sentence shall not exceed 20 years.” Article 59 § 1 (as amended on 29 December 2006) “Where several crimes are committed, sentences shall be pronounced for each crime, then added together to determine the final sentence.” In conformity with Article 12 §§ 2 and 3 of the Criminal Code, the crimes provided for in Articles 117 § 6 and 143 § 2 are serious crimes, whereas those provided for in Articles 187 § 1 and 333 § 1 are lesser criminal offences. Article 108 – “Murder” “Murder shall be punishable by 7 to 15 years’ imprisonment.” Article 109 (as in force prior to the amendment of 28 April 2006) – “Aggravated murder” “Murder (...); (f) with particular cruelty; (...) (h) by a group; (i) out of self-interest or to order; (...) shall be punishable by 10 to 20 years’ or life imprisonment.” Article 117 (as amended on 28 April 2006 and applied in the instant case) – “Wilful grievous bodily harm” “1. Wilful grievous bodily harm (...) which is life-threatening (...) shall be punishable by 3 to 5 years’ imprisonment. 2. When it results in death, wilful grievous bodily harm shall be punishable by 4 to 6 years’ imprisonment.", "(...) 5. Wilful grievous bodily harm committed (...); (e) by a group; shall be punishable by 7 to 9 years’ imprisonment. 6. The offence provided for in the preceding paragraph, when it results in death, shall be punishable by 8 to 10 years’ imprisonment. 7.", "Wilful grievous bodily harm committed: (a) on two or more people; (b) with particular cruelty; (c) out of self-interest or to order; (...) shall be punishable by 9 to 12 years’ imprisonment. 8. The offence provided for in the preceding paragraph, when it results in death, shall be punishable by 10 to 13 years’ imprisonment.” Article 119 (abrogated on 28 April 2006) – “Bodily harm resulting in death” “Wilful grievous or less serious bodily harm resulting in death shall be punishable by 3 to 10 years’ imprisonment.” Article 143 §§ 2 and 3 (as in force prior to 28 April 2006) – “False arrest” “2. False arrest (a) by a group, with premeditation; (...) (c) of two or more people; (...) (h) with life- or health-threatening violence (...); shall be punishable by 3 to 10 years’ imprisonment. 3.", "The offence provided for in the preceding paragraph, (a) when committed by an organised group; (b) when it results in the death of the victim (...) ; shall be punishable by 5 to 15 years’ imprisonment.” Article 187 § 1 (as in force prior to the amendment of 28 April 2006) – “Destruction of another person’s property” “Destruction of or damage to another person’s property, resulting in substantial loss, shall be punishable by 100 to 180 hours’ community service or up to one year’s correctional labour or up to 3 years’ imprisonment.” Article 333 § 1 (as in force prior to the amendment of 28 April 2006) – “Abuse of authority” “Abuse of authority by a public official (...) which substantially adversely affects the rights of a natural person or other legal entity or the legal interests of society or of the State shall be punishable by a fine (...) or up to 3 years’ imprisonment, and up to 3 years’ disqualification from holding public office (...)” Article 371-1 (as amended on 28 April 2006) – “Substantially contradictory statements by a witness or a civil party” “1. Wilful perversion of justice by a witness or a civil party by substantially contradictory statements shall be punishable by a fine or by 1 to 3 years’ imprisonment. 2. The same offence committed out of self-interest or for another private motive shall be punishable by 2 to 4 years’ imprisonment (...)” B. The Code of Criminal Procedure (“the CCP”), as it stood at the material time 211.", "Pursuant to Article 62 §§ 1 and 2 of the CCP, whilst criminal investigations are normally carried out by the Ministry of the Interior, an investigation into an offence implicating, inter alia, a policeman, an investigator or a senior military or special law-enforcement officer should be entrusted to the Public Prosecutor’s Office. Pursuant to Article 68 § 2 of the CCP, if a crime resulted in the death of the victim, civil party status should be granted to one of his close relatives. If several relatives share the same bloodline with the deceased victim, the relatives should agree amongst themselves who should act as the civil party. Article 347 § 2 of the CCP, which enumerated the rights and responsibilities of a victim or a witness participating in an identification parade, was silent about whether the victim or witness was to be assisted by a lawyer during that investigative action. Pursuant to Articles 498 and 501-504 of the CCP, the trial court is empowered to examine the case only within the scope of the charges as brought by the public prosecutor in the indictment, and to deliver either an acquittal or a conviction on the basis of the indictment and the available case materials.", "The trial court may not remit the case for additional investigation, unless the prosecutor personally decided to seek an aggravation of the criminal liability during the trial. The other relevant provisions of the CCP read as follows: Article 25 § 1 “The civil party and their counsel shall have the right to join the proceedings brought by the public prosecutor.” Article 69 “The civil party (...) shall have the right: (...) ; (i) to take part in the investigative measures carried out at their request; (j) to acquaint themselves with a copy of the full criminal case file and all the evidence once the case has been referred for trial; (...) (m) to take part in the judicial examination of the case, by submitting evidence and by examining the evidence produced by the other parties (...)” Article 261 “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 263 § 1 “The preliminary investigation shall be opened on the basis of the information concerning the commission of the crime brought to the attention of the investigator or the public prosecutor by a natural person or other legal entity, (...), reported in the media, or brought to light during the investigation of a case by the authority in charge of the investigation (...)” Article 439 § 4 “The court shall guarantee the requisite conditions for the presentation and examination of evidence by the parties, while observing its duty to be impartial (...)” Article 440 §§ 1 and 3 “During the examination of the case, the court of first instance shall ensure the examination of the evidence by (...) studying it and, where necessary, by reading out the records of investigative measures or other documents. The material in the file of the preliminary investigation may be made public during the judicial examination of the case only in those cases provided for in the present code.” Article 450 “The court shall examine the case within the framework of the charges brought against the accused, except when the prosecution changes the charges in favour of the accused.” Article 484 §§ 1 and 3 “At the request of the parties or at the initiative of the court, the clerk of the court shall read out the material collected in the file of the preliminary investigation and the records of the investigative measures. At the same time the question of the reliability, relevance and admissibility of these items of evidence shall be examined.", "The documents presented by the parties shall be read out and placed on file.” Article 485 § 2 “The items of material evidence placed in the file during the preliminary investigation as well as any such evidence submitted to the court by the parties (...) shall be examined by the court in the courtroom with the participation of the parties. (...)” C. The practice of application of sentences for the offences in question, as submitted by the parties 212. As disclosed by the Government’s submissions, supported by a summary of the relevant official statistical data issued by the relevant department of the Supreme Court of Georgia, in 2006 three persons were convicted of wilful grievous bodily harm resulting in death (Article 117 § 6 of the Criminal Code), all of them being sentenced to eight years’ imprisonment without remission. 213. In the same year, 199 persons were convicted of false arrest by a group, with premeditation and life- or health-threatening violence (Article 143 § 2 of the Criminal Code), 105 of whom were given suspended prison sentences.", "The duration of those sentences varied from one to eight years – 78 persons were sentenced to three years in prison, 36 persons to four years and 44 persons to five years. In 2007, the prison sentences imposed for the same crimes varied between three and seven years. 214. Still in 2006, 32 persons were convicted of abuse of authority (Article 333 § 1 of the Criminal Code). 17 of them were sentenced to two years’ imprisonment without remission and 15 were given suspended prison sentences.", "Only on two occasions was the penalty of disqualification from holding public office also pronounced. 215. The Government also submitted numerous (more than 30) judgments delivered by various courts of first instance in 2006 under, inter alia, the above-mentioned three provisions of the Criminal Code. However, the voluminous information contained in those judgments was not presented in an analytical and pertinent summary, nor was it clear whether those judgments were ever upheld by the upper courts and thus became binding in their initial wording. 216.", "In reply to the Government’s submissions, the applicants likewise submitted numerous decisions delivered by the Supreme Court in 2006‑2008 upholding the lower courts’ convictions under various provisions of the Criminal Code, including Articles 117 § 6, 143 § 2 and 333 § 1. The major part of that voluminous information was not presented in an analytical and pertinent summary and was thus barely comprehensible. 217. However, amongst those decisions, as the applicants emphasised themselves, there were those concerning the case of G.Z.-dze, which attracted publicity in Georgia. Notably, as disclosed by the relevant case materials, in the course of a verbal altercation with a stranger in the street, the fourteen-year-old boy stabbed the stranger in the right shoulder with a folding pocket knife.", "A subsequent forensic medical report confirmed the injury inflicted was of a superficial nature and did not cause any serious damage. The act was classified as attempted murder, and the boy was sentenced by the Tbilisi Court of Appeal’s decision of 19 March 2007 to seven years’ imprisonment without remission. The Supreme Court of Georgia left that conviction intact by its final decision of 1 November 2007. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 218.", "The applicants complained under Article 2 of the Convention that their son had been killed by senior officers of the Ministry of the Interior and that the relevant authorities had failed to conduct an effective investigation. Article 2 of the Convention reads as follows: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.", "Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” 219. Noting that the applicants complained of a violation of both the substantive and procedural limbs of Article 2 of the Convention, the Court considers it appropriate to address first the procedural part of that provision. A. Admissibility 220. The Court notes that the complaints under Article 2 of the Convention 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. As to whether the investigation into the death was effective (a) The Government’s arguments 221. The Government submitted that the investigation into the death of the applicants’ son had fully met the requirements of impartiality and thoroughness, as required by Article 2 of the Convention.", "The obligation to conduct that investigation was one of means only, not of result. As regards impartiality, they argued that the Ministry of the Interior had been competent to carry out the investigation between 28 January and 5 March 2006 by virtue of Article 62 of the CCP, given that not the slightest suspicion implicating an agent of that Ministry had existed at that time. Such a suspicion emerged only on 5 March 2006, and the case was then immediately transferred to the Public Prosecutor’s Office. 222. Even the manner of the implementation of the relevant investigation measures by the Ministry of the Interior excluded, according to the Government, any doubt as regards the impartiality of the investigators in charge of the case.", "For instance, all the actions aimed at the identification of the car which had been used in the commission of the crime had been duly undertaken in good time, and when D.A.-aia, Director of Constitutional Security, had learnt from one of his officers that G.A.-ia, his Deputy, had shown an interest in a similar car, a silver Mercedes ML, which had been seized as an item of evidence in an unrelated criminal case, the Director had proved his vigilance by drawing the logical inferences and immediately reporting the matter to the Minister of the Interior. Indeed, as it later turned out, G.A.-ia, A.A.-uri and A.Gh.-ava had left the Ministry of the Interior in the vehicle concerned at around 1.00 a.m. on 28 January 2006, whilst the seized records of the relevant mobile telephone numbers established that G.A.-ia’s mobile phone had been in communication through the antennas near Okrokana cemetery between 2.00 and 3.00 a.m. That highly sensitive information was immediately reported to the Minister of the Interior who, in his turn, transmitted it to the Chief Public Prosecutor. 223. For the Government, the fact that certain items of evidence collected during the investigation had not eventually been included in the criminal case file, notably the records of the telephone calls made and received by M.B.-dze and A.Gh.-ava which had been seized on the basis of the court decisions of 31 January and 1 February 2006 (see paragraph 185 above), did not detract from the impartial and comprehensive character of the investigation. That was so because, first, the missing evidence was not important for the examination of the case, and, second, it was never too late to collect that information again, as the records of the relevant calls were stored in the database of the relevant mobile phone companies.", "224. The Government also claimed that all the persons with whom the four perpetrators had been in communication by telephone on 28 January 2006 between 12.00 a.m. and 15.00 p.m. had in reality been duly identified and questioned. However, as those persons appeared not to have been implicated in the crime, the records of the questioning had been filed in a separate, confidential “operational dossier” which could not be disclosed for legitimate privacy considerations. 225. The Government further submitted that the applicants’ fears that the placement of the four accused in the same cell of prison no.", "7 between 8 and 23 March 2006 had thwarted the effective conduct of the investigation were ill-founded. Their placement in the same cell had been necessary because of construction work and the shortage of free cells in that prison at the material time. Given the political scandal which the death of the applicants’ son had triggered in the country, the accused could not have been transferred to any other prison, as only prison no. 7, with its particularly strict security regime, could ensure the requisite level of safety for them. Nor could the accused have been placed in cells with other inmates, all of whom, being mafia bosses, represented a clear danger for the detained law-enforcement agents.", "In any event, the Government argued, the four accused had been questioned on 6 March 2006, that is before their placement in the same cell on 8 March. Furthermore, it could not be reasonably assumed that the four accused had coordinated their stories in the cell, as they had remained silent throughout the proceedings. 226. The Government further stated that the applicants’ allegation that “certain other” persons had been involved in the crime was totally unsubstantiated. In fact, all the persons directly or indirectly connected with the circumstances surrounding the crime had been duly identified and questioned; those persons’ concordant statements corresponded to the findings reached on the basis of other evidence.", "The Government also emphasised that the relevant domestic authorities had gone so far in their diligence to uncover the truth that they had offered the four perpetrators a plea bargain in exchange for identifying other potential suspects. 227. The Government added that L.B.-dze had not been assisted by a lawyer during the various identification parades because he had waived that right, and the relevant domestic law (Article 347 of the CCP) did not oblige the authorities to provide him, as the victim, with mandatory legal assistance. 228. As to the possibility for the applicants to have access to the case materials and to participate in the investigation measures, the Government conceded that they, as the civil party, did not have such a right during the investigation stage.", "However, the Government considered that the principle of the equality of arms did not apply to their situation, given that it applied only between the defence and the prosecution, not the civil party. The Georgian system of criminal procedure was not, as the Government put it, “a system of revenge of the victim against the perpetrator of the crime”; the perpetrators were not responsible to the victim but rather to society as a whole. Consequently, the interests of the victim were subsumed by those of a public prosecutor, whose participation was sufficient to safeguard the victim’s rights under Article 2 of the Convention. 229. That being said, the victim, after having obtained civil party status, could also claim certain procedural rights, such as the right to be informed of the development of the investigation as well as to assist the prosecutor in the establishment of the truth.", "However, the civil party’s rights should not be equated with those of the main parties to the proceedings – the accused and the prosecutor. In the present case, the Government continued, the first applicant, being granted the standing of heir to the civil party, had the right to present additional items of evidence, to participate in the examination of the collected evidence, to file various procedural motions, including requests to remove various agents of the State from the investigation, to express her opinion on any question pertinent to the investigation and so on. The Government concluded that Article 2 of the Convention did not entitle the relatives of the deceased to have an unlimited access to all the case materials during the investigation stage, and the fact that, in the present case, the first applicant had been able to obtain that access at the trial stage sufficed for the purposes of an effective investigation. 230. The Government also added that the applicants’ lack of access to the fourteen exhibits had not posed a real problem, given that during the trial they had been granted access to the written records of all those investigative measures which had been filmed on video.", "231. Lastly, the Government submitted that the prison sentences imposed were in proportion to the gravity of the crime committed by the perpetrators, who, furthermore, would not be allowed to occupy a post in the public service for several years after their liberation. The Government also commented that in 2006 only one person convicted of abuse of public authority under Article 333 § 1 of the Criminal Code had been punished by disqualification from holding public office (see paragraph 214 above). (b) The applicants’ arguments 232. The applicants submitted that, by virtue of Article 62 § 2 of the CCP, the Ministry of the Interior should not have carried out the initial stage of the investigation, given that there had existed a suspicion that its senior officers were implicated in the offence.", "The circumstances of the case reveal that the Ministry had suspected the involvement of some of its officers, notably G.A-ia, A.Gh.-ava and M.B.-dze, by 31 January 2006 at the latest. The applicants maintained that, apart from manifestly lacking the requisite objectivity and impartiality, the investigation was not thorough due to the following serious omissions. 233. First, the applicants complained that the records of the mobile telephone calls made and received by each member of the Minister of the Interior’s wife’s group in the Café Chardin during the night in question had never been seized in their entirety by the authorities. They further deplored that only a selection of the calls made and received by the four convicts had been included in the criminal case file and that the investigation did not consider it necessary to seize the images from the surveillance camera on the Tbilisi-Kojori road showing what happened after 3.00 a.m.", "It was important to secure the recordings made after that time as well, in order to verify whether anybody from the Ministry of the Interior might have gone up to the scene of the crime to destroy the evidence. The applicants also complained that the investigation had failed to establish who had been the owner of the telephone number 8 77 79 89 60 with whom both the four convicts and some senior officers from the Minister of the Interior’s wife’s group in the café had been in regular communication during the night in question. Notably, that number had been dialled by G.A.-ia at 2.12 a.m., that is shortly after Sandro Girgvliani and L.B.-dze were kidnapped. 234. The applicants also drew the Court’s attention to the fact that the bouncers at the Café Chardin had not confirmed seeing any incident between their son and G.A.-ia in the entrance to the café.", "Furthermore, since it was established that O.M.-ov had left the café at exactly the same time as Sandro, he would have witnessed any such incident. The explanation that O.M.-ov had left the café to buy cigarettes for the Minister’s wife was not convincing either, since the Minister’s wife had had two packets of cigarettes at the start of the evening and two hours could hardly have been enough time to have smoked all of them. 235. The applicants reiterated their complaint that the four convicts had been placed in the same cell for fifteen days during the initial stage of the investigation, which unlawful measure had allowed them to coordinate their false stories. In addition, the exceptional comfort they were allowed by the prison authority could also be understood as having been aimed at discouraging them from disclosing the truth.", "236. The applicants also complained that O.M.-ov had not been placed under investigation despite having been identified, on several occasions, by L.B.-dze as one of the perpetrators. The authorities had refused to follow the second line of enquiry, according to which G.A.-ia had not had any independent altercation with the applicant’s son but had been summoned by somebody from the Minister of the Interior’s wife’s group to punish Sandro Girgvliani for having insulted G.D.-dze. The applicants deplored that the investigative authorities had not given due consideration to that very serious allegation. 237.", "Another serious cause for concern was the fact that the applicants had not been granted access, at any stage of the criminal proceedings, to the fourteen exhibits. That omission was not only unlawful (see Articles 69 § (j), 439 § 4, 440 and 485 § 2 of the CCP) but also deprived them of the possibility of identifying and pointing out discrepancies between the video recordings of various investigative measures and the relevant written records of those measures. Furthermore, there were clear indications that the investigators in charge of the case had destroyed important pieces of evidence. For instance, whilst it was known that the investigators had obtained on 31 January 2006 the records of all the phone calls made and received by A.Gh.-ava and M.B.-dze between 10 January and 31 January 2006, which information had then been allowed by the domestic courts as evidence, those records had never been included in the criminal case file. However, access to that information was crucial for the applicants, as it could have discredited the official version of the investigation concerning the role of those two persons in the commission of the crime.", "238. In reply to the Government’s argument, the applicants stated that the prosecution authority’s powers in conducting the investigation were no compensation for the impossibility for the civil party to exercise its own procedural rights. First, nothing could ever remedy the applicants’ lack of access to the case materials during the investigation, as a result of which they had been totally unaware of what progress was being made and found themselves in the position of being unprepared for the trial. Even during the trial stage, the domestic courts did not afford them sufficient time and facilities to study the file in full. Furthermore, it was clear that the prosecution authority had never been on the applicants’ side, as it refused to grant any of their numerous requests to collect additional evidence and allow them to participate in various investigative measures.", "On the contrary, the relevant circumstances of the case clearly showed that the prosecution had formed a common front with the convicts against the civil party. 239. The applicants also complained that their son’s murder should have been classified by the domestic courts as aggravated murder (Article 109 of the Criminal Code) rather than wilful grievous bodily harm which resulted in death. The nature of the wounds inflicted on Sandro Girgvliani clearly showed that the perpetrator aimed to kill the victim by stabbing him with a knife. The intention to kill was also clear from the fact that one of the perpetrators had threatened the victims with a pistol and even fired it.", "The applicants also stated, without further explanation, that the amendment of 28 April 2006 to the Criminal Code was aimed at mitigating the liability of the four convicts. They further argued that the sentences imposed upon the convicts had been manifestly inadequate considering the gravity of the crime. Noting that the convicts had not been disqualified from holding public office in the future, as an additional punishment, the applicants submitted that it was not excluded that the murderers would one day again enter the public service. 240. Lastly, referring to various other documents in various volumes of the criminal case file and submitting the video recording of a hearing at first instance, the applicants complained about other inconsistencies in the investigation and reiterated that the trial had been conducted in unfair conditions.", "(c) The Court’s assessment i. General principles 241. The Court reiterates that Article 2 of the Convention imposes a duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. It also requires by implication that there should be an effective official investigation when individuals have been killed. The duty to conduct such an investigation arises in all cases of killing and other suspicious death, whether the perpetrators were private persons or State agents or are unknown (see Angelova and Iliev v. Bulgaria, no.", "55523/00, § 92, ECHR 2007‑IX, and Rantsev v. Cyprus and Russia, no. 25965/04, § 232, ECHR 2010‑... (extracts)). 242. The investigation must be effective in the sense that it is capable of leading to the establishment of the relevant facts and the identification and punishment of those responsible. The authorities must have taken the reasonable steps available to them to secure all the evidence concerning the incident.", "The investigation’s conclusions must be based on thorough, objective and impartial analysis of all the relevant elements. Furthermore, the requirements of Article 2 of the Convention go beyond the stage of the official investigation, where this has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law. While there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required measure of effectiveness. The national courts should not under any circumstances be prepared to allow life-threatening offences to go unpunished (see Mojsiejew v. Poland, no. 11818/02, § 53, 24 March 2009, and Esat Bayram v. Turkey, no.", "75535/01, § 47, 26 May 2009). 243. For an investigation to be effective, the persons responsible for and carrying out the investigation must be independent and impartial, in law and in practice. This means not only a lack of hierarchical or institutional connection with those implicated in the events but also a practical independence. The effective investigation required under Article 2 serves to maintain public confidence in the authorities’ maintenance of the rule of law, to prevent any appearance of collusion in or tolerance of unlawful acts and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility.", "In all cases, 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, for example, Ramsahai and Others v. the Netherlands [GC], no. 52391/99, §§ 321‑332, ECHR 2007‑...; Khaindrava and Dzamashvili v. Georgia, no. 18183/05, §§ 59-61, 8 June 2010; Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 222‑225, ECHR 2004‑III, and Güleç v. Turkey, 27 July 1998, § 82, Reports of Judgments and Decisions 1998-IV). ii.", "Application of these principles in the present case 244. It is undisputed that the investigation into the death of the applicants’ son was indeed carried out. However, having due regard to the relevant circumstances of the case, the Court has very serious misgivings about the integrity and efficiency of that investigation, which the Government have not been able to dispel either in their written observations or in their oral pleadings. (ά) As regards the part of the investigation carried out by the Ministry of the Interior 245. The Court notes that the very first investigative steps undertaken by the Ministry of the Interior after the discovery of Sandro Girgvliani’s body on 28 January 2006 established the following two facts – that the deceased’s and L.B.-dze’s presence in the Café Chardin had coincided with that of the Minister of the Interior’s wife’s group of friends, mostly consisting of senior officers from the same Ministry, and that upon leaving that café the two victims had been assaulted by unknown persons behaving like policemen (see the statements given by L.B.-dze and the café’s staff to the investigator on 28, 29 and 30 January 2006, paragraphs 24-30, 33 and 35 above).", "Furthermore, as disclosed by the early statements of Th.M.-dze, Sandro Girgvliani’s lady friend who had been a direct link between him and the Minister of the Interior’s wife’s group in the café, as well as by the investigator’s sudden interest in the telephone numbers dialled and received during the relevant period by G.A.-ia, by 31 January 2006 at the latest the investigator already knew about the connection between the applicants’ son and the above-mentioned group and had certain grounds to suspect G.A.‑ia, First Deputy Director of Constitutional Security (see paragraphs 40 and 41 above). In addition, as alleged by the applicants and conceded by the Government themselves, on 31 January and 1 February the investigator had also seized the records of the telephone numbers which had been in communication with A.Gh.-ava and M.B.-dze, which fact proves that the investigator had already developed some suspicion by that time against those two law-enforcement officers, too (see paragraphs 185 and 223 above). 246. However, despite those circumstances implicating the representatives of the Ministry of the Interior from the early stage of the investigation, the same authority remained in charge of the investigation for a significant period of time, until 5 March 2006 (see paragraph 49 above). During that period, the Ministry conducted numerous important investigative actions, such as questioning relevant witnesses, collecting data about the mobile telephone numbers which had been in communication at the material time via the relevant antennas in Tbilisi, including, as noted above, the numbers of the Ministry officials concerned, seizing the recording from the surveillance camera along the Tbilisi-Kojori road, which piece of evidence later became crucial for the verification of the alleged involvement of O.M.-ov, and so on (see paragraphs 24-48).", "247. That institutional connection and even hierarchical subordination between the implicated senior officers of the Ministry of the Interior and the investigators in charge of the case is even more striking when assessed against the fact that D.A.-aia, a member of the Minister’s wife’s group in the café and, at the same time, G.A.-ia’s direct superior, was subsequently the person responsible in the Ministry for the investigation of Sandro Girgvliani’s death. The inappropriateness of that conflict of interests was, in the eyes of the Court, further exacerbated by its being hidden from the public: the only mention of D.A.-aia’s involvement in the investigation appeared in the Ministry’s memo of 24 February 2006, which was a classified internal document at that time (see paragraphs 10 and 50‑52 above). 248. The contents of that memo further confirm that, at least by 2 February 2006, D.A.-aia already knew about the possible involvement of his colleagues in the crime, yet he did not withdraw from the case.", "Furthermore, if D.A.-aia’s statements can be relied on, the Court is struck by the fact that even the Minister of the Interior, upon learning the facts implicating his subordinates and possibly his wife, did not immediately remove the file from the hands of his Ministry, which would have been the only professional and discreet solution in the circumstances, but, on the contrary, instructed D.A.-aia to continue investigating (see paragraph 116 above). 249. In the light of the foregoing, the Court finds that the investigation conducted by the Ministry of the Interior between 26 January and 5 March 2006, during which period the decisive items of evidence were collected, manifestly lacked the requisite independence and impartiality, which procedural deficiency prejudiced the subsequent developments in the investigation (see, as a recent authority, Kolevi v. Bulgaria, no. 1108/02, §§ 208 and 212, 5 November 2009). (β) As regards the part of the investigation carried out by the Tbilisi City Prosecutor’s Office 250.", "Turning to the circumstances surrounding the investigation conducted by the Tbilisi City Prosecutor’s Office, the Court considers that one of the most serious omissions was that authority’s obstinate refusal to grant the applicants leave to take part in important investigative measures, despite their strenuous efforts to remain involved. It is regrettable that, under the relevant domestic law and practice (see Article 69 (j) of the CCP), the applicants could not have any access whatsoever to the relevant case materials during the investigation stage. The Court deplores that the prosecution authority did not even inform the applicants of the findings made in the course of the investigation measures conducted in their absence (see, for instance, paragraphs 94-97, 137 and 138 above). As a result, the applicants were left in a complete vacuum as regards the progress of the investigation, which clearly deprived them of the opportunity to safeguard their legitimate procedural interests as it unfolded (see Slimani v. France, no. 57671/00, §§ 44 and 46-48, ECHR 2004‑IX (extracts); Orhan v. Turkey, no.", "25656/94, § 346, 18 June 2002; Beker v. Turkey, no. 27866/03, § 49, 24 March 2009 , and Güleç, cited above, § 82). 251. Neither, the Court notes, was the second civil party, L.B.-dze, able to effectively participate in the investigative measures, given that, apart from lacking qualified legal counsel, he too was denied access to the case materials during the investigation stage. However, being the only survivor of and eyewitness to the crime, L.B.-dze was a source of information of paramount, undeniable importance, and the Court considers that the relevant domestic authorities were consequently under the particularly compelling obligation to take active measures to provide him with all the necessary means to ensure the full and effective realisation of his procedural rights.", "252. A conspicuous example of the vulnerability of L.B.-dze’s position during the investigation was the following episode. Being unaware of the evidence in the criminal case file at that time, which included accused G.A.‑ia’s theory according to which his altercation with Sandro Girgvliani had started in the entrance to the Café Chardin, L.B.-dze obviously had no means of knowing how important it was to recall accurately whether he had gone through the café door together with Sandro Girgvliani and whether he had seen his friend have an altercation with anybody on the way out. Consequently, L.B.-dze was totally unprepared for answering the prosecutor’s dubious but insistent line of questioning in that respect. Indeed, the Court notes that it was only at the trial stage, after L.B.-dze had familiarised himself with the case materials, that he finally realised why the public prosecutor had been strongly supporting the hypothesis that he and Sandro Girgvliani might have left the café separately (see paragraphs 65, 71, 86-87 and 165 above).", "253. The Court cannot overlook other episodes in which the Tbilisi City Prosecutor’s Office carried out investigative measures in a clearly misleading manner. For example, as disclosed by the video recording of the identification parade of 8 March 2006, L.B.-dze tentatively suggested that O.M.-ov resembled one of the assailants. However, the public prosecutor failed to note the suggested resemblance in the relevant written records. Then again, when questioned on 10 March 2006, L.B.-dze reiterated his suspicions concerning O.M.-ov’s possible involvement in the crime, but instead of treating that serious allegation with the requisite vigilance (see Brecknell v. the United Kingdom, no.", "32457/04, §§ 70 and 75, 27 November 2007), the prosecutor re-phrased that statement in the written records in such a manner as to ignore the real content and importance of the information received (see paragraph 80 above). A similar discrepancy between what was actually said by L.B.-dze as regards the circumstances surrounding his and Sandro Girgvliani’s leaving the Café Chardin and what was recorded by the prosecutor occurred during the first interview of 6 March 2006. Nor did the prosecutor note L.B.-dze’s statement according to which a friend had come to sit with him exactly at the same time as Sandro Girgvliani was having a stilted conversation with Th.M.-dze at the same table (see paragraphs 63 and 65 above). The Court considers this to be a distortion of the witness’s statements in the written records by the public prosecutor. 254.", "The Court deplores that, despite the applicants’ reiterated requests, the prosecuting authority did not identify and question, for the purposes of the investigation, those persons with whom both the four convicts and the members of the Minister of the Interior’s wife’s group had been in communication during the night in question. Such a measure was indispensable for the verification of the applicants’ allegation that there had existed some sort of complicity between the direct perpetrators of the crime and the Minister of the Interior’s wife’s group in the café. The Court observes, for instance, that, as disclosed by the case file, one particular telephone number – 8 77 79 89 60 – was dialled most often on the night in question by both G.A.-ia, one of the perpetrators, and the senior officers of the Ministry of the Interior present in the café. D.A.-aia even testified that the number belonged to their common friend M-eli. That statement, in its turn, contradicted the information disclosed by the relevant mobile phone company, according to which the number in question belonged to a certain K.N.-dze from the limited liability company “Falko”.", "Despite those manifest contradictions, the domestic authorities did not take the trouble to establish the real identity of the owner of that number and secure his appearance as a witness, so that every party to the proceedings could find out what that person had been discussing with both the senior officers of the Ministry of the Interior in the Café Chardin and G.A.-ia at the time when the latter, together with his colleagues from the Ministry, had been committing the crime against Sandro Girgvliani and L.B.-dze. 255. As to the Government’s assertion that the investigation authorities had, in reality, questioned all the persons with whom the four perpetrators had been in telephone communication during the period question but had decided not to include that information in the criminal case file, the Court considers that, if accepted, that assertion would only exacerbate the situation. Indeed, the Government’s suggestion corroborates the applicants’ complaint, which they strenuously attempted to prove at the domestic level, that the investigators had concealed important items of evidence (see paragraphs 186 and 224 above). The Court considers that the identification of all those persons whom the four convicts had contacted during the relevant period was clearly relevant to a thorough and objective examination of the case.", "As to the consideration of the respect for those persons’ privacy, apart from having difficulty in finding the force in that unelaborated and ambiguous argument, the Court would simply note that the prosecution authority could have allowed the applicants and the domestic courts to have those persons examined at least as anonymous witnesses (cf., amongst many other authorities, Kornev and Karpenko v. Ukraine, no. 17444/04, § 56, 21 October 2010). 256. The Court is further struck by the prosecution authority’s failure to elucidate the circumstances in which Sandro Girgvliani had received numerous wounds to various parts of his body, in particular those inflicted on his throat. Thus, whilst the forensic expert established that most of those wounds, including the fatal one to the pharynx, had been caused by a sharp, pointed object with a handle, probably a knife, the prosecution authority did not take the trouble to investigate and explain, in the context of the specific facts of the case, exactly how, with what sharp weapon and by whom amongst the four accused persons, those wounds could have been inflicted (see Vachkovi v. Bulgaria, no.", "2747/02, § 91, 8 July 2010). The Court has no doubt that the establishment of that crucial element could have had an impact, inter alia, on the proper classification of the crime (see paragraphs 271 and 272 below). Instead, despite the serious indications calling for caution, the prosecution authority merely accepted the explanation of the accused that they had not used any sharp weapons and that Sandro Girgvliani must have received those wounds “on the wire fencing” or “in the bramble bushes”, which gratuitous assertion directly contradicted the qualified State expert’s conclusions as to the origins of the wounds (see Velikova v. Bulgaria, no. 41488/98, § 73, ECHR 2000‑VI). 257.", "The Court also finds it disturbing that the prosecution authority and the Prisons Department – the latter agency, it should be noted, being headed by the brother of D.A.-aia (see paragraphs 127-129 above) – failed to ensure that the four accused were remanded in separate cells, as was clearly required by section 86 § 2 of the law on detention at the material time. Irrespective of whether that fact allowed the applicants to coordinate their statements, the Court attaches importance to the fact that such manifest disregard of the law could hardly have been conducive to the maintenance of the applicants’ and the public’s trust in the investigation. 258. All the above considerations are sufficient for the Court to conclude, even without enquiring into other relevant circumstances, that the part of the investigation carried out by the Tbilisi City Prosecutor’s Office manifestly lacked the requisite thoroughness, objectivity and, most importantly, integrity. In addition, by not allowing the applicants and the second civil party to have access to the criminal file or at least to be regularly updated on the developments in the investigation, coupled with certain other serious omissions, the prosecution authority fell short of its obligation to safeguard the interests of the next of kin and to ensure that the investigation received the required level of public scrutiny (see Medova, cited above, § 109).", "(γ) As regards the judicial proceedings 259. The Court considers that a major deficiency in the judicial proceedings was the domestic courts’ persistent refusal to provide the applicants with sufficient time and facilities to study the case materials, thus depriving them of the opportunity to prepare their position for and participate effectively in the trial. Indeed, it is striking that, in such a particularly complex case, the proceedings at first instance lasted only nine days (see paragraphs 146 and 171 above), during which period it was hardly feasible either for the civil parties or even for the judges to study the voluminous case materials. Of particular concern is the fact that the applicants did not have access to the fourteen exhibits, which items represented the backbone of the case, examined in their original form in public and adversarial proceedings. The importance of having direct access to the video materials concerned, rather than to their written transcripts, gains additional weight in the light of the prosecution authority’s propensity to distort the facts in the relevant written records, as noted above by the Court (see paragraphs 252 and 253 above).", "260. Considering that the accused, in keeping with Article 76 § 3 of the CCP, had unrestricted access to the case materials from the investigation stage, the applicants, as the civil party, found themselves in a clearly disadvantageous position during the trial. However, the Court reiterates that, in the normal course of events, a criminal trial, with an adversarial procedure before an independent and impartial judge, must be regarded as furnishing the strongest safeguards of an effective procedure for the finding of facts and the attribution of criminal responsibility (see Brecknell, cited above, §§ 65 and 66). The Court, sharing the applicants’ arguments, notes that, in the particular circumstances of the present case, the prosecution authority’s procedural rights could not compensate for the absence of those of the civil party because that authority, as noted above, manifestly lacked integrity in the conduct of the investigation and interest in the applicants’ cause. 261.", "Furthermore, in addition to their failure to examine the above-mentioned fourteen exhibits properly, the domestic courts also disregarded the applicants’ numerous requests for the collection of additional evidence directly relevant to the establishment of the truth in the case. For instance, although such information was necessary for the verification of the possible complicity between the four perpetrators and some of the persons present at the Minister of the Interior’s wife’s table in the Café Chardin, the domestic courts refused to secure and duly examine the records of all the telephone calls made and received by all the above-mentioned persons on the night in question. It is further regrettable that the courts disregarded the applicants’ allegation that the investigative authorities of the Ministry of the Interior and of the Tbilisi City Prosecutor’s Office had destroyed or concealed evidence as they had introduced into the criminal file only a selection of the records of the calls made and received by the perpetrators, whereas they had in fact obtained the relevant information from the mobile phone companies in its entirety (see also the Court’s findings at paragraph 254 above). The Court reaffirms in this connection that for an investigation into a death to be effective, the domestic authorities must take such steps as are necessary to secure all relevant evidence (see, for example, Rantsev, cited above, § 241). 262.", "The Court is particularly struck by the fact that, when L.B.-dze, in line with his previous pre-trial statements, reiterated during the trial, this time in a particularly convincing manner and for the attention of both the prosecution and the judicial authorities, that O.M.-ov had been the fourth assailant who had participated, with particular cruelty, in the attack on him and Sandro, those authorities, contrary to their obligation of vigilance, chose to close their eyes to that serious and credible accusation. The authorities remained inexplicably inactive even after the applicants explicitly requested the initiation of criminal proceedings against O.M.-ov on the strength of the incriminating statements of L.B.-dze, the direct victim (see paragraph 200 above). In the Court’s opinion the placement under investigation of O.M.‑ov, who had formed part of the group present at the Minister’s wife’s table in the café, was an indispensable measure for the verification of the applicants’ allegation of the existence of complicity between the perpetrators and that group (see, mutatis mutandis, Brecknell, cited above, §§ 70-71; Kolevi, cited above, § 201; and Slimani, cited above, § 29). 263. The Court observes that there existed other suspicious circumstances which, had they been duly noted and assessed by the domestic courts, could have shed additional light on the applicants’ above‑mentioned allegation of complicity.", "Notably, whilst G.A.-ia had stated, in his pre-trial deposition, that on the way back from Okrokana cemetery, that is after the commission of the crime, he had received phone calls from G.D.-dze asking whether he was joining their party in the café, the latter, when questioned during the trial, suspiciously denied having received any information about G.A.-ia possibly joining their group (see paragraphs 74 and 155 above). At the same time, as disclosed by the records of the telephone calls which formed part of the criminal case materials, the Court notes that G.D.-dze and G.A.-ia had indeed been in communication on the night in question at 1.50, 1.56, 2.01 and 2.05 a.m. That being so, the Court finds it highly regrettable that the domestic authorities failed to explain that manifest discrepancy between the statements of G.A.-ia and G.D.-dze and their inconsistency with the facts as established by the records of the telephone calls. 264. It is noteworthy that even G.A.-ia’s own story about the origins of his altercation with Sandro Girgvliani suggested that the applicants’ son must have been familiar with and apparently in conflict with at least some of the representatives of the Ministry of the Interior, and in particular with G.D.-dze. G.A.-ia said that he had heard Sandro Girgvliani insulting “G.D.‑dze’s mother” and the “mothers of the KGB” who had been in the café.", "A reasonable observer could infer from G.A.-ia’s statement that Sandro Girgvliani must have known the people whom he was insulting. Another detail that supports the hypothesis that there might have been some kind of connection and latent animosity between the applicants’ son and G.D.-dze is the fact that, in his private conversation with Th.M.-dze, Sandro Girgvliani offensively referred to the Minister of the Interior’s spokesman as “that poof” (see paragraphs 71, 101 and 158 above). 265. Having further examined the records of the telephone calls which formed part of the criminal case materials, the Court also notes that Sandro Girgvliani’s ill-treatment must have occurred between 2.12 and 2.54 a.m., as during that period G.A.-ia had been in the vicinity of Okrokana cemetery. These records establish that somebody contacted G.D.-ze from D.A.-aia’s number at 2.08, 2.17, 2.23 and 2.25 a.m. That being so, the Court is struck by the fact that neither the prosecution nor the domestic courts attempted to clarify who from the Minister of the Interior’s wife’s group – D.A.-ia, the owner of the mobile phone, or perhaps even O.M.-ov (given that D.A.‑ia’s SIM card had been placed in the latter’s mobile phone, see paragraph 114 above) – had been calling G.A.-ia with such suspicious insistence, at intervals of only 9, 6 and 2 minutes, at the precise time when the latter, with his colleagues from the Ministry, kidnapped Sandro Girgvliani and L.B.‑dze and was either on the way to Okrokana or already beating the victims.", "266. The Court deplores that, despite these very serious indications calling for particular caution in this regard, the authorities turned a blind eye to the applicants’ credible allegation of complicity between some of the persons from the Interior Minister’s wife’s group in the café and the direct perpetrators of the crime. Such a selective approach by the domestic authorities is unacceptable for the Court because, in order for an investigation to be effective, its conclusions must always be based on thorough, objective and impartial analysis of all relevant elements. Failing to follow an obvious line of inquiry undermines the investigation’s ability to establish the circumstances of the case and the person responsible (see Kolevi, cited above, § 201, and Velikova, cited above, § 82). 267.", "In the light of the above considerations, the Court concludes that the applicants were arbitrarily denied the right to participate effectively in the judicial proceedings and that the conduct of those proceedings confirmed the domestic authorities’ manifest reluctance to uncover, in an objective and conclusive manner, the whole truth about the circumstances surrounding Sandro Girgvliani’s kidnapping and death on 28 January 2006. (δ) As regards the adequacy of the punishment of the convicted persons 268. The Court recalls that, while it largely defers to the national courts’ choice of sanctions for ill-treatment and homicide, it nevertheless must, as the ultimate watchdog of the protection of Articles 2 and 3 of the Convention, the two most fundamental provisions, exercise a power of review and intervene in cases of manifest disproportion between the gravity of the act and the punishment imposed. Otherwise, the States’ duty to carry out an effective investigation would lose much of its meaning, and the rights enshrined in the above-mentioned provisions would be ineffective in practice (see Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 61, 20 December 2007; Fadime and Turan Karabulut v. Turkey, no.", "23872/04, § 46, 27 May 2010; and Okkalı v. Turkey, no. 52067/99, § 73-76, ECHR 2006‑XII (extracts)). 269. In the present case, the Court considers it necessary to address not only the severity of the sentences as initially imposed by the domestic courts but also the manner of their subsequent implementation. 270.", "The Court notes that the question of the sentences imposed on the four senior Ministry of the Interior officials is intrinsically related to the criminal classification of the offences by the domestic courts. Admittedly, it is normally not the Court’s task to verify whether the sentence correctly applied the criminal law provisions, or to rule on the degree of individual liability of the officials in question. However, keeping in mind its obligation under Article 2 of the Convention to apply particularly close scrutiny in cases of homicide inflicted at the hands of State agents, irrespective of whether they acted within or outside the exercise of their official duties, the Court is unable to overlook the fact that the investigation authorities failed to sufficiently prepare the relevant evidentiary basis, or that the domestic courts did not take the trouble to discuss in their decisions the exact nature of the treatment which had caused the death (see, for example, Velikova, cited above, § 73, and Okkalı, cited above, § 73). 271. The Court notes, for example, that the autopsy report and other evidence showed that, prior to his death, Sandro Girgvliani had been stripped from the waist up and received numerous wounds to different parts of his body inflicted by a sharp, pointed object with a handle, probably a knife.", "The prosecution and the judicial authorities found that his death had been caused by the treatment inflicted by the four officers. The only possible logical corollary to these two established facts is that the perpetrators first stripped Sandro Girgvliani at Okrokana cemetery, which in itself was a form of deliberately debasing treatment, and then at least one of the group started vigorously cutting him with an unidentified sharp weapon. 272. Looking more closely at the nature of those wounds – numerous cuts from 4 to 15 cm long all over the body, including deep wounds to the throat, one of them, the fatal one, piercing the pharynx (for more details, see paragraphs 20-22 above) – the Court cannot but conclude that Sandro Girgvliani was subjected to particularly cruel, life-threatening inhuman treatment. Furthermore, where the perpetrator(s) slashed such a vulnerable area of the victim’s body as the throat twelve times with a sharp weapon, it is only reasonable to assume that the perpetrator(s) actually intended to take Sandro Girgvliani’s life.", "Another element which emphasises the deliberately life-endangering nature of the attack was the threat and the use of a gun by at least one of the assailants. All things considered, the Court finds it regrettable that, when classifying the offence and passing sentences of from 7 to 8 years’ imprisonment, the adequacy of which punishment is in actual fact doubtful, the domestic courts failed to take into account such manifestly aggravating circumstances as the debasing and particularly cruel nature of the treatment inflicted on the victim, quite deliberately, by the State agents. 273. In any event, it is not so much the initial sentences imposed on the offenders as the subsequent manner of their implementation which is at the core of the problem. The Court is struck by the fact that on 24 November 2008 the President of Georgia found it appropriate to pardon State agents convicted of such a heinous crime by reducing the remainder of their sentences by half.", "Then, as if that measure of clemency was not generous enough, on 5 September 2009 the prison authority recommended and the relevant domestic court granted the convicts’ release on licence. The Government referred to the necessity of holding offenders accountable before the public at large (see paragraph 229 above). The Court observes in that respect that Georgian society was expected to accept the fact that three years and six months of imprisonment (see paragraphs 61 and 205 above) was sufficient punishment for senior officers of the Ministry of the Interior who had wantonly ill-treated and killed an innocent man. 274. However, the Court considers that when an agent of the State, in particular a law-enforcement officer, is convicted of a crime that violates Article 2 of the Convention, the granting of an amnesty or pardon can scarcely serve the purpose of an adequate punishment (see, mutatis mutandis, Okkalı, cited above, § 76, and Abdülsamet Yaman v. Turkey, no.", "32446/96, § 55, 2 November 2004). On the contrary, the Court expects States to be all the more stringent when punishing their own law‑enforcement officers for the commission of such serious life‑endangering crimes than they are with ordinary offenders, because what is at stake is not only the issue of the individual criminal-law liability of the perpetrators but also the State’s duty to combat the sense of impunity the offenders may consider they enjoy by virtue of their very office and to maintain public confidence in and respect for the law-enforcement system (see, mutatis mutandis, Nikolova and Velichkova, cited above, § 63). In this regard, the Court considers that, as a matter of principle, it would be wholly inappropriate and would send a wrong signal to the public if the perpetrators of the very serious crime in question maintained eligibility for holding public office in the future (see, Türkmen v. Turkey, no. 43124/98, § 53, 19 December 2006, and Abdülsamet Yaman, cited above, § 55). 275.", "In the light of the foregoing, the Court concludes that the sentences as initially imposed upon the convicts by the domestic courts and actually implemented by the relevant domestic authorities did not constitute adequate punishment for the crime committed. That unreasonable leniency deprived the criminal prosecution of the four officers of any remedial effect under Article 2 of the Convention (see Nikolova and Velichkova, cited above, §§ 58-64 and 75). (ε) Concluding remarks 276. Summarising its findings above, the Court reiterates that the investigation into the death of Sandro Girgvliani manifestly lacked the requisite independence, impartiality, objectivity and thoroughness. On the contrary, the relevant circumstances of the case allow the Court to draw the conclusion that the domestic authorities were lacking in candour in the conduct of the investigation.", "Even if the failings of some of those authorities would not alone have been sufficient for a finding of the inadequacy of the investigation, their coexistence, cumulative effect is more than enough in this regard. Indeed, the Court is struck by how the different branches of State power – the Ministry of the Interior, as regards the initial shortcomings of the investigation, the Public Prosecutor’s Office, as regards the remaining omissions of the investigation, the Prisons Department, as regards the unlawful placement of the convicts in the same cell, the domestic courts, as regards the deficient trial and the convicts’ early release, the President of Georgia, as regards the unreasonable leniency towards the convicts, and so on – all acted in concert in preventing justice from being done in this gruesome homicide case. 277. However, the Court reiterates, in line with its findings above (see paragraph 274), that when a suspicious death has been inflicted at the hands of a State agent, particularly stringent scrutiny must be applied by the relevant domestic authorities to the ensuing investigation. Otherwise, the State risks instilling a sense of impunity in its agents, by appearing to tolerate their life-threatening acts, which could open the way to more wanton crimes such as that committed in the present case.", "278. There has therefore been a violation of Article 2 of the Convention under its procedural limb. 2. As to whether the death is imputable to the respondent State (a) The parties’ arguments 279. The Government submitted that there had been no violation of Article 2 of the Convention given that, firstly, the results of the meticulous investigation of the case conducted by the relevant domestic authorities had established that the life of the applicants’ son had not been taken “intentionally”, within the meaning of paragraph 1 of that provision.", "The absence of intent was confirmed by the fact that when, at Okrokana cemetery, the applicants’ son had escaped his attackers, one of them had fired a gun in the air and not in his direction. 280. Secondly, the Government argued that the perpetrators had not been acting in an official capacity when the assault had taken place, but rather as ordinary individuals. They had committed wilful bodily harm out of revenge, on purely personal grounds, not within the framework of a police operation; they had not been acting on any order from their superiors. On the contrary, the crime had occurred in the context of a private visit to a friend’s birthday party.", "Consequently, the Government argued, the situation in question was distinguishable from those, for example, in the cases of Leonidis v. Greece (no. 43326/05, § 58-66, 8 January 2009) and Karagiannopoulos v. Greece (no. 27850/03, §§ 56-64, 21 June 2007). 281. The Government further submitted that, even if G.A.-ia had acknowledged presenting himself to the applicants’ son and L.B.-dze as a law-enforcement agent of the Ministry of the Interior, L.B.-dze had noted in his interrogation on 28 January 2008 that the perpetrators had been wearing dark-coloured civilian clothes.", "Consequently, it was obvious that the victims could not have identified the perpetrators as police officers. Furthermore, the men had not used their official firearms or any car belonging to the Ministry of the Interior. Instead, without the authorisation of the Ministry, G.A.-ia had used a seized car that belonged to a private person, for which abuse of authority he had subsequently been duly punished. 282. In reply, the applicants maintained that the State should bear responsibility for the death of their son, given that the perpetrators, senior officers of the Ministry of the Interior, had presented themselves to the victims as police officers and that one of them had even tried to take down the victims’ identity.", "Furthermore, it was an established fact that the perpetrators had been driving official Ministry cars and had used their firearms as well as their professional relations to commit the crime. For example, G.A.-ia had used his hierarchical superiority to mobilise his colleagues to take the action they took. The applicants argued that the death had thus been brought about by the human and material resources of the State and that, in such circumstances, the respondent State could not be absolved from liability under the substantive aspect of Article 2 of the Convention. 283. The applicants further submitted that Article 2 of the Convention should not be understood as outlawing only deliberate homicide; there did not exist a right or authorisation to take somebody’s life under any circumstances.", "The death in question should engage the responsibility of the State irrespective of the classification of the impugned acts by the domestic courts (see, for example, Leonidis, cited above, §§ 58 and 59). The applicants also stated that, despite the internal investigation’s refusal to elucidate O.M.-ov’s role in Sandro Girgvliani’s death, the Government’s failure to submit to the Court the relevant criminal case materials in their entirety further corroborated the assumption that the homicide had been committed on orders given by the offenders’ superiors from the Ministry of the Interior who had been present in the Café Chardin on the night in question. (b) The Court’s assessment i. General principles 284. The Court reiterates that, in view of the fundamental nature of the right to life, the circumstances in which deprivation of life may be justified must be strictly construed.", "Article 2 does not grant a carte blanche. Unregulated and arbitrary action by State agents is incompatible with effective respect for human rights. This means, amongst other things, that the State must ensure, by putting in place a system of adequate and effective safeguards against arbitrariness and abuse of force, that its agents duly understand the limits of their power and that, in their actions, they are guided not only by the letter of the relevant professional regulations but also pay due regard to the pre-eminence of respect for human life as a fundamental value (see, mutatis mutandis, Abdullah Yilmaz v. Turkey, no. 21899/02, § 56, 17 June 2008; Leonidis, cited above, 54-57). 285.", "In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Ertak v. Turkey, no.", "20764/92, § 32, ECHR 2000-V). 286. The Court is sensitive to the subsidiary nature of its role and recognises that it must refrain from taking on the role of a first-instance tribunal of fact unless this is rendered unavoidable by the circumstances of a particular case. Nonetheless, where allegations are made under Articles 2 and 3 of the Convention the Court must apply a particularly thorough scrutiny even if certain domestic proceedings and investigations have already taken place. The Court is not bound by the findings of domestic courts, and cogent elements may require it to depart from and set aside these findings (see Aktaş v. Turkey, no.", "24351/94, § 271, ECHR 2003‑V (extracts), and Leonidis, cited above, § 59). ii. Application of these principles in the present case 287. In reply to the Government’s argument about the “meticulousness” of the domestic investigation into the death of the applicants’ son, the Court refers to its comprehensive findings concerning the various unexplained discrepancies and serious omissions made by the relevant domestic authorities during that investigation (see paragraphs 245- 276 above). 288.", "However, the Court considers that, in the particular circumstances of the present case, the respondent State’s failure to account sufficiently for the suspicious death should be limited only to its procedural obligations under Article 2 of the Convention. 289. Notably, the Court, sharing the Government’s arguments, attaches particular importance to the fact that, even if Sandro Girgvliani met his death at the hands of the State agents, the perpetrators were not acting in the exercise of their official duties. On the contrary, according to the circumstances of the case as established by the domestic courts, the crime was committed in the context of the perpetrators’ private celebration of their friend’s birthday. They were not engaged in any planned police operation or in a spontaneous chase (see, by contrast, Leonidis, cited above, § 58).", "As to the applicants’ claim that their son was killed on orders given by the offenders’ superiors from the Ministry of the Interior who were present in the Café Chardin (see paragraph 283 above), the Court, having due regard to the material in its possession, considers that there is an insufficient evidentiary basis on which to make, applying the relevant standard of proof of “beyond reasonable doubt”, such a far-reaching conclusion of fact. 290. Admittedly, the States are expected to set high professional standards within their law-enforcement systems and ensure that the persons serving in these systems meet the requisite criteria (see, mutatis mutandis, Abdullah Yilmaz, cited above, §§ 56 and 57). However, having regard to the particular circumstances of the present case, the Court is not convinced that the private acts of G.A.-ia, A.A.-uri, A.Gh.-ava and M.B.-dze should be held imputable to the Georgian State as a whole just because these individuals happened to be its agents (see, mutatis mutandis, Çelik v. Turkey (no. 2), no.", "39326/02, § 33, 27 May 2010). Indeed, the impugned acts were so flagrantly abusive and so far removed from the perpetrators’ official status, that their serious criminal behaviour cannot engage the State’s substantive international responsibility. 291. There has thus been no violation of the substantive limb of Article 2 of the Convention. II.", "OBSERVANCE OF ARTICLE 38 OF THE CONVENTION 292. The relevant provisions of Article 38 § 1 of the Convention, as they stood at the material time, read as follows: “If the Court declares the application admissible, it shall (a) pursue the examination of the case, together with the representatives of the parties, and if need be, undertake an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities; 293. The applicants complained that the Government had submitted only part of the evidence necessary for the examination of the application, and even that had been done with a significant delay. In particular, the applicants denounced the fact that the Government had not submitted all of the images recorded by the surveillance camera at the home of the businessman on the Tbilisi-Kojori road between 2.00 and 3.00 a.m. on 28 January 2006 (see paragraph 48 above). 294.", "In their written comments of 26 April 2010 (see paragraph 12 above), the Government explained that the reason for the delayed submission of the fourteen exhibits had been the necessity to make additional copies of the relevant CDs. As to the submission of the criminal case materials related to the proceedings against L.B.-dze under Article 371‑1 of the Criminal Code (see paragraph 4 above), this had been delayed by the fact that, at the time when the Court had requested those materials, the relevant proceedings were still pending before the Chief Public Prosecutor’s Office. In any event, given that the Court had eventually obtained all of the requested documents and material evidence, the Government argued that the situation was distinguishable from the case of Medova v. Russia (cited above, §§ 126-133) and that, consequently, no violation of Article 38 of the Convention had occurred. 295. Noting that Article 29 § 3 of the Convention, as that provision stood at the material time, was applied at the time of communication of the present application (see paragraph 4 above), the Court considers that, in the consequent absence of a separate decision on admissibility, it retained jurisdiction under Article 38 of the Convention, as it read at the material time, to examine the relevant events which took place during the subsequent proceedings.", "296. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted under Article 34 of the Convention that States should furnish all necessary facilities to make possible a proper and effective examination of applications (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 70, ECHR 1999-IV). This obligation requires the Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact-finding investigation or performing its general duties as regards the examination of applications. Failure on a Government’s part to submit such information which is in their hands, without a satisfactory explanation, may not only give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 of the Convention (see Medova, cited above, § 76, and Timurtaş v. Turkey, no.", "23531/94, § 66, ECHR 2000-VI). 297. Returning to the relevant circumstances of the present case, the Court notes that by the specified 22 December 2008 deadline the Government had submitted only the documentary materials of the homicide case, in eight volumes. However, the fourteen exhibits, which consisted of 23 CDs and a sketch (see paragraph 159 above), as well as the materials concerning the proceedings against L.B.-dze under Article 371-1 of the Criminal Code, were missing. That omission was contrary to the Court’s clear indication that the materials in both cases should be submitted in their entirety, including all evidence on paper and on data storage devices (see paragraph 4 above).", "298. The Court further notes that the Government submitted the major part of those missing items of evidence as late as 15 December 2009, that is almost a year later, and even then only as a result of the Court’s insistent demands. The Court cannot take seriously the Government’s explanation, as regards the fourteen exhibits, that so much time was needed to copy some 23 CD’s. As to the criminal proceedings against L.B.-dze, the Court first notes that they were conducted by the Tbilisi City Prosecutor’s Office and not by the Chief Public Prosecutor’s Office, as claimed by the Government. It is noteworthy that the applicants’ requests for those criminal proceedings to be taken out of the hands of the City Prosecutor and given to the Chief Prosecutor were rejected as unfounded on 4 August 2006 (see paragraph 202 above).", "Subsequently, as the Government asserted in their observations of 22 December 2008, those proceedings were discontinued. Consequently, even assuming that at the time of the Court’s first request for the relevant criminal file, made on 24 June 2008, those proceedings were indeed pending at the domestic level, the Court is still unable to understand what prevented the Government from submitting the file subsequently, after the alleged termination of the proceedings, together with their observations of 22 December 2008. 299. Furthermore, after having viewed all the recordings forming the fourteen exhibits in question, the Court notes that the images recorded by the surveillance camera on the Tbilisi-Kojori road were not presented in their entirety – far from it. According to the minutes concerning the seizure of the camera recordings by the investigative authority, they covered the period between 2.00 and 3.00 a.m. on 28 January 2006 (see paragraph 48 above).", "However, despite the Court’s repeated requests for the full recordings, the Government submitted images which accounted for events on the Tbilisi-Kojori road (the rare passage of cars) during the following ten disconnected and extremely short periods (the time is given in a.m.): (i) 2:13:30 – 2:13:41, (ii) 2:17:16 – 2:17:30, (iii) 2:17:37 – 2:17:41, (iv) 2:24:36 – 2:24:37, (v) 2:41:03 – 2:41:08, (vi) 2:42:37 – 2:42:42, (vii) 2:45:42 – 2:45:53, (viii) 2:46:48 – 2:46:51, (ix) 2:46:58 – 2:47:07 and (x) 2:47:10 – 2:47:20. The total length of the recordings submitted is thus about 68 seconds, instead of the requisite 1 hour. 300. The Court further notes that the Government also failed to submit the video recordings of the interviews with the staff of the Café Chardin and with A.K.-dze (see paragraphs 83 and 112 above). 301.", "In the light of the foregoing, the Court finds that the Government’s explanations for their delay and the partial failure to submit the requested items of evidence are not convincing. Of particular concern is the failure to submit all the images showing the passage of cars on the Tbilisi-Kojori road during the whole period between 2.00 and 3.00 a.m. In the eyes of the Court the submission of that particular item of evidence in its entirety was relevant for the examination of the complaint under Article 2 of the Convention, as it could have corroborated or, on the contrary, refuted the applicants’ allegation that O.M.-ov had left the Café Chardin to join his colleagues from the Ministry of the Interior in severely ill-treating and killing their son. The Government failed to justify that omission in their written observations and remained silent even after the applicants had explicitly reproached them on that account during the public hearing on 27 April 2010. 302.", "Referring to the importance of a respondent Government’s cooperation in Convention proceedings and being mindful of the difficulties associated with the establishment of facts in complex cases of such a nature, the Court finds that, in the present case, the Georgian Government fell short of their obligations under Article 38 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION A. The complaints under Article 6 § 1 of the Convention 303. The applicants complained that the criminal proceedings in the murder case had been arbitrary, as demonstrated by the inadequate investigative measures, the unjustified leniency in the criminal classification of the four perpetrators’ acts and the authorities’ reluctance to engage the liability of other senior officials of the Ministry of the Interior implicated in the incident.", "Those shortcomings in the criminal proceedings, the applicants alleged, impaired the effective exercise of their right to claim civil damages. 304. The applicants also complained, without providing any relevant explanation, that the principle of the equality of arms had been breached to their detriment in the course of the civil proceedings (see paragraphs 206‑209 above). 305. The Government disagreed, arguing that the complaint about the criminal proceedings was incompatible ratione materiae with Article 6 § 1 of the Convention, since the applicants, as a civil party, had pursued purely punitive purposes (compare with Perez v. France [GC], no.", "47287/99, §§ 69-70, ECHR 2004‑I). They also reproached the applicants for having instituted the civil proceedings as late as two years after the termination of the criminal ones. In any event, the Government argued, referring to the above-mentioned case of Perez, the outcome of the criminal proceedings was not, according to the relevant Georgian law and as distinct from French law, decisive for the determination of the amount of the civil damages. The Government also noted that the first instance court had awarded the applicants GEL 40,000 (approximately EUR 16,832) in respect of non‑pecuniary damage, which was allegedly the highest amount ever awarded in that respect by the Georgian courts. 306.", "Noting that the applicants’ complaint about the arbitrariness of the criminal proceedings is based on the same facts as those examined under Article 2 of the Convention, the Court considers that the issue of its admissibility must be joined to the merits. However, having regard to its comprehensive factual and legal findings above and without prejudice to the question of the applicability of Article 6 § 1 with regard to the civil aspect of the criminal proceedings, the Court finds that all the grievances of the applicants have been fully absorbed by the examination of the complaints under Article 2 of the Convention and there is no call to examine these issues again under Article 6 § 1 of the Convention. 307. As to the complaint about the fairness of the civil proceedings, the Court notes that it was not properly elaborated, as the applicants failed to adduce any specific evidence in support of it (see paragraph 304 above). Consequently, this limb of the applicants’ complaints under Article 6 § 1 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "B. The complaints under Articles 3 and 13 of the Convention 308. Relying on Articles 3 and 13 of the Convention, the latter provision being invoked in conjunction with Article 2, the applicants also complained that their son had been tortured prior to being killed and that the investigation into his death had not been an effective remedy. In respect to the latter complaint, the applicants denounced the domestic authorities’ failure to react on their criminal complaints of 21 December 2006 and 16 February 2007, in which they had requested the initiation of criminal proceedings against the investigators in charge of the case for abuse of authority and destruction of evidence. 309.", "The Government disagreed. 310. The Court notes that the complaints under Article 3 and 13 of the Convention are closely linked to those examined under Article 2 of the Convention and must therefore likewise be declared admissible. 311. However, having regard to the grounds on which it has found a violation of Article 2 of the Convention, the Court considers that no separate issues arise under Articles 3 and 13 of the Convention (see Nikolova and Velichkova, cited above, §§ 77 and 78, and Angelova and Iliev v. Bulgaria, cited above, § 106).", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 312. 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 313. The applicants claimed EUR 300,000 for non-pecuniary damage.", "314. The Government submitted that there was no call to make an award in respect of that claim, since there had been no violation of any provisions of the Convention in the present case. They also considered the amount claimed excessive. 315. Having regard to its conclusions under Article 2 of the Convention, the Court has no doubt that the applicants suffered intense distress and frustration on account of the respondent State’s failure to conduct a meaningful investigation capable of uncovering the whole truth about the death of their son and leading to the adequate punishment of all those responsible.", "Making its assessment on an equitable basis, the Court awards the second applicant, Mr Guram Girgvliani, EUR 50,000 under this head (see paragraph 1 above). B. Costs and expenses 316. Each of the applicants’ two representatives claimed EUR 5,000 for the legal assistance they had provided to the applicants. It was not clear from their submissions whether the amounts claimed were for the work done at the domestic level or in the proceedings before the Court.", "The amounts were not itemised, nor were any invoices, contracts or other documents attached in support. The representatives also submitted bills disclosing that the applicant had incurred postal, telephone, fax and translation expenses in the overall amount of GEL 924 (approximately EUR 388[1]). 317. The Government replied that the amounts claimed by the representatives for the legal assistance were totally unsubstantiated and excessive. 318.", "In the light of its well-established case-law on the matter (see, for instance, Ghavtadze v. Georgia, no. 23204/07, §§ 118 and 120, 3 March 2009, and Saghinadze and Others v. Georgia, no. 18768/05, § 164, 27 May 2010), and having due regard to the insufficient documentary evidence in its possession, the Court considers that Mr Guram Girgvliani should only be awarded EUR 388 for the various administrative expenses. C. Default interest 319. 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. Joins unanimously to the merits the Government’s preliminary objection as regards the complaint under Article 6 § 1 of the Convention concerning the criminal proceedings; 2. Declares unanimously the complaint under Article 6 § 1 of the Convention concerning the civil proceedings inadmissible and the remainder of the application admissible; 3. Holds by 6 votes to 1 that there has been a violation of the procedural limb of Article 2 of the Convention on account of the lack of an effective investigation into the death of the applicants’ son; 4. Holds by 4 votes to 3 that there has been no violation of the substantive limb of Article 2 of the Convention on account of the death of the applicants’ son at the hands of senior officers of the Ministry of the Interior; 5.", "Holds by 6 votes to 1 that there has been a violation of Article 38 of the Convention; 6. Holds unanimously that there is no need to examine the remainder of the application; 7. Holds by 6 votes to 1 (a) that the respondent State is to pay the second applicant, Mr Guram Girgvliani, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following sums, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 50,000 (fifty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, and (ii) EUR 388 (three hundred and eighty-eight euros), plus any tax that may be chargeable to Mr Guram Girgvliani, for 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; 8. Dismisses by 4 votes to 3 the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 26 April 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stanley NaismithFrançoise Tulkens Section Registrar President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) joint partly dissenting opinion of Judges Cabral Barreto, Jočienė and Popović; (b) partly dissenting opinion of Judge Adeishvili. F.T.S.H.N. JOINT PARTLY DISSENTING OPINION OF JUDGES CABRAL BARRETO, JOČIENĖ AND POPOVIĆ We voted along with the majority of the chamber in finding a violation of the procedural limb of Article 2 of the Convention, but we also believe there was a violation of Article 2 in its substantive limb in the present case. Our reasons are the following. The Court reiterated in the Çakıcı v. Turkey case ([GC], no.", "23657/94, § 86, ECHR 1999-IV) that Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention and, together with Article 3 of the Convention, enshrines one of the basic values of the democratic societies that make up the Council of Europe (see McCann and Others v. the United Kingdom judgment of 27 September 1995, §§ 146-47, Series A no. 324). The obligation imposed is not exclusively concerned with intentional killing resulting from the use of force by agents of the State. The first sentence of Article 2 § 1 also imposes a positive obligation on States to protect the right to life by law. In this connection we consider that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction.", "The Court’s task is, therefore, to determine whether, given the circumstances of the case, the State did all that could have been required of it to prevent the applicant’s life from being avoidably put at risk (see L.C.B. v. the United Kingdom, no. 23413/94, § 36, Reports 1998-III). Furthermore, the Court stated in Ertak v. Turkey, ECHR 2000‑V, § 132, that “the authorities are under an obligation to account for individuals under their control”. Coming to the circumstances of the present case, we firstly find it clearly established that Mr Sandro Girgvliani, who lost his life on 28 January 2006, was indeed under the control of State agents who put his life at mortal risk and were the perpetrators of the crime.", "In support of this position we would like to stress the following facts: A.) The perpetrators of the crime as a result of which Mr Sandro Girgvliani lost his life were senior officers of the Ministry of the Interior. B.) At their first contact with Mr Sandro Girgvliani and the other victim on the night in question, the perpetrators of the crime presented themselves to the victims as police officers. C.) One of the police officers involved tried to take down the victims’ identity.", "D.) The perpetrators used cars from the garage of the Interior Ministry to commit the crime. Only police officers had access to such cars. E.) When the crime was committed the police officers concerned were in possession of their service weapons. Although it is true that they did not use those weapons to put an end to the victim’s life, it was established that the weapons were fired in the course of the events which led to Mr Sandro Girgvliani’s death. F.) One of the perpetrators relied on his hierarchical superiority to mobilise accomplices and involve them in the crime.", "This is worth emphasising because it supports our finding that the perpetrators used their official positions in committing the crime. G.) Mr Sandro Girgvliani lost his life as a result of being severely beaten by police officers in a place where no help was available, when the very people who beat him were supposed, by virtue of their position, to assist victims in similar situations. The perpetrators of the crime were not merely acting ultra vires; they deliberately committed a crime, even though their main and by far their most important duty was precisely to prevent crime. Secondly, an important question is whether the action of the perpetrators of the crime in this case is attributable to the State or not. Our answer to this question is affirmative, without a doubt.", "The State is responsible under international law for the acts of its agents. The perpetrators in the present case were State agents – high ranking police officers – acting as such. The State cannot absolve itself of its obligation under international law by alleging that the motives of its agents were contrary to State policy. The international-law responsibility of the State for the acts of its agents is independent of any motives they may have had. Furthermore, the obligation is incumbent upon the State, under both international and internal law, to choose its agents carefully.", "In doing so the State must follow strict criteria and apply high professional standards in order to achieve a high quality of performance of its duties and obligations towards its own citizens, as well as the international community. The Court clearly stated in Abdullah Yilmaz v. Turkey (no. 21899/02, § 57) that “the State is under obligation to ensure a high level of competence of the professionals” in its service. We fully subscribe to this rule and consider it binding in all relevant cases before our Court. It is clear in our opinion that Georgia failed in its obligation to recruit its police officers with due diligence in order to meet the standards required by the Convention.", "The perpetrators in the present case were law-enforcement agents, senior officers of the Ministry of the Interior who, by the very nature of their office, were expected to behave at all times, whether on or off duty, in a manner befitting their status as law-enforcement officers responsible for preserving public order, promoting public safety and preventing and investigating crimes. They should have done everything possible to prevent the applicant’s life from being avoidably put at mortal risk. Therefore, by failing to choose proper law-enforcement officers the State placed itself in breach of Article 2 of the Convention in its substantive limb. Even if the officers in question were driven by their own private motives, which in our opinion is doubtful and remains unestablished, it is evident that the law-enforcement system did not meet the required standards in the present case. This provides grounds for our finding that the action of the police officers who perpetrated the crime, resulting in the death of an innocent man, must be, and according to the case-file actually is, directly imputable to the Georgian State.", "That is why we consider that there has been a violation of Article 2 in its substantial limb, along with all the other violations of the Convention found in this case. As regards just satisfaction under Article 41, the finding of a double violation of Article 2 of the Convention calls, in our opinion, for a much higher award in respect of non-pecuniary damage. PARTLY DISSENTING OPINION OF JUDGE ADEISHVILI I regret that I can not agree with the position of the majority of the Chamber in finding a violation of Article 2 (procedural aspect) and Article 38 of the Convention. With regard to the interpretation and application of the procedural aspect of Article 2 of the Convention, I believe that the majority deviated from the principle of subsidiarity – a cornerstone of the Convention system. In the present case the Court has been unable to avoid acting as the appellate body it is not intended to be.", "In its practice the Court often has to strike a balance between subsidiarity and supervision. In the case “Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium v. Belgium (Merits)” the Court refused “to assume the role of the competent national authorities, for it would thereby lose sight of the subsidiary nature of the international machinery of collective enforcement established by the Convention” (paragraph 10, Interpretation adopted by the Court, judgment of 23 July 1968). The present case is threatening to the very principle that guarantees the efficiency of the system. In establishing the violation by the judiciary of Article 2 in its procedural aspect, the Court imputed a number of other actions to the domestic courts that cannot be deemed to be the functions of the judiciary and thus cannot be attributed to it. For instance, the deficiencies described by the Court in paragraphs 261-266 have nothing to do with the activities of the domestic courts.", "According to the legislation at the material time, the courts were the only authority with the power to dispense justice. The domestic courts had no role to play in starting any investigation themselves or collecting any evidence. This was the job of the prosecution. In the present judgment the Court criticises the domestic courts’ inactivity, but the question arises whether, at the material time, the domestic courts actually had the power to remedy the shortcomings the Court imputes to the judiciary today. The answer is that all the issues raised by the Court in the above-mentioned paragraphs should have been clarified by the investigating authorities and not by the domestic courts, because at the material time the judiciary had no right even to return a case for additional investigation without the consent of the prosecution.", "Thus, it is not correct to impute all those deficiencies to the judicial authorities when the latter had no power to cure them. As regards Article 38, I have to disagree with the majority’s departure from the Court’s case-law. In a number of cases the Court has found violations of Article 38 when the requested materials were never submitted to it (Imakayeva v. Russia, no. 7615/02, § 201, Lyanova and Aliyeva v. Russia, nos. 12713/02 and 28440/03, § 145, Nevmerzhitsky v. Ukraine, no.", "54825/00 § 77). In the case of Alikhadzhiyeva v. Russia (no. 68007/01), the respondent Government submitted the case file only after the application had been declared admissible (§ 99). In fact, the Government even directly refused to submit the case file at the communication stage (§ 102). However, in paragraph 104 the Court noted: “As to Article 38, the Court reiterates that it is applicable to cases which have been declared admissible.", "Taking into account the Government’s compliance with the Court’s request after the admissibility decision, the Court cannot find that the delays in submitting the information requested were such as to prejudice the establishment of facts or to otherwise prevent the proper examination of the present case. In these circumstances, the Court considers that there has been no breach of Article 38 of the Convention as regards the timing of the submission of the documents requested by the Court”. From the Court’s above clarification it can be inferred that in order for a delay in submitting the case file to be considered as a violation of Article 38, (i) the delay must occur at that stage in the proceedings when the case is examined on the merits; (ii) the delay must be such as to prejudice the establishment of facts; (iii) the delay must be such as to otherwise prevent the proper examination of the case. In the present case none of the above-mentioned conditions applied. The admissibility and merits of the case were examined at the same time (paragraph 4), and during that examination all the requested materials were in the possession of the Court.", "At the same time, the delay was not of such a nature as to prejudice the establishment of facts or otherwise prevent the proper examination of the case. The judgment on the present case is direct evidence that, based on the materials received, the Court made the relevant factual inferences and drew the corresponding legal conclusions. Nothing suggests either that the Court was unable to fulfil its functions because of the Government’s failure to discharge its obligations under the Convention. So there was no element in the case that could result in a violation of Article 38. This precedent creates a dangerous approach to the use of Article 38, as it may make the Governments rather reluctant to furnish the Court with the materials in their possession, knowing that even if they submit them with a certain delay the Court may still find a breach of Article 38.", "This approach may not be in the Court’s best interest in achieving its ultimate goals. [1] The conversion given in accordance with the exchange rate of the Georgian lari to the euro on 14 December 2010" ]

[ "GRAND CHAMBER CASE OF ORŠUŠ AND OTHERS v. CROATIA (Application no. 15766/03) JUDGMENT STRASBOURG 16 March 2010 In the case of Oršuš and Others v. Croatia, The European Court of Human Rights, sitting as a Grand Chamber composed of: Jean-Paul Costa, President,Nicolas Bratza,Françoise Tulkens,Josep Casadevall,Karel Jungwiert,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Alvina Gyulumyan,Renate Jaeger,Egbert Myjer,Davíd Thór Björgvinsson,Ineta Ziemele,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska,Işıl Karakaş,Nebojša Vučinić, judges,and Vincent Berger, Jurisconsult, Having deliberated in private on 1 April 2009 and on 27 January 2010, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 15766/03) 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 fifteen Croatian nationals (“the applicants”), on 8 May 2003. 2.", "The applicants were represented before the Court by the European Roma Rights Centre based in Budapest, Mrs L. Kušan, a lawyer practising in Ivanić-Grad, and Mr J.A. Goldston, of the New York Bar. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. 3. The applicants alleged, in particular, that the length of the proceedings before the national authorities had been excessive and that they had been denied the right to education and discriminated against in the enjoyment of that right on account of their race or ethnic origin.", "4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). On 17 July 2008 a Chamber of that Section, consisting of Christos Rozakis, Nina Vajić, Khanlar Hajiyev, Dean Spielmann, Sverre Erik Jebens, Giorgio Malinverni and George Nicolaou, judges, and Søren Nielsen, Section Registrar, found unanimously that there had been a violation of Article 6 § 1 of the Convention on account of the excessive length of the proceedings, and that there had not been a violation of Article 2 of Protocol No. 1 taken alone or in conjunction with Article 14 of the Convention. The Chamber also found that the first applicant had withdrawn his application on 22 February 2007 and it therefore discontinued the examination of the application in so far as it concerned the first applicant.", "5. On 13 October 2008 the applicants requested, in accordance with Article 43 of the Convention and Rule 73, that the case be referred to the Grand Chamber. On 1 December 2008 a panel of the Grand Chamber accepted that request. 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 applicants and the Government each filed observations on the admissibility and merits of the case. In addition, third-party comments were received from the Government of the Slovak Republic, Interights and Greek Helsinki Monitor. 8. A hearing took place in public in the Human Rights Building, Strasbourg, on 1 April 2009 (Rule 59 § 3).", "There appeared before the Court: (a) for the GovernmentMrsŠ. Stažnik,Agent,MrD. Maričić, Co-Agent,MrsN. Jakir,MrsI. Ivanišević,Advisers; (b) for the applicantsMrsL.", "Kušan,MrJ.A. Goldston, Counsel,MrA. Dobrushi,MrT. Alexandridis,Advisers. The Court heard addresses by Mr Goldston, Mrs Kušan and Mrs Stažnik.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9. The applicants were born between 1988 and 1994 and live respectively in Orehovica, Podturen and Trnovec. Their names and details are set out in the appendix. 10.", "During their education, the applicants at times attended separate classes, comprising only Roma pupils, at a primary school in the village of Podturen for nine applicants (the second to tenth applicants) and at a primary school in the village of Macinec, in Međimurje County, for five applicants (the eleventh to fifteenth applicants). In Croatia, primary education consists of eight grades and children are obliged to attend school from the age of seven to fifteen. The first four grades are considered as lower grades and each class is assigned a class teacher who in principle teaches all subjects. The fifth to eighth grades are upper grades in which, in addition to a class teacher assigned to each class, different teachers teach different subjects. The curriculum taught in any primary school class, including the Roma-only classes which the applicants attended, may be reduced by up to 30% in comparison to the regular, full curriculum.", "A. General overview of the two primary schools in question 1. Podturen Primary School 11. The proportion of Roma children in the lower grades (from the first to the fourth grade) varies from 33% to 36%. The total number of pupils in Podturen Primary School in 2001 was 463, 47 of whom were Roma.", "There was one Roma-only class, with 17 pupils, while the remaining 30 Roma pupils attended mixed classes. 12. In 2001 a pre-school programme called “Little School” (Mala škola) was introduced in the Lončarevo settlement in Podturen. It included about twenty Roma children and was designed as a preparatory programme for primary school. Three educators were involved, who had previously received special training.", "The programme ran from 11 June to 15 August 2001. This programme has been provided on a permanent basis since 1 December 2003. It usually includes about twenty Roma children aged from 3 to 7. The programme is carried out by an educator and a Roma assistant in cooperation with Podturen Primary School. An evaluation test is carried out at the end of the programme.", "13. In December 2002 the Ministry of Education and Sports adopted a decision introducing Roma assistants in schools with Roma pupils from the first to fourth grades. In Podturen Primary School, there was already a Roma assistant who had worked there since September 2002. A statement made by one such assistant, Mr K.B., on 13 January 2009 reads: “I started work at Podturen Primary School in September 2002. At that time there were two classes in the fourth grade.", "Class four (b) had Roma pupils only and it was very difficult to work with that class because the pupils were agitated and disrupted the teaching. I contemplated leaving after only two months. At the request of teachers, I would give written invitations to the parents or I would invite them orally to come to talk with the teachers at the school. Some parents would come, but often not, and I had to go and ask them again. A lot of time was needed to explain Croatian words to the pupils because some of them continued to speak Romani and the teachers could not understand them.", "I told the pupils that they should attend school regularly. Some pupils would just leave classes or miss a whole day. I helped pupils with homework after school. I helped the school authorities to compile the exact list of pupils in the first grade. I no longer work at the school.” 14.", "Since the school year 2003/04 there have been no Roma-only classes in Podturen Primary School. 2. Macinec Primary School 15. The proportion of Roma children in the lower grades varies from 57% to 75%. Roma-only classes are formed in the lower grades and only exceptionally in the higher grades.", "All classes in the two final grades (seventh and eighth) are mixed. The total number of pupils in Macinec Primary School in 2001 was 445, 194 of whom were Roma. There were 6 Roma-only classes, with 142 pupils in all, while the remaining 52 Roma pupils attended mixed classes. 16. Since 2003 the participation of Roma assistants has been implemented.", "17. A “Little School” pre-school programme was introduced in 2006. B. Individual circumstances of each applicant 18. The applicants submitted that they had been told that they had to leave school at the age of 15.", "Furthermore, the applicants submitted statistics showing that in the school year 2006/07 16% of Roma children aged 15 completed their primary education, compared with 91% of the general primary school population in Međimurje County. The drop-out rate of Roma pupils without completing primary school was 84%, which was 9.3 times higher than for the general population. In the school year 2005/06, 73 Roma children were enrolled in the first grade and 5 in the eighth. 19. The following information concerning each individual applicant is taken from official school records.", "1. Podturen Primary School (a) The first applicant 20. By a letter of 22 February 2007, the first applicant expressed the wish to withdraw his application. Thus in the Chamber judgment of 17 July 2008 the Court decided to discontinue the examination of the application in so far as it concerned the first applicant. (b) The second applicant 21.", "The second applicant, Mirjana Oršuš, was enrolled in the first grade of primary school in the school year 1997/98. She attended a mixed class that year and the following year, but in those two years she failed to go up a grade. In the school years 1999/2000 to 2002/03 she attended a Roma-only class. In 2003/04 to 2005/06 she attended a mixed class. In 2005/06 she took the sixth grade for the second time and failed.", "She failed the first and the sixth grades twice. Out of seventeen regular parent-teacher meetings organised during her primary schooling, her parents attended three. 22. She was provided with additional classes in Croatian in the fourth grade. From the first to the fourth grade she participated in extracurricular activities in a mixed group (that is to say a number of different activities organised for the same group of children), organised by the school.", "After reaching the age of 15, she left school in August 2006. Her school report shows that during her schooling she missed 100 classes without justification. (c) The third applicant 23. The third applicant, Gordan Oršuš, was enrolled in the first grade of primary school in the school year 1996/97 and passed the first grade. That year and the following year he attended a Roma-only class.", "In 1998/99 and 1999/2000 he attended a mixed class and after that a Roma-only class for the remainder of his schooling. In 2002/03 he passed the fourth grade. He failed the second grade three times. Out of fifteen regular parent-teacher meetings organised during his primary schooling, his parents attended two. 24.", "He was not provided with additional classes in Croatian. From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15 he left school in September 2003. His school report shows that during his schooling he missed 154 classes without justification. 25.", "Later, he enrolled in evening classes in the People’s Open College in Čakovec, where he completed his primary education. (d) The fourth applicant 26. The fourth applicant, Dejan Balog, was enrolled in the first grade of primary school in the school year 1996/97. During the first and second years he attended a Roma-only class and the following two years a mixed class. In 2000/01 to 2002/03 he attended a Roma-only class.", "In 2003/04 to 2005/06 he attended a mixed class. In 2005/06 he took the fifth grade for the second time and failed. He failed the second grade three times, the fourth grade once and the fifth grade twice. Out of eleven regular parent-teacher meetings organised during his primary schooling, his parents attended two. 27.", "He was not provided with additional classes in Croatian. From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, he left school in August 2006. His school report shows that during his schooling he missed 881 classes without justification. 28.", "Later, he enrolled in fifth-grade evening classes, but did not attend. (e) The fifth applicant 29. The fifth applicant, Siniša Balog, was enrolled in the first grade of primary school in 1999/2000 and passed the first grade. In 1999/2000 to 2002/03 he attended a Roma-only class, after which he attended a mixed class. In 2006/07 he took the fifth grade for the third time and failed.", "He failed the fourth grade once and the fifth grade three times. Out of eleven regular parent-teacher meetings organised during his primary schooling, his parents attended one. 30. He was not provided with additional classes in Croatian. From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school.", "After reaching the age of 15, he left school in 2008. His school report shows that during his schooling he missed 1,304 classes without justification. In October 2006 the school authorities wrote to the competent social welfare centre informing them of the applicant’s poor school attendance. (f) The sixth applicant 31. The sixth applicant, Manuela Kalanjoš, was enrolled in the first grade of primary school in the school year 1996/97 and attended a Roma-only class.", "The following two years she attended a mixed class. In 1999/2000 to 2002/03 she attended a Roma-only class and passed the fourth grade, after which she attended a mixed class. From February 2003 she followed an adapted curriculum for the rest of her schooling on the ground that a competent expert committee – the Children’s Psycho-physical Aptitude Assessment Board (Povjerenstvo za utvrđivanje psihofizičkog stanja djeteta) had established that she suffered from developmental difficulties. In 2004/05 she took the fifth grade for the second time and failed. She failed the first grade three times and the fifth grade twice.", "Out of eleven regular parent-teacher meetings organised during her primary schooling, her parents attended three. 32. She was provided with additional classes in Croatian in her third grade. From the first to the fourth grade she participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, she left school in August 2005.", "Her school report shows that during her schooling she missed 297 classes without justification. 33. Later, she enrolled in fifth-grade evening classes, but did not attend. (g) The seventh applicant 34. The seventh applicant, Josip Oršuš, was enrolled in the first grade of primary school in 1999/2000 and attended a Roma-only class up to and including the school year 2002/03, after which he attended a mixed class.", "From May 2002 he followed an adapted curriculum in his further schooling on the ground that a competent expert committee – the Children’s Psycho-physical Aptitude Assessment Board (Komisija za utvrđivanje psihofizičke sposobnosti djece) had established that he suffered from developmental difficulties. In 2007/08 he took the sixth grade for the second time and failed. He failed the fifth and sixth grades twice. Out of fifteen regular parent-teacher meetings organised during his primary schooling, his parents attended two. 35.", "He was provided with additional classes in Croatian in the third grade in 2001/02. From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, he left school in February 2008. His school report shows that during his schooling he missed 574 classes without justification. (h) The eighth applicant 36.", "The eighth applicant, Biljana Oršuš, was enrolled in the first grade of primary school in the school year 1996/97 and in her first three school years attended a Roma-only class, after which she attended a mixed class for two years. On 28 December 2000 the Međimurje County State Administration Office for Schooling, Culture, Information, Sport and Technical Culture (Ured za prosvjetu, kulturu, informiranje, šport i tehničku kulturu Međimurske Županije) ordered that she follow an adapted curriculum during the rest of her schooling on the ground that a competent expert committee – the Children’s Psycho-physical Aptitude Assessment Board – had established that she suffered from poor intellectual capacity, concentration difficulties and socio-pedagogical neglect. It was also established that she was in need of treatment from the competent social welfare centre. In 2001/02 and 2002/03 she attended a Roma-only class and passed the fourth grade. In the following two school years she attended a mixed class, took the fifth grade for the second time and failed.", "She failed the third grade three times and the fifth grade twice. Out of seven regular parent-teacher meetings organised during her primary schooling, her parents attended three. 37. She was provided with additional classes in Croatian in the third grade in 2001/02. She participated in extracurricular activities in a mixed group organised by the school.", "After reaching the age of 15, she left school in August 2005. Her school report shows that during her schooling she missed 1,533 classes without justification. (i) The ninth applicant 38. The ninth applicant, Smiljana Oršuš, was enrolled in the first grade of primary school in the school year 1999/2000 and attended a Roma-only class up to and including 2002/03, after which she attended a mixed class. In 2006/07 she took the fifth grade for the third time and failed.", "She failed the fourth grade once and the fifth grade three times. Out of eleven regular parent-teacher meetings organised during her primary schooling, her parents attended three. 39. She was provided with additional classes in Croatian in the third grade in 2001/02. From the first to the fourth grade she participated in extracurricular activities in a mixed group organised by the school.", "After reaching the age of 15, she left school in August 2007. Her school report shows that during her schooling she missed 107 classes without justification. (j) The tenth applicant 40. The tenth applicant, Branko Oršuš, was enrolled in the first grade of primary school in the school year 1997/1998 and attended a mixed class for the first two years. From 1999/00 to 2002/03 he attended a Roma-only class, after which he attended a mixed class.", "On 23 February 2005 the Međimurje County State Welfare Department ordered that he follow an adapted curriculum during the rest of his schooling on the ground that a competent expert committee – the Children’s Psycho-physical Assessment Board – had established that he suffered from developmental difficulties. In 2005/06 he failed the sixth grade. He failed the first grade twice and the fourth and sixth grades once. Out of eleven regular parent-teacher meetings organised during his primary schooling, his parents attended one. 41.", "He was provided with additional classes in Croatian in the third grade in the school year 2001/02. He participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, he left school in August 2006. His school report shows that during his schooling he missed 664 classes without justification. 2.", "Macinec Primary School (a) The eleventh applicant 42. The eleventh applicant, Jasmin Bogdan, was enrolled in the first grade of primary school in 1997/98. The preliminary tests carried out before his assignment to a particular class showed that he did not understand the Croatian language. He scored 15 out of 97 points (15.5%). He was therefore assigned to a Roma-only class, where he spent his entire schooling.", "In 2004/05 he took the fifth grade for the second time and failed. He failed the first and the fourth grades once and the fifth grade twice. Out of twenty-four parent-teacher meetings organised during his entire primary schooling, his parents attended none. 43. He was provided with additional classes in Croatian in the third grade in the school year 2001/02.", "After reaching the age of 15, he left school in August 2005. His school report shows that during his schooling he missed 1,057 classes without justification. (b) The twelfth applicant 44. The twelfth applicant, Josip Bogdan, was enrolled in the first grade of primary school in 1999/2000. The preliminary tests carried out before his assignment to a particular class showed that he did not understand the Croatian language.", "He scored 8 out of 97 points (8.25%). He was therefore assigned to a Roma-only class, where he spent his entire schooling. In 2006/07 he took the third grade for the second time and failed. He failed the first grade once, the second grade three times and the third grade twice. Out of thirty-seven regular parent-teacher meetings organised during his primary schooling, his parents attended none.", "45. He was provided with additional classes in Croatian in the first, second and third grades. In the second grade he participated in a dancing group and in the third grade in a choir. After reaching the age of 15, he left school in August 2007. His school report shows that during his schooling he missed 1,621 classes without justification.", "(c) The thirteenth applicant 46. The thirteenth applicant, Dijana Oršuš, was enrolled in the first grade of primary school in the school year 2000/01. The preliminary tests carried out before her assignment to a particular class showed that she had inadequate knowledge of the Croatian language. She scored 26 out of 97 points (26.8%). She was therefore assigned to a Roma-only class, where she spent her entire schooling.", "In 2007/08 she passed the fifth grade. She failed the first grade twice and the second grade once. Out of thirty-two regular parent-teacher meetings organised during her primary schooling, her parents attended six. 47. She was provided with additional classes in Croatian in the first grade.", "In the first grade she participated in extracurricular activities in a mixed group and in the fifth grade in a choir. After reaching the age of 15, she left school in August 2008. Her school report shows that during her schooling she missed 522 classes without justification. (d) The fourteenth applicant 48. The fourteenth applicant, Dejan Oršuš, was enrolled in the first grade of primary school in 1999/2000.", "The preliminary tests carried out before his assignment to a particular class showed that he did not understand the Croatian language. He scored 15 out of 97 points (15.5%). He was therefore assigned to a Roma-only class, where he spent his entire schooling. In 2005/06 he passed the third grade. He failed the first grade three times and the third grade once.", "Out of twenty-eight regular parent-teacher meetings organised during his primary schooling, his parents attended five. 49. He was provided with additional classes in Croatian in the first grade. After reaching the age of 15, he left school in August 2006. His school report shows that during his schooling he missed 1,033 classes without justification.", "(e) The fifteenth applicant 50. The fifteenth applicant, Danijela Kalanjoš, was enrolled in the first grade of primary school in the school year 2000/01. The preliminary tests carried out before her assignment to a particular class showed that her understanding of the Croatian language was poor. She scored 37 out of 97 points (38.14%). She was therefore assigned to a Roma-only class, where she spent her entire schooling.", "In 2007/08 she passed the fifth grade. She failed the first grade twice and the second grade once. Out of twenty-one regular parent-teacher meetings organised during her entire primary schooling, her parents attended two. 51. She was provided with additional classes in Croatian in the first grade.", "In the first grade she participated in extracurricular activities in a mixed group, in the second grade in dancing, in the third grade in handicraft classes, and in the fifth grade in a choir. After reaching the age of 15, she left school in August 2008. Her school report shows that during her schooling she missed 238 classes without justification. C. Proceedings before the national courts 52. On 19 April 2002 the applicants brought an action under section 67 of the Administrative Disputes Act in the Čakovec Municipal Court (Općinski sud u Čakovcu) against the above-mentioned primary schools and Kuršanec Primary School, the State and Međimurje County (“the defendants”).", "They submitted that the teaching organised in the Roma-only classes in the schools in question was significantly reduced in volume and in scope compared to the officially prescribed curriculum. The applicants claimed that the situation described was racially discriminating and violated their right to education as well as their right to freedom from inhuman and degrading treatment. They requested the court to order the defendants to refrain from such conduct in the future. 53. The applicants also produced the results of a psychological study of Roma children attending Roma-only classes in Međimurje, carried out immediately before their action was lodged, showing the following: – most children had never had a non-Roma child as a friend; – 86.9% expressed a wish to have a non-Roma child as a friend; – 84.5% expressed a wish to attend a mixed class; – 89% said they felt unaccepted in the school environment; – 92% stated that Roma and non-Roma children did not play together.", "Furthermore, the report asserted that segregated education produced emotional and psychological harm in Roma children, in terms of lower self-esteem and self-respect and problems in the development of their identity. Separate classes were seen as an obstacle to creating a social network of Roma and non-Roma children. 54. The defendants each submitted replies to the arguments put forward by the applicants, claiming that there was no discrimination of Roma children and that pupils enrolled in school were all treated equally. They submitted that all pupils were enrolled in school after a committee (composed of a physician, a psychologist, a school counsellor (pedagog), a defectologist and a teacher) had found that the candidates were physically and mentally ready to attend school.", "The classes within a school were formed depending on the needs of the class, the number of pupils, etc. In particular, it was important that classes were formed in such a way that they enabled all pupils to study in a stimulating environment. 55. Furthermore, the defendants submitted that pupils of Roma origin were grouped together not because of their ethnic origin, but rather because they were often not proficient in Croatian and it took more exercises and repetitions for them to master the subjects taught. Finally, they claimed that Roma pupils received the same quality of education as other pupils as the scope of their curriculum did not differ from that prescribed by law.", "56. On 26 September 2002 the Čakovec Municipal Court dismissed the applicants’ action, accepting the defendants’ argument that the reason why most Roma pupils were placed in separate classes was that they were not fluent in Croatian. Consequently, the court held that this was not unlawful and that the applicants had failed to substantiate their allegations concerning racial discrimination. Lastly, the court concluded that the applicants had failed to prove the alleged difference in the curriculum of the Roma-only classes. 57.", "On 17 October 2002 the applicants appealed against the first-instance judgment, claiming that it was arbitrary and contradictory. 58. On 14 November 2002 the Čakovec County Court (Županijski sud u Čakovcu) dismissed the applicants’ appeal, upholding the reasoning of the first-instance judgment. 59. Subsequently, on 19 December 2002, the applicants lodged a complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) under section 62 of the Constitutional Act on the Constitutional Court.", "In their constitutional complaint the applicants reiterated their earlier arguments, relying on the relevant provisions of the Constitution and of the Convention. 60. On 3 November 2003 the applicants’ lawyer lodged an application with the Constitutional Court to expedite the proceedings. On 7 February 2007 the Constitutional Court dismissed the applicants’ complaint in its decision no. U-III-3138/2002, published in Official Gazette no.", "22 of 26 February 2007. The relevant parts of the decision read as follows. “The first-instance court established in the impugned judgment that the criteria for formation of classes in the defendant primary schools had been knowledge of the Croatian language and not the pupils’ ethnic origin. The [first-instance] court considered that the complainants had failed to prove their assertion that they had been placed in their classes on the basis of their racial and ethnic origin. The [first-instance] court stressed that the complainants relied exclusively on the activity report of the Ombudsman for the year 2000.", "However, the Ombudsman said in his evidence that the part of the report referring to the education of Roma had been injudicious because all the relevant facts had not been established. The first-instance court relied on section 27 paragraph 1 of the Primary Education Act ... which provides that teaching in primary schools is in the Croatian language and Latin script, and considered a lack of knowledge of the Croatian language as an objective impediment in complying with the requirements of the school curriculum, which also transpires from the conclusion of a study carried out for the needs of the Croatian Helsinki Committee. The [first-instance] court found: ‘pupils enrolling in the first year of primary schools have to know the Croatian language, so that they are able to follow the teaching, if the purpose of primary education is to be fulfilled. It is therefore logical that classes with children who do not know the Croatian language require additional efforts and commitment of teachers, in particular to teach them the Croatian language.’ The first-instance court found that the defendants had not acted against the law in that they had not changed the composition of classes once established, as only in exceptional situations was the transfer of pupils from one class to another allowed. The [first-instance] court considered that this practice respected the integrity of a class and its unity in the upper grades.", "The [first-instance] court considered that classes should be formed so as to create favourable conditions for an equal approach to all pupils according to the prescribed curriculum and programme, which could be achieved only where a class consisted of a permanent group of pupils of approximately the same age and knowledge. Furthermore, the [first-instance] court found that the complainants had failed to prove their assertion that ... they had a curriculum of significantly smaller volume than the one prescribed for primary schools by the Ministry of Education and Sports on 16 June 1999. The [first-instance] court found that the above assertion of the complainants relied on the Ombudsman’s report. However, the Ombudsman said in his testimony that he did not know how the fact that in Roma-only classes the teaching followed a so-called special programme had been established. The [first-instance] court established that teaching in the complainants’ respective classes and the parallel ones followed the same curriculum.", "Only in the Kuršanec Primary School were there some deviations from the school curriculum, but the [first-instance] court found those deviations permissible since they had occurred ... at the beginning of the school year owing to low attendance. After having established that the complainants had not been placed in their classes according to their racial and ethnic origin and that the curriculum had been the same in all parallel classes, the first-instance court dismissed the complainants’ action. ... The reasoning of the first-instance judgment ... shows that the defendant primary schools replied to the complainants’ allegations as follows: ‘The [defendant schools] enrolled in the first year those children found psycho-physically fit to attend primary school by a committee composed of a physician, a psychologist, a school counsellor [pedagog], a defectologist and a teacher. They did not enrol Croatian children or Roma children as such, but children found by the said committee to be psychologically and physically fit to be enrolled in primary school.", "... The defendant primary schools maintain that the first obstacle for Roma children in psychological tests is their lack of knowledge of the Croatian language in terms of both expression and comprehension. As to the emotional aspect of maturity, most of these children have difficulty channelling their emotions. In terms of social maturity, children of Roma origin do not have the basic hygienic skills of washing, dressing, tying or buttoning, and a lot of time is needed before they achieve these skills. ...", "It is therefore difficult to plan lessons with sufficient motivation for all children, which is one of the obligations of primary schools. There are classes composed of pupils not requiring additional schooling to follow the teaching programme and classes composed of pupils who require supplementary work and assistance from teachers in order to acquire the necessary [skills] they lack owing to social deprivation. ...’ The reasoning of the same judgment cites the testimony of M.P.-P., a school counsellor and psychologist at Macinec Primary School, given on 12 December 2001 ...; ‘Before enrolment the committee questions the children in order to establish whether they possess the skills necessary for attending school. Classes are usually formed according to the Gauss curve, so that the majority in a given class are average pupils and a minority below or above average. ...", "However, in a situation where 70% of the population does not speak Croatian, a different approach is adopted so as to form classes with only pupils who do not speak Croatian, because in those classes a teacher’s first task is to teach the children the language.’ The above shows that the allocation of pupils to classes is based on the skills and needs of each individual child. The approach is individualised and carried out in keeping with professional and pedagogical standards. Thus, the Constitutional Court finds the approach applied correct since only qualified experts, in particular in the fields of pedagogy, school psychology and defectology, are responsible for assigning individual children to the appropriate classes. The Constitutional Court has no reason to question the findings and expert opinions of the competent committees, composed of physicians, psychologists, school counsellors [pedagog], defectologists and teachers, which in the instant case found that the complainants should be placed in separate classes. None of the facts submitted to the Constitutional Court leads to the conclusion that the placement of the complainants in separate classes was motivated by or based on their racial or ethnic origin.", "The Constitutional Court finds that their placement pursued the legitimate aim of necessary adjustment of the primary educational system to the skills and needs of the complainants, where the decisive factor was their lack of knowledge or inadequate knowledge of Croatian, the language used to teach in schools. The separate classes were not established for the purpose of racial segregation in enrolment in the first year of primary school but as a means of providing children with supplementary tuition in the Croatian language and eliminating the consequences of prior social deprivation. It is of particular importance to stress that the statistical data on the number of Roma children in separate classes in the school year 2001/02 ... are not in themselves sufficient to indicate that the defendants’ practice was discriminatory (see also the European Court of Human Rights judgments Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, 4 May 2001, and D.H. and Others v. the Czech Republic, no. 57325/00, § 46, 7 February 2006).", "Moreover, the complainants themselves maintain in their constitutional complaint that in the school year 2001/02 40.93% of Roma children in Međimurje County were placed in regular classes, which tends to support the Constitutional Court’s conclusion that there is no reason to challenge the correct practice of the defendant primary schools and expert committees. ... In their constitutional complaint the complainants further point out that, ‘[e]ven if lack of knowledge of the Croatian language on enrolment in the first year was a problem, the same could not be said of the complainants’ enrolment in upper grades’. They therefore consider that their rights were violated by the courts’ findings that it had been justified to maintain separate [Roma-only] classes in the upper grades in order to preserve the stability of the wholeness of a given class. The complainants submit that the stability of a class should not have been placed above their constitutional rights, multiculturalism and national equality.", "In that regard the Constitutional Court accepts the complainants’ arguments. While the Constitutional Court considers correct and acceptable the courts’ findings that lack of knowledge of the Croatian language represents an objective obstacle justifying the formation of separate classes for children who do not speak Croatian at all or speak it badly when they start school ... bearing in mind the particular circumstance of the present case, it cannot accept the following conclusion of the first-instance court: ‘Furthermore, the integrity and unity of a class is respected in the upper grades. Therefore, transfer of children from one class to another occurs only exceptionally and in justified cases ... because a class is a homogeneous whole and transferring children from one class to another would produce stress. ... The continuity of a group is a precondition for the development of a class collective ...’ Accordingly, the Constitutional Court cannot accept the following view of the appellate court: ‘The classes are formed when the children enter the first year of their schooling, not every year, and their composition changes only exceptionally.", "They become a settled whole which makes for work of a higher quality and it is not pedagogically justified to change them. Therefore this court, like the first-instance court, concludes that maintaining established classes did not amount to an unlawful act.’ The above views of the courts would have been acceptable had they referred to the usual situations concerning the assignment of pupils to upper grade classes in primary schools where no objective need for special measures existed, such as forming separate classes for children with inadequate command of Croatian. Considering the circumstances of the present case, the Constitutional Court finds that it is in principle objectively and reasonably justified to maintain separate classes in the upper grades of primary school only for pupils who have not attained the level of Croatian necessary for them to follow the school curriculum of regular classes properly. ... However, there is no objective or reasonable justification for not transferring to a regular class a pupil who has attained proficiency in Croatian in the lower grades of primary school and successfully mastered the prescribed school curriculum.", "... Keeping such a pupil in a separate class against his or her will ... for reasons unrelated to his or her needs and skills would be unacceptable from the constitutional point of view with regard to the right of equality before the law, guaranteed under Article 14 § 2 of the Constitution. ... ... [A] constitutional complaint is a particular constitutional instrument for the protection of a legal subject whose human right or fundamental freedom guaranteed under the Constitution has been infringed in an individual act of a State or public body which determined his or her rights and obligations. The present constitutional complaint concerns impugned judgments referring to the school year 2001/02. However, not a single complainant alleges that in that school year he or she was a pupil in a separate [Roma-only] upper-grade class or was personally affected or concerned by the contested practice ... Although it does not concern the individual legal position of any of the complainants ..., in respect of the complainants’ general complaint about the maintaining of Roma-only classes in the upper grades of primary school the Constitutional Court has addressed the following question: – was the continued existence of Roma-only classes in the upper grades of primary school ... caused by the defendants’ intent to discriminate those pupils on the basis of their racial or ethnic origin?", "... [N]one of the facts submitted to the Constitutional Court lead to the conclusion that the defendants’ ... practice was aimed at discrimination of the Roma pupils on the basis of their racial or ethnic origin. ... The complainants further complain of a violation of their right to education on the ground that the teaching organised in those classes was more reduced in volume and in scope than the curriculum for primary schools adopted by the Ministry of Education and Sports on 16 June 1999. They consider that ‘their placement in Roma-only classes with an inferior curriculum stigmatises them as being different, stupid, intellectually inferior and children who need to be separated from normal children in order not to be a bad influence on them. Owing to their significantly reduced and simplified school curriculum, their prospects of higher education or enrolment in high schools as well as their employment options or chances of advancement are slimmer ...’ After considering the entire case file, the Constitutional Court has found that the above allegations are unfounded.", "The case file, which includes the first-instance judgment ..., shows that the allegations of an inferior curriculum in Roma-only classes are not accurate. The Constitutional Court has no reason to question the facts as established by the competent court. The possible difference in curricula between parallel classes for objective reasons (for example the low attendance at Kuršanec Primary School, where in the first term of the school year 2001/02 the pupils in classes 1c, 1d, 2b and 2c missed 4,702 lessons in total, 4,170 of which were missed for no justified reason) does not contravene the requirement that the curriculum be the same in all parallel classes. The Constitutional Court is obliged to point out that neither the Constitution nor the Convention guarantees any specific requirements concerning school curricula or their implementation. First and foremost the Constitution and the Convention guarantee a right of access to educational institutions existing in a given State, as well as an effective right to education, in other words that every person has an equal right to obtain official recognition of the studies which he or she has completed (a similar view was expressed by the European Court of Human Rights in a case relating to certain aspects of the laws on the use of languages in education in [Case “relating to certain aspects of the laws on the use of languages in education in] Belgium[”] (merits), 23 July 1968, Series A no.", "6). ... ... [T]he Constitutional Court finds the evidence submitted in the present proceedings insufficient to show beyond doubt that the complainants had to follow a school curriculum of lesser scope. ... Thus, the Constitutional Court considers the complainants’ assertion about being stigmatised as a subjective value judgment, without reasonable justification. The Constitutional Court finds no factual support for the complainants’ assertion that the source of their stigmatisation was an allegedly reduced curriculum owing to which their prospects for further education were lower, and dismisses that assertion as arbitrary.", "The competent bodies of the Republic of Croatia recognise the level of education a person has completed irrespective of his or her racial or ethnic origin. In that respect everyone is equal before the law, with equal chances of advancement according to their abilities.” II. RELEVANT DOMESTIC LAW A. The Constitution 61. Article 14 of the Constitution reads: “Everyone in the Republic of Croatia shall enjoy rights and freedoms, regardless of race, colour, gender, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics.", "All shall be equal before the law.” B. The Constitutional Act on the Constitutional Court 62. The relevant parts of section 62 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 read: “1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, which decided about his or her rights and obligations, or about suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right) ... 2.", "If another legal remedy exists against the violation of the constitutional right [complained of], the constitutional complaint may be lodged only after that remedy has been exhausted. 3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law is allowed, remedies are exhausted only after the decision on these legal remedies has been given.” C. The Administrative Disputes Act 63. Section 67 of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/1992 and 77/1992) provides for special proceedings for the protection of constitutional rights and freedoms from unlawful acts of public officials, specifically that an action can be brought if the following conditions are met: (a) an unlawful action has already taken place; (b) such action is the work of a government official/body/agency or another legal entity; (c) the action resulted in a violation of one or more of the plaintiff’s constitutional rights; and (d) the Croatian legal system does not provide for any other avenue of redress.", "D. The Primary Education Act 64. The relevant provisions of the Primary Education Act (Zakon o osnovnom školstvu, Official Gazette nos. 59/1990, 26/1993, 27/1993, 29/1994, 7/1996, 59/2001, 114/2001 and 76/2005) read: Section 2 “The purpose of primary education is to enable a pupil to acquire knowledge, skills, views and habits necessary for life and work or further education. A school is obliged to ensure continuous development of each pupil as a spiritual, physical, moral, intellectual and social being in accordance with her or his abilities and preferences. The aims of primary education are: – to arouse and cultivate in pupils an interest and independence in learning and problem solving as well as creativity, moral consciousness, aesthetic tastes and criteria, self-esteem and responsibility towards the self and nature, social, economic and political awareness, tolerance and ability to cooperate, respect for human rights, achievements and aspirations; – to teach literacy, communication, calculation, scientific and technological principles, critical observation, rational argumentation, understanding of the life we live and understanding of the interdependence of people and nature, individuals and nations.", "The aims and tasks of primary education shall be realised according to the established teaching plans and programmes.” Section 3 “Primary education lasts at least eight years. Primary education is in principle mandatory for all children from six to fifteen years of age.” III. COUNCIL OF EUROPE REPORTS CONCERNING CROATIA A. The European Commission against Racism and Intolerance (ECRI) 1. The first report on Croatia, published on 9 November 1999 65.", "The relevant part of the report concerning the situation of Roma reads: “32. Overall, Roma/Gypsy are reported to continue to face societal discrimination and official inaction when complaints are filed. Progress has been made in the fields of education and public awareness, through the publication of studies on the subject of Romani education, initiatives related to the organisation and financing of education of Roma children, training of Roma teachers, and public forums on the difficulties faced by Roma/Gypsy society. The authorities are encouraged to give further support to such initiatives, taking into account ECRI’s General Policy Recommendation No. 3 on combating racism and intolerance against Roma/Gypsies.", "...” 2. The second report on Croatia, published on 3 July 2001 66. The relevant parts of this report read: “Access to education 41. Education of Roma/Gypsy children is a serious problem in Croatia. Many Roma/Gypsy children do not go to school, having either dropped out or having never attended.", "According to Roma/Gypsy representatives, there are regions where not a single Roma/Gypsy child attends school. ECRI understands that the reasons for this situation are complex, and there is no easy solution, however emphasises the need to increase the participation of Roma/Gypsy children at all levels of education. The Croatian authorities are encouraged to make special efforts in this regard. 42. ECRI wishes to draw attention to its General Policy Recommendation No.", "3 on combating racism and intolerance against Roma/Gypsies, where the existence of discrimination in explaining the process of social exclusion is highlighted. An investigation should be carried out into the role of stereotypes and prejudices of teachers, which may lead to low expectations for Roma/Gypsy children. ECRI recommends, in this respect, that training be offered to teachers, including information about the particular needs and expectations of Roma/Gypsies and the ability to use this knowledge effectively. As insufficient knowledge of the Croatian language upon entry to classes may also present an obstacle, ECRI emphasises the importance of preparatory classes, additional training in the Croatian language and increased opportunities to study the Roma language in the early years of schooling, which might assist Roma/Gypsy children in integrating into the educational system. ECRI notes with interest initiatives such as the “Programme for Including Roma children in the Education System of the Republic of Croatia”, launched in 1998, and encourages the authorities in their efforts to continue to develop and implement appropriate measures in cooperation with Roma associations.", "Roma/Gypsy organisations have highlighted the connection between poverty, poor living conditions and school attendance. The Croatian authorities might consider creating special assistance programmes for Roma/Gypsy and other children from extremely poor families who may find the costs of textbooks, other school materials and proper school dress prohibitive.” 3. The third report on Croatia, published on 14 June 2005 67. The relevant parts of this report read: “Education and awareness raising 83. ECRI is concerned to learn that schoolbooks sometimes convey negative images of certain minority groups, particularly ... Roma.", "... Situation of the Roma community in Croatia ... 137. ECRI is pleased to learn that in October 2003 the government adopted a national programme for the Roma which aims to resolve many of the difficulties encountered by Roma in their day-to-day lives. The programme is based on the observation that Roma are largely marginalised in social and public activities and experience worse living conditions than the average majority population and other minorities. The programme aims to abolish all forms of discrimination, violence, stereotyping and prejudice against Roma, while ensuring that they do not lose their own identity, culture or traditions. In order to achieve this aim, the programme sets out a series of measures in areas such as access to citizenship, education, housing, access to public services and relations with the police.", "In 2004, a commission made up of government representatives, Roma and NGO [non-governmental organisation] representatives was set up to monitor the programme and develop a joint action plan for the different ministries. A number of measures have already been taken, such as the training of Roma as assistants in schools or as police officers and the training of young Roma at seminars on participation in public life. ... However, implementation of the programme has not really got off the ground yet and NGOs are critical of the lack of budgetary resources provided, though these are essential to the success of such a programme. The programme must be regarded as positive, although in ECRI’s view it does not sufficiently emphasise the part played by stereotyping and prejudice against Roma, both among the population and among representatives of the public authorities, in the difficulties encountered by this community.", "ECRI also notes with interest that the government is in the process of adopting a national action plan for Roma integration, which proposes a wide range of measures to improve the situation of Roma. ... Access to education for Roma children 141. In its second report on Croatia, ECRI recommended that the Croatian authorities make special efforts to increase the participation of Roma children at all levels of education. 142. The authorities have taken measures to facilitate Roma children’s access to education, such as setting up nursery school classes enabling them to learn Croatian, training teachers in Roma culture and training young Roma as assistants in schools.", "Some Roma now receive State grants to enrol in university. However, as they are very recent and applied on a small scale these measures are not enough to offset the fact that Roma children are very much behind in terms of equal opportunities in education. Many Roma children leave school at a very early age. They do not always have access to education in their mother tongue and their own culture in schools, in spite of the legislation on the rights of national minorities which provides for this possibility. The authorities have explained to ECRI that this is because the Roma have not asked for it themselves and because the Romani language is not standardised, with several Romani dialects in Croatia.", "However, some Roma representatives have expressed the wish that the school curriculum for Roma children should include teaching of their mother tongue and Roma culture, though they also emphasise the importance of learning Croatian. 143. ECRI is particularly concerned by allegations that separate classes solely for Roma children exist alongside classes for non-Roma children in some schools in the Međimurje region. According to several NGOs, including the European Roma Rights Centre, education in the classes set aside for Roma children is of poorer quality than in the other classes. According to the authorities, however, the sole reason why there are still classes comprising only Roma children is the de facto segregation which they face where housing is concerned, since Roma are sometimes in the majority in some areas.", "Nevertheless, this explanation does not provide a response to allegations that when the authorities tried to introduce mixed classes instead of separate classes in some schools, they came up against opposition from the non-Roma parents, who apparently signed petitions against this measure, with the result that the separate classes were maintained. ECRI notes that proceedings for racial segregation are pending before the national courts in this connection. Recommendations 144. ECRI urges the Croatian authorities to take measures without delay to improve equal opportunities for Roma children in education. It stresses the paramount importance of elaborating a short-, medium- and long-term policy in the matter and providing sufficient funds and other resources to implement this policy.", "In particular, it should be made easier for Roma children to learn Croatian while also allowing those who so wish to be taught their Romani dialect and Roma culture. 145. ECRI encourages the Croatian authorities to conduct an in-depth investigation into the allegations that segregation is practised between Roma and non-Roma children in some schools and to rapidly take all the necessary measures, where appropriate, to put an end to such situations. 146. ECRI reiterates its recommendations that a study be carried out on the influence of stereotyping and prejudices among teachers, which may lead to low expectations of Roma children.", "It encourages all measures designed to educate teachers about Roma culture.” B. Advisory Committee on the Framework Convention for the Protection of National Minorities 1. Opinion on Croatia adopted on 6 April 2001 68. The relevant parts of the opinion read: Article 4 “... 28. The Advisory Committee finds that Croatia has not been able to secure full and effective equality between the majority population and Roma and that the situation of Roma remains difficult in such fields as employment, housing and education.", "It appears, however, that Roma issues have recently received increasing attention from the central authorities. The Advisory Committee finds it important that this commitment increases the vigour with which sectoral projects for Roma, such as the ones in the field of education (see also comments under Article 12), are pursued and leads to the development, in consultations with Roma, of more comprehensive programmes and strategies to address the concerns of this national minority. ...” Article 12 “... 49. While recognising that there appears to be no large-scale separation of Roma children within the educational system of Croatia, the Advisory Committee is highly concerned about reports that in certain schools, Roma children are placed in separate classes and school facilities are organised and operated in a manner that appears to stigmatise Roma pupils. The Advisory Committee stresses that placing children in separate classes should take place only when it is absolutely necessary and always on the basis of consistent, objective and comprehensive tests.", "The Advisory Committee supports the efforts of the office of the Ombudsman to review this situation with a view to ensuring that Roma children have equal access to, and opportunities to continue to attend, regular classes. The Advisory Committee is aware of the reservations expressed by some Roma with respect to the integration of Roma pupils into regular classes and supports efforts to involve Roma parents and Roma organisations in the process aimed at remedying the current situation. The Advisory Committee considers that a key to reaching this aim is to secure that the educational system reflects and takes fully into account the language and culture of the minority concerned, as stipulated in the principles contained in the Committee of Ministers;’ Recommendation No. R (2000) 4 on the education of Roma/Gypsy children in Europe. The Advisory Committee notes that the government of Croatia adopted in July 1998 a “Programme of Integration of Roma Children in the Educational and School System” which contains a number of useful ideas in this respect.", "The text of the programme appears however rather cursory in nature, and the Advisory Committee considers that Croatia needs to develop, implement and evaluate further its measures aimed at improving the status of Roma in the educational system. ...” V. Proposal for conclusions and recommendations by the Committee of Ministers “... In respect of Article 12 ... The Committee of Ministers concludes that in certain schools in Croatia, Roma children are reportedly placed in separate classes, and school facilities are organised and operated in a manner that appears to stigmatise Roma pupils. The Committee of Ministers recommends that this question be reviewed, and necessary measures taken, with a view to ensuring that Roma children have equal access to, and opportunities to continue to attend, regular classes, bearing in mind the principles contained in the Committee of Ministers’ Recommendation No.", "R (2000) 4 on the education of Roma/Gypsy children in Europe.” 2. Comments submitted by the Croatian Government on 26 September 2001 69. The relevant parts of the comments read: Articles 12 and 14 “... The education of Roma is a serious problem caused by their way of life and their attitude towards the system, laws, rights and obligations of citizens and requires particular efforts and solutions. The Croatian Ministry of Education and Sports, in cooperation with the other ministries and state institutions, local administration and self-government, as well as non-governmental organisations, has initiated programmes to resolve this issue at two levels: (a) Programme of integration of the Roma population into the educational system of the Republic of Croatia.", "(b) Exercise of minority rights aimed at preserving their mother tongue and culture. Regarding pre-school education, the Ministry of Education and Sports, in cooperation with non-governmental organisations, initiated a programme for the inclusion of Roma children and their families, notably mothers, into the system, but only on a voluntary basis, while at the moment there are no effective mechanisms of obligatory inclusion. At the level of primary and secondary education, Roma children attend classes together with other children. Those children who do not speak the Croatian language may well be enrolled in special classes where they receive special attention with a view to learning the Croatian language. This practice is implemented only in the first and second grade of primary school, after which children attend classes together with children of other nationalities.", "Although this practice has yielded some positive results, priority is given to the organisation of pre-school preparation to help Roma children to overcome the language barrier, learn the basic rules of school conduct, hygienic habits and needs, and strengthen the feeling of affiliation and security in the school environment. The Ministry of Education and Sports, in cooperation with the local administration, has taken a number of measures for this purpose – additional assistance to overcome problems concerning the following and comprehension of school lessons, adaptation of curricula to the needs of Roma children, granting of accommodation for Roma pupils (attending secondary schools), follow up to the process of inclusion, assisting in the preparation of young Roma for the profession of teachers and trainers, providing free school meals and bus transport to and from school and so forth.” 3. Second opinion on Croatia adopted on 1 October 2004 70. The relevant parts of the opinion read: “Article 12 of the Framework Convention [for the Protection of National Minorities] ... Education of Roma children and contacts amongst pupils from different communities ... Present situation (a) Positive developments 128.", "The authorities seem to be increasingly sensitive to the problems of Roma children in education and have launched new initiatives, including at the pre-school level, which are aimed at improving the situation and attendance of Roma children in schools. The National Programme for Roma Integration details a number of laudable measures that could help to further the protection of the Roma in the educational system, such as the employment of Roma assistant teachers in regular classes and the provision of free meals for children. (b) Outstanding issues 129. The placing of Roma children in separate classes appears to be increasingly rare in Croatia, but this practice, which has been challenged in pending legal cases, continues in some schools in Međimurje County. The National Programme for Roma Integration also endorses the idea of separate first-grade Roma-only classes for those who have not attended pre-school and are not proficient in the Croatian language.", "Such classes do not appear to be set up to foster teaching in or of Roma language or other elements of Roma culture, but rather to assist the children to obtain basic Croatian language and other skills so that they can meet the demands of the educational system. While recognising that these are valuable aims, the Advisory Committee considers that pupils should not be placed in such separate remedial classes on the basis of their affiliation with a national minority but rather on the basis of the skills and needs of the individuals concerned, and where such placing is found necessary, it should be for a limited period only. ... Recommendations 131. Croatia should fully implement the valuable educational initiatives contained in the National Programme for Roma Integration, including those promoting increased attendance of Roma children in pre-schools.", "The envisaged remedial first-grade classes should, however, not be conceived a priori as Roma classes, but as classes in which individuals are placed on the basis of their skills and needs, regardless of their ethnicity. ...” 4. Comments submitted by the Croatian Government on 13 April 2005 71. The relevant parts of the comments read: Education of Roma children and contacts amongst pupils from different communities “The programme of pre-school education is intended to encompass as large a number of Roma children as possible and thus create the precondition for their successful entrance into the primary education system. The Ministry of Science, Education and Sports has also supported the establishment of kindergartens for Roma children in cooperation with Roma NGOs, international organisations and local authorities.", "The responsible bodies are also helping with the enrolment of Roma pupils in institutions of secondary and higher education and are providing student grants. By increasing the number of Roma children in pre-school education, conditions are created for their enrolment in regular primary schools.” C. Commissioner for Human Rights 1. Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights, on his visit to the Republic of Croatia, 14 to 16 June 2004 72. The relevant parts of the report read: “III. Situation of the Roma community ... 27.", "In spite of non-discrimination on a legal plane, the treatment meted out to the Roma minority still raises anxieties since this population continues to undergo social and economic discrimination. It should nevertheless be observed that efforts have been undertaken in institutional matters especially, the government having set up a National Council of Roma chaired by the Deputy Prime Minister. Locally, and around Međimurje in particular, most districts have had water and electricity connected and are served by school transport. ... A. Segregation in schools 30. The year 2002 saw the worsening of problems around the town of Čakovec which applied a practice of separating Roma and non-Roma pupils in schools.", "An atmosphere of intolerance took hold; non-Roma parents went so far as to stage a demonstration in front of a school at the start of the 2002/03 school year, denying entry to the Roma children. Under strong national and international pressure, the authorities recognised that these practices existed and undertook to review this question. 31. When I visited Čakovec, I had the opportunity to visit a primary school with a mixed enrolment. I hasten to thank the head and the staff of this school for their reception.", "My discussions with them satisfied me that the situation had substantially improved thanks to the commitment of all concerned. Certain difficulties still lingered, however. The Međimurje region has a high proportion of Roma and schools have a large enrolment of Roma pupils who make up as much as 80% of certain age bands. But these figures cannot justify any segregation whatsoever between children, who must be equally treated. I sincerely hope there will be no recurrence of the events which took place in the past, and it is imperative to guarantee that the social and ethnic mix is maintained for the sake of having Roma and non-Roma children educated together in the same classes.", "32. Difficulties over Roma pupils’ Croatian language proficiency were also reported to me. I would stress the importance of putting all pupils through the same syllabus and the same teaching process in one class. Nonetheless, the knowledge gap problem is not to be evaded. As a remedy to it, it could be useful to set up at national level pre-school classes for children whose mother tongue is not Croatian.", "That way, they will acquire a sufficient grounding in the Croatian language to be able to keep up with the primary school courses later, while at the same time familiarising themselves with the school institution. In the second place, it rests with the parents to ensure the sound learning of the language and their children’s regular attendance for the entire school course.” 2. Final report by Mr Alvaro Gil-Robles on the Human Rights Situation of the Roma, Sinti and Travellers in Europe (dated 15 February 2006) 73. In the third section of the report, which concerns discrimination in education, the Commissioner for Human Rights noted that the fact that a significant number of Roma children did not have access to education of a similar standard to that enjoyed by other children was in part a result of discriminatory practices and prejudices. In that connection, he noted that segregation in education was a common feature in many Council of Europe member States.", "In some countries there were segregated schools in segregated settlements, in others special classes for Roma children in ordinary schools. Being subjected to special schools or classes often meant that these children followed a curriculum inferior to those of mainstream classes, which diminished their opportunities of further education and finding employment in the future. At the same time, segregated education denied both Roma and non-Roma children the chance to know each other and to learn to live as equal citizens. It excluded Roma children from mainstream society at the very beginning of their lives, increasing the risk of their being caught in the vicious circle of marginalisation. 74.", "It was also noted that special classes or special curricula for Roma had been introduced with good intentions, for the purposes of overcoming language barriers or remedying the lack of pre-school attendance of Roma children. Evidently, it was necessary to respond to such challenges, but segregation or systematic placement of Roma children in classes which followed a simplified or a special Romani-language curriculum while isolating them from other pupils was clearly a distorted response. Instead of segregation, significant emphasis had to be placed on measures such as pre-school and in-school educational and linguistic support as well as the provision of school assistants to work alongside teachers. In certain communities, it was crucial to raise the awareness of Roma parents – who themselves might not have had the possibility to attend school – of the necessity and benefits of adequate education for their children. 75.", "In conclusion, the Commissioner made a number of recommendations related to education. Where segregated education still existed in one form or another, it had to be replaced by ordinary integrated education and, where appropriate, banned through legislation. Adequate resources had to be made available for the provision of pre-school education, language training and school assistant training in order to ensure the success of desegregation efforts. Adequate assessment had to be made before children were placed in special classes, in order to ensure that the sole criterion in the placement was the objective needs of the child, not his or her ethnicity. 76.", "The excerpt of the report concerning Croatia reads: “52. While visiting Croatia in 2004, I learned of a two-year programme, initiated in 2002, to prepare all Roma children for schools, under which children were taught various skills in the Croatian language. Under the Croatian Action Plan for the Decade for Roma Inclusion, special efforts to improve pre-school education for Roma children have been continued with a view to full integration in[to] the regular school system. ...” IV. OTHER COUNCIL OF EUROPE DOCUMENTS A.", "The Committee of Ministers 1. Recommendation No. R (2000) 4 of the Committee of Ministers to member States on the education of Roma/Gypsy children in Europe (adopted by the Committee of Ministers on 3 February 2000 at the 696th meeting of the Ministers’ Deputies) 77. The Recommendation provides as follows: “The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, Considering that the aim of the Council of Europe is to achieve greater unity between its members and that this aim may be pursued, in particular, through common action in the field of education; Recognising that there is an urgent need to build new foundations for future educational strategies toward the Roma/Gypsy people in Europe, particularly in view of the high rates of illiteracy or semi-literacy among them, their high drop-out rate, the low percentage of students completing primary education and the persistence of features such as low school attendance; Noting that the problems faced by Roma/Gypsies in the field of schooling are largely the result of long-standing educational policies of the past, which led either to assimilation or to segregation of Roma/Gypsy children at school on the grounds that they were ‘socially and culturally handicapped’; Considering that the disadvantaged position of Roma/Gypsies in European societies cannot be overcome unless equality of opportunity in the field of education is guaranteed for Roma/Gypsy children; Considering that the education of Roma/Gypsy children should be a priority in national policies in favour of Roma/Gypsies; Bearing in mind that policies aimed at addressing the problems faced by Roma/Gypsies in the field of education should be comprehensive, based on an acknowledgement that the issue of schooling for Roma/Gypsy children is linked with a wide range of other factors and pre-conditions, namely the economic, social and cultural aspects, and the fight against racism and discrimination; Bearing in mind that educational policies in favour of Roma/Gypsy children should be backed up by an active adult education and vocational education policy; ... Recommends that in implementing their education policies the governments of the member States: – be guided by the principles set out in the appendix to this Recommendation; – bring this Recommendation to the attention of the relevant public bodies in their respective countries through the appropriate national channels.” 78.", "The relevant sections of the Appendix to Recommendation No. R (2000) 4 read as follows: “Guiding principles of an education policy for Roma/Gypsy children in Europe I. Structures 1. Educational policies for Roma/Gypsy children should be accompanied by adequate resources and the flexible structures necessary to meet the diversity of the Roma/Gypsy population in Europe and which take into account the existence of Roma/Gypsy groups which lead an itinerant or semi-itinerant lifestyle. In this respect, it might be envisaged having recourse to distance education, based on new communication technologies.", "2. Emphasis should be put on the need to better coordinate the international, national, regional and local levels in order to avoid dispersion of efforts and to promote synergies. 3. To this end member States should make the ministries of education sensitive to the question of education of Roma/Gypsy children. 4.", "In order to secure access to school for Roma/Gypsy children, pre-school education schemes should be widely developed and made accessible to them. 5. Particular attention should also be paid to the need to ensure better communication with parents, where necessary using mediators from the Roma/Gypsy community which could then lead to specific career possibilities. Special information and advice should be given to parents about the necessity of education and about the support mechanisms that municipalities can offer families. There has to be mutual understanding between parents and schools.", "The parents’ exclusion and lack of knowledge and education (even illiteracy) also prevent children from benefiting from the education system. 6. Appropriate support structures should be set up in order to enable Roma/Gypsy children to benefit, in particular through positive action, from equal opportunities at school. 7. The member States are invited to provide the necessary means to implement the above-mentioned policies and arrangements in order to close the gap between Roma/Gypsy pupils and majority pupils.", "II. Curriculum and teaching material 8. Educational policies in favour of Roma/Gypsy children should be implemented in the framework of broader intercultural policies, taking into account the particular features of the Romani culture and the disadvantaged position of many Roma/Gypsies in the member States. 9. The curriculum, on the whole, and the teaching material should therefore be designed so as to take into account the cultural identity of Roma/Gypsy children.", "Romani history and culture should be introduced in the teaching material in order to reflect the cultural identity of Roma/Gypsy children. The participation of representatives of the Roma/Gypsy community should be encouraged in the development of teaching material on the history, culture or language of the Roma/Gypsies. 10. However, the member States should ensure that this does not lead to the establishment of separate curricula, which might lead to the setting up of separate classes. 11.", "The member States should also encourage the development of teaching material based on good practices in order to assist teachers in their daily work with Roma/Gypsy pupils. 12. In the countries where the Romani language is spoken, opportunities to learn in the mother tongue should be offered at school to Roma/Gypsy children. III. Recruitment and training of teachers 13.", "It is important that future teachers should be provided with specific knowledge and training to help them understand better their Roma/Gypsy pupils. The education of Roma/Gypsy pupils should however remain an integral part of the general educational system. 14. The Roma/Gypsy community should be involved in the designing of such curricula and should be directly involved in the delivery of information to future teachers. 15.", "Support should also be given to the training and recruitment of teachers from within the Roma/Gypsy community. ...” 2. Recommendation CM/Rec(2009)4 of the Committee of Ministers to member States on the education of Roma and Travellers in Europe (adopted by the Committee of Ministers on 17 June 2009 at the 1061st meeting of the Ministers’ Deputies) 79. The relevant parts of the Recommendation read: “The Committee of Ministers ... 1. Recommends that the governments of member States, with due regard for their constitutional structures, national or local situations and educational systems: ... b. elaborate, disseminate and implement education policies focusing on ensuring non-discriminatory access to quality education for Roma and Traveller children, based on the orientations set out in the appendix to this recommendation; ... d. ensure, through local and regional authorities, that Roma and Traveller children are effectively accepted in school; ...” 80.", "The relevant sections of the Appendix to Recommendation CM/Rec(2009)4 read as follows. “I. Principles of policies ... 5. Member States should ensure that legal measures are in place to prohibit segregation on racial or ethnic grounds in education, with effective, proportionate and dissuasive sanctions, and that the law is effectively implemented. Where de facto segregation of Roma and Traveller children based on their racial or ethnic origin exists, authorities should implement desegregation measures.", "Policies and measures taken to fight segregation should be accompanied by appropriate training of educational staff and information for parents. 6. Educational authorities should set up assessment procedures that do not result in risks of enrolling children in special education institutions based on linguistic, ethnic, cultural or social differences but facilitate access to schooling. Roma and Traveller representatives should be involved in defining and monitoring these procedures. ... II.", "Structures and provision for access to education 9. Roma and Travellers should be provided with unhindered access to mainstream education at all levels subject to the same criteria as the majority population. To accomplish this goal, imaginative and flexible initiatives should be taken as required in terms of educational policy and practice. Appropriate measures should also be taken to ensure equal access to educational, cultural, linguistic and vocational opportunities offered to all learners, with particular attention to Roma and Traveller girls and women. 10.", "Attendance of pre-school education for Roma and Traveller children should be encouraged, under equal conditions as for other children, and enrolment in pre-school education should be promoted if necessary by providing specific support measures. ... III. Curriculum, teaching material and teacher training ... 19. Educational authorities should ensure that all teachers, and particularly those working in ethnically mixed classes, receive specialised training on intercultural education, with a special regard to Roma and Travellers. Such training should be included in officially recognised programmes and should be made available in various forms, including distance and online learning, summer schools, etc.", "20. Teachers working directly with Roma and Traveller children should be adequately supported by Roma or Traveller mediators or assistants and should be made aware that they need to engage Roma and Traveller children more in all educational activities and not de-motivate them by placing lower demands upon them and encourage them to develop their full potential. ...” B. The Parliamentary Assembly of the Council of Europe 1. Recommendation No.", "1203 (1993) on Gypsies in Europe 81. The Parliamentary Assembly made, inter alia, the following general observations: “1. One of the aims of the Council of Europe is to promote the emergence of a genuine European cultural identity. Europe harbours many different cultures, all of them, including the many minority cultures, enriching and contributing to the cultural diversity of Europe. 2.", "A special place among the minorities is reserved for Gypsies. Living scattered all over Europe, not having a country to call their own, they are a true European minority, but one that does not fit into the definitions of national or linguistic minorities. 3. As a non-territorial minority, Gypsies greatly contribute to the cultural diversity of Europe. In different parts of Europe they contribute in different ways, be it by language and music or by their trades and crafts.", "4. With central and east European countries now member States, the number of Gypsies living in the area of the Council of Europe has increased drastically. 5. Intolerance of Gypsies by others has existed throughout the ages. Outbursts of racial or social hatred, however, occur more and more regularly, and the strained relations between communities have contributed to the deplorable situation in which the majority of Gypsies lives today.", "6. Respect for the rights of Gypsies, individual, fundamental and human rights and their rights as a minority, is essential to improve their situation. 7. Guarantees for equal rights, equal chances, equal treatment, and measures to improve their situation will make a revival of Gypsy language and culture possible, thus enriching the European cultural diversity. 8.", "The guarantee of the enjoyment of the rights and freedoms set forth in Article 14 of the European Convention on Human Rights is important for Gypsies as it enables them to maintain their individual rights. ...” 82. As far as education is concerned, the Recommendation states: “vi. the existing European programmes for training teachers of Gypsies should be extended; ... viii. talented young Gypsies should be encouraged to study and to act as intermediaries for Gypsies; ...” 2.", "Recommendation No. 1557 (2002) on the legal situation of Roma in Europe 83. This Recommendation states, inter alia: “... 3. Today Roma are still subjected to discrimination, marginalisation and segregation. Discrimination is widespread in every field of public and personal life, including access to public places, education, employment, health services and housing, as well as crossing borders and access to asylum procedures.", "Marginalisation and the economic and social segregation of Roma are turning into ethnic discrimination, which usually affects the weakest social groups. 4. Roma form a special minority group, in so far as they have a double minority status. They are an ethnic community and most of them belong to the socially disadvantaged groups of society. ... 15.", "The Council of Europe can and must play an important role in improving the legal status, the level of equality and the living conditions of Roma. The Assembly calls upon the member States to complete the six general conditions, which are necessary for the improvement of the situation of Roma in Europe: ... c. to guarantee equal treatment for the Romany minority as an ethnic or national minority group in the field of education, employment, housing, health and public services. Member States should give special attention to: i. promoting equal opportunities for Roma on the labour market; ii. providing the possibility for Romany students to participate in all levels of education from kindergarten to university; iii. developing positive measures to recruit Roma in public services of direct relevance to Roma communities, such as primary and secondary schools, social welfare centres, local primary health care centres and local administration; ... d. to develop and implement positive action and preferential treatment for the socially deprived strata, including Roma as a socially disadvantaged community, in the field of education, employment and housing ... e. to take specific measures and create special institutions for the protection of the Romany language, culture, traditions and identity: ... ii.", "to encourage Romany parents to send their children to primary school, secondary school and higher education, including college or university, and give them adequate information about the necessity of education; ... v. to recruit Roma teaching staff, particularly in areas with a large Romany population; f. to combat racism, xenophobia and intolerance and to ensure non-discriminatory treatment of Roma at local, regional, national and international levels: ... vi. to pay particular attention to the phenomenon of discrimination against Roma, especially in the fields of education and employment; ...” C. ECRI 1. ECRI General Policy Recommendation No. 3 on combating racism and intolerance against Roma/Gypsies (adopted by ECRI on 6 March 1998) 84. The relevant sections of this Recommendation state: “The European Commission against Racism and Intolerance: ... Recalling that combating racism, xenophobia, anti-Semitism and intolerance forms an integral part of the protection and promotion of human rights, that these rights are universal and indivisible, and that all human beings, without any distinction whatsoever, are entitled to these rights; ...", "Noting that Roma/Gypsies suffer throughout Europe from persisting prejudices, are victims of a racism which is deeply rooted in society, are the target of sometimes violent demonstrations of racism and intolerance and that their fundamental rights are regularly violated or threatened; Noting also that the persisting prejudices against Roma/Gypsies lead to discrimination against them in many fields of social and economic life, and that such discrimination is a major factor in the process of social exclusion affecting many Roma/Gypsies; ... recommends the following to governments of member States: ... – to ensure that discrimination as such, as well as discriminatory practices, are combated through adequate legislation and to introduce into civil law specific provisions to this end, particularly in the fields of employment, housing and education; ... – to vigorously combat all forms of school segregation towards Roma/Gypsy children and to ensure the effective enjoyment of equal access to education; ...” 2. ECRI General Policy Recommendation No. 7 on national legislation to combat racism and racial discrimination (adopted by ECRI on 13 December 2002) 85. The following definitions are used for the purposes of this Recommendation: “(a) ’racism’ shall mean the belief that a ground such as race, colour, language, religion, nationality or national or ethnic origin justifies contempt for a person or a group of persons, or the notion of superiority of a person or a group of persons. (b) ’direct racial discrimination’ shall mean any differential treatment based on a ground such as race, colour, language, religion, nationality or national or ethnic origin, which has no objective and reasonable justification.", "Differential treatment has no objective and reasonable justification if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. (c) ’indirect racial discrimination’ shall mean cases where an apparently neutral factor such as a provision, criterion or practice cannot be as easily complied with by, or disadvantages, persons belonging to a group designated by a ground such as race, colour, language, religion, nationality or national or ethnic origin, unless this factor has an objective and reasonable justification. This latter would be the case if it pursues a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised.” 86. In the explanatory memorandum to this Recommendation, it is noted (point 8) that the definitions of “direct” and “indirect” racial discrimination contained in paragraph 1 (b) and (c) of the Recommendation draw inspiration from those contained in Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and in Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation and on the case-law of the European Court of Human Rights. V. RELEVANT UNITED NATIONS MATERIALS A.", "International Covenant on Civil and Political Rights 87. Article 26 of the Covenant provides: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” B. United Nations Human Rights Committee 88. In points 7 and 12 of its General Comment No.", "18 of 10 November 1989 on non-discrimination, the Committee expressed the following opinion: “7. ... the Committee believes that the term ‘discrimination’ as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. ... 12. ... when legislation is adopted by a State Party, it must comply with the requirement of Article 26 that its content should not be discriminatory. ...” 89.", "In point 11.7 of its Views dated 31 July 1995 on Communication no. 516/1992 concerning the Czech Republic, the Committee noted: “... the Committee is of the view, however, that the intent of the legislature is not alone dispositive in determining a breach of Article 26 of the Covenant. A politically motivated differentiation is unlikely to be compatible with Article 26. But an act which is not politically motivated may still contravene Article 26 if its effects are discriminatory.” C. International Convention on the Elimination of All Forms of Racial Discrimination 90. The relevant part of Article 1 of this Convention provides: “... the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.", "...” D. Committee on the Elimination of Racial Discrimination 91. In its General Recommendation No. 14 of 22 March 1993 on the definition of discrimination, the Committee noted, inter alia: “1. ... A distinction is contrary to the [International Convention on the Elimination of All Forms of Racial Discrimination] if it has either the purpose or the effect of impairing particular rights and freedoms. This is confirmed by the obligation placed upon States parties by Article 2 § 1 (c) to nullify any law or practice which has the effect of creating or perpetuating racial discrimination.", "... 2. ... In seeking to determine whether an action has an effect contrary to the [International Convention on the Elimination of All Forms of Racial Discrimination], [the Committee] will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin.” 92. In its General Recommendation No. 19 of 18 August 1995 on racial segregation and apartheid, the Committee observed: “3.", "... while conditions of complete or partial racial segregation may in some countries have been created by governmental policies, a condition of partial segregation may also arise as an unintended by-product of the actions of private persons. In many cities residential patterns are influenced by group differences in income, which are sometimes combined with differences of race, colour, descent and national or ethnic origin, so that inhabitants can be stigmatized and individuals suffer a form of discrimination in which racial grounds are mixed with other grounds. 4. The Committee therefore affirms that a condition of racial segregation can also arise without any initiative or direct involvement by the public authorities. ...” 93.", "In its General Recommendation No. 27 of 16 August 2000 on discrimination against Roma, the Committee made, inter alia, the following recommendation in the education sphere: “17. To support the inclusion in the school system of all children of Roma origin and to act to reduce drop-out rates, in particular among Roma girls, and, for these purposes, to cooperate actively with Roma parents, associations and local communities. 18. To prevent and avoid as much as possible the segregation of Roma students, while keeping open the possibility for bilingual or mother-tongue tuition; to this end, to endeavour to raise the quality of education in all schools and the level of achievement in schools by the minority community, to recruit school personnel from among members of Roma communities and to promote intercultural education.", "19. To consider adopting measures in favour of Roma children, in cooperation with their parents, in the field of education.” 94. In its concluding observations of 30 March 1998 following its examination of the report submitted by the Czech Republic, the Committee noted, inter alia: “13. The marginalisation of the Roma community in the field of education is noted with concern. Evidence that a disproportionately large number of Roma children are placed in special schools, leading to de facto racial segregation, and that they also have a considerably lower level of participation in secondary and higher education, raises doubts about whether Article 5 of the [International Convention on the Elimination of All Forms of Racial Discrimination] is being fully implemented.” E. Convention on the Rights of the Child 95.", "The relevant parts of Articles 28 and 30 of this Convention provide as follows. Article 28 “1. States Parties recognise the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) Make primary education compulsory and available free to all; ... (e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates. ...” Article 30 “In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.” F. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities 96. The relevant part of Article 4 provides: “1.", "States shall take measures where required to ensure that persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law. ...” G. United Nations Education, Scientific and Cultural Organization (Unesco) 97. Articles 1 and 3 of the Convention against Discrimination in Education of 14 December 1960 provide in their relevant parts as follows. Article 1 “1. For the purposes of this Convention, the term ‘discrimination’ includes any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education and in particular: (a) Of depriving any person or group of persons of access to education of any type or at any level; (b) Of limiting any person or group of persons to education of an inferior standard; (c) Subject to the provisions of Article 2 of this Convention, of establishing or maintaining separate educational systems or institutions for persons or groups of persons; or (d) Of inflicting on any person or group of persons conditions which are incompatible with the dignity of man.", "...” Article 3 “In order to eliminate and prevent discrimination within the meaning of this Convention, the States Parties thereto undertake: (a) To abrogate any statutory provisions and any administrative instructions and to discontinue any administrative practices which involve discrimination in education; (b) To ensure, by legislation where necessary, that there is no discrimination in the admission of pupils to educational institutions; ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 98. The applicants complained about the length of the proceedings before the national courts. They relied on Article 6 § 1 of the Convention, which reads in its relevant parts 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. The Chamber judgment 99.", "In its judgment of 17 July 2008, the Chamber found that Article 6 was applicable to the present case under its civil head and that the length of the proceedings had been excessive. B. The parties’ submissions to the Grand Chamber 1. Applicability of Article 6 § 1 100. The Government, relying on the Court’s judgment in Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom (10 July 1998, Reports of Judgments and Decisions 1998‑IV), disputed the applicability of Article 6 to the proceedings conducted before the national courts upon the applicants’ civil action.", "101. The applicants argued in favour of the applicability of Article 6. 2. Merits 102. The applicants complained that the length of the proceedings, and in particular those before the Constitutional Court, had exceeded the reasonable time requirement.", "103. The Government contested that argument, stressing the special role of the Constitutional Court and the fact that it had to address complex constitutional issues in the applicants’ case. C. The Court’s assessment 1. As to the Government’s preliminary objection 104. In its judgment in Emine Araç v. Turkey (no.", "9907/02, ECHR 2008), the Court explicitly recognised, for the first time, that the right of access to higher education is a right of a civil nature and, in so doing, it abandoned the case-law of the Commission (see André Simpson v. the United Kingdom, no. 14688/89, Commission decision of 4 December 1989, Decisions and Reports 64, p. 188), which had concluded that Article 6 was inapplicable to proceedings concerning the laws on education (on the ground that the right not to be denied primary education fell within the domain of public law). The Court considers that the same reasoning applies a fortiori in the context of primary education (argumentum a maiore ad minus). 105. In addition, in the Kök v. Turkey judgment (no.", "1855/02, § 36, 19 October 2006), the Court found that, where a State confers rights which can be enforced by means of a judicial remedy, these can, in principle, be regarded as civil rights within the meaning of Article 6 § 1 (see, along the same lines, Tinnelly & Sons Ltd and Others and McElduff and Others, cited above, § 61). 106. As to the present case, it seems clear that a “dispute” arose in respect of the applicants’ initial and then continuing placement in Roma-only classes during their schooling in primary schools. The proceedings before the domestic courts concerned the applicants’ allegations of infringement of their right not to be discriminated against in the sphere of education, their right to education and their right not to be subjected to inhuman and degrading treatment. The applicants raised their complaints before the regular civil courts and the Constitutional Court and their complaints were examined on the merits.", "107. Furthermore, the applicants’ right not to be discriminated against on the basis of race was clearly guaranteed under Article 14 § 1 of the Constitution and, as such, enforceable before the regular civil courts in the national legal system (see, mutatis mutandis, Tserkva Sela Sosulivka v. Ukraine, no. 37878/02, § 42, 28 February 2008, and Gülmez v. Turkey, no. 16330/02, § 29, 20 May 2008). In view of the above, the Court concludes that Article 6 § 1 is applicable in the instant case.", "2. Merits 108. The Court reiterates that the reasonableness of the length of these proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the applicants’ conduct and that of the competent authorities, and the importance of what was at stake for the applicants in the litigation (see Süßmann v. Germany, 16 September 1996, § 48, Reports 1996‑IV, and Gast and Popp v. Germany, no. 29357/95, § 70, ECHR 2000‑II). In this connection, the Court notes that the proceedings commenced on 19 April 2002 and ended with the Constitutional Court’s decision of 7 February 2007.", "While the case was speedily decided by the trial and appellate court, where the proceedings lasted for some seven months, the same cannot be said of the length of the proceedings before the Constitutional Court, which lasted for four years, one month and eighteen days. 109. Although the Court accepts that the Constitutional Court’s role of guardian of the Constitution sometimes makes it particularly necessary for it to take into account considerations other than the mere chronological order in which cases are entered on the list, such as the nature of a case and its importance in political and social terms, the Court finds that a period exceeding four years to decide on the applicants’ case and in particular in view of what was at stake, namely the right to education, appears excessive. 110. Accordingly, the Court considers that in the present case there has been a violation of Article 6 § 1 of the Convention on account of the length of the proceedings before the Constitutional Court.", "II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 2 OF PROTOCOL No. 1 111. The applicants complained that they had been denied their right to education and discriminated against in this respect. They relied on Article 14 of the Convention taken in conjunction with Article 2 of Protocol No.", "1, which read as follows: Article 14 – Prohibition of discrimination “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 2 of Protocol No. 1 – Right to education “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” A. The Chamber judgment 112. The Chamber found no violation of Article 2 of Protocol No.", "1 taken alone or in conjunction with Article 14 of the Convention. It held that the applicants had been assigned to Roma-only classes because they lacked sufficient command of the Croatian language and that this measure had been justified. B. The parties’ submissions to the Grand Chamber 1. The applicants 113.", "As regards the nine applicants (the second to tenth applicants) who had attended Podturen Primary School, the applicants submitted that in the school year 2000/01, when they had all attended the second grade, a majority of them had been assigned to a Roma-only class. The following year, all nine of the applicants attending Podturen Primary School had been assigned to a Roma-only class with nineteen Roma pupils. At the same time there was only one other class in the third grade, consisting of nineteen non-Roma pupils. In the school year 2002/03 all nine applicants had been assigned together to a Roma-only class in the fourth grade. In the school year 2003/04 they had all been assigned to a mixed class only because there had not been enough Roma pupils to form a Roma-only class.", "114. As regards the five applicants (the eleventh to fifteenth applicants) who attended Macinec Primary School, the applicants submitted that they had been assigned to a Roma-only class during their entire schooling. Most of the other Roma pupils had been assigned to Roma-only classes. In total, out of 153 Roma pupils in the first four grades, 137 had been assigned to Roma-only classes. In the fourth grade, out of 44 pupils, 21 were Roma, all assigned to a Roma-only class.", "The applicants argued that the Government had failed to present any consistent and rational explanation for forming a Roma-only class in the fourth year of schooling in Macinec Primary School since, in the applicants’ view, by then all their language problems should have already been adequately remedied. The number of Roma-only classes in Croatia had increased from 27 in 2004 to 68 in 2008, 62 of which were in Međimurje County. 115. The applicants stressed, in particular, that the method used by the school authorities, allegedly to improve their language skills, had been inadequate. In their opinion the best method of integrating children with insufficient language proficiency would have been to place them in classes together with children who spoke the language of instruction because that, coupled with additional lessons in Croatian, would have been the easiest and fastest way for the applicants to learn Croatian.", "The applicants argued that it was critical to ensure that children who spoke a different language at home were included in groups that could provide good role models in terms of the majority language and created the best conditions for their language needs. They maintained that various research reports and expert bodies within the Council of Europe, the European Union and the United Nations recommended an integrative approach in the field of education of Roma children. 116. The applicants argued that there had been no specific programme in the above respect. They admitted, however, that the sixth, seventh, tenth and twelfth to fifteenth applicants had been provided with additional lessons in Croatian.", "They also argued that they had been provided with a substandard curriculum taught in Roma-only classes. 117. The applicants claimed that there had been no legal basis for assigning them to a Roma-only class. They argued that there had been no clear, accessible and foreseeable procedures regarding the assignment of pupils to special classes, either upon their enrolment or at subsequent stages in their education. In their view the tests employed as a part of the enrolment procedure were not designed to assess a child’s knowledge of the Croatian language but as an orientation point in determining the child’s psycho-physical status.", "118. The applicants submitted that, apart from a general grading system, there had been no other specialised periodic assessment of their progress in acquiring an adequate command of the Croatian language. The grading scale was from one to five, and the lowest pass mark was two. They further argued that even when they had achieved a pass mark in the Croatian language they had not been transferred to a mixed class. 119.", "As a rule, their transfer to a mixed class had not been considered. On the contrary, the school authorities had refused to transfer them, claiming that the principle of homogeneity of a class was paramount. 120. The applicants claimed that there had been no specific measures in place for improving their poor school attendance and high drop-out rate, other than sanctions against pupils and parents. 121.", "The applicants submitted that there had been Roma assistants in the 1990s and that recently they had been reintroduced, but that both times this had been without a legal basis and without clear and objective criteria for hiring them that would have ensured their competence and positive results. 122. They further argued that they had not taken part in any extracurricular activities in an ethnically/racially mixed group organised by the school. They pointed to the lack of systematic and structured approach to the integration of Roma children into mainstream classes. Even if ethnically mixed extracurricular activities existed, they would be no substitute for complete classroom integration.", "2. The Government 123. The Government firstly pointed out that the applicants had not been deprived of the right to attend school and receive education since they had all enrolled in primary school at the age of seven, like all children in Croatia, and had attended school until they reached the age of fifteen, after which schooling was no longer mandatory. The Government admitted that it was possible that the curriculum in Roma-only classes was reduced by up to 30% in relation to the regular, full curriculum. They argued that this was admissible under relevant domestic laws, and that such a possibility had not been reserved for Roma-only classes but was applied in respect of all primary school classes in Croatia, depending on the particular situation in a given class.", "Furthermore, the Roma-only classes were by no means “special” classes of any kind. They were ordinary classes in ordinary schools and were created only in schools where the proportion of Roma pupils was significant or where they represented a majority of pupils in a given generation, and then only in respect of those Roma pupils who also lacked adequate command of the Croatian language. In Podturen Primary School the number of Roma children in the lower grades varied from 33% to 36%. In 2001 the total number of pupils had been 463, of whom 47 were Roma. There had been only one Roma-only class, with 17 pupils, while the remaining 33 Roma pupils had attended mixed classes.", "Since 2003 there had been no Roma-only classes in that school. In Macinec Primary School the number of Roma children in the lower grades varied from 57% to 75%. Roma-only classes were formed in the lower grades and only exceptionally in the upper grades. All classes in the two final grades were mixed. In 2001 the total number of pupils had been 445, of whom 194 were Roma.", "There had been six Roma-only classes, with 142 pupils, while the remaining 52 Roma pupils had attended mixed classes. 124. The Government submitted that the applicants had been assigned to Roma-only classes on the basis of section 2 of the Primary Education Act and the Rules on the number of pupils in regular and multi-grade classes. Under section 2 of the Primary Education Act the purpose of primary education was to ensure the continuing development of each pupil as a spiritual, physical, moral, intellectual and social being, according to his or her capabilities and affinities. In the Government’s view this could only be achieved in a permanent group of pupils of approximately the same age and knowledge.", "The same legal basis and the same criteria had been applied in respect of all other pupils. The applicants had been submitted to the same tests as all other children enrolling primary school. The applicants had been assigned to Roma-only classes on the basis of their insufficient knowledge of the Croatian language in order to address their special needs and to ensure an equal approach, which was possible only where the majority of them had the same initial knowledge of the Croatian language and psycho-physical readiness to attend primary school. 125. All but the second and tenth applicants had been assigned to a Roma-only class upon their enrolment in primary school.", "The second and tenth applicants were initially enrolled in a mixed class. They failed the first grade with negative marks in, inter alia, the Croatian language. After that, they were assigned to a Roma-only class. 126. In respect of the applicants enrolled in Macinec Primary School, the Government submitted that the enrolment procedure included the psycho-physical appraisal of the children by a panel composed of a physician, a psychologist, a school counsellor (pedagog), a defectologist and a teacher, in the presence of at least one of the child’s parents.", "127. In respect of the applicants enrolled in Podturen Primary School, the Government submitted that the records concerning the enrolment of the applicants who had attended that school could not be found owing to the passage of time. They did, however, submit a testimony of a teacher who had led a three-month pre-school programme for Roma children and who said that at the end of that programme a teacher would assess each child’s language level, after which the child would be placed in a mixed or Roma-only class accordingly. 128. The Government submitted school records showing that all the applicants, both in Podturen and Macinec Primary Schools, had been provided with additional lessons in the Croatian language.", "They had been able to participate in various extracurricular activities carried out in the Croatian language, some of which were particularly focused on the improvement of language skills (such as recitals and reading). Furthermore, in 2002 in Podturen Primary School and in 2003 in Macinec Primary School, Roma assistants were recruited to help children in Roma-only classes to improve their knowledge. 129. The Government submitted that the assessment of the applicants’ progress had been a part of the regular procedure for the evaluation of pupils, as in all other schools in Croatia. In the lower grades, evaluation in all subjects was done by the class teacher.", "A final mark was given at the end of each school year on the basis of all marks given during the school year. The basic elements for determining a mark were: knowledge and understanding of the subject matter, oral and written expression, applying acquired knowledge in practice and creative use of it, development of skills, participation in classes and development of a pupil’s psycho-physical abilities and capacities. In particular, elements for assessing knowledge of the Croatian language included reading and writing skills, oral and written expression, vocabulary and grammar, reading of books, and homework. A mark combined a number of factors, among which the most important for pupils in the lower grades were motivation and personal development in respect of each subject. The marks were given according to the individual capacity of each child.", "Therefore, the good marks given to some of the applicants after they had failed a grade or repeatedly failed a grade did not necessarily mean that they had a good command of the Croatian language, but that they had made progress. 130. As to the individual circumstances of the applicants in the present case, the Government submitted that their progress had in fact been very slow. All of the applicants had failed several grades in succession. Sometimes it had taken them two or three years to complete one grade.", "As an example they explained that the twelfth applicant had had to repeat the first grade twice, after which he scored a three (good) in Croatian. However, in the first grade, pupils were taught basic reading and writing skills and a majority of them received high marks. Therefore a three in Croatian after twice repeating the first grade could not be seen as proof of an adequate knowledge of the Croatian language. It had then taken him another three years to complete the second grade. 131.", "Furthermore, there were several procedural safeguards. Each parent had the right to challenge a teacher’s assessment. A school headmaster was obliged to examine every complaint. Where the majority of parents at a school meeting agreed that a particular teacher was not objective in his or her assessment, the class teacher had to examine the complaint at a meeting of the school board. Where the school board found the complaint founded, the headmaster was obliged to take the necessary measures, as prescribed by law.", "Furthermore, each pupil had the right to complain about the marks awarded, and the right to ask for a special panel to assess his or her knowledge. As to the applicants in the present case, there had never been any complaints about the assessment of their knowledge or their placement in a Roma-only class. Likewise, their parents had never asked for the transfer of their children to a mixed class. 132. The Government submitted school records showing that a number of measures had been adopted.", "Firstly, the class teachers encouraged pupils to attend school. The schools held regular meetings of class teachers with parents, as well as individual parent-teacher meetings for pupils who had problems with school attendance, but the parents of the pupils concerned mostly ignored invitations to both types of meeting. The schools also employed Roma assistants who served, inter alia, as mediators between the schools and parents and would visit parents and explain the necessity and importance of education for their children. 133. The school authorities also regularly informed the applicants and their parents that the applicants could continue their education at the same school even after the age of 15.", "In addition, the applicants also had a possibility of attending evening classes, free of charge, in a nearby town in order to complete their primary education. Three applicants enrolled in the evening programme, but only one actually completed it. In respect of the fifth applicant, the school authorities had informed the competent social welfare centre of the attendance problem, so that appropriate steps could be taken. The teachers had been involved in resolving various problems encountered in respect of the applicants. When a class teacher of the tenth applicant had noticed that he had problems with his sight, the teacher had taken him to an ophthalmologist and made sure he obtained adequate glasses.", "134. The Government submitted that all Roma children, regardless of their placement in a particular class, were integrated with other children during their schooling in numerous ways, for example by their active involvement in all extracurricular activities organised at schools (such as singing, dancing, handicraft and mixed activities), as well as their participation in all outdoor activities organised by schools (such as swimming lessons, excursions to towns, visits to various sites, monuments and institutions, collection of litter, ecological activities and various competitions), and participation with other pupils in the social activities organised at schools (such as Christmas and New Year’s celebrations, School Day celebrations, Sports Day and Bread Day), plus the fact that they shared the same common school facilities, such as the canteen and playgrounds. 135. The schools in question also organised special activities for all pupils to improve non-Roma children’s understanding of Roma traditions and culture. These activities included celebrating Roma Day, organising visits to Roma settlements, informing pupils about the Romani language and customs and the problems Roma faced in everyday life, and encouraging Roma pupils to publish texts and poems in school magazines.", "3. The third-party interveners (a) The Government of the Slovak Republic 136. The Government of the Slovak Republic recognised the need to address the learning difficulties of certain pupils, such as lack of proficiency in the language of instruction at schools. They found different compensatory measures adopted in that respect constructive. They referred to the margin of appreciation afforded to the States in the sphere of education and stressed that the States should not be prohibited from setting up separate classes at different types of school for children with difficulties, or from implementing special educational programmes to respond to special needs.", "137. Although the special needs of children with learning difficulties had to be addressed, that could not take precedence over the effective functioning of an education system, which had to remain compact and not fragmented according to the needs of each individual pupil. Thus, the placing of a child in a different class on objective and legitimate grounds, such as lack of proficiency in the language of instruction, could not be considered discriminatory. The other relevant factors in respect of the present case were the attitudes of parents and the possibility of transferring pupils to mixed classes, as well as the content of the school curriculum. (b) Interights 138.", "Interights stressed the necessity for the Court to develop a comprehensive body of case-law on the substantive aspects of the right to education. The obligation to respect the right to education required States Parties to avoid measures that hindered or prevented the enjoyment of this right. The obligation to ensure that education was both adequate and appropriate required States to take positive measures that would enable and help individuals and communities to fully enjoy the right to education. The principal aims of education could only be achieved where children from different cultural backgrounds were educated together in integrated schools. 139.", "Access to education without discrimination implied that children should have the opportunity to participate in, and benefit from, a mainstream educational system that ensured their integration into society. All international standards on education were buttressed by the principle of non-discrimination. Because of the paramount importance of the right to education, the failure to secure that right to children of ethnic or linguistic minorities would undermine the ability of those minorities to break the cycle of poverty and marginalisation which many of them suffered from. 140. There were effective and practical alternatives to segregation in schools on the basis of linguistic and cultural differences.", "Segregation could effectively deny a minority their right to learn the majority language with consequential negative impact on their ability to benefit from education and to effectively participate in, and integrate into, general society. State-enforced segregation on the basis of culture or ethnicity was not permissible. While States should not segregate or exclude pupils on the basis of language in a discriminatory manner, they needed to adopt certain measures which would temporarily affect the segregation of pupils based on insufficient command of the language of instruction. However, a very narrow margin of appreciation was to be applied in that sphere in order to ensure that the segregation occurred only on the basis of valid linguistic needs and did so in a manner that ensured that pupils should be fully integrated on an appropriate and timely basis. (c) Greek Helsinki Monitor 141.", "Referring to the Court’s case-law concerning the right to education and in particular to the judgments in D.H. and Others v. the Czech Republic ([GC], no. 57325/00, ECHR 2007‑IV) and Sampanis and Others v. Greece (no. 32526/05, 5 June 2008), the Greek Helsinki Monitor stressed the importance of tests aimed at assessing the educational level of children upon their enrolment in schools, as well as the need to ultimately assign all Roma children to ordinary, mainstream classes. He also highlighted that the principle of integrated education could be diverged from only in certain exceptional circumstances and that only the integrative educational policy was compatible with the role of the member States’ educational systems. 142.", "The interveners further relied on the Action Plan on Improving the Situation of Roma and Sinti within the OSCE (Organization for Security and Co-operation in Europe) area, which urged the member States to “develop and implement comprehensive school desegregation programmes aimed at: (1) discontinuing the practice of systemically routing Roma children to special schools or classes; and (2) transferring Roma children from special schools to mainstream schools”. The interveners also relied on the relevant Council of Europe sources, cited above. C. The Court’s assessment 143. The applicants in the present case made complaints under Article 2 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention, claiming that the fact that they had been allocated to Roma-only classes during their primary education violated their right to receive an education and their right not to be discriminated against.", "However, the Grand Chamber sees this case as raising primarily a discrimination issue. 144. In this connection, the Court reiterates that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and its Protocols, since it protects individuals placed in similar situations from any discrimination in the enjoyment of the rights set forth in those other provisions. Where a substantive Article of the Convention or its Protocols has been relied on both on its own and in conjunction with Article 14 and a separate breach has been found of the substantive Article, it is not generally necessary for the Court to consider the case under Article 14 as well, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A no. 45; Chassagnou and Others v. France [GC], nos.", "25088/94, 28331/95 and 28443/95, § 89, ECHR 1999‑III; and Timishev v. Russia, nos. 55762/00 and 55974/00, § 53, ECHR 2005‑XII). 145. The complaint in the present case concerns alleged discrimination in respect of the applicants’ right to education on account of their having been assigned, for part of their schooling, to separate classes constituted, according to them, on the basis of ethnic criteria. The Government, for their part, claimed that the applicants had been placed in separate classes on account of their inadequate command of the Croatian language.", "It follows that the central question to be addressed in the present case is whether adequate steps were taken by the school authorities to ensure the applicants’ speedy progress in acquiring an adequate command of Croatian and, once this was achieved, their immediate integration into mixed classes. In this connection, the curriculum followed by the applicants and the procedures concerning their transfer to mixed classes appear of high importance. Thus, the alleged inequality of treatment in the enjoyment of the right to education is a fundamental aspect of the present case and the issues pertinent to this case are to be analysed from the standpoint of Article 14 of the Convention read in conjunction with Article 2 of Protocol No. 1. 146.", "The right to education, as set out in the first sentence of Article 2 of Protocol No. 1, guarantees everyone within the jurisdiction of the Contracting States “a right of access to educational institutions existing at a given time”, but such access constitutes only a part of the right to education. For that right “to be effective, it is further necessary that, inter alia, the individual who is the beneficiary should have the possibility of drawing profit from the education received, that is to say, the right to obtain, in conformity with the rules in force in each State, and in one form or another, official recognition of the studies which he has completed” (see Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, pp. 30-32, §§ 3-5, Series A no. 6 – “the ‘Belgian linguistic’ case”; Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, § 52, Series A no.", "23; and Leyla Şahin v. Turkey [GC], no. 44774/98, § 152, ECHR 2005‑XI). 147. While the case at issue concerns the individual situation of the fourteen applicants, the Court nevertheless cannot ignore that the applicants are members of the Roma minority. Therefore, in its further analysis the Court shall take into account the specific position of the Roma population.", "The Court has noted in previous cases that as a result of their history, the Roma have become a specific type of disadvantaged and vulnerable minority (see also the general observations in the Parliamentary Assembly’s Recommendation No. 1203 (1993) on Gypsies in Europe, cited in paragraph 81 above, and point 4 of its Recommendation No. 1557 (2002) on the legal situation of Roma in Europe, cited in paragraph 83 above). They therefore require special protection. As is attested by the activities of numerous European and international organisations and the recommendations of the Council of Europe bodies, this protection also extends to the sphere of education.", "The present case therefore warrants particular attention, especially as when the applications were lodged with the Court the applicants were minor children for whom the right to education was of paramount importance (see D.H. and Others, cited above, § 182). 148. Lastly, as noted in previous cases, the vulnerable position of Roma/Gypsies means that special consideration should be given to their needs and their different lifestyle, both in the relevant regulatory framework and in reaching decisions in particular cases (see Chapman v. the United Kingdom [GC], no. 27238/95, § 96, ECHR 2001-I, and Connors v. the United Kingdom, no. 66746/01, § 84, 27 May 2004).", "In Chapman, the Court also observed that there could be said to be an emerging international consensus among the member States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle, not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community (see D.H. and Others, cited above, § 181). 1. Whether there was a difference in treatment 149. According to the Court’s well-established case-law, discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV, and Okpisz v. Germany, no.", "59140/00, § 33, 25 October 2005). However, Article 14 does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed, in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of Article 14 (see the ‘Belgian linguistic’ case, cited above, p. 34, § 10; Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000‑IV; and Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006‑VI). Moreover, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment.", "However, very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of ethnic origin as compatible with the Convention (see Timishev, cited above, § 56). 150. The Court has also accepted that a general policy or measure which is apparently neutral but has disproportionately prejudicial effects on persons or groups of persons who, as for instance in the present case, are identifiable only on the basis of an ethnic criterion, may be considered discriminatory notwithstanding that it is not specifically aimed at that group (see, mutatis mutandis, Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, 4 May 2001; Hoogendijk v. the Netherlands (dec.), no. 58461/00, 6 January 2005; and Sampanis and Others, cited above, § 68), unless that measure is objectively justified by a legitimate aim and the means of achieving that aim are appropriate, necessary and proportionate.", "Furthermore, discrimination potentially contrary to the Convention may result from a de facto situation (see Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006‑VIII). Where an applicant produces prima facie evidence that the effect of a measure or practice is discriminatory, the burden of proof will shift on to the respondent State, to whom it falls to show that the difference in treatment is not discriminatory (see D.H. and Others, cited above, §§ 180 and 189). 151. The Court points out at the outset that it has recently adopted two judgments in the sphere of education of Roma children finding that the applicants were discriminated against on the basis of their ethnic origin, namely D.H. and Others and Sampanis and Others (both cited above).", "The D.H. and Others judgment concerned a situation where a nationwide practice of placing a disproportionate number of Roma children in schools for pupils with learning difficulties amounted to discrimination based on the applicants’ ethnic origin. In Sampanis and Others the Court found that the practice of first denying Roma children enrolment in school and their subsequent placement in special classes located in an annex to the main building of a primary school, coupled with a number of racist incidents in the school instigated by the parents of non-Roma children, also amounted to discrimination based on the applicants’ Roma origin. 152. The present case is to be distinguished from the above two cases, in particular regarding the relevance of the statistics in the three cases, which could have a bearing on whether there is prima facie evidence of discrimination and consequently on the burden of proof. In D.H. and Others (cited above, § 18) the Court established that between 50% and 70% of Roma children in the Czech Republic attended special schools for pupils with learning difficulties, while in Sampanis and Others (cited above, § 81) all Roma children attending the school at issue were allocated to a separate establishment.", "As to the present case, the Court firstly notes that the applicants, unlike in the Sampanis and Others case, attended regular primary schools and that the Roma-only classes were situated in the same premises as other classes. The proportion of Roma children in the lower grades in Macinec Primary School varies from 57% to 75%, while in Podturen Primary School it varies from 33% to 36%. The data submitted for the year 2001 show that in Macinec Primary School 44% of pupils were Roma and 73% of those attended a Roma-only class. In Podturen Primary School 10% of pupils were Roma and 36% of Roma pupils attended a Roma-only class. These statistics demonstrate that only in Macinec Primary School did a majority of Roma pupils attend a Roma-only class, while in Podturen Primary School the percentage was below 50%.", "This confirms that it was not a general policy to automatically place Roma pupils in separate classes in both schools at issue. Therefore, the statistics submitted do not suffice to establish that there is prima facie evidence that the effect of a measure or practice was discriminatory. 153. However, indirect discrimination may be proved without statistical evidence (see D.H. and Others, cited above, § 188). In this connection, the Court notes that the measure of placing children in separate classes on the basis of their insufficient command of the Croatian language was applied only in respect of Roma children in several schools in Međimurje County, including the two primary schools attended by the applicants in the present case.", "Thus, the measure in question clearly represents a difference in treatment. 154. As regards the grounds for the applicants’ placement in separate classes, the Court is also mindful of the general comments made in the third ECRI report on Croatia, published on 14 June 2005 (see paragraph 67 above), which refers to “allegations that when the authorities tried to introduce mixed classes instead of separate classes in some schools, they came up against opposition from the non-Roma parents, who apparently signed petitions against this measure, with the result that the separate classes were maintained”. The Commissioner for Human Rights, in the report on his visit to Croatia (see paragraph 72 above), referred to a similar situation in the following passage: “The year 2002 saw the worsening of problems around the town of Čakovec, which applied a practice of separating Roma and non-Roma pupils in schools. An atmosphere of intolerance took hold; non-Roma parents went so far as to stage a demonstration in front of a school at the start of the 2002/03 school year, denying entry to the Roma children.” 155.", "In the circumstances of the present case, and even without any discriminatory intent on the part of the relevant State authorities, the fact that the measure in question was applied exclusively to the members of a singular ethnic group, coupled with the alleged opposition of other children’s parents to the assignment of Roma children to mixed classes, calls for an answer from the State to show that the practice in question was objectively justified by a legitimate aim and that the means of achieving that aim were appropriate, necessary and proportionate. 2. Whether the difference in treatment had an objective and reasonable justification 156. According to the Court’s case-law, a difference in treatment is discriminatory if “it has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see, among many other authorities, Larkos v. Cyprus [GC], no. 29515/95, § 29, ECHR 1999-I; Stec and Others, cited above, § 51; and D.H. and Others, cited above, § 196).", "Where the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible (see Sampanis and Others, cited above, § 69). 157. The Court considers that temporary placement of children in a separate class on the ground that they lack an adequate command of the language is not, as such, automatically contrary to Article 14 of the Convention. It might be said that in certain circumstances such placement would pursue the legitimate aim of adapting the education system to the specific needs of the children. However, when such a measure disproportionately or even, as in the present case, exclusively, affects members of a specific ethnic group, then appropriate safeguards have to be put in place (see Buckley v. the United Kingdom, 25 September 1996, § 76, Reports 1996‑IV; Connors, cited above, § 83; and Timishev, cited above, § 56).", "Thus, the Court must now examine whether there existed such safeguards at each stage of the implementation of the measures complained of and whether they were effective. (a) Initial placement of the applicants in separate classes 158. The Court first notes that there existed no clear and specific legal basis for placing children lacking an adequate command of the Croatian language in separate classes. The laws relied on by the Government, namely, the Primary Education Act and the Rules on the number of pupils in regular and multi-grade classes, did not provide for separate classes for children lacking proficiency in the Croatian language. The Government have not shown that this practice has been applied in respect of any other pupils lacking an adequate command of the Croatian language in any other part of Croatia, and not only in respect of Roma children in several schools in Međimurje County, including the two schools in question.", "Consequently, the impugned measures can hardly be seen as part of a common and general practice designed to address the problems of children who lack an adequate command of the Croatian language. 159. Moreover, the tests applied for deciding whether to assign pupils to Roma-only classes are not specifically designed to test the children’s command of the Croatian language. Where the State authorities opt to place children in a separate class on the ground that the children lack an adequate command of the Croatian language, the testing of such children should be specifically designed to assess their knowledge of the language. In its Opinion on Croatia, adopted on 6 April 2001, the Advisory Committee on the Framework Convention for the Protection of National Minorities stressed that “placing children in separate classes should take place only when it is absolutely necessary and always on the basis of consistent, objective and comprehensive tests” (see paragraph 68 above).", "160. In the present case no specific testing of the applicants’ command of the Croatian language took place. The testing of the applicants who attended Macinec Primary School (the eleventh to fifteenth applicants) was designed to test the children’s general psycho-physical condition, not their knowledge of the Croatian language in particular. As regards the applicants who attended Podturen Primary School (the second to tenth applicants), the Government have not shown that they were ever effectively tested in this respect (see paragraph 127 above). 161.", "Furthermore, certain inconsistencies in respect of some individual applicants cannot be ignored. For example, both the second and the tenth applicants were initially placed in a mixed class in Podturen Primary School upon enrolling in the first grade in the school year 1997/98. Only after two years were they transferred to a Roma-only class. Assuming that, as the Government contend, insufficient knowledge of the Croatian language was the reason for placing Roma children in Roma-only classes, it is difficult to understand why the second and the tenth applicants would have had sufficient knowledge of the Croatian language at the age of seven, when they started primary school, but not two years later, when they were transferred to a Roma-only class. It is equally improbable that it should have taken two years for their respective class teachers to note the applicants’ insufficient command of the language.", "Even if these two applicants might have had some learning difficulties, as suggested by the fact that they failed to go up a grade for the initial two years of their schooling, these difficulties would not appear to have been adequately addressed simply by placing the applicants concerned in a Roma-only class. The tenth applicant, for his part, was offered an adapted curriculum by reason of his developmental difficulties only in the school year 2005/06, that is to say not until eight years after he enrolled in primary school and when he had already reached the age of 15 and thus soon to leave school. 162. The Court does not consider satisfactory the explanation given by the Government that, although these two applicants’ command of the Croatian language had been inadequate when they enrolled in school, in those years there were no Roma-only classes in their school. For the fact remains that the applicants’ insufficient command of the Croatian language was not adequately addressed for the first two years of their schooling.", "(b) Curriculum 163. As regards the curriculum provided in Roma-only classes, the Government first argued that it was the same as in any other classes of the same grade and that all subjects were taught in Croatian. Yet, at the same time they contended that the applicants’ command of the Croatian language had been insufficient to follow the regular school curriculum with the other pupils. The Government also admitted that the curriculum in Roma-only classes might have been reduced by up to 30% compared with the full standard curriculum, such a reduction being permissible under national laws and not reserved for Roma-only classes but accepted and allowed in respect of any primary school class in Croatia, depending on the abilities of the pupils in a given class. 164.", "The Court notes that if the applicants were taught the same curriculum as all other pupils, there appears to be no reason to have placed them in separate classes. However, if they were placed in separate classes because they lacked an adequate command of the Croatian language, the regular curriculum, taught in Croatian, could not possibly address their needs. Furthermore, the Government’s contention that the applicants followed a regular curriculum is difficult to reconcile with the comments submitted on 26 September 2001 by the Croatian Government in response to the Opinion of the Advisory Committee on the Framework Convention for the Protection of National Minorities, according to which “[t]he Ministry of Education and Sports, in cooperation with the local administration, has taken a number of measures for this purpose [namely, to overcome the language barrier] – additional assistance to overcome problems concerning the following and comprehension of school lessons, adaptation of curricula to the needs of Roma children ...” (see paragraph 69 above). Thus, it would appear that the Roma children followed an “adapted curriculum”, though it is not clear what exactly that included. 165.", "As regards the fact that the curriculum taught in Roma-only classes might have been reduced by 30%, the Court first notes that the Government have not indicated the exact legal basis for such a reduction. Secondly, and more importantly, they have not shown how the mere fact of a possible reduction of the curriculum could be considered an appropriate way to address the applicants’ alleged lack of proficiency in Croatian. Since, as indicated by the Government, teaching in the schools in question was in Croatian only, the State in addition had the obligation to take appropriate positive measures to assist the applicants in acquiring the necessary language skills in the shortest time possible, notably by means of special language lessons, so that they could be quickly integrated into mixed classes. 166. In this connection, the Court refers to the above-mentioned comments submitted by the Croatian Government in response to the Opinion of the Advisory Committee on the Framework Convention for the Protection of National Minorities, according to which “those children who do not speak the Croatian language may well be enrolled in special classes where they receive special attention with a view to learning the Croatian language” (see paragraph 69 above).", "The applicants, however, once assigned to Roma-only classes, were not provided with any specific programme in order to address their alleged linguistic deficiencies. Nor have the Government shown the existence of any written instructions or guidelines concerning the programme to be followed by pupils assigned to Roma-only classes. 167. As to the existence of additional Croatian classes, which, according to the Government’s submission, was one of the means by which the applicants’ language deficiencies had been addressed, it would appear that the third, fourth and fifth applicants were never provided with such classes, although all three of them attended a Roma-only class for at least the first two years of their primary education. 168.", "As regards the sixth to eleventh applicants, it was not until their third grade that they were offered additional Croatian language lessons, although they were all placed in a Roma-only class from their first grade. 169. The thirteenth to fifteenth applicants were offered additional language classes only in the first year of their schooling. Yet they all stayed in a Roma-only class for the rest of their primary schooling. 170.", "Only the twelfth applicant was systematically offered additional Croatian language classes in the first, second and third grade. However, he spent his entire primary schooling in a Roma-only class. 171. In any event, even such additional classes in Croatian could at best only compensate in part the lack of a curriculum specifically designed to address the needs of pupils placed in separate classes on the ground that they lacked an adequate command of Croatian. (c) Transfer and monitoring procedure 172.", "As to the transfer from Roma-only to mixed classes, the Government, both in the proceedings before the national courts and before this Court, argued that the homogeneity of each class had been an important factor in not transferring the applicants to a mixed class. However, as indicated above, the placement of the applicants in Roma-only classes could be seen as pursuing a legitimate aim only if it served the purpose of bringing their command of the Croatian language up to an adequate level and then securing their immediate transfer to a mixed class. 173. In this respect, it is to be noted that no programme was established for addressing the special needs of Roma children lacking language skills that included a time frame for the various phases of acquisition of the necessary language skills. As a result, the Court is of the opinion that the time the applicants spent in Roma-only classes appears to fall short of the requirement that their immediate and automatic transfer be ensured as soon as adequate language proficiency was attained.", "174. In the above-mentioned comments in response to the Opinion of the Advisory Committee on the Framework Convention for the Protection of National Minorities, the Government stated that “[t]his practice [of placing of Roma-children in separate classes] is implemented only in the first and second grade of primary school, after which children attend classes together with children of other nationalities” (see paragraph 69 above). The Court also refers to the Opinion on Croatia of the Advisory Committee on the Framework Convention for the Protection of National Minorities, adopted on 1 October 2004, according to which “pupils should not be placed in such separate remedial classes on the basis of their affiliation with a national minority but rather on the basis of the skills and needs of the individuals concerned, and where such placing is found necessary, it should be for a limited period only” (see paragraph 70 above). 175. Yet the applicants in the present case each spent a substantial period of their education in Roma-only classes.", "The eleventh to fifteenth applicants spent all eight years of their schooling in a Roma-only class, while the second to tenth applicants attended at times both Roma-only and mixed classes. However, no particular monitoring procedure was in place. Although some of the applicants at times attended mixed classes, the Government failed to show that any individual reports were drawn up in respect of each applicant and his or her progress in learning Croatian. Such reports appear necessary in order to ensure objectivity as well as to identify problem areas which could then be addressed, if needed, with additional measures. The lack of a prescribed and transparent monitoring procedure left a lot of room for arbitrariness.", "(d) Poor school attendance and high drop-out rate 176. One of the problems highlighted in the reports of the Council of Europe bodies concerning Croatia was the poor school attendance of Roma children and their high drop-out rate. In the second ECRI report on Croatia, published on 3 July 2001, it is stated that “many Roma/Gypsy children do not go to school, having either dropped out or having never attended” (see paragraph 66 above). This observation was confirmed in the third ECRI report on Croatia, published on 14 June 2005, according to which “[m]any Roma children leave school at a very early age” (see paragraph 67 above). The statistics submitted by the applicants for Međimurje County and not refuted by the Government show a drop-out rate of 84% for Roma pupils before completing primary education.", "The applicants in the present case, without exception, left school at the age of 15 without completing primary education. Their school reports show poor attendance. 177. While the Croatian authorities cannot be held to be the only ones responsible for the fact that so many pupils failed to complete primary education or to attain an adequate level of language proficiency, such a high drop-out rate of Roma pupils in Međimurje County called for the implementation of positive measures in order, inter alia, to raise awareness of the importance of education among the Roma population and to assist the applicants with any difficulties they encountered in following the school curriculum. Therefore, some additional steps were needed in order to address these problems, such as active and structured involvement on the part of the relevant social services.", "However, according to the Government, the social services had been informed of the pupil’s poor attendance only in the case of the fifth applicant. No precise information was provided on any follow-up. (e) The involvement of the applicants’ parents 178. The Government emphasised the parents’ passivity and lack of objections in respect of the placement of their children in separate classes, as well as on the fact that they had not requested their transfer to mixed classes. In this connection, the following conclusions reached in the D.H. and Others case appear to be of relevance: “202.", "As regards parental consent, the Court notes the Government’s submission that this was the decisive factor without which the applicants would not have been placed in special schools. In view of the fact that a difference in treatment has been established in the instant case, it follows that any such consent would signify an acceptance of the difference in treatment, even if discriminatory, in other words a waiver of the right not to be discriminated against. However, under the Court’s case-law, the waiver of a right guaranteed by the Convention – in so far as such a waiver is permissible – must be established in an unequivocal manner, and be given in full knowledge of the facts, that is to say on the basis of informed consent (see Pfeifer and Plankl v. Austria, 25 February 1992, §§ 37-38, Series A no. 227) and without constraint (see Deweer v. Belgium, 27 February 1980, § 51, Series A no. 35).", "203. In the circumstances of the present case, the Court is not satisfied that the parents of the Roma children, who were members of a disadvantaged community and often poorly educated, were capable of weighing up all the aspects of the situation and the consequences of giving their consent. ... 204. In view of the fundamental importance of the prohibition of racial discrimination (see Nachova and Others, cited above, § 145, and Timishev, cited above, § 56), the Grand Chamber considers that, even assuming the conditions referred to in paragraph 202 above were satisfied, no waiver of the right not to be subjected to racial discrimination can be accepted, as it would be counter to an important public interest (see, mutatis mutandis, Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006-XII).” 179.", "The same applies to the failure of the applicants’ parents in the present case to raise objections to the placement of their children in Roma-only classes and their failure to seek their transfer to mixed classes. (f) Conclusion 180. As appears from the Court’s judgment in D.H. and Others (cited above), the documentation produced by ECRI and the report of the Commissioner for Human Rights of the Council of Europe on the Human Rights Situation of the Roma, Sinti and Travellers in Europe (dated 15 February 2006; see paragraphs 73 to 76 above), a number of European States encounter serious difficulties in providing adequate schooling for Roma children. The Croatian authorities have sought to tackle the problem. However, in their attempts to achieve the social and educational integration of the disadvantaged group which the Roma form, they have had to contend with numerous difficulties as a result of, inter alia, the cultural specificities of that minority and an alleged degree of hostility on the part of the parents of non-Roma children.", "As the Grand Chamber noted in the above-mentioned D.H. and Others judgment, the choice of the best means to address learning difficulties of children lacking proficiency of the language of instruction is not an easy one. It entails a difficult balancing exercise between the competing interests. As to the setting and planning of the curriculum, this mainly involves questions of expediency on which it is not for the Court to rule (see D.H. and Others, cited above, § 205, and Valsamis v. Greece, 18 December 1996, § 28, Reports 1996-VI). 181. Nevertheless, whenever discretion capable of interfering with the enjoyment of a Convention right is conferred on national authorities, the safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation (see Buckley, cited above, § 76, and Connors, cited above, § 83).", "182. The facts of the instant case indicate that the schooling arrangements for Roma children were not sufficiently attended by safeguards that would ensure that, in the exercise of its margin of appreciation in the education sphere, the State had sufficient regard to their special needs as members of a disadvantaged group (see, mutatis mutandis, Buckley, cited above, § 84, and Connors, cited above, § 84). Furthermore, as a result of the arrangements the applicants were placed in separate classes where an adapted curriculum was followed, though its exact content remains unclear. Owing to the lack of transparency and clear criteria as regards transfer to mixed classes, the applicants stayed in Roma-only classes for substantial periods of time, sometimes even during their entire primary schooling. 183.", "A very positive aspect is the possibility of further education for Roma children who failed to complete primary education by the age of 15. After leaving primary school, the applicants had the possibility of enrolling in the government-funded evening school in Čakovec (a nearby town) in order to complete their education. Although all expenses were covered by the Government, only three of the applicants availed themselves of this opportunity, and only one actually completed the evening school. However, most of these developments took place after the period that is to be examined in respect of the applicants in the present case. They cannot repair the above-described deficiencies in the applicants’ education.", "184. In sum, in the circumstances of the present case and while recognising the efforts made by the Croatian authorities to ensure that Roma children receive schooling, the Court considers that there were at the relevant time no adequate safeguards in place capable of ensuring that a reasonable relationship of proportionality between the means used and the legitimate aim said to be pursued was achieved and maintained. It follows that the placement of the applicants in Roma-only classes at times during their primary education had no objective and reasonable justification. 185. The Court therefore finds that in the present case there has been a violation of Article 14 of the Convention taken together with Article 2 of Protocol No.", "1. 186. In view of that conclusion, it is not necessary to examine the complaint under Article 2 of Protocol No. 1 taken alone. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 187. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. The Chamber judgment 188. The Chamber, in view of the violation found, considered that the applicants had sustained non-pecuniary damage because the length of the proceedings before the national courts had exceeded a “reasonable time”, and that it was therefore appropriate to award them compensation. Ruling on an equitable basis, it awarded each applicant 1,300 euros (EUR) under this head, plus any tax that might be chargeable.", "It also awarded the applicants jointly EUR 2,000 for costs and expenses, plus any tax that might be chargeable. B. The parties’ submissions 189. The applicants claimed EUR 22,000 each in respect of non-pecuniary damage and EUR 20,316.50 jointly for costs and expenses incurred at domestic level and before the Court. 190.", "The Government argued that the applicants’ claim in respect of non-pecuniary damage should be rejected. As regards the claim for costs and expenses in respect of the proceedings before the Court, the Government deemed it excessive. C. The Court’s assessment 1. Non-pecuniary damage 191. The Court considers that the applicants must have sustained non-pecuniary damage – in particular as a result of the frustration caused by the indirect discrimination of which they were victims – for which the finding of a violation of the Convention does not afford sufficient redress.", "However, the Court considers the amounts claimed by the applicants to be excessive. Ruling on an equitable basis, it assesses the non-pecuniary damage sustained by each of the applicants at EUR 4,500. 2. Costs and expenses 192. The Court reiterates that legal costs are only recoverable to the extent that they relate to the violation that has been found (see Beyeler v. Italy (just satisfaction) [GC], no.", "33202/96, § 27, 28 May 2002). The Court notes that Mrs Kušan, Mr Dobrushi and Mr Alexandridis have each submitted details of their professional fees, as well as the costs of translation of the relevant documents. Having regard to all the relevant factors and to Rule 60 § 2 of the Rules of Court, the Court makes a joint award to all the applicants of EUR 10,000 for costs and expenses. 3. Default interest 193.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Dismisses unanimously the Government’s preliminary objection as to the applicability of Article 6 § 1 of the Convention to the present case; 2. Holds unanimously that there has been a violation of Article 6 § 1 of the Convention; 3. Holds by nine votes to eight that there has been a violation of Article 14 of the Convention read in conjunction with Article 2 of Protocol No.", "1; 4. Holds unanimously that it is not necessary to examine the complaint under Article 2 of Protocol No. 1 taken alone; 5. Holds by twelve votes to five (a) that the respondent State is to pay, within three months, the following amounts, to be converted into Croatian kuna at the rate applicable at the date of settlement: (i) to each applicant EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) to the applicants jointly EUR 10,000 (ten thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses unanimously the remainder of the applicants’ claim for just satisfaction.", "Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 16 March 2010. Vincent Berger Jean-Paul Costa Jurisconsult President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Jungwiert, Vajić, Kovler, Gyulumyan, Jaeger, Myjer, Berro-Lefèvre and Vučinić is annexed to this judgment. J.-P.C. V.B. JOINT PARTLY DISSENTING OPINION OF JUDGES JUNGWIERT, VAJIĆ, KOVLER, GYULUMYAN, JAEGER, MYJER, BERRO-LEFÈVRE AND VUČINIĆ 1.", "We are unable to find a violation of Article 14 of the Convention read in conjunction with Article 2 of Protocol No. 1 in the present case. I 2. We agree with the majority on the principles laid down in paragraphs 146, 149, 150 and 156 of the judgment. Particularly, we accept that indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of an ethnic origin at a particular disadvantage compared with other persons, unless it is objectively justified by a legitimate aim and the means of achieving that aim are appropriate, necessary and proportionate.", "II 3. We do not agree with the majority as to the application of the above principles to the case at issue and the conclusion that there has been no objective and reasonable justification for the measures applied to the applicants. 4. First of all, the applicants do not argue that their command of the Croatian language upon their enrolment in primary school was adequate – they have never objected to the Government’s assertion that they lacked the required level of language proficiency. (In respect of the applicants enrolled in Macinec Primary School, the enrolment procedure included the psycho-physical appraisal of the children by a panel composed of a physician, a psychologist, a school counsellor (pedagog), a defectologist and a teacher, in the presence of at least one of the child’s parents.)", "Thus we accept that the applicants did not have a sufficient command of the Croatian language to follow lessons in that language. 5. Secondly, it is accepted that decisions pertaining to the methods used to address the special needs of certain pupils belong to the sphere of social policy, in which States enjoy quite a wide margin of appreciation. Therefore, placing the applicants in separate classes as a means of addressing their special needs is not as such contrary to the Convention, either from the standpoint of Article 2 of Protocol No. 1 or from that of Article 14 of the Convention.", "6. As stated in the judgment, the proportion of Roma children in the lower grades in Macinec Primary School varies from 57% to 75%, while in Podturen Primary School it varies from 33% to 36%. We accept that the large number of Roma pupils in the two primary schools concerned, and in particular in Macinec Primary School, was an obstacle to creating mixed classes in certain grades with a view to achieving integration among the pupils concerned. Notwithstanding these difficulties, the Roma-only classes were not established as a rule but only in cases where the percentage of Roma pupils was sufficient to form such classes. Thus in Podturen Primary School, out of 47 Roma pupils only 17 were placed in a Roma-only class, while 30 were in mixed classes (paragraph 11 of the judgment).", "In Macinec Primary School, there were 194 Roma pupils in 2001, 142 of whom were placed in six Roma-only classes, while 52 attended mixed classes (paragraph 15 of the judgment). 7. The language deficits and other difficulties in the case at issue, according to school records (paragraphs 21 to 51 of the judgment), went hand in hand with obvious lack of parental support. It cannot be denied that the slow linguistic development and progress in the applicants’ case was to a large degree due to their very poor school attendance (paragraphs 176 to 177 of the judgment), which would equally have upset the majority’s progress in mixed classes in respect of all school subjects. In this connection, it is to be noted that the authorities attempted to address these problems by organising regular parent-teacher meetings at class level, as well as individual parent-teacher meetings with the applicants’ parents.", "They also organised visits of Roma assistants to the pupils’ homes in order to stress the importance of regular school attendance. However, the applicants’ parents rarely responded to such efforts. The role of the parents in these matters cannot be underestimated. Regular school attendance depends on cooperation between school authorities and the children’s parents, who are primarily responsible for their children. The report of the Commissioner for Human Rights also stressed that “it rests with the parents to ensure the sound learning of the language and their children’s regular attendance for the entire school course” (see paragraph 72 in fine of the judgment).", "8. To assess the proportionality of the measures taken, it is important to point out that the setting and planning of the curriculum fall in principle within the competence of the Contracting States. The regulation of educational institutions may vary in time and in place, inter alia, according to the needs and resources of the community and the distinctive features of different levels of education. Consequently, the Contracting States enjoy a certain margin of appreciation in this sphere (see Leyla Şahin v. Turkey [GC], no. 44774/98, § 154, ECHR 2005-XI).", "9. The authorities were faced with a situation where in a small community a large number of children belonging to the Roma minority at the time of their enrolment in primary school did not have sufficient command of the language of instruction. They had to contend with numerous difficulties as a result of, inter alia, the cultural specificities of that minority. The choice between various possibilities to tackle the situation at hand entailed a difficult balancing exercise between the competing interests. On the one hand the interest of the applicants and other Roma children who did not speak the Croatian language was to acquire, as soon as possible, proficiency in the language of teaching and thus become able to follow the teaching.", "On the other hand the pupils, both Croatian and Roma, who did speak Croatian, had an interest in not being held back too much in their education owing to the insufficient linguistic proficiency of a very large number of other pupils. Moreover, we stress that it may indeed be difficult to organise teaching in mixed classes where a high percentage or even a majority of pupils do not have sufficient knowledge of the language of teaching. In such a situation where a high percentage or a majority of pupils have special needs, it is obvious that the teaching has to be adapted to their needs, particularly when they share a common language among themselves. However, this may affect the interests of other pupils who do not have such needs and whose progress may thus be impeded. In such a situation the State authorities are confronted with the duty to ensure a fair distribution of available resources among both groups of pupils.", "We accept that for this reason as well their placement in the same class could be justified from a pedagogical point of view, as it is known that children are considered to learn best in stable surroundings, and this is also why parents are often reluctant to make their children change classes. That argument should not have been set aside without balancing also the interests of the Croatian-speaking children: the importance for Croatian-speaking pupils of being able to progress properly at school is not mentioned at all in the judgment. 10. By keeping Roma children in ordinary schools, the Croatian authorities made the change from a separate class to a mixed class quite flexible and allowed the change to be made without formalities. Thus the majority of the applicants in the present case attended both Roma-only and mixed classes and shared with other pupils the same common school facilities, such as canteen and playgrounds, as well as various extracurricular and social activities (see also paragraphs 134 and 135 of the judgment).", "11. The schools attended by the applicants are regular educational establishments, forming part of the system of public primary schools in Croatia. All pupils who complete any of these schools are considered as having succeeded in acquiring full primary education and they all receive a final certificate in standard form. Those pupils who at times or during their entire primary education attend Roma-only classes and successfully complete the final grade also receive the same standard final certificate which in no way indicates that they attended some special, separate classes. All certificates on the completion of primary education have equal standing as regards the possibility of enrolling in secondary schools or finding employment.", "Thus, the fact that the applicants attended Roma-only classes could not, as such, in any way have impeded or undermined their prospects of further education. All those who complete primary school have the same possibilities of reaping the benefits of their education. 12. It is thus important to stress that the applicants were at no time deprived of the right to attend school and receive an education. They were all enrolled in the primary schools concerned at the age of seven, the normal age to start mandatory primary education in Croatia.", "They all stayed in primary school until they reached the age of 15 and then left on their own initiative since there was no further obligation for them to attend school. Furthermore, there was a possibility of continued education in evening classes for pupils who had not completed primary education by the age of 15. Although the full cost of this education was borne by the State, only the third, fourth and sixth applicants made use of this opportunity and only the third applicant actually completed the evening school, while the fourth and sixth applicants, although enrolled, failed to attend classes. 13. Therefore, it is not shown in this case that the applicants were put at a particular disadvantage compared with other pupils by their placement in Roma-only classes at times during their primary education.", "III 14. The present case is thus not about the situation of a minority in general but about a concrete question of education practice (in two schools) in respect of a minority insufficiently conversant with the language of instruction, and the measures taken by the domestic authorities to deal with such a situation. The case can clearly be distinguished from D.H. and Others v. the Czech Republic ([GC], no. 57325/00, ECHR 2007‑IV) and Sampanis and Others v. Greece (no. 32526/05, 5 June 2008), as the majority is well aware.", "The majority also accepted the fact that the statistical data in the present case did not suffice to establish that there was prima facie evidence that the effect of a measure or practice was discriminatory (paragraphs 151 to 152 of the judgment). We agree that indirect discrimination may be proved without statistical evidence (paragraph 153 of the judgment). Yet then the facts would have to show that the effect of the practice had an adverse impact on the applicants and could not be justified on other grounds. 15. It would seem that the majority viewed the case in the first place as a means of further developing the notion of indirect discrimination in the Court’s jurisprudence.", "To be able to do so it was, however, obliged to lean on arguments outside the concrete facts, referring to the situation of the Roma population in general (see, for example, paragraphs 147, 148, 176 and 177 of the judgment). As a result, this became in some respects more a judgment on the special position of the Roma population in general than one based on the facts of the case, as the focus and scope of the case were altered and interpreted beyond the claims as lodged by the applicants before the Court. In adopting this approach, however, the majority neglected the criteria previously elaborated by the Court itself in respect of the right to education under Article 2 of Protocol No. 1 to the Convention (paragraph 146 of the judgment). 16.", "Although it is accepted that education by integration is definitely a very important concept, it is, however, to be noted that there are no general recommendations of best practices in such a situation and that States have to use their margin of appreciation to resolve such very important and concrete problems on the spot as they are the best placed for that task. 17. In addition the majority has not taken into consideration at all that one of the rights of a minority consists in “preserving diversity” (see paragraph 148 of the judgment) and that separation is therefore not always considered to be harmful, especially when accompanied – as in the given situation – by various social activities and measures organised in the common school. IV 18. We are satisfied that in the present case, as pointed out by the Constitutional Court, it was not shown that the allegedly different treatment of the applicants was based on their ethnic origin or any other “suspect” grounds, but rather exclusively on their insufficient command of the language, which means on pedagogical grounds.", "In such circumstances a wider margin of appreciation is allowed to the State authorities in employing methods of addressing the applicants’ learning difficulties. Once it has been established that the applicants lacked sufficient command of the Croatian language, the choice of means to address that problem lay with the State authorities. Therefore, and regard being had to the margin of appreciation afforded to the national authorities in the field of education (see, mutatis mutandis, Sampanis and Others, cited above, § 92 in fine), we consider that the placement of the applicants in Roma-only classes at times during their primary education in the circumstances of the present case had a legitimate aim pursued by acceptable means for a limited period without discernable alternatives at hand. In other words, there existed an objective and reasonable justification. V 19.", "We would also like to stress that in a situation like the present one in which the Court is overruling a well-reasoned judgment by a Constitutional Court, as well as a unanimous judgment of one of its Chambers, by adopting a Grand Chamber judgment by a nine to eight vote, it should have presented more convincing arguments to justify its decision. In addition, it would have been useful if the Court had been willing to offer more practical guidance on how to develop and apply the notion of indirect discrimination. As it stands, without any clear indications on the matter, it could appear that the majority simply used its own discretion to replace a decision of the highest national court with its own. In so doing, the Court runs the risk of being told that it took upon itself the task of the national courts. Particularly so in a situation where the Constitutional Court’s reasoning was based on the principles of the Convention and where its indications to the domestic authorities were clear.", "Thus, the present example well illustrates that when it comes to cases where the Court declares that a certain margin of appreciation is to be left to the States, it should be particularly careful not to overstep its role, especially when a large number of judges in the Court have expressed their support for the Constitutional Court’s approach. Be that as it may, it will certainly not be easy for the respondent State or any other State party to the Convention faced with schooling problems in relation to minority groups to follow the present judgment. APPENDIX LIST OF APPLICANTS Name Date of birth Residence 1. Stjepan Oršuš 22 December 1991 Orehovica 2. Mirjana Oršuš 30 September 1990 Podturen 3.", "Gordan Oršuš 16 June 1988 Podturen 4. Dejan Balog 10 November 1990 Podturen 5. Siniša Balog 25 January 1993 Podturen 6. Manuela Kalanjoš 12 February 1990 Podturen 7. Josip Oršuš 25 February 1993 Podturen 8.", "Biljana Oršuš 20 April 1990 Podturen 9. Smiljana Oršuš 6 April 1992 Podturen 10. Branko Oršuš 10 March 1990 Podturen 11. Jasmin Bogdan 11 May 1990 Trnovec 12. Josip Bogdan 13 September 1991 Trnovec 13.", "Dijana Oršuš 20 January 1994 Trnovec 14. Dejan Oršuš 2 August 1991 Trnovec 15. Danijela Kalanjoš 7 October 1993 Trnovec" ]

[ "FIRST SECTION CASE OF GRYAZNOV v. RUSSIA (Application no. 19673/03) JUDGMENT STRASBOURG 12 June 2012 FINAL 12/09/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gryaznov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Julia Laffranque,Linos-Alexandre Sicilianos, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 22 May 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "19673/03) 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 Dmitriy Sergeyevich Gryaznov (“the applicant”), on 10 April 2003. 2. The applicant, who had been granted legal aid, was represented by Mr A. Koss, a lawyer practising in Kaliningrad. 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.", "The applicant complained in particular of a violation of his right of access to court and of a violation of the principle of equality of arms. 4. On 16 March 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 5. The applicant was born in 1967 and lives in Kaliningrad. 6. In 2000 the applicant was convicted of extortion and aggravated murder and sentenced to seventeen years’ imprisonment. On 12 October 2000 he was transferred to a correctional colony in the Kaliningrad Region to serve his sentence.", "A. Claim for compensation for the alleged ill-treatment 7. On 1 July 2002 the applicant sued the investigator for compensation, claiming that he had been ill-treated to make him confess. In his statement of claim he alleged that on 17 March 1999 the investigator had beaten him and injured his lips, forehead and ears. The investigator had also threatened to kill him.", "After he had confessed to the murder, he had been placed in a detention facility. He had applied for medical assistance, which had been refused. On 23 March 1999 he had been questioned and the questioning had been videotaped. In his statement of claim he asked the court to watch the videotape, in which it could be seen that his lips were cut. He also asked the court to hear his counsel, Ms V., who had seen marks of beatings on his face.", "He finally indicated that he wanted to give oral submissions and requested to be brought to the hearing. 8. On 25 September 2002 the Leningradskiy District Court of Kaliningrad rejected the applicant’s requests to be brought to the hearing and to summon Ms V. It stated that domestic law did not give a detainee the right to be brought to a hearing in a civil case. Referring to legal professional privilege, it held that Ms V. could not be questioned about the information that had become known to her in the performance of her duties as counsel. It further requested the prosecutor’s office of the Kaliningrad Region to make available the video record of the applicant’s questioning.", "9. On 29 October 2002 the prosecutor’s office of the Kaliningrad Region informed the court that the record of the questioning had been erased as unnecessary. 10. On an unspecified date the prosecutor’s office of the Kaliningrad Region and the local department of the Ministry of Finance made written submissions in support of the respondent. 11.", "On 14 November 2002 the applicant repeated his request to attend the hearing. On 20 November 2002 the Leningradskiy District Court rejected his request, giving the same reasons as before. It added that the applicant was entitled to appoint a representative. 12. On 10 December 2002 the Leningradskiy District Court heard the investigator, who denied beating the applicant.", "The applicant was not brought to the hearing. 13. On the same day the Leningradskiy District Court gave its judgment. It rejected the applicant’s claim for compensation as unsubstantiated. 14.", "On 16 December 2002 the applicant received the decision of 20 November 2002 and a notification stating that the hearing before the Leningradskiy District Court was scheduled for 10 December 2002. On the same day the applicant complained to the District Court about the belated notification. He also submitted that he did not have a representative and that his personal attendance was important because his claim was based on his personal experience. He asked that a new hearing be scheduled and that he be brought to that hearing. 15.", "On 26 December 2002 the applicant received a copy of the judgment of 10 December 2002. In his appeal submissions he complained, in particular, that he had not been brought to the hearing, and about the court’s refusal to summon Ms V. He further complained that, despite his many requests, he had had no opportunity to study the materials submitted by the respondent, or to comment on them. 16. On 29 January 2003 the applicant received the transcript of the hearing of 10 December 2002 and copies of written submissions by the prosecutor’s office of the Kaliningrad Region and the local department of the Ministry of Finance. 17.", "On 4 March 2003 the applicant received the remaining materials from the case file. 18. On 12 March 2003 the Kaliningrad Regional Court upheld the judgment on appeal. The applicant was not brought to the appeal hearing. B.", "Claim for compensation for the allegedly unlawful transfer to prison 19. On an unspecified date the administration of the applicant’s correctional colony applied to a court, asking it to order the applicant’s transfer to prison for three years. 20. On 10 April 2002 the Bagrationovskiy District Court of the Kaliningrad Region granted the request. It held that the applicant had often disrupted the colony regime or infringed colony regulations, and had frequently been placed in a punishment or solitary cell.", "It concluded from this that the applicant was of an unruly character and was a bad influence on the other inmates. 21. On 11 April 2002 the applicant was transferred to prison. 22. On 10 September 2002 the Kaliningrad Regional Court quashed the decision on appeal as having no basis in domestic law.", "23. On 8 October 2002 the applicant was transported back to the colony. 24. On 27 January 2003 the applicant sued the judge who had ordered his transfer to prison and the Kaliningrad Regional Department of the Ministry of Finance for compensation. He claimed that the judge had unlawfully ordered his transfer to prison and that her unlawful decision had caused him mental suffering for which he should be compensated by the Ministry of Finance.", "25. On 9 April 2003 the Kaliningrad Regional Court declared the claim inadmissible in the final instance. It held that Article 1070 of the Civil Code, which provided for compensation for damage caused by unlawful judicial decisions, contained an exhaustive list of cases in which such compensation could be paid. The applicant’s situation did not fall within the cases specified. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Civil hearings 26. Before 1 February 2003 the civil procedure was governed by the RSFSR Code of Civil Procedure of 11 June 1964 (“the old CCP”). On 1 February 2003 the Code of Civil Procedure of the Russian Federation (“the CCP”) entered into force. 1.", "Attendance at hearings 27. Individuals may appear before the court in person or act through a representative (Article 43 § 1 of the old CCP and 48 § 1 of the CCP). A court may appoint an advocate to represent a defendant whose place of residence is not known (Article 50 of the CCP). The Advocates Act (Law no. 63-FZ of 31 May 2002) provides that free legal assistance may be provided to indigent plaintiffs in civil disputes concerning alimony or pension payments or claims for damage to health (section 26 § 1).", "28. Parties to the case must be notified of the time and place of court hearings (Article 144 of the old CCP and Article 155 of the CCP). Summons are to be served on the parties and their representatives in such a way that they have enough time to appear at the hearing and prepare their case (Article 106 § 2 of the old CCP and Article 113 § 3 of the CCP). If a party to the case fails to appear and there is no evidence that the party has been duly summoned, the hearing must be adjourned (Article 157 § 1 of the old CCP and Article 167 § 2 of the CCP). 29.", "A court may hold a session outside the court-house if, for instance, it is necessary to examine evidence which cannot be brought to the court-house (Articles 66 and 179 of the old CCP and Articles 58 and 184 of the CCP). 30. The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77.1). The Code does not mention any possibility for a convicted person to take part in civil proceedings, whether as a plaintiff or a defendant. 31.", "On several occasions the Constitutional Court has examined complaints by convicted persons whose requests for leave to appear in civil proceedings have been refused by courts. It has consistently declared those complaints inadmissible, finding that the contested provisions of the Code of Civil Procedure and the Penitentiary Code do not, as such, restrict the convicted person’s access to court. It has emphasised nonetheless that the convicted person should be able to make submissions to the civil court, either through a representative or in any other way provided by law. If necessary, the hearing may be held at the location where the convicted person is serving his sentence, or the court hearing the case may instruct the court with territorial jurisdiction over the correctional colony to obtain the applicant’s submissions or to take any other procedural steps (decisions 478-O of 16 October 2003, 335-O of 14 October 2004, and 94-O of 21 February 2008). 2.", "Submission and examination of evidence 32. Parties to civil proceedings are entitled to study the case file and make copies of documents, submit evidence, and ask questions of the other party and the witnesses (Article 30 of the old CCP and Article 35 of the CCP). 33. Parties must submit evidence in support of their submissions. If they are unable to obtain a certain piece of evidence, the court may, at their request, order that the person, organisation or State body in possession of that piece of evidence make it available to the court (Articles 50, 64 and 69 of the old CCP and Article 57 of the CCP).", "34. Each party must send the other party a copy of its submissions and supporting evidence (Article 149 of the CCP). All evidence must be examined by the court at the hearing in the presence of the parties. The parties must be provided with copies (Articles 175 and 178 of the old CCP, Articles 180-183 of the CCP). 35.", "Parties may ask the court to examine witnesses. They must explain to the court which relevant facts that witness may confirm. The court then decides whether that witness should be summoned to testify (Articles 61 § 3 and 142 § 1 (6) of the old CCP and Articles 69 § 2 and 150 § 1 (7) of the CCP). Counsel in criminal, civil or administrative proceedings may not be questioned about the circumstances that have become known to them as a result of the performance of their duties (Article 61 § 2 (1) of the old CCP and Article 69 § 3 (1) of the CCP). B.", "State liability for damage caused in the process of the administration of justice 36. The Civil Code provides that damage inflicted on the person or property of an individual shall be reimbursed in full by the person who inflicted the damage (Article 1064 § 1). 37. Damage caused through unlawful conviction, unlawful prosecution, unlawful placement in custody or order not to leave the place of residence, unlawful administrative arrest or correctional work, shall be compensated by the federal or regional treasury, irrespective of any fault by the judges or law-enforcement officials (Article 1070 § 1 of the Civil Code). The federal or regional treasury shall also be liable for damage sustained by an individual as part of the administration of justice, provided that the judge’s guilt has been established in a final criminal conviction (Article 1070 § 2).", "38. By a ruling of 25 January 2001, the Constitutional Court provided an interpretation of Article 1070 § 2 of the Civil Code. It held that a judge’s criminal conviction was a necessary element of a claim for damages on account of an unlawful judicial decision issued by that judge in the context of civil proceedings. It reasoned as follows: “3...This special precondition for State liability for damage caused as part of the administration of justice is justified by the criteria for the activities of the judiciary, established by the Constitution of the Russian Federation and detailed in the legal provisions on [civil] procedure (including adversarial proceedings, wide margin of appreciation of the judges, and so on), and by the existence of a special procedure for review of judicial decisions. Review of judicial decisions, that is assessment of their lawfulness and justification, must be carried out through special procedures established by law: appeal, cassation and supervisory review proceedings.", "Review of a judicial decision in separate tort proceedings would have amounted to an additional review of its lawfulness and justification... This is unacceptable ... because it would have led to a situation where a party to judicial proceedings which considers that it has been a victim of unlawful actions by a judge would have recourse not only to appeal proceedings, but also to a tort action, and the judges would have had to prove each time absence of fault on their part. This would have undermined the existing system of review of judicial decisions by higher courts, which is intrinsic to the judiciary and is established by law. 4. Administration of justice is a special type of State power.", "When applying a general legal rule to the circumstances of a given case, a judge provides an interpretation of the rule, takes a decision within the scope of his (at times wide) margin of appreciation provided by the law and, often, assesses the circumstances without the benefit of sufficient information (sometimes concealed from him)... Article 1070 § 2 not only excludes a presumption of fault on the [judge’s] part, but also requires the establishment of the judge’s guilt in a criminal judgment as an additional condition of State liability. Thus, Article 1070 § 2 links State liability to a criminal act by a judge, which is premeditated (pronouncement of a deliberately unlawful conviction, judgment or another decision, an offence under Article 305 of the Criminal Code of the Russian Federation) or negligent (improper exercise of his powers by a judge as a result of a negligent or careless attitude to his duties, which results in a substantial breach of citizens’ rights or legitimate interests, an offence under Article 293 of the Criminal Code of the Russian Federation). It follows from Article 1070 § 2 of the Civil Code, taken together with its Article 1069 and the above-mentioned and other provisions of the Criminal Code on the basis of which a judge may be held criminally liable, that the State is liable for damage in all cases where it has been caused by a criminal act committed by a judge as part of judicial proceedings. The specific nature of the disputed provision which provided for an exception to the general rules governing compensation for damage warrants a conclusion that the term “administration of justice” does not cover judicial proceedings in their entirety, but only extends to judicial acts touching upon the merits of a case...” 39.", "The Constitutional Court further held that other judicial acts, mainly those of a procedural nature, fell outside the scope of the notion of “administration of justice”. State liability for damage caused by such procedural acts or failures to act, such as a breach of the reasonable length of court proceedings, could arise even in the absence of a final criminal conviction of a judge, if the fault of the judge has been established in civil proceedings. An individual should be able to obtain compensation for any damage incurred through a violation by a court of his or her right to a fair trial within the meaning of Article 6 of the Convention. The Constitutional Court held that Parliament should legislate on the grounds and procedure for compensation by the State for damage caused by unlawful acts or failures to act on the part of a court or a judge in such cases, and should determine territorial and subject-matter jurisdiction over such claims. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF AN ALLEGED VIOLATION OF THE PRINCIPLE OF EQUALITY OF ARMS IN A CIVIL CASE 40. The applicant complained that the courts had refused to secure his attendance at the first-instance and appeal hearings in the proceedings concerning damages for the alleged ill-treatment. In addition, the applicant complained that he had not been served with copies of submissions and documents presented by the defendant to the Leningradskiy District Court until after the first-instance hearing and could not therefore comment on them. He finally complained that the District Court had refused to call Ms V. to the witness stand. He relied on Article 6 § 1, which provides, in so far as relevant, as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public ... hearing ... by [a] ... tribunal ...” 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 by the parties 42. The Government submitted that the applicant had not advanced any convincing arguments showing that his personal attendance at the hearings had been necessary. He could have participated in the hearings by being represented there by counsel. His request to be brought to the hearings had apparently been motivated by his wish to escape for a time from the severe correctional regime he was under. 43.", "The applicant maintained his claims. He submitted that had not been present at the hearing of 10 December 2002 and had been therefore unable to make submissions or to comment on the submissions of the other party. The District Court had moreover refused to summon his counsel Ms V., who could have confirmed that he had had marks of beatings on his face. Given that he had been denied medical assistance and that the video recording of his questioning had been erased, Ms V.’s testimony would have been the only opportunity for him to prove that he had been ill-treated. 2.", "The Court’s assessment (a) Absence from the hearings 44. The applicant sought leave to appear before the civil court examining his claim of ill-treatment. The domestic courts refused him leave to appear, relying on the absence of any legal norm requiring his presence and on his right to appoint a representative. Thus, both the first-instance and appeal hearings were held in his absence. 45.", "Article 6 of the Convention does not guarantee a right to personal presence before a civil court, but rather a more general right to present one’s case effectively before the court and to enjoy equality of arms with the opposing side. Article 6 § 1 leaves to the State a free choice of the means to be used in guaranteeing litigants these rights (see Steel and Morris v. the United Kingdom, no. 68416/01, §§ 59-60, ECHR 2005-II). Thus, representation may be an appropriate solution in cases where a party cannot appear in person before a civil court. Given the obvious difficulties involved in transporting convicted persons from one location to another, the Court can in principle accept that in cases where the claim is not based on the plaintiff’s personal experiences, representation of the detainee by an advocate would not be in breach of the principle of equality of arms (see Khuzhin and Others v. Russia, no.", "13470/02, § 105, 23 October 2008). 46. The Court observes that it has previously found a violation of the right to a “public and fair hearing” in a number of cases where Russian courts, after having refused leave to appear to imprisoned applicants wishing to make oral submissions on their civil claim on the ground that the domestic law did not make provision for convicted persons to be brought from correctional colonies to the place where their civil claim was being heard, failed to consider other legal means of securing their effective participation in the proceedings (see Khuzhin and Others, cited above, §§ 53 et seq., and Mokhov v. Russia, no. 28245/04, §§ 41 et seq., 4 March 2010). 47.", "It has also found a violation of Article 6 in cases where a Russian court has refused leave to appear to an imprisoned applicant who had wished to make oral submissions on his claim that he had been ill-treated by the police (see Kovalev v. Russia, no. 78145/01, § 37, 10 May 2007) or that he had been detained in appalling conditions (see Sokur v. Russia, no. 23243/03, § 30 et seq., 15 October 2009; Shilbergs v. Russia, no. 20075/03, § 111, 17 December 2009; and Artyomov v. Russia, no. 14146/02, § 205, 27 May 2010).", "The Court found that, irrespective of a representative’s presence, the applicant’s personal attendance was also necessary. Given that his claim had been largely based on his personal experience, his submissions would have been “an important part of the plaintiff’s presentation of the case and virtually the only way to ensure adversarial proceedings”. 48. In the present case, it is doubtful that the applicant had a practical opportunity to appoint a representative. It appears that he did not learn that he had been refused leave to attend the hearing until after the hearing had taken place (see paragraph 14. above).", "The applicant was obviously unable to decide on a further course of action for the defence of his rights until such time as the decision refusing him leave to appear was communicated to him (see, for similar reasoning, Khuzhin and Others, cited above, § 107). 49. In any event, the Court is not convinced that the representative’s appearance before the court could have secured the effective, proper and satisfactory presentation of the applicant’s case. The applicant’s claim for compensation for non-pecuniary damage resulting from his ill-treatment was, to a major extent, based on his personal experience. The Court considers that his testimony describing the circumstances of the alleged ill-treatment, of which only the applicant himself had first-hand knowledge, would have constituted an indispensable part of his presentation of the case (see Kovalev, cited above, § 37).", "Only the applicant could, by testifying in person, substantiate his claims and answer the judges’ questions, if any. 50. Nor is the Court persuaded by the domestic courts’ reference to the fact that the domestic law did not make provision for convicted persons to be brought from correctional colonies to the place where their civil claim was being heard. The Court is mindful of another possibility which was open to the domestic courts as a way of securing the applicant’s participation in the proceedings. They could have held a session by way of a video link or in the applicant’s correctional colony, in so far as it was possible under the rules on court jurisdiction (see paragraphs 29 and 31 above and, for the relevant principles, Riepan v. Austria, no.", "35115/97, §§ 27-42, ECHR 2000-XII, and Marcello Viola v. Italy, no. 45106/04, § 49 et seq., ECHR 2006-XI (extracts)).The Court finds it inexplicable that the domestic courts did not consider these options (see, for similar reasoning, Sokur, cited above, § 36, and Shilbergs, cited above, § 109). 51. In these circumstances, the Court finds that the principle of equality of arms was breached, owing to the domestic courts’ refusal to secure the applicant’s attendance at the hearing. (b) Failure to serve documents on the applicant 52.", "The applicant’s situation was further aggravated by the fact that he was not given access to the respondent’s and third parties’ observations requesting that the claims be dismissed and the evidence adduced by them until after the first-instance hearing. He was thereby deprived of an opportunity to comment on the observations and to question the authenticity, relevance and lawfulness of the evidence. The applicant was thus placed at a substantial disadvantage vis-à-vis the opposing party. The fact that after the first instance hearing he eventually received copies of the respondent’s and third parties’ observations and the supporting evidence did not remedy that disadvantage. Indeed, by that time he had already lodged his appeal submissions and therefore could no longer comment on the observations in writing.", "Nor could he do it orally during the appeal hearing which was held just a few days later because, as noted above, he had not been brought to that hearing. 53. The Court reiterates that the principle of adversarial proceedings and equality of arms, which is one of the elements of the broader concept of a fair hearing, requires that each party be given a reasonable opportunity to have knowledge of and comment on the observations made or evidence adduced by the other party and to present its case under conditions that do not place it at a substantial disadvantage vis-à-vis its opponent (see Krčmář and Others v. the Czech Republic, no. 35376/97, § 39, 3 March 2000, and Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 33, Series A no. 274).", "54. The Court notes that it has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see, for example, Ziegler v. Switzerland, no. 33499/96, §§ 33-40, 21 February 2002; Steck-Risch and Others v. Liechtenstein, no. 63151/00, §§ 51-59, 19 May 2005; Bartenbach v. Austria, no. 39120/03, §§ 32-34, 20 March 2008; Schaller-Bossert v. Switzerland, no.", "41718/05, §§ 39-43, 28 October 2010; and Hrdalo v. Croatia, no. 23272/07, §§ 34-40, 27 September 2011). 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. (c) Refusal to call a witness 55. Finally, the Court observes that the applicant’s request to have a witness questioned was rejected on the ground that Ms V., who had been the applicant’s counsel at his trial, was bound by lawyer-client confidentiality.", "56. 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, judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46, and Garcia Ruiz v. Spain [GC] no. 30544/96, ECHR 1999-I, § 28). Similarly, it is in the first place for the national authorities, in particular the courts, to interpret domestic law, and the Court will not substitute its own interpretation for theirs in the absence of arbitrariness.", "That being said, the Court’s task remains to ascertain whether the proceedings in their entirety, including the way in which evidence and procedural decisions were taken, were fair (see Tamminen v. Finland, no. 40847/98, § 38, 15 June 2004). 57. Article 6 of the Convention does not explicitly guarantee the right to have witnesses called or other evidence admitted by a court in civil proceedings. Nevertheless, any restriction imposed on the right of a party to civil proceedings to call witnesses and to adduce other evidence in support of his case must be consistent with the requirements of a fair trial within the meaning of paragraph 1 of that Article, including the principle of equality of arms.", "Equality of arms implies that each party must be afforded a reasonable opportunity to present his case - including his evidence - under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see Wierzbicki v. Poland, no. 24541/94, § 39, 18 June 2002). 58. In the instant case, it was incumbent upon the applicant to prove that he had been subjected to ill-treatment. He relied on two pieces of evidence: a video recording of his questioning showing that he had injuries on his face and body, and testimony by Ms V., who could confirm that she had seen injuries on him.", "Given that the video recording had been destroyed by the respondent, Ms V.’s testimony was the applicant’s only evidence other than his own submissions. 59. The applicant was however denied the opportunity to have Ms V. called, because the domestic courts considered that she was bound by lawyer-client privilege. The Court notes in this connection that the rule of lawyer-client privilege serves the important purpose of assuring confidentiality between counsel and client and thereby encouraging clients to make full and frank disclosures to their counsel, who are then better able to provide legal advice and effective representation. The privilege serves the interests of the client and therefore may be claimed or waived by the client only.", "60. The applicant in the present case wanted Ms V. to testify about the injuries she had seen on his face and body rather than to disclose any information that she had received from him during their confidential counsel-client communications. It is therefore difficult to see why she should be prevented from testifying about circumstances that were manifestly not covered by lawyer-client privilege. In any event, by requesting that she be questioned in court about the injuries, the applicant explicitly waived the privilege, and it was not for the courts to impose it against his will. 61.", "The refusal to hear Ms V., the only witness capable of supporting the applicant’s allegations of ill-treatment, deprived him of any opportunity to prove his case, and inevitably led to the finding that his claims were unsubstantiated. The Court finds that that refusal may be regarded in the above circumstances as disclosing unfairness not compatible with the requirements of the Convention (see, for comparison, Tamminen, cited above, §§ 38-42, and Dombo Beheer B.V., cited above, §§ 31- 35). (d) Conclusion 62. Given that the applicant was refused leave to appear at the first-instance and appeal hearings, that he was not given a reasonable opportunity to comment on the respondent’s and third parties’ submissions and evidence in support adduced by them, and that the domestic courts refused to hear a crucial witness in support of his case, the applicant was placed at a substantial disadvantage vis-a-vis the opposing party, and deprived of an opportunity to present his case effectively before the court. 63.", "There has therefore been a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF DENIAL OF ACCESS TO COURT 64. The applicant complained under Article 6 § 1 of the Convention that he had been denied access to court, because the domestic courts had refused to examine his claim for compensation for the damage caused by an unlawful judicial decision. The relevant parts of Article 6 § 1 have been cited above.", "A. Admissibility 65. The Government submitted that Article 6 was not applicable to the proceedings brought by the applicant against the judge. The applicant did not have any right to compensation recognised under domestic law. Therefore, the proceedings in question did not concern the determination of his civil rights or obligations. 66.", "The Court reiterates, in that connection, that Article 6 § 1 extends to “contestations” (disputes) over “civil rights” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether they are also protected under the Convention (see, as a recent authority, Enea v. Italy [GC], no. 74912/01, § 103, ECHR 2009‑...). However, whether a person has an actionable domestic claim so as to engage Article 6 § 1 may depend not only on the substantive content of the relevant civil right, as defined under national law, but also on the existence of procedural bars to or limits on the possibilities of bringing potential claims to court. In the latter kind of case, Article 6 § 1 may be applicable (see A. v. the United Kingdom, no. 35373/97, § 63, ECHR 2002‑X).", "67. The Court considers that in the present case the distinction between the elements that relate to the existence in domestic law of a right to compensation for damage caused by unlawful judicial decisions, and the elements which act as a procedural bar to the determination by a court of claims which derive from allegedly unlawful judicial decisions, is difficult to discern. These issues relate, at least in part, to the merits of the applicant’s complaint under Article 6 § 1 of the Convention. The Court therefore decides to join the question of applicability of Article 6 to the merits. 68.", "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 69.", "The Government submitted that Article 1070 of the Civil Code (see paragraph 37 above) exhaustively defined cases in which an action for compensation may be brought against a judge. The applicant’s action clearly did not belong among those cases and had therefore been declared inadmissible. 70. The applicant maintained his claims. 71.", "The Court reiterates that Article 6 § 1 secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court or tribunal. In this way, that provision embodies the “right to court”, of which the right of access to court, that is, the right to institute proceedings before a court, constitutes one aspect; however, it is an aspect that makes it in fact possible to benefit from the further guarantees laid down in paragraph 1 of Article 6 (see Sergey Smirnov v. Russia, no. 14085/04, § 25, 22 December 2009, and Teltronic-CATV v. Poland, no. 48140/99, § 45, 10 January 2006). 72.", "The right to court is not absolute and may be subject to limitations. The limitations applied should not bar or restrict the access afforded to the individual in such a way or to such an extent that the very essence of that right is impaired. Furthermore, the Court underlines that a limitation will not be compatible with Article 6 § 1 unless it pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved (see Sergey Smirnov, cited above, §§ 26 and 27; Jedamski and Jedamska v. Poland, no. 73547/01, § 58, 26 July 2005; and Kreuz v. Poland, no. 28249/95, §§ 54 and 55, ECHR 2001‑VI).", "73. The Court further reiterates that it is not its task to take the place of domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see Société Anonyme Sotiris and Nikos Koutras Attee v. Greece, no. 39442/98, § 17, ECHR 2000‑XII).", "74. Turning to the present case, the Court observes that after it had been submitted to a court the applicant’s case was not examined on the merits, because his situation did not fall within the cases specified in Article 1070 of the Civil Code (see paragraph 25 above). Article 1070 creates an exception to the general rule that all damage inflicted on a person must be compensated by the tortfeasor, contained in Article 1064 of the same Code, by establishing that damage caused as part of the administration of justice could be compensated by the State in two categories of cases only (see paragraphs 36 and 37 above). Firstly, Article 1070 contains an exhaustive list of situations where damage caused by unlawful judicial decisions is compensated for, irrespective of any fault on the part of the judge. Secondly, it provides that damage may also be recoverable in cases where the judge’s fault has been established in criminal proceedings.", "The Constitutional Court defined a third category of cases where damage incurred through a violation by a court of the right to a fair trial by acts of a procedural nature could be compensated for even in the absence of a final criminal conviction of a judge, if the fault of the judge has been established in civil proceedings (see paragraph 39 above, see also, in respect of the third category of cases, Chernichkin v. Russia, no. 39874/03, §§ 28-30, 16 September 2010). In all other cases, such as in the applicant’s case, no liability could be imposed on the judges or the State. 75. The Court notes that it has already found that certain privileges and immunities from civil liability are compatible with Article 6 § 1.", "Just as the right of access to court is an inherent part of the fair trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by signatory States as part of the doctrine of parliamentary immunity (see A. v. the United Kingdom, cited above, § 83) or generally recognised rules of public international law on State immunity or on immunity of international organisations (see, on State immunity, Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 56, ECHR 2001‑XI, and Fogarty v. the United Kingdom [GC], no. 37112/97, § 36, ECHR 2001‑XI (extracts), see also, on immunity of international organisation, Waite and Kennedy v. Germany [GC], no. 26083/94, §§ 50-74, ECHR 1999‑I). At the same time, the Court has also found that it would not be consistent with the rule of law in a democratic society, or with the basic principle underlying Article 6 § 1 – namely that civil claims must be capable of being submitted to a judge for adjudication – if a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims, or confer immunities from civil liability on large groups or categories of persons (see Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no.", "294‑B, and Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 47, ECHR 2001-XI). 76. The Court further observes that immunity given to a judge from civil claims in damages has been earlier found to be a permissible restriction on the right of access to court, in the case of Ernst and Others v. Belgium. The Court took into account that judicial immunity was a long established legal practice existing in some form in many member States.", "It pursued the legitimate aim of proper administration of justice. The Court however added that a material factor in determining whether such restriction was proportionate to the legitimate aim was whether the applicants had available to them reasonable alternative means to protect their rights effectively. Although they could not sue a judge for damages, they were able to lodge a civil action against the State on the basis of the same facts. The essence of their right of access to court was not therefore impaired (see Ernst and Others v. Belgium, no. 33400/96, §§ 47-57, 15 July 2003) 77.", "By contrast to Ernst and Others v. Belgium, the applicant in the present case could lodge a civil claim for damages neither against the judge nor against the State. It remains to be ascertained whether this restriction was compatible with Article 6 § 1. 78. The Court takes note of the Constitutional Court’s arguments justifying circumscribed liability of the judges and the State for damage caused by allegedly unlawful judicial decisions, and consequent immunity from civil actions (see paragraph 38 above). It accepts that such a restriction aims at preventing losing parties, who normally have an opportunity to take their complaints to an appeal court or to such other forum as may be prescribed by procedural rules, from attacking a final court decision in separate civil proceedings.", "It also permits judges to do their work in complete independence and free from fear that the exercise of their discretion and judgment may make them liable for damages. Finally, it permits judges to devote themselves entirely to their judicial duties without being constantly disrupted by civil actions lodged by losing parties. It therefore pursues a legitimate aim of proper administration of justice. 79. It remains to be determined whether there was a reasonable relationship of proportionality between the means employed and the legitimate objective pursued by the contested limitation.", "80. The Court notes that the immunity from civil claims for damage caused as part of the administration of justice is not of a blanket or non-rebutted nature. In particular, a civil action can be lodged in most serious cases where damage has been caused through unlawful conviction, unlawful prosecution, unlawful placement in custody or order not to leave the place of residence, unlawful administrative arrest or correctional work, irrespective of any fault on the part of judges or law-enforcement officials. A civil action for damages can also be lodged in cases where judicial acts have been done with malicious intent or corruptly and the judge’s guilt has been established in a final criminal conviction. The limitation in question cannot be therefore regarded as an arbitrary removal of the courts’ jurisdiction to determine a whole range of civil claims.", "81. The Court reiterates in this connection that it is a principle of Convention case-law that Article 6 does not in itself guarantee any particular content for civil rights and obligations in national law, and that Convention enforcement bodies may not create by way of interpretation of Article 6 § 1 a substantive civil right which has no legal basis in the State concerned (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 98, ECHR 2001‑V, and A. v. the United Kingdom, cited above, § 63). Domestic courts at two levels of jurisdiction found that Russian law did not impose any liability on the judge or on the State in the circumstances of the applicant’s case, and declared his claims inadmissible. However, if as a matter of law there was no basis for the claim, the hearing of evidence would have been an expensive and time-consuming process which would not have provided the applicant with any remedy at its conclusion.", "Such a hearing would have indeed served no purpose in a situation where, as in the present case, no liability for the alleged damage existed under domestic law. It is not for this Court to find that such liability should have been imposed on the judge or on the State in the applicant’s case, since this would effectively involve substituting its own views for those of the national courts as to the proper interpretation and content of domestic law. There is therefore no reason to consider the inadmissibility decision based on the absence of a sustainable cause of action as offending the principle of access to court (see, mutatis mutandis, Z and Others, cited above, §§ 97 and 101). 82. Finally, the Court notes that the limited liability of the judges and the State for damage caused in the framework of judicial proceedings and the consequent immunity from civil actions may, in cases where there is an arguable claim under the substantive Convention provisions, give rise to an issue under the Convention, but in the Court’s view it is an issue under Article 13, not Article 6 § 1 (see Z and Others, cited above, §§ 102 and 103).", "In the present case the applicant did not raise any arguable claim under the substantive Convention provisions in connection with his unlawful transfer from a correctional colony to a prison, nor did he lodge a complaint under Article 13. 83. In view of the above, the Court finds that there has been no violation of Article 6 § 1 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 84.", "Lastly, the Court has examined the other complaints submitted by the applicant, and, having regard to all the material in its possession and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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 claimed compensation for non-pecuniary damage. The amount of the claim is however unclear. The printed text indicates the amount of 6,000 euros (EUR), written in figures. The handwritten clarification in brackets indicates the amount of EUR 16,000, written in words.", "87. The Government pointed out the discrepancies between the printed and handwritten texts. They submitted that the applicant’s claim was excessive. 88. The Court considers that the applicant must have suffered distress and frustration resulting from unfair civil proceedings in respect of his claim for compensation for the alleged ill-treatment.", "Making its assessment on an equitable basis, the Court awards the applicant EUR 4,000 for non-pecuniary damage, plus any tax that may be chargeable on the above amount. B. Costs and expenses 89. The applicant did not claim costs and expenses. Accordingly, there is no call to make an award under this head.", "C. Default interest 90. 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 alleged violation of the principle of equality of arms in the proceedings for compensation for the alleged ill-treatment and the alleged violation of his right of access to court in the proceedings for compensation for damage caused by the allegedly unlawful judicial decisions admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of a breach of the principle of equality of arms in the proceedings for compensation for the alleged ill-treatment; 3.", "Holds that there has been no violation of Article 6 § 1 of the Convention as regards access to court in the proceedings for compensation for the damage caused by the allegedly unlawful judicial decisions; 4. Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,000 (four thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable on 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; 5. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 12 June 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenNina VajićRegistrarPresident" ]

[ "THIRD SECTION CASE OF MAMEDOV AND OTHERS v. RUSSIA (Applications nos. 16264/09 and 6 others - see appended list) JUDGMENT STRASBOURG 16 February 2017 This judgment is final but it may be subject to editorial revision. In the case of Mamedov 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 Karen Reid, Section Registrar, Having deliberated in private on 26 January 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the non-enforcement or delayed enforcement of domestic decisions given against unitary enterprises (GUPs, MUPs) and lack of any effective remedy in domestic law and of the lack of any effective remedy in domestic law.", "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 AND ARTICLE 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 6.", "The applicants complained principally of the non-enforcement or delayed enforcement of domestic decisions given in their favour and of the lack of any effective remedy in domestic law. They relied, expressly or in substance, on Article 6 § 1 and Article 13 of the Convention and on Article 1 of Protocol No. 1, which 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 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 7. In order to determine the issue of State responsibility for the debts of State or municipal unitary enterprises the Court must examine whether and how the extensive powers of control provided for in domestic law were actually exercised by the authorities in the present case (see Liseytseva and Maslov, nos. 39483/05 and 40527/10, §§ 204-206, 9 October 2014). The present cases are similar to Liseytseva and Maslov (ibid., §§ 208-219) from the standpoint of the debtor enterprises’ functions and the degree of actual control exercised by the authorities over the companies’ activities. The Court finds that, as in the leading judgment, the debtor enterprises in the instant cases did not enjoy sufficient institutional and operational independence from the authorities, and the State is to be held responsible under the Convention for the judgment debts owed to the applicants by the enterprises.", "8. The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a “hearing” for the purposes of Article 6. It also refers to its case-law concerning the non-enforcement or delayed enforcement of final domestic judgments (see Hornsby v. Greece, no. 18357/91, § 40, Reports of Judgments and Decisions 1997‑II). 9.", "The Court further notes that the decisions in the present applications ordered specific action to be taken (see the appended table for details of court orders). The Court therefore considers that the decisions in question constitute “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention (see Liseytseva and Maslov, cited above, § 224, with further references). 10. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints.", "Having regard to its case-law on the subject, the Court considers that in the instant case the authorities did not deploy all necessary efforts to enforce fully and in due time the decisions in the applicants’ favour. 11. The Court further notes that the applicants did not have at their disposal an effective remedy in respect of these complaints. 12. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention, Article 1 of Protocol No.", "1 to the Convention and Article 13 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 13. 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.” 14. Regard being had to the documents in its possession and to its case‑law (see, in particular, Voronkov v. Russia, no.", "39678/03, §§ 68-69, 30 July 2015), the Court considers it reasonable to award the sums indicated in the appended table. 15. The Court further notes that the respondent State has an outstanding obligation to enforce the judgments which remain enforceable. 16. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the applications admissible; 3. Holds that there has been a breach of Article 6 § 1 of the Convention, Article 1 of Protocol No. 1 and Article 13 of the Convention concerning the non-enforcement or delayed enforcement of domestic decisions given against unitary enterprises (GUPs, MUPs) and lack of any effective remedy in domestic law; 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 16 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Karen ReidHelena JäderblomRegistrarPresident APPENDIX List of applications raising complaints under Article 6 § 1 and Article 13 of the Convention and Article 1 of the Protocol No. 1 (non-enforcement or delayed enforcement of domestic decisions given against unitary enterprises (GUPs, MUPs) and lack of any effective remedy in domestic law and lack of any effective remedy in domestic law) No. Application no.Date of introduction Applicant name Date of birth / Date of registration Representative name and location Relevant domestic decision Start date of non-enforcement period End date of non-enforcement period Length of enforcement proceedings Domestic order Amount awarded for pecuniary damage per applicant (in Euros) Amount awarded for non-pecuniary damage and costs and expenses per applicant (in Euros)[1] 16264/09 16/02/2009 Telman Dzhannatali MAMEDOV 15/08/1956 Shestakov Aleksey Aleksandrovich Kotlas Justice of the Peace of the 2nd Judicial Circuit of Kotlas of the Arkhangelsk Region, 18/12/2007 29/12/2007 Pending More than 8 year(s) and 6 month(s) and 6 day(s) 7,121 Salary arrears (RUB 253,583 of initially awarded RUB 342,680 remain unenforced), judgment against MUP \"Kotlas\", \"Passazhirskoe Avtotransportnoe Predpriyatie\" (core activity: transportation services, tariffs set by the regional authorities), company liquidated on 03/08/2015, a claim for damages examined as subsidiary liability (21/10/10, 1st inst.)", "and a new subsidiary liability claim against different authorities (24/12/12, 1st inst.) rejected by the domestic courts. 7,121 2,000 54547/10 04/09/2010 OOO TSK DELO Commercial Court of Moscow, 14/10/2009 16/11/2009 Pending More than 6 year(s) and 7 month(s) and 19 day(s) 65,644 payment for service provided, FGUP \"Upravlenie Specialnogo Stroitelstva\", core activity: construction works for military purposes. Company liquidated on 16/02/2016 63,806 2,000 60362/10 01/10/2010 Zoya Ivanovna PETROVA 23/03/1939 Oktyabrskiy District Court of Barnaul, 19/05/2008 06/06/2008 Pending More than 8 year(s) and 29 day(s) 5,629 Non-pecuniary damages, Municipalnoe Unitarnoe Avtotransportnoe Predpriyatie of Barnaul, core activity: transport service Company liquidated on 26/05/2009 5,629 2,000 75556/10 23/11/2010 Pavel Petrovich GRINCHUK 31/01/1983 Shestakov Aleksey Aleksandrovich Kotlas Justice of the Peace of 2nd Judicial Circuit of Kotlas of the Arkhangelsk Region, 06/03/2008 18/03/2006 Pending More than 10 year(s) and 3 month(s) and 17 day(s) 4,884 Salary arrears, MUP \"Kotlas\", \"Passazhirskoe Avtotransportnoe Predpriyatie\", core activity: transportation services, tariffs set by the regional authorities. Company liquidated on 03/08/2015 4,884 2,000 1990/11 10/12/2010 Nikolay Semenovich MELNIKOV 08/05/1953 Shestakov Aleksey Aleksandrovich Kotlas Justice of the Peace of the 1st Judicial Circuit of Kotlas, the Arkhangelsk Region, 24/03/2008 03/04/2008 Pending More than 8 year(s) and 3 month(s) and 2 day(s) 4,349 (Decision partly enforced: 56132 RUB) Salary arrears, MUP \"Kotlas\", \"Passazhirskoe Avtotransportnoe Predpriyatie\", core activity: transportation services, tariffs set by the regional authorities.", "Company liquidated on 03/08/2015 4,315 2,000 12511/11 25/01/2011 Yuriy Petrovich ZHOLOBOV 30/05/1953 Shestakov Aleksey Aleksandrovich Kotlas Justice of the Peace of the 2nd Judicial Circuit of Kotlas of the Arkhangelsk Region, 31/03/2008 11/04/2008 Pending More than 8 year(s) and 2 month(s) and 24 day(s) 10,520 (Decision partly enforced 88 326 RUB) Salary arrears, MUP \"Kotlas\", \"Passazhirskoe Avtotransportnoe Predpriyatie\", core activity: transportation services, tariffs set by the regional authorities. Company liquidated on 03/08/2015 8,140 2,000 7342/13 26/12/2012 KRESTYANSKOYE KHOZYAYSTVO KOLOS[1] 21/08/2009 Commercial Court of the Moscow Region , 04/10/2010 Commercial Court of the Moscow Region, 14/12/2009 05/11/2010 10/10/2012 Pending More than 5 year(s) and 8 month(s) Pending More than 3 year(s) and 8 month(s) and 25 day(s) 94,636 Payment for service, FGUP \"Stroitelnoye Upravlenie 4 pri Specstroe Rossii\", core activity: military construction. Company liquidated on 05/09/2013 94,636 2,000 [1]. Application no. 7342/13 was communicated as Yaroshev v. Russia [1].", "Plus any tax that may be chargeable to the applicants." ]

[ "COURT (GRAND CHAMBER) CASE OF BENHAM v. THE UNITED KINGDOM (Application no. 19380/92) JUDGMENT STRASBOURG 10 June 1996 In the case of Benham v. United Kingdom [1], The European Court of Human Rights, sitting, in pursuance of Rule 51 of Rules of Court A [2], as a Grand Chamber composed of the following judges: Mr R. Ryssdal, President, Mr R. Bernhardt, Mr Thór Vilhjálmsson, Mr F. Gölcüklü, Mr F. Matscher, Mr B. Walsh, Mr R. Macdonald, Mr J. De Meyer, Mrs E. Palm, Mr I. Foighel, Mr R. Pekkanen, Mr A.N. Loizou, Sir John Freeland, Mr A.B. Baka, Mr M.A.", "Lopes Rocha, Mr L. Wildhaber, Mr G. Mifsud Bonnici, Mr D. Gotchev, Mr B. Repik, Mr P. Jambrek, Mr K. Jungwiert, and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar, Having deliberated in private on 26 January 1996 and 24 May 1996, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case was referred to the Court on 23 January 1995 by the European Commission of Human Rights (\"the Commission\") and on 26 January 1995 by the Government of the United Kingdom of Great Britain and Northern Ireland (\"the Government\"), within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art.", "47) of the Convention. It originated in an application (no. 19380/92) against the United Kingdom lodged with the Commission under Article 25 (art. 25) on 20 September 1991 by a British national, Mr Stephen Andrew Benham. The Commission's request referred to Articles 44 and 48 (art.", "44, art. 48) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46); the Government's application referred to Article 48 (art. 48). The object of the request and of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 5 and 6 (art.", "5, art. 6) of the Convention. 2. In response to the enquiry made in accordance with Rule 33 para. 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 Sir John Freeland, the elected judge of British nationality (Article 43 of the Convention) (art. 43), and Mr R. Bernhardt, the Vice-President of the Court (Rule 21 para. 4 (b)). On 5 May 1995, in the presence of the Registrar, the President of the Court, Mr R. Ryssdal, drew by lot the names of the other seven members, namely Mr Thór Vilhjálmsson, Mr B. Walsh, Mr R. Macdonald, Mr I. Foighel, Mr L. Wildhaber, Mr G. Mifsud Bonnici and Mr D. Gotchev (Article 43 in fine of the Convention and Rule 21 para.", "5) (art. 43). 4. The President of the Chamber (Rule 21 para. 6), Mr Bernhardt, through the Registrar, consulted the Agent of the Government, the applicant's lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para.", "1 and 38). Pursuant to the order made in consequence, the Registrar received the Government's memorial on 27 July 1995 and the applicant's memorial on 7 August 1995. 5. In accordance with the President's decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 22 November 1995. The Court had held a preparatory meeting beforehand.", "There appeared before the Court: (a) for the Government Mr M. Eaton, Deputy Legal Adviser, Foreign and Commonwealth Office,Agent, Mr D. Pannick QC, Mr P. Duffy,Counsel, Mr M. Collon, Lord Chancellor's Department,Adviser; (b) for the Commission Mrs J. Liddy,Delegate; (c) for the applicant Mr B. Emmerson Professor A. Bradley,Counsel, Mr J. WadhamAdviser. The Court heard addresses by Mrs Liddy, Mr Emmerson and Mr Pannick. 6. Following deliberations on 23 November 1995 the Chamber decided to relinquish jurisdiction forthwith in favour of a Grand Chamber (Rule 51 para. 1).", "7. The Grand Chamber to be constituted included ex officio Mr Ryssdal, President of the Court, Mr Bernhardt, Vice-President of the Court, and the other members and substitute judges (namely, Mr B. Repik, Mr F. Gölcüklü, Mr R. Pekkanen and Mr K. Jungwiert) of the Chamber which had relinquished jurisdiction (Rule 51 para. 2 (a) and (b)). On 5 December 1995, in the presence of the Registrar, the President drew by lot the names of the seven additional judges called on to complete the Grand Chamber, namely Mr F. Matscher, Mr J. De Meyer, Mrs E. Palm, Mr A.N.", "Loizou, Mr A.B. Baka, Mr M.A. Lopes Rocha and Mr P. Jambrek (Rule 51 para. 2 (c)). 8.", "Having taken note of the opinions of the Agent of the Government, the Delegate of the Commission and the applicant, the Grand Chamber decided on 26 January 1996 that it was not necessary to hold a further hearing following the relinquishment of jurisdiction by the Chamber (Rule 38, taken together with Rule 51 para. 6). AS TO THE FACTS I. CIRCUMSTANCES OF THE CASE 9. On 1 April 1990 Mr Benham became liable to pay a community charge of £325.", "Since he did not pay it, on 21 August 1990 the Poole Magistrates' Court ordered the issue of a liability order, entitling Poole Borough Council (\"the charging authority\") to commence enforcement proceedings against him (see paragraph 19 below, Regulations 29 and 39 (1)). 10. Mr Benham did not pay the amount owed, and bailiffs visited his parents' house (where he was living), but were told that he had no goods of any value there or elsewhere which could be seized by them and sold in order to pay the debt. 11. Under Regulation 41 of the Community Charge (Administration and Enforcement) Regulations 1989 (\"the Regulations\": see paragraph 19 below), if a person is found to have insufficient goods on which to levy outstanding community charge the charging authority may apply to a magistrates' court for an order committing him to prison.", "On such an application being made, the court must inquire in the presence of the debtor as to his present means and also whether his failure to pay which led to the liability order being made was due to wilful refusal or culpable neglect. The charging authority applied for such an order, and on 25 March 1991 Mr Benham appeared at the Poole Magistrates' Court for the inquiry required by the Regulations. He was not assisted or represented by a lawyer, although he was eligible for \"Green Form\" legal advice and assistance before the hearing (see paragraph 29 below), and the magistrates could have made an order for Assistance by Way of Representation (\"ABWOR\") if they had thought it necessary (see paragraph 30 below). 12. The magistrates found that Mr Benham, who had 9 \"O\" level General Certificates of Secondary Education, had started a Government Employment Training Scheme in September 1989, but had left it in March 1990 and had not worked since.", "He had applied for income support, but had been turned down because it is not payable to those who are voluntarily unemployed, and he had no personal assets or income. On the basis of this evidence, the magistrates concluded that his failure to pay the community charge was due to his culpable neglect, \"as he clearly had the potential to earn money to discharge his obligation to pay\". Accordingly, they decided that he ought to be sent to prison for thirty days unless he paid what was owing. Mr Benham was taken to Dorchester prison on the same day. 13.", "On 27 March 1991 a solicitor went on the record as representing Mr Benham and lodged a notice of appeal by way of case stated (see paragraph 21 below) and an application for bail pending appeal (see paragraph 22 below). Legal aid was obtained for the appeal, but not for the bail application, because it is not available for such proceedings. In the event, the solicitor appeared without payment before the magistrates on 28 March 1991 to apply for bail, but he was unsuccessful. 14. On 4 April 1991 Mr Benham's solicitor lodged an application for leave to apply for judicial review and for bail in the High Court.", "He was obliged to ask for judicial review, despite the fact that he had already lodged an appeal by way of case stated, because otherwise he could not have applied for bail in the High Court until the magistrates had stated a case (see paragraph 22 below). Bail was granted on 5 April 1991 and Mr Benham was thus released from prison, having served eleven days. 15. The Divisional Court heard the appeal by way of case stated and the application for judicial review together on 7 and 8 October 1991 (Regina v. Poole Magistrates, ex parte Benham, 8 October 1991, unreported). Mr Benham was represented and legally aided.", "The court noted that it had been necessary to apply for judicial review in order to get bail, but that the case stated procedure was more appropriate. Accordingly no order was made on the judicial review application. 16. Mr Justice Potts in the Divisional Court held that the magistrates had been mistaken in concluding that Mr Benham's failure to pay the community charge had been due to culpable neglect: \"In my view this finding was wrong on the evidence available to the justices. In certain circumstances a failure on the part of the debtor to work and put himself in funds to pay the community charge might constitute culpable neglect.", "In my judgment, however, before such a finding could be sustained, at the very least there would have to be clear evidence that gainful employment, for which he was fit, was on offer to the debtor and that he had rejected or refused that offer. There was no such evidence in this case. In my judgment, the justices' finding of culpable neglect cannot be sustained on the evidence adduced before them.\" 17. In addition, he found that the decision to commit Mr Benham to prison would have been wrong even if there had been evidence of culpable neglect, because he did not have any means with which to pay the debt at the time of the hearing before the magistrates, and because \"[s]uch an order is only to be made if payment can be made and there is no other way of inducing the [debtor] to do so\".", "In the circumstances it was incumbent upon them to consider the alternatives to immediate detention provided for by the Regulations: they could have suspended the term of imprisonment subject to such conditions as they thought fit, or refused to issue a warrant, since the local authority could have renewed their application at a later date if Mr Benham's circumstances had changed (see paragraph 19 below). 18. Mr Benham was not able to apply for compensation in respect of the time he spent in prison, because he was unable to show bad faith on the part of the magistrates, as was required by section 108 of the Courts and Legal Services Act 1990 (see paragraph 28 below). II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "Provisions concerning enforcement of payment of the community charge 19. The relevant subordinate legislation is the Community Charge (Administration and Enforcement) Regulations 1989 (Statutory Instrument 1989/438) (\"the Regulations\"). The relevant provisions of Regulation 29 (\"application for a liability order\") are as follows: \"(1) If an amount which has fallen due ... is wholly or partly unpaid ... the charging authority may ... apply to a magistrates' court for an order against the person by whom it is payable. ... (5) The court shall make the order if it is satisfied that the sum has become payable by the defendant and has not been paid.\" Regulation 39 (1) provides for the seizure and sale of a debtor's property (\"levying of distress\"): \"Where a liability order has been made the authority which applied for the order may levy the appropriate amount by distress and sale of goods of the debtor against whom the order was made.\"", "Regulation 41 is concerned with the committal to prison of a debtor, and provides, so far as is relevant: \"(1) Where a charging authority has sought to levy an amount by distress under Regulation 39, the debtor is an individual, and it appears to the authority that no (or insufficient) goods of the debtor can be found on which to levy the amount, the authority may apply to a magistrates' court for the issue of a warrant committing the debtor to prison. (2) On such application being made the court shall (in the debtor's presence) inquire as to his means and inquire whether the failure to pay which led to the liability order concerned being made against him was due to his wilful refusal or culpable neglect. (3) If (and only if) the court is of the opinion that his failure was due to his wilful refusal or culpable neglect it may if it thinks fit - (a) issue a warrant of commitment against the debtor, or (b) fix a term of imprisonment and postpone the issue of the warrant until such time and on such conditions (if any) as the court thinks just. ... (7) The order in the warrant shall be that the debtor be imprisoned for a time specified in the warrant which shall not exceed three months, unless the amount stated in the warrant is sooner paid ...\" The relevant part of Regulation 42 provides: (3) Where an application under regulation 41 has been made but no warrant is issued or term of imprisonment fixed, the application may be renewed ... on the ground that the circumstances of the debtor have changed.\" 20.", "In Regina v. Highbury Corner Magistrates, ex parte Watkins (9 October 1992, unreported) Mr Justice Henry said in the High Court that \"The proceedings under Regulation 41 are plainly legal proceedings other than criminal proceedings. They are proceedings for the recovery of an unpaid tax.\" However, in Regina v. Hebburn Justices, ex parte Martin (31 July 1995, unreported), Mr Justice Sedley in the High Court held that although the initial obligation to pay community charge was a civil one, magistrates \"who have reached the point of committal are entertaining a criminal process\". B. Appeal from a decision of a magistrates' court by way of case stated 21.", "By virtue of section 111 of the Magistrates' Court Act 1980 a party to proceedings before a magistrates' court may \"question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved ...\". This is known as the \"case stated\" procedure. 22. Under section 113 of the 1980 Act, magistrates may grant bail to a party who applies to them to state a case; but if they refuse to do so, in cases categorised as \"civil\" under the domestic law, the High Court has no jurisdiction to grant bail until it is seized of some substantive proceedings to which the grant of bail can be ancillary. 23.", "Acts performed pursuant to an order made by a magistrates' court which is subsequently set aside by a superior court are not themselves inherently unlawful. It is at the discretion of the higher court whether these collateral acts are also invalid: Regina v. Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 Appeal Cases 58, 124D-G (per Lord Justice Taylor in the Court of Appeal); London and Clydeside Estates Ltd v. Aberdeen District Council [1980] 1 Weekly Law Reports 182, 189C-190C (per Lord Hailsham, Lord Chancellor, in the House of Lords); Regina v. Panel on Take-overs and Mergers, ex parte Datafin PLC [1987] Queen's Bench 815, 840A-C (per Sir John Donaldson, Master of the Rolls). C. The distinction between an act of a magistrates' court which is merely wrong in law and one which is so wrong as to be in excess of jurisdiction 24. In English law, orders of a magistrates' court which are in excess of jurisdiction are void from the outset, whereas orders made within jurisdiction remain valid until set aside by a superior court. It is only in respect of the former type of error that a court can be held civilly liable in damages (under section 108 of the Courts and Legal Services Act 1990, which replaced section 45 of the Justices of the Peace Act 1979 - see paragraphs 27-28 below).", "25. The appropriate test for whether an order of a magistrates' court is void for lack of jurisdiction is that set out by the House of Lords in McC. v. Mullan [1985] Appeal Cases 528. In that case magistrates had made an order sending a 14-year-old boy to a training school after a hearing at which he was not legally represented, had not applied for legal aid and had not been informed of his right so to do. The order was quashed on judicial review on the ground that, by virtue of Article 15 (1) of the Treatment of Offenders (Northern Ireland) Order 1976, magistrates were not permitted to pass a custodial sentence for the first time on a juvenile who was not legally represented, unless he had applied for legal aid and been refused on grounds of means or had been informed of his right to apply for it but had refused or neglected to do so.", "The boy then applied for damages for false imprisonment against the magistrates. Since the case was decided prior to the enactment of the Courts and Legal Services Act 1990 and at a time when it was the law that magistrates were liable in damages for false imprisonment if they acted in excess of jurisdiction (see paragraph 26 below), the House of Lords was required to decide the jurisdictional question. In its judgment, a magistrates' court acted in excess of jurisdiction in three circumstances only: (1) if it acted without having jurisdiction over the cause, (2) if it exercised its powers in a procedural manner that involved a gross and obvious irregularity, or (3) if it made an order that had no proper foundation in law because of a failure to observe a statutory condition precedent. The instant case fell within the third limb of the rule: the magistrates were liable in damages because they had not observed the requirements of Article 15 (1) of the 1976 Order. During the course of his judgment speech, Lord Bridge commented (at page 546 E-F), on the jurisdiction of magistrates in conducting a criminal trial: \"... once justices have duly entered upon a summary trial of a matter within their jurisdiction, only something quite exceptional occurring in the course of their proceeding to a determination can oust their jurisdiction ... [A]n error (whether of fact or law) in deciding a collateral issue on which jurisdiction depends will not do so.", "Nor will the absence of any evidence to support a conviction ...\" 26. The final limb of the rule formulated by the House of Lords in McC. v. Mullan (that is, that magistrates exceed their jurisdiction when they make an order which has no foundation in law because of a failure to observe a statutory condition precedent) was applied by the Court of Appeal in R. v. Manchester City Magistrates' Court, ex parte Davies [1989] 1 All England Reports 30, a case concerning rates (the predecessor to the community charge). Again, the issue was whether magistrates had acted in excess of jurisdiction and were therefore liable in damages for false imprisonment. The plaintiff had been unable to pay all of the rates for which he became liable in December 1984, and in January 1986 he failed to follow his accountant's advice to close his business and to go bankrupt.", "Applying legislation similar to Regulation 41 of the Community Charge Regulations, the magistrates found that his failure to follow the accountant's advice constituted culpable neglect and they committed him to prison. The Court of Appeal held that no causal connection had been established between the failure to follow advice in 1986 and the failure to pay the rates in 1984, and that the magistrates had not properly entered into the inquiry (as to whether the failure to pay was due to culpable neglect) required by the legislation as a condition precedent of the warrant of commitment. They were therefore acting in excess of jurisdiction and were liable in damages. The three Appeal Court judges expressed their findings in slightly different terms. Lord Justice O'Connor observed that \"they never carried out the inquiry required [by the law]\"; Lord Justice Neill found that \"some inquiry about the applicant's finances was made\", but that \"a clear and crucial distinction can be drawn between the inquiry required by the statute and the inquiry which was in fact carried out.", "The justices never examined the question whether the failure to pay was due to culpable neglect\"; and Sir Roger Ormrod (who dissented from the majority decision) said: \"... it is quite clear that the justices carried out an inquiry into means carefully and in detail ... It is equally plain that they misdirected themselves completely ... They ... failed to realise that the question they had to decide was whether the applicant's failure to pay his rates was `due either to his wilful refusal or to his culpable neglect'\" (see pp. 637 B, 642 H-643 G and 647 E). D. The immunity of magistrates from civil proceedings 27.", "Magistrates enjoy a statutory immunity from civil liability in certain circumstances. Before the coming into force of section 108 of the Courts and Legal Services Act 1990 on 1 January 1991, this immunity was provided for by sections 44 and 45 of the Justices of the Peace Act 1979. In brief, a magistrate was liable in damages for acts done by him in his official capacity if it could be proved either (1) that the act was done maliciously and without reasonable and probable cause or (2) that it was performed outside or in excess of jurisdiction (see paragraph 25 above for the meaning of the latter expression). 28. The position under section 108 of the Courts and Legal Services Act 1990 is now that an action lies against a magistrate only if it can be proved that he acted both in bad faith and in excess of jurisdiction: \"An action shall lie against any justice of the peace ... in respect of any act or omission of his - (a) in the purported execution of his duty - (i) as such a justice; ... (b) with respect to any matter which is not within his jurisdiction, if, but only if, it is proved that he acted in bad faith.\"", "E. Legal aid 29. The legal-aid scheme does not provide for full representation before magistrates for proceedings for committal to prison for non-payment of the community charge. The \"Green Form\" scheme provides at least two hours' worth of advice and assistance from a solicitor (the time limit can be extended), including preparation for a court case, but it does not provide for representation. 30. Assistance by Way of Representation (\"ABWOR\") enables a magistrates' court, in certain circumstances, to appoint a solicitor who happens to be within the court precincts to represent a party who would not otherwise be represented.", "Regulation 7 (1) (b) of the Legal Advice and Assistance (Scope) Regulations 1989 provides that ABWOR may be given: \"at a hearing in any proceedings in a magistrates' court to a party who is not receiving and has not been refused representation in connection with those proceedings, where the court - (i) is satisfied that the hearing should proceed on the same day; (ii) is satisfied that that party would not otherwise be represented; and (iii) requests a solicitor who is within the precincts of the court for purposes other than the provision of ABWOR in accordance with this sub-paragraph, or approves a proposal from such a solicitor, that he provide that party with ABWOR ...\" PROCEEDINGS BEFORE THE COMMISSION 31. In his application (no. 19380/92) of 20 September 1991 to the Commission, the applicant complained that his detention between 25 March 1991 and 5 April 1991 was unlawful, in violation of Article 5 para. 1 of the Convention (art. 5-1); that section 108 of the Courts and Legal Services Act 1989 deprived him of an enforceable right to compensation in respect of it, contrary to Article 5 para.", "5 (art. 5-5); and that the fact that full legal aid was not available to him for the committal hearing before the magistrates constituted a violation of Article 6 (art. 6). 32. The Commission declared the application admissible on 13 January 1994.", "In its report of 29 November 1994 (Article 31) (art. 31), it concluded, by twelve votes to six, that there had been a violation of Article 5 para. 1 of the Convention (art. 5-1); by seventeen votes to one that there had been a violation of Article 5 para. 5 (art.", "5-5); and by fifteen votes to three that there had been a violation of Article 6 para. 3 (c) (art. 6-3-c). The full text of the Commission's opinion and of the five separate opinions contained in the report is reproduced as an annex to this judgment [3]. FINAL SUBMISSIONS MADE TO THE COURT 33.", "At the hearing on 22 November 1995 the Government, as they had done in their memorial, invited the Court to hold that there had been no violations of Articles 5 and 6 of the Convention (art. 5, art. 6). 34. On the same occasion the applicant reiterated his request to the Court, stated in his memorial, to find that there had been breaches of Articles 5 and 6 (art.", "5, art. 6) and to award him just satisfaction under Article 50 of the Convention (art. 50). AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 PARA.", "1 (art. 5-1) OF THE CONVENTION 35. The applicant submitted that his detention between 25 March 1991 and 5 April 1991 constituted a violation of Article 5 para. 1 (art. 5-1) of the Convention, which reads as follows: \"1.", "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.\" The Commission agreed with the applicant, whereas the Government contested his allegations. 36. The applicant argued that the decision of the Divisional Court (see paragraphs 16-17 above) was not distinguishable from that of the Court of Appeal in Manchester City Magistrates' Court, ex parte Davies (see paragraph 26 above) and amounted in substance to a ruling that his detention had been ordered by the magistrates in excess of their jurisdiction and was thus unlawful under English law.", "If this was so, it was in violation of Article 5 para. 1 (art. 5-1), which refers back to the position under national law. Furthermore, his imprisonment was not covered by any of the sub-paragraphs of Article 5 para. 1 (art.", "5-1). It did not result from a criminal conviction as required by Article 5 para. 1 (a) (art. 5-1-a), and, since he did not have any way of paying the debt, it could not have been intended to secure the fulfilment of an obligation prescribed by law within the terms of Article 5 para. 1 (b) (art.", "5-1-b). In addition, he argued that his detention was manifestly arbitrary. The Divisional Court found that there was no evidence of culpable neglect and that the magistrates' decision to imprison him was unreasonable in the sense of being irrational or perverse. The magistrates, therefore, acted beyond their powers in imprisoning him, and the imposition of a penalty which is beyond the authorisation of the law is necessarily an arbitrary one. Finally, he contended that, since he was denied legal representation in violation of Article 6 of the Convention (art.", "6), the detention was for that reason unlawful. 37. For the Commission, the weight of argument tended to the view that, in domestic law, the applicant's detention was not \"lawful\" as required by Article 5 para. 1 (art. 5-1).", "38. The Government submitted that Mr Benham's detention was \"lawful\" and \"in accordance with a procedure prescribed by law\" for the purposes of Article 5 para. 1 (art. 5-1). The Community Charge Regulations (see paragraph 19 above) conferred on the magistrates' court the power to send him to prison if they were of the opinion that his failure to pay was due to culpable neglect.", "Unlike the magistrates in Manchester City Magistrates' Court, ex parte Davies (see paragraph 26 above), the magistrates in the instant case did carry out the inquiry required by law as to whether Mr Benham's failure to pay resulted from culpable neglect. They made errors of fact and law in answering that question, but the Divisional Court did not find that these errors were such as to deprive them of jurisdiction. 39. The Court first observes that this case falls to be examined under sub-paragraph (b) of Article 5 para. 1 (art.", "5-1-b), since the purpose of the detention was to secure the fulfilment of Mr Benham's obligation to pay the community charge owed by him. 40. The main issue to be determined in the present case is whether the disputed detention was \"lawful\", including whether it complied with \"a procedure prescribed by law\". The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5 (art. 5), namely to protect individuals from arbitrariness (see the Quinn v. France judgment of 22 March 1995, Series A no.", "311, p. 18, para. 47). 41. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 para.", "1 (art. 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 the Bouamar v. Belgium judgment of 29 February 1988, Series A no. 129, p. 21, para. 49). 42.", "A period of detention will in principle be lawful if it is carried out pursuant to a court order. A subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention. For this reason, the Strasbourg organs have consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of fact or law (see the Bozano v. France judgment of 18 December 1986, Series A no. 111, p. 23, para. 55, and the report of the Commission of 9 March 1978 on application no.", "7629/76, Krzycki v. Germany, Decisions and Reports 13, pp. 60-61). 43. It was agreed by those appearing before the Court that the principles of English law which should be taken into account in this case distinguished between acts of a magistrates' court which were within its jurisdiction and those which were in excess of jurisdiction. The former were valid and effective unless or until they were overturned by a superior court, whereas the latter were null and void from the outset (see paragraph 24 above).", "It was further submitted that the appropriate test under English law for deciding whether or not magistrates acted within their jurisdiction was that laid down by the House of Lords in McC. v. Mullan (see paragraph 25 above). The third limb of that test was relevant to the instant case, namely that magistrates exceeded their jurisdiction when they made an order which had no foundation in law because of a failure to observe a statutory condition precedent. This limb was applied by the Court of Appeal in Manchester City Magistrates' Court, ex parte Davies (see paragraph 26 above). In that case the appeal court found that magistrates had acted in excess of jurisdiction when they committed a man to prison for non-payment of rates without having carried out the inquiry required by law as to whether his failure to pay was due to culpable neglect.", "44. In each of the two cases referred to above it was necessary for the courts to decide the jurisdictional issue, because at the relevant time damages could be awarded against magistrates who acted in excess of jurisdiction. However, section 108 of the Courts and Legal Services Act 1990 has since changed the law to provide that there is no right to damages unless magistrates acted in bad faith (see paragraph 28 above). For this reason, when the Divisional Court reviewed the magistrates' order for Mr Benham's detention, there was no reason under English law for it to decide whether or not the order had been made in excess of jurisdiction. Mr Justice Potts in the Divisional Court found that the magistrates had carried out some inquiry as to whether Mr Benham's failure to pay the community charge was due to his culpable neglect.", "However, he concluded that their finding of culpable neglect could not be sustained on the evidence available to them (see paragraph 16 above). 45. In the view of the Court, there are undoubtedly similarities between this decision and that of the Court of Appeal in Manchester City Magistrates' Court, ex parte Davies, but there are also notable differences. In the latter case, the Court of Appeal held that the magistrates had failed altogether to carry out the inquiry required by law as to whether the debtor's failure to pay was the result of culpable neglect (see paragraph 26 above). In the instant case, however, the Divisional Court found that the magistrates had addressed themselves to this question, although their finding of culpable neglect could not be sustained on the available evidence.", "46. Against the above background, it cannot be said with any degree of certainty that the judgment of the Divisional Court was to the effect that the magistrates acted in excess of jurisdiction within the meaning of English law. It follows that the Court does not find it established that the order for detention was invalid, and thus that the detention which resulted from it was unlawful under national law (see the above-mentioned Bouamar judgment p. 21, para. 49). The mere fact that the order was set aside on appeal did not in itself affect the lawfulness of the detention (see paragraph 42 above).", "47. Nor does the Court find that the detention was arbitrary. It has not been suggested that the magistrates who ordered Mr Benham's detention acted in bad faith, nor that they neglected to attempt to apply the relevant legislation correctly (see the above-mentioned Bozano judgment, pp. 25-26, para. 59).", "It considers the question of the lack of legal aid to be less relevant to the present head of complaint than to that under Article 6 (art. 6) (see paragraph 64 below). Accordingly, the Court finds no violation of Article 5 para. 1 of the Convention (art. 5-1).", "II. ALLEGED VIOLATION OF ARTICLE 5 PARA. 5 (art. 5-5) OF THE CONVENTION 48. The applicant, with whom the Commission agreed, argued that since he was detained in violation of Article 5 para.", "1 (art. 5-1), he was entitled to compensation from public funds in accordance with Article 5 para. 5 of the Convention (art. 5-5), which reads as follows: \"Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article (art. 5) shall have an enforceable right to compensation.\"", "49. The Government submitted that Article 5 para. 5 (art. 5-5) did not apply because the applicant's detention was not in contravention of Article 5 para. 1 (art.", "5-1). 50. The Court observes that Article 5 para. 5 (art. 5-5) guarantees an enforceable right to compensation only to those who have been the victims of arrest or detention in contravention of the provisions of Article 5 (art.", "5) (see the Wassink v. the Netherlands judgment of 27 September 1990, Series A no. 185-A, p. 14, para. 38). In view of its finding that there was no violation of Article 5 para. 1 (art.", "5-1) in this case, it concludes that Article 5 para. 5 (art. 5-5) is not applicable. III. ALLEGED VIOLATION OF ARTICLE 6 (art.", "6) OF THE CONVENTION A. Article 6 para. 1 (art. 6-1) taken alone 51. The applicant contended that the fact that he had no automatic right to legal representation at the hearing before the magistrates meant that he was denied access to a fair hearing for the purposes of Article 6 para.", "1 (art. 6-1), which provides, so far as is relevant: \"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 ...\" 52. Since the guarantees in paragraph 3 of Article 6 (art. 6-3) are specific aspects of the right to a fair trial in criminal proceedings guaranteed by paragraph 1 of the same Article (art. 6-1), the Court considers it appropriate to examine this complaint from the perspective of paragraphs 3 (c) and 1 taken together (art.", "6-1+6-3-c) (see, for example, the Granger v. the United Kingdom judgment of 28 March 1990, Series A no. 174, p. 17, para. 43). B. Article 6 para.", "3 (c) taken together with Article 6 para. 1 (art. 6-1+6-3-c) 53. The applicant further complained that his lack of legal representation during the proceedings before the magistrates constituted a violation of Article 6 para. 3 (c) (art.", "6-3-c) of the Convention, which provides as follows: \"Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;\" 1. Applicability 54. The applicant, with whom the Commission agreed, argued that the proceedings before the magistrates involved the determination of a criminal charge for the purposes of Article 6 para. 3 (c) (art. 6-3-c).", "He referred to the facts that what was in issue was not a dispute between individuals but rather liability to pay a tax to a public authority, and that the proceedings had many \"criminal\" features, such as the safeguards available to defendants aged under 21, the severity of the applicable penalty and the requirement of a finding of culpability before a term of imprisonment could be imposed. Furthermore, it was by no means clear that the proceedings were classified as civil rather than criminal under the domestic law. 55. The Government argued that Article 6 para. 3 (c) (art.", "6-3-c) did not apply because the proceedings before the magistrates were civil rather than criminal in nature, as was borne out by the weight of the English case-law. The purpose of the detention was to coerce the applicant into paying the tax owed, rather than to punish him for not having paid it. 56. The case-law of the Court establishes that there are three criteria to be taken into account when deciding whether a person was \"charged with a criminal offence\" for the purposes of Article 6 (art. 6).", "These are the classification of the proceedings under national law, the nature of the proceedings and the nature and degree of severity of the penalty (see the Ravnsborg v. Sweden judgment of 23 March 1994, Series A no. 283-B). As to the first of these criteria, the Court agrees with the Government that the weight of the domestic authority indicates that, under English law, the proceedings in question are regarded as civil rather than criminal in nature. However, this factor is of relative weight and serves only as a starting-point (see the Weber v. Switzerland judgment of 22 May 1990, Series A no. 177, p. 17, para.", "31). The second criterion, the nature of the proceedings, carries more weight. In this connection, the Court notes that the law concerning liability to pay the community charge and the procedure upon non-payment was of general application to all citizens, and that the proceedings in question were brought by a public authority under statutory powers of enforcement. In addition, the proceedings had some punitive elements. For example, the magistrates could only exercise their power of committal to prison on a finding of wilful refusal to pay or of culpable neglect.", "Finally, it is to be recalled that the applicant faced a relatively severe maximum penalty of three months' imprisonment, and was in fact ordered to be detained for thirty days (see the Bendenoun v. France judgment of 24 February 1994, Series A no. 284, p. 20, para. 47). Having regard to these factors, the Court concludes that Mr Benham was \"charged with a criminal offence\" for the purposes of Article 6 paras. 1 and 3 (art.", "6-1, art. 6-3). Accordingly, these two paragraphs of Article 6 (art. 6-1, art. 6-3) are applicable.", "2. Compliance 57. The applicant submitted that the interests of justice required that he ought to have been represented before the magistrates. He referred to the facts that lay magistrates have no legal training and in this case were required to interpret quite complex regulations. If he had been legally represented the magistrates might have been brought to appreciate the error that they were about to make.", "He asserted, further, that the Green Form and ABWOR schemes which were available to him (see paragraphs 29 and 30 above) were wholly inadequate. 58. The Government contended that the legal-aid provision available to Mr Benham was adequate, and that the United Kingdom acted within its margin of appreciation in deciding that public funds should be directed elsewhere. 59. For the Commission, where immediate deprivation of liberty was at stake the interests of justice in principle called for legal representation.", "60. It was not disputed that Mr Benham lacked sufficient means to pay for legal assistance himself. The only issue before the Court is, therefore, whether the interests of justice required that Mr Benham be provided with free legal representation at the hearing before the magistrates. In answering this question, regard must be had to the severity of the penalty at stake and the complexity of the case (see the Quaranta v. Switzerland judgment of 24 May 1991, Series A no. 205, pp.", "17-18, paras. 32-38). 61. The Court agrees with the Commission that where deprivation of liberty is at stake, the interests of justice in principle call for legal representation (see the above-mentioned Quaranta judgment p. 17, para. 33).", "In this case, Mr Benham faced a maximum term of three months' imprisonment. 62. Furthermore, the law which the magistrates had to apply was not straightforward. The test for culpable negligence in particular was difficult to understand and to operate, as was evidenced by the fact that, in the judgment of the Divisional Court, the magistrates' finding could not be sustained on the evidence before them. 63.", "The Court has regard to the fact that there were two types of legal-aid provision available to Mr Benham. Under the Green Form scheme he was entitled to up to two hours' advice and assistance from a solicitor prior to the hearing, but the scheme did not cover legal representation in court (see paragraph 29 above). Under the ABWOR scheme, the magistrates could at their discretion have appointed a solicitor to represent him, if one had happened to be in court (see paragraph 30 above). However, Mr Benham was not entitled as of right to be represented. 64.", "In view of the severity of the penalty risked by Mr Benham and the complexity of the applicable law, the Court considers that the interests of justice demanded that, in order to receive a fair hearing, Mr Benham ought to have benefited from free legal representation during the proceedings before the magistrates. In conclusion, there has been a violation of Article 6 paras. 1 and 3 (c) of the Convention taken together (art. 6-1+6-3-c). IV.", "APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION 65. The applicant sought just satisfaction under Article 50 (art. 50) of the Convention, which reads as follows: \"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. Non-pecuniary damage 66.", "Mr Benham claimed compensation for non-pecuniary damage in respect of the violation of Article 6 (art. 6). 67. The Government pointed out that Mr Benham was legally represented from 28 March 1991 onwards, when an unsuccessful bail application was made on his behalf, and that any time spent in prison after that date could not be attributed to his lack of representation at the hearing. 68.", "The Court considers, particularly in view of the impossibility of speculating as to whether the magistrates would have made the order for Mr Benham's detention had he been represented at the hearing before them, that the finding of a violation is sufficient satisfaction. B. Legal fees and expenses 69. The applicant further sought reimbursement of costs and expenses totalling £26,523.80. 70.", "The Government objected that the amounts claimed by the applicant were excessive. They submitted that, if the Court were to find for the applicant on all counts, a figure of £23,293.94 should be substituted for that sought. However, in the event that the Court found violations in respect of certain claims only, the costs and expenses allowed should be reduced proportionately. 71. In view of the fact that the Court finds a violation in respect of one of the applicant's complaints only, it considers that £10,000 (VAT included) is an appropriate amount for the respondent Government to pay towards the applicant's legal costs and expenses, less the 25,510 French francs already paid in legal aid by the Council of Europe.", "C. Default interest 72. 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 1. Holds by seventeen votes to four that there has been no violation of Article 5 para. 1 of the Convention (art.", "5-1); 2. Holds by seventeen votes to four that Article 5 para. 5 of the Convention (art. 5-5) is not applicable; 3. Holds unanimously that there has been a violation of Article 6 paras.", "1 and 3 (c) of the Convention taken together (art. 6-1+6-3-c); 4. Holds by nineteen votes to two that the finding of a violation constitutes adequate satisfaction for the non-pecuniary damage suffered by the applicant; 5. Holds unanimously (a) that the respondent State is to pay the applicant, within three months, in respect of costs and expenses, £10,000 (ten thousand pounds sterling) less 25,510 (twenty-five thousand, five hundred and ten) French francs to be converted into pounds sterling at the rate applicable on the date of delivery of the present judgment; (b) that simple interest at an annual rate of 8% shall be payable from the expiry of the above-mentioned three months until settlement; 6. Dismisses, unanimously, the remainder of the claim for just satisfaction in respect of costs and expenses.", "Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 10 June 1996. Rolv RYSSDAL President Herbert PETZOLD Registrar In accordance with Article 51 para. 2 of the Convention (art. 51-2) and Rule 53 para. 2 of Rules of Court A, the partly dissenting opinions of Mr Bernhardt, Mr Thór Vilhjálmsson, Mr De Meyer and Mr Foighel are annexed to this judgment.", "R.R. H.P. PARTLY DISSENTING OPINION OF JUDGE BERNHARDT In my view there is a violation of Article 5 para. 1 (art. 5-1) (and consequently also of Article 5 para.", "5 (art. 5-5)) of the Convention in the present case. I leave aside my doubts whether a prison sentence is in the circumstances of the case proportionate to the failure of Mr Benham to pay a community charge. Detention may in such a case be appropriate if there exists a chance that the detainee can and will pay the charge under such pressure. But if it is undisputed that the detained person has no means to pay the charge, a prison sentence is in my view hardly compatible with the proper role of criminal sanctions in present-day societies.", "But this is not the final reason of my dissent. I understand Article 5 para. 1 of the Convention (art. 5-1) in the sense that the words \"lawful detention\" refer to the conformity of the decision ordering the detention with national law, in so far as the material and procedural conditions contained in national law must be satisfied. In the present case, it is clear from the decision of the Divisional Court that under English law the magistrates should not have sent Mr Benham to prison.", "The present decision of the Court goes further and understands the reference to national law in the sense that a detention which has been ordered in violation of national law remains nevertheless lawful if under national law the deciding judge or magistrate acted inside his jurisdiction, if he did not act in bad faith, and if the order was not void ab initio. This understanding of Article 5 (art. 5) has far-reaching consequences. Even if the conditions provided for by national law are not satisfied, the detention remains nevertheless \"lawful\" if the national law distinguishes (which is often not the case) between decisions which are void ab initio and other decisions. Such a distinction - which leads often, including in the present case, to extremely unclear results - neglects the situation and the interests of the detained person.", "Decisive are the degree of the violation of the national law, the corresponding error of the judge concerned and the difference between void and \"voidable\" decisions. In my view, Article 5 (art. 5) refers to national law only in so far as the original detention order must be compatible with that law. I do not think that the comparison drawn in paragraph 42 of the judgment with convictions which are subsequently quashed by a higher court is convincing. The present case concerns exclusively the question whether the detention was \"lawful\" at the time when the detention order was made.", "PARTLY DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON To my regret, I have not found it possible to follow the majority of the Court on the question whether there was a violation of Article 5 para. 1 of the Convention (art. 5-1). The Commission came to the conclusion that \"the weight of the argument before it tends to be of the view that, in domestic law, the applicant's detention was not lawful\" (Commission's report, paragraph 48). The Court, on the other hand, did \"not find it established that the order for detention was invalid, and thus that the detention which resulted from it was unlawful under national law ...\".", "The arguments for and against these different conclusions are complicated and I am left in some uncertainty as to how to assess them. This uncertainty reveals that the national law is far from clear, yet what is in issue is an important question concerning personal liberty. As stated by the Court in the Bozano judgment, \"Lawfulness, in any event, also implies absence of any arbitrariness ...\" (Series A no. 111, p. 25, para. 59).", "As in that judgment, the particular circumstances of the case are relevant. Mr Benham was ordered to be detained for thirty days, and actually served eleven days, for failure to pay a community charge, in all £355, costs included. He had no personal assets or income, but the English magistrates found that he clearly had the potential to earn money to discharge his obligation to pay. In my opinion, the warrant issued by the magistrates was very severe in the circumstances. For these reasons, I am of the opinion that Article 5 para.", "1 (art. 5-1) was violated. Consequently, I find Article 5 para. 5 (art. 5-5) to be applicable.", "There was therefore, obviously, also a violation of that provision (art. 5-5). PARTLY DISSENTING OPINION OF JUDGE DE MEYER I have no doubt that the purpose of the legal provision under which the applicant was deprived of his liberty was to \"secure the fulfilment of\" an \"obligation prescribed by law\". However, since he had failed to fulfil the obligation concerned and since that failure was found by the magistrates' court to be due to his culpable neglect, the detention as such was, in my view, a punishment \"after conviction by a competent court\" [4]. It was indeed a sanction imposed on him on account of conduct considered reprehensible [5].", "That also suffices for me to conclude that he was entitled to enjoy the rights recognised in Article 6 of the Convention (art. 6) [6]. As far as Article 5 (art. 5) is concerned, I agree with Mr Foighel for the reasons set forth in his dissenting opinion [7], that the applicant's detention was not lawful. As to Article 6 (art.", "6), it is enough for me to see that he was not assisted by counsel before the magistrates' court and that it has not been shown either that he had willingly and knowingly waived such assistance or that the interests of justice did not require it in the instance concerned [8]. Finally, I feel that the Court should have granted some financial compensation to the applicant. PARTLY DISSENTING OPINION OF JUDGE FOIGHEL It has been constantly held by this Court that the right to liberty and security of person in Article 5 (art. 5) is one of the fundamental rights in the Convention. The Court's starting-point should therefore be that any exceptions to this rule are to be interpreted narrowly.", "The exception relevant to this case is Article 5 para. 1 (b) (art. 5-1-b), which permits \"(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;\" It is obvious that the Convention here essentially refers back to national law and lays an obligation on the national authority to comply with the substantive and procedural rules of that law, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5 (art. 5), namely to protect individuals from arbitrariness. The duty of interpreting and applying domestic law falls, in the first place, to the national authorities, notably the courts.", "If, however, the national law is obscure or uncertain, or if different interpretations of it are equally possible, it is incumbent on this Court - for the purpose of interpreting and implementing the Convention - to choose the interpretation of the national law which most closely corresponds with the purpose of Article 5 (art. 5), namely to protect individuals from arbitrariness. In this case the Divisional Court found at the hearing in October 1991 that the magistrates' decision to commit Mr Benham to prison had been unlawful. The Divisional Court was, however, silent as to whether Mr Benham's detention was unlawful from the start or whether it was unlawful only subsequent to the Divisional Court's decision. Further, it appeared from the addresses to the Court that - according to some interpretations of the English case-law - both interpretations were possible.", "Against this background I would hold that in relation to Article 5 para. 1 (art. 5-1) the detention of Mr Benham was unlawful from the start, as the detention of a young man for thirty days for not having paid a tax of £325 is in itself, notwithstanding technical arguments, a flagrant violation of the liberty of person protected by the Convention. Consequently, I find Mr Benham entitled to compensation for non-pecuniary damage in accordance with Article 50 (art. 50).", "[1] The case is numbered 7/1995/513/597. 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. [2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9).", "They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently. [3] For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1996-III), but a copy of the Commission's report is obtainable from the registry. [4] See Mr Justice Sedley's opinion referred to in paragraph 20 of the present judgment and our Court's own conclusion in paragraph 56. [5] See my opinion in Putz v. Austria, 22 February 1996, at paragraph 6. [6] Once again the Court applies, in paragraph 56 of the present judgment, the three Engel criteria.", "As I have already tried to explain in my opinion in Putz, at paragraphs 2-6, these criteria are not very useful. It would be better to forget them altogether. [7] See below. [8] See my concurring opinion in Boner v. the United Kingdom, 28 October 1994, Series A no. 300-B, p. 78." ]

[ "FIFTH SECTION CASE OF DOROKHOV v. RUSSIA (Application no. 66802/01) JUDGMENT STRASBOURG 14 February 2008 FINAL 14/05/2008 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 Dorokhov v. Russia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Karel Jungwiert,Volodymyr Butkevych,Margarita Tsatsa-Nikolovska,Anatoli Kovler,Javier Borrego Borrego,Mark Villiger, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 22 January 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "66802/01) 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 Gennadiy Valentinovich Dorokhov (“the applicant”), on 21 July 2000. 2. The applicant, who had been granted legal aid, was represented by Ms L.I. Alekseyeva, a lawyer practising in London. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights.", "3. The applicant alleged that the conditions of detention in the remand prison where he had been placed pending investigation and trial had amounted to inhuman and degrading treatment. He further complained that he had had no fair hearing of his case, since the court had refused to call certain witnesses. 4. By a decision of 30 June 2005, the Court declared the application partly admissible.", "5. The applicant and the Government each 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 1967 and lives in Moscow. A. Criminal investigation and detention 7. The applicant used to work as a public prosecutor. In 1998 the police charged him with blackmail and abuse of office.", "They alleged that the applicant had extorted several cars from the managers of a car repair shop, threatening to harass their business with criminal investigations. Thus, according to the prosecution, in 1997 the applicant was given a car in exchange for the discontinuation of the investigation into the allegedly illegal activities of the shop. Some time later he received from them another car of the same model. In 1998 he was given a new car which was more expensive than the previous one. The prosecution also accused the applicant of illegal possession of firearms, namely a gas handgun found at his place during the search.", "8. On 2 October 1998, the police arrested the applicant and detained him in remand prison IZ–48/1, Matrosskaya Tishina, in Moscow. On admission to the prison, the applicant was put in cell no. 210. The rest of the time he spent in four other cells, namely cells nos.", "212, 260, 739 and 740. 1. Cell 212 9. On 8 February 1999, the applicant was put into cell no. 212.", "The parties’ descriptions of this cell differ. 10. According to the applicant, the environment in this cell was so poor that he developed a skin rash. 11. According to the Government, that cell measured 18.8 square metres and had six bunk beds.", "The cell had cold running water, a sink, and a toilet partitioned off from the rest of the cell. The prisoners’ food met quality standards established by regulations. There was no infection in the cell. The prisoners had an hour’s daily exercise. Once a week they had a bath and received fresh bedding.", "2. Cell 260 12. On 11 February 1999, the applicant was moved to cell no. 260. The parties’ descriptions of this cell differ too.", "13. According to the applicant, this cell measured about 30 square metres and housed between eighteen and twenty-nine prisoners at different times (or twenty-five on average). Because the cell was overcrowded, during most of the seven months he was there the applicant had to share his bunk bed with other prisoners. But even on those few occasions when he had the bed to himself, he could not sleep because the lights and TV were always on, the ventilation was always off, and the prisoners talked day and night. Metal shutters covered both windows, keeping fresh air out.", "The toilet was not partitioned off from the rest of the cell and was in front of the guards’ peephole. 14. According to the Government, that cell measured 38.9 square metres and had eighteen bunk beds. The cell had cold running water, a sink, and a toilet partitioned off from the rest of the cell. The prisoners’ food met statutory standards of quality.", "There was no infection in the cell. The prisoners had an hour’s daily exercise. Once a week they had a bath and received fresh bedding. 15. Following the admissibility decision the applicant produced a written statement by Mr M., who had been detained in cell no.", "260 between September 1997 and December 1999. He confirmed the applicant’s account of the conditions of detention there, namely that periodically the cell held up to twenty-nine people. 3. Cells 739 and 740 16. On 19 May 1999, the applicant was moved to cell no.", "739, then to cell no. 740. These were hospital cells, and the applicant was put there while being treated for a broken leg. 17. According to the Government, the area of the cells was 21.6 square metres and 24.5 square metres correspondingly.", "The first cell was equipped with four bunk beds and the second one had eight. 18. According to the applicant, even though the prison administration knew that he was a former prosecutor, he had to share these cells with ordinary criminals. With a broken leg, the applicant would have been helpless had the criminals wished to attack him in revenge. 19.", "According to the Government, the applicant was detained separately from ordinary criminals. 20. On 7 June 1999, the applicant was returned to cell no. 260, where he stayed until his removal from the prison on 4 February 2000. B.", "Trial 21. On 31 March 1999, on termination of the investigation the applicant and his lawyer were given access to the materials of the case file. On an unspecified date later the prosecution submitted the case file with the bill of indictment to the Zamoskvoretskiy District Court of Moscow for trial. The applicant was accused of having received three cars from the managers of the car repair shop as a bribe. The applicant was also accused of illegal possession of firearms.", "22. On 9 June 1999, referring to Article 223 of the Code of Criminal Procedure the applicant requested the District Court to summon two additional witnesses, Ms V. and Ms G. In his words, those witnesses worked in the prosecutor’s office at the material time; they had seen him pay for the first of the allegedly extorted three cars and therefore could arguably provide evidence for his acquittal. He indicated in his request that in the course of the pre-trial investigation he had asked for those people to be questioned but it had been refused. 23. The request of 9 June 1999 was received by the administration of the detention facility the next day.", "However, it is unclear when they posted it. 24. On 18 June 1999 the judge of the District Court examined the materials of the case file in camera and found the case ready for trial. The parties disagree as to whether the applicant’s request under Article 223 to call Ms V. and Ms G. had reached the court by that date: according to the applicant, it must have reached the court well before 18 June 1999; according to the Government, the request reached the court only on 23 June 1999, so the judge was unable to examine it. 25.", "At the first hearing preceding the examination of the case on the merits the court asked the applicant whether he wished to call additional witnesses. The parties disagree as to whether the applicant used this opportunity to call Ms V. and Ms G.: according to the Government, he did not; according to the applicant, he did. From the transcript of the hearing provided by the applicant, it appears that the first hearing took place on 28 October 1999. The applicant asked the District Court to examine his request lodged earlier under Article 223 of the CCrP. The District Court replied that that motion had been received after the assignment of the case for trial.", "However, the District Court noted that it would be examined later, at the preliminary hearing stage. 26. The applicant agreed that he was a client of the car repair shop and knew its managers. He also confirmed that he had bought several cars from them. However, in his words, those cars were sold to him and were not given as a bribe, as the prosecution suggested.", "He indicated that in mid-July 1997 Ms V. had seen him paying for the car; he had paid Mr Sh., who acted as an intermediary between the applicant and the car repair shop. The applicant also testified that Ms G. had been present at the time when he had handed money to Mr Sh., and that later the applicant had told her about the deal. In his words, he gave money to Mr Sh. in a closed envelope and did not specify what was in it, since Mr Sh. knew that it was money for the car.", "Later in the course of the trial the applicant referred on three occasions to the episode of July 1997 where Ms V. and Ms G. had been present. 27. The court made several attempts to secure the attendance of Mr Sh. at the trial. However, Mr Sh.", "was absent from his address and according to his mother his whereabouts were unknown. The court decided to proceed with the case in his absence and read out the testimonies of that witness given during the face-to-face confrontation with the applicant. 28. At the trial several witnesses were heard. The court heard Mr B‑r., Mr S., Mr G. and Mr A., who worked at the shop at the material time and had contacts with the accused.", "They stated that the applicant had threatened them with criminal prosecution and that they had bribed him with the cars. They had also given him cash, to be transferred to other law-enforcement agencies for their “protection”. The court also heard Mr B-k., who had bought the third car in Germany for the applicant. In his words, he had received the money for that car from Mr A., the managers of the car repair shop. Ms P., who had worked in the prosecutor’s office at the material time, testified at the trial that the applicant had asked her to suspend the investigation into the activities of the shop.", "Some time later the applicant had asked her to help the shop to obtain several licences necessary for their professional activities. 29. The court further examined written statements from several witnesses obtained by the police during the preliminary investigation. It also examined material evidence and documents seized by the prosecution authorities which related to the applicant’s professional activities. 30.", "Finally, the court examined wiretapping records made secretly by the Federal Security Service in the applicant’s office. The court noted that the wiretapping had been authorised by the Moscow City Court at the request of the Federal Security Service and therefore was admissible evidence. In the court’s opinion, the records of his telephone conversations corroborated the testimonies of witnesses heard at the trial and those questioned by the investigative authorities. 31. The examination of evidence was followed by pleadings by both parties.", "The applicant pleaded not guilty. 32. On 15 November 1999, the court convicted the applicant as charged and sentenced him to seven years’ imprisonment. 33. After the trial, on 20 December 1999, the applicant asked the court to correct record of the hearing, because his request to call Ms V. and Ms G. had been omitted from the transcript of the first day of the hearing (28 October 1999).", "On 17 January 2000 the court refused to change the record, on the ground that it was true as it was. 34. The applicant appealed. In the points of appeal he indicated that on 28 November 1998 he had requested the District Court to call witnesses Ms V. and Ms G., who could have confirmed that the applicant had paid for the cars. However, in the applicant’s words the court had ignored that request.", "35. On 1 March 2000, the Moscow City Court upheld the conviction on appeal, without, however, examining the applicant’s argument about witnesses Ms V. and Ms G. II. RELEVANT DOMESTIC LAW AND PRACTICE 36. Under Article 21 of the Detention Act of 1995, all detainees’ correspondence should go through the administration of the remand prison. Letters addressed to the courts should be posted by the administration within one day of their receipt from the detainee.", "37. At the time of the relevant events the Code of Criminal Procedure of 1960 (“the old CCrP”) was in force. Under Article 46 of that code the accused had the right to lodge procedural requests with the trial court. 38. Under Article 221 of the old CCrP, after having received the case file from the prosecution with the bill of indictment, the judge, sitting in camera and without the parties, should decide whether or not the case is ready for trial.", "Under Articles 222 and 223 the judge should also examine written requests lodged by the defence. If the case is ready for trial the judge fixes the date for the preliminary hearing and draws up a list of witnesses to be called. This stage of the proceedings is called “assignment of the case to trial”. 39. The trial commences with a preliminary hearing.", "Under Article 276 of the old CCrP, the judge should ask the parties whether they wish to call additional witnesses. If such a request is made, the court should hear the parties on that matter and give decision in the form of a ruling, which should be reasoned. The court may also call new witnesses of its own motion. 40. In 1975 the Supreme Court of the Russian Soviet Federative Socialist Republic in a plenary session adopted Ruling no.", "5, in which it directed the lower courts as follows: “Requests received after the case has been assigned to trial but before the trial has begun, should be examined at the preliminary hearing. However, in order to secure their prompt examination the presiding judge may make certain preparatory arrangements beforehand (requests for information, references, and so on).” The rulings of the Supreme Court adopted in plenary sessions had the force of law. Ruling no. 5, as amended later, was in force at the time of relevant events. 41.", "After the preliminary hearing the court passes to the stage of “judicial investigation” (sudebnoye sledstviye, Chapter 23 of the old CCrP). This is the part of the trial when the court and the parties examine the evidence, hear and question witnesses, experts and so on. Once the “judicial investigation” is over, the court asks the parties whether they want to supplement the “judicial investigation” with any new elements of proof (Article 294 of the Code). At this moment the defence may ask again for new witnesses to be called. 42.", "Following the “judicial investigation” the trial passes to the stage of pleadings. The accused person has the right to pronounce a speech called “the last word”. If in this “last word” he informs the court of important new elements of the case, the court should reopen the “judicial investigation” (Article 297 of the Code). 43. Article 264 regulates the keeping of a trial record in the first instance court.", "It does not require a verbatim record of the trial to be kept, but “a detailed record of the submissions”. In practice, if a verbatim record exists, it is not attached to the official trial record. A party to the proceedings may challenge before the presiding judge the accuracy of the official record within three days of receiving a copy of it. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 44.", "The applicant complained under Article 3 of the Convention that the conditions in the remand prison had been inhuman. Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 45. The Government submitted, referring to their description of the cells, that the prison conditions were satisfactory. The prison was indeed overcrowded, but no worse than any other Russian prison in those years.", "Moreover, the authorities had had no intention of making him suffer. According to the Government, it was impossible to establish how many people had been detained with the applicant at the relevant time, since the official records had been destroyed in 2004 following the expiration of their storage period. 46. Further, in the Government’s submissions, the applicant had always been provided with an individual sleeping place and necessary bedding: a mattress, a blanket, a pillow, two bed sheets and a pillowcase. The Government also provided written statements by prison guards.", "They confirmed that at the relevant time cells nos. 212, 260, 739 and 740 had contained “former officials [of law enforcement agencies]”. 47. Finally, in recent years conditions in the prison had improved significantly. Thus, in 2004 the number of detainees in the remand prison where the applicant had been detained was 2.2 times lower than in 1998.", "48. The applicant insisted, referring to his description of the cells, that the prison conditions had been unsatisfactory. His case was not unique: the Court knew from other cases that conditions in Russian prisons were very poor. The authorities had intended to make him suffer because they had deliberately placed him in a cell with ordinary criminals. Furthermore, the recent improvements in general prison conditions were of no consequence for his case.", "B. The Court’s assessment 49. An outline of the Court’s case-law under Article 3 of the Convention concerning the conditions of detention can be found in a number of judgments concerning Russia (see, in particular, Kalashnikov v. Russia, no. 47095/99, §§ 95 et seq., ECHR 2002‑VI, and Mayzit v. Russia no. 63378/00, §§ 34 et seq., 20 January 2005), and the Court does not consider it necessary to repeat it here.", "50. As to the complaint that the applicant had been placed in a cell with hostile cellmates, the parties disagreed about the facts. However, in the Court’s view, there is no need to resolve this disagreement. Even if the cellmates did hold something against the applicant, there is no evidence that they actually mistreated him in any way. Their potential aggression never materialised, and the mere fear of ill-treatment in the circumstances of the case does not seem to be real enough to raise an issue under Article 3.", "51. As to the physical conditions of detention, the parties’ accounts also differ in many respects. The Court will consequently start with an issue that lends itself to more or less precise quantification, namely that of the overcrowding of the cells where the applicant had been detained, in particular, in cell no. 260. 52.", "The Court emphasises that it cannot but welcome the efforts of the domestic authorities aimed at the improvement of the conditions of detention in Russian prisons by reducing the overall number of detainees (see paragraph 47 above). However, the Court’s task within the present case is to examine the applicant’s personal situation as it was at the relevant time. The Court notes that the applicant stayed in remand prison IZ 48/1 between 2 October 1998 and 4 February 2000. Therefore, the Government’s argument that the number of detainees in 2004 was significantly lower than in 1998 is irrelevant. 53.", "The Government admitted that the cells where the applicant had been detained had been overcrowded. The Government’s assertion that the applicant had been assigned an “individual sleeping place” does not contradict this fact – the same sleeping place could have well been assigned to another detainee or detainees. The Government were unable to provide any figures as to the exact number of detainees there since the relevant records had been destroyed. At the same time they did not claim that the applicant’s account in respect of the number of detainees was untrue. 54.", "The Court recalls its findings in Mayzit v. Russia, cited above, § 40, where it held as follows: “From similar cases (see Kalashnikov v. Russia, cited above) the Court is aware that overcrowding in pre-trial detention facilities is a general problem in Russia (ibid., § 93). In these circumstances the Court does not find it of crucial importance to determine the exact number of inmates in the cells during the periods concerned. The material available suggests that at any given time there would be less than two square metres of space per inmate. Thus, in the Court’s view the cells were overcrowded, something which in itself raises an issue under Article 3 of the Convention.” 55. The Court further noted that for nine months the applicant in that case had been confined to his cell with very limited space for himself.", "It transpires from the judgment that the severe and prolonged overcrowding of the cell was sufficient for the Court to find a violation of Article 3 of the Convention (ibid., §§ 41 and 42). 56. By contrast, in other cases no violation of Article 3 was found, as the restricted space for sleeping was compensated for by the freedom of movement enjoyed by the detainees during the daytime (see Valašinas, cited above, §§ 103 and 107, and Nurmagomedov v. Russia (dec.), no. 30138/02, 16 September 2004). 57.", "In the present case the Court observes that the applicant spent about ten months in cell no. 260. He claimed that within that period the cell, measuring thirty square metres, contained twenty-five people on average. The applicant’s account was confirmed by his former cell-mate Mr M. In the absence of any official data as to the number of detainees, the Court accepts the applicant’s account and concludes that the cell was severely overcrowded (less than two square metres of space per inmate). 58.", "The Court further notes that such a long period of detention in cramped conditions must have caused him serious physical discomfort and mental suffering. The one-hour exercise periods were not sufficient to attenuate the negative effects of the overcrowding in the cells. Furthermore, such overcrowding precluded any privacy in everyday life, which is in itself a very traumatising experience. It is true that the authorities had not intended to humiliate the applicant or make him suffer. However, that does not remove the situation complained of from the scope of Article 3 of the Convention (see, for example, Peers v. Greece, no.", "28524/95, § 74, ECHR 2001-III). 59. In sum, the above factors are sufficient to conclude that, as regards cell no. 260, the applicant was detained in degrading conditions, in breach of Article 3. Since the issue of severe and prolonged overcrowding of the cell in itself warrants a finding of a violation of Article 3, the Court will not go any further and explore other aspects of the conditions of detention in detention facility no.", "IZ-48/1. 60. The Court therefore finds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 61.", "The applicant complained under Article 6 § 3 (d) of the Convention that the court had not questioned crucial witnesses on his behalf. Article 6 § 3, as far as relevant, reads as follows: “Everyone charged with a criminal offence has the following minimum rights: ... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ...” A. The parties’ submissions 62. The Government argued that the applicant’s rights had not been interfered with for the following reasons. First, requests to call witnesses were usually examined at preparatory hearings.", "But the court had been unable to examine the applicant’s request because it had been received after the preparatory hearing, namely on 23 June 1999. Second, since the applicant had not repeated the request at the main hearing, the court had had no reason to call Ms V. and Ms G. 63. The applicant insisted on his complaint for the following reasons. First, for a careful reader of the prosecution file the necessity of calling Ms V. and Ms G. was self-evident. Second, the request must have reached the court well before the preparatory hearing, because the prison administration usually dispatched prisoners’ mail within one day.", "Third, even if the request had reached the court late, the court should have answered it as soon as it came. Fourth, the applicant had repeated the request in the main hearing, in his last plea, and in his appeal. B. The Court’s assessment 1. General principles 64.", "The Court points out that the guarantees of paragraph 3 (d) of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1 of this Article, cited above. Consequently, the Court will consider the complaint concerning the failure to call witnesses Ms V. and Ms G. at the hearing under the two provisions taken together (see Asch v. Austria, judgment of 26 April 1991, Series A no. 203, p. 10, § 25). 65. The Court further reiterates that the right to call witnesses for the defence is not absolute and can be limited in the interests of the proper administration of justice.", "As a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce. More specifically, Article 6 § 3 (d) leaves it primarily to them to assess whether it is appropriate to call witnesses; it does not require the attendance and examination of every witness on the accused’s behalf: its essential aim, as it is indicated by the words “under the same conditions”, is full equality of arms in the matter (see, for example, Vidal v. Belgium, judgment of 25 March 1992, Series A no. 235-B, pp. 32‑33, § 33). In respect of witnesses on behalf of the accused, only exceptional circumstances could lead the Court to conclude that a refusal to hear such witnesses violated Article 6 of the Convention (see Bricmont v. Belgium, judgment of 7 July 1989, Series A no.", "158, § 89). 66. Finally, the Court reiterates that its task is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken and examined at the trial, were fair (see Asch, cited above, p. 10, § 26). 2. Application of those principles in the present case 67.", "The first point of controversy is whether or not the applicant made his request to call witnesses in an appropriate manner. The Court notes in this respect that on 9 June 1999 the applicant asked the court to summon two witnesses: Ms V. and Ms G. That request was lodged through the administration of the remand prison, as provided by the Detention Act 1995. The applicant’s letter was dispatched by the prison administration or should have been dispatched (see paragraph 36 above) on 10 June 1999. However, according to the Government, the letter reached the court only on 23 June 2003, which was almost a week after the case had been assigned to trial and the necessary arrangements had been made. 68.", "The Government may be understood as claiming that the belated receipt of the request absolved the court from the duty to examine it. However, the Court notes that under Russian law the applicant had no other choice but to dispatch his request through the prison administration (see § 36). In such circumstances it was for the prison administration to ensure that it was delivered within a reasonable time. Given that the remand prison and the court were situated in the same city, the two weeks’ delivery time seems to be unusually long. It raises certain doubts as to when the request of 9 June 1999 was posted by the prison administration.", "69. Be that as it may, there is no need to speculate on this matter. The Court observes that Ruling no. 5 of 1975 by the Supreme Court clearly required the judge to examine the applicant’s request at the preliminary hearing, even if it was received after the assignment of the case to trial. The Government did not explain why the court had failed to do so.", "70. The applicant further alleged that during the trial he had repeated his request to call Ms V. and Ms G. The trial record did not contain any reference to such a request. However, the Court notes that at the first hearing the presiding judge clearly stated that he would return to the requests lodged under Article 223 later, which could have been reasonably interpreted as relating to the applicant’s request to call Ms V. and Ms G. Further, in the course of the trial the applicant’s lawyer drew the court’s attention to those two witnesses. Finally, the court of appeal remained silent about the reasons why the first-instance court had not summoned Ms G. and Ms V. If it was just for a simple omission or laxity on the part of the applicant, who had not made himself sufficiently clear, the court of appeal could have easily have said so. In such circumstances the Court concludes that the defence employed all lawful means at their disposal to obtain the attendance of the two witnesses.", "71. The Court thus concludes that the applicant made a reasonable effort to obtain the attendance of witnesses in his defence. The Government’s objection should therefore be dismissed. The next question to answer is whether the trial court, by not securing their attendance, breached the applicant’s right under Article 6 § 3 (d). 72.", "The Court notes that, according to the prosecution, in 1997 the applicant had received the first car as a bribe. The applicant claimed that he had bought it and that Ms V. and Ms G. had seen him pay for it. In his request of 9 June 1999 the applicant explained what Ms V. and Ms G. would say and indicated their whereabouts. Therefore, the request to call witnesses was sufficiently reasoned, relevant to the subject matter of the accusation and could arguably have led to the applicant’s acquittal (see, in this respect, Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003‑V, and Guilloury v. France, no.", "62236/00, § 64, 22 June 2006). In other words, it was not a clearly vexatious request to which the court was not supposed to answer. 73. The Court further notes that the applicant’s offer to produce evidence was implicitly rejected by the trial court, without any reasons having been given. Moreover, the court of appeal did not address the applicant’s argument concerning the refusal of the lower court to call witnesses.", "The Court further notes that the applicant asked the first instance court to rectify the hearing record by putting on it his request to call Ms V. and Ms G. However, that request was rejected (see paragraph 33 above). 74. The Court reiterates that the applicant’s request was clearly relevant to the subject matter of the accusation. However, as was confirmed by the defence in the course of the trial, neither Ms V. nor Ms G. had seen him paying money for the car to Mr Sh. In his words, he handed Mr Sh.", "a closed envelope and did not say what was inside. Only afterwards did he mention to Ms G. that he had paid money for the car to Mr Sh. In sum, the probative value of the testimony of Ms G. and Ms V. was very low. On the contrary, the arguments in favour of the applicant’s guilt were quite weighty. Several people testified at the trial that they had bribed him with the car.", "Therefore, even if Ms G. and Ms V. had been called and heard, their testimony would most likely not have led to the applicant’s acquittal. The Court reiterates in this respect that, although the silence of the trial court and the court of appeal in that respect is regrettable, regard must be had to the proceedings as a whole. In Vidal, cited above, the applicant’s conviction rested mostly on the materials of the case file and the testimonies of the co-defendants (§ 34). In the present case, on the contrary, the conviction was supported by a solid evidentiary base, in particular by the testimonies of several independent witnesses given at the trial. In view of that it is possible to distinguish the present case from Vidal, cited above.", "75. The Court concludes that the implicit refusal of the domestic courts to call witnesses for the defence, in the particular circumstances of the case, did not affect the overall fairness of the trial. Therefore, there has been no violation of Article 6 § 3 (d) taken in conjunction with Article 6 § 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 76.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 77. Under Article 41 the applicant claimed 500,000 United States dollars. In his words, he needed that money to compensate his material losses, including legal costs, to carry out a public campaign for the restoration of his good name, and to cover expenses for medical treatment for himself and the members of his family. 78. The Government maintained that the applicant’s claims under Article 41 were unsubstantiated and unreasonable.", "As to the non-pecuniary damage allegedly sustained by him, the Government noted that only two of his complaints had been declared admissible. Further, the applicant had not substantiated his claims in so far as they related to any “material loss” allegedly sustained by him. 79. The Court notes that that the amount claimed by the applicant apparently included both pecuniary and non-pecuniary damage and his costs and expenses. As regards the pecuniary damage allegedly caused, the applicant did not specify what material losses he had suffered as a result of the poor conditions of his detention.", "The same applies to his legal costs: he did not indicate what they comprised. The Court also observes that the applicant received legal aid, which is supposed to cover at least some of his expenses related to his representation. In sum, the Court concludes that the applicant’s claim in respect of pecuniary damage and legal costs is not set out in sufficient detail and should be dismissed. 80. As to the non-pecuniary damage, it is unclear what part of the amount claimed is supposed to cover it.", "However, given the nature of the violations found in the present case, the Court admits that the applicant must have suffered as a result of the conditions of his detention, both mentally and physically. In sum, on an equitable basis the Court awards the applicant 7,000 euros, under the head of non-pecuniary damages, plus any tax that may be chargeable on this amount. 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 unanimously that there has been a violation of Article 3 of the Convention on account of conditions of the applicant’s detention; 2. Holds by five votes to two that there has been no violation of Article 6 § 3 (d) taken in conjunction with Article 6 § 1 of the Convention on account of the failure of the court to call witnesses for the defence; 3. Holds unanimously (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,000 (seven thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above 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 unanimously the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 14 February 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Claudia WesterdiekPeer LorenzenRegistrarPresident 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 Lorenzen and Tsatsa-Nikolovska is annexed to this judgment. P.L.C.W. JOINT PARTLY DISSENTING OPINION OF JUDGES LORENZEN AND TSATSA-NIKOLOVSKA While we agree with the majority that there has been a violation of Article 3 of the Convention, we are not able to find that there has been no violation of Article 6 § 3 (d) taken in conjunction with 6 § 1 of the Convention. According to Article 6 § 3 (d) everyone has a right “... to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”. It has been the Court’s constant case-law that this article does not grant an unlimited right to have witnesses heard and that it is primarily for national courts to assess whether witnesses requested by the defence to be heard are relevant to the case.", "Only in exceptional circumstances would a refusal to hear such witnesses violate Article 6, cf. paragraph 65 of the judgment. However, in our opinion the article implies that when a request by the defence to hear witnesses is not accepted, the national court should – unless the witnesses are clearly irrelevant – give a reasoned decision why it is not appropriate to call them. In the present case the applicant at the investigation stage requested to hear two witnesses and gave reasons why he considered them important. However, the request only reached the trial judge after the case was found ready for trial – either because the prison authorities forwarded it belatedly or because of a clerical error in the District Court.", "The parties disagree as to what the applicant answered to a question of the trial court whether he wanted to call additional witnesses, but it appears from the transcript of the hearing on 28 October 1999 that the court knew about his earlier request and noted that it would be examined later, at the preliminary hearing stage. However, it does not appear that the District Court took any decision in that respect. Nor did the appeal court examine his complaint that his request was left unanswered by the District Court. The majority considers that the applicant’s request was “clearly relevant” and that the silence of the national courts in that respect is “regrettable”. We can of course agree to that, but not to the majority’s approach that in such circumstances it is for the Court to assume the role of the national courts and assess what would have been the possible importance of statements from those witnesses had they been called.", "In our opinion the total failure of the national courts to examine and give a reasoned decision to a request to have relevant witnesses heard is not compatible with the requirements of Article 6 § 3 (d) taken in conjunction with Article 6 § 1 of the Convention. Accordingly there has been a violation of those articles." ]

[ "FIFTH SECTION CASE OF SCHWABE AND M.G. v. GERMANY (Applications nos. 8080/08 and 8577/08) JUDGMENT STRASBOURG 1 December 2011 FINAL 01/03/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Schwabe and M.G.", "v. Germany, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Dean Spielmann, President,Elisabet Fura,Karel Jungwiert,Boštjan M. Zupančič,Mark Villiger,Ganna Yudkivska,Angelika Nußberger, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 8 November 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The cases originated in two applications (nos. 8080/08 and 8577/08) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two German nationals, Mr Sven Schwabe (“the first applicant”) and Mr M.G. (“the second applicant”), on 8 February 2008 and 11 February 2008 respectively. On 23 August 2010 the President of the Chamber acceded to the second applicant’s request dated 7 July 2010 not to have his identity disclosed (Rule 47 § 3 of the Rules of Court).", "2. The first applicant was initially represented before the Court by Ms K. Ullmann, a lawyer practising in Hamburg, and subsequently by Ms A. Luczak, a lawyer practising in Berlin. The second applicant was also represented before the Court by Ms A. Luczak. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling‑Vogel, Ministerialdirigentin, and by their permanent Deputy Agent, Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice.", "3. The applicants alleged, in particular, that their detention for preventive purposes during a G8 summit, which had prevented them from participating in demonstrations, had violated Article 5 § 1 and Articles 10 and 11 of the Convention. 4. On 30 November 2009 the President of the Fifth Section decided to give notice of the applications to the Government. 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 applicants were both born in 1985 and live in Bad Bevensen and Berlin respectively. A. Background to the case 1.", "The authorities’ assessment of the security situation and the security measures taken during the G8 summit 6. From 6 to 8 June 2007 a G8 summit of Heads of State and Government was held in Heiligendamm, in the vicinity of Rostock. 7. The police considered that there was a threat of terrorist attacks, in particular by Islamist terrorists, during the summit. Furthermore, having regard to the experience of previous G8 summits, they considered that there was a risk of property damage by left-wing extremists.", "The latter were found to have planned to protest against, block and sabotage the summit. 8. The police estimated that there would be around 25,000 participants at an international demonstration in Rostock on 2 June 2007, 2,500 of whom were ready to use violence, and that there would be around 15,000 demonstrators present during the summit, 1,500 of whom would be ready to use violence. 9. On 2 June 2007 serious riots broke out in Rostock city centre, involving well-organised violent demonstrators, forming what has been termed a “black block”, who attacked the police with stones and baseball bats.", "400 policemen were injured. 10. According to a press release of the Mecklenburg-West Pomerania Ministry of the Interior dated 28 June 2007, some 17,000 police officers had been involved in ensuring that the G8 summit could be held without disruption and in protecting its participants from attacks by terrorists or anti‑globalisation demonstrators prepared to use violence. During the summit, 1,112 people had been detained in holding pens for prisoners (Gefangenensammelstellen). The courts had been asked to confirm the detainees’ detention in 628 cases; they had done so in respect of 113 individuals.", "2. The applicants’ arrest 11. In June 2007 the applicants drove to Rostock in order to participate in demonstrations against the G8 summit in Heiligendamm. 12. On 3 June 2007 at around 10.15 p.m. the applicants’ identity was checked and established by the police in a car park in front of Waldeck prison, where they were standing next to a van in the company of seven other people.", "No other people were present in the car park. The police submitted that the first applicant had physically resisted the identity check. He had allegedly hit the arms of a policeman who had attempted to determine the second applicant’s identity. He had also kicked another policeman’s shin in order to prevent his own identity from being determined. The applicants submitted that the second applicant had himself been hit by the police, although he had already been holding his identity card in his hand ready for inspection.", "The police searched the van and found folded-up banners bearing the inscriptions “Freedom for all prisoners” and “Free all now”. The applicants were arrested. It appears that the banners found were seized. B. The proceedings at issue 1.", "The proceedings before the District Court 13. In two separate decisions taken on 4 June 2007 at 4.20 a.m. and 4 a.m. respectively, the Rostock District Court, having examined both applicants in person, ordered their detention (amtlicher Gewahrsam) until 9 June 2007, 12 noon at the latest. 14. Relying on section 55(1), paragraph 2(a), and section 56(5) of the Mecklenburg-West Pomerania Public Security and Order Act (Gesetz über die öffentliche Sicherheit und Ordnung in Mecklenburg-Vorpommern – “the PSOA”, see paragraphs 37-38 below), the District Court found that the applicants’ detention had been lawful in order to prevent the imminent commission or continuation of a criminal offence. As the applicants had been found in front of Waldeck prison in a van in which objects calling for the liberation of prisoners had been discovered, it had to be assumed that they had been about to commit or aid and abet a criminal offence.", "15. The District Court further found that the applicants’ continued detention was indispensable and proportionate. At the hearing, both applicants had given the impression that they had intended to proceed with committing an offence. As they had not made any statements or submissions on the merits, they had been unable to justify their conduct. 2.", "The proceedings before the Regional Court 16. On 4 June 2007 the Rostock Regional Court, in two separate decisions, dismissed appeals (sofortige Beschwerde) lodged by the first and second applicants. 17. The Regional Court confirmed the District Court’s finding that the applicants’ arrest had been lawful under section 55(1), paragraph 2 (a), of the PSOA. As the applicants had been found in the vicinity of Waldeck prison in possession of banners with an imperative wording (“free”), they had intended to incite others to free prisoners and that constituted an offence.", "Moreover, having regard to the material in the case file, the first applicant had obstructed police officers in the exercise of their duties. The second applicant, for his part, had been charged with dangerous interference with rail traffic in 2002 in connection with the transport of “castor”[1] containers. The Regional Court further agreed with the District Court’s reasoning to the effect that the continuation of the applicants’ detention was indispensable and proportionate. 3. The proceedings before the Court of Appeal 18.", "On 7 June 2007 the Rostock Court of Appeal dismissed further appeals (sofortige weitere Beschwerde) subsequently brought by the applicants. In their appeals, the applicants, represented by counsel, had submitted that the slogans on the banners had been addressed to the police and the authorities, urging them to end the numerous arrests and detentions of demonstrators. They had not been meant to call upon others to attack prisons and to free prisoners by force, an interpretation which had to be considered far-fetched, given that there had not been any violent liberation of detainees from German prisons in recent decades. 19. The Court of Appeal upheld the lower courts’ finding that the requirements of section 55(1), paragraph 2(a), of the PSOA had been met.", "The applicants’ arrest and continued detention was indispensable in order to avert a danger to public security and order. The banner “Free all now”, together with the banner “Freedom for all prisoners”, could be understood as an incitement to liberate prisoners, an offence under Article 120 of the Criminal Code (see paragraph 41 below). The police had been entitled to assume that the applicants had intended to drive to Rostock and display the banners at the partly violent demonstrations there. As a result, a crowd which had been ready to use violence might have been incited to liberate people who had been arrested and detained. 20.", "In respect of the second applicant, the requirements of section 55(1), paragraph 2(c), of the PSOA (see paragraph 37 below) had also been met. The second applicant had been arrested in 2002 in comparable circumstances on suspicion of dangerous interference with rail traffic in connection with the transport of castor containers. It was irrelevant whether he had subsequently been convicted. 21. The applicants had not contested the courts’ conclusions; they had not made any statements or submissions on the merits.", "The police had been obliged to take into consideration the general security situation in Rostock on 2 and 3 June 2007. On those days, very violent clashes between demonstrators and the police had taken place in the city centre. Moreover, the applicants had proved to be prone to violence themselves by attacking police officers. 22. The Court of Appeal further considered that the applicants’ right to freedom of expression under the Basic Law did not warrant a different conclusion.", "It accepted that the slogans on the banners could be understood in different ways. However, in the tense situation in and around Rostock the police had been authorised to prevent ambiguous declarations which could have lead to a risk to public security and order. 23. Furthermore, the duration of the applicants’ detention was proportionate. According to a report by the Rostock police of 6 June 2007, between 6,000 and 10,000 anti-globalisation activists, some of whom were very violent, were moving towards Heiligendamm and were calling for an “attack on the embankment”.", "It could not be ruled out that the applicants would have participated in those demonstrations with the banners and would thus have incited other demonstrators to liberate prisoners. 4. The proceedings before the Federal Constitutional Court 24. On 6 June 2007 both applicants lodged a constitutional complaint with the Federal Constitutional Court and applied for an interim injunction ordering their immediate release. 25.", "The applicants complained that their detention had violated, in particular, their right to liberty and their right to freedom of expression. The second applicant further submitted that his detention had been in breach of his right to freedom of assembly. Both applicants argued that it had been far-fetched to interpret the slogans on the banners as inciting other demonstrators to attack prisons and to liberate prisoners. The banners had been addressed to the police, who had already arrested many anti‑globalisation activists, to the participants in the G8 summit and to the public in general, and had not advocated acts of violence. The applicants further stressed that they did not have any previous convictions.", "The second applicant submitted, in particular, that the criminal proceedings against him for dangerous interference with rail traffic had been discontinued. 26. These complaints were initially registered under file nos. 2 BvR 1195/07 and 2 BvR 1196/07. On 8 June 2007 the reporting judge at the Federal Constitutional Court informed the applicants’ representatives by telephone that the Federal Constitutional Court would not take a decision on the applicants’ request for interim measures.", "27. On 9 June 2007 at 12 noon the applicants were released from prison. 28. The applicants’ constitutional complaints of 6 June 2007 were then considered to have become devoid of purpose following their release. 29.", "On 6 July 2007 the applicants asked the Constitutional Court to find that their detention had been unconstitutional, despite the fact that they had been released in the meantime. Thereupon, their constitutional complaints were registered anew (files nos. 2 BvR 1521/07 and 2 BvR 1520/07). 30. On 6 August 2007 the Federal Constitutional Court, in two separate decisions, declined to consider the first and second applicants’ constitutional complaints, without giving reasons (file nos.", "2 BvR 1521/07 and 2 BvR 1520/07). 31. The decision was served on the first applicant’s counsel on 14 August 2007 and on the second applicant’s counsel on 13 August 2007. C. Subsequent developments 32. The criminal proceedings instituted against the first applicant for having obstructed public officers in the exercise of their duties (Widerstand gegen Vollstreckungsbeamte) in the course of the identity check on 3 June 2007 were discontinued, in exchange for the first applicant paying 200 euros (EUR).", "The criminal proceedings against the second applicant for the same offence were discontinued on grounds of insignificance. 33. The applicants submitted that one of the police officers involved in their arrest had later been convicted of causing bodily harm while discharging public duties in relation to a different matter. They submitted that the proceedings were still pending before the appellate court. The Government did not comment on that point.", "34. No criminal proceedings were brought against the applicants for having incited others to free prisoners. 35. On 20 December 2007 the Rostock Court of Appeal dismissed the applicants’ complaints of a violation of their right to be heard. 36.", "On 1 May 2008 the Federal Constitutional Court declined to consider the first applicant’s fresh constitutional complaint (file no. 2 BvR 538/08) and on 3 May 2008 it declined to consider the second applicant’s fresh constitutional complaint (file no. 2 BvR 164/08). In their complaints the applicants had relied, in particular, on their rights to liberty, to freedom of expression and to freedom of assembly. II.", "RELEVANT DOMESTIC LAW A. The Mecklenburg-West Pomerania Public Security and Order Act (“the PSOA”) 37. Section 55(1) of the PSOA, in so far as relevant, provides: “A person may only be detained if: 1. ... ; 2. this is indispensable in order to prevent the imminent commission or continuation of a criminal offence; the assumption that a person will commit or aid and abet such an offence may be based, in particular, on the fact that (a) he or she has announced or incited the commission of the offence or carries banners or other items containing such incitement; ... (c) he or she has been apprehended in the past on comparable grounds as a person involved in the commission of offences, and if facts warrant the conclusion that a repetition of this conduct is to be expected ...” 38. Section 56(5) of the PSOA provides that if the police take a person into custody, they must immediately obtain a judicial decision on the lawfulness and continuation of the detention.", "The judicial decision must set a maximum duration of detention, which may not exceed ten days in cases governed by section 55(1), paragraph 2. The District Court in the district in which the person concerned was arrested has jurisdiction to take the decision. 39. Under section 52 of the PSOA, the authorities may order a person to leave a place or prohibit a person from going to a specific place (Platzverweisung) in order to avert a real danger. If the facts warrant the conclusion that the person will commit an offence in a specific area, the person may be prohibited from entering that area for up to ten weeks.", "40. Under section 61(1) of the PSOA, an item may only be seized in order to avert an imminent danger to public security or order (paragraph 1) or if the facts warrant the conclusion that it might be used in order to commit a criminal or regulatory offence (paragraph 4). B. The Criminal Code 41. Section 120(1) of the Criminal Code provides that anyone who frees a prisoner or incites or helps him to escape is to be punished by imprisonment of up to three years or a fine.", "Subsection 3 of section 120 provides that an attempt to commit such an offence is also punishable. C. The Code of Criminal Procedure 42. Sections 112 et seq. of the Code of Criminal Procedure concern pre‑trial detention. Pursuant to Section 112(1) of the Code, a defendant may be remanded in custody if there is a strong suspicion that he has committed a criminal offence and if there are grounds for arresting him.", "Pre-trial detention may not be ordered if it is disproportionate to the importance of the case and to the penalty or measure of correction and prevention expected to be imposed. THE LAW I. JOINDER OF THE APPLICATIONS 43. Given that the present two applications concern two sets of proceedings in which the same subject matter – namely, the applicants’ detention for preventive purposes during the 2007 G8 summit in Heiligendamm – was at issue, the Court decides that the applications should be joined (Rule 42 § 1 of the Rules of Court). II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 44.", "The applicants complained that their detention for preventive purposes during the G8 summit had violated Article 5 § 1 of the Convention, which, in so far as relevant, reads as follows: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...” 45. The Government contested that argument. A. Admissibility 46. The Government took the view that the applicants had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention.", "They had not brought an action for compensation for their allegedly illegal detention under Article 5 § 5 of the Convention before the German courts prior to lodging their applications with the Court. The Government conceded that the applicants had utilised all existing remedies concerning their detention. Their primary aim – to obtain their release from prison – had, however, become devoid of purpose after their release on 9 June 2007. Afterwards, they could only have obtained compensation from the State. 47.", "The applicants contested that view. They had complained that their detention had breached their fundamental rights, both in the proceedings before the Rostock courts concerning the lawfulness of their detention and before the Federal Constitutional Court. Proceedings for damages in the civil courts would not have had a sufficiently wide scope and would not have been an effective remedy that could have been used to obtain a speedy decision on the lawfulness of their detention and to obtain their release if the detention was not lawful. Moreover, bringing a compensation claim after the detention had been considered lawful by the Rostock courts in the proceedings at issue would not have had any prospects of success. There was not a single case in which the civil courts, in compensation proceedings, had not followed a previous ruling of the courts deciding on the lawfulness of a person’s detention.", "In these circumstances, the applicants had not been obliged to use another remedy in addition to the proceedings they had brought contesting the lawfulness of their detention. 48. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to first use the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged (see, inter alia, Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996‑IV, and Aksoy v. Turkey, 18 December 1996, § 52, Reports 1996-VI). 49. Under the Convention institutions’ well-established case-law, where lawfulness of detention is concerned, an action for damages against the State is not a remedy which has to be used, because the right to have the lawfulness of detention examined by a court and the right to obtain compensation for any deprivation of liberty incompatible with Article 5 are two separate rights (see, inter alia, Włoch v. Poland, no.", "27785/95, § 90, ECHR 2000‑XI; Belchev v. Bulgaria (dec.), no. 39270/98, 6 February 2003; and Khadisov and Tsechoyev v. Russia, no. 21519/02, § 151, 5 February 2009, with further references). Paragraph 1 of Article 5 of the Convention covers the former right and paragraph 5 of Article 5 the latter (see Khadisov and Tsechoyev, cited above, § 151). 50.", "The Court notes that the applicants complained before it that their detention for preventive purposes during a G8 summit had violated Article 5 § 1 and that they had previously contested the lawfulness of the detention order before all competent domestic courts. Having regard to the Court’s case-law, they thereby exhausted domestic remedies for the purposes of their complaint under Article 5 § 1. The Government’s objection of non‑exhaustion must therefore be dismissed. 51. 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 (a) The applicants 52.", "The applicants argued that their detention from 3 to 9 June 2007 had violated Article 5 § 1 of the Convention. It had not been justified under any of the sub-paragraphs of that provision. 53. The applicants submitted, in particular, that their detention had not been justified under sub-paragraph (c) of Article 5 § 1, as that provision did not authorise a purely preventive deprivation of liberty. They had not been detained in connection with criminal proceedings, as required by that provision as interpreted in the Court’s case-law (they referred, inter alia, to Ječius v. Lithuania, no.", "34578/97, § 50, ECHR 2000‑IX). This was proved by the fact that their detention had not been based on section 112 of the Code of Criminal Procedure, which concerned remand in custody (see paragraph 42 above). On the contrary, the courts had based their detention on sections 55 and 56 of the Mecklenburg-West Pomerania Public Security and Order Act (“the PSOA”), which governed detention for preventive purposes without any link to criminal proceedings. 54. Moreover, the applicants argued that the aim of their detention had not been to bring them promptly before a judge and to try them for potential, future offences, as required by Article 5 § 3, read in conjunction with Article 5 § 1 (c).", "Nor could their detention have been reasonably considered necessary to prevent their committing an offence within the meaning of the second alternative of Article 5 § 1 (c). Their potential offences had not been sufficiently outlined with a reasonable degree of specificity as regards, in particular, the place and time of their commission and their victims, as required by the Court’s case-law (they cited, inter alia, M. v. Germany, no. 19359/04, § 102, ECHR 2009). 55. The applicants further submitted that their detention had not been justified under sub-paragraph (b) of Article 5 § 1 either.", "There had not been any court order that the applicants had failed to comply with. There had also not been any obligation incumbent on them which they had not fulfilled. Even if they had displayed the banners seized in the van, they would not have committed an offence. 56. In the applicants’ submission, their detention had also not met the requirements of sub-paragraph (a) of Article 5 § 1 in the absence of a “conviction”.", "57. Furthermore, in the applicants’ view, their detention had not been “lawful” as required by Article 5 § 1. Section 55(1) of the PSOA, on which their detention had been based, had not been sufficiently precise to make it foreseeable to them that they faced detention for their conduct. Furthermore, that provision had not been applied correctly. There had been nothing to indicate that the applicants had been about to commit a specific offence at a given time and place.", "Even assuming, contrary to the fact that the applicants had themselves been hit by the police officers, that the first applicant had hit the arm and kicked the shin of a police officer, this had not warranted the conclusion that both applicants had been about to commit another completely different offence, the liberation of prisoners by force. In any event, even if the applicants had displayed the banners, this would not have been illegal. Their inscriptions had not advocated violence or harm to anyone. The applicants stressed in that connection that their lawyers had explained the different meaning attributable to the slogans on the banners, both at the hearing before the Regional Court and in their written statement of further appeal. 58.", "Moreover, the applicants’ detention had also not been indispensable to prevent the imminent liberation of prisoners by force or the incitement of others to do so. There had been nothing to indicate that the applicants, who had not had any tools on them that could have been used to free prisoners, had been about to attack Waldeck prison, which was a high-security institution. There had not been any crowd of people present in the car park who could have been incited to liberate detainees in that prison by force. The assumption that the applicants might have displayed the banners at an unspecified demonstration, possibly attended by individuals prepared to use violence, could not be considered a sufficient ground for presuming that an offence was about to be committed, as required by section 55(1), paragraph 2, of the PSOA. The applicants further submitted that, contrary to the Government’s submissions, none of the domestic courts had suggested that the applicants had intended to liberate prisoners by force themselves.", "The courts had only stated that there was reason to believe that the applicants had intended to incite others to do so. 59. The applicants’ detention had also been arbitrary, in that it had not been necessary to achieve the aim pursued. The police could simply have ordered the applicants not to enter the area in which the G8 demonstrations had taken place under section 52 of the PSOA (see paragraph 39 above). Alternatively, they could also have seized the banners under section 61 of the PSOA (see paragraph 40 above).", "The applicants would then have been aware that the police considered the slogans illegal. In view of the chilling effect of such a police measure, it ought not to be assumed that the applicants would have reproduced and used similar banners, as was claimed by the Government. As there had not been further violent demonstrations during the whole week of the G8 summit, the applicants’ detention for six days had been disproportionate. They further noted in that connection that the seven Belarusian individuals also present in the van when the applicants had been arrested and to whom the banners could also have belonged had not been arrested and detained. (b) The Government 60.", "The Government took the view that the applicants’ detention had complied with Article 5 § 1 of the Convention. It had been justified under the second alternative of sub-paragraph (c) of Article 5 § 1 as detention reasonably considered necessary to prevent the applicants from committing an offence. 61. The Government contested the applicants’ assertion that detention for preventive purposes was only authorised under Article 5 § 1 (c) of the Convention in connection with criminal proceedings. The applicants’ detention had not been effected in connection with criminal proceedings and the preparatory acts they had undertaken with a view to freeing prisoners by force or inciting others to do so had not been punishable.", "Under the wording of Article 5 § 1 (c), second alternative, detention for preventive purposes was justified if it was necessary to prevent a person from committing a concrete and specific offence, which, if carried out, would entail criminal proceedings. It was not necessary for the person concerned to have already committed an offence; the second alternative of Article 5 § 1 (c) would otherwise be superfluous in addition to the first alternative of that provision. Article 5 § 3 of the Convention had to be interpreted in the context of Article 5 § 1 (c) as requiring a prompt examination of the lawfulness of the detention of the person concerned: a criminal trial was not necessary, as the person was not charged with a criminal offence. 62. The Government further argued that in Germany such detention for preventive purposes was necessary, as acts preparing criminal offences were, as a rule, not punishable, contrary to the criminal law applicable in other Contracting Parties to the Convention.", "This served to encourage potential offenders to give up their plans to commit an offence. Without the possibility of detaining persons for preventive purposes, the State would therefore be unable to comply with its positive obligation to protect its citizens from impending criminal offences – for instance, in the context of the transport of castor containers or football hooligans setting up an arranged brawl. 63. Referring to the case of Guzzardi v. Italy (6 November 1980, § 102, Series A no. 39), the Government submitted that the applicants’ detention had been justified under the second alternative of sub-paragraph (c) of Article 5 § 1.", "There had been specific facts warranting the conclusion that it had been necessary to prevent them from committing an offence in the imminent future. The applicants had been found by the police standing next to a van in a car park in front of Waldeck prison in the company of seven other people one day after violent riots in Rostock city centre. The first applicant had violently resisted the police’s identity check. The police had found folded-up banners bearing the inscriptions “Freedom for all prisoners” and “Free all now” in the van. In these circumstances, it had been reasonable for the police to assume that the applicants had been about to join the ongoing demonstrations in Rostock and to display the banners to demonstrators, some of whom had been violent.", "This would have amounted to an incitement of others to free prisoners, punishable under Article 120 of the Criminal Code. 64. The Government submitted that the wording of the banner bearing the inscription “Free all now” could have reasonably been interpreted as a call to other demonstrators to violently free prisoners, rather than as a call to the State authorities to order their release. The first applicant had violently resisted the identity check and proceedings had previously been brought against the second applicant for dangerous interference with rail traffic arising in the context of the transport of castor containers. Therefore, it had to be assumed that the applicants had wanted to disturb the summit by violent means and had wanted to incite other violent demonstrators present in Rostock to free prisoners held in the holding pens which had been set up in the city centre or individuals arrested during a demonstration by force.", "The applicants had not explained in the proceedings before the domestic courts that the inscriptions on their banners had had a different meaning. 65. The Government further argued that the applicants’ detention had also been justified under sub-paragraph (b) of Article 5 § 1. It had been necessary to secure the fulfilment of an obligation prescribed by law. Having regard to the circumstances of the case, it was certain that the applicants would not have fulfilled their legal duty to comply with an order to report to a police station in their town of residence at regular intervals (Meldeauflage) or with an order not to enter a particular area (Platzverweis).", "The applicants had travelled several hundred kilometres in order to reach the venue of the G8 summit and had resisted the identity check. They had thus demonstrated that they would not follow orders given by the police. Having regard to the exceptional situation at hand, it had not been necessary to wait until the applicants had in fact breached such an order. Bearing in mind the great number of demonstrators present, it would not have been possible to prevent the applicants from committing offences upon their doing so. Therefore, compliance with their legal duties to follow such an order and the prevention of specific offences could only have been secured by their instantaneous detention.", "66. In the Government’s submission, following the decision of the District Court ordering the applicants’ detention, their deprivation of liberty had also been justified under sub-paragraph (a) of Article 5 § 1. They argued that the term “conviction” in that provision, contrary to the Court’s case-law (they referred, inter alia, to M. v. Germany, cited above, §§ 87 and 95), did not only comprise criminal convictions, but also court decisions ordering detention for preventive purposes. 67. The Government further argued that the applicants’ detention had been lawful and in accordance with a procedure prescribed by law.", "It had been based on section 55(1), paragraph 2 (a), of the PSOA. The detention of the second applicant, who had been arrested in 2002 on suspicion of dangerous interference with rail traffic, had been based, in addition, on section 55(1), paragraph 2 (c), of the PSOA. 68. In the Government’s view, the applicants’ detention had also been proportionate and not arbitrary. There had not been any less intrusive means available to prevent them from freeing prisoners by force or inciting others to do so throughout the duration of the G8 summit.", "In particular, as shown above (see paragraph 65), obliging them to report to a police station outside the G8 area at regular intervals would not have been sufficient to prevent them committing an offence. For the same reasons set out above, an order made against them not to enter a particular area – that of the G8 summit – would not have been suitable to avert the offence. The same applied to the seizure of the banners, which the applicants could have reproduced. 2. The Court’s assessment (a) Recapitulation of the relevant principles 69.", "The Court reiterates that sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds for deprivation of liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (see, inter alia, Guzzardi, cited above, § 96; Witold Litwa v. Poland, no. 26629/95, § 49, ECHR 2000‑III; and Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008). 70. Under the second alternative of sub-paragraph (c) of Article 5 § 1, the detention of a person may be justified “when it is reasonably considered necessary to prevent his committing an offence”.", "That ground of detention does no more than afford the Contracting States a means of preventing a concrete and specific offence (see Guzzardi, cited above, § 102; Ciulla v. Italy, 22 February 1989, § 40, Series A no. 148; and Shimovolos v. Russia, no. 30194/09, § 54, 21 June 2011) as regards, in particular, the place and time of its commission and its victim(s) (see M. v. Germany, cited above, §§ 89 and 102). This can be seen both from the use of the singular (“an offence”) and from the object of Article 5, namely to ensure that no one should be dispossessed of his liberty in an arbitrary fashion (see Guzzardi, cited above, § 102, and M. v. Germany, cited above, § 89). 71.", "Under the Court’s well-established case-law, detention to prevent a person from committing an offence must, in addition, be “effected for the purpose of bringing him before the competent legal authority”, a requirement which qualifies every category of detention referred to in Article 5 § 1 (c) (see Lawless v. Ireland (no. 3), 1 July 1961, pp. 51-53, § 14, Series A no. 3, and, mutatis mutandis, Ječius, cited above, §§ 50-51, and Engel and Others v. the Netherlands, 8 June 1976, § 69, Series A no. 22).", "72. Sub-paragraph (c) thus permits deprivation of liberty only in connection with criminal proceedings (see Ječius, cited above, § 50). It governs pre-trial detention (see Ciulla, cited above, §§ 38-40). This is apparent from its wording, which must be read in conjunction both with sub-paragraph (a) and with paragraph 3, which form a whole with it (see, inter alia, Ciulla, cited above, § 38, and Epple v. Germany, no. 77909/01, § 35, 24 March 2005).", "Paragraph 3 of Article 5 § 1 states that everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of Article 5 must be brought promptly before a judge – in any of the circumstances contemplated by the provisions of that paragraph – and must be entitled to trial within a reasonable time (see also Lawless (no. 3), cited above, pp. 51-53, § 14). 73. Furthermore, detention is authorised under the second limb of sub‑paragraph (b) of Article 5 § 1 to “secure the fulfilment of any obligation prescribed by law”.", "It concerns cases where the law permits the detention of a person to compel him to fulfil a real and specific obligation already incumbent on him, and which he has until then failed to satisfy (see Engel and Others, cited above, § 69; Guzzardi, cited above, § 101; Ciulla, cited above, § 36; and Epple, cited above, § 37). The arrest and detention must be for the purpose of securing the fulfilment of the obligation and not punitive in character (see Gatt v. Malta, no. 28221/08, § 46, ECHR 2010). As soon as the relevant obligation has been fulfilled, the basis for detention under Article 5 § 1 (b) ceases to exist (see Vasileva v. Denmark, no. 52792/99, § 36, 25 September 2003, and Epple, cited above, § 37).", "It does not justify, for example, administrative internment meant to compel a citizen to discharge his general duty of obedience to the law (see Engel and Others, cited above, § 69). Finally, a balance must be drawn between the importance in a democratic society of securing the immediate fulfilment of the obligation in question, and the importance of the right to liberty (see Vasileva, cited above, § 37, and Epple, cited above, § 37). 74. For the purposes of sub-paragraph (a) of Article 5 § 1, the word “conviction”, having regard to the French text (“condamnation”), has to be understood as signifying both a finding of guilt after it has been established in accordance with the law that there has been an offence (see Guzzardi, cited above, § 100), and the imposition of a penalty or other measure involving deprivation of liberty (see Van Droogenbroeck v. Belgium, 24 June 1982, § 35, Series A no. 50, and M. v. Germany, cited above, § 87).", "(b) Application of these principles to the present case 75. The Court is called upon to determine, first, whether the applicants’ detention under section 55(1), paragraph 2, of the PSOA in order to prevent them from committing a criminal offence fell within one of the permissible grounds for deprivation of liberty listed in sub-paragraphs (a) to (f) of Article 5 § 1. 76. The Court observes that in the Government’s submission, the applicants’ detention was justified, in the first place, under sub‑paragraph (c) of Article 5 § 1. It further notes that the applicants, by being in possession of folded-up banners bearing the inscriptions “Freedom for all prisoners” and “Free all now”, had not yet committed a criminal offence and were subsequently never charged with having incited others to liberate prisoners by force.", "This is uncontested between the parties. Their detention therefore falls to be examined under the second alternative of Article 5 § 1 (c) as detention reasonably considered necessary to prevent them committing an offence. 77. In determining whether the offence that the authorities sought to prevent the applicants from committing can be considered to have been sufficiently concrete and specific, as required by the Court’s case-law in respect of, in particular, the place and time of its commission and its victim(s) (see paragraph 70 above), the Court observes that the domestic courts appear to have diverged as to the specific offence the applicants were about to commit. The Rostock District and Regional Courts appear to have considered that the applicants, with the help of the impugned banners, had intended to incite others to free prisoners detained in Waldeck prison by force (see paragraphs 14 and 17 above).", "This was inferred from the applicants’ presence in the car park in front of that prison – although, apart from the seven passengers in the van, no other people were present in the car park (see paragraph 12 above). On the contrary, the Rostock Court of Appeal considered that the applicants had intended to drive to Rostock and display the banners at the partly violent demonstrations there and thus incite the crowd present in Rostock to liberate prisoners by force (see paragraph 19 above). 78. In addition, in determining whether the applicants’ detention could have been “reasonably considered necessary” in order to prevent them from inciting others to liberate prisoners by force, the Court cannot but note that the applicants were detained for some five and a half days for preventive purposes and thus for a considerable time. Moreover, as was also accepted by the Court of Appeal (see paragraph 22 above), the inscriptions on the banners could be understood in different ways.", "The applicants, represented by counsel in the proceedings, had explained that the slogans had been addressed to the police and the authorities, urging them to end the numerous detentions of demonstrators, and had not been meant as a call to others to free prisoners by force. It is also uncontested that the applicants had not themselves carried any instruments which could have served to liberate prisoners violently. In these circumstances, the Court is not convinced that their continuing detention could reasonably be considered necessary to prevent them from committing a sufficiently concrete and specific offence. The Court is likewise not convinced of the necessity of the applicants’ detention because it would, in any event, have been sufficient to seize the banners in question in order to make them aware of potential negative consequences and to prevent them from inciting others – through negligence – to liberate prisoners. 79.", "The Court further refers to its long-established case-law under which, in order to be justified under Article 5 § 1 (c), the applicants’ detention should have been effected for the purpose of bringing them before the competent legal authority in the course of their pre-trial detention and aimed at committing them for trial in the criminal courts (see paragraphs 71‑72 above). However, having regard to its above finding that the applicants’ detention could not reasonably be considered necessary in the circumstances of the present case, the Court does not find it necessary to respond to the parties’ detailed arguments on that point, especially the Government’s arguments advocating a revision of the Court’s long-standing case-law. 80. Consequently, the applicants’ detention was not justified under sub‑paragraph (c) of Article 5 § 1. 81.", "The Court further notes that, in the Government’s submission, the applicants’ detention was also justified under sub-paragraph (b) of Article 5 § 1 “in order to secure the fulfilment of any obligation prescribed by law”. They argued that the applicants would not have complied with an order to report to a police station in their respective towns of residence at regular intervals or with an order not to enter the area in which the G8-related demonstrations took place. It had therefore been justified, in the Government’s submission, to secure the applicants’ compliance with such an order through their detention. In this connection, the Court cannot but note that the police in fact neither ordered the applicants to report to a police station in their town of residence nor prohibited them from entering the area in which G8-related demonstrations took place. The applicants therefore cannot be considered to have been under an “obligation prescribed by law”, for the purposes of Article 5 § 1 (b), to report to a police station or to not enter the area of the G8-related demonstrations, or to have failed to satisfy such an obligation.", "82. The Court observes that the Government further argued that the applicants had been detained in accordance with Article 5 § 1 (b) in order to secure the fulfilment of their obligation not to commit a specific offence – the incitement of others to liberate prisoners. In this connection, the Court refers to its case-law, cited above, under which the “obligation prescribed by law”, for the purposes of the said provision, must be real and specific, already incumbent on the person concerned and not yet satisfied by that person at the time of the detention (see paragraph 73 above). It notes that the applicants were detained under section 55(1), paragraph 2, of the PSOA, which authorises detention if “this is indispensable in order to prevent the imminent commission ... of a criminal offence” (see paragraph 37 above), such as an offence under section 120 of the Criminal Code. The Court considers that the duty not to commit a criminal offence in the imminent future cannot be considered sufficiently concrete and specific, within the meaning of the Court’s case-law, to fall under Article 5 § 1 (b), at least as long as no specific measures have been ordered which have not been complied with.", "It reiterates in that connection that a wide interpretation of sub-paragraph (b) of Article 5 § 1 would entail consequences incompatible with the notion of the rule of law, from which the whole Convention draws its inspiration (see Engel and Others, cited above, § 69). Moreover, the applicants cannot be considered to have previously failed in their duty not to commit such an offence. The applicants’ detention was therefore not covered by sub-paragraph (b) of Article 5 § 1 either. 83. The Court further notes the Government’s argument that following the District Court’s order authorising the applicants’ deprivation of liberty under section 55(1), paragraph 2, of the PSOA, their detention was also justified under sub-paragraph (a) of Article 5 § 1.", "The Government submitted that, under its wording, that provision had also covered court decisions ordering detention for preventive purposes. The Court, however, refers to its well‑established case-law stating that a “conviction”, having regard to the French text (“condamnation”), has to be understood as a finding of guilt in respect of an offence (see paragraph 74 above). It observes that in the proceedings at issue, the domestic courts did not find the applicants guilty of any criminal offence, but rather ordered their detention in order to prevent them from committing an offence in the future. Their detention thus did not fall under sub-paragraph (a) of Article 5 § 1. 84.", "The Court considers – and this is uncontested by the parties – that the applicants’ detention for preventive purposes was not justified under any of the other sub-paragraphs of Article 5 § 1 either. 85. The Court further takes note of the Government’s argument that without the possibility of detaining individuals for preventive purposes, the State would be unable to comply with its positive obligation to protect its citizens from impending criminal offences. In the case at hand, however, even taking into account the general situation before and during the G8 summit, it has not been sufficiently demonstrated that the liberation of prisoners had been imminent. Therefore, the commission of that offence could not have justified an interference with the right to liberty, especially as less intrusive measures could have been taken (see paragraph 78 above).", "The Court reiterates that, in any event, the Convention obliges State authorities to take reasonable steps within the scope of their powers to prevent criminal offences of which they had or ought to have had knowledge. However, it does not permit a State to protect individuals from criminal acts of a person by measures which are in breach of that person’s Convention rights, in particular the right to liberty as guaranteed by Article 5 § 1 (see Jendrowiak v. Germany, no. 30060/04, §§ 37-38, 14 April 2011, with further references) and as at issue in the applicants’ case. 86. There has accordingly been a violation of Article 5 § 1 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION 87. Relying on Article 5 § 5 of the Convention, the first applicant further submitted that a claim for compensation in respect of damage caused by his unlawful detention had had no prospects of success. 88. The Court has examined the first applicant’s complaint as submitted by him.", "However, having regard to all the material in its possession, the Court finds that, even assuming the exhaustion of domestic remedies in all respects, the complaint does not disclose any appearance of a violation of Article 5 § 5. 89. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION 90.", "The applicants further argued that their detention had disproportionately interfered with their right to freedom of expression guaranteed by Article 10 of the Convention and their right to freedom of assembly under Article 11 of the Convention, as it had made it impossible for them to participate and express their views in demonstrations during the G8 summit. 91. Articles 10 and 11 of the Convention, in so far as relevant, provide: Article 10 “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.” Article 11 “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others ... 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. ...” 92.", "The Government contested that argument. A. Admissibility 93. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Referring also to its findings above (see paragraphs 48-50), 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 94. The applicants argued that their detention had violated both their freedom of expression under Article 10 of the Convention and their freedom of peaceful assembly under Article 11 of the Convention. The interference with those rights by their detention had not been justified.", "It had not been “prescribed by law” and had not pursued a legitimate aim for the reasons they set out in relation to Article 5 § 1 (see paragraph 57 above). In particular, it had been uncertain if, when and where the applicants would display the banners “Freedom for prisoners” and “Free all now”. Doing so would, furthermore, not have been an offence under the Criminal Code. The slogans could not have been understood as an incitement to a very uncommon crime but had had a different, more obvious meaning. With more than 1,000 demonstrators having been detained in connection with the G8 summit but only 100 detentions having been approved by the courts, there had been more than enough reason to criticise the deprivations of liberty that had taken place in connection with the summit.", "95. The applicants further submitted that their detention had been disproportionate and thus not “necessary” in terms of paragraph 2 of Articles 10 and 11. The public interest in preventing the uncertain commission of an offence at an indefinite place and time had not outweighed their interest in showing their disagreement with many unlawful deprivations of liberty in the course of the G8 summit and in taking part in protests against that summit. The slogans “Freedom for prisoners” and “Free all now” had been well-known, conventional leftist slogans in respect of such detentions and could not have been interpreted as a call for the violent liberation of prisoners. Depriving them of their liberty in the circumstances in question had discouraged an open discussion of matters of public interest.", "(b) The Government 96. The Government considered that neither Article 10 nor Article 11 of the Convention had been breached. The interference with the applicants’ freedom of expression and freedom of assembly by their detention had been justified. It had been based on section 55(1), paragraph 2 (a), of the PSOA, a provision which had been sufficiently precise to be foreseeable in terms of its application to the applicants. It had pursued legitimate aims, as the applicants’ detention had been in the interest of public safety and for the prevention of crime.", "97. The Government further argued that the interference had been “necessary in a democratic society” for the purposes of Article 10 § 2 and Article 11 § 2. They stressed that there had not been a less restrictive measure than the applicants’ detention available in order to achieve the said legitimate aims. In particular, it had not been sufficient to seize the banners in question, as the applicants could easily have drawn up new, comparable banners at any time and could have used them immediately during the demonstrations in Rostock. It had also been proportionate to detain the applicants.", "There had been riots in Rostock city centre the day before. The applicants, who had shown themselves to be prepared to use violence, had been on their way to Rostock to participate in the demonstrations. There had been reason to fear that the applicants’ banners would have incited other violent demonstrators to liberate by force prisoners detained in the prisoner holding pens in Rostock. In these circumstances, the public interest in maintaining public order and in the prevention of crime had outweighed the applicants’ interest in participating in the demonstrations. 2.", "The Court’s assessment (a) Applicable Convention Article 98. The Court reiterates that the protection of personal opinions, secured by Article 10 of the Convention, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 of the Convention (see Ezelin v. France, 26 April 1991, § 37, Series A no. 202; Djavit An v. Turkey, no. 20652/92, § 39, ECHR 2003‑III; Women On Waves and Others v. Portugal, no. 31276/05, § 28, 3 February 2009; Barraco v. France, no.", "31684/05, § 27, 5 March 2009; and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 52, ECHR 2011). 99. The Court notes that in cases in which applicants have complained that they had been prevented from participating in and expressing their views during assemblies, including demonstrations, or that they had been punished for such conduct, it has taken several elements into account in determining the relationship between the right to freedom of expression and the right to freedom of assembly. Depending on the circumstances of the case, Article 11 has often been regarded as the lex specialis, taking precedence for assemblies over Article 10 (see, for instance, Ezelin, cited above, § 35, concerning a disciplinary sanction imposed on the applicant, a lawyer, after having participated in a demonstration to protest against two court decisions; Osmani and Others v. “the former Yugoslav Republic of Macedonia” (dec.), no.", "50841/99, ECHR 2001‑X, concerning the conviction of the applicant, an elected official, for having stirred up national hatred in a speech he delivered at an assembly he had organised; Djavit An, cited above, § 39, concerning the refusal of the Turkish and Turkish-Cypriot authorities to allow the applicant to cross the “green line” into southern Cyprus in order to participate in inter-community meetings; Galstyan v. Armenia, no. 26986/03, § 95, 15 November 2007, concerning a sanction of three days’ detention for having participated in a demonstration; and Barraco, cited above, § 26, concerning the applicant’s conviction for having participated in a traffic-slowing operation organised as part of a day of protest by a trade union). 100. In other cases, the Court, having regard to the specific circumstances of the case and the way in which the applicants formulated their complaints, has considered that the main focus of the applicants’ complaints lay in the right to freedom of expression and has thus examined the case under Article 10 alone (see, for instance, Karademirci and Others v. Turkey, nos. 37096/97 and 37101/97, § 26, ECHR 2005‑I, concerning a criminal sanction for having read out a statement during an assembly in front of a school, and Yılmaz and Kılıç v. Turkey, no.", "68514/01, § 33, 17 July 2008, concerning the applicants’ criminal conviction for having participated in demonstrations in support of Abdullah Öcalan). 101. The Court notes that in the present case, the parties submitted arguments in relation to Articles 10 and 11 together in the proceedings before the Court. It finds that the applicants essentially complained of the fact that, owing to their detention throughout the duration of the G8 summit, they were unable to express their views together with the other demonstrators present to protest against the summit. They also protested against the prohibition on expressing their views concerning the detention of demonstrators as expressed on the banners.", "The main focus of their complaints lies, however, in their right to freedom of assembly as they were prevented from taking part in the demonstrations and expressing their views. The Court will therefore examine this part of the application under Article 11 alone. It notes, however, that the issue of freedom of expression cannot in the present case be entirely separated from that of freedom of assembly. Notwithstanding its autonomous role and particular sphere of application, Article 11 must therefore also be considered in the light of Article 10 (see, mutatis mutandis, Ezelin, cited above, § 37). (b) Whether there was an interference with the right to freedom of peaceful assembly 102.", "The Court considers that, as a result of their detention, ordered by the domestic courts for the entire duration of the G8 summit, the applicants were prevented from taking part in demonstrations against that summit. 103. The Court reiterates that Article 11 of the Convention only protects the right to “peaceful assembly”. That notion does not cover a demonstration where the organisers and participants have violent intentions (see Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 77, ECHR 2001‑IX, and Galstyan, cited above, § 101).", "However, the possibility of extremists with violent intentions who are not members of the organising group joining a demonstration cannot as such take away that right. Even if there is a real risk of a public demonstration resulting in disorder as a result of developments outside the control of those organising it, such a demonstration does not as such fall outside the scope of Article 11 § 1, but any restriction placed on such an assembly must be in conformity with the terms of paragraph 2 of that provision (see Christians against Racism and Fascism v. the United Kingdom, no. 8440/78, Commission decision of 16 July 1980, Decisions and Reports (DR) 21, pp. 148-149, and, mutatis mutandis, Ezelin, cited above, § 41). 104.", "The Court notes that at the time of their arrest, the applicants intended to take part in future demonstrations against the G8 summit. There is nothing to indicate that the organisers of the demonstrations in which the applicants intended to participate had violent intentions. As shown above (paragraphs 8 and 103), the fact that the police also expected extremists with violent intentions to join the otherwise peaceful demonstrations does not result in those demonstrations losing the protection of Article 11 § 1. 105. As for the applicants’ own aims in joining the demonstrations, the Court is not satisfied that it has been shown that they had violent intentions in seeking to participate in G8-related demonstrations.", "In this connection, it notes, first, that the domestic courts did not consider that the applicants, by carrying banners bearing the inscriptions “Freedom for all prisoners” and “Free all now”, intended to liberate prisoners by force themselves. It also observes that no weapons were found on the applicants. It further takes note of the Court of Appeal’s finding that a crowd which was ready to use violence might be incited by the banners to liberate prisoners by force, but further notes that that court conceded that the slogans on the banners at issue in the present case could be understood in different ways (see paragraphs 19, 21 and 22 above). It also takes into account the declaration made by the applicants, represented by counsel, in the proceedings before the domestic courts. They had explained that the slogans on the banners had been addressed to the police and the authorities, urging them to end the numerous detentions of demonstrators, and had not been meant as a call to others to attack prisons and to free prisoners by force (see paragraphs 18 and 25 above).", "In the Court’s view, the applicants gave a plausible interpretation of the inscriptions on their banners, which themselves clearly did not openly advocate violence. Having regard also to the domestic court’s finding of the slogans’ ambivalent content allowing for different interpretations, the Court considers that it has not been proved that the applicants deliberately intended to incite others to violence. Neither could such a conclusion, in the Court’s view, be drawn from the fact that one of the applicants was considered to have resisted the police’s identity check by force and thus to have used force himself – in different circumstances and in a different manner from the display of banners to others at a demonstration. It further notes in this connection that neither of the applicants was shown to have previous convictions for violent conduct during demonstrations or in comparable situations. 106.", "The applicants’ detention thus interfered with their right to freedom of peaceful assembly under Article 11 § 1. This is uncontested between the parties. (c) Whether the interference was justified 107. Such an interference gives rise to a breach of Article 11 unless it can be shown that it was “prescribed by law”, pursued one or more legitimate aims as defined in paragraph 2 of that Article, and was “necessary in a democratic society”. (i) “Prescribed by law” and legitimate aim 108.", "In determining whether the interference was “prescribed by law”, the Court reiterates that a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Ezelin, cited above, § 45). It observes that it is contested between the parties whether the applicants’ detention was prescribed by a law – section 55(1), paragraph 2, of the PSOA – which was sufficiently precise to be foreseeable in its application in the circumstances of the applicants’ case. The Court considers that it can leave that question open and examine the case on the assumption that the interference was “prescribed by law” for the reasons which follow. 109. The Court is satisfied that the aim of the authorities in ordering the applicants’ detention was to prevent them from committing a crime, namely inciting others to liberate prisoners by force.", "This aim as such is legitimate under Article 11 § 2. (ii) “Necessary in a democratic society” 110. In determining whether the interference was “necessary in a democratic society”, the Court reiterates that the right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society. Thus, it should not be interpreted restrictively (see Djavit An, cited above, § 56, and Barraco, cited above, § 41). 111.", "The expression “necessary in a democratic society” implies that the interference corresponds to a “pressing social need” and, in particular, that it is proportionate to the legitimate aim pursued. The nature and severity of the sanction imposed are factors to be taken into account when assessing the proportionality of an interference in relation to the aim pursued (see Osmani and Others, cited above, with further references). 112. The Court must further determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 47, Reports 1998‑I, and Stankov and the United Macedonian Organisation Ilinden, cited above, § 87).", "113. The Contracting States have a certain margin of appreciation in assessing whether an interference is “necessary in a democratic society”, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it (see Stankov and the United Macedonian Organisation Ilinden, cited above, § 87; and Barraco, cited above, § 42). There is little scope under Article 10 of the Convention – in the light of which Article 11 has to be construed (see paragraphs 98 and 101 above) – for restrictions on political speech or on debate on questions of public interest (see Stankov and the United Macedonian Organisation Ilinden, cited above, § 88, with further references). However, where there has been incitement to violence against an individual or a public official or a sector of the population, the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of expression (see Stankov and the United Macedonian Organisation Ilinden, cited above, § 90; and, mutatis mutandis, Galstyan, cited above, § 115, and Osmani and Others, cited above). 114.", "In the present case, the Court notes that the applicants were detained for almost six days in order to prevent them from inciting others to liberate prisoners by force during demonstrations against the G8 summit. It has found above (see paragraphs 75-86) that the applicants’ detention for preventive purposes did not fall within any of the permissible grounds for deprivation of liberty under Article 5 § 1 and was thus in breach of that provision. The Court further observes that the summit was expected to attract a significant number of demonstrators (some 25,000), a large majority of whom were peaceful, but a considerable number of whom were prepared to use violence. A number of mass demonstrations were scheduled to take place over several days, some of which had descended into riots in Rostock city centre prior to the applicants’ arrest. The Court accepts that guaranteeing the security of the participants in the summit and maintaining public order in general in this situation was a considerable challenge for the domestic authorities, where decisions often had to be taken speedily.", "115. However, as set out above (see paragraph 105), the Court cannot consider it established that the applicants had intended, by displaying the banners bearing the impugned inscriptions at the demonstrations, to deliberately stir up other demonstrators prepared to use violence to liberate by force prisoners taken during the G8 summit. It appears, on the contrary, an acceptable assessment of the relevant facts by the authorities, having regard to their margin of appreciation, that the slogans could be considered ambiguous and that the applicants could thus have negligently incited others to violence by displaying the slogans during certain demonstrations (see, for a case concerning the use of symbols with multiple meanings, Vajnai v. Hungary, no. 33629/06, §§ 51 et seq., ECHR 2008). 116.", "The Court further finds that the applicants, by taking part in the demonstrations against the G8 summit, intended to participate in a debate on matters of public interest, namely the effects of globalisation on people’s lives. Moreover, through the slogans on their banners, they intended to criticise the police’s management in securing the summit, in particular the high number of detentions of demonstrators. Given that a considerable number of demonstrators (more than 1,000 of the 25,000 demonstrators expected) were temporarily detained during the course of the summit, the Court considers that the slogans contributed to a debate on a question of public interest. It is further clear that depriving the applicants of their liberty for several days for having intended to display the impugned banners had a chilling effect on the expression of such an opinion and restricted the public debate on that issue. 117.", "In sum, the applicants’ intended protests during the G8 summit must be considered to have been aimed at participating in a debate of public interest, in respect of which there is little scope for restriction (see paragraph 113 above). Moreover, the applicants were not shown to have had the intention of inciting others to violence. In these circumstances, the Court considers that a considerable sanction, namely detention for almost six days, was not a proportionate measure in order to prevent the applicants from possibly negligently inciting others to liberate by force demonstrators detained during the G8 summit. In such a situation, a fair balance between the aims of securing public safety and prevention of crime and the applicants’ interest in freedom of assembly could not be struck by immediately taking the applicants into detention for several days. 118.", "In particular, the Court is not convinced that there were not any effective, less intrusive measures available to attain the said aims in a proportionate manner. Notably, it considers that in the given situation, in which it has not been shown that the applicants were aware that the police considered the slogans on their banners illegal, it would have been sufficient to seize the banners in question. This could reasonably be expected to have had a chilling effect on the applicants, preventing them from drawing up new, comparable banners immediately. Even if their freedom of expression would then have been restricted to a certain extent, their taking part in the demonstrations would not have been made impossible from the very outset. 119.", "In view of the foregoing, the Court concludes that the interference with the applicants’ right to freedom of assembly was not “necessary in a democratic society”. There has accordingly been a violation of Article 11 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 120. 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 121.", "The applicants claimed 10,000 euros (EUR) each in respect of the non‑pecuniary damage suffered as a result of their detention in breach of the Convention. They referred to the awards of just satisfaction the Court had made in the cases of Brega v. Moldova (no. 52100/08, § 52, 20 April 2010) and Vasileva (cited above, § 47) in support of their view that the sum claimed was reasonable. They asked for all payments to be made into their lawyer’s fiduciary bank account. 122.", "The Government considered the amounts claimed excessive. They submitted that if the Court were to find a violation of the Convention, this would constitute sufficient just satisfaction. They argued that the facts of the cases cited by the applicants in support of their view were not comparable to those at issue in the present applications. 123. The Court considers that their detention for some six days in breach of Article 5 § 1 and Article 11 of the Convention must have caused the applicants distress which would not be adequately compensated by the finding of a violation alone.", "Making an assessment on an equitable basis, it therefore awards each of the applicants EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable, under this head. Having regard to the power of attorney presented by the applicants’ lawyer, which authorises her to accept any payments to be made by the other party to the proceedings, it orders the sums payable to the applicants to be paid into their lawyer’s fiduciary bank account. B. Costs and expenses 124. The first applicant also claimed EUR 2,340.85 for costs and expenses incurred before the domestic courts (EUR 68 in court costs and EUR 2,272.85 in lawyers’ fees, including VAT payable thereon) and EUR 1,892.50 (including VAT) for those incurred before the Court.", "The second applicant claimed EUR 2,370.65 for costs and expenses incurred before the domestic courts (EUR 68 in court costs and EUR 2,302.65 in lawyers’ fees, including VAT payable thereon) and EUR 2,082.50 (including VAT) for those incurred before the Court. They submitted documentary evidence to support their claims. 125. The Government, arguing in general that no compensation was payable to the applicants under Article 41 of the Convention, did not comment on these claims. 126.", "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 is satisfied that the proceedings before the domestic courts and before the Court were aimed at preventing and then redressing the violations it has found of Article 5 § 1 and Article 11 of the Convention. It further finds that the costs and expenses claimed by the applicants were necessarily incurred and reasonable as to quantum. 127. The Court therefore awards the first applicant EUR 4,233.35 (including VAT), covering costs and expenses under all heads, plus any tax that may be chargeable to him.", "It further awards the second applicant EUR 4,453.15 (including VAT), covering costs and expenses under all heads, plus any tax that may be chargeable to him. It also orders these sums payable to them to be paid into their lawyer’s fiduciary bank account. C. Default interest 128. 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 first applicant’s complaint under Article 5 § 5 of the Convention inadmissible and the remainder of the applications admissible; 3. Holds that there has been a violation of Article 5 § 1 of the Convention; 4. Holds that there has been a violation of Article 11 of the Convention; 5. 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, into the applicants’ lawyer’s fiduciary bank account (i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, to each of the applicants in respect of non-pecuniary damage; (ii) EUR 4,233.35 (four thousand two hundred and thirty-three euros and thirty-five cents), including VAT, to the first applicant, plus any tax that may be chargeable to him, in respect of costs and expenses; (ii) EUR 4,453.15 (four thousand four hundred and fifty-three euros and fifteen cents), including VAT, to the second applicant, plus any tax that may be chargeable to him, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 1 December 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekDean SpielmannRegistrarPresident [1] Cask for the storage and transport of radioactive material." ]

[ "THIRD SECTION CASE OF ESTRIKH v. LATVIA (Application no. 73819/01) JUDGMENT STRASBOURG 18 January 2007 FINAL 18/04/2007 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 Estrikh v. Latvia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrB.M. Zupančič, President,MrC.", "Bîrsan,MrV. Zagrebelsky,MrE. Myjer,MrDavid Thór Björgvinsson,MrsI. Ziemele,MrsI. Berro-Lefèvre, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 12 December 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 73819/01) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vladimir Aleksandrovich Estrikh (“the applicant”), on 4 September 2001. 2. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine. 3.", "The applicant alleged that his detention on remand was excessively long and partly unlawful, that during the pre-trial detention on remand his right to family life was infringed, that the proceedings against him were unreasonably long and that his expulsion from Latvia was unlawful. 4. On 9 May 2005 the Court decided to give notice of the application to the Government and to invite the Government to submit written observations concerning the complaints under Articles 5 § 3, 6 § 1 and 8 of the Convention. Under 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 1972 and lives in Krasnoyarsk in the Russian Federation. 1. The applicant's arrest and detention on remand 6. The applicant arrived in the Republic of Latvia as a member of the ex-USSR armed forces located in the territory of Latvia.", "On an unspecified date in the beginning of the 1990s he and Ms B., a Latvian citizen, started living together in de facto partnership. In 1993 a child was born to the applicant and his partner. 7. After the military forces were withdrawn from Latvia, the applicant resided there between 11 June 1993 and 31 March 1994 on the basis of a temporary residence permit. On 31 March 1994, upon the expiry of the residence permit, he left Latvia.", "8. Between 1994 and 1997 the applicant visited Latvia three times on the basis of a visa. The validity of the last visa expired on 17 November 1997 but the applicant continued to reside in Latvia illegally. 9. On 19 February 1998 the applicant was apprehended by the police and taken into custody on suspicion of having committed robbery and criminal proceedings were initiated against him and seven co-accused persons.", "10. On 20 February 1998 the applicant was brought before a judge of the Ziemeļu District Court of the City of Riga who decided to detain him on remand. The judge filled in a standard form by typing in the date, the names of the court and the applicant and other details of the case. In substantiating the decision, the judge had to choose from and underline the pre-typed text of the standard form. She took into account the severity of the crime the applicant was suspected of, the danger of his possible absconding and the possibility that he could impede the investigation.", "However, the judge did not underline the pre-typed text as to whether or not a preventive measure should be imposed on the applicant. He did not appeal this decision. 11. On 17 March 1998 the applicant was officially charged with robbery. 12.", "On 9 April, 11 June, 10 August and 13 October 1998 a judge of the Ziemeļu District Court of the City of Riga, on the request of the prosecutor in charge of investigation, extended the applicant's detention on remand until 19 June, 19 August, 19 October and 12 December 1998 respectively. The applicant was not brought before the judge. The decisions were drafted using a standard form and repeated from one decision to the next the same grounds in the same words, i.e. the severity of the crime the applicant was charged with, the danger of his possible absconding and the possibility that he could impede the investigation. The applicant did not appeal any of these decisions.", "13. On 30 October 1998 the prosecutor in charge of investigation and the applicant discussed the possibility of releasing him on bail. 14. On 25 November 1998, according to the prosecutor's permission, the applicant and his partner met in order to discuss the details of the applicant's release on bail without reaching any agreement in this respect. 15.", "On 10 December 1998, 11 January, 29 January, 20 February and 19 March 1999 a judge of the Ziemeļu District Court of the City of Riga, on the request of the prosecutor in charge of investigation, extended the applicant's detention on remand until 12 January, 29 January, 20 February, 20 March and 20 April 1999 respectively. The applicant was not brought before the judge. The decisions were drafted using a standard form and repeated, from one decision, the same grounds and in the same words, i.e. the severity of the crime the applicant was charged with, the danger of his possible absconding and the possibility that he could impede the investigation. The applicant did not appeal any of these decisions.", "16. On 21 April 1999 the applicant was given access to the case file in order to take cognisance of its contents, which he completed on 29 October 1999. 17. On 7 August 2000 the last of the co-accused persons completed the reading of the case file. 18.", "On 23 August 2000 the investigating prosecutor N. informed all accused persons that the examination of the case file had been completed. The prosecutor, considering the fact that the applicant resided in Latvia illegally, the danger of his possible absconding and the possibility that he could impede the investigation, refused the applicant's request to alter the preventive measure imposed on him. The applicant did not appeal this decision. On the same day the final indictment, drafted by the prosecutor N., was presented to the applicant. 19.", "On an unspecified date the case was transmitted to the Riga Regional Court for adjudication. 2. The applicant's contacts with his family during his detention 20. During the preliminary investigation the applicant asked the prosecutor in charge of investigation for permission to correspond with his relatives; these requests, using a standard form, were refused as being contrary to the interests of investigation. 21.", "On 1 February 1999 the applicant asked the prosecutor for permission to meet his partner. His request was refused on 8 February 1999. 22. On 27 June 1999 the applicant asked the prosecutor for permission to exchange correspondence with his parents, who were living in Russia. 23.", "On 5 July 1999 the prosecutor informed the applicant that he was not allowed to meet his partner or to exchange correspondence with his parents. 24. On 22 July 1999 the applicant asked the prosecutor for permission to exchange correspondence with his relatives and to meet his partner and their child. These requests were refused on 2 August 1999. 25.", "On 10 August 2000 the applicant asked the prosecutor for permission to exchange correspondence with his mother and his partner. 26. On 16 August 2000 the prosecutor allowed the applicant to exchange correspondence with his mother. 27. On 13 September 2000 a judge of the Riga Regional Court allowed the applicant to exchange correspondence with his partner.", "28. The applicant spent the whole period of detention from 19 February 1998 to 19 August 2002 in a remand prison. According to the Instruction on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons (hereinafter referred to as “the Instruction”), approved by the Minister of the Interior, and Transitional Provisions on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons (hereinafter referred to as “the Transitional Provisions”), approved by the Minister of Justice, long-term family visits were prohibited in remand prisons. 3. Court proceedings against the applicant 29.", "On 4 September 2000 the Riga Regional Court received the case file. 30. On 7 September 2000 a judge of the Riga Regional Court committed the applicant for trial and scheduled the hearing for 13 May – 10 June 2002. The applicant was not summoned. The judge decided to continue his detention on remand without giving reasons.", "The decision was not subject to appeal. 31. On 4 November 2000 the applicant asked the Riga Regional Court to schedule a separate court hearing in order to determine the date of trial and to reconsider the preventive measure imposed on him. 32. On 20 November 2000 a judge of the Riga Regional Court replied that the trial date had not been set.", "33. On unspecified dates the applicant complained to the President of the Riga Regional Court and the Ministry of Justice that his right to trial within a reasonable time had been infringed. On 5 December 2000 the Ministry of Justice notified the applicant that the trial date had not been scheduled. 34. On 28 November 2000 the applicant asked the Riga Regional Court to hold a hearing in his case within a reasonable time.", "On 8 January 2001 the applicant repeated this request. 35. On 29 January 2001 a judge of the Riga Regional Court replied that the trial date had not been set. 36. On 26 February 2001 the applicant announced a hunger strike to protest against the lack of progress in the proceedings.", "37. On 2 March 2001 the Riga Regional Court informed him that the hearing had been scheduled for May 2001 and he discontinued the hunger strike. 38. On 13 March 2001 the Riga Regional Court informed the applicant that the trial had been scheduled for 13 May – 1 July 2002. 39.", "On 15 March 2001, in reply to the applicant's earlier complaint, the Ministry of Justice informed him that the hearing had been set for 13 May – 1 July 2002. 40. On 27 March 2001 the Riga Regional Court confirmed that the trial date had been scheduled for 13 May – 1 July 2002. 41. On 5 April 2001 the Ministry of Justice confirmed that the trial dates were set for 13 May – 1 July 2002 and not May 2001 as erroneously stated by the Riga Regional Court in its letter of 2 March 2001.", "The applicant was also informed that, due to the court's case load, it was not possible to begin the trial within the time limit provided for in Article 241 of the Criminal Procedure Code. 42. On 11 April 2001, on the applicant's request of 2 April 2001 to alter his detention on remand, a judge of Riga Regional Court informed him that he had been committed for trial and that there was no reason to alter the preventive measure imposed on him. 43. On 13 May 2002 the Riga Regional court commenced adjudication of the applicant's case.", "44. On 16 and 20 May 2002 the Riga Regional court adjourned the hearing as several witnesses did not appear. The court ordered the police to ensure the appearance of these witnesses under constraint. 45. On 11 June 2002 the Riga Regional Court found the applicant guilty of robbery and unlawful ammunition storage.", "The prosecuting authorities were represented by the prosecutor N. and his colleague. The court sentenced him to four years and six months' imprisonment and, according to Article 24 2 of the Criminal Code, ordered his deportation from Latvia after having served the sentence. The applicant appealed this judgment. 46. On 21 November 2002 the Criminal Chamber of the Supreme Court acquitted the applicant of the charge of unlawful ammunition storage and quashed the first instance court's sentence in regard to his deportation, upholding the remainder of the first instance court's judgment.", "The prosecutor N. represented the prosecuting authorities together with his colleague. The applicant did not file an appeal on points of law and thus the judgment became final. 4. Proceedings concerning the applicant's expulsion from Latvia 47. On 29 July 2002 the Citizenship and Migration Authority (hereinafter referred to as the “CMA”) took a decision on forced expulsion of the applicant, stating that the applicant, a Russian national, arrived in Latvia on 20 August 1997 on the basis of a visa.", "It observed that the Riga Regional Court convicted the applicant on 11 June 2002 and ordered his expulsion from Latvia, according to Article 242 of the Criminal Code. The CMA noted that the applicant would be released on 19 August 2002 and decided, in accordance with Article 242 of the Criminal Code, to expel him from the territory of Latvia to the Russian Federation. There was no date indicated in the decision as to when the expulsion should take place. When the applicant took cognisance of this decision, he wrote next to his signature that he objected to his expulsion as he had a family in Latvia. 48.", "On 19 August 2002 the applicant was released from prison, the time he had spent in detention on remand counting as part of the sentence. On the same date he was transferred to the Detention Center for Illegal Immigrants and thereafter detained at the Center pending his deportation to the Russian Federation. 49. On 29 August 2002 the applicant appealed against the decision of the CMA to the Central District Court of the City of Riga. The court received the appeal on the same day.", "50. On the same day the applicant was deported to the Russian Federation. 51. On 3 September a judge of the Central District Court of the City of Riga examined the applicant's appeal of 29 August 2002 and, as it was written in Russian, allowed the applicant until 30 September 2002 to rectify this procedural deficiency. 52.", "On 3 October 2002 the proceedings were terminated as neither the applicant nor his lawyer pursued the complaint. 53. On 4 September 2003 the applicant and his partner married in Krasnoyarsk in the Russian Federation. II. RELEVANT DOMESTIC LAW AND PRACTICE 1.", "The Criminal Procedure Code (Latvijas Kriminālprocesa Kodekss), applicable at the material time (in force until 1 October 2005) 54. The relevant part of Article 77 provides that the maximum term of detention on remand during the investigation of a criminal case may not exceed two months. If it is not possible to complete investigation of the case within that period and there are no grounds for altering a preventive measure, a judge may extend the period of detention for up to one year and six months. If necessary, the detained person and his defence counsel may be heard. Extension of detention beyond one year and six months is not allowed and the detained person is entitled to immediate release.", "55. Paragraph 7 of Article 77 (adopted on 17 October 2002 and with entry into force on 1 November 2002) provides that in exceptional cases the Senate of the Supreme Court may extend detention beyond one year and six months. 56. Paragraph 5 of Article 77 provides that the time taken for all defendants to take cognisance of the documents in the investigation file shall not be taken into account in calculating the length of detention pending trial. 57.", "By virtue of Article 83, a preventive measure shall be terminated if it has been applied unlawfully or it ceases to be necessary, or may be changed to a more severe or lenient one if the circumstances of the case so require. The termination or alteration of detention on remand applied by a judge or a court during the preliminary investigation shall be effected by a reasoned decision of a prosecutor, or it may be terminated by a court decision in the cases provided for in Article 2221. 58. According to Article 222, a complaint regarding acts of a prosecutor shall be subject to appeal to a higher prosecutor. The complaint shall be examined within three days upon its receipt and it can be dismissed only by a reasoned decision.", "59. Pursuant to Article 2221, all decisions given by a judge at the pre-trial stage regarding the detention on remand and its extension can be appealed to a higher court by a suspected or accused person or his/her counsel or representative. The appellant and the prosecutor in charge of investigation shall be present at the adjudication of the appeal. The appeal shall be examined and a decision taken within seven days as of its receipt. The decision is final and not subject to further appeal.", "60. After a judge has committed an accused person to trial, a court shall decide in a preliminary hearing on the question of preventive measures. A decision concerning committal of an accused person to trial shall be taken within 14 days upon receipt of a case file in the court (Article 223). 61. In deciding whether to commit an accused person for trial, a judge or a court shall determine whether the preventive measure applied was appropriate (Article 225).", "62. When committing an accused person to trial, a judge holds a preliminary hearing to rule on the request to alter a preventive measure if the judge considers that the request is well-grounded. The decision refusing the request to alter a preventative measure cannot be appealed. (Article 226). 63.", "Articles 237 and 465 provide that the decisions of a court, ordering detention on remand or altering it, taken during the preliminary hearing or during the adjudication of the matter, may be appealed to a higher court. 64. Article 241 sets time-limits for examination of a case and provides that the examination of a case before a court must start not later than within twenty days or, under exceptional circumstances, no later than within one month, after the case is received by the court. 65. A judgment of the first instance court enters into force and becomes final after expiry of the time-limit provided for appeal of this judgment, if the judgment has not been appealed.", "A judgment of an appellate court enters into force and becomes final after expiry of the time-limit provided for cassation appeal of this judgment, if the judgment has not been appealed. If a cassation appeal has been submitted, the judgment becomes final after its examination by the cassation court, if the court does not quash the judgment (Article 357). 2. Criminal Code (Latvijas Kriminālkodekss), applicable at the material time (in force until 1 April 1999) 66. The relevant part of Article 242 provided that a court can decide to order expulsion from the Republic of Latvia of a person, who is not a national of Latvia.", "The expulsion is a supplementary punishment and is effected after serving the sentence. 3. Regulations governing the situation of persons detained in remand prisons 67. Until 14 May 2001 the situation of persons detained in remand prisons was governed by the “Instruction on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons” (Instrukcija par aizdomās turamo, apsūdzēto, apcietināto un notiesāto turēšanas kārtību izmeklēšanas cietumos), approved by the Minister of the Interior on 30 April 1994 (hereinafter referred to as “the Instruction”). 68.", "Rule 26 of the Instruction provided that the sentenced persons and the arrested persons placed in the investigation prisons were allowed to send letters and to receive short-term visits upon approval by the authority conducting the criminal proceedings (i.e. either by investigating authorities or the court, depending on the stage reached in the proceedings). 69. Rule 32 of the Instruction stipulated that the arrested persons placed in the investigation prisons might be allowed to receive one short-term visit (up to one hour) per month from family members and other persons only on the basis of a written permission from the person or the body dealing with the particular criminal case. 70.", "Rule 35 of the Instruction provided that visits in the investigation prisons took place in the presence of a prison authority. 71. In 2001 the penitentiary institutions were transferred from the supervision of the Ministry of the Interior to the Ministry of Justice. On 9 May 2001 the Minister of Justice approved new “Transitional Provisions on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons” (Pārejas noteikumi par aizdomās turamo, apsūdzēto, apcietināto un notiesāto turēšanas kārtību izmeklēšanas cietumos) which entered into force on 14 May 2001 (hereinafter referred to as “the Transitional Provisions”). 72.", "Rule 25 of the Transitional Provisions provides that the sentenced persons and the arrested persons may be allowed to receive one short-term visit per month on the basis of a written permission from the authority dealing with the particular criminal case. 4. Civil Procedure Code (Civilprocesa kodekss), applicable at the material time (in force until 1 February 2004) 73. Article 228 § 3 provides that decisions of the state authorities, which affect the rights and obligations of individuals, are subject to judicial review by the court which is fully authorised to quash the impugned decisions and terminate the administrative proceedings against the concerned individuals. 74.", "According to Article 2395, the absence of an individual, who has submitted a complaint, at court proceedings is not an obstacle for the court to hear the merits of the case; however, the court may declare the individual's presence mandatory. 75. The court, having found the appealed act or decision unlawful and infringing the rights of an individual, declares the complaint lawful and obliges the responsible authority to remedy the violation complained about (Article 2397). 5. Law on Entry and Residence in the Republic of Latvia of Foreign Citizens and Stateless Persons (Likums par ārvalstnieku un bezvalstnieku ieceļošanu un uzturēšanos Latvijas Republikā), applicable at the material time (in force until 1 May 2003) 76.", "The Head of the department or the Head of a territorial unit shall issue an expulsion order, demanding the departure of a person from the territory of the State if, inter alia, an alien resides in the State without a valid visa or residence permit or if the alien has otherwise violated the visa regime (Article 38). 77. A person is obliged to leave the territory of the state within seven days from the moment he/she has been notified of an expulsion order unless the order has been appealed. The person who has been notified of an expulsion order may appeal it within seven days to the Head of the department. The person may reside in the territory of the state during the examination of the appeal.", "The decision of the Head of the department may be appealed within seven days from its receipt, by submitting an appeal to a relevant court (Article 40). 78. The Head of the department of a territorial unit can decide on the forced expulsion of a person if this person within seven days of the notification about the expulsion order has not appealed it, as provided for by Article 40, or his/her appeal has been dismissed (Article 481). 6. Other relevant regulations 79.", "Article 1 § 1 of the Law on Public Prosecutor's Office (Prokuratūras likums) states that the Prosecutor's Office is an institution of judicial power, which independently carries out supervision of the observance of law within the scope of its competence. 80. The relevant part of Article 92 of the Constitution (Satversme) states that every person has the right to defend his or her rights and lawful interests in a fair trial. In case of unlawful interference with his or her rights, everyone is entitled to adequate compensation. 7.", "The judgments of the Constitutional Court of the Republic of Latvia (Latvijas Republikas Satversmes tiesa) 81. The judgment of 5 December 2001 in case no. 2001-07-0103, in the relevant part, reads as follows: “...The Constitutional Court established: ...the court verdict of not guilty is determined as the legal basis for receiving the compensation. The criterion of the addressees of the Law on Compensation is non-existence of person's guilt. Thus, it refers only to those persons, whose liberty has been limited because of an arrest, but who are not guilty of a criminal case and the fact has been acknowledged by a court judgment... .” 82.", "The judgment of 19 December 2001 in case no. 2001-05-03, in the relevant part, reads as follows: “...The Constitutional Court established: Thus the Transitional Prohibitions ... are internal normative acts... .” THE LAW I. ALLEGED VIOLATION OF THE RIGHT TO PRE-RELEASE 83. The applicant complained, without invoking any Article of the Convention, that he could not obtain his early release, owing to the fact that he spent the whole period of detention in the remand prison and therefore a pre-release scheme was not applicable to him. 84.", "This part of the application is inadmissible as being incompatible ratione materiae with the provisions of the Convention as “the Convention does not create any particular right to a pre-release scheme” (see, e.g., Bullivant v. the United Kingdom (dec.), no. 45738/99, 28 March 2000). II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 85. The Court considers that it is appropriate to examine the applicant's complaints under Article 5 about the excessive length of his detention on remand and its unlawfulness between 20 April 1999 until 23 August 2000 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 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 1. The parties' submissions a) The Government 86. The Government submit that the applicant failed to exhaust domestic remedies. First of all, the applicant did not appeal, as provided for by Article 2221 of the Criminal Procedure Code, the decisions of the Ziemeļu District Court to the Riga Regional Court. Thus he did not appeal the decision of 20 February 1998 on the application of detention on remand and subsequent decisions of 9 April, 11 June, 10 August, 13 October 1998 and 11 and 29 January, 20 February and 19 March 1999 extending his detention on remand.", "87. Secondly, the Government state that the applicant did not raise, as provided for by Article 226 of the Criminal Procedure Code, the issue of his detention during the preliminary hearing on 7 September 2000. 88. Thirdly, the Government allege that the applicant did not appeal the decision of 7 September 2000 to a higher court, as provided for by Article 237 of the Criminal Procedure Code. 89.", "Finally, the Government refer to the judgment of 5 December 2001 of the Constitutional Court in the case no. 2001-07-0103 where the court has found that Article 92 of the Constitution provides for a right to claim compensation in cases of unlawful and lengthy detention. 90. The Government is of the opinion that these remedies were effective, accessible and offered reasonable prospects of success. b) The applicant 91.", "The applicant maintains, without any substantiation, that he appealed the decisions of the Ziemeļu District Court of the City of Riga to the Riga Regional Court. However, he did not provide any information as to which decisions and when did he appeal. Nor did he submit any copies of his appeals or the decisions of the Riga Regional Court in this respect. The applicant did not provide any comments as regards the decision of 7 September 2000 and the judgment of the Constitutional Court of 5 December 2001. 2.", "The Court's assessment a) The general principles established by the Court's case law 92. The Court recalls that under the terms of Article 35 § 1 of the Convention it can only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. 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. Consequently, States are dispensed from answering for their acts before an international body before they have had the opportunity to put matters right through their own legal systems (see Remli v. France, judgment of 23 April 1996, Reports 1996-II, p. 571, § 33, and Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V).", "93. However, only available and adequate remedies must be tried under Article 35 § 1 of the Convention. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they lack the requisite accessibility and effectiveness (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1210, § 66, and Selmouni, cited above, § 75). There is no obligation to have recourse to remedies which are inadequate or ineffective (see Akdivar and Others, cited above, p. 1210, § 67, and Andronicou and Constantinou v. Cyprus, judgment of 9 October 1997, Reports 1997-VI, pp. 2094-95, § 159).", "94. The Court reiterates that in the area of exhaustion of domestic remedies the burden of proof is on the Government to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see Akdivar and Others, cited above, p. 1211, § 68, and Selmouni, cited above, § 76). Furthermore, the Court notes that the application of the rule of exhaustion 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 Parties have agreed to establish. Accordingly, the Court has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism (see Cardot v. France, judgment of 19 March 1991, Series A no. 200, p. 18, § 34).", "The rule is neither absolute nor capable of being applied automatically. In reviewing whether it has been observed it is essential to have regard to the particular circumstances of each case. This means, amongst other things, that the Court must take realistic account of the general legal and political context in which the remedies operate, as well as the personal circumstances of the applicant (see Menteş and Others v. Turkey, judgment of 28 November 1997, Reports 1997-VIII, p. 2707, § 58). b) Application of these principles in the present case i. To the decisions extending the applicant's detention before his commitment to trial 95.", "The Court notes that between 20 February 1998 and 20 April 1999 the Ziemeļu District Court decided to detain the applicant on remand and extended his detention several times upon the request of a prosecutor and without the presence of the applicant. The applicant did not appeal any of these decisions to the Riga Regional Court, as provided for by Article 2221 of the Criminal Procedure Code. However, the Court cannot agree with the Government that this remedy was effective and offered reasonable prospects of success in practice for the following reasons. 96. The Court has examined several cases against Latvia in which the applicants used the remedy envisaged in Article 2221 of the Criminal Procedure Code (see, mutatis mutandis, Lavents v. Latvia, no.", "58442/00, judgment of 28 November 2002, Freimanis and Līdums v. Latvia, no. 73443/01 and 74860/01, judgment of 9 February 2006, Svipsta v. Latvia, no. 66820/01, judgment of 9 March 2006, Moisejevs v. Latvia, no. 64846/01, judgment of 15 June 2006, and Kornakovs v. Latvia, no. 61005/00, judgment of 15 June 2006).", "In all these cases the Court found a violation of Article 5 § 3 of the Convention based on the fact that, inter alia, during the entire periods of detention the appeal court maintained the same formal reasons for detention without explaining their specific application in each case. In Svipsta case the Court observed that “the same arguments in substance were reiterated by the two jurisdictions during the entire period of detention on remand...” (see Svipsta, cited above, § 108). The existing case-law against Latvia concerns the same period of time complained about in the present case. 97. The Court notes that there is a distinction between the requirement of exhaustion of domestic remedies under Article 35 § 1 and the requirements of Article 5 § 3 of the Convention aimed at providing safeguards against arbitrary deprivation of liberty.", "However, where a consistent case-law shows that such safeguards fail or are deficient, it would be contrary to the very principle of the Convention and would lead to excessive formalism under Article 35 § 1 to demand of the applicant that he exhaust the inadequate safeguards. 98. Furthermore, the Court notes that the Government have not provided any examples of domestic practice showing the effectiveness in practice of the given remedy. The Government's submissions remain very general stating the relevant provision in the law. The Court reiterates that it is not for the Convention bodies to cure of their own motion any shortcomings or lack of precision in the respondent Government's arguments (see Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no.", "301‑B, p. 77, § 35). In the light of the above, the Court considers that the Government's submissions as concerns non-exhaustion of domestic remedies for reasons of lack of appeal should be dismissed. ii. To the decisions extending the applicant's detention after his commitment to trial 99. The Court notes that, according to the case materials, on 7 September 2000 a single judge of the Riga Regional Court, without participation of the applicant or his counsel, committed the applicant to trial and decided not to alter the preventive measure.", "Thus, the applicant could not raise the issue of his detention before the Riga Regional court since he was not present at the hearing. 100. The Court further observes that the decision of 7 September 2000 was not subject to appeal, as provided for in Article 226 of the Criminal Procedure Code. Nor could the applicant appeal it in accordance with Article 237 of the Criminal Procedure Code since this Article refers to decisions taken by a court during preliminary hearing. It does not refer to decisions taken by a single judge without summoning an accused person.", "101. The same holds true as regards the reply of a judge of the Riga Regional Court of 11 April 2001 as this was not a decision but a simple letter, which could not be appealed according to the provisions of the Criminal Procedure Code. Consequently, this part of the application cannot be rejected for non-exhaustion of domestic remedies. iii. To the judgment of the Constitutional Court 102.", "As regards the judgment of 5 December 2001 of the Constitutional Court in case no. 2001-07-0103, the Court would like to point out again that where lawfulness of detention is concerned, an action for damages against the State is not a remedy which has to be exhausted because the right to have the lawfulness of detention examined by a court and the right to obtain compensation for any deprivation of liberty incompatible with Article 5 are two separate issues (see Kornakovs, cited above, § 84). 103. In addition, the Court observes that, according to the wording of the above judgment, the Constitutional Court does not refer to persons found guilty of a crime and sentenced (see paragraph 81 above). Thus, this cannot be regarded as an effective remedy in the present case.", "c) Conclusion 104. Taking into account the afore-mentioned, this part of the applicant's complaint concerning his detention on remand cannot be rejected for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention. The Court further notes that it is not inadmissible on any other grounds and must therefore be declared admissible. B. Merits 1.", "The parties' submissions a) The Government 105. The Government submit that there has been no violation of the applicant's rights guaranteed by Article 5 § 3 of the Convention. They submit that the crime, of which the applicant was accused, involved a complex criminal case, which could not be split in order to adjudicate the applicant's case separately. 106. The Government point out that, contrary to the Lavents case (see Lavents, cited above), the weight of the reasons adduced by the prosecutor in charge of investigation and the courts did not decrease in the course of time of the applicant's detention on remand.", "In particular, since the witness R., who was testifying in the court proceedings against the applicant, complained that he had been threatened in order to change his testimony. 107. The Government draw the Court's attention to the fact that the detention on remand was the only possible preventive measure to ensure that the applicant appear before the court as prior to his apprehension the applicant was residing in Latvia illegally without a registered place of domicile. Moreover, the applicant and his partner failed to apply for the applicant's release on bail, although such a possibility was proposed by the prosecutor in charge of investigation. 108.", "The Government note that the pre-trial investigation was carried out within two years and six months and that the responsible judge adopted the decision to commit the applicant to trial on 7 September 2000, i.e. within the time period provided for by Article 223 of the Criminal Procedure Code. 109. The Government submit that the first instance court commenced the adjudication of the case within two years after it received the case. In this respect the Government explain that the hearing in the applicant's case was scheduled in the order of the registration of the cases.", "Further, the hearings on 16 and 20 May 2002 were adjourned as several witnesses did not appear before the court, which, in the Government's point of view, cannot be attributed to the Riga Regional Court. 110. The Government submit that the applicant's complaint under Article 5 § 3 of the Convention is manifestly ill-founded or alternatively that there has been no violation of this Article. b) The applicant 111. The applicant states that the prosecutor in charge of the investigation refused to split the case in order to adjudicate his case separately and that the witness statements of R. were not connected with his case.", "112. The applicant argues that the prosecutor in charge of investigation refused to alter the preventive measure imposed on him although he offered bail. He does not provide any additional information in order to support his statements. 2. The Court's assessment a) The general principles established by the Court's case-law 113.", "The Court's case-law stresses the fundamental importance of the guarantees contained in Article 5 of the Convention for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities. It has reiterated in that connection that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law, but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrary detention. 114. 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 (e.g. Ciulla v. Italy, judgment of 22 February 1989, Series A no.", "148, § 41) and which do not allow for the broad range of justifications under other provisions (Articles 8-11 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 (see Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, § 39); and the importance of the promptness or speediness of the requisite judicial controls (under Article 5 §§ 3 and 4) (see McKay v. the United Kingdom., judgment of 3 October 2006, § 30). i. Judicial control of detention 115. One of the essential features embodied in Article 5 § 3 is judicial control, which is intended to minimise the risk of arbitrariness and to secure the rule of law, “one of the fundamental principles of a democratic society..., which is expressly referred to in the Preamble of the Convention” (see Sakık and Others v. Turkey, judgment of 26 November 1997, Reports 1997‑VII, p. 2623, § 44).", "It is for the authorities to develop forms of judicial control which are adapted to the circumstances but they have to be compatible with the Convention (see, mutatis mutandis, Demir and Others v. Turkey, judgment of 23 September 1998, Reports 1998‑VI, p. 2653, § 41). 116. Judicial control has to be performed by, according to the wording of Article 5 § 3 of the Convention, “a judge” or “other officer authorised by law to exercise judicial power”. The Contracting States are left a choice between two categories of authorities. It is implicit in such a choice that these categories are not identical.", "However, the Convention mentions them in the same phrase and presupposes that these authorities fulfil similar functions (see Schiesser v. Switzerland, judgment of 4 December 1979, Series A no. 34, § 27). The “officer” referred to in Article 5 § 3 must offer guarantees befitting the “judicial” power and must have some of the “judge's” attributes, that is to say he must satisfy certain conditions each of which constitutes a guarantee for the person arrested. One of the most important of such conditions is independence of the executive and of the parties (see Schiesser, cited above, § 31). The requisite guarantees of independence from the executive and the parties and the “officer” must have the power to order release, after hearing the individual and reviewing the lawfulness of, and justification for the arrest and detention (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports 1998‑VIII, § 146).", "117. An important aspect of judicial supervision is the periodical review where the judge decides that continued detention is justified. This necessarily follows the point that circumstances can change and, while grounds for detention may exist in the early stages of an investigation, these may no longer be compelling at a later stage. It is incumbent on the detaining authorities, therefore, to submit the case for detention to judicial supervision at regular short intervals (see, mutatis mutandis, Assenov, cited above, § 162). The continuous supervision should be as rigorous as the initial examination.", "ii. Length of detention 118. The Court first of all reiterates that the presumption is in favour of release (see McKay, cited above, § 41). Continued detention may be justified in a given case only if there are clear indications of a genuine public interest which, notwithstanding the presumption of innocence, outweighs the right to liberty (see Lavents, cited above, § 70). 119.", "The Court recalls that it falls in the first place to the national judicial authorities to ensure that the pre-trial detention of an accused person does not exceed a reasonable time (see Letellier v. France, judgment of 26 June 1991, Series A no. 207, § 35). To this end they must examine all the facts arguing 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 set them out in their decisions on the applications for release (see Letellier, cited above, § 35). It is essentially on the basis of the reasons given in these decisions, and of the facts established 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 Letellier, cited above, § 35, and Lavents, cited above, § 70). 120.", "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. The Court must then establish whether the other grounds given by the judicial authorities were “relevant” and “sufficient” to continue to justify the deprivation of liberty (see Ječius v. Lithuania, no. 34578/97, § 93, and Lavents, cited above, § 71).One of such grounds is the danger of absconding, which cannot be gauged solely on the basis of the severity of the sentence risked and must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify detention pending trial (see Letellier, cited above, § 43). b) Application of these principles in the present case 121. The Court notes that period to be taken into consideration for the examination of this complaint began on 19 February 1998, when the applicant was arrested, and lasted until 11 June 2002, when the Riga Regional Court delivered its judgment, that is four years, three months and 20 days.", "i. To the decisions extending the applicant's detention between 20 February 1998 and 20 April 1999 122. The Court notes that a preventive measure was imposed on the applicant on 20 February 1998 by a judge of the Ziemeļu District Court (see paragraph 10 above). Thereafter, the applicant's detention was periodically extended by a judge of the Ziemeļu District Court until 20 April 1999. The Court recalls that in principle it is the judicial orders that it is called to assess in the light of Article 5 § 3 (see Svipsta, cited above, § 110).", "It observes that the reasons given in all the orders extending the applicant's pre-trial detention were brief and abstract and lacking proper reasoning (see paragraphs 12 and 15 above). The orders had been drafted using a standard form. They repeated from one order to the next the same grounds for detention in the same words. The reasons which might have justified the applicant's initial detention became less relevant with time. The Court could accept that, as submitted by the Government, the fact that the applicant resided in Latvia illegally could have been one of the specific reasons for his continued detention.", "However, it was not mentioned in any court order made with respect to the applicant. The reasons given in the impugned orders remained identical throughout the time and were clearly insufficient to satisfy the requirements of Article 5 § 3 (see paragraphs 119 and 120 above). ii. To the applicant's detention between 21 April 1999 and 23 August 2000 123. The Court further observes that between 21 April 1999, when the order authorising his detention had expired, and 23 August 2000, when the investigating prosecutor decided to refuse to release the applicant, he was kept in prison apparently on the basis of the fifth paragraph of Article 77 of the Criminal Procedure Code.", "The Court has found before (see Svipsta, cited above, §§ 86 and 87) that the wording of this provision was so vague that is raised doubts as to its precise implications and was open to more than one interpretation. It did not clearly state that there was a requirement to keep the defendant in detention, still less that it was possible to do so without a warrant. In this respect the Court considers that in reality the automatic extension of the applicant's pre-trial detention during this period of time was the result of a generalised practice on the part of the Latvian authorities which had no precise basis in legislation and had clearly been designed to compensate for the deficiencies in the Criminal Procedure Code (see Svipsta, cited above, § 87). iii. To the applicant's detention between 23 August and 7 September 2000 124.", "The Court notes that the decision refusing the release of the applicant was taken by the investigating prosecutor on 23 August 2000. It is true that in accordance with Article 1 § 1 of the Law on Public Prosecutor's Office, a prosecutor can be regarded as an “officer authorised by law to exercise judicial power”. However, in the instant case, the prosecutor in charge of investigation exercised concurrent investigating and prosecuting functions as he drew up the indictment and represented the prosecuting authorities before the first and second instance trial court (paragraphs 18 and 45 and 46, above). Thus his status could not offer guarantees against arbitrary or unjustified continuation of detention as he was not endowed with the attributes of “independence” and “impartiality” required by Article 5 § 3 (see Jurjevs v. Latvia, no. 70923/01, judgment of 15 June 2006, § 60, Schiesser, cited above, §§ 29 and 30, and Salov v. Ukraine, no.", "65518/01, judgment of 6 September 2005 § 58). iv. To the applicant's detention between 7 September 2000 and 11 June 2002 125. The Court observes that the judge of the Riga Regional court neither in the decision of 7 September 2000 nor in the reply of 11 April 2001 gave any reasons justifying the applicant's continued detention (see paragraphs 30 and 42 above). The Court considers that the suspicion that the applicant had committed a crime, which was part of a complex criminal case, and the fact that the applicant was residing in Latvia illegally might have justified the applicant's continued detention (see paragraph 122 above).", "However, the judge of the Riga Regional court said nothing about these reasons. Furthermore neither the applicant nor his defence counsel ever had a chance to comment in this respect. 126. Moreover, it took two years for the first instance court to commence adjudication of the case. This was contrary to the time-limits set by Article 241 of the Criminal Procedure Code and thus infringed the principle of legal certainty protected by the Convention.", "The Court draws the Government's attention to the fact that the States are obliged to organise their judicial system in such a way as to ensure compliance with the obligation set forth in Article 5 § 3 of the Convention to ensure a person who has been arrested or detained the right “to trial within a reasonable time”. The remainder of the Government's submissions does not provide a basis to justify the applicant's continuous detention either. c) Conclusion 127. In the light of the above, the Court concludes that there has been a violation of Article 5 § 3 of the Convention. It has already found violations of this Article in several cases brought against Latvia (paragraph 96, above) on the grounds that insufficient motivation and inadequate proceedings in deciding on continued detention.", "The Court considers that these cases as well as the fact that there are dozens of similar applications pending before the Court seems to disclose a systemic problem in relation to the apparently indiscriminate application of detention as a preventive measure in Latvia. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 128. The applicant complained that the proceedings were excessively long in breach of Article 6 § 1 of the Convention which reads, insofar as relevant, 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 ... [a] tribunal ... ” A.Admissibility 1.", "The parties' submissions a) The Government 129. The Government did not submit any observations as regards the admissibility of the applicant's complaint under Article 6 § 1 of the Convention. b) The applicant 130. The applicant did not provide any comments as concerns the admissibility of his complaint under Article 6 § 1 of the Convention. 2.", "The Court's assessment 131. The Court considers that the applicant's complaint about the length of proceedings 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 Government 132. The Government reject the allegation. With regard to the time period between 19 February 1998 and 11 June 2002, the Government emphasise that the applicant was a suspect in a complex criminal case. Investigation and adjudication of the case was time consuming because there were seven co-accused persons, who gave contradictory and misleading testimonies. The case consisted of four different crimes and could not be split into several criminal cases in order to adjudicate the applicant's case separately.", "133. The Government do not deny that the first instance court needed two years to commence the adjudication of the case, however, it considers that the delay could not be attributed to the national authorities solely. The Government ask the Court to take into consideration that a judge is allowed to hear only one criminal case at the time. Consequently, the hearings in the applicant's case did not commence immediately upon his committal to trial but were scheduled in the order of its registration. Moreover, on 16 and on 20 May 2002 the hearings were adjourned as several witnesses did not appear before the court.", "134. As to the appellate proceedings, the Government believe that the time period between 11 June 2002 and 21 November 2002, when the appeal court delivered its judgment, cannot be considered as excessive. b) The applicant 135. The applicant maintains that the Public Prosecutor refused his petition to separate his case from the joined four cases. 2.", "The Court's assessment a) The general principles established by the Court's case-law i. Period to be taken into consideration 136. The Court recalls that the time to be taken into consideration starts running when a person is charged with a criminal offence; this is not, however, necessarily the moment when formal charges are first made against a person suspected of having committed an offence (see Lavents, cited above, § 85). A “charge” for the purposes of Article 6 § 1 can be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence” (see Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, § 73).", "ii. Reasonableness of the length of the proceedings 137. According to the Court's case-law, the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case and the conduct of the applicant and of the authorities dealing with the case (see Lavents, cited above, § 87, and Svipsta, cited above, § 151). 138. The Court reiterates that failure to abide by the time-limit prescribed by domestic law does not in itself contravene Article 6 § 1 of the Convention (see Wiesinger v. Austria, judgment of 30 October 1991, Series A no.", "213, p. 22, § 60), however Article 6 § 1 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements, including the obligation to hear cases within a reasonable time (Kyrtatos v. Greece, no. 41666/98, § 42, ECHR 2003‑VI). b) Application of these principles in the present case i. To the period to be taken into consideration 139. The Court considers that the period under consideration in the present case began on 19 February 1998, when the applicant was arrested on suspicion of robbery.", "As regards the end of the period, the final judgment was delivered by the Criminal Chamber of the Supreme Court on 21 November 2002. The period to be taken into consideration thus lasted four years, nine months and 3 days. ii. To the reasonableness of the length of the proceedings 140. Turning to the facts of the present case, the Court considers that the proceedings may be deemed to have been complex, owing inter alia to their nature, i.e.", "the case involved four different crimes and seven co-accused persons. The Court notes that the applicant, however, was involved only in one of the crimes. 141. The Court observes that there was a long period of inactivity by the Riga Regional Court: the court received the case on 4 September 2000 but a hearing commenced only on 13 May 2002, i.e. within one year and eight months.", "It was also contrary to the requirements of Article 241 of the Criminal Procedure Code. Although this does not automatically lead to an infringement of Article 6 § 1, the fact remains that it is not in accordance with the principle of legal certainty. Furthermore, taking into consideration that the applicant remained in pre-trial detention between 4 September 2000 and 13 May 2002, it was important that the authorities displayed special diligence in ensuring that he was brought to trial within a reasonable time (see, mutatis mutandis, Assenov, cited above, § 154 and 157, and Vasilev v. Bulgaria, no. 59913/00, judgment of 2 May 2006, §§ 73-75). 142.", "Having regard to its previous decision in similar cases against Latvia (see Svipsta, cited above, §§ 150 and 162 and Lavents, cited above, §103) and in the absence of any indication of the applicant's responsibility for the delays, the Court finds that the length of the proceedings was excessive and did not satisfy the “reasonable time” requirement in the present case. c) Conclusion 143. Accordingly, there has been a violation of Article 6 § 1 of the Convention in the present case. IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 144.", "The applicant further complained that during the pre-trial investigation he was not permitted to exchange correspondence with his relatives and to receive long-term visits from his partner through the whole period of his detention and that he was unlawfully deported from Latvia, in breach 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. Admissibility 1. The parties submissions a) The Government i.", "Ban on correspondence 145. The Government are of the opinion that the applicant's complaint about the restriction on corresponding with his relatives should be declared inadmissible as he submitted it on 3 September 2001 and thus did not observe the six months' time limit from the date on which the final decision was taken: on 16 August 2000 the applicant was allowed to correspond with his mother by permission of the responsible prosecutor and on 13 September 2000 the judge of the Riga Regional Court revoked the ban on correspondence with his partner. In addition, the Government point out that the applicant did not appeal the decision of 16 August 2000, as provided for by Article 222 of the Criminal Procedure Code, and thus failed to exhaust domestic remedy available to him. ii. The applicant's right to long-term visits 146.", "The Government state that the applicant did not exhaust domestic remedies since he did not submit a complaint to the Constitutional Court as regards the non-conformity of the “Transitional Provisions on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in the Remand Prisons” with the fundamental rights guaranteed by the Constitution. 147. With regard to the effectiveness of the proceedings before the Constitutional Court, the Government refer to the judgment of the court no. 2001-05-03 of 19 December 2001 and state that there was no obstacle preventing the applicant's access to the court. iii.", "The applicant's expulsion from Latvia 148. The Government first of all suggest distinguishing two separate procedures – the expulsion as a result of conviction and the expulsion as a result of the breach of the administrative provisions regarding the entrance and stay of foreigners in Latvia. The Government state that in the present case the applicant was expelled as a result of the breach of the afore-mentioned administrative provisions. 149. The Government submit that, according to Articles 228 § 3 and 2397 of the Civil Procedure Code, in force at the time, decisions of the state authorities, which affect the rights and obligations of individuals, are subjected to judicial review by a court which is fully authorised to quash the impugned decision and terminate the administrative proceedings against the individual concerned.", "150. The Government note that this remedy was both known and accessible to the applicant as on 29 August 2002 he appealed the decision of the CMA. 151. The Government further submit that the applicant's expulsion from Latvia did not limit his access to court as he could rectify the deficiency of his complaint and continue the proceedings before the Central District Court of the City of Riga through his lawyer. In case the applicant's presence was considered mandatory by the court, it would have summoned him, according to Article 2395 of the Civil Procedure Code.", "The court's summons would have been a valid basis for issuing a visa to the applicant. 152. In the Government's opinion, to claim an exhaustion of domestic remedy as required by Article 35 § 1 of the Convention, one would first have to follow all relevant procedural rules in order to bring a complaint before a national authority. This is obviously not the case in the present proceedings. Accordingly, the Government consider that the applicant has not exhausted all available and effective domestic remedies before lodging his application with the Court.", "b) The applicant 153. As to the ban on correspondence, the applicant maintains that he was not allowed to correspond with his relatives for two and a half years. The applicant did not submit any comments as regards the alleged infringement of his right to long-term visits and his expulsion from Latvia. 2. The Court's assessment a) Ban on correspondence 154.", "The Court recalls that, in accordance with Article 35 § 1 of the Convention, it may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within six months from the date of the “final” domestic decision or from the end of a continuing situation of which the applicant complains (see, mutatis mutandis, Jėčius, cited above, § 44). 155. Leaving aside the question of exhaustion of domestic remedies in the present case, the Court observes and therefore agrees with the Government's submissions that the last ban on correspondence was revoked on 13 September 2000, i.e. more than six months before the application was introduced (4 September 2001), with the result that this complaint was submitted out of time. 156.", "It follows that this part of the application must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. b) The applicant's right to long-term visits 157. The Court considers that it is not necessary to examine the issue whether the remedy suggested by the Government (paragraphs 146 and 147, above) would have been effective since the interference with the applicant's rights was not “in accordance with the law” for the reasons explained below (see paragraphs 165-167 and 170-174 below). Consequently, this part of the application cannot be rejected for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention. It is not inadmissible on any other grounds and must therefore be declared admissible.", "c) The applicant's expulsion from Latvia 158. First of all, the Court observes that, according to the wording of the decision of CMA of 29 July 2002 (see paragraph 47 above), the applicant was expelled as a result of his conviction. 159. Secondly, the Court notes that the applicant appealed against both – the judgment ordering his deportation and the decision of the CMA. Thus, this part of the applicant's complaint, contrary to the Government's allegations, cannot be rejected for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention.", "It is not inadmissible on any other grounds and must therefore be declared admissible. B. Merits 1. The parties' submissions a) The Government i. The applicant's right to long-term visits 160.", "The Government is of the opinion that the restrictions placed on the applicant as to his right to visits by his partner were provided by law and followed a legitimate aim, namely, to protect the public order and security and were appropriate as they applied only during the pre-trial investigation while certain pressing investigative measures took place. ii. The applicant's expulsion from Latvia 161. The Government is of the opinion that the order on the applicant's expulsion from Latvia has been issued “in accordance with law”. Moreover, the Government underline that whether the judgment of the Riga Regional Court had or had not come into force was of no legal relevance since the applicant was not expelled on the basis of the judgment.", "162. The Government submit that the applicant was expelled in the course of the administrative proceedings, which were triggered by his prolonged illegal stay in Latvia. 163. The Government reiterate that the applicant came to Latvia on the basis of a visa, which was valid until 17 November 1997. After the expiry of the visa, the applicant did not try to obtain a residence permit but stayed in Latvia illegally until he was apprehended on 19 February 1998.", "As a result, upon his release on 19 August 2002, the applicant resided in Latvia illegally and the CMA, according to the Government, issued the expulsion order, pursuant to Article 38 of the Law on Entry and Residence in the Republic of Latvia of Foreign Citizens and Stateless Persons. Thus, according to the Government, the criterion of 'prescribed by law' was satisfied. Further, the law was officially published, easily accessible and its provisions were formulated sufficiently clearly and precisely. b) The applicant 161. The applicant did not submit any comments in this respect.", "2. The Court's assessment a) General principles established by the Court's case-law 165. The Court recalls that the protection of Article 8 applies to more than just the traditional family (see Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, p. 21, § 31). Thus the notion of family under this provision may encompass other de facto \"family\" ties.", "A child born out of such a relationship is ipso jure part of that “family” unit from the moment and by the very fact of his birth (see Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, pp.18-19, § 44). The right to respect for family life is protected by Article 8 § 1 and can be justifiably restricted only if the conditions in the second paragraph of this provision are met. 166. The Court reiterates that detention, like any other measure depriving a person of his liberty, entails inherent limitations on his private and family life.", "However, it is an essential part of a detainee's right to respect for family life that the authorities enable him or, if need be, assist him in maintaining contact with his close family (see, mutatis mutandis, Messina v. Italy (no.2), no. 25498/94, § 61, 28 September 2000). Such restrictions as limitations put on the number of family visits constitute an interference with his rights under Article 8 and must be applied first of all “in accordance with the law” (see Klamecki v. Poland (no. 2), no. 31583/96, § 144, 3 April 2003).", "167. To determine whether an interference was in accordance with the law, the Court applies the three-fold test of foreseeability (see Huvig v. France, judgment of 24 April 1990, Series A no. 176‑B, § 26). First, it must be established that the interference with the right has some basis in national law. In this respect the Court recalls that in certain conditions instructions, which do not themselves have the force of law, may be taken into account in assessing whether the criterion of foreseeability was satisfied (see Silver and Others v. the United Kingdom, judgment of 25 March 1983, Series A no.", "61, p. 37, §§ 85-90). Secondly, the law must be accessible and, thirdly, the law must be formulated in such way that a person can foresee, to a degree that is reasonable in the circumstances, the consequences which a given action will entail (see Silver, cited above, §§ 87 and 88). 168. Finally, the Court reiterates that the Convention does not guarantee the right of an alien to reside in a particular country and, in pursuance of their task of maintaining public order, Contracting States have the power to expel an alien convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be “in accordance with law” (see Slivenko v. Latvia [GC], no.", "48321/99, § 113, ECHR 2003‑X, and Üner v. the Netherlands [GC], no. 46410/99, § 54, judgment of 18 October 2006). b) Application of these principles in the present case 169. As to the applicant's family situation, the Court notes that when he was arrested in 1998, he had been living in a partnership for more than five years (see paragraphs 6 and 8 above). In this respect, the prohibition of the long-term family visits throughout the applicant's detention in the remand prison (see paragraph 28 above) and his expulsion from Latvia amounted to an interference with his right to respect for his family life within the meaning of Article 8 of the Convention.", "The Court will assess whether these restrictions were applied “in accordance with the law”. i. To the applicant's right to long-term visits 170. Applying the first criterion of the foreseeability test to the present case, the Court notes that the restriction on long-term visits by his partner and their child had some basis in national law applicable at the time (paragraphs 67-72, above). The Court reiterates that it had already expressed doubts as to the compatibility of national regulation with the requirements of paragraph 2 of Article 8.", "(see Lavents, cited above, § 140). 171. As to the second criterion, the Court takes into account the judgment of 19 December 2001 of the Constitutional Court, where it was stated that the Transitional Provisions on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons had not been published in such a way as to make them publicly known. Thus the Transitional Provisions and apparently the Instruction on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons were internal normative acts, i.e. they were not accessible to the public.", "172. Consequently, the Court concludes that the second criterion of the test cannot be regarded as complied with. Moreover, the internal character of the Transitional Provisions and the Instruction imposing the restriction can be seen as an obstacle as regards the possibility for the applicant to challenge the lawfulness of the restriction in the Constitutional Court. 173. Turning to the third criterion of the test, it can be assumed that a person could not foresee the consequences since the Transitional Provisions were not accessible to the public.", "174. It follows that the ban on the long-term visits in the present case was in breach of Article 8 of the Convention. ii. To the applicant's expulsion from Latvia 175. According to the wording of the decision of the CMA of 29 July 2002, the applicant was expelled pursuant to Article 242 of the Criminal Code on the basis of the judgment ordering his deportation from Latvia.", "There was no reference to Article 38 of the Law on Entry and Residence in the Republic of Latvia in the decision, which should have been there if the applicant was to be expelled because of the administrative provisions regarding the entry and stay of foreigners in Latvia. The Court therefore concludes that the applicant was expelled on the basis of the judgment of 11 June 2002. 176. The applicant appealed this judgment. According to Article 357 of the Criminal Procedure Code, the judgment had not entered into force and become final as the appeal was still pending.", "Thus, there was no lawful basis for the applicant's deportation and it was contrary to the requirements of Article 481 of the Law on Entry and Residence in the Republic of Latvia of Foreign Citizens and Stateless Persons. It follows that the applicant's deportation was not “in accordance with law” and as such contrary to the requirements of Article 8. 177. Even considering that the applicant was expelled, as suggest the Government, in the course of the administrative proceedings, the Court notes that he appealed against the decision of the CMA to the Central District Court of the City of Riga. The court required rectification of the form of the appeal, setting a time limit for it.", "However, the applicant was expelled without being given a possibility to rectify the deficiency. The Court concludes, following its findings above (paragraph 176), that the applicant's expulsion while his appeal against the decision of the CMA was still pending was not “in accordance with law”. 178. Against this background, it follows that the applicant's deportation from Latvia was not ordered and effected “in accordance with law”. c) Conclusion 179.", "Accordingly, the Court considers that in the present case there has been a violation of Article 8 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 180. 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 181. The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage.", "182. The Government consider the claimed amount to be unjustified, excessive and exorbitant and maintain that there is no causal link between the alleged violations and the applicant's claim for non-pecuniary damage. In the Government's opinion, taking into consideration what the Court ruled in the Lavents case (see Lavents, cited above, §§ 150 and 151), should the Court find a violation of the Convention in the applicant's case, the finding in itself would constitute sufficient just satisfaction for the alleged non-pecuniary damage. If the Court decides otherwise in assessment of non-pecuniary damages, the Government submit that the socio-economic circumstances of the Republic of Latvia and the applicant's present residence – the Russian Federation – should be taken into account. 183.", "The Court considers that the finding of the violations of the Convention in itself does not constitute sufficient just satisfaction in the instant case and decides to award the applicant EUR 5,000 in respect of non-pecuniary damage (see, mutatis mutandis, Kornakovs, cited above, § 178). B. Costs and expenses 184. The applicant did not submit a claim for the costs and expenses incurred before the domestic courts and the Court. Accordingly, the Court will not award him any sum on that account.", "C. Default interest 185. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints concerning the length and the lawfulness of detention of the applicant on remand, his right to long-term visits during the pre-trial detention, the length of the court proceedings against the applicant and his expulsion from Latvia 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 that there has been a violation of Article 6 § 1 of the Convention; 4. Holds that there has been a violation of Article 8 of the Convention; 5. Holds (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; (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 18 January 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Vincent BergerBoštjan M. ZupančičRegistrarPresident" ]

[ "FOURTH SECTION CASE OF DIMITAR IVANOV v. BULGARIA (Application no. 19418/07) JUDGMENT STRASBOURG 14 February 2012 This judgment is final but it may be subject to editorial revision. In the case of Dimitar Ivanov v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a committee composed of: Päivi Hirvelä, President,Ledi Bianku,Zdravka Kalaydjieva, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 24 January 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 19418/07) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Dimitar Vasilev Ivanov (“the applicant”), on 5 April 2007.", "2. The applicant was represented by Mr V. Stoyanov, a lawyer practising in Pazardzhik. The Bulgarian Government (“the Government”) were represented by their Agents, Mrs M. Dimova and Mr V. Obretenov, of the Ministry of Justice. 3. The applicant alleged that the criminal charges against him had not been determined within a reasonable time, that he had not had effective remedies in that respect, and that the prohibition on his leaving Bulgaria had been unlawful and unjustified.", "4. On 20 September 2010 the application was communicated to the Government. 5. The application was later transferred to the Fourth Section of the Court, following the re-composition of Court’s sections on 1 February 2011. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1974 and lives in Dinkata. A. The criminal proceedings against the applicant 7. On 6 October 1994 the applicant confessed before the police to committing robbery together with two other individuals earlier that day.", "The stolen goods were confiscated by the police that same day. 8. On 4 October 1995 criminal proceedings against the applicant were formally instituted. 9. It appears that thereafter the case remained dormant until 5 October 2004 when witnesses were questioned.", "10. In the period between 2001 and 2004 the applicant left the country on a number of occasions and returned each time. 11. On 6 October 2004 the applicant, who was abroad at the time, was appointed an ex officio lawyer and was charged in absentia with robbery. 12.", "The first hearing of the case was held on 14 January 2005 in the applicant’s presence. 13. In a judgment of 12 April 2006 the Pazardzhik District Court found the applicant guilty and sentenced him to one year’s imprisonment, suspended for three years. 14. Following an appeal lodged by the applicant’s co-defendant, in a final judgment of 12 October 2006 the Pazardzhik Regional Court upheld the lower court’s judgment including the applicant’s conviction and sentence.", "B. Prohibition to leave the country 15. On 9 March 2007 the Pazardzhik Regional Police Directorate ordered the imposition of a ban on the applicant leaving the country on account of his conviction and pending his rehabilitation. It relied on section 76(2) of the 1998 Bulgarian Identity Papers Act. 16.", "The applicant contested the order arguing that he was unable to provide for his family in Bulgaria and that he had employment opportunities in Serbia. 17. On 25 May 2007 the applicant was refused passage by a border police official while attempting to leave Bulgaria in spite of the imposed prohibition. 18. By a final judgment of 10 October 2007 the Supreme Administrative Court upheld the prohibition.", "The court reasoned that it was within the administrative authority’s discretion to impose such a ban and that its assessment was not subject to judicial control. At the same time, it held that the law had been complied with in that such restriction could be imposed in cases where a conviction was in place and prior to the rehabilitation of the convicted person and that other factors, such as the impossibility to find employment in Bulgaria, were irrelevant. II. RELEVANT DOMESTIC LAW AND PRACTICE 19. The relevant domestic law and practice concerning travel bans on convicted individuals pending their rehabilitation is set out in the Court’s judgment in the case of Nalbantski v. Bulgaria, no.", "30943/04, §§ 25-29, 10 February 2011. 20. The relevant statutory provisions concerning the rehabilitation of persons convicted with a suspended sentence are summarised in the above‑cited Nalbantski judgment, § 30. THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 21.", "The applicant complained that the length of the criminal proceedings against him had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention and that he did not have effective remedies in that respect as provided by Article 13. The relevant part of Article 6 § 1 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 ...” Article 13 of the Convention 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.” 22. The Government left it to the Court to decide whether, in the particular case, there had been a breach of the Convention. 23. The period to be taken into consideration began on 6 October 1994 when the applicant confessed to committing the offence in a statement before the police (see Dimitrov and Hamanov v. Bulgaria, nos.", "48059/06 and 2708/09, § 74, 10 May 2011, with further reference). It ended on 12 October 2006, the day of delivery of the Regional Court’s final judgment. The proceedings thus lasted twelve years for a preliminary investigation and two levels of jurisdiction. A. Admissibility 24. The Court finds that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and are not inadmissible on any other grounds.", "They must therefore be declared admissible. B. Merits 1. Alleged violation of Article 6 § 1 25. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the 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). 26. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see, among many other authorities, Dimitrov and Hamanov, cited above; Makedonski v. Bulgaria, no. 36036/04, 20 January 2011). 27.", "Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. In particular, the case was not particularly complex and the authorities were responsible for a large part of the delay as a result of their being inactive for a period of nine years when the case remained dormant at the pre-trial stage (see paragraph 9 above). 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. 28. There has accordingly been a breach of Article 6 § 1.", "2. Alleged violation of Article 13 29. The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order (see Dimitrov and Hamanov, cited above, § 90). 30. It observes further that it recently adopted a pilot judgment in the case Dimitrov and Hamanov, cited above where it examined the availability of domestic remedies in respect of the length of criminal proceedings in Bulgaria (ibid., §§ 86-99) and concluded that Article 13 had been violated in that respect.", "The Court sees no reason to reach a different conclusion in the present case. 31. 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 domestic remedies in respect of the applicant’s complaint about the length of the criminal proceedings against him. II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No.", "4 TO THE CONVENTION 32. The applicant complained about the travel ban which had been imposed on him pending his rehabilitation. He relied on Article 2 of Protocol No. 4, which reads, in so far as relevant, as follows: “... 2. Everyone shall be free to leave any country, including his own.", "3. No restrictions shall be placed on the exercise of [that right] other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ...” A. Admissibility 33. 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 34. The applicant argued that the interference with his right under that Convention provision was disproportionate as the domestic provisions did not strike a fair balance between the general interest and that of the individual.", "In addition, the domestic courts, despite being under an obligation to do so, had excluded the police authority’s assessment of the necessity to impose a prohibition on leaving the country from the scope of their judicial control. 35. The Government disagreed. They submitted that the travel ban had been lawful and its duration had not been unlimited. Further, the applicant had not substantiated his submissions before the domestic authorities and was free to appeal again in case of changes of circumstances.", "2. The Court’s assessment 36. The Court notes at the outset that the present case is very similar to Nalbantski, cited above where the Court found a violation of Article 2 of Protocol No. 4. 37.", "In the instant case, like in Nalbantski, the authorities referred but to the applicant’s conviction and lack of rehabilitation in deciding to impose the travel ban while failing to take his individual situation into consideration or to assess the proportionality of the measure (see Nalbantski, cited above, § 66, with further reference). As in Nalbantski, that situation could not have been remedied in the judicial review proceedings (ibid.) seeing that the Supreme Administrative Court exercised only limited judicial review over the formal lawfulness of the ban while holding that the manner in which the police authorities exercised their discretion to assess the necessity of imposing the restriction was not subject to judicial review (see paragraph 18 above). Such rigid and automatic approach cannot be reconciled with the obligation imposed by Article 2 of Protocol No. 4 on the Bulgarian authorities to ensure that any interference with an individual’s right to leave his or her country is, from the outset and throughout its duration, justified and proportionate in the light of the circumstances (see Gochev v. Bulgaria, no.", "34383/03, § 50, 26 November 2009). 38. There has accordingly been a violation of Article 2 of Protocol No. 4 of the Convention. III.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 39. Lastly, the applicant complained that he had not had any effective domestic remedies in respect of his complaint under Article 2 of Protocol No. 4 and that the prohibition on his leaving the country interfered with his private life. He relied on Articles 8 and 13 of the Convention. 40.", "In view of its findings above under Article 2 of Protocol No. 4, the Court finds that the above complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and are not inadmissible on any other grounds. They must therefore be declared admissible. 41. However, having regard to the finding relating to Article 2 of Protocol No.", "4 (see paragraph 38 above), the Court considers that it is not necessary to examine whether the facts examined under that provisions also gave rise to a violation of Articles 8 and 13 (see, in respect of Article 8, Riener v. Bulgaria, no. 46343/99, § 134, 23 May 2006). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 42. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 43. The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage. 44. The Government considered that the claim was exorbitant. 45.", "The Court considers that the applicant must have sustained non‑pecuniary damage as a result of the above established violations. Ruling on an equitable basis and taking into account all the circumstances of the case, it awards the applicant EUR 3,600 in respect of non-pecuniary damage. B. Costs and expenses 46. The applicant also sought reimbursement of EUR 3,500 for the costs and expenses incurred before the Court.", "In support of his claim he presented a time-sheet and a contract for legal representation. He requested that the amount awarded under this head be transferred directly into the bank account of his lawyer. 47. The Government contested these claims as excessive. 48.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 covering costs under all heads. The amount is payable directly to the applicant’s legal representative. 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 6 § 1 of the Convention on account of the excessive length of the criminal proceedings against the applicant; 3. Holds that there has been a violation of Article 13, in conjunction with Article 6 § 1 of the Convention, on account of the lack of an effective remedy for the excessive length of the criminal proceedings against the applicant; 4. Holds that there has been a violation of Article 2 of Protocol No.", "4 of the Convention; 5. Holds that that there is no need to examine the complaints under Articles 8 and 13 of the Convention relating to the travel ban imposed on the applicant; 6. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement: (i) EUR 3,600 (three thousand six 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, payable into the bank account of the applicant’s legal representative; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 14 February 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Fatoş AracıPäivi Hirvelä Deputy Registrar President" ]

[ "THIRD SECTION CASE OF ALBU AND OTHERS v. ROMANIA (Applications nos. 34796/09 and 63 other cases) (see Appendix for other applications) JUDGMENT STRASBOURG 10 May 2012 FINAL 10/08/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Albu and Others v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Egbert Myjer,Ján Šikuta,Ineta Ziemele,Nona Tsotsoria,Mihai Poalelungi,Kristina Pardalos, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 10 April 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in sixty-four applications against Romania (see the appended list) lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by sixty-four Romanian nationals (“the applicants”) on 10 June 2009.", "Details of the names and application numbers are set out in the appended table. 2. The applicants were represented by Mr I. Banicioiu, a lawyer practising in Timişoara. The Romanian Government (“the Government”) were represented by their Agent, Ms I. Cambrea, from the Ministry of Foreign Affairs. 3.", "The applicants alleged a breach of their rights under Articles 6 and 14 of the Convention on account of the extended divergence of case-law on the issue of granting specific allowances to public servants. 4. On 22 February 2011 notice of the applications was given to the Government. It was also decided to join the applications and to rule on their admissibility and merits at the same time (Article 29 § 1). 5.", "As Mr Corneliu Bîrsan, the judge elected in respect of Romania, had withdrawn from the case (Rule 28 of the Rules of Court), the President of the Chamber appointed Mr Mihai Poalelungi to sit as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court). THE FACTS I. THE CIRCUMSTANCES OF THE CASES 6. The applicants are Romanian nationals. They are all civil servants employed by the Caraş Severin District Employment Agency.", "7. On 5 May 2008 the applicants filed a petition with their employer, the Caraş Severin District Employment Agency, a State agency, asking to have their entitlement to certain wage-related rights acknowledged. More specifically, relying on section 31(1) (c) and (d) of Law no. 188/1999 on the status of civil servants, they asked for two allowances to be added to their basic salary, namely a grade supplement and a supplement related to their salary step. The applicants quantified each of these supplements at 25% of the basic salary.", "The aforesaid allowances were to be paid retroactively, starting from April 2004, but also in the future, until the applicants’ contracts ended. At the same time, the applicants requested that these entitlements be noted in their employment record books. On 19 May 2008 their employer dismissed the petition as ill-founded. 8. On 30 May 2008 the applicants contested that decision before the Caraş Severin County Court.", "They contended that even though, in accordance with Government Emergency Ordinance no. 92/2004, the application of the provisions granting them the rights in question had been suspended until 31 December 2006, this did not mean that they were not due for payment starting from 1 January 2007, when the suspension had ended, as the suspension of a right was not equivalent to the extinction of that right. In any event, they considered that the suspension was in breach of Articles 41 and 53 of the Constitution, and that the allowances claimed were therefore to be paid retroactively, from 2004 onwards. 9. On 10 September 2008 the County Court dismissed the applicants’ claim.", "The court acknowledged that, according to the provisions of the Labour Code applicable to the case, the employer was obliged to pay its employees all the allowances derived from the law and from the employment contract. Therefore, the applicants, civil servants, were entitled to receive, in addition to their other salary entitlements, the two supplements in question – the grade allowance and the allowance corresponding to the salary step – as provided for by section 31(1) (c) and (d). The two supplements were first provided for by section 29 of Law no. 161/2003 of 16 April 2003, but without any indication as to the exact amount. In fact, none of the subsequent legal texts on civil servants’ salary rights made any reference to a method or criterion for determining the amount of any of the supplements.", "Hence, even though Law no. 188/1999 expressly stated that a civil servant’s salary was also composed of the grade supplement and the salary-step supplement, the determination of these rights was left to the executive, which was entitled to set out rules for the application of the law. Consequently, the court held as follows: “In the absence of a legal act issued or adopted by the executive in which the amount of the two allowances claimed is defined, the court does not have jurisdiction to determine by itself the amounts, as this would undermine the separation of powers principle by encroaching on the powers of the administrative authorities. The court therefore holds that in the above-mentioned circumstances, the respondent cannot be ordered to pay the allowances claimed before their amount has been determined.” 10. The applicants appealed against that judgment to the Timişoara Court of Appeal, reiterating the arguments they had submitted before the first-instance court.", "In addition, they stated that under Article 38 of the Labour Code the acquired rights of employees could not be made subject to any limitations. Furthermore, they contended that it was a basic legal principle that laws were made in order to produce effects, it being inconceivable that a legal text would have only a superficial value and not be applicable. They asserted that their right to the allowances they had requested was protected by Article 1 of Protocol No. 1 to the Convention, in so far as it was a right provided for by law. The applicants alleged that the interpretation of the applicable legal provisions given by the court in refusing to allow their claims rendered those texts completely ineffective and thus devoid of any substance.", "Moreover, such an interpretation was discriminatory and in breach of Article 14 of the Convention, in so far as there was consistent national case-law granting other claimants (also civil servants) the right to the supplements in question. The discrimination was even more disturbing given that another person, S.S.M., employed by the same institution as them, had obtained the allowances following a decision of 21 March 2008 given by the same first-instance court, the Caraş Severin County Court. That decision had been upheld by the Timişoara Court of Appeal on 2 October 2008, when it became final. 11. On 21 January 2009 the Timişoara Court of Appeal dismissed the applicants’ appeal.", "The court noted that there was no legal justification for claiming the allowances in an amount of 25% of the basic salary, and consequently for allowing such a claim, as the figure in question was not laid down anywhere in the law. In that connection, in order to be able to determine the exact amount of the allowances in question, additional legislation was needed, either in the form of legal provisions adopted by the legislature designed to regulate the application of section 31, or in the form of instructions issued by the Government in a separate legal text designed to explain how the law should be applied. The Court of Appeal also referred to the Constitutional Court’s case-law to the effect that: “The courts do not have jurisdiction to repeal or to refuse to apply specific normative acts which they consider to be discriminatory, and thus to replace them with norms created by judicial intervention or with provisions contained in other normative acts.” Therefore, the court considered that it could not allow the applicants’ claims, in so far as those claims had not been determined by the competent authorities. Regarding the divergent case-law referred to by the applicants in their arguments, the court held that in the Romanian legal system, legal precedents were not a source of law and therefore could not be taken into consideration. On the applicability of Article 1 of Protocol No.", "1 to the Convention, the court mentioned that the applicants had not proved the existence of a “possession”, or at least of a “legitimate expectation”, since the case-law on the matter was not well-established. Furthermore, the court held that the Labour Code was not applicable to civil servants, as they were appointed to their posts on the basis of Law no. 188/1999. The appointments were thus made by means of individual administrative acts which did not make any reference to the allowances in question and, in any event, had not been contested by any of the applicants at the time of their appointment. In conclusion, the applicants’ claims were dismissed as unfounded.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 1. The Public Servants’ Statute 12. The Public Servants’ Statute entered into force on 7 January 2000, once Law no. 188/1999 had been enacted.", "On 1 January 2004 section 29 of the Statute was amended to provide that, starting from that date, certain allowances were to be included in the salaries of public servants. Section 29 “1. For discharging their activities public servants shall have the right to a salary composed of the following: (a) the basic salary (b) seniority allowance (c) grade allowance (d) step allowance 2. Public servants shall be granted bonuses and other salary entitlements, in accordance with the law. 3.", "The remuneration of public servants shall take place in accordance with [the criteria] set forth in the law on the implementation of a uniform remuneration scheme for public servants.” On 19 July 2006, point (d) was amended to read “allowance corresponding to the salary step”. With effect from 1 June 2007, section 29 became section 31, while no amendments were made to the content. The application of these provisions was suspended from 2004 until 2006, first by Law no. 164/2004 of 15 May 2004, then by Government Emergency Ordinance no. 92/2004, enacted as Law no.", "76/2005, and then by Government Ordinance no. 2/2006, enacted as Law no. 417/2006. With effect from 1 January 2010 the two allowances, namely the grade supplement and the allowance corresponding to the salary step, were abolished by Law no. 330/2009.", "2. Case-law on similar claims 13. The applicants submitted two other judgments given by the Court of Appeal of Timişoara, in which the claimants’ requests had been granted. In one of the judgments, given on 23 January 2008 by the same panel as the one which sat in the applicants’ case, it was stated, inter alia, as follows: “It is irrelevant that the legal text did not lay down the exact amount of the salary entitlements in question, as this cannot constitute a well-founded reason for dismissing the claims; such an interpretation would render ineffective the legal provisions concerned, which are part of the positive law, and this would be inconceivable.” In another judgment submitted by the applicants, the Suceava Court of Appeal held on 5 June 2008 in a similar case that the claimants, employees of the Suceava District Employment Agency, were entitled to the allowances in question, as the corresponding rights were provided for by the law, it being irrelevant whether their amount was determined or not. 14.", "The Government contended that, of the fifteen courts of appeal across the country, a number had dismissed similar claims relating to salary entitlements even before 21 September 2009, when the High Court of Cassation and Justice had ruled on an appeal in the interests of the law (see paragraph 15 below). These included the Alba Iulia Court of Appeal, the Galaţi Court of Appeal and the Bacău Courts of Appeal, as well as the courts of appeal in Constanţa, Cluj, Ploieşti and Bucharest. The reasons given for dismissing the claims had been identical, resembling those subsequently given in the ruling on the appeal in the interests of the law. 3. The appeal in the interests of the law of 21 September 2009 15.", "On 13 May 2009, noting that since 2008 a divergence of case-law had emerged across the country concerning the granting of certain allowances to public servants, the Prosecutor General applied to the High Court of Cassation and Justice in accordance with the provisions of Article 329 of the Romanian Civil Procedure Code, in order to ensure the uniform interpretation and application of the law. The High Court delivered its judgment on 21 September 2009, confirming the existence of a divergence in the case-law concerning the interpretation of section 31(1) (c) and (d) of Law no. 188/1999, while also setting out guidelines for a uniform interpretation of the text, as follows: “For the uniform interpretation and application of Article 31(1) (c) and (d) of Law no. 188/1999, the High Court holds that, in the absence of a legal determination of their amount, the grade allowance and the allowance relating to the salary step cannot be granted by the judiciary.” The High Court further held that the entitlements claimed by the public servants did not constitute a “possession”, as, in the absence of criteria for their calculation, they were only “virtual rights”. According to Article 329 of the Romanian Civil Code of Procedure, the High Court’s interpretation of the provisions in question is binding on all the domestic courts.", "A decision delivered on an appeal in the interests of the law cannot alter the outcome of cases already decided. Following the adoption of the above-mentioned judgment, the divergent case-law on the issue ceased and the domestic courts followed the High Court’s guidelines (see also Zelca and Others v. Romania (dec.), no. 65161/10, §15, 6 September 2011). III. RELEVANT INTERNATIONAL LAW INSTRUMENTS A.", "Report on the Rule of Law by the Venice Commission, 25-26 March 2011 16. The report states in its relevant parts that, in order for the principle of legal certainty, essential for maintaining confidence in the judicial system and the rule of law, to be achieved, the State must make the law easily accessible and must also apply the laws it has enacted in a foreseeable and consistent manner. As the existence of conflicting decisions within the highest courts may be contrary to this principle, it is therefore necessary for these courts to establish mechanisms to avoid conflicts and ensure the coherence of their case-law. B. Preliminary conclusions and observations by the UN Special Rapporteur on the Independence of Judges and Lawyers 17.", "In her preliminary assessment on the independence of the Romanian judiciary following the visit to Romania in May 2011, the Rapporteur stressed that the practice of the domestic courts had been undermined by the absence of a stable legislative framework, resulting in a lack of uniform interpretation and application of the law. The lack of predictability of judicial decisions and the lack of acceptability of judicial decision-making were structural factors that needed to be addressed. C. Opinion no.11 (2008) of the Consultative Council of European Judges (CCJE) for the attention of the Committee of Ministers of the Council of Europe on the quality of judicial decisions 18. In its relevant parts, the Opinion reads as follows: “... 47. While recognising the judges’ power to interpret the law, the obligation of the judges to promote legal certainty has also to be remembered.", "Indeed legal certainty guarantees the predictability of the content and application of the legal rules, thus contributing in ensuring a high quality judicial system. 48. Judges will apply the interpretative principles applicable in both national and international law with this aim in mind. ... In civil law countries, they will be guided by case law, especially that of the highest courts, whose task includes ensuring the uniformity of case law.", "49. Judges should in general apply the law consistently. However when a court decides to depart from previous case law, this should be clearly mentioned in its decision. ....” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6, TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION 19.", "The applicants complained under Articles 6 and 14 of the Convention that the proceedings which culminated in the judgment of 21 January 2009 had been unfair, in so far as the domestic courts had wrongfully dismissed their claims relating to the grade and the salary-step allowances and had not taken into consideration the existence of conflicting rulings on the same subject, in which those allowances had been granted to many of their fellow civil servants across the country. Articles 6 and 14 of the Convention, 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 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.” A. Admissibility 20. 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. Merits 1. The parties’ submissions 21. The Government pointed to the fact that, according to the Court’s case-law, where an applicant invoked a breach of Article 6 § 1 regarding legal certainty, three conditions had to be analysed: firstly, whether the divergence in the case-law complained of was profound and long-standing; secondly, whether the national legislation provided an effective remedy in respect of the impugned divergence; and thirdly, whether that remedy was applied, and if so, to what effect (the Government referred to Iordan Iordanov and Others v. Bulgaria, no. 23530/02, § 49, 2 July 2009).", "22. The Government further contended that these criteria had not been met in the present applications, for the following reasons. As to the persistence and degree of the impugned divergence, the Government argued that since 2008 the national courts had taken a varying approach to the interpretation of the legal texts concerning the specific allowances to be granted to public servants. Some courts had dismissed such claims from the very beginning, whereas others had allowed them at first and then gradually started to change their own case-law, especially following the meetings with judges organised on 19 November 2008 and 10 April 2009 by the Supreme Council of Magistracy committee on the harmonisation of domestic case-law. In both of those meetings it had been agreed that a divergence existed concerning the interpretation of the legal texts governing specific allowances for civil servants.", "The members of the committee had agreed that the lodging of an appeal in the interests of the law was necessary in order to put an end to the divergence. Taking as a starting-point the findings made by the committee on 13 May 2009, the Prosecutor General had lodged an appeal in the interests of the law which had been allowed by the High Court of Cassation and Justice on 21 September 2009, thus marking the end of the divergence on the subject. 23. The Government further pointed out that the large number of claimants involved in the impugned proceedings was not necessarily an indicator of the degree of divergence in the case-law. In that regard, the Government acknowledged that the controversial issue of the granting of certain allowances to public servants concerned a great number of people, namely all public servants to whom the impugned provisions of the relevant law applied.", "However, in spite of the large number of applicants the controversial issue was not liable to escalate, unlike in the case of Tudor Tudor v. Romania (no. 21911/03, 24 March 2009), where the issue of the application of restitution laws in Romania was acknowledged to be a matter which affected the whole of Romanian society. 24. Pointing out that the Court had already held that a mere change in the practice of a domestic court did not imply a breach of the Convention, especially if that practice was not arbitrary, the Government further contended that in the present case the divergent approaches taken at different points in time by various courts could not be interpreted as constituting a profound and long-standing divergence in the case-law. 25.", "Taking the view that the High Court’s task of ensuring the uniformity of the case‑law had been successfully achieved within about one year from the date when the divergence had arisen, the Government contended that the appeal in the interests of the law had proved to be an effective remedy in respect of such divergences (the Government referred to Schwarzkopf and Taussik v. the Czech Republic (dec.), no. 42162/02, 2 December 2008). Moreover, the High Court’s interpretation of the applicable legal texts coincided with the approach taken by the courts in the applicants’ cases. This was further proof that there had been no breach of Article 6 of the Convention (the Government cited Usnul v. the Czech Republic (dec.), no. 33945/06, 29 March 2011, and Karakaya v. Turkey (dec.), no.", "30100/06, 25 January 2011). 26. The Government therefore argued that in the present cases, the applicants’ complaints regarding a lack of legal certainty were ill-founded. 27. In response to the Court’s question whether divergences of case-law constituted a systemic problem in Romania, the Government denied that this was the case, pointing to the fact that the present cases themselves demonstrated perfectly that the national system for ensuring uniformity of the case-law worked in an efficient manner, regard being had to the fact that an appeal in the interests of the law had been lodged.", "Furthermore, the Government reiterated that even though the issues complained of in the present cases affected a large number of people, namely the social category of public servants, this was not decisive for the existence of a structural problem. 28. On the contrary, in so far as the Court had found against the Romanian State in a very limited number of cases concerning breaches of legal certainty due to the existence of a divergent case-law (Driha v. Romania, no. 29556/02, 21 February 2008; Beian v. Romania (no. 1), no.", "30658/05, ECHR 2007‑V (extracts); Tudor Tudor, cited above; and Ştefănică and Others v. Romania, no. 38155/02, 2 November 2010), it could not be argued that there was a systemic problem concerning diverging case-law in Romania. 29. In any event, the most important mechanisms for the unification of Romanian case-law were functioning and effective, as set out below. An appeal in the interests of the law was the main instrument capable of putting an end to differing approaches in the domestic case-law.", "In this connection the Government mentioned that, with effect from 26 October 2010, the provisions governing this kind of appeal had changed, making it more effective. The list of those who had locus standi to lodge such appeals had been extended to include the Minister of Justice, the Management Board of the High Court of Cassation and Justice, the management boards of the courts of appeal and the Ombudsman. The efficiency of this mechanism was also borne out by the statistics. In 2008, the High Court had ruled on 46 appeals in the interests of the law, all of which had been allowed; in 2009, 2010 and 2011, the respective figures had been as follows: 38 appeals, of which 26 had been allowed, 9 of which 8 had been allowed, and 11 of which 10 had been allowed. From 2005 to 2011, the High Court had ruled on 24 appeals in the interest of the law concerning the interpretation of various legal texts governing salary entitlements; 21 of these had been allowed.", "30. A new remedy was also provided for in the draft of the new Romanian Code of Civil Procedure, due to enter into force in June 2012; the preliminary judgments procedure gave both the applicants and the courts giving final judgments in their case the possibility of lodging an application with the High Court of Cassation and Justice where specific legal issues relating to the merits of their case had been interpreted differently across the country. In such proceedings, the High Court was required to give an answer within three months from the date of the application; the judgment thus given, setting out guidelines for the correct interpretation of the legal texts in issue, was binding on all the courts and not only on the parties to the case. 31. The most important general measure envisaged by the Government to address the issue of divergences in the case-law of the national courts was therefore to continue to improve the implementation of the mechanisms mentioned above.", "32. As to the applicants’ complaints of discrimination, the Government submitted that the mere existence of divergences in the case-law could not be regarded as discrimination. Moreover, the applicants had not indicated any criteria on the basis of which they had allegedly been discriminated against. Referring to the Court’s case-law on similar issues (Tudor Tudor, cited above; Veselinski v. “the former Yugoslav Republic of Macedonia”, no. 45658/99, 24 February 2005; Ferrazzini v. Italy [GC], no.", "44759/98, ECHR 2001‑VII; and Karakaya, cited above), the Government asked the Court to dismiss the complaint as ill-founded. 33. The applicants briefly submitted that they maintained their claims as formulated in their initial applications. 2. The Court’s assessment (a) General principles 34.", "In its recent Grand Chamber judgment in Nejdet Şahin and Perihan Şahin v. Turkey ([GC], no. 13279/05, 20 October 2011), the Court reiterated the main principles applicable in cases concerning the issue of conflicting court decisions (§§ 49-58). These can be summarised as follows: (i) It is not the Court’s function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I). Likewise, it is not its function, save in the event of evident arbitrariness, to compare different decisions of national courts, even if given in apparently similar proceedings, as the independence of those courts must be respected (see Ādamsons v. Latvia, no.", "3669/03, § 118, 24 June 2008); (ii) The possibility of conflicting court decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. Such divergences may also arise within the same court. That, in itself, cannot be considered contrary to the Convention (see Santos Pinto v. Portugal, no. 39005/04, § 41, 20 May 2008, and Tudor Tudor, cited above, § 29); (iii) The criteria that guide the Court’s assessment of the conditions in which conflicting decisions of different domestic courts ruling at last instance are in breach of the fair trial requirement enshrined in Article 6 § 1 of the Convention consist in establishing whether “profound and long-standing differences” exist in the case-law of the domestic courts, whether the domestic law provides for machinery for overcoming these inconsistencies, whether that machinery has been applied and, if appropriate, to what effect (see Iordan Iordanov and Others, cited above, §§ 49-50; see also Beian (no. 1), cited above, §§ 34‑40; Ştefan and Ştef v. Romania, nos.", "24428/03 and 26977/03, §§ 33-36, 27 January 2009; Schwarzkopf and Taussik, cited above, 2 December 2008; Tudor Tudor, cited above, § 31; and Ştefănică and Others, cited above, § 36); (iv) The Court’s assessment has also always been based on the principle of legal certainty which is implicit in all the Articles of the Convention and constitutes one of the fundamental aspects of the rule of law (see, amongst other authorities, Beian (no. 1), cited above, § 39; Iordan Iordanov and Others, cited above, § 47; and Ştefănică and Others, cited above, § 31); (v) The principle of legal certainty, guarantees, inter alia, a certain stability in legal situations and contributes to public confidence in the courts. The persistence of conflicting court decisions, on the other hand, can create a state of legal uncertainty likely to reduce public confidence in the judicial system, whereas such confidence is clearly one of the essential components of a State based on the rule of law (see Paduraru v. Romania, § 98, no. 63252/00, ECHR 2005-XII (extracts); Vinčić and Others v. Serbia, nos. 44698/06 and others, § 56, 1 December 2009; and Ştefănică and Others, cited above, § 38); (vi) However, the requirements of legal certainty and the protection of the legitimate confidence of the public do not confer an acquired right to consistency of case-law (see Unédic v. France, no.", "20153/04, § 74, 18 December 2008). Case-law development is not, in itself, contrary to the proper administration of justice since a failure to maintain a dynamic and evolutive approach would risk hindering reform or improvement (see Atanasovski v. “the Former Yugoslav Republic of Macedonia”, no. 36815/03, § 38, 14 January 2010). (b) Application of these principles to the present cases 35. The Court notes at the outset that from 2008 onwards conflicting approaches emerged across the country, concerning the interpretation and implementation of the legal provisions granting all public servants specific allowances, in the absence of precise criteria for the calculation of those allowances (see paragraph 15 above).", "As admitted by the Government, the issue complained of in the present cases affected a large number of people (see paragraph 27 above). 36. In the same context but on a more general level, as the Government also acknowledged, the Court observes that the High Court of Cassation and Justice gave more than one hundred judgments on appeals in the interests of the law between 2008 and 2011, designed to ensure the uniformity of the case-law on various legal provisions interpreted and/or applied differently by the domestic courts (see paragraph 29 above). 37. The Court therefore views with concern the scale of the divergent domestic court practices on the same legal matter, including the one referred to in the present cases (see paragraphs 27 and 28 above).", "38. The Court reiterates that the persistence of conflicting court decisions, especially when the impugned divergence involves massive numbers of applicants, can in certain circumstances create a state of legal uncertainty likely to reduce public confidence in the judicial system, which is clearly one of the essential components of a State based on the rule of law (see also Relevant international instruments, paragraphs 16 to 18 above). Divergences of approach may arise between the courts as part of the process of interpreting legal provisions while adapting them to the material situation. These divergences may be tolerated when the domestic legal system is capable of accommodating them (see Nejdet Şahin and Perihan Şahin, cited above, §§ 86-87). While the accommodation of divergences in isolated cases (see Karakaya, cited above) may in practice prove to be less demanding, however, when the divergence involves judicial matters affecting large parts of the public, their confidence in the judicial system may be particularly undermined.", "It is why the system must put in place effective mechanisms that need to be fully and promptly implemented via the highest courts responsible for ensuring the uniformity of the case-law, so as to rectify at the appropriate juncture any inconsistencies in the decisions of the various domestic courts and thus maintain public confidence in the judicial system. 39. Turning back to the present cases, the Court observes that the applicants had the benefit of adversarial proceedings, in which they were able to adduce evidence and freely formulate their defence and in which their arguments were properly examined by the courts. Likewise, the courts’ conclusions and their interpretation of the relevant law cannot be regarded as manifestly arbitrary or unreasonable. It remains therefore to be examined whether the national system provides a mechanism capable of ensuring consistency in the practice of the national courts, notwithstanding the fact that the process of unifying and ensuring the consistency of the case-law may require a certain amount of time (see Schwarzkopf and Taussik, cited above).", "40. In this respect, the Court notes that on 21 September 2009 an appeal in the interests of the law was granted by the Romanian High Court of Cassation and Justice, which laid down binding guidelines for the uniform interpretation of the legal provisions in issue. The High Court’s ruling brought the divergence on this subject to an end, as the Court has already acknowledged in its decision in Zelca and Others v. Romania (no. 65161/10, 6 September 2011), a case very similar to the present ones. In that decision (see § 15), the Court held that the mechanism provided for by Article 329 of the Romanian Code of Civil Procedure, as a mechanism designed to resolve, and not preclude, conflicting court decisions, had proved to be effective, since in a reasonably short period of time it had put an end to the divergence in the case-law concerning the issue of the granting of grade and salary-step allowances to public servants.", "41. It is true that in the present cases, in contrast to the case of Zelca and Others, the impugned judgment dismissing the applicants’ claims was given before the High Court had had the opportunity to give a uniform interpretation of the legal texts in issue. Nevertheless, the approach adopted by the domestic courts in the applicants’ case was similar to that advocated by the High Court only a few months later in its ruling on the appeal in the interests of the law (see Usnul v. the Czech Republic, no. 33945/06, 29 March 2011). 42.", "From that perspective, even though in the present cases the impugned judgment was given at a time when the divergence still existed, the Court sees no reason to depart from its findings in Zelca and Others regarding the effectiveness of the appeal in the interests of the law, a mechanism which was set in motion relatively promptly, as it was lodged with the High Court around one year after the onset of the impugned divergence. The High Court, in its turn, assessed the matter promptly and gave unequivocal guidelines on the correct interpretation of the legal text, as a result of which the divergence ceased rapidly and the domestic courts’ interpretation became uniform (see, by contrast, Tudor Tudor, cited above, § 30, and Ştefănică and Others, cited above, § 38). As already mentioned above, achieving consistency of the law may take time, and periods of conflicting case-law may therefore be tolerated without undermining legal certainty (see Nejdet Şahin and Perihan Şahin, cited above, § 83), provided that the domestic legal system proves, as in the present cases, capable of accomodating them. 43. Having regard to all of the above, the Court considers that there was no breach of the principle of legal certainty in the applicants’ cases.", "It further holds that there has been no violation of Article 6 of the Convention. 44. In view of its findings in paragraphs 41 to 43 above, the Court considers that it is not necessary to examine separately the applicants’ complaint under Article 14 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.", "1 TO THE CONVENTION 45. Under Article 1 of Protocol No. 1, the applicants complained in substance that as a result of the wrongful interpretation of the law, the court of appeal had deprived them of their right to be awarded the allowances relating to their grade and to their salary step. 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.” 46. The Court notes at the outset that Article 1 of Protocol No. 1 applies only to a person’s existing possessions. Thus, future income cannot be considered to constitute “possessions” unless it has already been earned or is definitely payable (see, for example, Koivusaari and others v. Finland (dec.), no.", "20690/06, 23 February 2010). However, in certain circumstances, a “legitimate expectation” of obtaining an “asset” may also enjoy the protection of Article 1 of Protocol No. 1. Thus, where a proprietary interest is in the nature of a claim, the person in whom it is vested may be regarded as having a “legitimate expectation” if there is a sufficient basis for the interest in national law, for example where there is settled case-law of the domestic courts confirming its existence (see Kopecký v. Slovakia [GC], no. 44912/98, § 52, ECHR 2004-IX).", "However, no legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (ibid., § 50). 47. In the present cases, the applicants’ alleged salary entitlements, although expressly recognised by the State in the relevant domestic legislation, cannot be regarded as having sufficient basis in domestic case‑law, since the courts gave varying and even conflicting interpretations of the relevant legal provisions, resulting in a long-lasting divergence in the case-law on the matter. In this connection, it cannot be argued that the applicants had a possession within the meaning of Article 1 of Protocol No. 1.", "Likewise, as to the existence of a general climate of uncertainty, incompatible with the concept of “settled case-law”, regarding the outcome of the proceedings brought by the applicants, the Court considers that the latter cannot be said to have had a “legitimate expectation” either (see, mutatis mutandis, Liepājnieks v. Latvia (dec.), no. 37586/06, 2 November 2010, §§ 95-96). Moreover, the High Court’s ruling of 21 September 2009 on the appeal in the interests of the law, which ended the divergence on the matter, confirmed that civil servants were not entitled to the allowances claimed, an interpretation which was in line with what the court of appeal had held when it dismissed the applicants’ claims. It follows that the applicants did not have a possession within the meaning of Article 1 of Protocol No. 1.", "48. The complaint under Article 1 of Protocol No. 1 is therefore inadmissible as being incompatible ratione materiae, in accordance with Article 35 §§ 3 and 4 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 6 taken alone and in conjunction with Article 14 concerning the divergence in the case-law of the domestic courts admissible and the remainder of the applications inadmissible; 2.", "Holds that there has been no violation of Article 6 of the Convention; 3. Holds that there is no need to examine separately the complaint under Article 14 of the Convention. Done in English, and notified in writing on 10 May 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident No. Application no.", "Lodged on Applicant’s name, date of birth, place of residence 34796/09 10/06/2009 Dorin Petru ALBU 13/06/1959 Baile Herculane 34797/09 10/06/2009 Ana ANGHELOIU 23/02/1955 Resita 34798/09 10/06/2009 Stefania BONTEA 08/04/1954 Resita 34799/09 10/06/2009 Marioara Viorica BUDIMIR 20/08/1951 Resita 34800/09 10/06/2009 Ion BERBENTEA 18/07/1957 Resita 34801/09 10/06/2009 Simona BENGA 12/08/1975 Resita 34802/09 10/06/2009 Claudiu Mihai BALABAN 30/10/1978 Resita 34803/09 10/06/2009 Gheorghe Vasile BALAJ 24/02/1969 Resita 34804/09 10/06/2009 Codrut Dan BUCATES 21/08/1969 Resita 34805/09 10/06/2009 Sebastian BUZORI 04/10/1973 Bocsa 34806/09 10/06/2009 Floarea BOROZAN 17/01/1971 Bania 34807/09 10/06/2009 Emanuel CRING 27/02/1969 Moldova Noua 34808/09 10/06/2009 Daniela CORICOVAC 11/02/1970 Resita 34809/09 10/06/2009 Iulica DINA 01/08/1970 Resita 34810/09 10/06/2009 Marius DUMBRAVA 16/11/1962 Resita 34811/09 10/06/2009 Elena DRAGHICESCU 27/01/1954 Otelu Rosu 34812/09 10/06/2009 Ovidiu George DRAGILA 27/02/1976 Resita 34813/09 10/06/2009 Gheorghe DRAGHICI 06/07/1967 Resita 34814/09 10/06/2009 Maria DITESCU 29/03/1963 Resita 34815/09 10/06/2009 Daniela Lavinia DANILIUC 30/05/1980 Moldova Noua 34816/09 10/06/2009 Mircea Laurentiu GRIGORE 26/09/1968 Resita 34817/09 10/06/2009 Ileana HREBENCIUC 22/08/1963 Resita 34818/09 10/06/2009 Caius ISAC 05/11/1962 Resita 34819/09 10/06/2009 Dorina GROZA 28/03/1951 Bocsa 34820/09 10/06/2009 Carla Maria GOAGA 10/08/1972 34821/09 10/06/2009 Lenuta Liliana LINTA 10/11/1969 Resita 34822/09 10/06/2009 Viorel Florin LAZAR 17/09/1974 Caransebes 34823/09 10/06/2009 Dorin Ioan LUCA IORGA 14/07/1974 Bocsa 34824/09 10/06/2009 Alina LOTOROSANU 17/12/1981 Resita 34825/09 10/06/2009 Ramaian MITRICA 04/09/1979 Resita 34826/09 10/06/2009 Maria MURGU 05/10/1973 Resita 34827/09 10/06/2009 Ion MARAN 07/05/1967 Ciclova Romana 34828/09 10/06/2009 Florica MALACHI 19/10/1957 Resita 34829/09 10/06/2009 Carmen NECHITA 15/12/1952 Baile Herculane 34830/09 10/06/2009 Nicolae NEGRU 30/10/1953 Moceris 34831/09 10/06/2009 Nicolae NOVACESCU 13/04/1963 Caransebes 34832/09 10/06/2009 Cristian Sandel PAPUC 09/09/1972 Resita 34833/09 10/06/2009 Marius PUIE 18/04/1977 Resita 34834/09 10/06/2009 Alina Silvia ROSCA 23/09/1971 Resita 34835/09 10/06/2009 Alina Domnica PETRE 16/08/1974 Resita 34836/09 10/06/2009 Constanta POP 20/05/1958 Resita 34837/09 10/06/2009 Daniela PRUNA 10/08/1965 Resita 34838/09 10/06/2009 Lidia RADU 10/05/1954 Anina 34839/09 10/06/2009 Emilian Marius RADOI 04/09/1971 34840/09 10/06/2009 Alexandru SUTA 29/10/1956 Resita 34841/09 10/06/2009 Ion STIRBU 28/02/1953 Resita 34842/09 10/06/2009 Loredana STAMATE 27/02/1975 Resita 34843/09 10/06/2009 Mihaela STETA 28/01/1965 Resita 34844/09 10/06/2009 Ana TOMA 22/06/1951 34845/09 10/06/2009 Calina TURCIN 15/11/1964 Obreja 34846/09 10/06/2009 Elisabeta TOMA 22/08/1958 Resita 34847/09 10/06/2009 Marius ZAVELCUTA 07/07/1975 Resita 34848/09 10/06/2009 Dumitru MIU 28/12/1949 Resita 34849/09 10/06/2009 Iosif CORCAN 11/07/1945 Resita 34850/09 10/06/2009 Florina Veronica LUNGU 12/07/1973 Resita 34851/09 10/06/2009 Gheorghe Sabin POP 02/07/1954 Resita 34852/09 10/06/2009 Virginia MIU 25/10/1961 Resita 34853/09 10/06/2009 Nicolae ARDELEAN 09/07/1945 Oravita 34854/09 10/06/2009 Ioan Mihai BALMEZ 08/11/1957 Resita 34855/09 10/06/2009 Rodica Stefania BIRCEA 21/05/1966 Resita 34856/09 10/06/2009 Dorin TANASESCU 25/05/1963 Resita 34857/09 10/06/2009 Erika INISCONI 28/07/1972 Resita 34858/09 10/06/2009 Ion VISAN 26/01/1952 Resita 34859/09 10/06/2009 Aneta NEGOIANU 12/09/1957 Resita" ]

[ "FOURTH SECTION CASE OF KOZAK v. POLAND (Application no. 13102/02) JUDGMENT STRASBOURG 2 March 2010 FINAL 02/06/2010 Cet arrêt est devenu définitif en vertu de l'article 44 § 2 de la Convention. Il peut subir des retouches de forme. In the case of Kozak v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Giovanni Bonello,Ljiljana Mijović,David Thór Björgvinsson,Ján Šikuta,Ledi Bianku, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 9 February 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "13102/02) 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, Mr Piotr Kozak (“the applicant”), on 23 August 2001. 2. The applicant was represented by Mr A. Byliński, a lawyer practising in Szczecin. 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, a breach of Article 14 taken in conjunction with Article 8 of the Convention, submitting that he had been discriminated against on the ground of his homosexual orientation in that he had been denied the right to succeed to a tenancy after the death of his partner. 4. On 4 December 2007 the Court decided to give notice of the application to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1951 and lives in Szczecin. A. Background 1. Undisputed facts 6.", "In 1989 the applicant moved in to a council flat at K. street, rented by T.B., the applicant's partner, with whom he had lived in a homosexual relationship. Earlier, in 1986 or 1987, they had lived together in a flat rented by T.B. at N. street. The applicant and T.B. shared the expenses for the flat.", "On 28 May 1989 the applicant was registered as a permanent resident of the flat in the residents' register kept by the Szczecin Municipality (Gmina). 7. On 1 April 1998 T.B. died. 8.", "On an unspecified later date the applicant applied to the Mayor of Szczecin (Prezydent Miasta), asking him to conclude a lease agreement with him, replacing thereby the agreement with the late T.B. He was informed orally by one of the municipality's clerks that he should first pay arrears in rent since otherwise a fresh agreement would not be effected. The applicant paid the arrears, which amounted to 4,671.28 Polish zlotys (PLN) and also renovated the flat, paying PLN 5,662 for the work. 9. On 19 June 1998 the Szczecin Town Office's Department for Municipal Buildings and Dwellings (Wydział Budynków i Lokali Komunalnych Urzędu Miejskiego) sent a letter to the applicant, informing him that his application could not be granted because he did not meet the relevant criteria.", "One such criterion was to live in a council flat at least from 11 November 1992. The authorities held that the applicant had not lived in the flat but had moved in after 1 April 1998, the date of T.B. 's death. Moreover, meanwhile – on 3 April 1998 – the applicant's name had been struck out of the register of the flat's residents due to the fact that he had not lived there for more than five years (see also paragraphs 14-23 below). Accordingly, the authorities ordered the applicant to vacate the flat and surrender it to the municipality, on pain of being evicted from it at his expense and risk, the eviction being effected regardless of his presence.", "10. Subsequently, the applicant tried to negotiate an agreement with the municipality but to no avail. 2. Facts in dispute (a) The Government 11. The Government maintained that at some unspecified time the applicant and T.B.", "had come into conflict. T.B. asked the authorities to strike the applicant's name out of the residents' register and intended to start eviction proceedings against him. They stopped running the common household some one and a half years before T.B. 's death and, at the same time, the applicant stopped paying the rent for the flat.", "Three months before his death T.B. stayed in his brother's home but returned to the flat in mid-February 1998. The applicant did not live in the flat at the time of T.B. 's death. The Government further stated that the applicant had not assumed responsibility for T.B.", "'s funeral. In support of their submissions, the Government relied on the findings made by the administrative authorities and courts and in proceedings concerning permanent residence (see paragraphs 14-23 below) and eviction (see paragraphs 24-28 below). They produced copies of the relevant decisions. (b) The applicant 12. The applicant acknowledged that he and T.B.", "had started to argue some one and a half years before the latter's death and that he had stopped paying the rent and moved out for some time. However, nine months before T.B. 's death they had reconciled and they had resumed their relationship. 13. The applicant submitted that until and upon T.B.", "'s death they both had lived in the flat. He had looked after T.B. during his illness up until his death. As regards T.B. 's funeral, the applicant stated that, officially, it had been T.B.", "'s former wife who had organised the funeral and had received a partial refund of expenses from the Social Security but he had helped her to organise it and had participated in the ceremony. B. Administrative proceedings concerning permanent residence 14. On 5 August 1997 T.B made an application to the Szczecin Municipality, asking it to strike the applicant's name as a permanent resident of the flat at K. street out of the residents' register on the ground that the latter no longer lived at that address. 15.", "On 3 April 1998 the application was granted and a new entry was made in the register. The relevant administrative decision became final on an unspecified date. 16. On 26 June 1998 the applicant asked the authorities to re-open the case, submitting that he had not been notified of the institution of the proceedings. He maintained that, in contrast to what had been established in those proceedings, he had continually lived in the flat since 18 May 1989.", "17. The case was reopened and the authorities heard evidence from the applicant and several witnesses. 18. The applicant stated that in the years 1994-1998 he had on several occasions left for Germany to seek odd jobs for periods lasting usually some three months. In 1997 he had been absent only from March to May and, for one and a half months starting at the end of August or the beginning of September.", "19. The authorities inspected visas and stamps in the applicant's passport and found that his stays in Germany and their length were confirmed. 20. They further heard evidence from two witnesses – K.P. and Z.M.", "– proposed by the applicant and also from residents of the building at K. street. While the applicant's neighbours did not clearly confirm that he had resided permanently in the flat, they said that they had often seen him around, that he had answered the door to the flat, helped one of them with moving furniture and that he had renovated the flat in April 1998. They also stated that T.B. had led a very lively social life and many men had visited him. K.P and Z.M.", "who were colleagues of the late T.B. and the applicant confirmed that he had lived in the flat until T.B. 's death. 21. On 31 March 1999 the Mayor of Szczecin (Prezydent Miasta) quashed the decision of 3 April 1998 and refused to strike the applicant's name out of the residents' register.", "In the decision, the Mayor referred to the fact that, in the years 1994‑1995, the applicant had unsuccessfully attempted to succeed to a tenancy of a council flat at J. street, after the death of a certain E.B., the statutory tenant in 1994 (see also paragraph 26 below). It was noted that in those proceedings the applicant had stated that he had lived in the flat at J. street since March 1991, had had the keys, had kept his furniture and belongings there and, after his stay in Germany in 1994, had returned to the flat and renovated it. 22. It was further noted that the applicant, when asked to explain the inconsistency with the version recently presented, had said that his statements regarding the alleged residence at J. street had not been true and that he had done so solely for the sake of acquiring the right to lease the flat at J. street, whereas he had in fact lived permanently at K. street. He added that, in any event, he could not stay every day in the flat on account of T.B.", "'s and his colleagues' frequent drunkenness. 23. Assessing the facts as a whole, the Mayor considered that the testimonies given by the witnesses proposed by the applicant were not credible because they were his colleagues and, in addition, they did not reside in the building. The residents had not clearly confirmed that he had lived there from August 1997 to March 1998. However, given the fact that T.B.", "had died on 1 April 1998, that the impugned decision had been issued on 3 April 1998 and that, as confirmed by the neighbours, the applicant had lived in the flat after T.B. 's death and had renovated it, it was evident that on the date of the issuance of the decision he had been a resident of the flat. Accordingly, the original decision had not been given on the basis of the circumstances obtaining on the date of issuance and, as such, had to be quashed. C. Proceedings for eviction 24. On 16 April 1999 the Szczecin Municipality sued the applicant before the Szczecin District Court (Sąd Rejonowy), seeking his eviction from the flat rented by the late T.B.", "On 27 May 1999 the court gave judgment in default, granting the claim. On 18 June 1999 the applicant applied for the judgment to be set aside and the claim to be dismissed. The court proceeded to hear evidence. 25. On 24 May 2000 the court heard evidence from the applicant.", "The applicant stated that he had lived with T.B. in the flat and that he was registered as a permanent resident of the flat, sub-letting it from T.B. At the material time he still lived in the flat, paying twice the rent due because he was using the flat without any legal title. He had informed T.B. 's brother of the latter's death but had not organised the funeral since he had felt that the family should take care of it.", "The family had refused to take part in the funeral. Probably, T.B. 's former wife had organised it. 26. On 2 June 2000 the District Court upheld the judgment in default of 27 May 1999.", "The court made the following findings of fact. The applicant was registered as a permanent resident of the flat since 28 May 1989. He sub-let one room from T.B. On 3 April 1998 his name as a permanent resident of the flat was struck out of the register upon T.B. 's motion.", "It was later restored, following the re-opening of the case (see also paragraphs 14-23 above). The applicant did not organise T.B. 's funeral. T.B. and the applicant had had arguments.", "The applicant moved to the flat at K. street after T.B. 's death. By virtue of a judgment given by the Szczecin Regional Court on 18 February 1997 the applicant had been evicted from the flat at J. street. The applicant had made attempts to succeed to a tenancy of the council flat at J. street after the death of E.B., a statutory tenant. In the relevant proceedings, he had stated that he had lived at J. street since 1991.", "Following the enforcement of the eviction order, he left the flat in June 1998. The court further held that even though the applicant was registered as a permanent resident of the flat, this fact could not be decisive since this had legal consequences only for the residents' register and not for the application of section 8 of the 1994 Act setting out the statutory conditions for the succession to lease (see also paragraph 40 below). In these circumstances, the court concluded that the applicant had no legal title to the flat in dispute and that the eviction order should be granted. 27. The applicant appealed, arguing that the first-instance court had made errors of fact, in particular that it had wrongly found that he had moved to the flat at K. street only after T.B.", "'s death. He also alleged several procedural shortcomings and arbitrary assessment of evidence. 28. On 14 September 2001 the Szczecin Regional Court (Sąd Okręgowy) heard and dismissed the appeal, upholding the grounds given for the first‑instance judgment. D. Proceedings for succession to tenancy 29.", "On 14 July 2000 the applicant sued the Szczecin Municipality before the Szczecin District Court, seeking a judgment declaring that he had succeeded to the tenancy after T.B. 's death. 30. At a hearing held on 30 October 2000 the applicant's lawyer stated that the claim was based on section 8(1) of the Lease of Dwellings and Housing Allowances Act of 2 July 1994 (ustawa o najmie lokali mieszkalnych i dodatkach mieszkaniowych) (“the 1994 Act”) (see also paragraph 40 below) and that on this basis the applicant had a right to succeed to the tenancy as T.B. 's life-partner (konkubent), with whom he had cohabited for many years and had run a common household.", "31. On 9 November 2000 the applicant asked the court to hear evidence from 3 witnesses, K.P., R.M. and S.B. in order to establish that he and T.B. had remained at all times in a particularly close relationship.", "32. At a hearing held on 22 February 2001 the court rejected the motion and heard evidence from the applicant alone. It considered that the fact that the applicant had cohabited with his late partner had already been sufficiently proved on the basis of his own statements. Before the court, the applicant stated, among other things, that he had borne expenses involved in the running of their household, including the rent for the flat. He lived in a room and T.B.", "occupied the kitchen. On the same day it gave judgment and dismissed the claim. 33. The District Court made the following findings of fact. T.B.", "rented the flat in question from the municipality. He was a divorced single person. The applicant and T.B. had lived together from 1986 or 1987, initially in another flat and, subsequently in 1989, they moved to the flat in dispute. They had a homosexual relationship.", "The applicant bore the costs of running the household and paid the rent for the flat. They stopped running the common household some one and a half years before T.B. 's death and at the same time the applicant stopped payment of the rent to the municipality. In 1996 the defendant municipality lodged an action for eviction against T.B., on the ground that rent arrears had not been paid. After T.B.", "'s death the applicant paid the rent arrears and asked the defendant to conclude a lease agreement with him. He renovated the flat. In 1994 the applicant made a similar application to the defendant municipality, asking it to conclude a lease agreement with him in respect of another flat, rented by a certain E.B., after the latter's death. He alleged that he had permanently lived in E.B. 's flat at J. street, whereas in T.B.", "'s flat he had only been registered as a permanent resident. 34. The findings of law read, in so far as relevant: “Under section 8(1) of the 1994 Act a person can take over a tenancy if he or she has fulfilled jointly the four following conditions: (1) was in a close relationship with the late tenant by blood relations, adoption or de facto marital cohabitation; (2) resided permanently with the tenant until his or her death; (3) had not relinquished this right to the landlord and (4) upon the death of the tenant had no title to another flat. The applicant stated that he had lived in de facto marital cohabitation with T.B. This should be assessed in the light of the situation as it obtained upon the latter's death.", "The major features of a de facto marital relationship (konkubinat) are its dissolvability and lack of legal consequences following its dissolution – as it is a purely de facto union. For a relationship to be considered a de facto marital relationship there must be emotional, physical and also economic bonds between the partners. Yet it emerges from the applicant's testimony that the economic bond between the partners broke some one year and a half before T.B. 's death, when they stopped running a common household. In consequence, their relationship no longer fulfilled the conditions for a de facto marital relationship.", "However, even assuming that all the above-mentioned requirements for a de facto marital relationship existed, the applicant's and T.B. 's cohabitation could not be regarded as such. Indeed, a de facto marital relationship is a not legalised substitute for a marriage. Pursuant to Polish law, Article 1 §1 of the Family and Custody Code, a marriage can be contracted only between a woman and a man. Consequently, [the law] recognises only de facto relationships of different-sex persons.", "That being said, the applicant does not belong to the group of entitled persons referred to in section 8(1) of the 1994 Act. All of the above-mentioned four requirements of section 8(1) must be fulfilled jointly; non-fulfilment of even one of them makes it redundant to examine compliance with the remaining ones. It should be added in passing that, given the applicant's attempts to succeed to the tenancy of [another] flat, his permanent residence in the flat [in question] upon the death of the statutory tenant is open to doubt. ...” 35. The applicant appealed to the Szczecin Regional Court (Sąd Okręgowy), seeking to have the impugned judgment quashed and the case remitted or, alternatively, to have the judgment altered and his claim granted in its entirety.", "He asked the Regional Court to hear supplementary evidence from him, in order to establish the actual duration of his relationship with T.B. Furthermore, relying on Article 390 § 1 of the Code of Civil Procedure (Kodeks postępowania cywilnego), he asked the court to refer to the Supreme Court (Sąd Najwyższy) the following legal question: “Does the term “a person who has lived with a tenant in de facto marital cohabitation” used in section 8(1) of the 1994 Act also concern a person who has lived in a homosexual cohabitation with a tenant, or only a person living in a heterosexual cohabitation?” 36. Alternatively, the applicant asked the court to refer, under section 3 of the law of 1 August 1997 on the Constitutional Court (ustawa o Trybunale Konstytucyjnym) (“the Constitutional Court Act”), to the Constitutional Court the following legal question: “Is the term “a person who has lived with a tenant in de facto marital cohabitation” referred to in section 8(1) of the 1994 Act – if interpreted as including only de facto marital cohabitation of a woman and a man – compatible with Articles 32 § 2 and 75 of the Constitution and Article 14 of the European Convention of Human Rights?” 37. As regards the principal grounds for the appeal, the applicant argued that the District Court had failed to establish the facts of the case properly, in particular because it had concluded that he and T.B. had stopped running their common household one and a half years before the latter's death solely on the basis of his incomplete testimony and had refused to admit evidence from the witnesses proposed by him in order to clarify the circumstances of the case.", "He also alleged a breach of the substantive civil law consisting in an erroneous interpretation of the term “a person who ha[d] lived with a tenant in de facto marital cohabitation” as relating solely to cohabitation of a man and a woman. 38. On 1 June 2001 the Szczecin Regional Court heard, and dismissed the appeal. It considered that the lower court had correctly held that the applicant had failed to meet the requirements laid down in section 8(1) of the 1994 Law. The reasoning, in so far as relevant, read as follows: “In the case under consideration the applicant derived his entitlement to succession of the tenancy from his stable homosexual relationship with the tenant.", "For this reason, the determination of the scope of the term “a person who has lived with a tenant in de facto marital cohabitation” was of crucial importance for the determination of the claim. In contrast to what has been argued in the appeal, the District Court correctly interpreted the above-mentioned term. This court shares the opinion stated in the reasoning of the impugned judgment that the legal regulation in section 8(1) of the 1994 Act concerns persons remaining in a de facto marital relationship, i.e. an actual relationship of different sex persons with stable physical, emotional and economic ties, imitating a marriage. The appellant is not right in saying that the scope of the above-mentioned provision encompasses also homosexual relationships.", "According to an opinion commonly accepted in our legal writing and case-law ..., de facto marital cohabitation takes place only if a woman and a man cohabit together. It must be stressed that a de facto marital relationship differs from a marriage only by lack of its legitimisation. For this reason, the subjects actually remaining in marital cohabitation can only be persons who, under Polish law, are eligible for marriage. Pursuant to Article 1 § 1 of the Family and Custody Code, the fundamental principle of the family in Poland is the difference in sex of a prospective nuptial couple (nupturienci), which means that contracting a marriage between persons of the same sex is inadmissible. Having regard to the fact that de facto cohabitation constitutes a substitute for a marriage, one must consider that its subjects can exclusively be a woman and a man.", "While the appellant is right in saying that in the European legal writing the concept of de facto marital cohabitation also encompasses homosexual relationships ..., according to the general construction rules, legal concepts should be given the meaning that they have in our legal system. Polish law does not recognise relationships of same-sex persons. For this reason, where a legal provision (in this case section 8(1) of the 1994 Act) entails legal consequences on account of remaining in a de facto marital relationship, it does not concern partners having homosexual relations, even if they have stable emotional, physical and economic ties. Contrary to what is being argued in the appeal, the above legal solution does not infringe the constitutional principle of equality before the law, which does not have an absolute character and exceptions to which may be justified by the need to protect other rights. Indeed, Article 18 of the Constitution ... clearly states that “marriage, being a union of a man and a woman, as well as the family ... shall be placed under the protection and care of the Republic of Poland”.", "The above-mentioned provision creates the constitutional principle of the protection for the family founded on a union of a woman and a man. Provisions of the international treaties ratified by Poland, i.e. Article 12 of the European Convention of Human Rights and Article 23 of the International Covenant of Civil and Political Rights ..., which ensure legal protection only in respect of heterosexual relations, correspond to the regulations in the Polish legal system. In conclusion, the District Court rightly held that the applicant did not belong to the group of persons entitled to succeed to a tenancy referred to in section 8 of the 1994 Act. In the circumstances, it was unnecessary to take evidence in order to establish whether the applicant had indeed remained in cohabitation with the tenant and whether other conditions for succession to the tenancy had been satisfied.", "For this reason, the arguments [concerning the refusal to take evidence from witnesses and the alleged errors of fact] are unfounded. ... In view of the foregoing, the appeal should be dismissed. ...” 39. A cassation appeal to the Supreme Court was not available in this case.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. Succession to the right to lease a flat 40. Section 8(1) of the 1994 Act read: “1. In the event of a tenant's death, his or her descendants, ascendants, adult siblings, adoptive parents or adopted children or a person who has lived with a tenant in de facto marital cohabitation, shall, on condition that they lived in the tenant's household until his or her death, succeed to the tenancy agreement and acquire the tenant's rights and obligations connected with [the lease of] the flat, unless they relinquish that right to the landlord.", "This provision shall not apply to persons who, when the [original] tenant died, had title to another residential dwelling. 2. In cases where there is no successor to the tenancy agreement, or where the successors have relinquished their right, the lease shall expire.” 41. The 1994 Act was repealed on 10 July 2001. Since then, the rules governing succession to lease have been included in the Civil Code (Kodeks cywilny).", "Pursuant to section 26(12) of the 2001 Act, a new Article 691 was introduced into the Civil Code. Article 691, as applicable from 10 July 2001, reads, in so far as relevant, as follows: “1. In the event of a tenant's death, his or her spouse (if he or she is not a co‑tenant), his or her and his or her spouse's children, other persons in respect of whom the tenant had maintenance obligations and a person who has lived in de facto cohabitation with the tenant shall succeed to the tenancy agreement.” B. Family law 42. Article 1 § 1 of the Family and Custody Code (Kodeks rodzinny i opiekuńczy) states: “A marriage shall be contracted when a man and a woman simultaneously present have declared before the Registrar of the Civil Status Office that they marry each other.” C. Bill on same-sex registered partnerships 43.", "In 2003 a group of 36 senators submitted a bill on same-sex registered partnerships to the Polish Senate (Senat). According to the bill, entering into a registered partnership was to create rights similar to those flowing from a marriage in respect of succession, health and social insurance and taxation. Following a long debate and having aroused considerable controversy over most of its provisions, the bill was eventually referred to Sejm at the end of 2004. It did not have any follow-up in Sejm, which had not started its reading before the dissolution of Parliament in connection with general elections held in 2005. Since then, there have been no further similar legislative initiatives in Parliament.", "D. Constitutional provisions 44. Article 18 of the Constitution, which refers to marriage, states: “Marriage being a union of a man and a woman, as well as the family, motherhood and parenthood shall be placed under the protection and care of the Republic of Poland.” 45. Article 32 of the Constitution, which lays down the principles of equality before the law and non-discrimination, reads as follows: “1. All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities.", "2. No one shall be discriminated against in political, social or economic life for any reason whatsoever.” 46. Article 75 of the Constitution, which refers to the State's housing policy, states the following: “1. Public authorities shall pursue policies conducive to satisfying the housing needs of citizens, in particular combating homelessness, promoting the development of social housing construction and supporting activities aimed at acquisition of a home by each citizen. 2.", "Protection of the rights of tenants shall be established by statute.” 47. Article 79 of the Constitution, which refers to a constitutional complaint reads, in so far as relevant, as follows: “1. In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Tribunal for its judgment on the conformity to the Constitution of a statute or another normative act upon which basis a court or organ of public administration has made a final decision on his freedoms or rights or on his obligations specified in the Constitution.” E. Constitutional Court's practice 1. Judgment of 1 July 2003 (no. P 31/02) 48.", "In that judgment the Constitutional Court dealt with a legal question submitted by the Środa Śląska District Court (Sąd Rejonowy) in connection with pending proceedings for succession to a tenancy. The question concerned the possible unconstitutionality of the 2001 Act in that, in consequence of the repeal of the 1994 Act and its section 8(1) (see paragraphs 40-41 above), it had introduced a new list of persons entitled to succession to the right to lease after the death of a tenant as laid down in Article 691 § 1 of the Civil Code (see paragraph 41 above). In contrast to the previous regulation, the list no longer included the tenant's grandchildren. The Constitutional Court ruled that the modification under the 2001 Act was compatible with Article 2 (rule of law) and Article 32 (principle of equality before the law and non-discrimination) of the Constitution. 2.", "Judgment of 9 September 2003 (no. SK 28/03) 49. The judgment was given following a constitutional complaint lodged by a certain J.B. and D.Cz., alleging that section 8(1) of the 1994 Act had been incompatible with a number of the constitutional provisions, including the principle of social market economy, protection of property rights, equality before the law, prohibition of discrimination, protection of succession rights and the protection of the rights of tenants. The applicants maintained, among other things, that the impugned section was in breach of the aforementioned provisions because it excluded from succession to a tenancy descendants of the late tenant's siblings as well as all other heirs who had title to another residential dwelling which, as a result, restricted their succession rights in a discriminatory manner. 50.", "The Constitutional Court held that section 8(1) of the 1994 Act, in so far as it operated in the manner contested by the applicants, was compatible with the constitutional provisions invoked by them in support of their complaint. F. Supreme Court's case-law 51. The Supreme Court, in its judgment of 6 December 2007 (no. IV CSK 301/07), dealt with a cassation appeal concerning the division of common property acquired by a same-sex couple. The gist of the ruling concerns the rules that apply to such property division, which, as the court held, were those provisions of the Civil Code that were relevant in the context of the particular relationship.", "They might differ depending on each specific situation, the nature of mutual relations and the organisation of personal and economic matters between the partners. While the court clearly rejected the idea that same-sex relationships could be considered “de facto marital relationships”, it did not exclude that the rules applicable to de facto marital relationships might apply by analogy to a same-sex couple's claims for the division of common property. In that context, the Supreme Court analysed in depth the legal concept of de facto marital relationship and made conclusions that, in so far as relevant, read as follows: “The [principle of the] protection of marriage set forth in Article 18 of the Constitution means that a legally formalised union of a woman and a man remains under the protection and care of the Republic of Poland. The protection of marriage is shown by, among other things, the fact that legal consequences ensuing from marriage shall not apply to other relationships and that any interpretation or application of the law that would lead to equating other forms of cohabitation with marriage is inadmissible. Having regard to the constitutional principle of protection of marriage and to the fact that the lack of legal regulations for extra-marital relationships cannot be considered a lacuna, it is inadmissible to apply provisions of matrimonial law (including matrimonial property and its division) – even by analogy – to other than marriage relationships based on existing personal and economic bonds.", "... Polish law does not include any, either comprehensive or even fragmentary, regulations of extra-marital relationships of a personal and economic nature and, for that reason, they are regarded as legally indifferent factual relationships. ... Given the lack of legal regulations for extra-marital personal and economic relationships, certain rules for defining and treating such relationships – named de facto marital relationships – have been developed in the jurisprudence and legal writing. The criteria for a de facto marital relationship include, as a rule, no formal basis for cohabitation, no limitations on ending the relationship, the stability of the relationship, the existence of community in personal and economic life and different sex of the partners. The concept of de facto marital relationship as developed by the jurisprudence and legal writing considers the difference of sex between the partners as one of its material elements.", "The established tradition, including the semantic tradition, militates against including in the notion of de facto marital relationship unions of same-sex persons modelled on heterosexual unions.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 52. The applicant alleged a breach of his right to a fair hearing guaranteed by Article 6 § 1 of the Convention on account of the fact that in the proceedings for succession to a tenancy the District Court had refused to hear evidence from the witnesses proposed by him in order to determine that he had lived in a particularly close relationship with his late partner. Article 6 § 1, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 53. 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 García Ruiz v. Spain [GC], no.", "30544/96, § 28, ECHR 1999-I, with further references). In the present case the witnesses proposed by the applicant were to be heard in order to establish a “particularly close relationship” between him and the late T.B., a circumstance which the District Court considered conclusively proved on the basis of evidence given by the applicant himself. This assessment of the evidential value of the applicant's testimony was fully endorsed by the appellate court (see paragraphs 32-33 and 38 above). That being so, the Court concludes that the refusal to hear the witnesses did not affect the fairness of the process of obtaining and evaluation of evidence. Nor did it appear to have infringed the principle of equality of arms.", "Accordingly, the courts did not overstep the margin of appreciation left to them in such matters as admission and assessment of evidence. 54. 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 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 55.", "The applicant further complained under Article 14 taken in conjunction with Article 8 of the Convention that the Polish courts, by denying him the right to succeed to a tenancy after the death of his partner, had discriminated against him on the ground of his homosexual orientation. Article 14 reads: “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 8 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.” A. Admissibility 56.", "The Government made four preliminary objections. They first argued that the complaint was incompatible ratione personae with the provisions of the Convention because the applicant could not claim to be a victim for the purposes of Article 34. Second, they maintained that he had not complied with the six-month rule laid down in Article 35 § 1. The third objection concerned his non-compliance with the rule of exhaustion of domestic remedies. Fourth, they submitted that, in any event, the complaint was incompatible ratione materiae with the provisions of the Convention since Article 14 did not apply in the case.", "1. The Government's objection on compatibility ratione personae (a) The Government 57. The Government submitted that the applicant could not be considered a “victim” for the purposes of Article 34 of the Convention because he had not suffered discrimination on the ground of his sexual orientation. In particular, he had not demonstrated that he had indeed been treated less favourably than other persons in an analogous situation. The domestic courts had based their decisions on the objective prerequisite, namely the fact that the applicant had not met the basic condition laid down in section 8(1) of the 1994 Act since he had not resided permanently with the statutory tenant until his death.", "The same condition – which, as such, could not be regarded as unreasonable or unjustified – would have been applied to all individuals, regardless of their sexual orientation. In sum, the complaint should be rejected as being incompatible ratione personae with the Convention. (b) The applicant 58. The applicant disagreed and maintained that he had been personally and directly affected by discrimination related to his relationship with a same-sex partner and his sexual orientation. The Government, he added, seemed to refer to, and to base their arguments exclusively on, other proceedings, not those complained of.", "It was evident that in the proceedings for succession to a tenancy the courts had rejected his claim on the sole basis that he had had a homosexual relationship with the late T.B. This, in their view, had automatically excluded him from the circle of persons entitled to succession, regardless of whether or not he had met other statutory conditions. (c) The Court's assessment 59. The Court observes that the issue of whether or not the applicant suffered discrimination on the ground of his homosexual orientation is inseparably linked with its assessment of whether the requirements of Article 14 have been respected in the particular circumstances of the case. It accordingly joins the Government's plea of inadmissibility on the ground of incompatibility ratione personae to the merits of the complaint.", "2. The Government's objection on compliance with the six-month rule (a) The Government 60. The Government also maintained that the complaint should be rejected for non-compliance with the six-month rule laid down in Article 35 § 1 of the Convention. They drew the Court's attention to the fact that the final decision in the proceedings for succession to the disputed tenancy had been given by the Szczecin Regional Court on 1 June 2001, whereas the application had been lodged with the Court on 18 December 2001, that is to say, outside the relevant time-limit. (b) The applicant 61.", "The applicant replied that his counsel had filed a formal complaint on his behalf with the Strasbourg Court already on 23 August 2001 and had been later instructed by the Registry to supplement it within six weeks. The Registry had also advised him that the failure to do so might affect the running of the six-month term laid down in Article 35 § 1 of the Convention. He had observed the deadline and, on 18 December 2001, had duly completed an application form that he had received from the Registry. It had been posted on the same day. Accordingly, he had complied with the six-month rule.", "He asked the Court to dismiss the Government's objection as unfounded. (c) The Court's assessment 62. Article 35 § 1 provides, in so far as relevant, as follows: “ The Court may only deal with the matter ... within a period of six months from the date on which the final decision was taken.” (i) Applicable principles 63. The object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see, amongst other authorities, 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, §§ 156 et seq., ECHR 2009-...; and Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000‑I). 64. The final decision for this purpose is that taken in the process of exhaustion of effective domestic remedies which exist in respect of the applicant's complaints (ibid; see also Devine v. the United Kingdom (dec.) no. 35667/02, 1 February 2005; and Chalkley v. the United Kingdom (dec.), no.", "63831/00, 26 September 2002, with further references). In accordance with the established practice, the Court considers the date of the introduction of an application to be the date of the first letter indicating an intention to lodge an application and giving some indication of the nature of the application. However, where a substantial interval follows before an applicant submits further information about his proposed application or before he returns the application form, the Court may examine the particular circumstances of the case to determine what date should be regarded as the date of introduction with a view to calculating the running of the six month period imposed by Article 35 of the Convention (see Chalkley, cited above). (ii) Application of the above principles in the present case 65. In the present case the first letter from the applicant was dated 23 August 2001.", "As shown by the postmark on the envelope contained in the case file, it was sent to the Court on the same day by registered mail. In that letter, with which copies of the judgments given in the impugned proceedings were enclosed, the applicant summarised the course of the trial and clearly expressed his intention to lodge an application with the Court in this connection. While he initially relied on Article 6 of the Convention only, he submitted, among other things, that in consequence of the domestic courts' judgments “he had been openly discriminated against on the ground of his sexual preferences”. 66. On 19 November 2001 the Registry sent a letter to the applicant, asking him to fill in a Court's application form and to inform the Court whether he had lodged a constitutional complaint.", "He was given a six-week time-limit for that purpose and advised that the delay might affect the introduction date of the application. On 18 December 2001 the applicant filed the application form, invoking Article 6 and Article 14 of the Convention and adding that he had not made a complaint to the Constitutional Court. He posted it on the same day, without any delay. It was received at the Registry on 3 January 2002. 67.", "That being so, the Court concludes that the applicant complied with the six-month term laid down in Article 35 § 1 and that the Government's objection should be dismissed. 3. The Government's objection on exhaustion of domestic remedies (a) The Government 68. The Government next pleaded that the complaint should be rejected for non-exhaustion of domestic remedies since the applicant had failed to lodge a constitutional complaint under Article 79 § 1 of the Constitution, a remedy which had been available to him at the date of lodging his application with the Court. In support of their contention, the Government submitted that the issue of the constitutionality of section 8(1) of the 1994 Act – which had been the legal basis for the domestic judgments rejecting the applicant's action for succession to the tenancy – had been examined by the Constitutional Court in two relevant cases that had concerned the categories of persons entitled to succession to a tenancy.", "In the first of those judgments, delivered on 1 July 2003 (no. P 31/2002), the court found that the exclusion of a tenant's grandson from succession to a tenancy had not infringed the Constitution (see also paragraph 48 above). In the second, given on 9 September 2003 (no. SK 28/03), the Constitutional Court had held that section 8(1), in so far as it had excluded a tenant's siblings from succession had not been contrary to the Constitution (see also paragraph 49 above). 69.", "In consequence, nothing had prevented the applicant from putting before the Constitutional Court a question concerning an interpretation of the notion of “a person who ha[d] lived with a tenant in de facto cohabitation” if he had indeed considered that the cause for the rejection of his claim had been the national court's wrong interpretation of section 8(1) of the 1994 Act, not the fact that he had not lived with E.B. until his death. In view of the foregoing, the Government asked the Court to reject the complaint for non-exhaustion of domestic remedies. (b) The applicant 70. The applicant disagreed and argued that the constitutional complaint would not have provided him with the relief required by Article 35 §1 of the Convention.", "First of all, under Polish law, a constitutional complaint was an exceptional remedy. Secondly, its scope of operation was limited to a declaration that a given legal provision was incompatible with the Constitution and, by lodging such a complaint, an individual could not obtain a ruling that his rights or freedoms had been infringed. In consequence, even a successful constitutional complaint could not result in the quashing of the impugned final judgment. In any event, he made an unsuccessful attempt to put the issue of discrimination before the Constitutional Court, asking the appellate court to address a legal question concerning the interpretation of the term “de facto marital cohabitation”. The applicant invited the Court to reject the Governments' objection.", "(c) The Court's assessment 71. Article 35 § 1, in so far as relevant, reads: “ The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...” (i) Applicable principles 72. 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). The aim of the rule is to afford Contracting States an opportunity to put matters right through their own legal system before having to answer before an international body for their acts.", "However, although Article 35 § 1 requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, it does not require that recourse should be had to remedies that are inadequate or ineffective (see Egmez v. Turkey no. 30873/96, ECHR 2000-XII, §§ 65 et seq). Last but not least, Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. This means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see Akdivar and Others, cited above, § 69). (ii) Application of the above principles in the present case 73.", "In the present case the Government, in support of their objection, referred to two judgments of the Constitutional Court concerning the constitutionality of section 8(1) of the 1994 in that it limited the circle of persons entitled to succession to a tenancy, excluding certain relatives of a late tenant and, across the board, persons who had title to another flat. The first ruling originated in a legal question submitted by a civil court, the second in a constitutional complaint. In both cases the provision was found to have been compatible with the Constitution (see paragraphs 48-49 above). 74. The Court cannot speculate whether or not the same conclusion would have been valid in the circumstances of the applicant's case, in which, however, the issue to determine was not a per se exclusion from the circle of statutory successors but an interpretation of a specific legal notion.", "That notion – “a person living with a tenant in de facto marital cohabitation” – was, and apparently still is, continually construed by the Polish courts as covering only heterosexual relationships. Such a continuing and established interpretation emerges not only from the reasons given by the civil courts dealing with the applicant's claim at the relevant time but also from firm and unambiguous statements of the Supreme Court in its judgment of 6 December 2007, given nearly six years after the events that gave rise to the present application. In that judgment, the Supreme Court leaves no doubt whatsoever that the term “de facto marital cohabitation” applies exclusively to different-sex couples (see paragraphs 51 above). Considering the general legal and political context relating to same-sex relationships in Poland (see paragraphs 43 and 51 above) the Court is not persuaded that the applicant, by lodging a constitutional complaint formulated as suggested by the Government (see paragraph 69 above) would have indeed succeeded in obtaining an interpretation of the term in question that would have been in a fundamental conflict with the line firmly settled in the Polish jurisprudence and legal writing. 75.", "Be it as it may, there is another aspect of the case that the Government seem to have overlooked, namely the fact that the applicant, in his appeal against the first-instance judgment, sought to obtain an interpretation of the expression “de facto marital cohabitation” by means of a legal question to be put to the Supreme Court (see paragraph 35 above). Alternatively, he asked the Regional Court to obtain a ruling of the Constitutional Court on the issue whether, if that term was to be understood as including solely heterosexual partners, it would be compatible with, inter alia, Article 32 § 2 of the Constitution, prohibiting discrimination (see paragraphs 36 and 70 above). However, both motions were rejected. The Regional Court, although it acknowledged that the interpretation of the term was “of crucial importance for the determination of the claim”, did not see it fit to clarify its meaning and interpreted it on its own in the context of the relevant constitutional provisions (see paragraph 38 above). Accordingly, in the circumstances of the present case it cannot be said that the applicant failed to put the substance of his Convention claim before the domestic authorities as required by Article 35 § 1 (see paragraph 71 above).", "The Government's objection should therefore be rejected. 4. The Government's objection on compatibility ratione materiae (a) The Government 76. The Government further submitted that Article 14 of the Convention did not apply in the case. This provision, as confirmed by the Court on many occasions, did not have an independent existence and could only be invoked in relation to a breach of other rights.", "The applicant relied on Article 14 read together with Article 8. However, the subject-matter of his case, which concerned the right to succeed to a tenancy, did not come within the ambit of Article 8 § 1 which referred to four elements: “private life”, “family life”, “home” and “correspondence”. 77. In that context, the Government heavily relied on the findings made by the national courts in the proceedings for eviction (see paragraphs 24-28 above). They stressed that it had been established that T.B.", "had rented the flat from the Szczecin Municipality and that the applicant had sublet one room in the flat. The witnesses had confirmed before the District Court that T.B. and the applicant had had a tense relationship and had often argued. The former had even applied for the applicant's name as a permanent resident of the flat to be struck out of the residents' register and had wanted to evict the applicant from the flat. They had stopped running a common household some one and a half years before T.B's death.", "The applicant had not organised his funeral. 78. On these facts, the Government concluded that the applicant and T.B had not been in any close relationship that could have been regarded as a form of “family life”. They had not even kept the same household and the applicant had moved to the flat after T.B. 's death.", "In fact, the applicant had made an attempt to succeed to the lease of another flat, at J. street, after the death of the statutory tenant E.B., claiming that he had been in de facto marital cohabitation with the latter. This, in the Government's view, excluded the possibility of his being in the same kind of relationship with T.B. 79. The relationship between the applicant and T.B. had been of a merely contractual nature as it had been based on the sublease agreement that they had concluded and, in consequence, had had no elements of “private life” within the meaning of Article 8 of the Convention; thus, this provision could not be read as protecting relations between landlords and tenants.", "Nor could the applicant claim under Article 8 the protection afforded by this provision to “home” as defined by the Court. Relying on the Commission's case-law, in particular the case of Gillow v. the United Kingdom (no. 9063/80; Commission's decision of 9 December 1982, D.R. 31, p. 76), the Government stressed that even if a person owned a house, this fact was not in itself sufficient to regard it as a “home” for the purposes of Article 8 if in reality he had never lived there. In the eviction proceedings the applicant had stated he had lived at J. street and had left that flat only in June 1998, when an eviction order against him had been enforced.", "80. Concluding that the applicant's claim about discrimination did not fall within the catalogue of rights guaranteed by Article 8 and lacked the necessary link with any other substantive Convention provision, the Government invited the Court to find that Article inapplicable and to reject the complaint as being incompatible ratione materiae with the provisions of the Convention. (b) The applicant 81. The applicant opposed that argument, maintaining that the circumstances of his case fell within the scope of Article 8 of the Convention. He stressed that the Government had again failed to argue the case on the basis of the facts giving rise to his application.", "Instead, they referred to the other proceedings, which had had no relation to his complaint about discrimination in the sphere of his private life. In the proceedings complained of the courts had not considered the circumstances examined in other cases but had focused on only one issue, i.e. the fact that he had remained in a homosexual relationship with T.B. In their opinion, this had been sufficient to exclude him from succession to a tenancy, regardless of whether or not he had met other statutory conditions. Compliance with those other conditions, as the courts had held, had not needed to be examined.", "The applicant asked the Court to reject the Government's objection. (c) The Court's assessment (i) Applicable principles 82. Article 14 only complements the other substantive provisions of the Convention and its Protocols. It has no independent existence, since it has effect solely in relation to the “rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of one or more of such provisions, and to this extent it is autonomous, there can be no room for its application unless the facts of the case fall within the ambit of one or more of the latter (see, among many other authorities, Odièvre v. France [GC], no.", "42326/98, § 54, ECHR 2003-III; and Karner v. Austria [GC], no. 40016/98, § 32, ECHR 2003-IX). (ii) Application of the above principles in the present case 83. The Court notes that the applicant's complaint relates to the interpretation and application in his case of the legal term “de facto marital cohabitation” by the Polish courts in a manner resulting in a difference of treatment between heterosexual and homosexual couples in respect of succession to a tenancy after the death of a partner (see paragraphs 29-38, 51 and 55 above). Undoubtedly, sexual orientation, one of most intimate parts of an individual's private life, is protected by Article 8 of the Convention (see Smith and Grady v. the United Kingdom nos.", "33985/96 and 33986/96, §§ 71 and 89, ECHR 1999-VI; S.L. v. Austria no. 45330/99, § 37, ECHR 2003-I; and Salgueiro da Silva Mouta v. Portugal no. 33290/96, §§ 23 and 28, ECHR 1999-IX). 84.", "Furthermore, leaving aside the question whether the applicant, as he maintained, lived in the flat upon T.B. 's death or, as the Government argued, at that time resided elsewhere (see paragraphs 11-13 above), it is uncontested that he was registered by the authorities as a permanent resident of that flat from at least May 1989 and lived there when the succession proceedings were pending (see paragraphs 6, 23 and 38). Accordingly, the facts of the case also relate to the right to respect for his “home” within the meaning of Article 8 (see Karner, cited above, § 33). 85. In view of the foregoing, the Court holds that Article 14 of the Convention applies in the present case and rejects the Government's objection on compatibility ratione materiae.", "It consequently declares the complaint admissible. B. Merits 1. The parties' submissions (a) The applicant 86. The applicant submitted that his homosexual orientation had been the single ground on which he had been denied the right to succeed to the tenancy of the flat in which he had lived with the late T.B.", "He had been refused the status of a person who had remained in actual marital cohabitation only because they had formed a same-sex couple. In contrast to heterosexual common-law partners, who could at the material time enjoy the right to succeed to a tenancy, homosexual relationships had been excluded on the basis of the well-established and categorical interpretation of the notion “de facto marital cohabitation” as covering only a different-sex relationship. For that reason, the courts, having established the fact that he and T.B. had remained in a homosexual relationship, had not even given him a chance to prove his compliance with the remaining statutory conditions laid down in section 8(1) of the 1994 Act. 87.", "Referring to the Government's argument that in the eviction proceedings against him he had not mentioned the fact that he had cohabited with the late T.B. but had alleged that he had sublet a room from him (see paragraph 88 below), the applicant stated that such admission on his part could have exposed him to ostracism, mockery and prejudice and for that reason he had preferred not to have his sexual orientation discussed in public. He added that Polish society was not liberal in this area. Furthermore, he stressed that his complaint concerned the manner in which the courts had dealt with his claim for succession to a tenancy, not the other proceedings that the Government chose to use and emphasise before the Court to defend their position. The examination of his case, he added, should be limited to the object of his complaint and not be extended to other issues.", "The applicant concluded that he had been clearly discriminated against on the ground of his sexual orientation and asked the Court to find a violation of Article 14 taken in conjunction with Article 8 of the Convention. (a) The Government 88. The Government began by recalling the findings made by the courts in the proceedings for eviction and the final result of the case. In those proceedings the applicant had based his defence on the fact that he had allegedly sublet a room in T.B. 's flat.", "He had not referred to his sexual orientation and homosexual cohabitation with T.B. On 2 June 2000 the District Court had upheld the judgment in default and the applicant had been ordered to vacate the flat. Having learnt about the negative outcome of the proceedings, he had decided to change the line of his arguments and, consequently, in his particulars of claim of 14 July 2000, he had begun to assert that he had cohabited with T.B. and that they had run a common household for many years. 89.", "Turning to the proceedings complained of, the Government referred to the statutory conditions for succession to a lease laid down in section 8(1) of the 1994 Act and stressed that a close relationship with a tenant by blood relation, adoption or de facto marital cohabitation had been one of four requirements that had had to be fulfilled jointly. The provision had, among other things, in addition required a claimant to prove that he had resided permanently with a tenant until the latter's death. It had been established in the domestic proceedings that the applicant had permanently lived in E.B. 's flat at J. street and that he had only been registered as a permanent resident in T.B. 's flat.", "Hence, the applicant who had not met the condition of permanent residence with T.B. and had not developed any close relationship with him, had not fulfilled the other criteria set out in section 8(1). As a result, his claim had been rejected. The same principles would have been applied to a heterosexual person seeking succession to a lease in such circumstances. Accordingly, the facts of the case did not disclose any element of discrimination against the applicant.", "90. The Government next referred to the case of Karner v. Austria (cited in paragraph 82 above), expressing the view that that judgment was of no relevance for the applicant's complaint since it was based on entirely different circumstances from those in the present case. First, in contrast to the applicant, Mr Karner had lived with his partner, had had a homosexual relationship with him and they had run a common household. Second, Mr Karner's life had been concentrated in his partner's flat; in consequence, he could justifiably seek protection of his “home” under Article 8 of the Convention. The applicant, on the other hand, had claimed that his life had been centred on E.B.", "'s, not T.B. 's flat. Thirdly, in the Karner case the applicant's succession claim had not been recognised even though he had met all the statutory conditions, whereas the applicant in the instant case had failed to comply with the relevant prerequisites because he had not lived with T.B. until the latter's death and their relationship had not had the features of de facto marital cohabitation. In conclusion, the Government asked the Court to find that there had been no discrimination in the present case and, consequently, no violation of Article 14 taken in conjunction with Article 8 of the Convention.", "2. The Court's assessment (a) Principles deriving from the Court's case-law 91. In the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations (see, among many other authorities, Odièvre, cited above, § 55; Salgueiro Da Silva Mouta, cited above, § 29). Not every difference in treatment will amount to a violation of this provision; thus, Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law. For the purposes of Article 14, it must be established that there is no objective and reasonable justification for the impugned distinction, which means that it does not pursue a “legitimate aim” or that there is no “reasonable proportionality between the means employed and the aim sought to be realised” (see Sheffield and Horsham v. the United Kingdom, 30 July 1998, § 75, Reports of Judgments and Decisions 1998-V; E.B.", "v. France [GC], no. 43546/02, § 91, ECHR 2008-...; and Karner, cited above, § 37). 92. Sexual orientation is a concept covered by Article 14. Furthermore, when the distinction in question operates in this intimate and vulnerable sphere of an individual's private life, particularly weighty reasons need to be advanced before the Court to justify the measure complained of.", "Where a difference of treatment is based on sex or sexual orientation the margin of appreciation afforded to the State is narrow and in such situations the principle of proportionality does not merely require that the measure chosen is in general suited for realising the aim sought but it must also be shown that it was necessary in the circumstances. Indeed, if the reasons advanced for a difference in treatment were based solely on the applicant's sexual orientation, this would amount to discrimination under the Convention (see E.B., cited above, §§ 91 and 93; S.L., cited above, § 37, ECHR 2003-I; Smith and Grady, cited above, §§ 89 and 94; and Karner, cited above, §§ 37 and 41). (b) Application of the above principles in the present case (i) Scope of the case before the Court 93. In their arguments and conclusions concerning the alleged violation of the Convention the parties referred to different proceedings. The Government essentially relied on the findings made by the courts in the proceedings for eviction, pointing out that in that case the applicant had given a different account of his relationship with T.B.", "and of the times at which they had allegedly lived together. They further mentioned a number of inconsistencies in the applicant's testimonies, submitting that in each particular case his statements had varied considerably depending on the claim asserted (see paragraphs 76-80 and 88-90 above). The applicant, for his part, invited the Court to confine its examination of the case to the proceedings for succession to the tenancy at issue, which were the object of his complaint (see paragraphs 58, 81 and 87 above). 94. The Court agrees with the Government that certain statements concerning the nature and duration of the applicant's relationship with T.B.", "and his residence in T.B. 's flat that he made before the domestic courts and administrative authorities in the three separate proceedings described above (see paragraphs 14-38 above) are contradictory or inconsistent. However, it is not the Court's role to replace the national courts in their assessment of evidence in those cases and to determine which parts of the applicant's testimonies in each case should be considered credible and which are questionable or of no evidential value (see paragraph 53 above). The issue before the Court is not which of the trial courts in the two parallel proceedings for eviction and for succession to a tenancy made correct findings of fact and properly evaluated material before it but whether the ruling given on the facts as established in the proceedings complained of respected the standards under Article 14 of the Convention. (ii) Compliance with Article 14 95.", "The ruling of the Szczecin District Court had its legal basis in section 8(1) of the 1994 Act, which is no longer in force (see paragraphs 40-41 above). Pursuant to this provision, a person seeking succession to a tenancy had, among other things, to fulfil the condition of living with the tenant in the same household in a close relationship – such as, for instance, de facto marital cohabitation (see paragraphs 29-38 and 40-41 above). In the Government's submission, the case disclosed no element of discrimination since the applicant's claim was rejected not for reasons related to his sexual orientation but for his non-compliance with the above two statutory conditions. First, the applicant had not lived in T.B. 's household until the latter's death but in another flat, originally let by the late E.B.", "Second, his relationship with T.B. did not have the features of de facto marital cohabitation (see paragraphs 89-90 above). However, having regard to the findings of fact and law made by the District Court and the Regional Court (see paragraphs 33-34 and 38 above), the Court does not accept the Government's contention. 96. To begin with, both courts, in particular the Regional Court, concentrated on only one aspect of the facts as adduced by the applicant in support of his claim, namely on the homosexual nature of his relationship with T.B.", "(see paragraphs 34 and 38 above). It is true that the District Court expressed some doubts as to whether, given the breakdown of the economic ties between them, the relationship had all the features of de facto marital cohabitation understood as a union based on emotional, physical and economic bonds and whether the applicant had indeed lived in the flat (see paragraph 34 above). Nevertheless, it rejected the claim on the ground that under Polish law only a different-sex relationship qualified for de facto marital cohabitation, which excluded same-sex partners from succession to a tenancy (see paragraph 34 above). The Regional Court fully endorsed this view, explaining at length and with reference to the constitutional principle of protection of marriage versus the principle of equality before the law that “Polish law does not recognise relationships of same-sex persons”, “de facto cohabitation takes place only if a woman and a man cohabit together” and that “it does not concern partners having homosexual relations, even if they have stable emotional, physical ties”. It further held that “[i]n the circumstances, it was unnecessary to take evidence in order to establish whether the applicant had indeed remained in cohabitation with the tenant and whether other conditions for succession to the tenancy had been satisfied” (see paragraph 38 above).", "97. In the Court's opinion, the above conclusions clearly show that the Regional Court considered that the principal issue material for the ruling related to the applicant's sexual orientation. In contrast to what the Government argued, the relevant element was not the question of the applicant's residence in the flat or the emotional, economic or other quality of his relationship with T.B but the homosexual nature of that relationship, which per se excluded him from succession. 98. It remains for the Court to determine whether the Polish authorities can be said to have given “objective and reasonable justification” for the impugned distinction in law in respect of same- and different-sex partners, that is to say whether this measure pursued a “legitimate aim” and maintained “reasonable proportionality between the means employed and the aim sought to be realised” (see paragraph 91 above).", "It emerges from the grounds given by the Regional Court that the essential objective of the difference in treatment was to ensure the protection of the family founded on a “union of a man and a woman”, as stipulated in Article 18 of the Polish Constitution (see paragraphs 38 and 44 above). The Court accepts that protection of the family in the traditional sense is, in principle, a weighty and legitimate reason which might justify a difference in treatment (see Karner, cited above, § 40, with further references). However, in pursuance of that aim a broad variety of measures might be implemented by the State (ibid). Also, given that the Convention is a living instrument, to be interpreted in the light of present-day conditions (see E.B. cited above, § 92), the State, in its choice of means designed to protect the family and secure, as required by Article 8, respect for family life must necessarily take into account developments in society and changes in the perception of social, civil-status and relational issues, including the fact that there is not just one way or one choice in the sphere of leading and living one's family or private life.", "99. Striking a balance between the protection of the traditional family and the Convention rights of sexual minorities is, by the nature of things, a difficult and delicate exercise, which may require the State to reconcile conflicting views and interests perceived by the parties concerned as being in fundamental opposition. Nevertheless, having regard to the State's narrow margin of appreciation in adopting measures that result in a difference based on sexual orientation (see paragraph 92 above), a blanket exclusion of persons living in a homosexual relationship from succession to a tenancy cannot be accepted by the Court as necessary for the protection of the family viewed in its traditional sense (see Karner, cited above, § 41). Nor have any convincing or compelling reasons been advanced by the Polish Government to justify the distinction in treatment of heterosexual and homosexual partners at the material time. Moreover, the fact that the provision which shortly afterwards replaced section 8(1) removed the difference between “marital” and other forms of cohabitation (see paragraphs 40-41 above) confirms that no such reasons were found to maintain the previous regulation.", "In view of the foregoing, the Court finds that the Polish authorities, in rejecting the applicant's claim on grounds related to the homosexual nature of his relationship with T.B. failed to maintain a reasonable relationship of proportionality between the aim sought and the means employed. The impugned distinction was not, therefore, compatible with the standards under the Convention. The Court accordingly rejects the Government's objection regarding the applicant's victim status and holds that there has been a violation of Article 14 taken in conjunction with Article 8 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 100. 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 101. The applicant claimed 16,790.53 Polish zlotys (PLN) in respect of pecuniary damage. This sum included arrears in rent for the late T.B's flat due for 1996-1998 which he had paid and costs of the renovation of the flat incurred at various times between 1998 and 2007.", "Under the head of non-pecuniary damage the applicant claimed 20,000 PLN for mental suffering arising from the discriminatory treatment to which he had been subjected. 102. The Government did not make any comments on the applicant's claims. 103. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.", "As regards non-pecuniary damage, the Court considers that, in the particular circumstances of the case described above, it is sufficiently compensated by the finding of the violation of the Convention and makes no award under this head. B. Costs and expenses 104. The applicant also claimed PLN 4,552 for the costs and expenses incurred before the domestic courts and in the proceedings before the Court. The applicant stated that he had no bills or invoices relating to the above expenses but maintained that they had been incurred and that the amount was moderate.", "105. The Government did not make any submissions in this regard. 106. 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 fact that the applicant failed to produce any documents showing that the sums claimed had been incurred, the Court rejects the claim for costs and expenses in its entirety.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Joins to the merits the Government's preliminary objection on victim status; 2. Declares the complaint concerning the alleged breach of Article 14 taken in conjunction with Article 8 admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 14 taken in conjunction with Article 8 of the Convention and dismisses the above-mentioned preliminary objection; 4. Holds that the finding of violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant; 5.", "Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 2 March 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident" ]

[ "SECOND SECTION CASE OF ZARKOV v. SERBIA (Applications nos. 65437/10 and 65443/10) JUDGMENT STRASBOURG 10 December 2013 This judgment is final but it may be subject to editorial revision. In the case of Zarkov v. Serbia, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Paulo Pinto de Albuquerque, President,Dragoljub Popović,Helen Keller, judges, and Seçkin Erel, Acting Deputy Section Registrar, Having deliberated in private on 19 November 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos. 65437/10 and 65443/10) against the Republic of Serbia both lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Serbian national, Mr Ljupčo Zarkov (“the applicant”), on 21 October 2010.", "2. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić. 3. On 15 November 2011 the applications were communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE A. Introduction 4. The applicant was born in 1958 and lives in Bosilegrad. 5. The applicant was employed by HK.PK.", "Yumco a.d., a socially/State-owned company based in Vranje (hereinafter – “the debtor”). B. First set of proceedings (as regards the application no. 65437/10) 6. On 6 March 2007 the Bosilegrad Municipal Court ruled in favour of the applicant and ordered the debtor to pay him: (a) salary arrears in the amount of 70,387.12 Serbian dinars (RSD),[1] plus statutory interest; and (b) RSD 6,262.50[2] for his legal costs.", "7. On 29 March 2007 the judgment became final. 8. On 19 March 2008 the applicant lodged an application for the enforcement of the above judgment before the Vranje Municipal Court, proposing that it be carried out by means of a bank transfer. 9.", "On 24 March 2008 the court allowed the application and issued an enforcement order. 10. On 10 August 2010 the applicant lodged a constitutional appeal. 11. According to the material in the Court’s possession, the case is still pending before the Constitutional Court.", "C. Second set of proceedings (as regards the application no. 65443/10) 12. On 30 May 2007 the Bosilegrad Municipal Court ruled in favour of the applicant and ordered the debtor to pay him: (a) salary arrears in the total amount of RSD 28,024[3], plus statutory interest; (b) employee meal benefits (naknada za ishranu na radu) in the amount of RSD 18,900.40[4], plus statutory interest; (c) holiday pay in the amount of RSD 5,373,33[5], plus statutory interest; (d) RSD 5,088[6] for his legal costs; and (e) the pension and disability insurance contributions due for the period 1 January 2004 to 7 June 2004. 13. On 14 June 2007 the judgment became final.", "14. On 19 March 2008 the applicant lodged an application for the enforcement of the above judgment before the Vranje Municipal Court, proposing that it be carried out by means of a bank transfer. 15. On 24 March 2008 the court allowed the application and issued an enforcement order. 16.", "On 10 August 2010 the applicant lodged a constitutional appeal. 17. On 3 April 2013 the Constitutional Court held that the applicant’s “right to trial within reasonable time” was violated and ordered the Vranje Municipal Court and National Bank of Serbia to enforce the final judgment at issue as soon as possible. II. RELEVANT DOMESTIC LAW 18.", "The relevant domestic law was set out in the Court’s judgments of EVT Company v. Serbia (no. 3102/05, §§ 26 and 27, 21 June 2007); Marčić and Others v. Serbia (no. 17556/05, § 29, 30 October 2007); R. Kačapor and Others v. Serbia (nos. 2269/06, 3041/06, 3042/06, 3043/06, 3045/06 and 3046/06, §§ 57-82, 15 January 2008,); Vlahović v. Serbia (no. 42619/04, §§ 37-47, 16 December 2008); Crnišanin and Others v. Serbia (nos.", "35835/05, 43548/05, 43569/05 and 36986/06, §§ 100-104, 13 January 2009,); Adamović v. Serbia, (no. 41703/06, §§ 17-22, 2 October 2012); and Marinković v. Serbia ((dec.) no. 5353/11, §§ 26-29 and §§ 31-44, 29 January 2013). THE LAW I. JOINDER OF THE APPLICATIONS 19. The Court considers that, in accordance, with Rule 42 § 1 of the Rules of the Court, the applications should be joined, given their common factual and legal background.", "II. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 20. The applicant complained about the respondent State’s failure to enforce two final judgments rendered in his favour against the debtor and about the lack of an effective remedy in this connection. He relied on Articles 6 and 13 of the Convention and Article 1 of Protocol No.", "1 which, 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 and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 21. On 20 May 2013, the Government informed the Court that on 3 April 2013 the Constitutional Court had found a violation of the applicant’s right to a hearing within a reasonable time in respect of the length of the enforcement proceedings at issue in the application no.", "65443/10. In view of that, the Government concluded that the applicant had lost victim status. 22. According to the Court’s settled case-law, a decision or measure favorable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged the breach and afforded redress for it. It is further recalled that redress afforded by the national authorities must be appropriate and sufficient (see Kudić v. Bosnia and Herzegovina, no.", "28971/05, § 17, 9 December 2008). 23. As the Court has already said, in a case such as that of the applicant’s, comprehensive constitutional redress, in addition to a finding of a violation where warranted, would have to include compensation for both the pecuniary and the non-pecuniary damage sustained, the former requiring the respondent State to pay, from its own funds, the sums awarded in the final domestic judgments at issue (see Milunović and Čekrlić v. Serbia (dec.), nos. 3716/09 and 38051/09, § 62, 17 May 2011). 24.", "Turning to the present case, it is observed that the final domestic decision of 30 May 2007 has yet to be enforced. It is further observed that the Constitutional Court did not award any compensation for non-pecuniary damage to the applicant and failed to order the State to enforce the final domestic decision at issue from their own funds as required by the Court’s case-law. Therefore, it must be concluded that the applicant did not lose victim status in respect to the application no. 65443/10. 25.", "The Court notes that the applications 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. The case must therefore be declared admissible. B. Merits 26.", "The Government maintained that the applicant was responsible for the non-enforcement as he had failed to use all available procedural steps at his disposal. In particular, he proposed that the enforcement be carried out by means of a bank transfer only. 27. The applicant disagreed. 28.", "The Court reiterates that, in principle, when an applicant, such as the present one, obtains a final judgment against a State-controlled entity, he or she is only required to file a request for the enforcement of that judgment to the competent court or, in case of liquidation or insolvency proceedings against the debtor, to report his or her claims to the administration of the debtor (see R. Kačapor and Others, cited above, §§ 109-112). It is observed that the present applicant sought enforcement of the final judgments rendered in his favour in March 2008 and that they remained unenforced to the present day. 29. The Court further observes that it has frequently found violations of Article 6 of the Convention and/or Article 1 of Protocol No. 1 to the Convention in cases raising issues similar to those raised in the present case (see ibidem, §§ 115-116 and § 120; Crnišanin and Others v. Serbia, cited above, §§ 123-124 and §§ 133-134; Rašković and Milunović v. Serbia, nos.", "1789/07 and 28058/07, §§ 74 and 79, 31 May 2011). 30. 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 cases. There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.", "31. The Court does not find it necessary in the circumstances of this case to examine essentially the same complaint under Article 13 of the Convention (see mutatis mutandis, Kin-Stib and Majkić v. Serbia, no. 12312/05, § 90, 20 April 2010). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 32.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 33. The applicant claimed EUR 3,640 in respect of pecuniary and non-pecuniary damage. 34. The Government maintained that the Court should not order the enforcement of the domestic decisions under consideration in the present case as the applicant had failed to expressly request that.", "35. However, the Court disagrees with the Government. A judgment in which the Court finds a violation of the Convention or of its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found (see Apostol v. Georgia, no.40765/02, §§ 71-73, ECHR 2006-XIV; Marčić and Others v. Serbia, cited above, §§ 64-65; and Pralica v. Bosnia and Herzegovina, no. 38945/05, § 19, 27 January 2009). 36.", "Having regard to its finding in the instant case, and without prejudice to any other measures which may be deemed necessary, the Court considers that the respondent State must secure the enforcement of the final domestic judgments under consideration in this case by way of paying the applicant, from their own funds, the sums awarded in the said final judgments, less any amounts which may have already been paid in respect of the said judgments. 37. In addition, the Court considers that the applicant sustained some non-pecuniary loss arising from the breaches of the Convention found in this case. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court considers it reasonable and equitable to award EUR 2,000 to the applicant. B.", "Costs and expenses 38. The applicant did not submit a claim seeking reimbursement of the costs incurred before the domestic courts and the Court. Accordingly, the Court considers that there is no call to award him any sum on that account. C. Default interest 39. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join applications; 2. Declares the applications admissible; 3. Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention; 4.", "Holds that there is no need to examine the complaint under Article 13 of the Convention; 5. Holds (a) that the respondent State shall, from its own funds and within three months, pay the applicant, the sums awarded in the final judgments under consideration in the present case, less any amounts which may have already been paid on the basis of the said judgments; (b) that the respondent State is to pay the applicant, within the same period, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount which is to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 December 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Seçkin Erel Paulo Pinto de AlbuquerqueActing Deputy RegistrarPresident [1] Approximately 880 euros (EUR) [2] Approximately EUR 76 [3] Approximately EUR 354 [4] Approximately EUR 249 [5] Approximately EUR 68 [6] Approximately EUR 64" ]

[ "FIRST SECTION CASE OF KOMAROVA v. RUSSIA (Application no. 19126/02) 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 Komarova 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,MrsE. Steiner,MrK.", "Hajiyev, 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. 19126/02) 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, Ms Nadezhda Nikolayevna Komarova (“the applicant”), on 10 April 2002. 2. The applicant was represented by Ms E. O. Belyayeva-Burmistrova, a lawyer practising in the town of Yaroslavl.", "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 1 March 2005 the Court decided to communicate the complaint concerning the length of the proceedings to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1955 and lives in Yaroslavl. 5. Between 1991 and 1998 the applicant worked as a senior accountant in the private company Gatchina. 1. Preliminary investigation (a) Opening of the proceedings 6.", "On 2 July 1998 a local police investigator (Заволжский районный отдел внутренних дел г. Ярославля) initiated criminal proceedings on suspicion of misappropriation of the company's assets by some of its employees. 7. On 22 July 1998 an initial interview was held with the applicant in the presence of her counsel. 8. The applicant was formally charged on 24 July 1998.", "(b) The applicant's pre-trial detention and the criminal investigation 9. On 22 July 1998 the applicant was remanded in custody pending the investigation. 10. On 24 and 31 July 1998 an investigator again questioned the applicant. i.", "The applicant's complaints concerning her detention 11. The applicant's repeated complaints concerning her detention were rejected by decision of the Frunzenskiy District Court of the city of Yaroslavl (Фрунзенский районный суд г. Ярославля) on 10 November 1998 and 13 January 1999. The decision of 10 November 1998 was upheld on appeal by the Yaroslavl Regional Court (“the Regional Court” – Ярославский областной суд) on 8 December 1998. 12. On 22 June 1999 the applicant was released on the ground that all the investigative measures had been concluded and on health grounds.", "The investigator imposed a measure of restraint on her in the form of an undertaking not to leave her place of residence. ii. The applicant's medical examinations 13. It appears that while in detention the applicant also repeatedly complained that she was unfit for custody on medical grounds. By decisions dated 14 October 1998 and 1 June 1999 the investigator twice ordered a medical examination of the applicant.", "14. The examinations took place between 23 October and 11 November 1998 and from 7 June to 1 July 1999 respectively, and found the applicant to be in good health. iii. The second criminal case against the applicant 15. On 13 January 1999 the investigator opened a new criminal case against the applicant, this time for alleged fraud.", "The two cases against the applicant were joined. iv. The applicant's access to the case file 16. According to the Government, between 1 July 1999 and 29 March 2000 the applicant had access to the case file and availed herself of that opportunity on eight occasions. 17.", "By decision of 29 March 2000 the proceedings were suspended owing to the applicant's state of health. She underwent in-patient treatment in a hospital. 18. On 17 July 2000 the proceedings resumed. Over the next month the investigator brought similar charges against two other people and ordered a further medical examination of the applicant.", "19. From 15 August 2000 the applicant and the other defendants in the case had access to the case file again. It appears that the other defendants and the applicant's counsel completed their study of the case by 20 and 27 November 2000 respectively. 20. As regards the applicant, she again underwent in‑patient treatment between 16 August and 1 September 2000 and only started to familiarise herself with the case file on 9 October 2000.", "21. On 27 November 2000 the investigator, fearing that the applicant might cause delays in the proceedings, set a deadline of 27 December 2000 for the applicant to familiarise herself with the case file. 22. In January 2001 the deadline was extended until 24 February 2001. (c) Conclusion of the investigation 23.", "On 28 February 2001 the preliminary investigation of the applicant's case was concluded and the bill of indictment was prepared and signed by a local prosecutor. The applicant and two co-defendants were charged with fraud. 24. On 1 March 2001 the case was transferred to the Zavolzhskiy District Court of Yaroslavl (“the District Court” – Заволжский районный суд г. Ярославля) for trial. 2.", "First instance proceedings 25. On 26 April 2001 the applicant submitted to the court a number of documents allegedly confirming her innocence. In response and at the prosecutor's initiative, the court ordered the Centre for Forensic Examinations of the Russian Ministry of Justice to examine the documents with a view to verifying their authenticity. The court also stayed the proceedings in the case pending the outcome of the expert examinations. 26.", "On 27 June 2001 the Centre responded that it was impossible to carry out the expert examinations requested by the court. 27. On 23 August 2001 the court decided to examine the documents with the assistance of a different expert body, the North-Western Regional Centre for Forensic Examinations (“the Centre”). However, on 21 December 2001 the Centre informed the court that, owing to malfunctioning of technical equipment, no examination could take place. 28.", "Having consulted counsel for the defence, the court fixed 20 May 2002 as the date of the next hearing. It appears that the hearing of 20 May 2002 did not take place and that the proceedings were adjourned until 14 August 2002 and then until 27 November 2002. 29. On 27 November 2002 the proceedings resumed. 30.", "By decision of 6 December 2002, taken at the prosecutor's initiative, the court decided again to order an expert examination. However, on 6 May 2003 the Centre again refused and informed the court that no such examination was possible. According to the applicant, the Centre could not carry out that examination because the court had failed to furnish it with the necessary documents in time. 31. On 31 July 2003 the court for the third time requested the Centre to carry out the examination.", "By letter of 27 November 2003 the Centre acceded to the request but asked for further information. It appears that the necessary information was furnished. 32. The court received a completed expert report on 30 July 2004 and scheduled the next hearing for 30 November 2004. On that date the proceedings did not take place because of the judge's involvement in a different set of proceedings.", "The case was adjourned until 6 December 2004. The hearings of 6, 7 and 8 December did not take place owing to the failure of counsel for one of the defendants to attend. 33. The proceedings resumed on 9 December 2004 and lasted until 15 December 2004, when they were interrupted by the illness of a lay assessor. 34.", "The proceedings continued on 12 January 2005 and lasted, with interruptions, until 25 February 2005. On the latter date the court adjourned the hearing first until 14 March 2005 owing to the illness of counsel for one of the defendants and then until 14 April 2005, citing the involvement of counsel for the same defendant in different sets of proceedings. 35. The hearing of 19 April 2005 was adjourned with reference to the need to secure the attendance of some of the witnesses by force. 36.", "On 22 April 2005 the hearings did not take place as the applicant requested that an additional witness be summoned; on 25, 27 and 28 April 2005 the applicant's counsel and one of the defendants failed to appear. 37. On 3 and 11 May 2005 the prosecutor requested that the proceedings be adjourned, referring to a lack of time to prepare for the judicial pleadings stage. The requests were granted. 38.", "On 20 May 2005 the proceedings were adjourned at the applicant's request, as apparently her counsel was ill. 39. It appears that by judgment of 28 July 2005 the District Court convicted the applicant as charged. 3. Appeal proceedings 40. The judgment was quashed on appeal by the Regional Court on 28 October 2005.", "The case was remitted for a fresh examination at first instance. 41. It appears that the case is currently pending before the trial court. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 42.", "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: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 43. The Government contested that argument and submitted that the proceedings had not breached the reasonable-time requirement of Article 6. 44. The applicant maintained her complaints. 45.", "The period to be taken into consideration began on 24 July 1998 when the investigator brought charges against the applicant (see, among many other authorities, Kalashnikov v. Russia, no. 47095/99, § 124, ECHR 2002-VI) and it has not yet ended as the proceedings are still pending before the domestic courts. 46. It follows that the period to be taken into consideration has lasted for over eight years and two months to date. A. Admissibility 47.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 48.", "The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the conduct of the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 49. The Court notes that the case was of some complexity as it concerned charges of embezzlement and fraud allegedly committed by a group of people, including the applicant and two other people.", "However, in the Court's view, the complexity of the case does not suffice, in itself, to account for the length of the proceedings. 50. Nor does it appear that the applicant's conduct contributed substantially to the length of the proceedings or that throughout the proceedings she went beyond the limits of legitimate defence or lodged any frivolous petitions or unsubstantiated requests with the investigator or the courts. In any event, the Court reiterates that Article 6 does not require a person charged with a criminal offence to cooperate actively with the judicial authorities. In particular, applicants cannot be blamed for taking full advantage of the resources afforded by national law in their defence (see Yağcı and Sargın v. Turkey, judgment of 8 June 1995, Series A no.", "319-A, § 66). 51. The Court finds, on the other hand, that many of the delays in the proceedings were occasioned by the acts of the domestic authorities or rather by their failure to act. In this connection it recalls that for eleven months the applicant was kept in custody – a fact which required particular diligence on the part of the courts dealing with the case to administer justice expeditiously (see Kalashnikov v. Russia, cited above, § 132). Furthermore, the Government failed to account for the events in the case from 31 July to 14 October 1998 and from 13 January to 7 June 1999, a period totalling seven months and seven days.", "52. Further delays in the proceedings were due to the trial court's repeated decisions to order expert examinations from the North-Western Regional Centre for Forensic Examinations. The Court finds, and it is not disputed by the Government, that the reason for the Centre's refusal to accede to the trial court's request of 6 December 2002 was the court's own failure to provide the Centre with all the necessary materials. The resulting delay of approximately two years and eleven months between 23 August 2001, when the Centre was first requested to carry out the examination, and 30 July 2004, when the trial court eventually received the completed expert examination, was thus attributable to the domestic authorities. In addition, the Court does not find any convincing explanation in the Government's submissions for the delays of four months and seven days in the proceedings, between 30 July and 6 December 2004.", "Finally, it notes that after more than eight years of proceedings before the investigative authorities and the domestic courts at two instances, the case is currently still pending before the trial court. 53. Having regard to the foregoing, the Court considers that the length of the proceedings does not satisfy the “reasonable time” requirement. Accordingly, there has been a breach of Article 6 § 1 of the Convention. II.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 54. The applicant also complained that the criminal proceedings against her had been unfair. In addition, she alleged that the conditions of her pre‑trial detention had been in breach of Article 3, that the detention itself had been incompatible with Article 5 and that the measure of restraint in the form of an undertaking not to leave her place of residence had been arbitrary and unjustified. 55. Insofar as the applicant is dissatisfied with the criminal proceedings against her, the complaints are premature as the case is still pending before the domestic courts.", "As regards the conditions of her detention and the complaint concerning the lawfulness of that detention, the Court recalls that the applicant's detention ended on 22 June 1999, whilst the present application was lodged on 10 April 2002, that is, more than six months later. It follows that these complaints were introduced out of time. Finally, as to the measure of restraint in the form of an undertaking not to leave her place of residence during the proceedings, the Court recalls that it is not in itself questionable that the State may apply various preventive measures restricting the liberty of an accused, including deprivation of liberty, in order to ensure the efficient conduct of a criminal prosecution. In the Court's view, an obligation not to leave the area of one's residence is a minimally intrusive restriction of liberty (see, mutatis mutandis, Nagy v. Hungary (dec.), no. 6437/02, 6 July 2004).", "Since it does not appear that the applicant actually sought to leave the area of her residence and was refused (see, Fedorov and Fedorova v. Russia, no. 31008/02, §§ 44-46, 13 October 2005) or that the overall duration of that measure – seven years and two months to date – was unjustifiably long (see, by contrast, Luordo v. Italy, no. 32190/96, § 96, ECHR 2003‑IX; Goffi v. Italy, no. 55984/00, § 20, 24 March 2005; and Bassani v. Italy, no. 47778/99, § 24, 11 December 2003), the Court is unable to conclude that the measure in question was arbitrary or otherwise disproportionate.", "56. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Accordingly, this part of the application must be rejected pursuant to Article 35 § 4 of the Convention. III. 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 5,000,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. 59. The Government considered these claims excessive.", "60. The Court does not discern any causal link between the violation found and the amount of pecuniary damage alleged; it therefore rejects this aspect of the claim. However, on an equitable basis, it awards the applicant EUR 4,200 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 61.", "The applicant did not claim reimbursement of her costs and expenses incurred before the domestic authorities and the Court. Accordingly, the Court does not make any award under this head. C. Default interest 62. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaints concerning the excessive length of the proceedings 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 4,200 (four thousand two hundred euros) in respect of non-pecuniary damage to be converted into Russian roubles at the rate applicable on the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 2 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FIRST SECTION CASE OF TULSKAYA v. RUSSIA (Application no. 43715/05) JUDGMENT STRASBOURG 23 October 2008 FINAL 23/01/2009 This judgment may be subject to editorial revision. In the case of Tulskaya v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 2 October 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 43715/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Yelena Aleksandrovna Tulskaya (“the applicant”), on 27 October 2005.", "2. 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 16 January 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 1965 and lives in Borisoglebsk, a town in the Voronezh Region. 5. On 8 December 1999 the Borisoglebsk District Court awarded the applicant 1,563.08 Russian roubles (RUB) in arrears of child benefits against the Regional Authority.", "This judgment became binding on 18 December 1999 but was not enforced immediately. 6. On 25 November 2005 bailiffs credited the judgment debt to the applicant’s account. Unaware of this, on 19 March 2007 the Regional Authority mistakenly paid to the applicant another RUB 3,126 (the judgment debt adjusted for the cost of living). II.", "RELEVANT DOMESTIC LAW 7. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No.", "1 8. The applicant complained under Article 13 of the Convention about the delayed enforcement of the judgment. The Court will consider this complaint under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. Insofar as relevant, these Articles read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” Article 1 of Protocol No.", "1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 9. The Government admitted that there had been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.", "Nevertheless, they argued that the application was abusive, because the applicant had failed to tell the Court that the judgment had been enforced. They also asked to strike the case out of the Court’s list of cases, because the applicant had refused to settle. They considered that the applicant had lost her status as a victim. 10. The applicant maintained her complaint.", "11. As to abuse of the right of application, the Court reiterates that an application may be rejected as abusive if, among other things, it was knowingly based on untrue facts (see Varbanov v Bulgaria, no. 31365/96, § 36, ECHR 2000-X). However, in the circumstances of the present case, the Court cannot discern any deceit on the applicant’s part. 12.", "As to striking out, the Court has earlier refused to strike out cases where applicants refused settlement. The Court will do so in this case too (see, with further references, Svitich v. Russia, no. 39013/05, § 21, 31 July 2007). 13. As to victim status, the Court reiterates that to deprive an applicant of this status, the State must acknowledge a breach of her rights and afford adequate redress (see Amuur v. France, judgment of 25 June 1995, Reports of Judgments and Decisions 1996-III, § 36).", "In the case at hand, the Government did acknowledge a breach of the rights, but provided no redress. The payment of 19 March 2007 cannot be considered as redress, because it was unintentional. 14. 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 15. The Government have admitted that there had been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.", "16. In the circumstances of the previous case, the Court finds no reason to hold otherwise. There has, accordingly, been a violation of these Articles. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 17.", "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 18. In respect of pecuniary damage, the applicant claimed 1,500 euros (EUR). This amount included EUR 1,000 of allegedly underpaid child benefits and EUR 500 of default interest. 19.", "The Government objected to this claim, because the applicant had received the judicial award twice. They also argued that no default interest could have been awarded, because the authorities had not retained the applicant’s money deliberately, and because in any event domestic courts had been better placed to determine the amount to be awarded. 20. The Court rejects this claim. The applicant has received the judgment debt.", "In addition, on 19 March 2007 she received a sum equivalent to two judgment debts. Even though the last payment was inadvertent, the Court estimates that it has covered the applicant’s pecuniary loss. 21. In respect of non-pecuniary damage, the applicant claimed EUR 5,000. 22.", "The Government argued that this claim was excessive and unsubstantiated. 23. The Court accepts that the applicant must have been distressed by the delayed enforcement of the judgment. Making its assessment on an equitable basis, the Court awards EUR 3,000 under this head. B.", "Costs and expenses 24. The applicant also claimed EUR 1,000 for the costs and expenses incurred before the domestic courts and the Court. 25. The Government argued that this claim was excessive and mostly unsubstantiated. 26.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 7 covering costs under all heads. C. Default interest 27. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1; 3. Holds (a) that the respondent State 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 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 7 (seven 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 23 October 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachNina VajićDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF RYDZ v. POLAND (Application no. 13167/02) JUDGMENT STRASBOURG 18 December 2007 FINAL 02/06/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Rydz v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrS.", "Pavlovschi,MrL. Garlicki,MsL. Mijović,MrJ. Šikuta,MrsP. Hirvelä, judges,and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 27 November 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 13167/02) against the Republic of Poland lodged on 1 March 2002 with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr H. Rydz, (“the applicant”). 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.", "3. The applicant alleged that the length of his detention was excessive and that the length of the criminal proceedings in his case exceeded a “reasonable time” within the meaning of the Convention. 4. On 27 March 2006 the President of the Fourth Section of the Court decided to give notice of the application 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 I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1976 and lives in Brzeg. 6. On 14 May 1999 the applicant was arrested on suspicion of having committed multiple gang rape (including statutory rape), of inducing the victims to take intoxicants and of persuading the victims not to inform the police about those crimes.", "7. On 17 May 1999 the applicant was remanded in custody by the Brzeg District Court. The decision was based on a reasonable suspicion, confirmed by testimonies of the victims and of other suspects, that the applicant had committed the offences with which he had been charged, the severity of the sentence he faced and the need to secure the proper conduct of the investigation. The court pointed to a serious risk that the applicant, if not detained, might attempt to influence the co-accused and the victims. 8.", "Subsequently, twelve other persons were charged with participation in the crime and eight of them were remanded in custody. 9. On 22 July 1999 the prosecutor decided to obtain an expert opinion on the mental state of two witnesses, who were minors, and on their ability to appreciate and recollect things they had witnessed. The psychologist submitted his opinions on 6 and 11 October 1999. 10.", "On 5 August 1999 the public prosecutor decided to prolong the investigation. 11. The applicant's detention was extended on 11 August, 5 November and 13 December 1999, 24 May 2000, 12 June and 13 November 2000, 14 March, 27 April, 10 May, 28 June and 7 November 2001, 13 February, 8 May, 13 July and 13 November 2002, 11 February and 8 May 2003. The court found that the grounds for detention on remand were still valid and owing to the fact that the crimes had been committed in co-operation with other persons, there remained a high risk that the applicant might interfere with the course of justice and exert pressure on witnesses and victims. The courts also pointed to the necessity of separating the suspects.", "As the investigation continued, the court stated that there had been exceptional circumstances which precluded the termination of the preparatory proceedings, such as the complexity of the case, the need to obtain further evidence and the multiplicity of plots, accused and charges. The court also found that the applicant's case had not disclosed any of the grounds for release provided for by Article 259 of the Code of Criminal Procedure. 12. On 19 and 29 September 1999 the prosecutor decided to include in the case file the case files of other proceedings conducted against the suspects. 13.", "In October 1999 the public prosecutor ordered expert opinions on the kind of injuries the victims had suffered and whether these might have resulted from the circumstances described by them, and on the ability of the suspects to understand the meaning of their acts and to control their behaviour at the time when the offences had been committed. The opinions were submitted on 6 and 15 October 1999. 14. On 11 October 1999 the Opole Regional Prosecutor charged the applicant, in addition to the previous charges, with participation in an organised criminal gang. 15.", "By decision of 29 October 1999 the investigation was prolonged until 31 December 1999. 16. The preparatory proceedings, during which the prosecutor examined a total of 66 witnesses and obtained over 150 other items of evidence, were closed on 3 December 1999. On the same date the public prosecutor lodged a bill of indictment comprising 59 charges and five victims. The applicant was charged with seven offences: participation in an organised criminal gang, gang rape (including statutory rape) committed with extreme cruelty and in conjunction with deprivation of liberty, and with threatening the victims and persuading them not to inform the police about the crimes.", "17. In 2000 the first-instance court held 11 hearings during which the evidence of the witnesses and defendants was heard: on 26 April, 24 May, 12 June, 10 and 28 July, 31 August, 17 November, 14, 15, 18 and 23 December. Seven other hearings scheduled in 2000 were cancelled or adjourned for reasons not attributable to the court, in particular the absence of the defendants, including the applicant, or their representatives. The court remanded in custody one of the defendants who had failed to appear at a hearing and lifted the detention of another. It also dismissed from his function a legal-aid lawyer who had failed to appear and appointed a new one in his place.", "The court also decided to examine the case against one of the co-accused separately since it was felt that his psychiatric observation could lead to a delay in the proceedings. 18. At the hearing of 24 May 2000 the court prolonged the applicant's detention until 15 November 2000. The court emphasised that the absence of one of the defendants prevented the hearing of the other accused and that detention was the only preventive measure which could in those circumstances secure the proper conduct of the proceedings. 19.", "The hearing scheduled for 30 January 2001 was adjourned in order to have one of the victims heard with the assistance of a psychologist. On 26 February 2001 the psychologist submitted an opinion in which he considered that it was inadvisable to hear the victim, since this would oblige her to re-live her traumatic experience. 20. In 2001 nineteen hearings were held and three had to be adjourned or cancelled because of the illness of a judge, the absence of a witness or the fact that the case file was with the Court of Appeal which was deciding on the prolongation of the detention. The court requested the police to determine the whereabouts of nine witnesses.", "Fines were imposed on eleven absent witnesses. 21. From 11 April 2001 until 10 April 2002 the applicant served a one-year prison sentence imposed in separate proceedings. 22. On 28 June 2001 the Wrocław Court of Appeal prolonged the applicant's detention until 15 November 2001.", "It held that there had been a serious risk that the applicant might try to hinder the proper course of the proceedings. It was proved that two of the defendants had exerted improper pressure on witnesses and thus caused them to alter significantly their versions of the events. The court noted that the case involved thirteen defendants and sixty-six witnesses. Owing to the considerable amount of evidence to be taken, it was inevitable that the proceedings had been prolonged, given the need to ensure that the right to a fair trial was fully respected. At this point the court emphasised that the defendants had been making extensive use of their rights to question witnesses.", "Several witnesses had changed their testimonies and the reading out of their earlier statements had been justified. Almost thirty witnesses remained to be heard at that stage of the proceedings and there was a need to summon further witnesses and to cross-examine them. 23. On 7 November 2001 the Wrocław Court of Appeal prolonged the applicant's detention until 15 February 2002. The court endorsed the reasoning of the first-instance court in the latter's decision of 28 June 2000.", "In addition, it dealt with the length of the proceedings. The court noted that, since June 2000, the first-instance court had held seven hearings and examined ten witnesses. The absence of other witnesses was the major reason for the prolongation of the proceedings; however, the trial court had taken proper measures to speed up the trial. The appellate court also pointed to the fact that the examination of the witnesses had been very time-consuming owing to the complexity of the case and the mental state of the victims. The parties had also requested additional witnesses to be heard.", "24. Three hearings were held in January 2002, despite the absence of some of the defendants at one of the hearings. A number of absent witnesses were ordered to be brought to court. 25. Two further hearings were held in February 2002.", "The third hearing, scheduled for 26 February 2002, had to be adjourned because of the absence of a key witness. The court fixed a time-limit for submission of the parties' motions for evidence. Consequently, the defendants (among them the applicant) made almost twenty applications for the examination and cross-examination of witnesses, the ordering of expert opinions and inspections of the crime scene. 26. On 13 February and 8 May 2002 the Wrocław Court of Appeal decided to prolong the applicant's detention.", "The court held that the considerable length of the proceeding was due to the complexity of the case coupled with the large number of accused and witnesses. The court concluded that the prerequisites for detention provided for by Article 263 § 4 of the Code of Criminal Procedure applied in the particular circumstances of the case. 27. On 5 March 2002 the court held a hearing despite the absence of two defendants. A witness was ordered to come to the hearing.", "The court also obliged the defendants to specify their reasons for requiring the cross-examination of witnesses. 28. Two further hearings were held in March 2002 and four in April 2002. The court dismissed eight motions for evidence, having found them irrelevant for proving the facts alleged. 29.", "From 10 April 2002 until 9 December 2002 the applicant was serving a prison sentence imposed on him in separate proceedings. 30. Up to 31 July 2002 nine hearings had been held during which the court took evidence from further witnesses and an expert. One witness was examined at his place of residence and the testimonies of four other witnesses, who were abroad, were read out. The court dismissed the defendant's request to summon other absent witnesses, having found that their examination would not add anything to the case.", "The police were ordered to determine the whereabouts of two defendants. 31. On 31 July 2002 the Opole Regional Court found the applicant guilty as charged and sentenced him to nine years' imprisonment and a four-year period of deprivation of his civic rights. The time spent in pre-trial detention was deducted from the sentence. All the accused appealed.", "32. On the same date the court prolonged the applicant's detention until 15 November 2002. 33. On 2 June 2003 the Wrocław Court of Appeal upheld the judgment with respect to the applicant. The applicant appealed.", "34. On 14 February 2005 the Wrocław Court of Appeal rejected the applicant's complaint of 25 January 2005 about the excessive length of the proceedings before the Opole Regional Court, finding that it had been lodged after the termination of the proceedings. 35. On 24 February 2005 the applicant lodged a new complaint about the undue length of the proceedings, referring to his application pending before the Court. On 29 April 2005 the Court of Appeal dismissed the complaint as ill-founded.", "The court admitted that the proceedings had lasted a considerable period of time but stated that this fact alone could not lead to the conclusion that the applicant's right to a trial within a reasonable time had been violated. The court examined solely the part of the proceedings conducted before the Opole Regional Court. 36. On 11 March 2005 the Supreme Court dismissed the applicant's cassation appeal. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 37. The relevant domestic law concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other so-called “preventive measures” (środki zapobiegawcze) is 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 August 2006. 38.", "The judgment Bąk v. Poland, no. 7870/04, §§ 38-40, 16 January 2007, addresses more specifically the issue of domestic practice in the area of pre-trial detention and organised crime. 39. For the relevant domestic law and practice concerning the available remedies against excessive length of proceedings, see Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005; Rybczyńscy v. Poland, no.", "3501/02, judgment of 3 October 2006, and Białas v. Poland, no. 69129/01, judgment of 10 October 2006. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 40. The applicant complained that the length of his pre-trial detention had been in breach of Article 5 § 3, which in so far as relevant provides: “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 41. 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. 1.", "Submissions of the parties 42. The Government submitted that the applicant's detention was based cumulatively on all the prerequisites of detention listed in the Code of Criminal Procedure as applicable at the material time. 43. The Government pointed out that the charges against the applicant had concerned several serious sexual crimes which had been committed in co-operation with other persons. Some of the crimes had been committed with extreme cruelty and involved minors.", "The applicant faced a heavy sentence and there existed, in the Government's opinion, a genuine public-interest requirement which, notwithstanding the presumption of innocence, outweighed the rule of respect for individual liberty and justified the applicant's continued detention. They noted that the applicant was eventually sentenced to 9 years' imprisonment and temporary deprivation of his civic rights. 44. The Government also argued that the applicant's detention had been aimed at securing the proper conduct of the investigation as there had been a risk that he would obstruct the proceedings and influence witnesses, in particular since he had been charged (and later sentenced) with threatening the victims. The Government emphasised that the case concerned rape and the victims – women, some of whom were minors – were especially vulnerable to violence and required adequate protection.", "They concluded that only the detention of the main perpetrators could secure the proper conduct of the proceedings since in cases of that kind victims often refrained from reporting the offence. 45. The Government submitted that the above-mentioned circumstances had remained valid during the whole period of the applicant's detention. Moreover, in the course of the proceedings the prolongation of his detention had been justified by the need to extend the scope of the investigation. Further, the Government observed that the courts had stressed on several occasions that it was necessary to prevent the accused from contacting the victims, regard being had to the fact that investigations concerning crimes committed by a group of criminals were especially complex and required the isolation of the alleged perpetrators.", "46. The Government also submitted that the courts did not apply detention on remand automatically but based their decisions on a careful consideration of each individual case and indicated specific investigatory or procedural steps which were to be taken. The courts had decided to release one of the defendants as soon as they had found that the reasons justifying his detention had ceased to persist. 47. The applicant argued that the reasonableness of his detention had not been sufficiently confirmed during the preparatory proceedings and that the length of his detention had been excessive.", "48. As to the complexity of the case, the Government argued that it was very complex. They pointed out that both the prosecutor and the trial court had conducted extensive evidentiary proceedings. In the course of the investigation over 150 applications to hear evidence had been made and a considerable number of witnesses had been interviewed. The Government stated that the hearings of the victims before the court had been very time-consuming and had lasted for many hours.", "Bearing in mind the fear and stress suffered by the victims, the trial court had to show special diligence and patience and to make exceptional efforts in order to obtain detailed and adequate testimonies. The victims were usually heard in the absence of the accused. Even then, obtaining evidence had been extremely difficult. 49. The complexity of the case was, in the Government's opinion, increased by the fact that at the same time other courts had conducted separate proceedings against the applicant and six other defendants and the courts had to co-operate in scheduling the hearings in their cases.", "However, throughout the proceedings hearings had been held regularly and had been fixed at reasonable intervals. Only a few scheduled hearings had had to be cancelled, and on grounds for which the courts could not be held responsible. In the Government's opinion the proceedings had been concluded with reasonable speed and without any undue delays. The courts had also taken proper measures to secure the speedy progress of the proceedings, for example by requesting the police to determine the witnesses' addresses and, if necessary, ordering their appearance; by deciding to examine the case of one of the co-accused separately since the need for his psychiatric observation could have contributed to delays; by imposing fines on absent witnesses; or by detaining one of the defendants who had failed to attend the hearings. 50.", "The applicant disagreed with the Government's opinion and stated that the authorities had failed to display due diligence in dealing with his case. 51. Lastly, the Government concluded that the applicant's pre-trial detention in the present proceedings had lasted from 14 May 1999 until 31 July 2002, when the first-instance court had given its judgment. Meanwhile, the applicant had been serving two prison sentences imposed on him in separate proceedings. He had been imprisoned from 11 April 2001 until 10 April 2002 and from 11 April 2002 until 9 December 2002.", "Therefore, the Government were of the opinion that the applicant had effectively been detained only from 14 May 1999 until 10 April 2001 - that is, for 1 year and eleven months. 52. The applicant argued that the fact that his prison sentence had overlapped with his detention in the present proceedings should have been regarded as a factor which militated in favour of applying a more lenient preventive measure. 2. Principles established under the Court's case-law 53.", "Under the Court's case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among other authorities, W. v. Switzerland, judgment of 26 January 1993, Series A no. 254-A, p. 15, § 30). 54.", "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 facts arguing 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 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 of the established facts mentioned 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 McKay v. the United Kingdom, [GC], no. 543/03, § 43, 6 October 2006). 55.", "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. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy, (no. 26772/95, § 153, ECHR 2000-IV). 3.", "Application of the principles to the circumstances of the present case (a) Period to be taken into consideration 56. The Court considers that the applicant's pre-trial detention can be divided into the two following periods: (a) the first period, lasting from 14 May 1999 until 11 April 2001; (b) the second period, lasting from 12 April 2001 until 31 July 2002 (the date on which the first-instance judgment was given), during which the applicant's detention coincided with the prison sentences imposed in separate criminal proceedings. The Court 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” and that the detention coinciding with detention after conviction in separate criminal proceedings cannot be considered on the same footing as a situation of a person in custody awaiting his trial (see Wemhoff v. Germany, judgment of 27 June 1968, Series A no. 7, pp. 23-24, § 9, B. v. Austria, judgment of 28 March 1990, Series A no.", "175, pp. 14-16, §§ 36-39, Bąk v. Poland, no. 7870/04, judgment of 16 January 2007, § 54). 57. The Court consequently finds that the period to be taken into consideration in the present case lasted from 14 May 1999 until 10 April 2001 and amounted to almost 1 year and 11 months.", "(b) Reasonableness of the length of detention 58. The Court notes that detention pending trial was imposed on the applicant in view of the severity of the charges against him, the fact that he had committed the crime in co-operation with other persons and the risk that he would obstruct the proceedings and exert unlawful pressure on witnesses, in particular since he had been charged with threatening the victims. 59. The Court observes that in their decisions to remand the applicant in custody the judicial authorities relied on the following principal grounds: the reasonable suspicion against the applicant, the serious nature of the offences with which he had been charged, the severity of the penalty to which he was liable, the risk of his influencing the testimonies of witnesses and of the co-accused and the need to obtain extensive evidence (see paragraphs 7, 22 and 23 above). Furthermore, the Government stated that the particular complexity of the case, since it concerned gang rape, was an additional justification for the applicant's detention.", "60. The suspicion that the applicant had committed the offences was confirmed in particular by the testimonies of the victims and the co-accused and initially warranted his detention. Therefore, the only question which remains is whether and when the continuation of his detention ceased to be warranted by “relevant” and “sufficient” reasons. 61. The Court considers that the authorities were faced with the difficult task of determining the facts and the degree of alleged responsibility of each of the defendants.", "In these circumstances, the Court also accepts that the difficulties in obtaining evidence from victims, some of whom were minors, coupled with the existence of a risk of exerting pressure on them by the perpetrators of the rapes, constituted relevant and sufficient grounds for prolonging his detention during the time necessary to complete the investigation, to draw up the bill of indictment and to hear evidence from the victims, the witnesses and the accused. 62. As regards the risk of pressure being brought to bear on witnesses or of the obstruction of the proceedings by other unlawful means, the Court notes that this risk stemmed from the fact that the applicant had been charged with persuading the victims not to report the crimes to the police. In addition, the victims were especially vulnerable to violence and required special protection. The subsequent decisions to prolong the applicant's detention pending trial underlined the fact that these fears were well-founded, since it had been proved that two of the defendants had exerted pressure on witnesses and caused them to alter significantly their version of events (see paragraph 22 above).", "The Court accepts that, in the special circumstances of the case, the risk of collusion actually existed and justified holding the applicant in custody for the relevant period. 63. It must be noted that the domestic courts when ordering the prolongation of the applicant's remand referred to the continuing need for that measure and did not merely rely on the grounds previously given (see paragraphs 11, 18, 22 and 26 above). 64. 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 period at issue.", "That being said, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the criminal proceedings against the applicant. 65. In assessing the conduct of the authorities in the present case, the Court will take into account the special circumstances deriving from the fact that it concerned charges of rape committed by a group of criminals. 66. The Court observes that the applicant was convicted on 31 July 2002.", "The case was of considerable complexity, regard being had to the number of defendants, the need to separate them during the extensive evidentiary proceedings and to implement special measures required by the victims' vulnerability. Nevertheless, the hearings in the applicant's case were held regularly and at short intervals. The courts also took proper measures to ensure the speedy progress of the proceedings (see paragraphs 17, 20, 24 and 27 above). The Court further notes that the trial court took all necessary steps to resolve difficulties in hearing witnesses in the course of the proceedings and applied adequate measures to discipline them. It decided to examine the charges against one of the accused in separate proceedings, having considered that it would contribute to a prompt examination of the case (see paragraph 17 above).", "The Court therefore concludes that the national authorities displayed special diligence in the conduct of the proceedings. The length of the investigation and of the trial was justified by the exceptional complexity of the case. It should not be overlooked that, while an accused person in detention is entitled to have his case given priority and conducted with particular expedition, this must not stand in the way of the efforts of the judges to clarify fully the facts in issue, to provide both the defence and the prosecution with all necessary facilities for putting forward their evidence and stating their case and to give judgment only after careful reflection on whether the offences were in fact committed and on the sentence to be imposed. 67. Having regard to the foregoing, the Court considers that there has been no violation of Article 5 § 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 68. The applicant complained of a violation of his right to a trial within a reasonable time. He relied on Article 6 § 1 of the Convention, which in so far as relevant provides: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 69. The Government admitted that the applicant had exhausted remedies available under Polish law.", "70. The Court notes that the applicant could not avail himself of any remedy with respect to the pre-trial proceedings, such proceedings not being covered by the 2004 Act. 71. The Court further notes that the applicant filed an unsuccessful complaint under the 2004 Act on 24 February 2005 about the length of the proceedings before the Opole Regional Court. The Wrocław Court of Appeal examined the conduct of the proceedings before the Opole Regional Court from 3 December 1999 (the date on which the bill of indictment was submitted to the trial court) to 31 July 2002.", "It dismissed the complaint on the ground that the proceedings had not lasted an unreasonable time. 72. The Court can but note that it would have been open to the applicant to use the 2004 Act with respect to the length of proceedings before the Court of Appeal or the cassation proceedings before the Supreme Court (see Becova v. Slovakia, no. 23788/06 (dec).). The Court observes that the domestic courts should have the possibility under the 2004 Act to examine the conduct of the proceedings before all judicial instances which dealt with the case.", "However, in the present case the Government have not pleaded the applicant's failure to exhaust the 2004 remedy with respect to the phase of the proceedings after 31 July 2002 and it is not for the Court to consider this matter of its own motion (see Urbanczyk v. Poland, no. 33777/96 (dec).). It follows that this part of the complaint cannot be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. 73. Having regard to the above considerations, the Court concludes that that the complaint about the length of the proceedings 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 of the parties 74.", "The Government submitted that in the particular circumstances of the applicant's case there had been no violation of Article 6 § 1 of the Convention. They repeated the submissions they had made with regard to the allegedly unreasonable length of the applicant's detention (see paragraphs 47-49 above) and argued that the case had been very complex. They recalled that the case had concerned multiple charges of gang rape (including statutory rape) committed with extreme cruelty and in conjunction with deprivation of liberty, and that the perpetrators had threatened the victims and attempted to exert pressure on them not to inform the police about the crimes. 75. As to the conduct of the domestic authorities, the Government further argued that, regardless of the total length of the proceedings, there had been no delays attributable to the State.", "The proceedings had been concluded swiftly and the judicial authorities had shown due diligence in ensuring their proper conduct. 76. As to the conduct of the applicant, the Government were of the opinion that he had significantly contributed to the length of the proceedings. In particular, the applicant and other defendants had lodged various applications and appeals, which had to be dismissed on several occasions owing to their irrelevance or lack of justification. The Government argued, relying on Malicka-Wąsowska v. Poland ((dec.), no.", "41413/98, 5 April 2001), that in exercising his procedural rights, the applicant must have been aware that such applications and appeals might contribute to delays in the proceedings. 77. The applicant contested these arguments and argued that the length of the proceedings had been excessive. 2. The Court's assessment (a) Period to be taken into consideration 78.", "Having regard to its considerations set out in paragraphs 70-72, the Court recalls that the period under examination for the purposes of Article 6 § 1 of the Convention lasted from 14 May 1999 to 11 March 2005 and amounts to 5 years and 9 months for three levels of jurisdiction. (b) Reasonableness of the length of proceedings 79. The Court will examine the reasonableness of the length of proceedings 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).", "80. As regards the nature of the case, the Court observes that, having regard to the seriousness of the crimes and their sexual character, as well as the mental state of the victims and the number of witnesses and accused, it was of considerable complexity. The Court's attention has particularly been drawn to the significant number of witnesses and victims questioned by the first-instance court, as well as to the number of defendants. The Court also refers to its above findings in respect of the complaint under Article 5 § 3 of the Convention (see, in particular, paragraphs 61 and 66 above). 81.", "With regard to the conduct of the authorities and of the applicant, the Court reiterates that only delays attributable to the State may justify a finding of a failure to comply with the \"reasonable time\" requirement (see, among other authorities, Proszak v. Poland, judgment of 16 December 1997, Reports of Judgments and Decisions 1997‑VIII, § 40) and that in civil proceedings the parties too must show \"due diligence\" (see the Pretto and Others v. Italy judgment of 8 December 1983, Series A no. 71, pp. 14-15, § 33). 82. The evidence before the Court does not disclose any significant period of inactivity that could be attributable to the domestic courts.", "During the period under consideration the case the case was heard by courts at three instances. The hearings were held regularly and the trial court made efforts to conduct the proceedings promptly and swiftly (see paragraphs 17, 20, 24 and 27 above). The trial court also took all necessary steps to resolve difficulties in hearing witnesses in the course of the proceedings and applied adequate disciplinary measures, given the fact that when the hearings were adjourned it was, on many occasions, as the accused or their representatives failed to attend them for various reasons (see paragraph 17 above). The Court observes the absences must have contributed to their overall length of the proceedings in the present case at the hearings and could be regarded as delaying tactics. 83.", "The Court also observes that the Wrocław Court of Appeal thoroughly analysed the proceedings after the applicant had lodged a complaint under the 2004 Act on the breach of the right to a trial within a reasonable time. In that court's opinion, the proceedings had not breached the reasonable-time requirement. The court pointed to the extreme complexity of the case and to the applicant's attitude with respect to the proceedings. It noted that the number of the applicant's belated, ill-founded or meaningless motions filed by the applicant had contributed significantly to the length of the proceeding (see paragraph 35 above). 84.", "Having regard to the fact that the national courts are in principle better placed than the international judge to assess the particular circumstances of the case before them, in particular the complexity of the case or the applicant's attitude towards the proceedings, the Court will not depart from the Wrocław Court of Appeal's finding that the applicant's right to a trial within a reasonable time had not been violated, there being no evidence that its conclusion was without reasonable foundation. 85. Having regard also to its findings under Article 5 § 3 above as to the conduct of the criminal case against the applicant, the Court concludes that the proceedings complained of did not exceed the “reasonable time” requirement within the meaning of Article 6 § 1. There has accordingly been no breach of that provision. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the application admissible; 2. Holds that there has been no violation of Article 5 § 3 of the Convention; 3. Holds that there has been no violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 18 December 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T. L. EarlyNicolas BratzaRegistrarPresident" ]

[ "FIRST SECTION CASE OF KARAGJOZI AND OTHERS v. ALBANIA (Application no. 32382/11) JUDGMENT This version was rectified on 26 April 2016 under Rule 81 of the Rules of Court. STRASBOURG 7 April 2016 This judgment is final. It may be subject to editorial revision. In the case of Karagjozi and Others v. Albania, The European Court of Human Rights (First Section), sitting as a Committee composed of: Kristina Pardalos, President,Paul Mahoney,Pauliine Koskelo, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 15 March 2016, Having noted that the underlying legal issue in the application below is already the subject of well-established case-law of the Court (see Manushaqe Puto and Others v. Albania, nos.", "604/07, 43628/07, 46684/07 and 34770/09, § 31 July 2012), Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 32382/11) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by 21 Albanian nationals. Details of the applicants are set out in Appendix No. 1 attached to the judgment.", "2. The applicants were represented by Mr S. Puto, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their Agent, Ms A. Hicka of the State Advocate’s Office. 3. On 20 December 2013 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. On 28 July 2006 the Vlora Commission recognised, amongst others, the applicants’ inherited property rights over a plot of land measuring 640,000 sq. m. Since the plot of land was occupied, the applicants would be compensated in one of the ways provided by law. The Commission stated that the land had changed its destination from agricultural land to construction land.", "A handwritten note signed by the chairman of the Commission states that the decision became final on 2 October 2006. On 18 February 2013, following the applicants’ request for information about whether their property was still occupied, the Ministry of Defence affirmed that the plot was occupied by the army. 5. To date, no compensation has been paid. II.", "RELEVANT DOMESTIC LAW 6. The relevant domestic law and practice has been described in detail in, inter alia, the judgment of Ramadhi v. Albania (no. 38222/02, 13 November 2007); Manushaqe Puto and Others v. Albania (nos. 604/07, 43628/07, 46684/07 and 34770/09, §§ 23-53, 31 July 2012) and, more recently, Sharra and Others v. Albania [Committee] (nos. 25038/08, 64376/09, 64399/09, 347/10, 1376/10, 4036/10, 12889/10, 20240/10, 29442/10, 29617/10, 33154/11 and 2032/12, §§ 33-43, 10 November 2015).", "III. COUNCIL OF EUROPE MATERIALS 7. Relevant material was referred to in this Court’s judgments of Sharra and Others, cited above, § 44; Metalla and Others v. Albania [Committee] (nos. 30264/08, 42120/08, 54403/08 and 54411/08, §§ 15-17, 16 July 2015); Siliqi and Others v. Albania [Committee] (nos. 37295/05 and 42228/05, §§ 12-13, 10 March 2015); and Karagjozi and Others v. Albania [Committee] (nos.", "25408/06, 37419/06, 49121/06, 1504/07, 19772/07, 46685/07, 49411/07, 27242/08, 61912/08 and 15075/09, §§ 36-38, 8 April 2014). THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION AS WELL AS OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION ON ACCOUNT OF THE NON‑ENFORCEMENT OF FINAL DECISIONS 8. The applicants alleged that there had been a breach of Articles 6 § 1 and 13 of the Convention as well as of Article 1 of Protocol No.", "1 to the Convention on account of the non-enforcement of a final domestic decision awarding them compensation in lieu of the restitution of their property. Article 6 § 1 of the Convention, insofar as relevant, reads 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 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. Admissibility 9.", "The Government submitted that the applicants had sought the review of the Commission decision and those proceedings were still pending. They disputed the application of the well-established case-law procedure. The applicants contended that following the Ministry of Defence’s letter of 18 February 2013 the plots of land were occupied and, accordingly, used for military purposes. 10. It transpires from the case file that in February 2013 the applicants lodged a request for information with the authorities.", "A letter of 7 November 2014 from the director of the Agency Restitution and Compensation of Properties (“the Agency’s director”), which was submitted by the Government and stated that a new case file no. 404 dated 5 May 2011 relating to the Commission decision of 28 July 2006 was pending for examination, is not capable of constituting adequate proof that any proceedings were pending in the absence of relevant supporting documents. The Government failed to expand on this statement and submit sufficient evidentiary basis in their further observations dated 12 January 2015. Furthermore, the Court reiterates that in 2010 and 2011 the Constitutional Court repealed as incompatible with the Constitution a number of the 2004 Property Act provisions, as amended, which empowered the Agency’s director to re-examine, annul and repeal ex officio Commission decisions (see Manushaqe Puto and Others v. Albania, nos. 604/07, 43628/07, 46684/07 and 34770/09, § 32, 31 July 2012).", "In such circumstances, the Court considers that the Commission decision of 28 July 2006, of which the applicants complain, remains unchanged and unenforced. The Court therefore rejects this objection and considers that the issues raised by this application are the subject of well-established case-law. 11. The Court notes that the remaining 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 12. The Government did not dispute the merits of the applicants’ complaints. 13.", "Having regard to its findings in previous cases against Albania in respect of which the Government did not put forward any arguments that would warrant a departure therefrom (see, amongst others, Manushaqe Puto and Others, cited above, §§ 93-97 and the references cited therein; and more recently, Sharra and Others, cited above, §§ 49-51; Metalla and Others, cited above, §§ 29-31; Siliqi and Others, cited above, §§ 19), the Court finds that the domestic authorities’ failure over so many years to enforce the final domestic decision and, notably, to pay the compensation awarded, breached the applicants’ rights under Article 6 § 1 and under Article 1 of Protocol No. 1 to the Convention. 14. The Court also concludes that there was, and continues to be, no effective domestic remedy that allowed for adequate and sufficient redress on account of the prolonged non-enforcement of the final domestic decisions awarding compensation. There is accordingly a violation of Article 13 of the Convention (see Manushaqe Puto and Others, cited above, §§ 72-84 and the references cited therein).", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS 15. The applicants complained under Article 6 § 1 about the length of proceedings as a result of the non-enforcement of the Commission decision. 16. 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 therefore declares it admissible. 17. The Court considers that, in view of the findings in paragraphs 13-14 above, the issue of the length of proceedings must be regarded as having been absorbed by the issue of non-enforcement (see, for example, Kutić v. Croatia, no. 48778/99, § 34, ECHR 2002‑II, and Popova v. Russia, no. 23697/02, § 44, 21 December 2006).", "The Court therefore finds that it is not necessary to examine separately this complaint. III. 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.” A. Damage 1.", "The parties’ submissions (a) The applicants 19. The applicants made the same submissions as those summarised in this Court’s judgment in the case of Sharra and Others, cited above, §§ 57‑58. More specifically, they claimed 7,054,285 Euro (“EUR”) as regards the property value of the plot of land measuring 640,000 sq. m, in respect of the applicants’ share, on the basis of the valuation maps 2013. They claimed that the reference price of 1,646 Albanian leks (“ALL”)/sq.", "m as indicated in the valuation maps 2013 should be applied. They submitted that they owned fifteen sixteenths of the plot of land measuring 640,000 sq. m. They claimed EUR 315,000 in respect of non-pecuniary damage. (b) The Government 20. The Government made the same submissions as those summarised in this Court’s judgment in the case of Sharra and Others, cited above, §§ 69‑71.", "Having regard to the fact that at the time of confiscation the plot of land had been agricultural, the Government proposed that the reference price for agricultural land on the basis of the valuation maps of 2014 should be applied, that is 281 ALL/sq. m. The Government confirmed that the applicants were entitled to fifteen sixteenths of the property. 2. The Court’s assessment 21. The Court examined the same submissions made by the parties in its judgment in the case of Sharra and Others v. Albania, cited above, §§ 78‑87.", "It concluded that the pecuniary damage should be determined on the basis of the property valuation maps 2008 (see Sharra and Others v. Albania, cited above, § 90; Manushaqe Puto and Others, cited above, § 125; and Vrioni and Others v. Albania (just satisfaction), nos. 35720/04 and 42832/06, §§ 33-39, 7 December 2010). The Court sees no reason to depart from those findings. 22. The Court notes that the authorities had recognised the applicants’ right to compensation in respect of construction land and not of agricultural land as contested by the Government.", "23. Having regard to the material in its possession, the Court considers it reasonable to award the applicants EUR 5,919,000 (five million nine hundred and nineteen thousand) in respect of pecuniary and non-pecuniary damage. B. Costs and expenses 24. The applicants claimed EUR 1,000 in respect of costs and expenses.", "They submitted relevant receipts. 25. Citing Gjyli v. Albania (no. 32907/07, § 72, 29 September 2009), according to which costs and expenses have to be actually and necessarily incurred and reasonable, the Government left the matter to the Court’s discretion to determine the amount to be awarded under this head. 26.", "According to the Court’s case-law, “an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum” (see Gjyli v. Albania, cited above, § 72). To this end, Rule 60 §§ 2 and 3 of the Rules of Court provides that applicants must enclose with their claims for just satisfaction “any relevant supporting documents”, failing which the Court “may reject the claims in whole or in part”. 27. Having regard to its findings in paragraphs 13-14, the repetitive nature of the complaints raised in the above application, the representation of the applicants by the same lawyer and the Court’s view that the majority of the costs and expenses claimed were not reasonable as to quantum, the Court considers it reasonable to award the applicants EUR 850 in respect of costs and expenses. C. Default interest 28.", "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 6 § 1 and 13 of the Convention as well as Article 1 of Protocol No. 1 as regards the non‑enforcement of final domestic decision and the length of the proceedings admissible; 2. Holds that there has been a breach of Articles 6 § 1 and 13 as well as of Article 1 of Protocol No.", "1 to the Convention on account of the non‑enforcement of final domestic decision; 3. Holds that it is not necessary to examine the complaint under Article 6 § 1 of the Convention as regards the length of the proceedings; 4. Holds (a) that the respondent State is to pay the applicants jointly, within three months,[1] the following amounts to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 5,919,000 (five million nine hundred and nineteen thousand), plus any tax that may be chargeable,[2] in respect of pecuniary and non-pecuniary damage; (ii) EUR 850 (eight hundred and fifty), 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 applicants’ claim for just satisfaction. Done in English, and notified in writing on 7 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "André WampachKristina PardalosDeputy RegistrarPresident APPENDIX 1 – LIST OF APPLICANTS Case name and no. Name of applicants (year of birth) Country of residence Represented by Introduction date Karagjozi and Others, no. 32382/11 Eni Kokona (1976) Lindita Kokona (1948) Xhejni Kokona (1978) Nirvana Rradheshi (1951) Shpresa Halimi (1969) Dhurata Bungo née Karagjozi (1937) Dëshira Efovia née Karagjozi (1936 Suzana Gjebrea née Çami (1958) Hiqmet Çami (1924) Hasibe Kulla née Çami (1966) Besnik Çami (1961) Agim Karagjozi (1927) Albert Karagjozi (1934) Vesim Karagjozi (1931) Bukuroshe Dobi née Karagjozi (1929) Armand Viçani (1958) Miranda Viçani née Telegrafi (1949) Diana Kaltani née Halimi (1936) Ermal Halimi (1959) Karolina Halimi (1935) Ariel Halimi (1963) Albania Albania Albania Albania United States of America Albania Albania Albania Albania Canada Canada United States of America Albania United States of America United States of America United States of America United States of America Canada Albania Albania Albania S. Puto, lawyer 14 March 2011 [1]. Rectified on 26 April 2016: “from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention” has been deleted. [2].", "Rectified on 26 April 2016: “plus any tax that may be chargeable” has been added." ]

[ "FIRST SECTION CASE OF AKHMATOVA v. RUSSIA (Application no. 22596/04) JUDGMENT STRASBOURG 21 October 2010 This judgment is final but it may be subject to editorial revision. In the case of Akhmatova v. Russia, The European Court of Human Rights (First Section), sitting as a Committee composed of: Nina Vajić, President,Anatoly Kovler,Dean Spielmann, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 30 September 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 22596/04) 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 Lyudmila Demyanovna Akhmatova (“the applicant”), on 7 June 2004.", "2. The Russian Government (“the Government”) were initially represented by Mr A. Savenkov, former acting Representative of the Russian Federation at the European Court of Human Rights, and then by their representative Mr G. Matyushkin. 3. On 11 March 2008 the President of the First Section decided to give notice of the application to the Government. In accordance with Protocol No.", "14, the application was allocated to a Committee. It was also decided that the Committee would rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1944 and lives in Okha of the Sakhalin Region.", "5. The applicant was employed as head of the legal department at a branch of a state-owned oil company. On 29 May 1998 the employer informed the applicant that she was dismissed from her position following staff reduction. A. Proceedings before the first instance court 6.", "On 30 June 1998 the applicant brought a court action against her former employer before the Okha Town Court of the Sakhalin Region (“the Town Court”). She submitted that her dismissal had been unlawful as de facto she had been dismissed following the reorganisation of the company. She sought to change the ground of her dismissal and to obtain compensation for non-pecuniary damage. 7. The first hearing of her case was scheduled for 7 July 1999.", "On that date the applicant did not appear at the court hearing as she had not received the summons. On an unspecified date the prosecutor joined the proceedings. 8. On 14 July 1999 she changed the subject-matter of her claim against the former employer, now seeking reinstatement in her previous post, salary arrears and compensation for non-pecuniary damage sustained as a result of her dismissal. 9.", "The hearings scheduled for 12 October and 9 November 1999 did not take place as the judge was involved in different proceedings. 10. On 9 November 1999 the applicant brought a separate court action against her new employer. 11. Between 1998 and 2000 the applicant’s claim against the oil company was examined by judges Ch.", "and Sh. respectively. In 2000 the case was transferred to judge S. 12. On 24 March 2000 the applicant requested the court’s assistance in obtaining certain evidence. 13.", "On 22 January and 16 March 2001 the applicant complained to the president of the Sakhalin Regional Court (“the Regional Court”) of the trial court’s inactivity in her case. 14. On 19 April 2001 the Town Court granted the respondent’s motion to adjourn the case until 18 July 2001, the date of the hearing of the applicant’s claim against her new employer, and ordered the parties to submit documents relevant to the case. The applicant appealed against this decision. She also requested that her case be re-assigned to another judge as judge S. had been on vacation.", "15. On 10 May 2001 the president of the Regional Court informed the applicant that in order to speed up the proceedings her case had been reallocated to judge P. and a hearing had been scheduled for 23 May 2001. 16. On 5 June 2001 the Regional Court set aside the decision of 19 April 2001 on appeal and remitted the matter to the Town Court. 17.", "On an unspecified date the applicant complained to the Prosecutor’s Office of the Sakhalin Region of lengthy examination of her case. 18. On 8 August 2001 the prosecutor confirmed that there had indeed been periods of inactivity in the examination of the case between 1998 and 2000. He informed the applicant that the case was set down for examination on 3 September 2001. 19.", "On 10 August 2001 the prosecutor replied to the applicant’s complaint that the president of the Regional Court had been informed about the delays in the examination of her case. He also advised her to forward her complaints to the Higher Board of Judicial Qualifications. 20. On 3 September 2001 the Town Court allowed the applicant’s objection to judge S. and adjourned the examination of the case. 21.", "On 26 October 2001 the applicant requested that the examination of her case be postponed until her claim against her new employer had been considered by an appeal court. On 16 May 2002 the applicant requested resumption of the proceedings. 22. On 11 December 2002 the applicant’s case was reassigned to judge Z. 23.", "On 4 January and 24 March 2003 the hearings were adjourned to give the parties time to secure further evidence. On 24 March 2003 the applicant increased her claim for non-pecuniary damage. 24. On 16 April 2003 the applicant withdrew her claim for modification of the ground of dismissal and on the same date the Town Court discontinued the proceedings in this respect. The hearing was adjourned to enable the respondent to secure additional evidence.", "25. The hearing of 25 September 2003 was adjourned following the respondent’s representative’s failure to appear. 26. The examination of the case resumed on 1 October 2003. 27.", "On 7 October 2003 the Town Court, under the presidency of judge Z., concluded that the applicant had failed to comply with a one-month statutory time‑limit and dismissed her claim. B. Proceedings before the appeal court 28. On 22 October 2003 the applicant submitted her grounds of appeal against the judgment of 7 October 2003 and her remarks on the record of proceedings. 29.", "On 7 November 2003 the respondent and the prosecutor filed their comments on the applicant’s grounds of appeal. 30. On 14 November 2003 the trial court sent the parties a letter notifying them of the appeal hearing scheduled for 9 December 2003. 31. On 21 November 2003 the applicant complained to the president of the Regional Court that the Town Court had failed to communicate to her the respondent’s and the prosecutor’s observations and therefore had placed her at a significant disadvantage vis-à-vis the respondent.", "32. On 9 December 2003 the Regional Court upheld the judgment of 7 October 2003. The court heard the respondent’s representative and the prosecutor and indicated that “the applicant maintained her claims in the hearing”. According to the applicant, she had not been notified of the appeal hearing and therefore could not attend it. There is no indication in the text of the decision that the court verified whether the parties had been duly summoned to the hearing.", "33. On 25 May 2004 the Regional Court refused the applicant’s request to transfer the case for consideration by the supervisory instance. In particular, the court noted that the failure to communicate to the applicant the respondent’s and prosecutor’s observations on her grounds of appeal did not constitute sufficient ground for quashing of the previous judgments as the said observations had not contained any new arguments and, in any event, the law did not envisage the applicant’s further comments. II. RELEVANT DOMESTIC LAW 34.", "The Russian Code of Civil Procedure of 2002 provides that the parties are notified of and called to a hearing by means of summons, sent by registered post. Where necessary, the parties may be summonsed by a phone call or a telegram. Summons should be served on the parties in such a way as to enable them to have enough time to prepare the case and to appear at the hearing in due time (Section 113). If a party to the case fails to appear and there is no evidence that the party has been duly summoned, the hearing has to be adjourned (Section 354). The appeal court delivers its judgment in accordance with the rules established for the first-instance courts (Section 360).", "35. Section 344 of the same Code provides that the observations pertaining to grounds of appeal should be lodged together with their copies in a number that is equal to the number of involved parties. 36. Federal Law № 68-ФЗ of 30 April 2010 (in force as of 4 May 2010) provides that in case of a violation of the right to trial within a reasonable time or of the right to enforcement of a final judgment, the Russian citizens are entitled to seek compensation of the non-pecuniary damage. Federal Law № 69-ФЗ adopted on the same day introduced the pertinent changes in the Russian legislation.", "37. Section 6.2 of the Federal Law № 68-ФЗ provides that everyone who has a pending application before the European Court of Human Rights concerning a complaint of the nature described in the law has six months to bring the complaint to the domestic courts. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF EXCESSIVE LENGTH OF PROCEEDINGS 38. The applicant complained that the length of the proceedings in her case was incompatible with the “reasonable time” requirement as provided in Article 6 § 1 of the Convention.", "The relevant part reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” A. Admissibility 39. The Government submitted that the complaint should be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 and 4. They did not elaborate on their argument. 40. 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 41. The Government disagreed with the complaint.", "They argued that the case had been complex concerning interpretation of the labour law. They contended that a sizable period of the delay had been attributable to the applicant who had amended her claims on a few occasions, appealed the trial court’s intermediary decisions, challenged the judge and requested the court’s assistance in recovery of evidence. According to the Government, the length was also justified by such factors as the court’s insufficient staff numbers and significant case load. They also suggested that the applicant had lodged her action on 21 July 1998. 42.", "The applicant maintained her complaint. 43. 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). 44.", "The Court accepts that the applicant brought her claim before the trial court on 30 June 1998 as evidenced by the post stamp on the envelope in which her statement of claim was sent to the court. It further observes that the proceedings ended on 9 December 2003. Thus, the aggregate length of the proceedings amounts approximately to five years and five months, during which the domestic courts considered the case at two levels of jurisdiction. 45. The Court considers that the applicant’s case was not characterised by particular complexity concerning a rather straightforward claim for reinstatement in post, salary arrears and non-pecuniary damage.", "46. Insofar as the applicant’s behaviour is concerned, the Court accepts that the applicant delayed the proceedings by seven months by requesting an adjournment until her claim in different proceedings had been considered by an appeal court (see paragraph 21 above). It also takes cognisance of the fact that the applicant indeed changed and supplemented her claims on a few occasions and challenged the judge, which to some extent contributed to the overall length of the proceedings. At the same time, the Court reiterates that an applicant cannot be blamed for taking full advantage of the resources afforded by the national law in defence of his interests (see, mutatis mutandis, Yağcı and Sargın v. Turkey, 8 June 1995, § 66, Series A no. 319‑A).", "In any event, the delays caused by such actions appear to be insignificant. 47. Turning to the conduct of the authorities, the Court notes firstly that the first hearing of the applicant’s case was scheduled only a year after her claim was lodged in June 1998. It further observes that only one hearing was held in 1999, while two other hearings scheduled for that year did not take place due to the judge’s unavailability. It appears that no hearings were scheduled in the period between November 1999 and April 2001, and only after the latter date did the trial court begin to examine the case at somewhat regular intervals.", "The Court also notes that the trial court’s procrastination was confirmed in the replies of the prosecutor’s office and the higher court to the applicant’s complaints (see paras. 15, 18 and 19 above). In this respect the Court reiterates that it is the States’ duty to organise their judicial systems in such a way that their courts can meet the requirements of Article 6 § 1 (see Muti v. Italy, 23 March 1994, § 15, Series A no. 281-C). Accordingly, it does not find the court’s insufficient staff numbers and significant case load, cited above by the Government, to be objective factors justifying lengthy delays in the proceedings.", "48. Regarding what was at stake for the applicant, the Court observes that the applicant’s claims concerned the subject of employment, which required particular diligence on the part of the domestic authorities (see, among many other authorities, Buchholz v. Germany, 6 May 1981, § 597, Series A no. 42). 49. Regard being had to the substantial delays attributed to the authorities and the applicant’s high stake in the case, the Court finds that there was a violation of Article 6 § 1 of the Convention on account of the excessive length of the proceedings.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF VIOLATION OF THE RIGHT TO AN ADVERSARIAL TRIAL 50. The applicant complained that the appeal proceedings in her case had breached her right to an adversarial trial enshrined in the fair hearing guarantees of Article 6 § 1 of the Convention, by way of the courts’ failure to communicate to her the respondent company’s and prosecutor’s observations on her grounds of appeal and to duly summon her to the appeal hearing. The relevant part of the provision reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 51. The Government argued that the complaint of the court’s failure to communicate the other parties’ observations on the applicant’s grounds of appeal is outside the Court’s jurisdiction ratione materiae as it had been duly considered by the national court in supervisory instance and the applicant was substantially complaining about the outcome of the proceedings.", "As to the complaint of failure to duly summon to the appeal hearing, the Government submitted that the applicant had not exhausted the available domestic remedies, namely, application for supervisory review. 52. The Court rejects the Government’s argument concerning its competence as consideration of a complaint by a national court does not automatically exclude the Court’s examination. In addition, it is clear from the case file that the applicant had set out a separate grievance as described above. In respect of the applicant’s alleged failure to exhaust the available domestic remedies, the Court has previously found that supervisory review in Russia is not an effective domestic remedy to be exhausted before bringing a complaint to Strasbourg (see, among other authorities, Berdzenishvili v. Russia (dec.), no.", "31697/03, 29 January 2004). The Government did not supply any new argument capable of changing the Court’s opinion. 53. The Court notes that these complaints are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits 54. The Government submitted that the prosecutor and the respondent company had not enclosed copies of their observations on the grounds of appeal. They admitted that the case file did not contain any indication that any copies of such observations had been forwarded to the applicant. They further submitted that examination of the case in the appeal hearing in the applicant’s absence had not run counter to the provisions of the national law, especially considering that the applicant had failed to inform the court of the reasons of her absence.", "Moreover, the appeal court did not examine any complex points of law and fact in the hearing and largely based its reasoning on the findings made by the lower court and the applicant’s grounds of appeal. 55. The applicant maintained her complaints. 56. The Court will firstly examine the complaint of the failure to duly summon the applicant to the appeal hearing.", "It reiterates that the obligation under Article 6 § 1 to hold a public hearing is not an absolute one. Thus, a hearing may be dispensed with if a party unequivocally waives his or her right thereto and there are no questions of public interest making a hearing necessary (see, among other authorities, Håkansson and Sturesson v. Sweden, 21 February 1990, § 66, Series A no. 171-A; and Schuler-Zgraggen v. Switzerland, 24 June 1993, § 58, Series A no. 263). The Court has previously found that the Russian legal provisions enabling the court to proceed with examination of the appeal if a party did not appear in the hearing after having been duly notified thereof were not incompatible with the fair trial guarantees of Article 6 § 1 (see Yakovlev v. Russia, no.", "72701/01, § 20, 15 March 2005). At the same time, it deemed that the right to a fair and public hearing would be devoid of substance if a party to the case were not apprised of the hearing in such as way as to have an opportunity to attend it (ibidem, § 21). 57. Turning to the present case, the Court observes that the appeal court had no evidence that the applicant had received the summons in a timely manner, nor did it examine this question prior to the hearing on the merits. Therefore, the applicant was deprived of the opportunity to attend the appeal hearing, which breached her right to an adversarial trial.", "There has, accordingly, been a violation of Article 6 § 1. 58. Regard being had to the fact that the national law did not give the applicant a right to further comment on the adversary parties’ observations, the failure to duly summon her to the appeal hearing effectively eliminated any opportunity for her to respond to them. Taking into account these circumstances and the finding of a violation above, the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 6 § 1 on account of failure to communicate to the applicant the observations on her grounds of appeal. III.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION ON ACCOUNT OF UNREASONABLE LENGTH OF PROCEEDINGS 59. The applicant further complained that she had not had an effective remedy against the unreasonable length of the proceedings in her case. She relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 60. The Government submitted that the complaint was manifestly ill‑founded and requested to reject it in accordance with Article 35 §§ 3 and 4 of the Convention. 61.", "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 62.", "The Court takes cognisance of the existence of a new remedy introduced by the federal laws № 68-ФЗ and № 69-ФЗ in the wake of the pilot judgment adopted in the case of Burdov v. Russia (no. 2) (no. 33509/04, ECHR 2009‑...). These statutes, which entered into force on 4 May 2010, set up a new remedy which enables those concerned to seek compensation for the damage sustained as a result of unreasonable length of the proceedings (see paragraph 36 above). 63.", "The Court observes that in the present case the parties’ observations in respect of Article 13 arrived before 4 May 2010 and did not contain any references to the new legislative development. However, it accepts that as of 4 May 2010 the applicant has had a right to use the new remedy (see paragraph 37 above). 64. The Court recalls that in the pilot judgment cited above it stated that it would be unfair to request the applicants whose cases have already been pending for many years in the domestic system and who have come to seek relief at the Court, to bring again their claims before domestic tribunals (Burdov (no. 2), cited above, § 144).", "In line with this principle, the Court decided to examine the present application on its merits and found a violation of the substantive provision of the Convention. 65. However, the fact of examination of the present case on its merits should in no way be interpreted as prejudging the Court’s assessment on the quality of the new remedy. It will examine this question in other cases more suitable for this analysis. It does not consider the present case as such, particularly in view of the fact that the parties’ observations were made with account of the situation that had existed before the introduction of the new remedy.", "66. Having regard to these special circumstances, while the Court considers this complaint admissible, it does not find it necessary to continue a separate examination of the complaint under Article 13 in the present case. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 67. Lastly, the applicant complained of erroneous application of the law in her case by the domestic courts.", "68. Having regard to all the materials in its possession, and in so far as this complaint falls within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in these provisions in that respect. 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. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 69. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 70. The applicant claimed 21,211 euros (EUR) in respect of pecuniary damage and EUR 100,000 in respect of non-pecuniary damage. 71. The Government contested the claims as unsubstantiated and excessive. 72.", "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 5,800 in respect of non-pecuniary damage. B. Costs and expenses 73. The applicant also claimed 6,210 Russian roubles (RUB) (app.", "EUR 160) for the costs and expenses incurred in the domestic proceedings and before the Court. 74. The Government accepted the amount of RUB 636 (app. EUR 16) as justified for the costs and expenses incurred before the Court. 75.", "The Court notes that the applicant submitted several postal receipts for shipments to Strasbourg for the total amount of approximately EUR 16. It observes that the remainder of the claimed amount consists of expenses incurred in the civil dispute where the applicant was a claimant. Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 16 for the proceedings before the Court. C. Default interest 76. 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 length of the proceedings, the right to an adversarial trial and lack of an effective remedy against the unreasonable length of the proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the unreasonable length of the proceedings; 3. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the failure to duly summon her to the appeal hearing; 4. Holds that there is no need for separate examination of the complaint under Article 6 § 1 of the Convention concerning failure to communicate to her the observations on her grounds of appeal; 5.", "Holds that there is no need for separate examination of the complaint under Article 13 of the Convention; 6. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement: (i) EUR 5,800 (five thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 16 (sixteen 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; 7. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 21 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachNina VajićDeputy RegistrarPresident" ]

[ "FIRST SECTION CASES OF GIANTURCO v. ITALY (Application no. 40672/98 Application no. 40680/98 Application no. 40681/98 Application no. 40884/98) JUDGMENT (Friendly settlement) STRASBOURG 22 January 2004 This judgment is final but it may be subject to editorial revision.", "In the case of Gianturco 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, andMr S. Nielsen, Deputy Section Registrar, Having deliberated in private on 16 December 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in four applications (no. 40672/98; no.", "40680/98; no. 40681/98; no. 40884/98) 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 Francesco Gianturco and Mr Giuseppe Gianturco (“the applicants”), respectively on 6, 11, 18 and 23 March 1998. 2. The applicants are represented by Mr E. Baldi, a lawyer practising in Naples.", "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. The applicants complained under Article 1 of Protocol No. 1 that they had been unable to recover possession of their flats within a reasonable time. Invoking Article 6 § 1 of the Convention, they further complained about the length of the eviction proceedings.", "4. On 5 September 2002, after obtaining the parties' observations, the Court declared the applications admissible. 5. Mr Francesco Gianturco died on 7 May 2003. On 18 June 2003, the applicant's heirs, namely Mrs Manuela Zurini and Mr Erkan Gianturco expressed the wish to continue the proceedings before the Court.", "6. On 8 September 2003 and on 28 October 2003 the Government and the applicants respectively submitted formal declarations accepting a friendly settlement of the cases. THE FACTS 7. The first applicant was born in 1927 and lived in Naples. The second applicant was born in 1928 and lives in Naples.", "8. They were the owners of four flats in Arzano (Naples), which they had let respectively to L.U., L.C., C.S., G.R. and G.F. 1) Application no. 40672/98 9. In a writ served on the tenant on 24 November 1986, the applicants informed the tenant of their intention to terminate the lease on expiry of the term on 31 December 1987 and summoned him to appear before the Casoria (Naples) Magistrate.", "10. By a decision of 20 February 1987, which was made enforceable on the same day, the Casoria Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1989. 11. On 28 January 1994, the applicants served notice on the tenant requiring him to vacate the premises. On 23 April 1994, they informed the tenant that the order for possession would be enforced by a bailiff on 28 April 1994.", "12. Between 28 April 1994 and 8 March 1999, the bailiff made twelve attempts to recover possession. Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession. 13. On 3 June 2001, the tenant spontaneously left the premises and the applicants recovered possession of their flat.", "2) Application no. 40680/98 14. In a writ served on the tenant on 24 November 1986, the applicants informed the tenant of their intention to terminate the lease on expiry of the term on 31 December 1987 and summoned him to appear before the Casoria (Naples) Magistrate. 15. By a decision of 13 February 1987, which was made enforceable on the same day, the Casoria Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1989.", "16. On 28 January 1994, the applicants served notice on the tenant requiring him to vacate the premises. 17. On 23 April 1994, they informed the tenant that the order for possession would be enforced by a bailiff on 28 April 1994. 18.", "Between 28 April 1994 and 8 March 1999, the bailiff made thirteen attempts to recover possession. Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession. 19. On 4 September 1999, the tenant entered into a new lease. 3) Application no.", "40681/98 20. In a writ served on the tenant on 24 November 1986, the applicants informed the tenant of their intention to terminate the lease on expiry of the term on 31 December 1987 and summoned him to appear before the Casoria (Naples) Magistrate. 21. By a decision of 13 February 1987, which was made enforceable on the same day, the Casoria Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1989. 22.", "On 28 January 1994, the applicants served notice on the tenant requiring him to vacate the premises. 23. On 23 April 1994, they informed the tenant that the order for possession would be enforced by a bailiff on 28 April 1994. 24. Between 28 April 1994 and 8 March 1999, the bailiff made thirteen attempts to recover possession.", "Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession. 25. On an unspecified date of May 2000, the applicants recovered possession of the flat. 4) Application no. 40884/98 26.", "In a writ served on the tenant on 24 November 1986, the applicants informed the tenant of their intention to terminate the lease on expiry of the term on 31 December 1987 and summoned her to appear before the Casoria (Naples) Magistrate. 27. By a decision of 6 February 1987, which was made enforceable on the same day, the Casoria Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1988. 28. On 31 January 1994, the applicants served notice on the tenant requiring her to vacate the premises.", "29. On 23 April 1994, they informed the tenant that the order for possession would be enforced by a bailiff on 28 April 1994. 30. Between 28 April 1994 and 8 March 1999, the bailiff made thirteen attempts to recover possession. Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession.", "31. On an unspecified date of February 2001, the applicants recovered possession of the flat. THE LAW 32. On 8 September 2003, the Court received the following declaration from the Government: “I declare that the Government of Italy offer to pay for each application cited above the sum of 4,085 euros (four thousand eighty-five euros) with a view to securing a friendly settlement. Mr Giuseppe Gianturco will receive the sum of 8,170 euros (eight thousand one hundred and seventy euros) – i.e.", "2,042.50 euros (two thousand forty-two euros and fifty cents) for each application. Mrs Manuela Zurini and Mr Erkan Gianturco, who are Mr Francesco Gianturco's heirs, will each receive the sum of 4,085 euros (four thousand and eighty-five euros) – i.e. 1,021.25 euros (one thousand twenty-one euros and twenty-five cents) for each application. These sums shall cover any pecuniary and non-pecuniary damage as well as costs, and shall 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 cases.", "This declaration does not entail any acknowledgement by the Government of a violation of the European Convention on Human Rights in the present cases. The Government further undertake not to request the referral of the cases to the Grand Chamber under Article 43 § 1 of the Convention.” 33. On 28 October 2003, the Court received the following declaration signed by Mr Giuseppe Gianturco, Mrs Emanuela Zurini and Mr Erkan Gianturco : “We note that the Government of Italy are prepared to pay for each application cited above the sum of 4,085 euros (four thousand eighty-five euros) with a view to securing a friendly settlement. Mr Giuseppe Gianturco will receive the sum of 8,170 euros (eight thousand one hundred and seventy euros) – i.e. 2,042.50 euros (two thousand forty-two euros and fifty cents) for each application.", "Mrs Manuela Zurini and Mr Erkan Gianturco, who are Mr Francesco Gianturco's heirs, will each receive the sum of 4,085 euros (four thousand and eighty-five euros) – i.e. 1,021.25 euros (one thousand twenty-one euros and fifty-five cents). These sums will cover both pecuniary and non-pecuniary damage and costs. We accept the proposal and waive any further claims in respect of Italy relating to the facts of the applications. We declare that the cases are definitely settled.", "This declaration is made in the context of a friendly settlement which the Government and applicants have reached. We further undertake not to request the referral of the cases to the Grand Chamber under Article 43 § 1 of the Convention after the delivery of the Court's judgment.” 34. The Court takes note of the agreement reached between the parties (Article 39 of the Convention). In this connection the Court considers that it has already specified the nature and extent of the obligations which arise for the respondent Government in cases concerning eviction of tenants (see Immobiliare Saffi v. Italy [GC], no. 22774/93, ECHR 1999-V), and the question of the performance of those obligations is currently pending before the Committee of Ministers.", "Therefore, a continuation of the examination of the present applications is not required. In these circumstances the Court accepts that the settlement is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court). 35. Accordingly, the cases should be struck out of the list. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Decides to strike the cases out of the list; 2. Takes note of the parties' undertaking not to request a rehearing of the cases before the Grand Chamber. Done in English, and notified in writing on 22 January 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos Rozakis Deputy RegistrarPresident" ]

[ "CASE OF ASSENOV AND OTHERS v. BULGARIA (90/1997/874/1086) JUDGMENT STRASBOURG 28 October 1998 In the case of Assenov and Others v. Bulgaria[1], 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[2], as a Chamber composed of the following judges: MrR. Bernhardt, President,MrL.-E. Pettiti,MrsE. Palm,MrA.B. Baka,MrG. Mifsud Bonnici,MrJ.", "Makarczyk,MrD. Gotchev,MrP. van Dijk,MrV. Toumanov, and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar, Having deliberated in private on 29 June and 25 September 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 22 September 1997, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in an application (no. 24760/94) against the Republic of Bulgaria lodged with the Commission under Article 25 by three Bulgarian nationals, Mr Anton Assenov, Mrs Fidanka Ivanova and Mr Stefan Ivanov, on 6 September 1993. The Commission’s request referred to Articles 44 and 48 and to the declaration whereby Bulgaria 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 Articles 3, 5, 6, 13, 14 and 25 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 designated the lawyer who would represent them (Rule 30). 3. The Chamber to be constituted included ex officio Mr D. Gotchev, the elected judge of Bulgarian nationality (Article 43 of the Convention), and Mr R. Bernhardt, who was then Vice-President of the Court (Rule 21 § 4 (b)). On 25 September 1997, in the presence of the Registrar, the President of the Court, Mr R. Ryssdal, drew by lot the names of the other seven members, namely Mr L.-E. Pettiti, Mrs E. Palm, Mr A.B.", "Baka, Mr G. Mifsud Bonnici, Mr J. Makarczyk, Mr P. van Dijk and Mr V. Toumanov (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 Registrar, consulted the Agent of the Bulgarian 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, the Registrar received the applicants’ and Government’s memorials on 9 March 1998. 5.", "On 2 and 13 February 1998 respectively, Mr Bernhardt granted leave to submit written comments to the European Roma Rights Center and Amnesty International (Rule 37 § 2). These were received by the Registrar on 29 and 30 April 1998. 6. In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 25 June 1998. The Court had held a preparatory meeting beforehand.", "There appeared before the Court: (a)for the GovernmentMsV. Djidjeva, Co-Agent, Ministry of Justice,Agent; (b)for the CommissionMrM.A. Nowicki,Delegate; (c)for the applicantsMsZ. Kalaydjieva,Counsel. The Court heard addresses by Mr Nowicki, Ms Kalaydjieva and Ms Djidjeva.", "AS TO THE FACTS I.the CIRCUMSTANCES OF THE CASE 7. The applicants are a family of Bulgarian nationals, of Roma origin, who live in Shoumen, Bulgaria. Mr Anton Assenov was born in 1978, and his parents, Mrs Fidanka Ivanova and Mr Stefan Ivanov, were born in 1956 and 1952 respectively. A.Events of and following 19 September 1992 1.Arrest and detention 8. On 19 September 1992, while gambling in the market square in Shoumen, Mr Assenov (then aged 14) was arrested by an off-duty policeman and taken to the nearby bus station, where the officer called for back-up.", "9. Subsequently Mr Assenov’s parents, who were both working at the bus station, came and asked for their son’s release. Mr Ivanov, as a way of showing that he would administer any necessary punishment, took a strip of plywood and hit his son. At some point two other policemen arrived. The applicants allege that these officers hit the boy with truncheons.", "A dispute ensued between the boy’s parents and the police, although it appears that Mr Assenov himself was unaggressive and compliant. He and his father were handcuffed and forced into a police car. They were taken to the police station, where they were detained for approximately two hours before being released without charge. Mr Assenov alleged to have been beaten with a toy pistol and with truncheons and pummelled in the stomach by officers at the police station. 2.Medical evidence 10.", "On 21 September 1992, the first working day following the incident, the applicants visited a forensic medical expert. They explained to him that Mr Assenov had been beaten by three policemen with a truncheon and with the handle of a pistol and that his mother had been beaten with a truncheon. The doctor examined the two applicants and issued medical certificates. 11. The certificate concerning the first applicant stated that the boy had a band-like haematoma about 5 cm long and 1 cm wide on the upper outer side of his right arm; three band-like haematomas, each about 6 cm long and 1 cm wide, on the right side of his chest; another bruise about 4 cm long on the left scapula; a haematoma 2 cm in diameter on the back of the head; and five grazes each about 5 cm long on the right chest.", "The certificate concerning Mrs Ivanova stated that she had a bruise about 5 cm long on her left thigh. The doctor concluded that the bruises could have been inflicted as described by the applicants. 3.Investigation by the District Directorate of Internal Affairs 12. On 2 October 1992, Mrs Ivanova filed a complaint with the District Directorate of Internal Affairs (“the DDIA”), alleging that her son had been beaten at the bus and police stations, and requesting the prosecution of the officers responsible (see paragraph 58 below). 13.", "The complaint was dealt with by Colonel P., an inspector with the personnel service of the DDIA. On 15 October 1992, Colonel P. heard each of the applicants and prepared written accounts of their oral testimony. Mr Assenov was heard in the presence of a teacher, Mr G. In their statements, the applicants gave the account of events set out in paragraphs 8–9 above. 14. Colonel P. also ordered the three police officers present at the bus station and the officer who had been on duty at the police station to submit written explanations.", "This they did on 21, 22 and 26 October 1992. According to these statements, Sergeant B., who was off-duty and out of uniform, had been passing the central bus station when he saw people gambling. He had arrested Mr Assenov and taken him to the bus station from where he had called the police officer on duty. Thereupon Mr Ivanov had appeared, shouted at the boy, and had hit him two or three times on the back with a plywood strip. He and his wife, who had arrived shortly thereafter, started protesting against their son’s arrest and pulling the boy.", "When Sergeants S. and V. arrived, the father had shouted, swore, and threatened the police officers, who told him to be quiet and asked him to come voluntarily to the police station. A crowd of about fifteen to twenty Roma had gathered; also present were approximately twenty drivers from the bus station. Since Mr Ivanov had continued his violent behaviour, the police officers had subdued him forcibly, handcuffed him and taken him and his son to the police station. There officer S. had filled out a form recording the seizure of 100 levs from Mr Assenov and then released the two applicants. It was not true that they had been beaten at the police station.", "15. On 26 October 1992 Colonel P. also obtained a written statement from the traffic manager at the bus station. She stated that a policeman had brought a boy and had asked her to telephone the police for a car. She did not remember any disturbance having occurred. 16.", "Based on this evidence, on 6 November 1992 Colonel P. drew up an internal note in which he made a summary of the facts and concluded that the boy had been beaten by his father. 17. On 13 November 1992 the Director of the DDIA wrote to the applicants stating that the conduct of the police officers had been lawful and that he would not, therefore, open criminal proceedings against them. 4.Investigation by the regional military prosecution office 18. On 12 December 1992 the applicants submitted a request for the criminal prosecution of the alleged offenders to the regional military prosecution office in Varna (“the RMPO”).", "19. On 30 December 1992 the RMPO ordered an inquiry to be carried out by investigator G. at the military investigation office in Shoumen. 20. On 8 February 1993 investigator G. wrote to the Director of Police in Shoumen, instructing him to take evidence from the applicants and the police officers and to report back. Since there had already been an inquiry on the matter, on 15 February 1993 the DDIA sent to the investigator all the material already collected.", "21. It is disputed whether investigator G. heard the applicants personally. The Government allege that he did, but there is no record of this on file. 22. On 20 March 1993 investigator G. drew up a one-page internal note summarising the facts and advising that criminal proceedings should not be brought against the officers, on the grounds that the allegations had not been proved and the evidence in the case was “contradictory”.", "23. On 24 March 1993, the RMPO decided, on the basis of the investigator’s advice, not to instigate criminal proceedings. The decision stated, inter alia, that Mr Ivanov had been hitting his son, shouting and pulling him, in disobedience of police orders, which had led to the applicants’ arrest (see paragraph 55 below), and that the evidence taken from witnesses did not confirm the use of physical violence by the police against the boy. 5.Appeal to the general military prosecution office 24. On 15 April 1993 the applicants appealed to the general military prosecution office (“GMPO”).", "They stated that it was clear from the decision of non-prosecution that the only witnesses examined had been the police officers who were the suspects; that the medical certificates had not been taken into consideration; and that it was untrue that Mr Assenov and his father had disobeyed police orders. 25. The appeal was submitted through the RMPO, which forwarded it to the GMPO on 30 April 1993, enclosing a letter advising that the complaint should be dismissed. A copy of this letter was sent to the applicants. 26.", "On 21 May 1993 the GMPO, apparently after an examination of the file, refused to open criminal proceedings against the police officers on the same grounds as the lower prosecuting authority. The decision stated, inter alia: “A medical certificate is enclosed in the file, from which it appears that there were haematomas on the juvenile’s body, indicating superficial bodily harm, and corresponding, in terms of mechanism of infliction, to blows with a band-like solid object. The deputy regional prosecutor correctly considered that even if blows were administered on the body of the juvenile, they occurred as a result of disobedience to police orders. The physical force and auxiliary means employed were in accordance with section 24(1), points 1 and 2, of the Law on National Police now in force [see paragraph 56 below].” 6.Further investigation by the regional military prosecution office 27. Apparently as a result of continued complaints from the applicants and pressure from the Ministry of Justice to re-examine the matter, on 13 July 1993 the GMPO wrote to the RMPO, stating that preliminary inquiries regarding alleged police misconduct should include the examination of independent witnesses, and that further investigations should therefore be carried out.", "28. The RMPO took statements from a bus driver and a bus station employee on 29 and 30 July 1993 respectively. The driver stated that he had seen a Roma man hit his son with a lath. When the police car arrived, the father had thrown himself at the police officers and started fighting. The driver had taken the father’s arm to prevent him hitting the officers.", "He had not seen any of the officers hitting the boy. The other witness had a vague recollection of events and could not say whether or not the father had hit his son or the policemen had beaten them. 29. These additional investigations apparently did not conclude with the delivery of a formal decision. Their results were not communicated to the applicants.", "7.Appeal to the Chief General Prosecutor 30. On 20 June 1994 the applicants appealed to the Chief General Prosecutor of Bulgaria. They again set out their version of events, adding that Mr Assenov’s beating had been accompanied by insults referring to the applicants’ Roma origin and pointing out that there had been a number of witnesses to the incident but that no effort had been made to take evidence from any of them. They argued that there was a contradiction between the finding of the RMPO that no physical force had been used and the conclusion of the GMPO, which established that there had been use of physical force, but that it had been legal, and they alleged violations of Articles 3, 6 and 14 of the Convention. 31.", "This appeal was apparently transferred to the GMPO, which wrote to the applicants’ lawyer on 28 June 1994 stating that there were no grounds to overturn the previous decision. B.Mr Assenov’s arrest on 27 July 1995 and subsequent detention 1.Arrest, detention and investigation 32. In January 1995, Mr Assenov was questioned by the Shoumen prosecuting authorities in connection with an investigation into a series of thefts and robberies. 33. He was arrested on 27 July 1995 and the following day, in the presence of his lawyer and a prosecutor (“K.”), he was questioned by an investigator and formally charged with ten or more burglaries, allegedly committed between 9 January and 2 May 1995, and six robberies committed between 10 September 1994 and 24 July 1995, all involving attacks on passers-by on the street.", "Mr Assenov admitted most of the burglaries but denied having committed the robberies. The decision was taken to detain him on remand. This decision was approved the same day by another prosecutor, “A.” (see paragraph 69 below). 34. On 27 July, 2 August, 7 August and 15 August 1995, the applicant took part in identification parades, at which he was identified by four robbery victims.", "A lawyer was present on all occasions. On 28 August 1995 an expert appointed by the investigator submitted a report concerning the value of the objects allegedly stolen by the first applicant and his accomplices. On an unspecified date additional charges, concerning other thefts in which Mr Assenov was suspected to have been an accomplice, were joined. It would appear that, in the course of the investigation, approximately sixty witnesses and alleged victims were examined, but that no evidence was collected after September 1995. 2.Pre-trial detention, July 1995–July 1997 35.", "Between 27 July 1995 and 25 March 1996, Mr Assenov was detained at the Shoumen police station. There is a dispute between the parties as regards the conditions of his detention there. The applicant submits that he was held in a cell measuring 3 x 1.80 metres, which he shared at times with two to four other detainees; that the cell was almost entirely below ground level, with very limited light and fresh air; that he could not exercise or engage in any activity in his cell; and that he was let out of his cell only twice a day, to go to the toilet. The Government submit that the cell measured 4.60 x 3.50 metres and that the applicant shared it with only one other detainee. 36.", "The applicant submitted numerous requests for release to the prosecuting authorities, referring, inter alia, to the facts that no further evidence had to be collected and that he was suffering from health problems exacerbated by the conditions of his detention and had two young children. It appears that some of these applications were assessed individually, and that others were grouped and examined several months after their submission. 37. On 21 August 1995, Mr Assenov was examined by a doctor, who found that he was healthy. He was examined again on 20 September 1995, by a cardiologist from the Regional Hospital of Shoumen, who concluded that he did “not suffer from any cardiac disease, either congenital or acquired”, and that there were “no counter-indications against him remaining in detention, as far as his cardio-vascular status is concerned”.", "38. On 11 September 1995, Mr Assenov submitted a petition to the Shoumen District Court requesting his release (see paragraphs 72–76 below). On 19 September 1995 a judge sitting in camera dismissed the petition, stating, inter alia, that the charges against Mr Assenov concerned serious crimes, and that his criminal activity had been persistent, giving rise to a danger that he would commit further crimes if released. 39. On 13 October 1995, a district prosecutor dismissed two requests for Mr Assenov’s release.", "This refusal was confirmed on 19 October 1995 by a regional prosecutor. 40. The applicants appealed to the Chief Public Prosecutor’s Office stating, inter alia, that there had been a “campaign” against them because of their application to the Commission. In its decision of 8 December 1995 the Chief Public Prosecutor’s Office dismissed the applicants’ arguments and stated that, although the investigation had been completed by September 1995, it was still necessary to detain Mr Assenov because there was a clear danger that he would resume his criminal activities. However, the view was expressed that prolonged detention in the premises of the Shoumen police would be harmful to the applicant’s “physical and mental development” and that he should therefore be moved to the Boychinovzi juvenile penitentiary.", "The transfer took place three and a half months later, on 25 March 1996. 41. On an unspecified date in 1996, Mr Assenov again challenged his detention on remand before the Shoumen District Court. On 28 March 1996 the court requested the case file from the district prosecutor’s office. Noting that an application had already been examined on 19 September 1995, it rejected the new petition as inadmissible (see paragraph 75 below).", "42. On 21 March 1996 the investigator opened a separate case file to deal with the robbery charges, in connection with which he questioned Mr Assenov and ordered his continued detention on remand. The following day the investigator drew up a report summarising the facts in the robbery case and sent it to the prosecutor proposing that an indictment be prepared. 43. On 3 July 1996, a district prosecutor sent the robbery case back to the investigator with instructions to see one further witness.", "On 23 August 1996 the investigator returned the case file because the proposed witness had died. On 26 September 1996, the district prosecutor drew up an indictment in the case and, four days later, submitted it to the Shoumen District Court. The court held a hearing on 6 February 1997, where it heard four witnesses and adjourned the hearing to 29 May 1997 because of the non-attendance of two other witnesses. 44. In the meantime, on 20 September 1996, the investigator completed the preliminary inquiry into the burglary case.", "On 25 October 1996, this case was sent to the regional prosecutor’s office with a proposal to indict Mr Assenov. It appears that on 31 January 1997 the burglary case was referred back for further investigation. 45. Between 5 July and 24 September 1996, Mr Assenov was again held at Shoumen police station, before being transferred to Belene Prison. 46.", "Throughout 1996 the applicants continued to submit requests for Mr Assenov’s release to the prosecuting authorities. By decisions of 21 February and 17 June 1996 these requests were dismissed by the district prosecutor, on the grounds that the applications raised no new arguments, that there was still a danger of the applicant reoffending if released and that the cases would soon be sent for trial. On 8 October 1996 the regional prosecution office dismissed another request for release. 47. On 4 November 1996, a District Court judge sitting in the robbery case examined in camera Mr Assenov’s petition for release.", "The judge refused to release Mr Assenov, taking into account the seriousness and the number of the crimes with which he had been charged and the fact that the trial would soon commence. 48. In July 1997 Mr Assenov was convicted of four street robberies and sentenced to thirty months’ imprisonment. According to the information available to the Court, he has not yet been indicted in relation to the burglary charges pending against him. C.Events following the application to the Commission 49.", "The applicants’ complaint was lodged with the Commission on 6 September 1993. In March 1995 they signed before a notary a statement of means, prepared in Bulgarian, referring expressly to their application to the Commission, and stating that it was done for purposes of their legal aid request to the Commission. 50. On 15 May, 23 May and 8 September 1995 two daily newspapers published articles about the case. Two of the articles, under headlines stating that a Roma gambler had “put Bulgaria on trial in Strasbourg”, explained inter alia that, in response to questions from journalists, the applicants had allegedly denied having made an application to the Commission.", "The articles concluded that perhaps some Roma activists had pushed the case and misled Amnesty International. 51. On an unspecified date the prosecuting authorities or the police approached the applicants and asked them to declare whether they had made an application to the Commission. On 8 September 1995, the second and third applicants visited a notary and signed a declaration in which they denied having made an application to the Commission. They further stated that they remembered having signed, in 1992 and 1993, some documents prepared by human rights associations.", "However, they had not been given copies of the documents and did not know their contents. One of the documents had been in a foreign language. 52. It would appear that this declaration was then submitted to the prosecuting authorities. On 19 September 1995 the GMPO wrote about it to the Ministry of Foreign Affairs.", "53. The transcript of Mr Assenov’s questioning after his arrest on 28 July 1995 establishes that he spoke to the investigator about the events of 19 September 1992, saying: “In 1992 ... I was beaten by policemen ... [at the bus station]. Thereafter I obtained a medical certificate and my father complained to the police. They did not look at it seriously and he submitted it to the military prosecution office.", "They did not take it seriously either. Then my father heard that there were some people from an international human rights organisation [in town]. My father brought me there and showed them how I was beaten. In fact, after my release from the police my father brought me first to these people and then wrote to the police and to the prosecution authorities.” Since the minutes record only that said by Mr Assenov, it cannot be established whether or not his statement was made in response to questioning. ii.relevant domestic law and practice A.Gambling 54.", "Gambling is an administrative offence under Bulgarian law, for which individuals under sixteen years of age are not liable (section 2(2) of the Law against Speculation). B.Police powers relevant to the 1992 arrests and detention 55. Section 20(1) of the Law on National Police (1976), which applied at the relevant time, provided that a police officer could take to a police station or local government office only those persons: “1. whose identity may not be established; 2. who behave violently and do not obey after warning; 3. who refuse to come voluntarily to a police station without serious reasons for refusal, after having been notified under section 16 of the present Act; 4. who wilfully create obstacles for the authorities of the Ministry of Internal Affairs in carrying out their duties; 5. who carry or use without lawful permission firearms, other weapons or other dangerous objects; 6. in other cases prescribed by law.” According to section 20(2) of this Law, in each of the above cases the police were required to carry out an immediate investigation and release the person held within three hours, unless it was necessary to take further lawful measures in respect of him or her. 56.", "Section 24(1) contained provisions on the use of force by police officers. The use of force “adequate to the character and seriousness of the offence and resistance” (section 24(2)), was permitted: “1. to bring an end to violent conduct or other serious violation of the public order; 2. in cases of obvious disobedience to police orders or prohibition; 3. during arrest or convoy where there is danger of absconding or for the life of the person arrested or conveyed or for other persons.” C.Remedies against ill-treatment by police 1.Criminal remedies 57. Article 190 of the Code of Criminal Procedure (1974) (“CCP”) states: “There shall be considered to exist sufficient evidence for the institution of criminal proceedings where a reasonable supposition can be made that a crime might have been committed.” 58. In respect of most serious crimes, and all crimes allegedly committed by civil servants in the exercise of their duties, criminal proceedings cannot be brought by a private individual, but only by the decision of a public prosecutor (CCP, Articles 192 and 282–85).", "According to Articles 192 and 194 § 3 of the CCP, when a prosecutor has refused to institute criminal proceedings, such proceedings can be instituted by a higher prosecutor upon the petition of the interested person or ex officio. 59. The victim of an alleged crime can join criminal proceedings as a civil party in order to seek compensation (CCP, Chapter II, Articles 60–64). 2.Civil remedies 60. The Law on Obligations and Contracts provides in section 45 that a person who has suffered damage can seek redress by bringing a civil action against the person who has, through his fault, caused the damage.", "The Law on State Responsibility for Damage provides that a person who has suffered damage due to the unlawful act of a civil servant can bring an action against the State authority concerned. 61. The Code of Civil Procedure provides, in Articles 182(d) and 183, that a court examining a civil action: “182. … shall suspend the proceedings: (d)whenever criminal elements, the determination of which is decisive for the outcome of the civil dispute, are discovered in the course of the civil proceedings. 183.", "Proceedings which have been suspended shall be resumed ex officio or upon a party’s petition after the respective obstacles have been removed...” Article 222 of the Code of Civil Procedure provides: “The findings contained in a final judgment of a criminal court and concerning the issue whether the act in question has been committed, its unlawfulness and the perpetrator’s guilt, are binding on the civil court when it examines the civil consequences of the criminal act.” 62. The parties have submitted to the Court a number of decisions of the Bulgarian Supreme Court as to the effect of the above provisions. In decision no. 3421 of 18 January 1980 in case no. 1366/79, the First Civil Division of the Supreme Court held: “In principle the fact of a crime may only be established under the procedures of the Code of Criminal Procedure.", "This is why, when an alleged civil right derives from a fact which constitutes a crime under the Criminal Code, the civil court, according to Article 182(d) of the Code of Civil Procedure, is obliged to suspend the civil proceedings. This is necessary in order to respect the decision of the criminal court. It is mandatory for the civil courts regardless of the crime in issue. The mandatory binding force of the decisions of criminal courts is set out in Article 222 of the Code of Civil Procedure.” In decision no. 12/1966, the Plenary Civil Division of the Supreme Court held as follows: “The decision of the prosecution to terminate the criminal prosecution based on a finding that the accused is not guilty of committing the criminal act does not bind the civil court which examines the civil consequences of this act... [T]he civil court, on the basis of evidence [collected] in the course of the civil proceedings, can reach different factual findings, for example that the tort was in fact caused by the same person, the criminal prosecution against whom had been terminated.", "If in the course of the civil proceedings, after collection of evidence, fresh criminal circumstances are discovered, the determination of which is decisive for the outcome of the civil dispute, the court is obliged to suspend the proceedings in accordance with Article 182(d) of the Code of Civil Procedure.” In interpretative decision no. 11 of 3 January 1967 (Yearbook 1967), the Civil Assembly of the Supreme Court of Bulgaria held: “… In principle a civil court may not establish whether any particular act constitutes a crime. But when the criminal proceedings were closed under Article 6 § 21 of the Code of Criminal Procedure [where the criminal procedure was closed following the death of the alleged perpetrator, expiry of the time-limit for prosecution or where an amnesty has been granted], the criminal court does not make a decision whether the act constitues a crime. In such cases, the law – Article 97 § 4 of the Code of Civil Procedure – provides a possibility for the civil court to establish in a separate procedure whether the act constitutes a crime and who was the perpetrator.” In decision no. 817 of 13 December 1988 in case no.", "725, a claim for damages arising out of a car accident, the Fourth Civil Division of the Supreme Court held: “In dismissing the claim, the first-instance court had found that the only one responsible for the car accident was the claimant, who, at a distance of about ten metres, suddenly jumped in front of the car in order to cross the street and therefore, despite the measures taken by the driver, the collision was not avoided. This conclusion was based on the fact that the criminal investigation against the driver had been closed on the grounds of lack of evidence, ill-foundedness, lack of some of the elements comprising a crime in the accusation and lack of guilt. The court was not required to rely on the prosecutor’s decision to terminate the criminal investigation by Article 222 of the Code of Civil Procedure [see paragraph 61 above], which states that only the final judgment of a criminal court is binding on the court which deals with the civil consequences of the act in question. The order of a prosecutor closing an investigation has no evidential weight and his/her findings are not binding on the court dealing with the civil consequences of the act. Where there is no verdict of a criminal court finding the accused not guilty of causing the injuries of the claimant, the civil court must establish whether the defendant was guilty or not guilty on the basis of all admissible evidence under the Code of Civil Procedure.", "Thus, in the present case, the order of the prosecutor closing the investigation had no evidential weight that the defendant was not guilty for the car accident.” D.Crimes allegedly committed by Mr Assenov 1994–1995 63. In connection with the alleged burglaries, Mr Assenov was charged with an offence the elements of which are continuous criminal activity by a minor consisting of burglaries committed with accomplices and involving breaking in to locked premises, where the amount stolen is significant. The maximum punishment for this offence is three years’ imprisonment (Criminal Code 1968 (“CC”), Article 195 §§ 1(3), 1(5) and 2 in conjunction with Articles 26 § 1 and 63 § 1(3)). 64. In connection with the alleged robberies, he was charged with an offence of continuous criminal activity by a minor, committed with accomplices, consisting of robberies, defined as stealing with the use of force or threats.", "The punishment is up to five years’ imprisonment (CC, Article 198 § 1 in conjunction with Articles 26 § 1 and 63 § 1(2)). 65. Pursuant to Articles 23–25 of the CC, the maximum sentence which Mr Assenov could have received if convicted of all the charges against him was six and a half years’ imprisonment. E.The prosecuting authorities 66. According to the relevant provisions of the CCP and legal theory and practice, the prosecutor performs a dual function in criminal proceedings.", "During the preliminary stage he supervises the investigation. He is competent, inter alia, to give mandatory instructions to the investigator; to participate in examinations, searches or any other acts of investigation; to withdraw a case from one investigator and assign it to another, or to carry out the entire investigation, or parts of it, himself. He may also decide whether or not to terminate the proceedings, order additional investigations, or prepare an indictment and submit the case to court. At the judicial stage he is entrusted with the task of prosecuting the accused. 67.", "The investigator has a certain independence from the prosecutor in respect of his working methods and particular acts of investigation, but performs his functions under the latter’s instructions and supervision (CCP, Articles 48 § 2 and 201). If an investigator objects to the prosecutor’s instructions, he may apply to the higher prosecutor, whose decision is final and binding. 68. Under Article 86 of the CCP, the prosecutor and the investigator are under an obligation to collect both incriminating and exonerating evidence. Throughout criminal proceedings, the prosecutor must “effect a supervisory control of lawfulness” (CCP, Article 43).", "F.Provisions on pre-trial detention 1.Power of prosecuting authorities to detain on remand 69. An accused, including a minor, can be detained on remand by decision of an investigator or prosecutor, although minors may be detained on remand only in exceptional circumstances. In cases where the decision to detain has been taken by an investigator without the prior consent of a prosecutor, it must be approved by a prosecutor within twenty-four hours. The prosecutor usually makes this decision on the basis of the file, without hearing the accused (CCP, Articles 152, 172, 201–03 and 377–78). 70.", "A criminal investigation must be concluded within two months. A prolongation of up to six months may be authorised by a regional prosecutor and, in exceptional cases, the Chief Public Prosecutor may prolong the investigations up to nine months. If the period is prolonged, the prosecutor will decide whether to hold the accused in custody (CCP, Article 222). 71. There is no legal obstacle preventing the prosecutor who has taken the decision to detain an accused on remand, or has approved an investigator’s decision, from acting for the prosecution against the accused in any subsequent criminal proceedings.", "In practice this frequently occurs. 2.Judicial review of pre-trial detention 72. A person detained on remand has the opportunity immediately to file an appeal with the competent court against the imposition of detention. The court must rule within three days of the filing of the appeal (CCP, Article 152 § 5). 73.", "According to the practice which was current at the time of Mr Assenov’s arrest, the court examines appeals against detention on remand in camera, without the participation of the parties. If the appeal is dismissed, the court does not notify the detained person of the decision taken. 74. The First Criminal Division of the Supreme Court has held that, in deciding on such appeals, it is not open to the court to inquire whether there exists sufficient evidence supporting the charges against the detainee, but only to examine the lawfulness of the detention order. A detention order will only be lawful, in cases of persons charged with crimes punishable by less than ten years’ imprisonment, where there is a “real danger” of the accused absconding or reoffending (decision no.", "24 in case no. 268/95). 75. In a decision of 17 September 1992, the First Criminal Division of the Supreme Court found that the imposition of detention on remand could be contested before a court only once. A new appeal was only possible where a detained person had been released and then redetained.", "In all other cases a detained person could request his release from the prosecuting authorities if there had been a change of circumstances (decision no. 94 in case no. 754/92). 76. Periodic judicial review of the lawfulness of detention on remand becomes possible only when the criminal case is pending before a court, which can then decide whether or not to release the accused.", "PROCEEDINGS BEFORE THE COMMISSION 77. The applicants applied to the Commission on 6 September 1993. They complained, relying on Articles 3, 6 § 1 and 13 of the Convention, about Mr Assenov’s alleged ill-treatment by the police in September 1992 and the lack of any effective domestic remedy in this respect; relying on Articles 3 and 5 §§ 1, 3 and 4, about his detention on remand since July 1995; and, relying on Article 25, about the measures taken by the prosecuting authorities in connection with their application to the Commission. 78. The Commission declared the application (no.", "24760/94) admissible on 27 June 1996. In its report of 10 July 1997 (Article 31), it expressed the opinions, in relation to the events of September 1992, that there had been no violation of Article 3 (sixteen votes to one), that there had been a violation of Article 13 (unanimously) and that there had been no violation of Article 6 (unanimously). In connection with the events since 1995, it expressed the unanimous opinions that there had been no violation of Article 5 § 1 and no violation of Article 3, but that there had been violations of Article 5 §§ 3 and 4 and that Bulgaria had not complied with its obligations under Article 25. The full text of the Commission’s opinion and of the partly dissenting opinion contained in the report is reproduced as an annex to this judgment[3]. FINAL SUBMISSIONS TO THE COURT 79.", "In their memorial and at the oral hearing, the Government asked the Court to reject the applicants’ claims. Mr Assenov asked the Court to find violations of Articles 3, 5, 6, 13 and, together with his parents, 25 of the Convention, and all three applicants asked to be awarded just satisfaction under Article 50. AS TO THE LAW i.THE applicants 80. At the hearing before the Court, the applicants’ representative explained that, although for the purposes of the proceedings before the Commission Mr Assenov’s parents had joined his various complaints, they had done so only because at that time he had been a minor and thus lacking in capacity under Bulgarian law. The current position was that Mr Assenov was the sole applicant in respect of all the complaints except that under Article 25 of the Convention, which he brought jointly with his parents.", "81. The Court will, therefore, in respect of all the complaints save that under Article 25, only consider whether there have been violations of Mr Assenov’s rights. In respect of the Article 25 complaint it will also examine the position of Mr Ivanov and Mrs Ivanova. ii.events of and following 19 september 1992 A.The Government’s preliminary objections 1.Alleged non-exhaustion of domestic remedies 82. The Government contended that Mr Assenov’s complaint under Article 3 concerning the events of 19 September 1992 should have been declared inadmissible due to failure to exhaust domestic remedies, pursuant to Article 26 of the Convention, which states: “The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law…” In the Government’s submission, in addition to applying for a criminal prosecution to be brought against the police officers, the applicant could have brought civil proceedings under section 45 of the Law on Obligations and Contracts or administrative proceedings under the Law on State Responsibility for Damage.", "83. At the hearing before the Court, the applicant stated that it was difficult to imagine what additional steps he could have been expected to take in order to trigger the remedies formally available under Bulgarian law. 84. In its decision on admissibility, the Commission recalled that civil compensation could not be deemed fully to rectify a breach of Article 3. It found that, in complaining to the District Directorate of Internal Affairs (“DDIA”) and all levels of the prosecuting authorities, the applicants had done all they could to seek the institution of criminal proceedings against the police officers, thus putting their complaint in the hands of the authorities most competent to pursue it.", "85. The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 26 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system, 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 the Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996‑VI, pp. 2275–76, §§ 51–52). 86.", "The Court recalls that under Bulgarian law it is not possible for a complainant to initiate a criminal prosecution in respect of offences allegedly committed by agents of the State in the performance of their duties (see paragraph 58 above). It notes that the applicants made numerous appeals to the prosecuting authorities at all levels, requesting that a full criminal investigation be carried out into Mr Assenov’s allegations of ill-treatment by the police and that the officers concerned be prosecuted (see paragraphs 12–31 above). It considers that, having exhausted all the possibilities available to him within the criminal justice system, the applicant was not required, in the absence of a criminal prosecution in connection with his complaints, to embark on another attempt to obtain redress by bringing a civil action for damages. It follows, therefore, that the Government’s preliminary objection must be rejected. 2.Alleged abuse of process 87.", "In addition, the Government alleged that the applicant’s allegations had not been substantiated and had been designed to mislead the Commission, thus constituting an abuse of the right of petition. The application should, therefore, have been rejected under Article 27 § 2 of the Convention, which states: “The Commission shall consider inadmissible any petition … which it considers incompatible with the provisions of the … Convention, manifestly ill-founded, or an abuse of the right of petition.” 88. Having examined the applicant’s complaints, the Commission expressed the view in its decision on admissibility that they raised serious questions of fact and law which required full examination on the merits. 89. The Court finds no grounds that the present case was brought before the Commission in abuse of the right of petition.", "It therefore rejects this preliminary objection of the Government. B.Merits 1.Alleged violation of Article 3 of the Convention 90. Mr Assenov alleged that the events of 19 September 1992 had given rise to violations of Article 3 of the Convention, which states: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” He contended that this Article had been breached on two separate grounds. First, he asked the Court itself to examine the medical evidence and witness statements which, he alleged, demonstrated that he had been severely beaten by police officers. Secondly, joined by the interveners (see paragraph 5 above), he asked the Court to declare that wherever there were reasonable grounds to believe that an act of torture or inhuman or degrading treatment or punishment had been committed, the failure of the competent domestic authorities to carry out a prompt and impartial investigation in itself constituted a violation of Article 3.", "91. The Government pointed out that the applicant’s medical certificate was unreliable because it had been issued two days after the incident in question. In any case, the injuries which it described, and the absence of any certificate relating to Mr Ivanov, were consistent with the witnesses’ accounts of the father having beaten his son with a thin strip of wood. 92. In assessing the evidence before it, the Commission had regard to the principle that where an individual alleges to have been injured by ill-treatment in custody, the Government are under an obligation to provide a complete and sufficient explanation as to how the injuries were caused (see the Ribitsch v. Austria judgment of 4 December 1995, Series A no.", "336, pp. 25–26, § 34, and the above-mentioned Aksoy judgment, p. 2278, § 61). It accepted, inter alia, that a quarrel had erupted at the bus station between the police officers and Mr Ivanov, that the latter had hit his son with a plywood strip in an effort to show that he would punish the boy himself and that both applicants were then detained at the police station for approximately two hours. However, more than four and a half years after these events, and owing to the lack of a sufficiently independent and timely investigation by the domestic authorities, the Commission was not able to establish which version of events was the more credible. It did not, therefore, find any violation of Article 3.", "93. Article 3, as the Court has observed on many occasions, enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation (see the above-mentioned Aksoy judgment, p. 2278, § 62).", "94. The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see the Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, pp. 1517–18, §§ 52 and 53).", "95. The Court considers that the degree of bruising found by the doctor who examined Mr Assenov (see paragraph 11 above) indicates that the latter’s injuries, whether caused by his father or by the police, were sufficiently serious to amount to ill-treatment within the scope of Article 3 (see, for example, the A. v. the United Kingdom judgment of 23 September 1998, Reports 1998-VI, p. 2699, § 21, and the above-mentioned Ribitsch judgment, pp. 9 and 26, §§ 13 and 39). It remains to be considered whether the State should be held responsible under Article 3 in respect of these injuries. (a)Alleged ill-treatment by the police 96.", "The Court recalls that the Commission was unable, on the basis of the evidence before it, to establish how the applicant’s injuries were caused (see paragraph 92 above). 97. The Court observes that the doctor who examined Mr Assenov two days after the latter was released from police custody found that the bruises on his body indicated that he had been beaten with a solid object (see paragraph 26 above). The applicant alleged that these injuries had been caused by police officers who beat him with truncheons. 98.", "The Court considers that, since it is not disputed that the applicant was the victim of violence from some source on 19 September 1992, and since there is no suggestion of anything untoward having occurred between that date and his medical examination, it is fair to assume that he sustained the above bruising on 19 September 1992 in connection with his arrest. 99. The Court further notes that the arresting officer testified in his witness statement that he had seen Mr Ivanov hit his son on the back two or three times with a narrow wooden stick (see paragraph 14 above). It was not denied by the applicants that Mr Ivanov hit Mr Assenov in this way, although it was denied that he did so with the force or frequency required to cause the bruising described in the medical report. Following Mrs Ivanova’s complaint on 2 October 1992, an agent of the DDIA interviewed the applicants and took the above written statement from the arresting officer and statements from the other two officers involved, neither of whom had been present when Mr Ivanov hit Mr Assenov (ibid.).", "The only independent witness contacted by the DDIA investigator at that time could not remember any disturbance at the bus station (see paragraph 15 above). In July 1993, unknown to the applicants, witness statements were taken from two other bystanders at the bus station. One of these had only a vague recollection of the events in question. The other, a bus driver, recalled seeing Mr Ivanov hit his son with a lath, although he did not specify how prolonged or violent a beating this had been (see paragraph 28 above). None of the witnesses, except the applicants, said that they had seen police officers hitting Mr Assenov.", "100. The Court, like the Commission (see paragraph 92 above), finds it impossible to establish on the basis of the evidence before it whether or not the applicant’s injuries were caused by the police as he alleged. (b)Adequacy of the investigation 101. The Court does, however, consider that the medical evidence, Mr Assenov’s testimony, the fact that he was detained for two hours at the police station, and the lack of any account from any witness of Mr Ivanov beating his son with sufficient severity to cause the reported bruising, together raise a reasonable suspicion that these injuries may have been caused by the police. 102.", "The Court considers that, in these circumstances, where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention”, requires by implication that there should be an effective official investigation. This investigation, as with that under Article 2, should be capable of leading to the identification and punishment of those responsible (see, in relation to Article 2 of the Convention, the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, p. 49, § 161, the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, p. 324, § 86, and the Yaşa v. Turkey judgment of 2 September 1998, Reports 1998-VI, p. 2438, § 98). If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance (see paragraph 93 above), would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity. 103.", "The Court notes that following Mrs Ivanova’s complaint, the State authorities did carry out some investigation into the applicant’s allegations. It is not, however, persuaded that this investigation was sufficiently thorough and effective to meet the above requirements of Article 3. In this respect it finds it particularly unsatisfactory that the DDIA investigator was prepared to conclude that Mr Assenov’s injuries had been caused by his father (see paragraph 16 above), despite the lack of any evidence that the latter had beaten his son with the force which would have been required to cause the bruising described in the medical certificate. Although this incident had taken place in public view at the bus station, and although, according to the statements of the police officers concerned, it was seen by approximately fifteen to twenty Roma and twenty bus drivers, no attempt appears to have been made to ascertain the truth through contacting and questioning these witnesses in the immediate aftermath of the incident, when memories would have been fresh. Instead, at that time a statement was taken from only one independent witness, who was unable to recall the events in question (see paragraph 99 above).", "104. The initial investigation carried out by the regional military prosecution office (RMPO) and that of the general military prosecution office (GMPO) were even more cursory. The Court finds it particularly striking that the GMPO could conclude, without any evidence that Mr Assenov had not been compliant, and without any explanation as to the nature of the alleged disobedience, that “even if the blows were administered on the body of the juvenile, they occurred as a result of disobedience to police orders” (see paragraph 26 above). To make such an assumption runs contrary to the principle under Article 3 that, in respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct is in principle an infringement of his rights (see paragraph 94 above). 105.", "The Court notes that in July 1993 the GMPO decided that in cases of alleged police misconduct it was necessary to take evidence from independent witnesses (see paragraph 27 above). However, the examination of two further witnesses, one of whom had only a vague recollection of the incidents in question, was not sufficient to rectify the deficiencies in the investigation up to that point. 106. Against this background, in view of the lack of a thorough and effective investigation into the applicant’s arguable claim that he had been beaten by police officers, the Court finds that there has been a violation of Article 3 of the Convention. 2.Alleged violation of Article 6 § 1 of the Convention 107.", "Mr Assenov claimed to have been denied effective access to a court, in breach of Article 6 § 1 of the Convention, which provides, inter alia: “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…” 108. The applicant submitted that the decision of the prosecuting authorities not to bring criminal proceedings against the police officers who allegedly ill-treated him had, in effect, operated to deny him access to a court in respect of his civil claim for damages arising out of the same incident. Thus, since no criminal proceedings had been instigated, it had not been open to him to join such proceedings as a civil party in order to claim compensation (see paragraph 59 above). Moreover, although he accepted that it would in theory have been possible for him to bring an action for damages in the civil courts, he maintained that, since the damage in question arose out of an alleged criminal act, a civil court would have been obliged, under Article 182(d) of the Code of Civil Procedure (see paragraphs 61–62 above), to stay any such action until the issue of criminal liability had been decided. Given the likelihood of delay inherent in Bulgarian criminal procedure, this suspension might, in practice, have been indefinite.", "109. The Commission, joined by the Government (see also paragraph 82 above), noted that the Law on Obligations and Contracts and the Law on State Responsibility for Damage provided for an action for damages to the civil courts in relation to alleged acts of police brutality. Had the applicant brought such an action, a civil court could have examined it on the basis of the evidence before it, without having first to establish criminal responsibility. According to Bulgarian case-law, the civil court would only have had to suspend the proceedings under Article 182(d) of the Code of Civil Procedure if it had discovered new “criminal elements”, for example, facts of which the prosecuting authorities had not previously been aware. The Commission did not consider that this procedure would have operated to impair the very essence of the right of access to a court in the applicants’ case.", "110. The Court notes that none of those appearing before it disputed that any claim for damages brought by the applicant and based on alleged ill-treatment by the police would have involved “the determination of his civil rights”. It agrees that Article 6 § 1 is, for that reason, applicable. 111. The Court further notes that the applicant did not deny that both the Law on Obligations and Contracts and the Law on State Responsibility for Damage provided him with causes of action which would have enabled him to commence proceedings in the civil courts.", "He did, however, contend that any such action would have been stayed, perhaps indefinitely, under Article 182(d) of the Code of Civil Procedure. 112. Having regard to the Bulgarian case-law which has been submitted to it by the parties (see paragraph 62 above), the Court notes that the Supreme Court has held, in a case involving a car accident, that a civil court is not bound by the decision of the prosecuting authorities terminating a criminal investigation. The applicant has argued that this rule would not have been applied in his own case, based as it was on allegations of criminal acts much more serious than careless driving. This is, however, a matter of pure speculation, since Mr Assenov did not attempt to bring civil proceedings.", "In these circumstances, it cannot be said that he was denied access to a court or deprived of a fair hearing in the determination of his civil rights. 113. It follows that there has been no violation of Article 6 § 1 of the Convention. 3.Alleged violation of Article 13 of the Convention 114. The applicant also claimed to have been denied an effective remedy in respect of his Convention complaints, in breach of Article 13, which states: “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.” He submitted that, in cases of alleged ill-treatment contrary to Article 3, the State authorities were under an obligation under Article 13 to investigate promptly and impartially.", "115. The Government contended that there had been effective remedies available to the applicant in connection with his allegation of police ill-treatment. This was demonstrated by the fact that, prior to his application to the Commission, he had lodged complaints with the Regional Directorate in Shoumen, the RMPO in Varna and the GMPO in Sofia. Having examined the evidence, the prosecuting authorities had decided that it was insufficient to justify commencing criminal proceedings. In this respect it was to be noted that the applicant had not substantiated his allegations or identified witnesses who would be able to assist in the investigation.", "116. The Commission found that the applicant had had an arguable claim to have been ill-treated by the police. The official investigation had not been sufficiently thorough and independent to satisfy Article 13. 117. The Court recalls that Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order.", "The effect of this Article is thus 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 conform to their 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. Where an individual has an arguable claim that he has been ill-treated in breach of Article 3, the notion of an effective remedy entails, in addition to a thorough and effective investigation of the kind also required by Article 3 (see paragraph 102 above), effective access for the complainant to the investigatory procedure and the payment of compensation where appropriate (see the above-mentioned Aksoy judgment, pp. 2286 and 2287, §§ 95 and 98). 118.", "The Court refers to its above findings that Mr Assenov had an arguable claim that he had been ill-treated by agents of the State and that the domestic investigation of this claim was not sufficiently thorough and effective. It follows from these findings that there has also been a violation of Article 13 of the Convention. ii.Events of and following july 1995 A.The Government’s preliminary objections 1.Alleged non-exhaustion of domestic remedies 119. The Government submitted to the Court that the complaints concerning the events of and subsequent to July 1995 should have been declared inadmissible under Article 26 of the Convention (see paragraph 82 above) since criminal proceedings were still pending against the applicant. Moreover, the applicant had not appealed to the Attorney-General against the order refusing his release of 8 December 1995 (see paragraph 40 above).", "120. The Commission, in its decision on admissibility, found that the applicant had utilised every remedy available in connection with his complaints under Article 5. 121. The Court notes that Mr Assenov’s complaints under this heading concern various aspects of his detention from July 1995 onwards. It is therefore immaterial that the criminal prosecution against him was still pending at the time of his application to the Commission, since these criminal proceedings would not have provided him with any remedy in respect of the alleged unlawfulness of his preceding detention.", "122. The Court further notes that Mr Assenov and his parents on his behalf made numerous requests for his release to the prosecuting authorities and the Shoumen District Court. In these circumstances, it considers that the applicant has satisfied the requirements of Article 26 of the Convention (see paragraph 85 above). It follows that the Government’s preliminary objection must be rejected. 2.Alleged abuse of process 123.", "The Government further contended that the allegations concerning the events of and subsequent to July 1995 should have been declared inadmissible under Article 27 § 2 of the Convention (see paragraph 87 above) since they did not form part of the initial application to the Commission and were not causally linked to the matters originally complained of. 124. At the hearing before the Court, the Commission’s Delegate pointed out that the Government had not raised at the admissibility stage any objection concerning the alleged absence of connection between the applicant’s various complaints and observed that they should, therefore, be estopped from raising this objection before the Court. The Delegate stated that in any case applicants had the right to complain about any violation of their Convention rights; it was merely a procedural matter whether the complaints would be examined jointly or separately. 125.", "The Court agrees that since the Government’s preliminary objection concerning an alleged abuse of process was not raised before the Commission at the admissibility stage of the proceedings, the Government is estopped from raising it before the Court (see, amongst many other authorities, the Loizidou v. Turkey judgment of 23 March 1995, (preliminary objections), Series A no. 310, p. 19, § 44). 126. The Government also contended that the allegations concerning the alleged failure by the State to respect the right of individual petition under Article 25 of the Convention had not been substantiated and were, therefore, manifestly ill-founded. 127.", "The Court finds no evidence of abuse of process in connection with the complaints in question. It therefore rejects the Government’s preliminary objection. B.Merits 1.Alleged violation of Article 3 of the Convention 128. In the context of his complaint under Article 5 § 1 (see paragraph 137 below) the applicant complained about the conditions of his detention at Shoumen police station. He claimed to have shared with two to four adult prisoners a cell, which measured 3 by 1.8 metres and was situated below ground level, with only one bed and limited access to air and light.", "He stated that he was only permitted to leave the cell for half an hour twice a day to go to the toilet. 129. The Government alleged that the cell in which Mr Assenov was detained at Shoumen measured 4.6 by 3.5 metres and was shared with only one other detainee. 130. The Commission considered that the applicant’s allegations concerning the conditions of his detention, although initially raised under Article 5, should be examined in relation to Article 3.", "Having assessed all the facts, it did not find that the level of severity required for a breach of Article 3 had been attained. 131. The Court notes that the applicant has not expressly raised any complaint under Article 3 of the Convention (see paragraph 90 above) in connection with the conditions in which he was detained following his arrest in July 1995. He has, however, made certain allegations about these conditions in the context of his complaint about the legality of his detention under Article 5 § 1. 132.", "The Court recalls that it is master of the characterisation to be given in law to the facts of the case as declared admissible by the Commission (see the Guerra and Others v. Italy judgment of 19 February 1998, Reports 1998-I, p. 242, § 44). It follows that it is open to it to consider the applicant’s allegations concerning his conditions of detention in the light of the guarantees against ill-treatment provided by Article 3. 133. The Court observes that Mr Assenov, then aged 17, was detained on remand for a total of almost eleven months at Shoumen police station. It notes that the precise conditions of his detention there are disputed between the applicant and the Government, particularly the dimensions of the cell in which he was held and the number of prisoners with whom it was shared, and that the Commission made no findings in respect of these detailed facts.", "134. The Court notes with concern that, while still a juvenile, the applicant was held for almost eleven months in conditions which, in the view of the Chief Public Prosecutor’s Office, would be harmful to his physical and mental development if prolonged. It is noteworthy, moreover, that even after the decision was taken to move him, a further three and a half months were allowed to elapse before Mr Assenov was transferred to the Boychinovzi juvenile penitentiary (see paragraph 40 above). 135. It is the Court’s task, however, to assess whether these conditions were sufficiently severe to reach the level required for a finding of violation of Article 3 (see paragraph 94 above).", "In doing so, it must have regard to all the circumstances, such as the size of the cell and the degree of overcrowding, sanitary conditions, opportunities for recreation and exercise, medical treatment and supervision and the prisoner’s state of health. 136. Aside from the assertions of the parties, the Court has not been presented with any objective evidence relating to the applicant’s conditions of detention. It notes that the Commission made an overall assessment and did not find that the applicant’s conditions of detention were sufficiently severe as to violate Article 3. It further notes that the only medical report in respect of the applicant during this period to which it has been referred found, on 21 August 1995, after he had been detained for approximately one month, that he was healthy and that, despite his parents’ fears in this respect, there was no reason based on heart-disease against his continued imprisonment (see paragraph 37 above).", "In these circumstances, the Court does not find it established that the conditions of Mr Assenov’s detention were sufficiently severe as to give rise to a violation of Article 3 of the Convention. 2.Alleged violation of Article 5 § 1 of the Convention 137. Mr Assenov alleged that his detention had been unlawful, contrary to Article 5 § 1 of the Convention, which provides (as relevant): “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; …” He did not dispute that he had initially been detained for the purpose of bringing him before a court in compliance with Article 5 § 1 (c). However, he pointed out that the investigation into his alleged crimes had been completed by September 1995 and he alleged that thereafter his pre-trial detention had constituted a form of punishment, contrary to the presumption of innocence.", "Moreover, he reminded the Court that under Bulgarian law a minor should only be detained in exceptional circumstances (see paragraph 69 above). 138. The Commission noted that the time-limits contained in Article 222 of the CCP set restrictions on the length of any preliminary investigation but not of detention on remand (see paragraph 70 above). Article 222 did require that detention on remand following the prolongation of an investigation be confirmed. However, the applicant’s continued detention had complied with this requirement since it had been confirmed by the District Court on 19 September 1995 and by a number of decisions by the prosecuting authorities between October 1995 and October 1996.", "It did not, therefore, appear that the detention had been unlawful according to Bulgarian law or that there had been a breach of Article 5 § 1 on any other ground. 139. The Court recalls 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; but that they require in addition that any deprivation of liberty should be in conformity with the purpose of Article 5, which is to prevent persons from being deprived of their liberty in an arbitrary fashion (see, for example, the Erkalo v. the Netherlands judgment of 2 September 1998, Reports 1998-VI, p. 2477, § 52). 140. In the present case the Court, like the Commission, finds no evidence that the applicant’s detention was unlawful under Bulgarian law.", "Moreover, it is clear that Mr Assenov was detained on reasonable suspicion of having committed an offence, as permitted by Article 5 § 1 (c). 141. In conclusion, therefore, the Court finds no violation of Article 5 § 1 of the Convention. 3.Alleged violations of Article 5 § 3 of the Convention 142. Mr Assenov, who had been detained on remand for approximately two years, complained of violations of his rights under Article 5 § 3 of the Convention, which states: “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.” 143. As observed above, the applicant did not dispute that his detention, initially at least, fell within the scope of Article 5 § 1 (c). It follows that Article 5 § 3 is applicable. The Court will first consider whether it can be said that Mr Assenov was “brought promptly before a judge or other officer authorised by law to exercise judicial power”. Secondly, it will examine whether he was afforded a “trial within a reasonable time”, including whether he should have been released pending trial.", "(a)Right to be brought promptly before a judge or “other officer” 144. The Government submitted that the various prosecutors who considered Mr Assenov’s applications for release were “officer[s] authorised by law to exercise judicial power” within the meaning of Article 5 § 3, since under Bulgarian law a prosecutor was fully independent, under a duty to protect the public interest and authorised to decide on a number of questions arising in criminal proceedings, including whether or not to detain an accused on remand. 145. The Commission, with whom the applicant agreed, noted that although under Bulgarian law investigators were institutionally independent, in practice they were subject to the control of prosecutors with regard to every question concerning the conduct of an investigation, including whether or not to detain a suspect on remand. There was, therefore, a strong objective appearance that the investigator who dealt with Mr Assenov lacked independence from the prosecuting authorities, which were subsequently to act as the opposing party in criminal proceedings.", "146. The Court reiterates that judicial control of interferences by the executive with the individual’s right to liberty is an essential feature of the guarantee embodied in Article 5 § 3 (see the above-mentioned Aksoy judgment, p. 2282, § 76). Before an “officer” can be said to exercise “judicial power” within the meaning of this provision, he or she must satisfy certain conditions providing a guarantee to the person detained against any arbitrary or unjustified deprivation of liberty (see the Schiesser v. Switzerland judgment of 4 December 1979, Series A no. 34, p. 13, § 31). Thus, the “officer” must be independent of the executive and the parties (ibid.).", "In this respect, objective appearances at the time of the decision on detention are material: if it appears at that time that the “officer” may later intervene in subsequent criminal proceedings on behalf of the prosecuting authority, his independence and impartiality may be open to doubt (see the Huber v. Switzerland judgment of 23 October 1990, Series A no. 188, p. 18, § 43, and the Brincat v. Italy judgment of 26 November 1992, Series A no. 249-A, p. 12, § 21). The “officer” must hear the individual brought before him in person and review, by reference to legal criteria, whether or not the detention is justified. If it is not so justified, the “officer” must have the power to make a binding order for the detainee’s release (see the above-mentioned Schiesser judgment, pp.", "13–14, § 31, and the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 76, § 199). 147. The Court notes at the outset that Mr Assenov’s application for release was not considered by a judge until 19 September 1995 (see paragraph 38 above), three months into his detention. This was clearly insufficiently “prompt” for the purposes of Article 5 § 3 (see, for example, the Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no.", "145-B, p. 33, § 62), and indeed it has not been argued that this procedure was adequate to satisfy the requirements of this provision. 148. The Court recalls that on 28 July 1995 Mr Assenov was brought before an investigator who questioned him, formally charged him, and took the decision to detain him on remand (see paragraph 33 above). It notes that, under Bulgarian law, investigators do not have the power to make legally binding decisions as to the detention or release of a suspect. Instead, any decision made by an investigator is capable of being overturned by the prosecutor, who may also withdraw a case from an investigator if dissatisfied with the latter’s approach (see paragraphs 66–69 above).", "It follows that the investigator was not sufficiently independent properly to be described as an “officer authorised by law to exercise judicial power” within the meaning of Article 5 § 3. 149. Mr Assenov was not heard in person by prosecutor A., who approved the investigator’s decision (see paragraph 33 above), or by any of the other prosecutors who later decided that he should continue to be detained. In any case, since any one of these prosecutors could subsequently have acted against the applicant in criminal proceedings (see paragraph 66 above), they were not sufficiently independent or impartial for the purposes of Article 5 § 3. 150.", "The Court considers, therefore, that there has been a violation of Article 5 § 3 on the ground that the applicant was not brought before an “officer authorised by law to exercise judicial power”. (b)Right to trial within a reasonable time or release pending trial 151. The Government submitted that the preliminary investigation had been complex and time-consuming, involving the questioning of a number of alleged accomplices and witnesses and the consideration of expert evidence. On 31 January 1997 it had been necessary for the prosecuting authorities to refer the case for further investigation and re-examination of witnesses when a conflict of interest between Mr Assenov and his alleged accomplices became apparent. Throughout the investigatory process the applicant and his parents had continually filed applications for his release, each of which had led to the investigation being suspended while the application was being considered.", "In these circumstances it could not be said that Mr Assenov had been denied a trial within a reasonable time. 152. The Commission, attaching particular importance to the fact that between September 1995 and September 1996 the preliminary investigation had been practically dormant, found that Mr Assenov, who had then been detained on remand for over twenty-three months, had been denied a trial within a reasonable time. The applicant agreed with this conclusion. 153.", "The Court observes that the period to be taken into consideration commenced on 27 July 1995, when Mr Assenov was arrested, and continued until an unspecified day in July 1997, when he was convicted and sentenced in respect of four robberies (see paragraphs 33 and 48 above). His pre-trial detention therefore lasted approximately two years. 154. The Court reiterates that it falls in the first place to the national judicial authorities to ensure that the pre-trial detention of an accused person does not exceed a reasonable time. To this end, they must examine all the circumstances arguing for and 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 set these 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 true facts mentioned by the detainee in his applications for release and his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3. The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of the continued detention, but, after a certain lapse of time, it no longer suffices: the Court must then establish whether the other grounds cited 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 the Toth v. Austria judgment of 12 December 1991, Series A no. 224, p. 18, § 67). 155.", "The Court recalls that on the two occasions when the legality of Mr Assenov’s detention was reviewed by a court, his release was refused on the grounds that he was charged with a number of serious crimes and that his criminal activity had been persistent, giving rise to a danger that he would reoffend if released (see paragraphs 38 and 47 above). 156. The Court notes that on 28 July 1995 Mr Assenov was charged with sixteen or more burglaries and robberies, the latter involving some violence (see paragraph 33 above). Although he had first been questioned in connection with the investigation into this series of thefts in January 1995 (see paragraph 32 above), a number of the offences with which he was charged were committed subsequently; the last robbery having taken place on 24 July, three days before his arrest. In these circumstances, the Court considers that the national authorities were not unreasonable in fearing that the applicant might reoffend if released.", "157. However, the Court recalls that the applicant was a minor and thus, according to Bulgarian law, should have been detained on remand only in exceptional circumstances (see paragraph 69 above). It was, therefore, more than usually important that the authorities displayed special diligence in ensuring that he was brought to trial within a reasonable time. The Government have submitted that it took two years for the case to come to trial because it was particularly complex, requiring a lengthy investigation. However, it would appear from the information available to the Court that during one of those years, September 1995 to September 1996, virtually no action was taken in connection with the investigation: no new evidence was collected and Mr Assenov was questioned only once, on 21 March 1996 (see paragraphs 34 and 42 above).", "Moreover, given the importance of the right to liberty, and the possibility, for example, of copying the relevant documents rather than sending the original file to the authority concerned on each occasion, the applicant’s many appeals for release should not have been allowed to have the effect of suspending the investigation and thus delaying his trial (see the above-mentioned Toth judgment, p. 21, § 77). 158. Against this background, the Court finds that Mr Assenov was denied a “trial within a reasonable time”, in violation of Article 5 § 3. 4.Alleged violation of Article 5 § 4 of the Convention 159. The applicant further alleged that the respondent State had failed to comply with 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.” 160.", "The Government pointed out that Mr Assenov had taken the opportunity provided by the law as it then stood to apply to a court for a review of the lawfulness of his detention. Although the hearing had not been in public, the Shoumen District Court had considered the written submissions of the parties as contained in the case file. They also informed the Court that the law had been amended on 8 August 1997 and now provided in such cases for a public hearing in the presence of the parties. 161. The Commission, joined by the applicant, considered that the facts that the applicant was then a minor and that the stated reason for his continued detention was the risk of his reoffending suggested that a hearing should have been held.", "Instead, the Shoumen District Court, which moreover was not empowered to examine whether the accusations against Mr Assenov were supported by sufficient evidence (see paragraph 74 above), had examined the question of his continued detention in camera, without the participation of the parties (see paragraphs 38 and 73 above). Following this application, it had not been possible for him to request a further judicial review of his detention until the case had been sent for trial (see paragraphs 41, 47 and 75 above). In consequence, and in breach of Article 5 § 4, the first personal contact enjoyed by the applicant with an impartial judicial authority competent to review the lawfulness of his detention appeared to have taken place on 6 February 1997, approximately nineteen months after his arrest. 162. 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 (see paragraph 139 above), of his or her deprivation of liberty (see the above-mentioned Brogan and Others judgment, p. 34, § 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 (see the Megyeri v. Germany judgment of 12 May 1992, Series A no. 237-A, p. 11, § 22), it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question. In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required (see the above-mentioned Schiesser judgment, p. 13, §§ 30–31, the Sanchez-Reisse v. Switzerland judgment of 21 October 1986, Series A no. 107, p. 19, § 51, and the Kampanis v. Greece judgment of 13 July 1995, Series A no. 318-B, p. 45, § 47).", "Furthermore, Article 5 § 4 requires that a person detained on remand must be able to take proceedings at reasonable intervals to challenge the lawfulness of his detention (see the Bezicheri v. Italy judgment of 25 October 1989, Series A no. 164, pp. 10–11, §§ 20–21). In view of the assumption under the Convention that such detention is to be of strictly limited duration (see paragraph 154 above), periodic review at short intervals is called for (see the above-mentioned Bezicheri case, loc. cit.).", "163. The Court recalls that the Shoumen District Court examined Mr Assenov’s application for release in camera, without hearing him in person (see paragraphs 38 and 73 above). Whilst the Court notes that the relevant law has subsequently been amended to provide for an oral hearing in such cases (see paragraph 160 above), it is nonetheless required to restrict its assessment to the facts of the applicant’s case (see the Findlay v. the United Kingdom judgment of 25 February 1997, Reports 1997-I, p. 279, § 67). 164. Moreover, the Court notes that under Bulgarian law a person detained on remand is only entitled to apply to have the lawfulness of this detention reviewed by a court on one single occasion (see paragraph 75 above).", "Thus a second such request on the part of the applicant was rejected on this ground by the Shoumen District Court on 19 September 1995 (see paragraph 41 above). 165. In conclusion, in view in particular of the impossibility for the applicant, during his two years of pre-trial detention, to have the continuing lawfulness of this detention determined by a court on more than one occasion, and the failure of the court to hold an oral hearing on that occasion, the Court finds that there has been a violation of Article 5 § 4 of the Convention. 5.Alleged violation of Article 25 § 1 of the Convention 166. All three applicants complained that the State had hindered the effective exercise of their right to individual petition, contrary to Article 25 § 1 of the Convention, which states: “The Commission may receive petitions addressed to the Secretary General of the Council of Europe 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, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions.", "Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right.” 167. In their pleadings to the Court, the Government denied that there was any evidence to support the applicants’ claim that they had felt themselves compelled by agents of the State to sign any statement before a notary. 168. The Commission found it impossible to establish whether or not, following his arrest in July 1995, Mr Assenov had been questioned about his application to Strasbourg. However, it noted that his parents had been approached in this connection by representatives of either the police or prosecuting authorities, at a time when their son was being detained on remand.", "It considered that the only plausible explanation for the applicants’ sworn declaration was that they felt under pressure because of their application and wished to placate the authorities. 169. The Court recalls that the obligation on States under Article 25 § 1 of the Convention not to interfere with the right of the individual effectively to present and pursue his or her complaint with the Commission confers upon an applicant a right of a procedural nature which can be asserted in Convention proceedings. It is of the utmost importance for the effective system of individual petition that applicants or potential applicants are able to communicate freely with the Convention organs without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, pp. 1218 and 1219, §§ 103 and 105, and the Kurt v. Turkey judgment of 25 May 1998, Reports 1998-III, pp.", "1205–06, § 159). 170. The expression “any form of pressure” must be taken to cover not only direct coercion and flagrant acts of intimidation of applicants, but also other improper indirect acts or contacts designed to dissuade or discourage individuals from pursuing a Convention remedy (see the above-mentioned Kurt judgment, p. 1206, § 160). The question whether or not contacts between the authorities and applicants are tantamount to unacceptable practices from the standpoint of Article 25 must be determined in the light of the particular circumstances in issue (ibid.). In the present case, the Court notes that the applicants’ complaints to the Commission concerned serious allegations of misconduct on the part of the police and prosecuting authorities.", "At the relevant time, Mr Assenov was detained on remand and, given the facts which have led the Court to find violations of Article 5 § 3 and Article 5 § 4 of the Convention, his parents may legitimately have considered him to be at risk of prejudicial action taken by the prosecuting authorities. The authorities must also have been aware that the applicants were members of a minority group and had been the subject of comment in the press (see paragraph 50 above), further contributing to their susceptibility to pressure brought to bear on them. 171. In all the circumstances, the Court considers that the questioning of Mr Ivanov and Mrs Ivanova by a representative or representatives of these same authorities, which led the applicants to deny in a sworn declaration that they had made any application to the Commission (see paragraph 51 above), amounted to a form of improper pressure in hindrance of the right of individual petition. It follows that there has been a breach of Article 25 § 1 of the Convention.", "iv.application of article 50 of the convention 172. The applicants asked for just satisfaction pursuant to Article 50 of the Convention, which states: “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.Non-pecuniary damage 173. Mr Assenov claimed compensation for the harm caused to him by the many violations of his Convention rights. Mr Ivanov and Mrs Ivanova claimed non-pecuniary damages in respect of the pressure they were placed under by the authorities in breach of Article 25 § 1. 174.", "The Government submitted that no compensation should be awarded under Article 50. 175. The Court considers that, given the gravity and number of violations found in this case, compensation for non-pecuniary damage should be awarded to Mr Assenov, although it takes the view that the finding of a violation of Article 25 § 1 is adequate just satisfaction in respect of any non-pecuniary damage suffered by Mr Ivanov and Mrs Ivanova. Making an assessment on an equitable basis, it awards to Mr Assenov 6,000,000 Bulgarian levs. B.Costs and expenses 176.", "The applicants claimed costs and expenses equivalent to approximately 14,860 pounds sterling (GBP) in respect of their Bulgarian representative and GBP 7,600 in respect of their United Kingdom counsel. 177. At the hearing, the Government Co-Agent submitted that these claims were excessive. 178. The Court, taking into account the number of issues arising in the present case and their complexity, awards the sums claimed in full, less the amounts already paid in legal aid by the Council of Europe.", "The sum awarded to Mr Assenov’s Bulgarian representative should be converted into Bulgarian levs at the rate applicable on the date of settlement. C.Default interest 179. According to the information available to the Court, the statutory rate of interest applicable in Bulgaria at the date of adoption of the present judgment is 5.08% per annum and that applicable in the United Kingdom is 7.5% per annum. for these reasons the court 1.Dismisses unanimously the Government’s preliminary objections; 2.Holds by eight votes to one that there has been no violation of Article 3 based on Mr Assenov’s allegations of ill-treatment by the police; 3.Holds unanimously that there has been a violation of Article 3 of the Convention based on the failure to carry out an effective official investigation into Mr Assenov’s allegations of ill-treatment by the police; 4.Holds unanimously that there has been no violation of Article 6 § 1 of the Convention; 5.Holds unanimously that there has been a violation of Article 13 of the Convention; 6.Holds by eight votes to one that there has been no violation of Article 3 of the Convention in respect of the conditions of Mr Assenov’s detention from July 1995 onwards; 7.Holds unanimously that there has been no violation of Article 5 § 1 of the Convention; 8.Holds unanimously that there has been a violation of Article 5 § 3 of the Convention in that Mr Assenov was not brought promptly before a judge or other officer authorised by law to exercise judicial power; 9.Holds unanimously that there has been a violation of Article 5 § 3 of the Convention in that Mr Assenov was not given a trial within a reasonable time or released pending trial; 10.Holds unanimously that there has been a violation of Article 5 § 4 of the Convention; 11.Holds unanimously that there has been a violation of Article 25 § 1 of the Convention in respect of all three applicants; 12.Holds unanimously that the respondent State is to pay, within three months: (a)to the first applicant, in respect of non-pecuniary damage, 6,000,000 (six million) Bulgarian levs; (b)to all three applicants, in respect of costs and expenses, 14,860 (fourteen thousand eight hundred and sixty) pounds sterling to be converted into Bulgarian levs at the rate applicable on the date of settlement, together with 7,600 (seven thousand six hundred) pounds sterling, less 38,087 (thirty-eight thousand and eighty-seven) French francs to be converted into pounds sterling at the rate applicable on the date of settlement, together with any value-added tax which may be payable; and (c)that simple interest at an annual rate of 5.08% shall be payable on the above sums awarded in Bulgarian levs, and of 7.5% in respect of the above sums awarded in pounds sterling from the expiry of the above-mentioned three months until settlement; 13.Dismisses unanimously 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 28 October 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 partly dissenting opinion of Mr Mifsud Bonnici is annexed to this judgment. Initialled: R. B.Initialled: H. P. partly dissenting opinionOF jUDGE mifsud bonnici 1. I am in agreement with my brother judges on all counts except two which refer to Article 3 of the Convention. 2. Anton Assenov was 14 years old when, in September 1992, during an incident with the police, he suffered various bruises which the Court considered to be “sufficiently serious to amount to ill-treatment within the scope of Article 3” (paragraph 95 of the judgment).", "However, the Court found it impossible to establish on the basis of the evidence whether or not the applicant’s injuries were caused by the police, as he asserted (paragraph 100). For my part, I am of the opinion that once the allegation was made that these injuries were caused by the police with their truncheons in connection with Mr Assenov’s arrest, it was up to the Government “to provide a complete and sufficient explanation as to how the injuries were caused” as firmly established by the Court’s jurisprudence, noted and quoted in paragraph 92 of the judgment. The Bulgarian authorities did not provide a complete and sufficient explanation of how a boy of 14 years came to sustain those severe injuries. Of course, his father did admit that he “took a piece of plywood and hit his son” (paragraph 9) to show his disapproval of his son’s behaviour, but plywood does not cause the serious injuries discovered by the doctor two days after the incident in question. Police truncheons, however, can easily inflict such injuries.", "3. Similarly, I consider that the way the applicant (now approximately 17 years old) was treated in prison between July 1995 and March 1996, as described in paragraph 35 of the judgment, constitutes in itself inhuman treatment, keeping in mind, especially, that we are dealing with a minor who, in effect, was treated as a full-grown, mature criminal and lodged in a restricted cell for all those months with another, or other, full-blown criminal or criminals. 4. These facts compel me to reach the conclusion that in respect of a young person of between 14 and 17 years of age, the Bulgarian authorities have violated the terms of Article 3 of the Convention. [1]Notes by the Registrar .", "The case is numbered 90/1997/874/1086. 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. [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. [3]. 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." ]

[ "THIRD SECTION CASE OF MOSKALEV v. RUSSIA (Application no. 44045/05) JUDGMENT STRASBOURG 7 November 2017 FINAL 05/03/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Moskalev v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Helena Jäderblom, President,Branko Lubarda,Helen Keller,Dmitry Dedov,Pere Pastor Vilanova,Alena Poláčková,Georgios A. Serghides, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 10 October 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "44045/05) 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 Ivanovich Moskalev (“the applicant”), on 27 October 2005. 2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3. The applicant alleged, in particular, that he had been subjected to covert surveillance in breach of Article 8 of the Convention.", "4. On 20 March 2009 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1960 and lives in Omsk.", "6. The applicant was deputy head of the Omsk Regional Department for the Execution of Sentences. 7. On 22 August 2002 the Novosibirsk Regional Court authorised for 180 days the interception and recording of the applicant’s telephone conversations, interception of postal communications and the collection of data from technical channels of communication. The surveillance authorisation read in its entirety as follows: “Operational-search measures carried out with the aim of combatting corruption within State authorities have revealed indications of a systematic bribery scheme operated by certain prison officials in the Omsk region.", "According to operative information, there are good reasons to suspect [the applicant], deputy head of the Omsk Regional Department for the Execution of Sentences, of arranging for, and systematically receiving, unlawful payments from confidants of the convicts serving their sentences in Omsk penal institutions in exchange for granting them various privileges (such as a prison leave, improved conditions of detention or transfer to another penal institution within the Omsk region, which was for some reason preferred by the convict in question). Given that [the applicant’s] actions contain elements of criminal offences under Article 290 § 4 of the Criminal Code [bribe-taking], classified as a serious offence, and under Article 285 § 1 of the Criminal Code [abuse of power], it is necessary to perform a combination of operational-search measures (interception and recording of telephone conversations, monitoring of correspondence and collection of data from technical channels of communication) in order to collect evidence of his criminal activities, and to receive information about the bribe‑givers and the payment mechanisms used.” 8. On 18 February 2003 the Novosibirsk Regional Court authorised “audio surveillance” of the applicant’s office for 180 days. The Government did not submit a copy of that decision. 9.", "Charges of bribe-taking or abuse of power have never been brought against the applicant. 10. In March 2003 the applicant was charged with disclosure of State secrets, an offence under Article 283 § 1 of the Criminal Code, for informing a convict’s relative that the convict was under covert surveillance. 11. When studying the criminal case file, the applicant learnt for the first time that his telephone conversations had been recorded and his other communications monitored.", "He also learnt that a recording of his telephone conversation with Ms L., a sister of a convict detained in a penal institution under his supervision, formed the basis for the charge of disclosure of State secrets. During the conversation, which had taken place on 17 October 2002, the applicant had warned Ms L. that her relative was under covert surveillance and that there were listening devices hidden in his cell. 12. At the trial the applicant pleaded not guilty. He claimed, in particular, that the recording of his telephone conversation with Ms L. was inadmissible as evidence as it had been obtained unlawfully.", "13. On 16 February 2005 the Omsk Regional Court found the applicant guilty of disclosure of State secrets, an offence under Article 283 § 1 of the Criminal Code. It relied on the recording of the applicant’s telephone conversation with Ms L., among other evidence. It found that the recording was admissible as evidence as it had been obtained in accordance with the procedure prescribed by law. In particular, the interception of the applicant’s telephone conversations had been authorised by a court on the grounds that he was suspected of the serious criminal offence of bribe‑taking.", "The applicant was sentenced to three years’ imprisonment, suspended for two years. 14. In his appeal submissions the applicant complained, in particular, of a violation of his right to respect for his private life. He argued that the interception of his communications had been unlawful and unjustified, and that the recording of his conversation with Ms L. was inadmissible as evidence. 15.", "On 21 June 2005 the Supreme Court of the Russian Federation upheld the conviction on appeal. It noted that all the evidence had been collected in accordance with the procedure prescribed by law and was admissible. II. RELEVANT DOMESTIC LAW 16. For a summary of the domestic provisions on interception of communications and use of the data thereby collected in criminal proceedings, see Zubkov and Others v. Russia (nos.", "29431/05 and 2 others, §§ 40-57, 7 November 2017). 17. For a summary of the domestic provisions on judicial review of operational-search measures, see Zubkov and Others (cited above, §§ 58‑76). THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 18.", "The applicant complained that the covert surveillance measures carried out against him had violated his right to respect for his private life and correspondence. He relied on Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1.", "Submissions by the parties 19. The Government submitted that the applicant had not exhausted domestic remedies. Under Russian law a person who learned that he or she had been subjected to surveillance measures and believed that the actions of State officials ­had violated his or her rights was entitled to complain to a court under section 5 of the Operational-Search Activities Act (hereafter “the OSAA”). As explained by the Plenary Supreme Court, such complaints were to be examined in accordance with the procedure set out in Chapter 25 of the Code of Civil Procedure (hereafter “the CCP”) and the Judicial Review Act. 20.", "Instead of using the above-mentioned effective remedy, the applicant had chosen to raise the issue of covert surveillance in the criminal proceedings against him by contesting the admissibility of the audio recordings as evidence. The Government considered that contesting the admissibility of evidence in the framework of criminal proceedings could not be regarded as an effective remedy in respect of a complaint under Article 8. The aim of such a remedy was to exclude unlawfully obtained evidence from the list of evidence examined during the trial. It could therefore provide appropriate redress for a complaint under Article 6, but not for a complaint under Article 8. Indeed, the purpose of the criminal proceedings was to establish whether the defendant was innocent or guilty of the criminal charges levelled against him or her, rather than to attribute responsibility for the alleged violations of his or her right to respect for private life or correspondence.", "21. The applicant submitted that that the remedy suggested by the Government had been ineffective. 2. The Court’s assessment (a) Exhaustion of domestic remedies 22. The Court notes at the outset that the applicant raised the issue of covert surveillance in the criminal proceedings against him.", "It agrees with the Government that the courts in the criminal proceedings were not capable of providing an effective remedy. Although they could consider questions of the fairness of admitting the evidence in the criminal proceedings, it was not open to them to deal with the substance of the Convention complaint that the interference with the applicant’s right to respect for his private life and correspondence was not “in accordance with the law” or not “necessary in a democratic society”; still less was it open to them to grant appropriate relief in connection with the complaint (see Khan v. the United Kingdom, no. 35394/97, § 44, ECHR 2000‑V; P.G. and J.H. v. the United Kingdom, no.", "44787/98, § 86, ECHR 2001‑IX; Goranova-Karaeneva v. Bulgaria, no. 12739/05, § 59, 8 March 2011; and İrfan Güzel v. Turkey, no. 35285/08, §§ 106-07, 7 February 2017; and, by contrast, Dragojević v. Croatia, no. 68955/11, §§ 35, 42, 47 and 72, 15 January 2015; Šantare and Labazņikovs v. Latvia, no. 34148/07, §§ 25 and 40-46, 31 March 2016; and Radzhab Magomedov v. Russia, no.", "20933/08, §§ 20 and 77-79, 20 December 2016). The Court therefore agrees with the Government that raising the issue of covert surveillance in the criminal proceedings cannot be regarded as an effective remedy in respect of a complaint under Article 8. 23. The Court will next examine whether a judicial review complaint under section 5 of the OSAA together with Chapter 25 of the CCP and the Judicial Review Act was an effective remedy to be exhausted. It notes that the scope of the judicial review complaint under section 5 of the OSAA lodged in proceedings under the Judicial Review Act and Chapter 25 of the CCP was limited to reviewing the lawfulness of the actions of the State officials performing surveillance activities, that is whether or not they carried out the surveillance in a manner compatible with the applicable legal requirements and whether they abided by the terms of the judicial authorisation.", "The review did not touch upon the legal and factual grounds for the underlying judicial authorisation, that is, whether there were relevant and sufficient reasons for authorising covert surveillance (see, for similar reasoning, Avanesyan v. Russia, no. 41152/06, §§ 31-33, 18 September 2014, concerning an “inspection” of the applicant’s flat under the OSAA). 24. Indeed, in accordance with Chapter 25 of the CCP and the Judicial Review Act, in force at the material time, the sole relevant issue before the domestic courts was whether the actions of the State officials performing covert surveillance were lawful. It is clear from the Supreme Court’s interpretation of the relevant provisions that “lawfulness” was understood as compliance with the rules of competence, procedure and contents.", "It follows that the courts were not required by law to examine the issues of “necessity in a democratic society”, in particular whether the contested actions answered a pressing social need and were proportionate to any legitimate aims pursued, principles which lie at the heart of the Court’s analysis of complaints under Article 8 of the Convention (see paragraph 38 below). In any event, the Court is not convinced that a judge would have competence to review the “necessity” of the actions based on a valid judicial authorisation that had become res judicata. 25. The Court has already found on a number of occasions, in the context of Article 8, that a judicial review remedy which was incapable of examining whether the contested interference answered a pressing social need and was proportionate to the aims pursued could not be considered an effective remedy (see Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, §§ 135‑39, ECHR 1999‑VI; Peck v. the United Kingdom, no.", "44647/98, §§ 105-07, ECHR 2003‑I; and Keegan v. the United Kingdom, no. 28867/03, §§ 40-43, ECHR 2006‑X). 26. In view of the above considerations, the Court finds that a judicial review complaint under section 5 of the OSAA, lodged in proceedings under the Judicial Review Act and Chapter 25 of the CCP, was not an effective remedy to be exhausted. It therefore dismisses the Government’s objection as to the non-exhaustion of domestic remedies.", "(b) Compliance with the six-month time-limit 27. The Court observes that the applicant introduced his application within six months of the final judgment in the criminal proceedings against him. It is significant that the applicant learned about the covert surveillance during those criminal proceedings. The prosecution used the intercepted material as evidence to substantiate the case against him. The Court considers that it was reasonable, in such circumstances, for the applicant to try to bring his grievances to the attention of the domestic courts by raising the issue at the trial.", "The Court discerns nothing in the parties’ submissions to suggest that the applicant was aware, or should have become aware, of the futility of such a course of action. Indeed, the domestic courts could, and did, examine whether the surveillance measures had been lawful and, therefore, addressed in substance part of the applicant’s Convention complaint. In those circumstances, the Court considers that the applicant cannot be reproached for his attempt to bring his grievances to the attention of the domestic courts by means of a remedy which he mistakenly considered effective (see, for similar reasoning, Radzhab Magomedov, cited above, §§ 77-79). 28. The Court accordingly finds that the applicant complied with the six‑month rule.", "29. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. Submissions by the parties 30. The Government submitted at the outset that Russian law met the Convention “quality of law” requirements. All legal provisions governing covert surveillance had been officially published and were accessible to the public. Russian law clearly set out the nature of offences which might give rise to a covert surveillance order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of covert surveillance; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or destroyed.", "31. The Government further submitted that corruption, and in particular bribe-taking, was a serious criminal offence that was very difficult to detect. It was therefore necessary to resort to covert surveillance to combat it. Covert surveillance could only be carried out for the purposes specified in the OSAA and only on the basis of a court order. Those legal provisions guaranteed that covert surveillance, including that in the applicant’s case, was ordered only when necessary in a democratic society.", "32. The applicant submitted that Russian legal provisions governing covert surveillance did not meet the Convention’s “quality of law” requirements. In particular, domestic law permitted covert surveillance in cases of receipt by the authorities of any information about persons conspiring to commit, or committing, or having committed a criminal offence, even if such information would be insufficient to open a criminal case. In the applicant’s opinion, the scope of application of covert surveillance measures, as defined by national law, was therefore too wide and gave the authorities too much discretion in determining whether there was sufficient information to start surveillance. Moreover, Russian law gave the authorities performing covert surveillance unlimited discretion to decide whether the data collected as a result of it was to be transmitted to the prosecuting authorities or to a court.", "The decision not to transmit such data, or to transmit only part of them, kept the subject of the surveillance in the dark about the surveillance measures taken against him, and therefore deprived him or her of any possibility to apply for judicial review. 33. The applicant further submitted that under domestic law a judicial decision authorising covert surveillance was to be taken on the basis of a reasoned request by the head of one of the agencies competent to perform surveillance activities. There was no requirement for the judge to verify the information submitted by the requesting authority or otherwise to assess the grounds for covert surveillance advanced by the requesting authority. Although a judge could request supporting material, the requesting authority was not obliged to submit it.", "Moreover, national law expressly prohibited submission to the judge of certain data – those containing information about undercover agents or police informers or about the organisation and tactics of surveillance measures – thereby making it impossible for the judge to effectively verify the information submitted to him or her. The authorisation procedure did not, therefore, provide adequate safeguards against arbitrariness. 34. Lastly, the applicant submitted that the covert surveillance measures taken against him had not been “necessary in a democratic society”. The judge who had authorised the surveillance measures had not verified whether there had been a reasonable suspicion of his involvement in bribe‑taking.", "Indeed, the fact that the entire text of the judicial decision had been typed except the date and the name of the judge, which had been written by pen, gave reason to believe that the judge had just put the date, her name and signature on the document prepared for her in advance by the requesting authority, acting in fact as a “rubber stamp”. It was also significant that although his communications had been intercepted for many months, no evidence of bribe-taking had ever been collected and he had never been charged with that offence. The offence for which he had ultimately been convicted was in no way connected to the offences mentioned in the surveillance authorisation. 2. The Court’s assessment 35.", "The Court accepts, and it is not disputed by the parties, that the interception of the applicant’s communications amounted to an interference with the exercise of his right to respect for his “private life” and “correspondence”, as set out in Article 8 of the Convention. 36. The Court reiterates that such interference will give rise to a breach of Article 8 of the Convention unless it can be shown that it was “in accordance with law”, pursued one or more legitimate aims as defined in the second paragraph and was “necessary in a democratic society” to achieve those aims (see, among other authorities, Goranova‑Karaeneva, cited above, § 45). 37. The wording “in accordance with the law” requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8.", "The law must thus meet quality requirements: it must be accessible to the person concerned and foreseeable as to its effects (see Roman Zakharov v. Russia [GC], no. 47143/06, § 228, ECHR 2015). 38. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient”. While it is for the national authorities to make the initial assessment in all these respects, the final evaluation of whether the interference is necessary remains subject to review by the Court for conformity with the requirements of the Convention (see S. and Marper v. the United Kingdom [GC], nos.", "30562/04 and 30566/04, § 101, ECHR 2008). In the context of covert surveillance, the assessment depends on all the circumstances of the case, such as the nature, scope and duration of the surveillance measures, the grounds for ordering them, the authorities competent to authorise, carry out and supervise them, and the kind of remedy provided by the national law. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the “interference” to what is “necessary in a democratic society” (see Roman Zakharov, cited above, § 232). 39. As regards the question of lawfulness, it has not been disputed by the parties that the covert surveillance of the applicant had a basis in domestic law, namely in the relevant provisions of the OSAA.", "40. As regards the applicant’s complaint that the quality of the domestic law fell short of the Convention standards, the Court has already found in the case of Roman Zakharov that Russian law does not meet the “quality of law” requirement because the legal provisions governing the interception of communications does not offer adequate and effective guarantees against arbitrariness and the risk of abuse. They are therefore incapable of keeping the “interference” to what is “necessary in a democratic society” (see Roman Zakharov, cited above, §§ 302-04). In the present case, however, the applicant’s complaints were based on specific and undisputed instances of covert surveillance. Although the Court’s assessment of the “quality of law” necessarily entails some degree of abstraction, it cannot be of the same level of generality as in cases such as Roman Zakharov, which concern general complaints about the law permitting covert surveillance and in which the Court must, of necessity and by way of exception to its normal approach, carry out a completely abstract assessment of such law.", "In cases arising from individual applications, the Court must as a rule focus its attention not on the law as such, but on the manner in which it was applied to the applicant in the particular circumstances (see Goranova-Karaeneva, cited above, § 48). 41. In the Roman Zakharov case the Court has found, in particular, that the judicial authorisation procedures provided for by Russian law are not capable of ensuring that covert surveillance measures are not ordered haphazardly, irregularly or without due and proper consideration. In particular, the OSAA does not instruct judges ordering covert surveillance measures to verify the existence of a “reasonable suspicion” against the person concerned or to apply the “necessity” and “proportionality” tests. The Court has also found it established, on the basis of evidence submitted by the parties, that in their everyday practice the Russian courts do not verify whether there is a “reasonable suspicion” against the person concerned and do not apply the “necessity” and “proportionality” tests (see Roman Zakharov, cited above, §§ 260-67).", "42. There is no indication in the case file that the Russian courts acted differently in the present case. Although the court noted that “there [were] good reasons to suspect” the applicant of bribe-taking (see paragraph 7 above), it did not mention any facts or information that would satisfy an objective observer that the applicant might have committed the offence. There is no evidence that any information or documents confirming the suspicion against the applicant had been submitted to the judge. Although the Court asked the Government to produce a copy of the request for interception of the applicant’s communications, together with supporting documents, the Government failed to do it, without providing any explanation.", "In such circumstances, the Court can only conclude that no documents supporting the suspicion against the applicant were submitted to the judge and that the reasonableness of the suspicion was not therefore verified by the court that authorised the covert surveillance measure against the applicant. 43. Furthermore, there is no indication in the text of the surveillance authorisation that the court applied the test of “necessity in a democratic society”, and in particular assessed whether the surveillance measures carried out against the applicant were proportionate to any legitimate aim pursued. In particular, the court failed to recognise that the case involved a conflict between the right to respect for private life and correspondence and other legitimate interests and to perform a balancing exercise. The only reason advanced by the court to justify the surveillance measures was that the applicant was suspected of a serious criminal offence.", "Although that reason was undoubtedly relevant, the Court does not consider that it was in itself sufficient to justify the lengthy and extensive covert surveillance, which entailed a serious interference with the right to respect for the applicant’s private life and correspondence. No other reasons were advanced by the court. 44. To sum up, the Court finds that the domestic courts that authorised covert surveillance measures against the applicant did not verify whether there was a “reasonable suspicion” against him and did not apply the “necessity in a democratic society” and “proportionality” tests. 45.", "There has accordingly been a violation of Article 8 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 46. The Court has examined the other complaints submitted by the applicant and, having regard to all the material in its possession and in so far as the complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "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) in respect of non‑pecuniary damage.", "49. The Government submitted that the claim was excessive. 50. The Court awards the applicant EUR 7,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable. B.", "Costs and expenses 51. The applicant also claimed 37,000 Russian roubles (about EUR 820) for the legal fees incurred before the domestic courts. He presented the relevant invoices. 52. The Government submitted that the applicant’s claim was for costs and expenses incurred in the domestic proceedings only.", "Given that he had not exhausted the domestic remedies, they urged the Court to reject his claim. 53. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 400 for costs and expenses in the domestic proceedings, plus any tax that may be chargeable to the applicant. C. Default interest 54.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint concerning the alleged breach of the applicant’s right to respect for his private life and correspondence admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 8 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 400 (four hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 7 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıHelena JäderblomDeputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF GUBIN v. RUSSIA (Application no. 8217/04) JUDGMENT STRASBOURG 17 June 2010 FINAL 17/09/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gubin v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 27 May 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "8217/04) 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 Aleksey Andreyevich Gubin (“the applicant”), on 19 January 2004. 2. The applicant, who was granted legal aid, was represented by Ms Y. Yefremova, a lawyer practising in Moscow. The Russian Government (“the Government”) were initially represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights, and Mr A. Savenkov, First Deputy Minister of Justice of the Russian Federation, and subsequently by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicant claimed, in particular, that he had been detained in inhuman and degrading conditions in remand prison no. 77/1 in Moscow and that he and his counsel had not been present at the appeal hearing on the extension of his pre-trial detention on 3 November 2003. The Court also considered it appropriate to raise of its own motion the issue of Russia's compliance with the requirements of Article 13 of the Convention as regards the availability of an effective remedy in respect of the applicant's complaint about conditions of his pre-trial detention in remand prison no. 77/1 in Moscow. 4.", "On 26 May 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 THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1981 and lives in Moscow. A.", "The applicant's arrest and pre-trial detention 6. On 12 August 2003 a Ms T. lodged a complaint with the Kuzminskiy District Prosecutor's Office of Moscow alleging that she had been kidnapped and raped by a group of men. 7. On 13 August 2003 the applicant was arrested on suspicion of kidnapping and rape. 8.", "On 14 August 2003 the District Court authorised the applicant's detention pending trial. The applicant was represented by counsel of his own choosing. 9. According to the applicant, he could not appeal against the decision of 14 August 2003 since he was not provided with stationery by the administration of the temporary detention facility where he was being held at the time. 10.", "On 8 October 2003 the Kuzminskiy District Court of Moscow extended the applicant's pre-trial detention until 12 December 2003. The applicant attended the hearing. His counsel asked the court to consider the case in his absence and did not appear at the hearing. The applicant was represented by a court-appointed lawyer. 11.", "On 14 October 2003 the applicant lodged an appeal against the court order of 8 October 2003. He asked the appeal court to ensure his and his lawyer's presence at the hearing. 12. On 3 November 2003 the Moscow City Court examined the appeal. The hearing was held in the absence of the applicant and his counsel.", "The prosecutor considered that the applicant's appeal should be dismissed. The City Court found that the extension of the applicant's pre-trial detention was in accordance with the law and upheld the decision of 8 October 2003. 13. The District Court further extended the applicant's detention pending trial. Extensions were granted at the prosecutor's request on 3 December 2003 and 10 February 2004.", "The City Court upheld those decisions on appeal on 21 January and 9 March 2004 respectively. The applicant did not provide any other details in respect of the detention orders. 14. On several occasions in 2004 the applicant asked the investigator to question additional witnesses and examine forensic evidence. The investigator dismissed the applicant's requests, indicating, inter alia, that: “The guilt of [the defendants] ha[d] been fully proved”.", "15. On 30 January 2004 the District Court dismissed the applicant's complaint about the prosecutor's refusal to open a criminal investigation against the police officers who had allegedly ill-treated him during his arrest. The applicant did not appeal. B. The trial 16.", "On 1 April 2004 the Kuzminskiy District Court of Moscow received the case file. 17. On 20 December 2004 the District Court found the applicant guilty of kidnapping and rape and sentenced him to four and a half years' imprisonment. 18. On 19 April 2005 the Moscow City Court upheld the applicant's conviction on appeal.", "C. Conditions of the applicant's detention 1. Detention in the temporary detention facility 19. From 13 to 20 August 2003 the applicant was held in cell no. 2 of the Maryinskiy temporary detention facility. The cell measured 8 sq.", "m. The applicant was detained there alone. According to him, the cell was poorly lit, and the cement floor was dirty. The cell was infested with bedbugs and other insects. The corners were covered in cobwebs. No bed sheets, mattresses or blankets were provided.", "The radio was left on during the whole night. Water was available twice a day. There was no sink and the applicant had to wash himself over the toilet. The applicant received one meal a day. 2.", "Detention in remand prison no. 77/1 (a) The description provided by the applicant 20. On 20 August 2003 the applicant was transferred to remand prison no. 77/1. On arrival he was placed in a cubicle measuring 1 sq.", "m where he spent the whole day. He was not given any food or allowed to use the bathroom for the whole of the time he spent in the cubicle. 21. On 21 August 2003 the applicant was placed in cell no. 274, where he was detained until 11 September 2004.", "It measured 16 sq. m and had eight sleeping places. It housed from ten to fifteen persons (in his subsequent submissions the applicant stated that it housed from twelve to sixteen persons). The inmates had to take turns to sleep. The beds were 1.65 m long.", "The cell did not have any drawers or shelves to allow the inmates to store their personal belongings properly. Approximately eighty per cent of the inmates smoked and the applicant, a non-smoker, was exposed to tobacco smoke. The toilet was located about one metre from the dinner table. It was dirty and foul smelling. There was no separation between the toilet and the living area of the cell and the person using it could be seen by others present in the cell.", "The inmates had to pull a curtain across to separate the toilet from the living area. However, the prison guards removed the curtain each time they made an inspection. Because of the overcrowding of the cell the inmates had to wait a long time for their turn to use the toilet. 22. The food was of poor quality and portions were small.", "On the days of the court hearings, the applicant left the prison at six a.m. and came back late at night. As a result, he missed the meals served at the prison and was left hungry all day. No drinking water was available in the cell. There was only cold tap water that contained rust and had a peculiar colour and taste. 23.", "The cell had only one window measuring 1.2 sq. m, which was covered with a metal screen and bars. The screen and the bars prevented any fresh air or natural light from entering the cell. There were no window panes. The artificial ventilation system did not function properly.", "The electric light was constantly on. 24. The cell was stuffy and infested with parasites. It was never disinfected. There was fungus and mould in the shower rooms.", "Medical assistance was of poor quality. 25. According to the applicant, he twice attempted to lodge a complaint with the authorities about the conditions of his detention. On both occasions an administrative officer physically destroyed the written complaints. 26.", "The applicant submitted written testimonies from five of his fellow mates who corroborated the description of cell no. 274 provided by the applicant. (b) The description provided by the Government 27. On arrival at the remand prison the applicant was taken first to the processing area (сборное отделение). He was held for one hour in a one-person cubicle equipped with a seat and artificial lighting.", "Then he was transferred to another cell which was equipped with running water, lighting, ventilation and a seat. The applicant spent about one day there. 28. On 21 August 2003 the applicant was transferred to cell no. 274.", "The average number of inmates held with the applicant in that cell was seven. There were eight beds in the cell. At all times the applicant and other inmates were provided with an individual sleeping place and bed linen. 29. According to the excerpts from the remand prison population register submitted by the Government, the number of inmates in the cell was as follows: Date Number of inmates 21 August 2003 Four 24 August 2003 Four 6 September 2003 Six 29 September 2003 Six 7 October 2003 Six Unspecified date Nine 30.", "There were no metal shutters on the cell windows. They had been removed before 1 April 2003, that is before the applicant's detention there began. The windows were provided with air vents which could be kept open. There was also exhaust ventilation which was in good working order. The prison was equipped with central heating which functioned properly at all times.", "The average temperature in the cells was never below +180C during the winter and did not exceed +220C during the summer. 31. The cell was equipped with electrical lighting. During the day lighting was on from 6 am to 10 pm. At night lower-voltage bulbs were used to provide lighting for surveillance and safety reasons.", "32. The applicant had the opportunity to take a shower once a week. The bed linen was changed weekly. The remand prison had a centralised water supply system. The quality of the water was in full compliance with standards of hygiene.", "33. The cell was disinfected according to the schedule approved by the head of the prison. The daily cleaning was the inmates' responsibility. The toilet was separated from the rest of the cell by a 1.25-metre partition to ensure the privacy of the person using it. 34.", "The applicant received three meals a day. The food ration was in full compliance with quality and quantity standards. 3. Applicant's transfer to remand prison no. 77/6 35.", "On 11 September 2004 the applicant was transferred to remand prison no. 77/6. 36. On 4 October 2004 he lodged another complaint about the conditions of his detention in remand prison no. 77/1.", "37. On 27 November 2004 Ms F., an administrative officer at the remand prison, allegedly summoned the applicant to her office. She threatened to move him back to remand prison no. 77/1 or make his life more difficult at remand prison no. 77/6 if he continued to complain about the conditions of his detention.", "38. On 30 November 2004 the Moscow City Department of Corrections responded officially to the applicant's complaint about conditions of detention at remand prison no. 77/1. The applicant was informed that the overcrowding in the cells had been caused by renovation work being carried out at the prison; that the food rationing was in accordance with the applicable norms; that the inmates were allowed to take a fifteen-minute shower once a week; and that the bed sheets were changed on a weekly basis. 4.", "Applicant's post-conviction detention 39. From 18 to 31 May 2005 the applicant was detained in remand prison no. 66/1 in Yekaterinburg. According to the applicant, he was held in cell no. 334, which measured 30 sq.", "m and housed from twenty-four to twenty-seven persons. It had eleven sleeping places and the inmates had to take turns to sleep. The cell was infested with bedbugs, cockroaches, lice and rats. It was never cleaned. There were nine mattresses.", "No bed sheets, pillows or blankets were provided, nor was there any cutlery or tableware. Water was constantly leaking from a corroded sink onto the floor. The toilet was separated from the living area by a partition less than one metre high. The inmates were allowed to shower once every ten days. Because of the small size of the table and bench, the inmates had to take turns to eat.", "There was no radio or clock. The inmates did not receive soap or buckets with which to do their laundry. THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 40. The applicant complained that he had been detained in appalling conditions in remand prison no.", "77/1 in Moscow from 20 August 2003 to 11 September 2004 in contravention of 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.” 41. The Court considered it appropriate to raise of its own motion the issue of Russia's compliance with the requirements of Article 13 of the Convention which, in so far as relevant, provides as follows: Article 13 Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority...” A. Submissions by the parties 1. The Government 42. The Government noted that the applicant had failed to bring his grievances to the attention of a competent domestic authority and considered that his complaint should be rejected because he had failed to comply with the requirements of Article 35 § 1 of the Convention, as he had not exhausted domestic remedies before lodging his application with the Court. In particular, they submitted that it had been open to the applicant to bring his grievances to the attention of the prosecutor.", "They cited the following examples from the domestic practice in support of their position: in response to a complaint by a Mr N, the Novosibirsk prosecutor's office had conducted an inquiry which confirmed his allegations that the food ration was insufficient and the water supply was irregular. As a result, the prison administration had renovated the prison and purchased medical supplies; in the Vladimir Region, a special section for the detention of inmates diagnosed with tuberculosis had been set up following an NGO's complaint in respect of a Mr B; in the Khabarovsk Region the administration of the prison where a Mr Sh. and a Mr Z. were detained had renovated the shower and laundry rooms, upgraded the ventilation system in the disciplinary block and set up an area for medical consultations. Alternatively, the applicant could have brought a civil action for damages resulting from the conditions of his detention. The Government cited two cases: a Mr S. had been awarded 250,000 roubles (RUB) in compensation for non-pecuniary damage resulting from the violation of his rights set forth in Article 3 of the Convention on account of the appalling conditions of his detention in a remand prison in the Mariy El Republic; a Mr D. had been awarded RUB 25,000 in compensation for non-pecuniary damage arising from the unsatisfactory conditions of his pre-trial detention.", "43. The Government claimed that the conditions of the applicant's detention had been in compliance with the standards set forth in Article 3 of the Convention. They submitted that at all times the applicant had been provided with an individual bed and bedding. The Government referred to the copies of excerpts from the remand prison population register for the period from 18 April 2003 to 10 November 2003. 2.", "The applicant 44. The applicant maintained his complaint. He submitted that he had been detained in inhuman and degrading conditions for over a year and did not have an effective domestic remedy for the violation of his rights. In addition to his own description of the cell, he provided testimonies from five of his fellow inmates to substantiate his complaint. Referring to the Court's vast case-law (the cases of Kalashnikov v. Russia, no.", "47095/99, ECHR 2002‑VI; Labzov v. Russia, no. 62208/00, 16 June 2005; and Khudoyorov v. Russia, no. 6847/02, ECHR 2005‑X (extracts)), the applicant considered that he had no effective remedies available at the domestic level. He considered that an application to the prosecutor or the court, as suggested by the Government, would be illusory and ineffective. In his view, the examples cited by the Government were isolated incidents and did not reflect the general approach of the Russian authorities.", "As regards his own attempts to bring his grievances to the attention of the authorities, the applicant submitted that the remand prison administration had refused to dispatch his complaints and had destroyed them. Only after his transfer to another remand prison had he been able complain to a prosecutor about the conditions of his detention. However, the complaint had been to no avail. B. The Court's assessment 1.", "Admissibility 45. The Court considers that the issue of exhaustion of domestic remedies is closely linked to the merits of the complaint that the applicant did not have at his disposal an effective remedy for complaining about inhuman and degrading conditions during his detention. The Court therefore finds it necessary to join the Government's objection to the merits of the complaint under Article 13 of the Convention. 46. The Court further notes that the complaints under Articles 3 and 13 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that they are not inadmissible on any other grounds.", "They must therefore be declared admissible 2. Merits (a) Article 13 of the Convention 47. The Court points out that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI).", "48. 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. 49. As regards the Government's contention that the applicant could have obtained redress for the allegedly inhuman and degrading conditions of his detention by means of an application to a prosecutor or a court, the Court observes that it has previously found that the possibility of making such an application cannot be regarded as an effective domestic remedy (see, for example, Benediktov v. Russia, no.", "106/02, §§ 27-30, 10 May 2007). Having regard to the material submitted by the Government, the Court notes that they have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. 50. Accordingly, the Court rejects the Government's argument as to the exhaustion of domestic remedies and concludes that there has been a violation of Article 13 of the Convention on account of the lack of an effective and accessible remedy under domestic law enabling the applicant to complain about the general conditions of his detention. (b) Article 3 of the Convention 51.", "The Court reiterates that Article 3 enshrines one of the fundamental values of a democratic society. The Convention prohibits torture or inhuman or degrading treatment or punishment in absolute terms, irrespective of the circumstances or the victim's behaviour (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). The Court has consistently stressed that in order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering and humiliation involved must in any event go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Although measures depriving a person of his liberty may often involve such an element, under Article 3 of the Convention the State must ensure that a person is detained under conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland, cited above, §§ 92-94).", "52. Turning to the facts of the instant case, the Court notes that the parties disagreed as to most aspects of the conditions of the applicant's detention. However, there is no need for the Court to establish the veracity of each and every allegation, because it can find a violation of Article 3 on the basis of the facts presented to it by the applicant which the respondent Government failed to refute (see Grigoryevskikh v. Russia, no. 22/03, § 55, 9 April 2009). 53.", "In particular, the Court observes that the Government did not provide any information as to the surface area of the cell where the applicant had been detained. Nor did they dispute the data submitted by the applicant on the issue. 54. As regards the applicant's argument that the cell had been overcrowded at all times and that, while it was equipped with eight sleeping places, the number of inmates held in it was twice as many, the Court took cognisance of the original data submitted by the Government to refute the applicant's contention. However, the Court notes that the information submitted by the Government is rather scarce.", "The Government submitted excerpts from the remand prison population register in respect of five days only. No explanation as to how the samples had been chosen was provided. While the Court accepts that on those five days the number of inmates in the cell where the applicant was detained was indeed below the capacity it was designed for and that the cell was not overcrowded, it cannot accept that the Government's contention that there was no overcrowding is sufficiently substantiated in respect of the remaining almost thirteen months the applicant spent in detention. Furthermore, the Court cannot but notice that even the extract from the register showed that on one occasion the number of the inmates detained in the cell exceeded the number of sleeping places available (see paragraph 29 above). 55.", "The Court further notes that the domestic authorities did in fact concede that the applicant had been detained in an overcrowded cell (see paragraph 38 above). However, the Government offered no comment as to that fact. 56. In connection with the above inconsistencies and the incompleteness of the data submitted by the Government on the issue, the Court reiterates that Convention proceedings such as the present application do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation), as in certain instances the respondent Government alone have access to information capable of corroborating or refuting allegations. A failure on the part of a Government to submit such information without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant's allegations (see Timurtaş v. Turkey, no.", "23531/94, § 66 in fine, ECHR 2000-VI). 57. Having regard to the above, the Court does not accept that the Government have fully substantiated their argument that the number of the inmates in the cell where the applicant was detained did not exceed the capacity it was designed for and that it had not been overcrowded. Accordingly, the Court agrees with the applicant, the truthfulness of whose allegations were in fact established by the domestic authorities, that the cells in the remand prison where he was detained were overcrowded. At times, as the applicant submitted, the space the cells afforded did not exceed 1 sq.", "m per person. Moreover, the number of beds was insufficient and the applicant had to take turns with other inmates to sleep. The applicant remained confined in such conditions practically all day for almost thirteen months. 58. The Court observes that the Moscow City Department of Corrections cited renovation work in the remand prison as the cause of the overcrowding in the cell where the applicant was detained (see paragraph 38 above).", "In this connection, the Court reiterates that, irrespective of the reasons for the overcrowding, it is incumbent on the respondent Government to organise their custodial system in such a way as to ensure respect for the dignity of detainees, regardless of financial or logistical difficulties (see Mamedova v. Russia, no. 7064/05, § 63, 1 June 2006, and Benediktov v. Russia, cited above, § 37). 59. The Court has frequently found a violation of Article 3 of the Convention on account of the lack of personal space afforded to detainees (see, among other authorities, Kalashnikov v. Russia, no. 47095/99, §§ 97 et seq., ECHR 2002-VI; Khudoyorov v. Russia, no.", "6847/02, §§ 104 et seq., ECHR 2005-X; Labzov v. Russia, no. 62208/00, §§ 44 et seq., 16 June 2005; Mayzit v. Russia, no. 63378/00, §§ 39 et seq., 20 January 2005; and Novoselov v. Russia, no. 66460/01, §§ 41 et seq., 2 June 2005). 60.", "Having regard to its case-law on the subject and the material in its possession, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Although there is no indication in the present case that there was an intention on the part of the authorities to humiliate or debase the applicant, the Court finds that the fact that he was obliged to live, sleep and use facilities in the same cell as so many other inmates for almost thirteen months 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 fear, anguish and inferiority capable of humiliating and debasing him. 61. There has therefore been a violation of Article 3 of the Convention on account of the conditions of the applicant's detention in remand prison no. 77/1 in Moscow between 20 August 2003 and 11 September 2004, which it considers to have been inhuman and degrading within the meaning of this provision.", "62. In view of the above finding, the Court does not consider it necessary to examine the remainder of the parties' submissions concerning other aspects of the conditions of the applicant's detention at remand prison no. 77/1 in Moscow. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION The applicant complained under Article 13 of the Convention that the appeal hearing concerning the extension of his pre-trial detention on 3 November 2003 had been held in his absence and in the absence of his counsel.", "The Court will examine this complaint under 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 63. 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 64. The Government conceded that the appeal court's failure to ensure the presence of the applicant and his lawyer at the appeal hearing on 3 November 2003 had been in contravention of Article 5 § 4 of the Convention. 65. The applicant maintained his complaint. 66.", "The Court reiterates 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, 29 November 1988, § 65, Series A no. 145-B). 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‑XII, 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, 13 July 1995, § 47, Series A no. 318-B). 67.", "Turning to the circumstances of the present case, the Court observes that on 3 November 2003 the Moscow City Court examined the applicant's appeal against the detention order of 8 October 2003. The prosecutor attended the hearing and made submissions to the court on the extension of the applicant's pre-trial detention. In such circumstances, the Court considers that it was incumbent on the domestic judicial authorities to adhere to the principle of equality of arms and to give the applicant the opportunity to appear, either in person or through some form of representation, at the same time as the prosecutor, so that he could reply to the latter's arguments. However, the appeal court failed to do this. As can be seen from the text of the court's decision of 3 November 2003, the appeal court proceeded with the hearing in the absence of the applicant and his counsel.", "It did not even verify whether the applicant and/or his counsel had been notified of the date and time of the hearing and, if they had not been, consider whether the appeal hearing should be adjourned to provide the applicant with an opportunity to be heard by the court. 68. Having regard to the above, the Court considers that on 3 November 2003 the domestic judicial authorities failed to carry out a review of the lawfulness of the applicant's detention in accordance with the requirements of Article 5 § 4 of the Convention. The proceedings in question were not adversarial and the principle of equality of arms between the parties was not respected. There has accordingly been a violation of Article 5 § 4 of the Convention.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 69. The applicant complained that he had been beaten up by police officers during his arrest, that he had been arrested in the absence of a reasonable suspicion that he had committed the criminal offence he was charged with and that he had not been provided with a lawyer on the same day; also that he had not been promptly informed of the reasons for his arrest or brought promptly before the prosecutor. As regards his pre-trial detention, the applicant complained that his counsel had not attended the hearing concerning the extension of his detention on 8 October 2003 and that he had been unable to appeal against the detention order of 14 August 2003. He further alleged that the investigator had presumed him guilty and had refused to examine certain witnesses for his defence, and that the criminal proceedings against him had been unfair and unreasonably long.", "He complained that his numerous complaints had received no response from the authorities; that the administration of remand prison no. 77/1 had destroyed some of his written complaints, and that an officer at remand prison no. 77/6 had forced him to stop complaining about the conditions of his detention. Lastly, he submitted that he had been detained in appalling conditions from 13 to 20 August 2003 and from 18 to 31 May 2005. The applicant relied on Articles 3, 5, 6 and 13 of the Convention.", "70. 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 there is no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 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 50,000 euros (EUR) in respect of non-pecuniary damage. 73. The Government submitted that the applicant's allegations should not give rise to an award of compensation for non-pecuniary damage.", "In any event, they considered the applicant's claims excessive and suggested that the acknowledgment of a violation would constitute sufficient just satisfaction. 74. The Court accepts that the applicant suffered humiliation and distress because of the inhuman and degrading conditions of his detention, the absence of an effective remedy in respect of his complaints about those conditions, and the inability to be present or represented before the appeal court carrying out the review of the lawfulness of his detention. In these circumstances, the Court considers that the applicant's suffering and frustration cannot be compensated by the mere finding of a violation. Making its assessment on an equitable basis, it awards him EUR 11,800 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.", "B. Costs and expenses 75. The applicant also claimed EUR 1,520 for the costs and expenses incurred before the Court. He noted that this amount would cover the time his representative had spent working on the case. In particular, she had dedicated twenty-two hours to studying the material in the case-file and sixteen hours to drafting the observations in response to those submitted by the Government.", "76. The Government submitted that the applicant had failed to demonstrate that he had actually and necessarily incurred any costs and expenses in the proceedings before the Court. 77. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the amount of EUR 850 has already been paid to the applicant by way of legal aid.", "In such circumstances, the Court does not consider it necessary to make an award under this head. C. Default interest 78. 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. Decides unanimously to join to the merits the Government's objection as to the exhaustion of domestic remedies in respect of the applicant's complaint about the inhuman and degrading conditions of his detention, and rejects it; 2.", "Declares unanimously the complaints concerning the conditions of the applicant's pre-trial detention in remand prison no. 77/1 in Moscow, the absence of an effective remedy in respect of his complaints about those conditions, and his inability to participate in the appeal hearing of 3 November 2003 admissible and the remainder of the application inadmissible; 3. Holds unanimously that there has been a violation of Article 13 of the Convention on account of the absence of an effective remedy in respect of the applicant's complaint about the conditions of his detention; 4. Holds unanimously that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant's detention in remand prison no. 77/1 in Moscow; 5.", "Holds unanimously that there has been a violation of Article 5 § 4 of the Convention; 6. Holds by six votes to one (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 11,800 (eleven thousand and eight hundred euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable on 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 unanimously the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 17 June 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "THIRD SECTION CASE OF TREBOVC v. SLOVENIA (Application no. 42863/02) JUDGMENT STRASBOURG 1 June 2006 FINAL 01/09/2006 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 Trebovc v. Slovenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrJ. Hedigan, President,MrB.M.", "Zupančič,MrL. Caflisch, MrV. Zagrebelsky,MrE. Myjer,MrDavid Thór Björgvinsson,MrsI. Ziemele, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 11 May 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 42863/02) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Ivan Trebovc (“the applicant”), on 5 December 2002. 2. The applicant was represented by the Verstovšek lawyers. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General.", "3. The applicant alleged under Article 6 § 1 of the Convention that the length of the proceedings before the domestic courts to which he was a party was excessive. In substance, he also complained about the lack of an effective domestic remedy in respect of the excessive length of the proceedings (Article 13 of the Convention). 4. On 15 September 2004 the Court decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect 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 5. The applicant was born in 1932 and lives in Šentjur. 6. On 26 January 1999 the applicant was injured in a car accident.", "The perpetrator of the accident had taken out insurance with the insurance company ZT. 7. On 30 September 1999 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 2,257,000 tolars (approximately 9,400 euros) for the injuries sustained. Between 6 April 2000 and 16 January 2003 the applicant lodged four preliminary written submissions and/or adduced evidence. Between 6 April 2000 and 1 October 2001 he made six requests that a date be set for a hearing.", "During the proceedings the court appointed a medical expert. Of the three hearings held between 28 May 2002 and 25 February 2003 none was adjourned at the request of the applicant. At the last hearing the parties settled the case and the court terminated the proceedings. THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 8.", "The applicant complained about the excessive length of the proceedings. He relied on Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 9. In substance, the applicant further complained that the remedies available for excessive legal proceedings in Slovenia were ineffective. Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 10. The Government pleaded non-exhaustion of domestic remedies.", "11. The applicant contested that argument, claiming that the remedies available were not effective. 12. The Court notes that the present application is similar to the cases of Belinger and Lukenda (Belinger v. Slovenia (dec.), no. 42320/98, 2 October 2001, and Lukenda v. Slovenia, no.", "23032/02, 6 October 2005). In those cases the Court dismissed the Government’s objection of non-exhaustion of domestic remedies because it found that the legal remedies at the applicant’s disposal were ineffective. The Court recalls its findings in the Lukenda judgment that the violation of the right to a trial within a reasonable time is a systemic problem resulting from inadequate legislation and inefficiency in the administration of justice. 13. As regards the instant case, the Court finds that the Government have not submitted any convincing arguments which would require the Court to distinguish it from its established case-law.", "14. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. Article 6 § 1 15. The period to be taken into consideration began on 30 September 1999, the day the applicant instituted proceedings with the Celje District Court, and ended on 25 February 2003, the day the parties settled the case in court. It therefore lasted almost three years and five months for one level of jurisdiction. 16.", "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). 17. Having examined all the material submitted to it, and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable-time” requirement. There has accordingly been a breach of Article 6 § 1.", "2. Article 13 18. 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 Lukenda, cited above) and sees no reason to reach a different conclusion in the present case.", "19. Accordingly, the Court considers that in the present case there has been a violation of Article 13 on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding his right to have his case heard within a reasonable time, as set forth in Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 20. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 21. The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage. 22. The Government contested the claim. 23.", "The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 2,400 under that head. B. Costs and expenses 24. The applicant also claimed approximately EUR 960 for the costs and expenses incurred before the Court.", "25. The Government argued that the claim was too high. 26. 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. Accordingly, 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 full sum claimed.", "C. Default interest 27. 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 four votes to three that there has been a violation of Article 6 § 1 of the Convention; 3.", "Holds by four votes to three that there has been a violation of Article 13 of the Convention; 4. Holds by four votes to three (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,400 (two thousand four hundred euros) in respect of non-pecuniary damage and EUR 960 (nine hundred and sixty euros) in respect of costs and expenses, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses unanimously, the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 1 June 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerJohn HediganRegistrarPresident" ]

[ "FIRST SECTION CASE OF KHLYUSTOV v. RUSSIA (Application no. 28975/05) JUDGMENT STRASBOURG 11 July 2013 FINAL 11/10/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Khlyustov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Elisabeth Steiner,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Julia Laffranque,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 18 June 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "28975/05) 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 Vyacheslav Igorevich Khlyustov (“the applicant”), on 29 July 2005. 2. The applicant was represented by Mr Ye. Swarovski, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.", "3. The applicant complained, in particular, of restrictions on his right to leave his own country. 4. On 18 January 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1962 and lives in Moscow. A. Enforcement proceedings initiated in respect of the applicant 6.", "In 2002 a certain S. brought court proceedings against the applicant before the Tushinskiy District Court, Moscow (“the District Court”). S. sought to recover an amount of money advanced to the applicant for construction of a house for him. S. claimed that instead of building the house the applicant had acquired a flat for himself and a new car. The District Court attached the applicant’s flat to secure the claim. 7.", "On 4 April 2003 the District Court awarded 362,267.87 Russian roubles (RUB) to S., to be paid by the applicant, and issued a writ of execution. 8. By a ruling of 7 May 2003 the Moscow north-west bailiffs’ service (“the bailiffs’ service”) initiated enforcement proceedings. The applicant was invited to voluntarily comply with the judgment debt within five days of the date on which the enforcement proceedings were initiated. 9.", "On several occasions the applicant asked the District Court to postpone the enforcement of the judgment of 4 April 2003. He claimed that although he had some income, his financial situation was difficult since he had two dependent children and a sick mother. By decisions of 23 October 2003 and 18 January and 14 April 2005 the District Court dismissed his requests. 10. On 20 November 2003 the District Court granted the applicant’s request to lift the attachment order in respect of his flat on the grounds that it was his and his family’s sole dwelling and therefore could not be seized for the purpose of enforcement of the judgment of 4 April 2003.", "11. On 19 October 2004 the District Court examined another claim lodged by S. against the applicant, in which he requested the annulment of the contract for the sale of the applicant’s car to his wife in July 2003. The court found that the contract was void and ordered the repossession of the car for the purpose of enforcing the judgment debt of 4 April 2003. 12. By a judgment of 29 November 2004 the District Court ordered the applicant to pay RUB 160,000 to his former wife in respect of unpaid child support.", "13. On 27 January 2005 the bailiffs’ service joined the enforcement proceedings initiated following the judgment of 4 April 2003 to the proceedings opened following the judgment of 29 November 2004. 14. On 15 December 2005 the enforcement proceedings were discontinued on the grounds that a writ of execution had been sent to the applicant’s employer, a private company based in Vladivostok, Primorskiy Region. 15.", "In 2010 S. asked the District Court to provide him with a duplicate of the writ of execution issued following the judgment of 4 April 2003, on the grounds that the original writ of execution had been lost and the judgment of 4 April 2003 had not been enforced in full. 16. On 23 April 2010 the District Court granted that request. The court found it established that on 15 December 2005 the bailiffs’ service had forwarded the writ of execution to the applicant’s employer, indicating that by that date it had recovered from the applicant only a part of the debt and that the remaining part amounted to RUB 218,406.31. It was also established that between 2006 and 2009 the applicant had returned RUB 70,661 to S. 17.", "It appears that the applicant paid the remainder of his debt to S. in July 2010. B. Restrictions on the applicant’s leaving the country and judicial review thereof 18. In the framework of the enforcement proceedings described above, the bailiffs’ service on several occasions restricted the applicant’s right to leave the country. Their decisions were based on the 1996 Federal Act on Leaving and Entering the Russian Federation (Procedures) (section 15(5)), the 1997 Federal Act on Enforcement Proceedings (section 4(1) and (3), section 44(3) and section 45(5)) and the 1997 Federal Act on the Bailiffs’ Service (section 14) (see “Relevant domestic law” below).", "1. Demand of 27 November 2003 19. On 27 November 2003 the bailiffs’ service sent the Moscow Department of the Interior a document in the form of a “demand” (“требование”). The document stated that on 7 May 2003 the bailiffs’ service had instituted enforcement proceedings on the basis of the writ of execution of the same date in accordance with which RUB 362,267.87 had to be recovered from the applicant. The applicant had not paid the judgment debt voluntarily and had not complied with the bailiffs’ service’s ruling of 7 May 2003.", "Therefore, referring to relevant provisions of domestic law (see paragraph 18 above), the bailiffs’ service requested the Department of the Interior to enter the applicant in the Department’s database with a view to imposing a temporary restriction of up to six months on his right to leave the Russian Federation. The demand did not indicate the date on which the six-month period started to run. 20. The applicant alleged that the bailiffs’ service had not informed him of the restrictions imposed on him. Therefore, in January 2004, he had purchased a package holiday to Egypt for himself and two members of his family.", "When he attempted to board the plane on 24 January 2004 the Border Service officials at the airport had refused to allow him to board. The applicant provided the Court with a copy of the contract of purchase of that package holiday. 21. By a final decision of 20 May 2004 the Moscow City Court (“the City Court”) dismissed the applicant’s complaint against the bailiffs’ service’s demand of 27 November 2003. It found, in particular, that the bailiffs’ service had lawful grounds on which to impose the travel ban on the applicant.", "2. Order of 3 June 2004 22. On 3 June 2004 the bailiffs’ service sent the Department of Border Control a document in the form of an “order” (“поручение”). In that document the bailiffs’ service requested that the applicant’s right to leave the Russian Federation be restricted for a period of six months starting from 22 June 2004, on the grounds that the applicant had not voluntarily complied with the judgment of 4 April 2003. 23.", "It is not clear on what date the applicant was notified of the order of 3 June 2004. It appears that he did not appeal against it. 3. Demand of 10 June 2004 24. On 10 June 2004 the bailiffs’ service sent the Moscow Department of the Interior a demand requesting it to enter the applicant in the Department’s database with a view to imposing a temporary restriction of up to six months on his right to leave the Russian Federation.", "The document stated that the applicant had not paid the judgment debt voluntarily and had not complied with the bailiffs’ service’s decision initiating the enforcement proceedings. It did not indicate the date on which the six-month period started to run. 25. It is not clear on what date the applicant was notified of the demand of 10 June 2004. It appears that he did not appeal against it.", "4. Order of 24 December 2004 26. On 24 December 2004 the head of the bailiffs’ service sent another order to the Department of Border Control to restrict the applicant’s right to leave the country for another six months on the grounds that he had not voluntarily repaid the judgment debt of 4 April 2003. The order did not indicate the date on which the six-month period started to run. 27.", "On 31 December 2004 the applicant challenged the bailiffs’ service’s order before the District Court. He complained, in particular, that the head of the bailiffs’ service had had no right to issue such an order and that the order was unlawful since he had already started repaying the debt. He also complained that the order in question violated the rights of his minor children, for whom he had been paying child support. 28. By a final decision of 22 June 2005 the City Court found that the head of the bailiffs’ service had imposed the travel ban on the applicant in accordance with the law.", "In particular, the City Court established that the bailiffs’ service had initiated the enforcement proceedings and had made relevant enquiries in order to obtain information about the applicant’s assets. Since the applicant had not been paying the judgment debt, on 27 November 2003 the bailiffs’ service had restricted his right to leave the country. The court found those actions lawful. Taking into account that as at 24 December 2004 the applicant had not complied with the judgment debt and had not reached any agreement with the creditor, the bailiffs’ service had again restricted his right to leave the country and had done so in accordance with the relevant domestic law. The City Court also observed that the applicant had started repaying the debt only on 27 January 2005, after the bailiff’s demand to restrict his right to leave the country.", "The City Court also took into account the fact that other enforcement proceedings had been pending in respect of the applicant for his failure to pay child support for his minor children. 5. Ruling of 3 March 2005 29. On 3 March 2005, while the court proceedings on the applicant’s appeal against the bailiffs’ service’s order of 24 December 2004 were pending, the bailiffs’ service issued a ruling (“постановление”) restricting the applicant’s right to leave the country. The ruling stated that the applicant was seeking to evade the enforcement of the judgment of 4 April 2003 and that therefore his right to leave the Russian Federation should be restricted.", "The ruling did not indicate the period during which the restriction was to be applied to the applicant. 30. On 21 April 2005 the applicant appealed against the ruling of 3 March 2005 to the District Court. 31. On 7 July 2005 the District Court quashed the ruling of 3 March 2005 on the grounds that, contrary to the requirements of domestic law, that ruling had not indicated the period during which the travel restriction was to be applied to the applicant.", "It appears that the bailiffs’ service did not appeal against the decision of 7 July 2005. 6. Order of 26 May 2005 32. On 26 May 2005, while the court proceedings on the applicant’s appeal against the bailiffs’ service’s ruling of 3 March 2005 were pending, the bailiffs’ service again sent an order to the Department of Border Control to restrict the applicant’s right to leave the country for another six months starting from 26 May 2005. The order stated that the applicant had not complied with the judgment of 4 April 2003 voluntarily and that, according to his creditor, the applicant had been travelling abroad frequently.", "On the same date a copy of that order was sent to the applicant. 33. On 26 July 2005 the District Court found the bailiffs’ service’s order to be lawful. It held, in particular, that the order had been issued in accordance with section 15 of the 1996 Federal Act on Leaving and Entering the Russian Federation (Procedures) and fully complied with formal requirements provided for in section 16 of that Act. It appears that the applicant did not appeal against that decision to the City Court.", "34. On 15 December 2005 the restriction imposed on the applicant’s leaving the country was lifted. C. Proceedings before the Constitutional Court 35. On an unspecified date the applicant applied to the Constitutional Court of the Russian Federation, requesting it to examine the compatibility with the Constitution of section 15(5) of the 1996 Federal Act on Leaving and Entering the Russian Federation (Procedures) (see “Relevant domestic law” below). 36.", "On 24 February 2005 the Constitutional Court of the Russian Federation refused to examine the applicant’s complaint, citing lack of jurisdiction in relation to the subject matter. In its decision the Constitutional Court noted that the restrictions provided for in the impugned provisions were not of an absolute character. In particular, the restrictions could be imposed only for a limited duration, the law had set the maximum period during which such restrictions could be applied and permission to leave the Russian Federation could be granted before expiry of those restrictions. The Constitutional Court further observed that in all cases of temporary restrictions of the constitutional right to leave the Russian Federation the relevant body of the Ministry of the Interior had to notify the citizen concerned of the reasons for and the term of the restriction, as well as the date and registration number of the relevant decision and the full name and legal address of the organisation which had assumed responsibility for restricting the person’s right to leave the Russian Federation. The body in question was therefore under an obligation to justify the necessity of the restriction.", "The Constitutional Court observed that the restrictions were aimed at the protection of constitutional values and could not be regarded as violating the applicant’s constitutional rights. Finally, the Constitutional Court noted that the legislature had made the application of restrictions dependent not only on the existence of formal grounds but also on specific factual circumstances, which, where necessary, could be verified by the courts of general jurisdiction. D. Criminal proceedings against the applicant 37. On 18 July 2005 the Moscow Tushinskiy district prosecutor initiated criminal proceedings against the applicant on suspicion of forgery of documents submitted by the latter to the District Court in the context of two other sets of civil proceedings brought against him by S. 38. On 17 May 2006 the District Court discontinued the criminal proceedings against the applicant because the limitation period for a criminal prosecution for forgery had expired.", "The applicant did not appeal against that decision. II. RELEVANT DOMESTIC LAW A. 1993 Constitution of the Russian Federation 39. Article 27 § 1 provides that everyone who is legally present on the territory of the Russian Federation shall have the right to travel freely and freely to choose the place of temporary or permanent residence.", "40. Article 27 § 2 provides that anyone may freely leave the Russian Federation. Citizens of the Russian Federation shall have the right freely to return to the Russian Federation. 41. Article 55 § 3 provides that human and civil rights and freedoms may be limited by federal law only to the extent necessary to protect the basis of the constitutional order, morality and the health, rights and lawful interests of others, and to ensure the defence of the country and the security of the State.", "B. The 1996 Federal Act on Leaving and Entering the Russian Federation (Procedures), as worded at the material time 42. The right of a Russian citizen to leave the Russian Federation could be restricted only on the basis of the Act and in accordance with the procedure set out therein (section 2). 43. The right of a Russian citizen to leave the Russian Federation could be temporarily restricted if he or she evaded obligations imposed on him or her by a court.", "In such cases the restriction was valid until the obligation had been complied with or until the parties settled the matter (section 15(5)). 44. In all cases where a temporary restriction on leaving the Russian Federation was imposed on a citizen of the country, the relevant body of the Ministry of the Interior had to notify the citizen concerned of the reasons for and the term of the restriction, as well as the date and registration number of the relevant decision and the full name and legal address of the organisation which had assumed responsibility for restricting the person’s right to leave the Russian Federation (section 16). 45. In cases where the restriction on leaving the country was imposed in accordance with section 15(5), the passport of the person concerned was withdrawn by the bodies authorised to do so and returned to the State body which had issued it (section 18).", "C. The 1997 Federal Act on Enforcement Proceedings, in force until 1 February 2008 46. Section 4 provided that claims submitted by a bailiff in the context of enforcement proceedings initiated following a decision by a court or any other body were binding on all organisations and on public servants and citizens throughout the territory of the Russian Federation (Section 4 (1)). In the event of failure to comply with the bailiff’s orders, the latter could apply the measures provided for by that law or by any other federal law (Section 4 (2)). Obstructing the bailiff in the performance of his or her duties rendered the person concerned liable under the legislation of the Russian Federation (Section 4 (3)). 47.", "Section 44 provided that bailiffs could apply compulsory measures if all the following criteria were met: the bailiffs had received a duly completed writ of execution (Section 44 (1)) and instituted enforcement proceedings (Section 44 (2)), and the deadline set for voluntary compliance had expired (Section 44 (3)). 48. Section 45 provided a list of compulsory measures which could be applied by bailiffs. In particular, they could seize the debtor’s property (section 45(1)), attach the debtor’s salary, retirement pension, scholarship or other sources of income (section 45(2)), seize money or other property of the debtor held by others (section 45(3)), remove from the debtor and hand over to the judgment creditor certain items specified in the writ of execution (section 45(4)) and take any other measures provided for by the law on enforcement proceedings or by other federal laws in order to enforce the writ of execution (section 45 (5)). 49.", "Section 88 provided that if decisions taken by the bailiff in the framework of enforcement proceedings (initiating enforcement proceedings, recovery of fees, imposition of fines, etc.) affected rights of parties to the enforcement proceedings and other persons, the bailiff had to issue a ruling (“постановление”) to that effect. Such a ruling should indicate the date on which it was issued, the place where it was issued, the position, family and full name of the bailiff who issued it, reference to the relevant enforcement proceedings, and describe the matter under examination, the grounds for taking the decision with reference to the laws and other legal acts on which the bailiff relied when taking the decision, the conclusion on the matter at issue and the procedure and time-limits for lodging an appeal against that ruling. 50. Section 90 provided that parties to enforcement proceedings could appeal against the bailiff’s actions to a court.", "D. The 1997 Federal Act on the Bailiffs’ Service 51. Section 14 provides that lawful demands submitted by a bailiff should be complied with by all organisations, officials and citizens on the territory of the Russian Federation. Information requested by bailiffs in the performance of their duties is to be provided to them free of charge and within the deadlines indicated by them. Failure to comply with a bailiff’s demand renders the person concerned liable under the legislation of the Russian Federation. E. The 2007 Federal Act on Enforcement Proceedings, in force since 1 February 2008 52.", "Section 67 establishes a framework for imposing restrictions on a debtor’s right to leave the country. In particular, it provides that a restriction on leaving the country may be imposed in the event of all the following criteria being met: enforcement proceedings have been initiated following a court decision, the bailiff has set a time-limit for voluntary compliance with the decision and the debtor has failed to comply within that time-limit, the debtor has no valid reason for not complying with the judgment, and the bailiff’s decision to restrict the debtor’s right to leave the country has been approved by a senior bailiff. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 TO THE CONVENTION 53.", "The applicant complained under Article 2 of Protocol No. 4 to the Convention that his right to leave the Russian Federation had been violated by a series of six-month travel bans imposed on him by the bailiffs’ service until he had paid a judgment debt to a private person. 54. The Court considers that this complaint falls to be examined under Article 2 §§ 2 and 3 of Protocol No. 4, which provides as follows: “2.", "Everyone shall be free to leave any country, including his own. 3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others ...” A. Admissibility 55. The Government did not raise any objection as to the admissibility of the complaint. They indicated that the restrictions had been imposed on the applicant on 27 November 2003, 10 June and 24 December 2004 and 26 May 2005.", "Each restriction had been imposed for a period of six months, which started to run on the date when the bailiffs’ service issued the relevant decision. The restriction imposed on 3 March 2005 had been quashed by the domestic court. 56. The applicant did not comment. 57.", "The Court reiterates that it is not open to it to set aside the application of the six-month rule solely because a respondent Government has not made a preliminary objection to that effect, since the said criterion, reflecting as it does the wish of the Contracting Parties to prevent past events being called into question after an indefinite lapse of time, serves the interests not only of respondent Governments, but also of legal certainty as a value in itself. It marks out the temporal limits of the supervision carried out by the organs of the Convention and signals to both 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). 58. The Court further reiterates that pursuant to Article 35 § 1 of the Convention, it may only deal with a matter within a period of six months from the final decision in the process of exhaustion of domestic remedies.", "In cases featuring a continuing situation, the six-month period runs from the cessation of that situation (see Seleznev v. Russia, no. 15591/03, § 34, 26 June 2008, and Koval v. Ukraine (dec.), no. 65550/01, 30 March 2004). 59. In the present case the applicant complained of a series of six-month travel bans imposed on him by the bailiffs’ service between 2003 and 2005 for failure to honour judgment debts to private persons.", "The question is whether those bans should be regarded as distinct measures and the six‑month rule should be applied separately to each period during which the applicant was prohibited from leaving the country, or whether the series of bans can be considered as creating a continuing situation, in which case the six-month period would start to run only after the situation complained of was brought to an end. 60. In that connection the Court reiterates that the concept of a “continuing situation” refers to a state of affairs in which there are continuous activities by or on the part of the State which render the applicant a victim (see Posti and Rahko v. Finland, no. 27824/95, § 39, ECHR 2002‑VII). Complaints which have as their source specific events which occurred on identifiable dates cannot be construed as referring to a continuing situation (see Camberrow MM5 AD v. Bulgaria, (dec.), no.", "50357/99, 1 April 2004). 61. Turning to the circumstances of the present case, the Court observes that during the enforcement proceedings the bailiffs’ service issued several decisions restricting the applicant’s right to leave the Russian Federation. According to the Government, four restrictions were issued in respect of the applicant: on 27 November 2003, 10 June and 24 December 2004 and 26 May 2005, and each of them lasted for a period of six months which started to run on the date when the bailiffs’ service issued the relevant decisions. In that connection the Court observes that, according to the case materials, the bailiffs’ service issued six restrictions on the applicant’s right to leave the country: the demand of 27 November 2003, the order of 3 June 2004, the demand of 10 June 2004, the order of 24 December 2004, the ruling of 3 March 2005 and the order of 26 May 2005.", "The Court agrees that all those decisions, apart from the ruling of 3 March 2005, indicated that the travel restrictions were to be applied to the applicant for a period of up to six months. Furthermore, the Court observes that some of those decisions indicated the date on which the six-month period started to run, and that it was not necessarily the date on which the relevant decision was issued. For instance, the order of 3 June 2004 stated that the six-month period would start to run on 22 June 2004. However, contrary to the Government’s assertions, the demands of 27 November 2003 and 10 June 2004 and the order of 24 December 2004 did not indicate on what date the six-month period started to run. In view of those factors, the Court is unable to establish the exact dates on which the travel restrictions issued on 27 November 2003 and 10 June and 24 December 2004 were applied to the applicant.", "Therefore, despite the fact that the order of 3 June 2004 and the demand of 26 May 2005 specified the exact dates on which the six-month period started to run, it cannot be said that each and every restriction applied to the applicant took effect on an identifiable date. In such circumstances the Court considers that the travel restriction was applied to the applicant at the latest on 24 January 2004, when he was not allowed to board a plane to Egypt (see paragraph 20 above) and was lifted on 15 December 2005, when the enforcement proceedings were discontinued (see paragraph 14 above). 62. The Court further notes that the applicant challenged some of the restrictions issued in his respect in separate court proceedings. However, in the Court’s opinion that element is not sufficient to conclude that the events complained of were composed of separate and unrelated occurrences.", "In particular, the Court observes that all the travel bans were applied within the same enforcement proceedings and with reference to the same legal provisions. They thus formed a continuing act on the part of the domestic authorities by which the applicant was prohibited from leaving the country from at least 24 January 2004 until 15 December 2005. In such circumstances, the six-month period provided for by Article 35 § 1 of the Convention started to run only after that activity had been brought to an end on 15 December 2005. It suffices to note that the applicant submitted his application during the period when the travel ban was still in force. 63.", "In sum, the Court finds that the applicant submitted his complaint under Article 2 of Protocol No. 4 in compliance with Article 35 § 1 of the Convention. The Court further observes 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 64. The Court reiterates that Article 2 of Protocol No. 4 to the Convention guarantees to any person a right to liberty of movement, including the right to leave any country for such country of the person’s choice to which he or she may be admitted (see Baumann v. France, no. 33592/96, § 61, ECHR 2001‑V (extracts)).", "Any measure restricting that right should be “in accordance with law”, pursue one or more of the legitimate aims contemplated in the third paragraph of the same Article and “be necessary in a democratic society” (see Raimondo v. Italy, 22 February 1994, § 39, Series A no. 281‑A, and Labita v. Italy [GC], no. 26772/95, §§ 194 and 195, ECHR 2000‑IV). 65. In the present case it is not disputed that the restrictions on the applicant’s leaving Russia constituted interference with his right to leave the country, as guaranteed by Article 2 § 2 of Protocol No.", "4. The Court therefore has to examine whether that interference was in “accordance with law”, pursued one or more legitimate aims and “was necessary in a democratic society”. 1. Whether the interference was “in accordance with law” (a) The parties’ submissions 66. The Government submitted that the interference had been in accordance with the 1996 Federal Act on Leaving and Entering the Russian Federation (Procedures), which had been accessible to the applicant and foreseeable as to its effects.", "67. The applicant claimed that the ban imposed on him in 2003 and its further extensions had had no legal basis in Russian law as it existed at the relevant time and had therefore been arbitrary. The law cited by the Government, namely the 1996 Federal Act on Leaving and Entering the Russian Federation (Procedures), had not been clear enough for anyone to foresee that non‑payment of a judgment debt would result in a travel ban. The old 1997 Federal Act on Enforcement Proceedings had not contained any provision authorising the bailiffs’ service to impose a travel ban on the debtor. It was not until 2007 that a new Federal Act on Enforcement Proceedings had been passed, establishing a framework for restricting a debtor’s right to leave his or her own country.", "The applicant also considered that both the old and the new laws on enforcement proceedings were incompatible with Article 27 of the Russian Constitution. (b) The Court’s assessment 68. The Court reiterates its settled case-law according to which the expression “in accordance with the law” not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question. Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a \"law\" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.", "Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, §§ 47-49, Series A no. 30 and Centro Europa 7 S.r.l.", "and Di Stefano v. Italy [GC], no. 38433/09, §§ 140 and 141, ECHR 2012). 69. The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the law in question, the field it is designed to cover and the number and status of those to whom it is addressed. It is moreover primarily to domestic authorities to interpret and apply domestic law (see Vogt v. Germany, 26 September 1995, § 48, Series A no.", "323). 70. The phrase “in accordance with the law” also requires the domestic law to be compatible with the rule of law; it thus implies that there must be a measure of protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by Convention (see Malone v. the United Kingdom, 2 August 1984, § 67, Series A no. 82). A law which confers a discretion must indicate the scope of that discretion, although the detailed procedures and conditions to be observed do not necessarily have to be incorporated in rules of substantive law (see Silver and Others v. the United Kingdom, 25 March 1983, § 88, Series A no.", "61). 71. The Court observes that when imposing the travel bans on the applicant the authorities referred to three legal acts: the 1996 Federal Act on Leaving and Entering the Russian Federation (Procedures) (section 15(5)), the 1997 Federal Act on Enforcement Proceedings (section 4(1) and (3), section 44(3) and section 45(5)) and the 1997 Federal Act on the Bailiffs’ Service (section 14) (see “Relevant domestic law” above). 72. In so far as the applicant complained that the 1997 Federal Act on Enforcement Proceedings as in force at the material time did not contain any provision authorising the bailiffs’ service to impose a travel ban on the debtor, the Court observes that although a travel ban was not listed in section 45 of the Act among the compulsory measures which could be imposed by the bailiff on a debtor, it was stated in that section that, apart from the measures listed, the bailiff could take any other measures provided for by the law on enforcement proceedings or by other federal laws in order to enforce the writ of execution.", "In the present case the bailiffs’ service imposed the travel ban with reference to the 1996 Federal Act on Leaving and Entering the Russian Federation (Procedures), section 15(5) of which provided that the right of a Russian citizen to leave the Russian Federation could be temporarily restricted if he or she evaded obligations imposed on him or her by a court. The Court therefore concludes that the travel restrictions imposed on the applicant had a basis in domestic law. 73. As regards accessibility, the Court observes that the legal acts in question satisfied that condition as they were in the public domain. 74.", "In so far as the applicant complained of the lack of foreseeability of the legal provisions in question, the Court accepts that those provisions are rather general in terms and confer a wide discretion on the bailiffs’ service. In particular, they leave them the discretion to decide whether, in the particular circumstances of the case, it is necessary to resort to travel restrictions or not. On the other hand, the circumstances in which it may be necessary to apply those measures are quite variable, so that it would scarcely be possible to formulate a law to cover every eventuality. In any event, the safeguards against arbitrary interference were provided by the fact that the exercise of the discretion by the bailiffs was subject to judicial review (see paragraph 50 above). 75.", "The Court agrees that the application of those provisions could have resulted in some degree of uncertainty for the applicant when the first travel restriction was issued in his regard in November 2003. However, by the time the further bans were issued in June and December 2004 and March and May 2005, he should have been able to foresee, to a degree that was reasonable in the circumstances, that travel restrictions could be applied to him again if he evaded paying the judgment debt, and could therefore have regulated his conduct accordingly. 76. In view of the above, the Court considers that in the present case the degree of discretion conferred on the domestic authorities was compatible with the requirements of the Convention inherent in the expression “in accordance with law”. 77.", "Having regard to the above, the Court is satisfied that the interference with the applicant’s right to leave his country was “in accordance with law”. 2. Whether the interference pursued a legitimate aim (a) The parties’ submissions 78. The Government claimed that the travel bans had been intended to secure the enforcement of a judgment debt arising out of a claim by a private creditor and had therefore pursued the legitimate aim of protecting the rights of others. 79.", "The applicant submitted that the travel bans had not pursued any legitimate aim, but had a purely punitive purpose. (b) The Court’s assessment 80. The Court observes that it has already dealt with complaints concerning travel bans imposed for failure to pay a judgment debt to a private party and accepted that such restrictions were intended to secure the interests of creditors and that, in principle, they pursued a legitimate aim, namely the protection of others (see Ignatov v. Bulgaria, no. 50/02, § 35, 2 July 2009, and Gochev v. Bulgaria, no. 34383/03, § 48, 26 November 2009).", "It does not see any reason to hold otherwise in the present case. The Court accordingly finds that the interference with the applicant’s right to leave his own country pursued a legitimate aim, namely the protection of the rights of others. The main issue to be determined in the present case is whether the restrictions imposed on the applicant were “necessary in a democratic society” in order to achieve that aim. 3. Whether the interference was “necessary in a democratic society” (a) The parties’ submissions 81.", "The Government maintained that the restrictions imposed on the applicant had been necessary in a democratic society. The means employed had been proportionate to the aims pursued. The authorities were under a positive obligation to provide an effective mechanism for the enforcement of judgments debts to be paid by private persons and for the protection of creditors’ property rights. If they failed to do so, their responsibility under Article 6 of the Convention could be engaged. The applicant had not paid the judgment debt voluntarily and enforcement proceedings had therefore been instituted.", "The bailiffs’ service had taken various measures to secure payment of the judgment debt. However, all those measures had proved insufficient for the enforcement of the judgment debt, in large part owing to the applicant’s behaviour. As established by the decision of 19 October 2004 (see paragraph 11 above), the applicant had attempted to hide his property in order to avoid its forfeiture in the enforcement proceedings. In the absence of any other means of ensuring that the applicant honoured his debt, the bailiffs’ service had decided to impose a travel ban on him. 82.", "The Government further pointed out that the travel ban had been imposed on the applicant for a period of six months and had been extended on three more occasions. Each of those extensions had been limited to six months, unlike in the case of Gochev v. Bulgaria, where the applicant had been prohibited from leaving the country for several years. The bailiffs’ service’s decisions had been duly reasoned and had been regularly reviewed by the domestic courts. On one occasion the domestic court quashed the bailiff’s decision (ruling of 3 March 2005) on the grounds that it had not indicated the period during which the travel ban had to be applied to the applicant. The applicant had been aware of the decisions taken in his respect since he had challenged almost all of them in the courts.", "The documents concerning the enforcement proceedings at issue had been destroyed after expiry of the statutory time‑limit for storage of documents. 83. The applicant submitted that the travel ban had not been necessary in a democratic society. The authorities had the possibility of seizing a debtor’s assets located in his or her country of residence or abroad without the debtor’s physical presence. Also, preventing persons from leaving the country could be counterproductive if they migrated to another country in search of employment with the intention of using their future salary to honour the debt.", "Furthermore, the Russian legal system did not provide individuals with bankruptcy protection; therefore, persons who committed a tort and faced a large judgment debt would be barred from leaving the country forever through a series of six‑month bans. The travel ban was used widely in Russia irrespective of the nature and amount of the debt. In the applicant’s case the travel ban had been imposed for non-payment of a relatively small debt and without any prior notice when he and his family had attempted to board a plane. (b) The Court’s assessment (i) The Court’s principles relating to assessment of the necessity of restrictions on freedom of movement 84. The Court reiterates that interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient”.", "While it is for the national authorities to make the initial assessment in all these respects, the final evaluation of whether the interference is necessary remains subject to review by the Court for conformity with the requirements of the Convention (see, among other authorities, Handyside v. the United Kingdom, 7 December 1976, § 48-50, Series A no. 24, and Nada v. Switzerland [GC], no. 10593/08, § 181, ECHR 2012). 85. The Court has examined the proportionality of travel restrictions which were imposed in various contexts: a travel ban imposed as a measure of police supervision of a person suspected of having connections with the Mafia (see Labita, cited above, §§ 193-197); the seizure, as part of the on-the-spot investigation, and subsequent confiscation of a passport of a person who was neither prosecuted nor considered to be a witness in the criminal proceedings (see Baumann, cited above, §§ 65-67); a prohibition on a bankrupt moving away from his place of residence for the duration of the bankruptcy proceedings (see Luordo v. Italy, no.", "32190/96, §§ 96-97, ECHR 2003‑IX); the seizure of the applicant’s passport for refusal to pay a fine for a customs offence (see Napijalo v. Croatia, no. 66485/01, §§ 78-82, 13 November 2003); an obligation not to abscond imposed on a suspect pending criminal proceedings against him (see, among many other examples, Fedorov and Fedorova v. Russia, no. 31008/02, §§ 39-47, 13 October 2005; Antonenkov and Others v. Ukraine, no. 14183/02, §§ 59‑67, 22 November 2005; Ivanov v. Ukraine, no. 15007/02, §§ 90-97, 7 December 2006; Hajibeyli v. Azerbaijan, no.", "16528/05, §§ 60-69, 10 July 2008; Makedonski v. Bulgaria, no. 36036/04, §§ 39-46, 20 January 2011; Pfeifer v. Bulgaria, no. 24733/04, §§ 55-58, 17 February 2011; Prescher v. Bulgaria, no. 6767/04, §§ 47-52, 7 June 2011; and Miażdżyk v. Poland, no. 23592/07, §§ 33-42, 24 January 2012); travel restrictions imposed for refusal to pay a tax debt (see Riener v. Bulgaria, no.", "46343/99, §§ 118-130, 23 May 2006); travel restrictions imposed on account of knowledge of State secrets (see Bartik v. Russia, no. 55565/00, §§ 44-52, ECHR 2006‑XV, and Soltysyak v. Russia, no. 4663/05, §§ 46-54, 10 February 2011); court orders prohibiting minor children from being removed to a foreign country (see Diamante and Pelliccioni v. San Marino, no. 32250/08, §§ 214-215, 27 September 2011); and a travel ban imposed on account of a breach of the immigration rules of another country (see Stamose v. Bulgaria, no. 29713/05, §§ 33-37, 27 November 2012).", "The Court has also examined restrictions which, as in the present case, were imposed on the applicants for failure to honour a judgment debt to a private party (see Ignatov, cited above, §§ 36-41, and Gochev, cited above, §§ 49-57). 86. When making its assessment of the proportionality of the travel restrictions imposed on the applicants in those cases the Court had regard to various factors. 87. In a series of cases against Italy the Court found that the travel restrictions, which were automatically imposed for the whole duration of the bankrupcy proceedings and remained in force for very significant periods ranging from thirteen years to more than twenty-four years, were disproportionate even though there had been no indication that the applicant had wished to leave his place of residence or that such permission had ever been refused (see Luordo, cited above, § 96; Bassani v. Italy, no.", "47778/99, §§ 23-25, 11 December 2003; Neroni v. Italy, no. 7503/02, §§ 26-28, 22 April 2004; and Goffi v. Italy, no. 55984/00, §§ 19-21, 24 March 2005). On the other hand, in a case where the travel restriction was in place for a period of six months the Court considered, bearing in mind the short duration of the restriction, that it was proportionate to the aims pursued (see Diamante and Pelliccioni, cited above, § 214). 88.", "In another group of cases, where an obligation not to leave their place of residence was imposed in the context of criminal proceedings against the applicants but was not applied automatically for the whole duration of those proceedings and was significantly shorter than the one in the Luordo case, the Court held that in the circumstances of those cases the mere duration of the proceedings was insufficient to conclude that the restriction was disproportionate and that it was therefore necessary to have regard to other relevant factors. In particular, in the cases of Fedorov and Fedorova (cited above, § 44) and Antonenkov and Others (cited above, § 64), the Court considered that it was relevant in assessing the proportionality of the restriction to ascertain whether the applicants had actually sought to leave their area of residence and had applied to the domestic authorities with requests to that effect, and if so, whether permission to leave the area had been refused. 89. In cases where the travel restrictions were imposed on applicants who were not parties to any criminal, administrative or other proceedings, the Court examined whether the grounds relied on by the domestic authorities in imposing and extending the restrictions and/or in refusing to lift them were relevant and sufficient (see Labita, cited above, §§ 196-197; Baumann, cited above, § 65-67; and Napijalo, cited above, §§ 78-82). 90.", "In the case of Soltysyak, cited above, in which travel restrictions were imposed on the applicant on account of his knowledge of State secrets, the Court took into consideration the existence of a common European and international standard in the field. 91. In the case of Gochev (cited above, §§ 49-50) the Court summarised the principles relating to the assessment of the necessity of measures restricting freedom of movement as follows: “49. With regard to the proportionality of a restriction imposed on account of unpaid debts, the Court reiterates that it is justified only so long as it furthered the pursued aim of guaranteeing recovery of the debts in question (see Napijalo v. Croatia, no. 66485/01, §§ 78 to 82, 13 November 2003).", "Furthermore, even were it justified at the outset, a measure restricting an individual’s freedom of movement may become disproportionate and breach that individual’s rights if it is automatically extended over a long period (see Luordo v. Italy, no. 32190/96, § 96, ECHR 2003-IX; Földes and Földesné Hajlik v. Hungary, no. 41463/02, § 35, ECHR 2006‑...; and Riener, cited above, § 121). 50. In any event, the domestic authorities are under an obligation to ensure that a breach of an individual’s right to leave his or her country is, from the outset and throughout its duration, justified and proportionate in view of the circumstances.", "They may not extend for long periods measures restricting an individual’s freedom of movement without regular re‑examination of their justification (see Riener, cited above, § 124, and Földes and Földesné Hajlik, cited above, § 35). Such review should normally be carried out, at least in the final instance, by the courts, since they offer the best guarantees of the independence, impartiality and lawfulness of the procedures (see Sissanis v. Romania, no. 23468/02, § 70, 25 January 2007). The scope of the judicial review should enable the court to take account of all the factors involved, including those concerning the proportionality of the restrictive measure (see, mutatis mutandis, Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 60, Series A no. 43) ...” (ii) Application of those principles in the present case 92.", "The Court agrees with the Government that in order to comply with the requirements of Article 6 and Article 1 of Protocol No. 1 the State authorities are obliged to provide the necessary assistance to the creditor in the enforcement of court judgments issued against private debtors. Such assistance may be provided, for example, through a bailiffs’ service or bankruptcy proceedings (see Anokhin v. Russia (dec.), no. 25867/02, 31 May 2007). However, the Court considers that the measures taken to provide such assistance, in so far as they interfere with the rights protected under Article 2 of Protocol No.", "4, must be necessary in a democratic society. 93. Turning to the circumstances of the present case, the Court observes that the applicant was prohibited from leaving the country by a series of travel bans which were issued between 2003 and 2005. 94. The Government put forward a number of reasons which, according to them, had justified the imposition of travel restrictions on the applicant.", "In particular, they claimed that the restrictions had been applied to the applicant because he had not paid the judgment debt voluntarily; all other measures had proved insufficient, in large part owing to the applicant’s behaviour. 95. The Court observes that under section 15(5) of the 1996 Federal Act on Leaving and Entering the Russian Federation (Procedures), travel restrictions could be imposed on the debtor only if he evaded the obligations imposed on him by a court. Furthermore, according to the interpretation of those provisions by the Constitutional Court (see paragraph 36 above), the domestic authorities were under an obligation to justify the necessity of the restrictions imposed on the applicant and not just to apply those restrictions on formal grounds but also to take into account specific factual circumstances, which, where necessary, could be verified by the courts of general jurisdiction. It follows that the travel restrictions could not be imposed automatically for failure to pay the judgment debt, but only once it had been established that the imposition of such a measure was necessary in the circumstances of the case.", "96. The Court further observes that, under section 88 of the 1997 Federal Act on Enforcement Proceedings, in cases where a decision taken by the bailiff in the framework of enforcement proceedings affected the interests of the parties to those proceedings (creditor and debtor), the bailiff was under an obligation to issue a ruling (“постановление”) to that effect and to indicate, among other things, the grounds for the decision (see paragraph 49 above). 97. There is no doubt that in the present case the bailiffs’ service’s decisions restricting the applicant’s right to leave the country affected his interests and therefore those decisions should have been taken in the form of rulings. However, in the present case most of the travel restrictions were imposed on the applicant on the basis of documents in the form of “demands” (“требования”) or “orders” (“поручения”) issued by the bailiffs’ service for the attention of the Department of the Interior and the Department of Border Control, and the domestic courts reviewed the lawfulness of the restrictions as applied on the basis of those documents.", "Only on one occasion did the bailiffs’ service impose a travel ban on the applicant in the form of a ruling (the ruling of 3 March 2005), which however, was later quashed by a court. 98. In its first decision the bailiffs’ service requested the departments concerned to restrict the applicant’s right to leave the country because he had not paid the judgment debt voluntarily. It did not cite any other reasons for applying the measure. In particular, it did not state that the applicant had evaded payment of the judgment debt by various means, as suggested by the Government.", "Likewise, the bailiffs’ service did not explain how the travel ban might serve the aim of collecting the debt, nor did it examine the applicant’s individual situation and other relevant circumstances of the case. 99. It is true that all the further restrictions imposed on the applicant were based on fresh demands or orders issued by the bailiffs’ service. However, the wording of those decisions did not evolve with the passage of time. The bailiffs’ service repeatedly stated that the applicant’s right to leave the country had to be restricted because he had not paid the judgment debt.", "It follows that by sending those demands and orders to the authorities responsible for internal affairs and border control the bailiffs’ service merely confirmed its initial demand to impose travel restriction on the applicant and did not re-examine the justification for the continued restrictions on the applicant’s freedom to leave the country. It therefore follows that from the outset and throughout its duration, the restriction on the applicant’s freedom to leave the country was based solely on the ground that he had not paid the judgment debt voluntarily, and was extended automatically by the bailiffs’ service without any reassessment of its justification. 100. As regards the judicial review of the restrictions applied to the applicant, the Court notes that by a decision of 7 July 2005 the domestic courts quashed the bailiffs’ service’s ruling of 3 March 2005 on the grounds that it had not indicated the period during which the restriction was to be applied. In all further decisions the domestic courts merely stated that the applicant had not complied with the judgment debt and, therefore, the bailiffs had lawful grounds for applying travel restrictions in his regard.", "In none of their decisions did the domestic courts assess the justification and proportionality of the travel restrictions imposed on the applicant. 101. Having regard to the above, the Court considers that the domestic authorities did not comply with their obligation to ensure that any interference with the right of individuals to leave their own country is justified and proportionate throughout its duration, in the particular circumstances of the case. It therefore follows that the interference with the applicant’s right to leave his country in the present case was not “necessary in a democratic society”. 102.", "Accordingly, there has been a violation of Article 2 §§ 2 and 3 of Protocol No. 4 in the present case. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 103. The applicant complained under Article 6 § 3 (c) and (d) that the criminal proceedings initiated against him on 18 July 2005 for forgery of documents had been unfair.", "The Court observes that a person may not claim to be a victim of a violation of his right to a fair trial under Article 6 of the Convention which, according to him, occurred in the course of proceedings in which he was acquitted or which were discontinued (see Osmanov and Husseinov v. Bulgaria (dec.), nos. 54178/00 and 59901/00, 4 September 2003). The Court notes that the proceedings against the applicant were discontinued on 17 May 2006 because the relevant limitation period had expired. The Court considers that in these circumstances the applicant can no longer claim to be a victim of a violation of his right to a fair trial. It follows that this complaint must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 104. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 105. The applicant claimed 1,000 euros (EUR) in respect of pecuniary damage sustained as a result of the cancellation of his trip to Turkey.", "He also claimed EUR 10,000 in respect of non-pecuniary damage. 106. The Government considered that the applicant’s claims were unreasonable and not supported by appropriate evidence. 107. The Court observes that the applicant’s claims in respect of pecuniary damage are not supported by any evidence.", "In particular, the Court has at its disposal documents relating to a trip planned by the applicant to Egypt, not to Turkey. The Court therefore rejects those claims. However, it awards the applicant EUR 2,000 in respect of non-pecuniary damage. B. Costs and expenses 108.", "The applicant also claimed EUR 5,500 for the costs and expenses incurred before the domestic courts and before the Court, comprising EUR 500 in costs and expenses related to this application and EUR 5,000 in lawyer’s fees. 109. The Government contested the applicant’s claims. They submitted that he had not provided any evidence in support of his claims, such as a contract between himself and his lawyer. 110.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were 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 500 covering costs under all heads. C. Default interest 111. 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 2 of Protocol No. 4 to the Convention concerning the restrictions imposed on the applicant’s right to leave Russia admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 2 §§ 2 and 3 of Protocol No. 4 to the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 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; 4.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 11 July 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]

[ "FIRST SECTION CASE OF DANILCHENKO v. RUSSIA (Application no. 30686/03) JUDGMENT STRASBOURG 15 February 2007 FINAL 15/05/2007 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 Danilchenko v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrL. Loucaides, President,MrA.", "Kovler,MrsE. Steiner,MrK. Hajiyev,MrD. Spielmann,MrS.E. Jebens,MrG.", "Malinverni, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 25 January 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 30868/03) 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 Mikhail Yevgenyevich Danilchenko (“the applicant”), on 27 August 2003. 2. The applicant was represented by Mrs O. Suprunova, a lawyer practising in Bataysk.", "The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. 3. Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the applicant complained about the quashing of the judgment in his favour by way of supervisory review and the non-enforcement of that judgment. 4.", "On 10 February 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. 5. The applicant and the Government each filed observations on the admissibility and merits (Rule 54A § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 1. Background 6. The applicant was born in 1961 and lives in the town of Bataysk of the Rostov Region. 7. In 1986 the applicant took part in the emergency operation at the Chernobyl nuclear plant.", "As a result he suffered from extensive exposure to radioactive emissions. The applicant underwent medical examinations which established the link between his poor health and his involvement in the Chernobyl events. He was consequently granted status of a disabled person and awarded a monthly pension and a special allowance from the State, to be adjusted once a year in line with the minimum subsistence amount (величина прожиточного минимума). 8. At a certain moment in 2001 the social security authorities ceased to increase regularly the amounts of pension and allowance, paid to the applicant in connection with his disability.", "Instead, he started to receive his pension in a fixed amount (2,800 Roubles), which was less than he expected. Presuming that this practice was illegal, the applicant brought proceedings against the regional social security office (“the defendant”) claiming the increase of the monthly allowance and pension in line with the increase of the minimum subsistence amount during the relevant period. 2. First round of court proceedings 9. On 21 January 2003 the Bataysk Town Court of the Rostov Region (“the Town Court”) rendered a judgment ordering the increase of the monthly allowance due to the applicant in line with the increase of the minimal subsistence amount in the Rostov region.", "In re-calculating the amount of the applicant's pension the court applied the multiplier of 1.92 based on the data provided by the regional committee on statistics. As a result, the monthly pension of the applicant increased to 5,376 Roubles. The court ordered the defendant to pay the applicant the recalculated amount as from 1 January 2002 less the sums already paid. 10. The defendant appealed challenging, among other things, the multiplier of 1.92 applied by the first-instance court.", "11. On 16 April 2003 the Rostov Regional Court (“the Regional Court”) upheld the judgment of 21 January 2003 in full. The enforcement proceedings were opened. 3. Supervisory review proceedings 12.", "On 13 May 2003 the defendant appealed to the Regional Court by way of supervisory review seeking to quash the judgment of 21 January 2003, as upheld on 16 Aril 2003. 13. On 30 June 2003 the judge rapporteur refused to initiate the supervisory review proceedings and to remit the case for examination on the merits to the Presidium of the Rostov Regional Court (“the Presidium”). 14. On 14 July 2003 the defendant complained to the President of the Regional Court about the judgment of 21 January 2003, as upheld on appeal, and the judge rapporteur's decision of 30 June 2003 rejecting their previous application for supervisory review.", "They also requested that the enforcement proceedings be suspended pending the examination of the new supervisory review appeal. 15. On 6 August 2003 a judge of the Regional Court requested the case-file from the court of first instance. On 24 October 2003 judge B. of the Regional Court initiated the review of the judgment of 21 January 2003, as upheld on 16 April 2003. The decision of 24 October 2003 referred in detail to the arguments adduced by the defendant but offered no explanation as to the grounds for overruling the judge rapporteur's decision of 30 June 2003.", "The case was transferred to the Presidium for the examination on the merits. 16. On 4 November 2003 the applicant was informed about the date and venue of the hearing of his case by the Presidium. 17. On 4 December 2003 the Presidium quashed the judgment of 21 January 2003, as upheld on appeal, stating that the first instance court's calculation of the minimum subsistence amount, based on the multiplier of 1.92, had been insufficiently supported by evidence.", "The Presidium also noted that the first instance court had misinterpreted the domestic law. The case was remitted to the first instance court for a fresh examination. 4. Second round of court proceedings 18. On 22 April 2004 the Town Court examined the case anew.", "In the course of the proceedings the court established that the allowance should have been multiplied by 1.25 in 2002 and by 1.26 for 2003. The applicant maintained that he accepted the multiplier. 19. As a result, the court held that the amount of pension due to the applicant for 2002 was 3,125 Roubles per month. In 2003 the pension of the applicant should have amounted to 3,937.5 Roubles per month.", "The court ordered the social security authorities to compensate the applicant for previous underpayments and, starting from 2004, pay him 4,567.5 Roubles monthly, with subsequent readjustment. 20. The judgment of the Town Court was not appealed against and became final. II. RELEVANT DOMESTIC LAW 21.", "On 1 February 2003 the Code of Civil Procedure of the Russian Federation (“the CCivP”) entered into force introducing, in particular, an amended system of supervisory review. 22. The CCivP, in the relevant part, provides as follows: Article 376. Right to apply to a court exercising supervisory review “1. Judicial decisions that have become legally binding ... may be appealed against... to a court exercising supervisory review by parties to the case and by other persons whose rights and legal interests had been adversely affected by these judicial decisions.", "2. Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding...” Article 379. Proceedings in a supervisory review court after an application for supervisory review was lodged “A President or Deputy President of the respective court transfers the application for supervisory review ... to a judge of this court for examination.” Article 381. Examination of an application for supervisory review “2. Having examined an application for supervisory review, the judge issues an interim decision on – (1) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision; (2) refusing to obtain the case file if the arguments in the application for supervisory review may not, in accordance with the federal law, result in quashing of the judicial decision.", "... 6. The President of the...regional...court... may disagree with the judge's decision refusing to obtain the case file. In such case the President issues his own decision on obtaining the case file.” Article 382. Examination of case files obtained by the supervisory review court “2. Having examined the case file obtained by the supervisory review court, the judge issues an interim decision on – – refusing to remit the case for examination on the merits by the supervisory review court; – remitting the case for examination of the application for supervisory review on the merits by the supervisory review court.” Article 383.", "Interim decision refusing to remit the case for examination on the merits by the supervisory review court “2. The President of the...regional...court... may disagree with the judge's decision refusing to remit the case for examination on the merits by the supervisory-review court. In such case the President issues his own decision on remitting the case for examination on the merits by the supervisory review court.” Article 387. Grounds for quashing or varying judicial decisions by way of supervisory review “The grounds for quashing or varying the judicial decisions of the lower courts by way of supervisory review are serious violations of the substantive and procedural laws” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 1 OF PROTOCOL NO.", "1 ON ACCOUNT OF THE QUASHING OF THE JUDGMENT IN THE APPLICANT'S FAVOUR 23. The applicant complained that the quashing of the judgment of 21 January 2003 in his favour, as upheld on appeal, violated his rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which, insofar as relevant, provide as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” Article 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.” 24. The Government argued that the new system of supervisory review, introduced by the CCivP of 2003, differed from the old one. In particular, it was a judge who decided whether to obtain the case-file following a supervisory review complaint and to remit the case to the supervisory review court. They considered that the time-limits for examination of applications for supervisory review represented an additional safeguard of the applicant's rights. They further submitted that supervisory review of the judgment in the applicant's favour had been initiated and carried out in full compliance with the applicable procedure.", "The Government emphasised that the Presidium had reversed the judgment in the applicant's favour because of serious violations of substantive and procedural laws. In particular, the case-file contained no evidence to support the first instance court findings about the multiplier of 1.92 which was, moreover, never provided for by either local or regional legislation. Furthermore, the mentioned multiplier was overestimated and did not correspond to the level of inflation. According to the Government, the Town Court in its judgment of 22 April 2004 referred to correct multipliers of 1.25 and 1.26 for the years 2001 and 2002 respectively and reached lawful, just and reasoned conclusions. Accordingly, the Government submitted that a balance between the State interests and the legal requirements on the one hand and the applicant's interests on the other hand had been preserved.", "25. The Government finally stressed that the applicant's acceptance of the multiplier in the new proceedings before the Town Court and the fact that he had chosen not to appeal against the judgment of 22 April 2004 showed that he himself considered the initial multiplier incorrect. 26. The applicant maintained his complaints and submitted that the Town Court in its judgment of 22 April 2004 had applied underestimated multipliers which he had to accept in order to obtain at least some increase in his pension. A. Admissibility 27.", "The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. B. Merits 1.", "Alleged violation of Article 6 § 1 of the Convention 28. The Court reiterates that the right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which declares, in its relevant part, the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania, judgment of 28 October 1999, Reports of Judgments and Decisions 1999-VII, § 61). 29. In a number of previous cases the Court examined the Russian system of supervisory review under the “old” Code of Civil Procedure.", "That system allowed a final and binding judicial decision to be quashed by a higher court on an application made by a State official whose power to lodge such an application was not subject to any time-limit, with the result that the judgments were liable to challenge indefinitely (see, among other authorities, see Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-X, §§ 54-56; see also Roseltrans v. Russia, no. 60974/00, §§ 27-28, 21 July 2005; Volkova v. Russia, no. 48758/99, §§ 34-36, 5 April 2005). In the opinion of the Court, such system was incompatible with the “legal certainty” principle and the applicant's “right to a court” enshrined in Article 6 § 1.", "30. The Court also stressed in the above cases that the “old” supervisory review mechanism was used for the purpose of obtaining a rehearing of a settled judicial dispute (see Ryabykh v. Russia, mentioned above; see also, mutatis mutandis, Pravednaya v. Russia, no. 69529/01, § 25, 18 November 2004). However, the mere possibility of two views on the subject is not a ground for re-examination. Higher courts' power to quash or alter binding and enforceable judicial decisions should be exercised only for correction of fundamental defects.", "31. In 2003 the “old” system of supervisory review was replaced with the “new” one (see the “Relevant domestic law” part above). In the opinion of the Government, the new system guarantees better stability of court judgments. The Court observes that the supervisory review of the judgment in the applicant's favour was made under the new rules, so the Court has now to determine on the facts of the case whether or not the review was compatible with Article 6 § 1. 32.", "The Court does not find sustainable the Government's argument that the applicant's rights had been adequately secured by the time-limits set in the new Code of Civil Procedure. It is true that the new CCivP established a one-year time-limit for introducing a supervisory review appeal. However, under the new CCivP the president's power to overrule decisions of other judges refusing to initiate supervisory-review proceedings is not subject to any time-limits (see Denisov v. Russia (dec.), no. 33408/03, 6 May 2004). Furthermore, it is unclear on what grounds the president may decide to overrule the decision of the judge rapporteur (see the “Relevant domestic law” part above).", "33. In the present case the Court notes that on 30 June 2003 the judge rapporteur of the Regional Court examined the defendant's first application for supervisory review of the final judgment in the applicant's favour and refused to initiate the supervisory-review proceedings. Dissatisfied with the refusal, the defendant lodged a repeated supervisory review complaint, now with the President of the Regional Court, challenging the final judgment of 21 January 2003, as upheld on appeal, and the judge rapporteur's decision of 30 June 2003. Four months later, judge B. of the Regional Court, apparently acting within the President's powers provided by Article 383 of the CCivP (on behalf of the President), overruled the decision of 30 June 2003 and remitted the case to the Presidium for the examination on the merits. Thus, having disagreed with the judge rapporteur's previous decision and without giving any reasons for his disagreement, the President made use of his unfettered discretion to launch supervisory review proceedings.", "34. The Court further notes that the judgment of 21 January 2003 in the applicant's favour, as upheld on 16 April 2003, was set aside because the first-instance and appeal courts' findings had been insufficiently supported by evidence and they had misinterpreted the law. In other words, the reason for quashing the final judgment in the applicant's favour was the Presidium's disagreement with the way in which the lower courts had assessed the evidence before them and had applied the domestic law. Examining the Government's argument that the mentioned shortcomings constituted “serious violations of substantive and procedural laws”, the Court is nevertheless unable to conclude that they amounted to fundamental defects or circumstances of a substantial and compelling character which could have required departure from the principle of legal certainty secured by the Convention (see mutatis mutandis, Ryabykh v. Russia, cited above, and Pravednaya v. Russia, cited above). 35.", "Thus, the Court considers that the quashing of the judgment of 21 January 2003 in the applicant's favour, as upheld on appeal on 16 April 2003, by way of supervisory review proceedings infringed the principle of legal certainty and the applicant's “right to a court”. There has been, accordingly, a violation of Article 6 § 1 of the Convention. 2. Alleged violation of Article 1 of Protocol No. 1 36.", "The Court reiterates that the existence of a debt confirmed by a binding and enforceable judgment furnishes the judgment beneficiary with a “legitimate expectation” that the debt would be paid and constitutes the beneficiary's “possessions” within the meaning of Article 1 of Protocol No. 1. Quashing of such a judgment amounts to an interference with his or her right to peaceful enjoyment of possessions (see, among other authorities, Brumărescu, cited above, § 74). 37. Insofar as the Government submitted that the applicant had failed to appeal against the Town Court judgment of 22 April 2004, the Court observes that the core issue before it is the quashing of the final and binding judgment given in the applicant's favour, an instantaneous act (see Sitokhova v. Russia (dec.), no.", "55609/00, 2 September 2004). Thus, the eventual outcome of the post-quashing proceedings is not directly relevant for the Court's analysis of the complaint about the annulment of the judgment in the applicant's favour (see Ivanova v. Ukraine, no. 74104/01, §§ 35-38, 13 September 2005), unless, as a result of the subsequent proceedings, the applicant obtained more than he had had before the supervisory review which is clearly not the case. 38. Having regard to its case-law (see §§ 78-80 in the Brumărescu judgment cited above) and the conclusions under Article 6 above, the Court considers that the quashing of the judgment by way of supervisory review, even though it pursued a legitimate aim, imposed a disproportionate and excessive burden on the applicant and was therefore incompatible with Article 1 of Protocol No.", "1 to the Convention. 39. There has accordingly been a violation of that Article. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 1 OF PROTOCOL NO.", "1 ON ACCOUNT OF THE NON-ENFORCEMENT 40. The applicant also complained about the non-enforcement of the judgment of 21 January 2003, as upheld on 16 April 2003. He relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, both cited above. 41.", "The Court observes that the principles insisting that a final judicial decision must not be called into question and should be enforced represent two aspects of the same general concept, namely the “right to a court” (see Ryabykh v. Russia, cited above, §§ 55-57; Burdov v. Russia, no. 59498/00, § 34, ECHR 2002‑III). 42. In the present case the non-enforcement was due, to a large extent, to the fact that the judgment to be enforced was twice challenged by the defendant by way of supervisory review and then quashed by the Presidium in course of the supervisory review proceedings. Having regard to this consideration and its findings above concerning violation of the applicant's rights on account of the quashing of the judgment in his favour, the Court does not consider it necessary, in the circumstances, to examine the applicant's complaint concerning the non-enforcement of that judgment separately and therefore rejects this part of the application under Article 35 § 4 of the Convention.", "III. 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.” 44. 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”. 45.", "In the instant case the applicant was invited to submit, by 31 May 2006, his claims for just satisfaction but failed to do so within the required time-limits. 46. In these circumstances, the Court makes no award under Article 41 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the quashing of the judgment of 21 January 2003, as upheld on appeal on 16 April 2003, by way of supervisory review admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of the quashing of the judgment of 21 January 2003, as upheld on appeal on 16 April 2003, by way of supervisory review; 3. Decides to make no award under Article 41. Done in English, and notified in writing on 15 February 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenLoukis LoucaidesRegistrarPresident" ]

[ "FOURTH SECTION CASE OF ÖZÇELİK v. TURKEY (Application no. 56497/00) JUDGMENT STRASBOURG 20 February 2007 FINAL 20/05/2007 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 Özçelik 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 30 January 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 56497/00) 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 Osman Özçelik (“the applicant”), on 19 January 2000. 2. The applicant was represented by Mr M.N.", "Özmen, a lawyer practising in Ankara. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. 3. On 2 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 1952 and lives in Ankara. He was the deputy chairman of the pro-Kurdish HADEP (Halkın Demokrasi Partisi – People’s Democracy Party) prior to the events giving rise to the present application. 5.", "On 21 July 1999 the applicant was taken into custody by police officers from the anti-terror branch of the Ankara Security Directorate. According to the arrest protocol (yakalama tutanağı) signed by four police officers and the applicant, a search warrant had been issued in respect of the applicant. When the officers saw the applicant, they asked him to show his identity card. The applicant however attempted to escape. 6.", "On 23 July 1999 the deputy director of the Ankara Security Directorate sent a letter to the public prosecutor at the Ankara State Security Court requesting that the applicant’s custody period be extended. The deputy director maintained, inter alia, that the applicant had been taken into custody on 21 July 1999 during the course of a police operation carried out against the PKK and that the police had not yet completed the detailed questioning of the applicant and the gathering of evidence. 7. The public prosecutor referred the security directorate’s request to the Ankara State Security Court. On the same day, the single judge of the State Security Court decided to extend the custody period for three days starting from 24 July 1999, including 26 July 1999.", "The applicant did not appear before the judge. 8. On 25 July 1999 two police officers from the anti-terror branch of the Ankara Security Directorate took statements from the applicant. The applicant was questioned, in particular, about his statements made in several television programmes, broadcast on MED-TV, a pro-Kurdish channel, in which he had taken part in his capacity as deputy chairman of the HADEP. 9.", "On 27 July 1999 the applicant was brought before the public prosecutor at the Ankara State Security Court, who questioned him about his statements during the same television programmes. Subsequently, the public prosecutor requested the Ankara State Security Court to order the applicant’s detention on remand. 10. On the same day, the single judge at the Ankara State Security Court ordered the applicant’s release from detention, having regard to the nature of the alleged offence and the state of the evidence. 11.", "On 9 August 1999 the public prosecutor requested that the Ankara State Security Court file a bill of indictment, charging the applicant with aiding and abetting members of the PKK on account of his statements made during the television programmes shown on MED-TV. 12. On 21 December 2000 new legislation (Law no. 4616) on the suspension of proceedings and the execution of sentences regarding offences committed before 23 April 1999 came into force. 13.", "On 25 June 2002 the Ankara State Security Court decided to defer the imposition of a final sentence on the applicant, pursuant to Law no. 4616. The court held, under Article 1 § 4 of the same law, that the criminal proceedings against him would be suspended and a final sentence would be imposed should he be convicted of a similar offence within five years of this decision. II. RELEVANT DOMESTIC LAW 14.", "A description of the relevant domestic law at the material time can be found in Daş v. Turkey (no. 74411/01, § 18, 8 November 2005). THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 15. The applicant complained under Article 5 § 1 (c) of the Convention that he had been unlawfully deprived of his liberty as there had been no reasonable suspicion for his arrest.", "Article 5 § 1 (c) provides as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so...” 16. The Government did not comment on this complaint. 17.", "The Court reiterates that having a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective observer that the person concerned might have committed the offence (Fox, Campbell and Hartley v. the United Kingdom, judgment of 30 August 1990, Series A no. 182, p. 16, § 32). However, facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at a later stage of the process of criminal investigation (Murray v. the United Kingdom, judgment of 28 October 1994, Series A no. 300-A, p. 27 § 55). 18.", "The Court observes that the applicant was arrested during the course of a police operation carried out against the PKK. According to the arrest protocol, which was signed by the applicant, a search warrant had been issued against him and the applicant had attempted to escape when the police officers asked him to show his identity card. 19. The Court considers that the aforementioned elements are sufficient to support the conclusion that there was “reasonable suspicion” for the applicant’s arrest. The fact that the proceedings against him were subsequently suspended does not of itself call into question the existence of a reasonable suspicion within the meaning of Article 5 § 1 (c).", "20. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention. II. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 3 AND 4 OF THE CONVENTION 21. The applicant complained that he had been held in police custody for seven days without being brought before a judge or other officer authorised by law to exercise judicial power.", "He further complained under Article 13 of the Convention that he had no remedy in domestic law to challenge the lawfulness of his detention in police custody. The Court considers that the applicant’s complaint under Article 13 should be examined from the standpoint of Article 5 § 4 of the Convention. Article 5 §§ 3 and 4 of the Convention read as follows: “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.” A. Admissibility 22. The Government submitted that the application should be rejected for failure to exhaust domestic remedies as required by Article 35 § 1 of the Convention. They argued that the applicant had failed to invoke Article 5 of the Convention before the domestic authorities and to challenge the decision to extend his custody period. The Government further maintained that the applicant could have sought compensation under Law no.", "466 on the Payment of Compensation to Persons Unlawfully Arrested or Detained. 23. The Court notes that it has already examined and rejected the Government’s preliminary objections in similar cases (see, for example, Öcalan v. Turkey [GC], no. 46221/99, §§ 66-71, ECHR 2005‑... and Daş, cited above, § 18). The Court finds no particular circumstances in the instant case, which would require it to depart from this jurisprudence.", "24. Consequently, the Court rejects the Government’s preliminary objections. 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 1. The applicant’s complaint under Article 5 § 3 of the Convention 26. The Government argued that the length of the applicant’s detention in police custody was in conformity with the legislation in force at the material time.", "They further maintained that the relevant domestic law had been amended in accordance with the Court’s jurisprudence. 27. The applicant reiterated his allegations. 28. The Court has already accepted on a number of occasions that the investigation of terrorist offences undoubtedly presents the authorities with special problems (see Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no.", "145-B, pp. 33-34, § 61; Murray, cited above, § 58; Demir and Others v. Turkey, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2653, § 41). This does not mean, however, that the authorities have carte blanche under Article 5 to arrest suspects and detain them in police custody, free from effective control by the domestic courts and, in the final instance, by the Convention’s supervisory institutions, whenever they consider that there has been a terrorist offence (see, among others, Murray, cited above, § 58). 29. The Court notes that the applicant was taken into police custody on 21 July 1999 and released on 27 July 1999.", "His detention in police custody thus lasted at least six days. It reiterates that in the Brogan and Others case it held that detention in police custody which had lasted four days and six hours without judicial control fell outside the strict constraints as to time laid down by Article 5 § 3 of the Convention, even though its purpose was to protect the community as a whole against terrorism (see Brogan and Others, cited above, p. 33, § 62). 30. Even supposing that the activities of which the applicant stood accused were linked to a terrorist threat, the Court cannot accept that it was necessary to detain him for six days without being brought before a judge. 31.", "There has, accordingly, been a violation of Article 5 § 3 of the Convention. 2. The applicant’s complaint under Article 5 § 4 of the Convention 32. The Government contended that Article 128 of the Code of Criminal Procedure, which was in force at the material time, provided an effective remedy to challenge the lawfulness of detention in police custody. 33.", "The applicant reiterated his allegations. 34. The Court reiterates that in several cases raising similar questions to those in the present case, it rejected the Government’s aforementioned submission and found a violation of Article 5 § 4 of the Convention (see, among others, Öcalan, cited above, § 76 and, Sakık and Others v. Turkey, judgment of 26 November 1997, Reports 1997‑VII, § 54). The Court finds no particular circumstances in the instant case, which would require it to depart from its findings in the aforementioned cases. 35.", "In conclusion, the Court holds that there has been a violation of Article 5 § 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 36. The applicant complained under Article 6 § 2 of the Convention that his right to the presumption of innocence had been violated since, subsequent to his arrest, there had been news reports in newspapers, on radio stations and on television channels, in which he had been presented as a criminal. 37.", "The Government did not comment on this complaint. 38. The Court observes that the applicant did not submit any materials in support of his complaint. Nor did he allege that the authorities had presented him to the media as a criminal. It therefore considers that the applicant has failed to substantiate his complaint under this head.", "39. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention. IV. ALLEGED VIOLATIONS OF ARTICLES 14 AND 18 OF THE CONVENTION 40. The applicant complained under Article 14 of the Convention, in conjunction with Articles 5 and 6 of the Convention, that he had been discriminated against on the basis of his ethnic origin.", "He further alleged under Article 18 of the Convention that the respondent State had applied restrictions on the exercise of his rights in violation of the Convention. 41. The Government did not address these issues. 42. The Court notes that the applicant has not substantiated his complaints under these provisions.", "43. It follows that these complaints are manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention. V. 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 45.", "The applicant claimed 3,000 euros (EUR) in respect of pecuniary damage and EUR 20,000 in respect of non-pecuniary damage. 46. The Government contested these claims. 47. The Court does not discern any causal link between the violations found and the pecuniary damage alleged.", "It therefore rejects this claim. 48. On the other hand, it accepts that the applicant suffered non‑pecuniary damage such as distress resulting from his detention for six days without the opportunity to challenge its lawfulness, which cannot be sufficiently compensated by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 1,500 in respect of non-pecuniary damage. B.", "Costs and expenses 49. The applicant also claimed EUR 6,837 for the costs and expenses incurred before the Court. 50. The Government submitted that these claims were unsubstantiated. They argued that no documents had been provided by the applicant to prove his claims.", "51. 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 Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002). 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 1,500 for the proceedings before the Court. C. Default interest 52.", "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 failure of the authorities to bring the applicant promptly before a judge and his inability to challenge the lawfulness of his 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 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, the following amounts plus any tax that may be chargeable, to be converted into new Turkish liras at the rate applicable at the date of settlement: (i) EUR 1,500 (one thousand five hundred 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 abovementioned 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 February 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyNicolas Bratza RegistrarPresident" ]

[ "FIFTH SECTION CASE OF KARPYUK and others v. Ukraine (Applications nos. 30582/04 and 32152/04) 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 Karpyuk and Others 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 8 September 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in two applications (nos. 30582/04 and 32152/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Ukrainian nationals on 11 August 2004 (application no. 30582/04) and 20 August 2004 (application no. 32152/04). Their names and years of birth are as follows: - Mr Mykola Andronovych Karpyuk, born in 1964 (“the first applicant”); - Mr Mykola Petrovych Lyakhovych, born in 1976 (“the second applicant”); - Mr Igor Petrovych Mazur, born in 1973 (“the third applicant”); - Mr Sergiy Volodymyrovych Galchyk, born in 1982 (“the fourth applicant”); - Mr Oleg Anatoliyovych Buryachok, born in 1979 (“the fifth applicant”); - Mr Andriy Vasylyovych Kosenko, who was born in 1980 and died in 2009 (“the sixth applicant”); and - Mr Grygoriy Petrovych Lyakhovych, born in 1982 (“the seventh applicant”).", "2. The applicants were represented by Mr Y.O. Nikolenko, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented most recently by their Agent, Mr Y. Zaytsev. 3.", "The applicants alleged, in particular, that their confinement in a metal cage during their trial constituted degrading treatment, that they had not had a fair trial, and that their conviction for mass disorder in connection with their participation in events on 9 March 2001 in Kyiv had violated their rights to freedom of expression and peaceful assembly. 4. On 10 November 2008 the applications were communicated to the Government. 5. On 24 June 2009 Mr Nikolenko informed the Court that the sixth applicant had died on 22 May 2009.", "His father, Mr Vasyl Mykolayovych Kosenko, expressed the wish to pursue the application on his behalf. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. According to the applicants, at the relevant time the first three applicants were leaders, the fourth, fifth and seventh applicants were members, and the sixth applicant was a supporter of the Ukrainian National Assembly (“the UNA”), a nationalist party. At the relevant time, the UNA was associated with an unregistered organisation known as the Ukrainian National Solidarity Organisation or Ukrainian National Self-Defence Force (“the UNSO”).", "7. In late 2000 and early 2001 a group of politicians and organisations who were in opposition to the then President of Ukraine Leonid Kuchma launched a series of large-scale rallies and demonstrations and a civil campaign known as “Ukraine without Kuchma” movement. 8. According to media reports, on 8 March 2001, the organisations engaged in the movement publicly announced that protesters were planning not to let President Kuchma come to the monument to Taras Shevchenko, a famous Ukrainian poet, in Kyiv (“the Shevchenko monument”) and lay flowers there the next day, 9 March 2001, the 187th anniversary of Taras Shevchenko’s birth. A.", "Events of 9 March 2001 and their aftermath 9. On 9 March 2001 at about 8 a.m. the applicants and other UNA and UNSO supporters participated in a political rally near the Shevchenko monument announced by the opposition forces on 8 March 2001. As established by the domestic courts, the organisers failed to give advance formal notice to the authorities about the rally, as provided by Article 39 of the Constitution of Ukraine (see paragraphs 60 and 86 below). 10. Prior to the arrival of protesters, the police and troops of the Ministry of the Interior (“the police”) formed a cordon, and for some time did not allow the participants of the rally to approach the monument.", "The cordon had been formed to allow President Kuchma and other State officials to lay flowers at the monument. As established by domestic courts, the protesters attempted to break through the cordon to disrupt the flower-laying ceremony and attacked the police (see paragraph 52 below). The police moved on protesters seeking to control and break up the crowd. No information has been provided by the parties as to whether the police explicitly ordered the protesters to disperse. It is undisputed that clashes between the police and protesters ensued and as a result of the events a number of police officers were injured.", "11. In the course of events near the Shevchenko monument several protesters were arrested. At around 2 p.m. the same day a column of protesters, including the applicants, marched to the Ministry of the Interior building to demand their release. They dismantled a wooden barrier nearby, pelted the building with eggs and then left. 12.", "At about 3 p.m. the same day a group of protesters, including the applicants, marching away from the Ministry of the Interior building to the center of the city arrived at Bankova Street, where they clashed with police officers who had cordoned off the street to block access to the President’s Administration building located there. The police officers were attacked with stones and a metal street barrier, and a Molotov cocktail was thrown at them. As the domestic courts established in convicting the applicants, as a result of the clashes forty-nine police officers were injured, including fourteen with concussion. 13. According to the findings of the domestic courts, the first three applicants played a leading role in inciting and directing attacks on the police near the Shevchenko monument and Bankova Street.", "The fourth, fifth, sixth and seventh applicants participated in the attacks on police on Bankova Street (see paragraphs 51-57 below). According to the applicants, they participated in the protests but behaved peacefully. 14. According to the applicants, more than 200 individuals were arrested in connection with the events. 15.", "Between 9 and 14 March 2001 the first six applicants were arrested. On various dates they were remanded in custody pending investigation and trial. On 16 March 2001 the seventh applicant was arrested and on 19 March 2001 released on an undertaking not to abscond pending investigation and trial. It appears that none of the applicants was arrested at the scene of the events of 9 March 2001. 16.", "The applicants were charged with organising and participating in mass disorder. 17. A number of law enforcement officers who had participated in crowd control on the day in question, and had been assaulted or injured as a result, were later recognised as aggrieved parties in the proceedings against the applicants. B. The applicants’ trial 18.", "On 1 October 2001 the case against the applicants and their co-defendants was referred to the Golosiyivsky District Court of Kyiv (“District Court”) for trial before a panel composed of Judge V. as the presiding judge and two other judges. 19. In the course of the trial and subsequent proceedings before the Kyiv Court of Appeal thirteen defendants, including the first six applicants, were kept in a metal cage. 20. According to the Government, the presiding judge issued warnings to the second applicant in connection with his conduct in the courtroom on ten occasions between 18 December 2001 and 14 March 2002.", "21. On 16 May 2002 all the defendants unsuccessfully challenged Judge V. because he had disallowed a question that defendant Z. sought to put to one of the aggrieved parties. The other judges sitting on the panel were also challenged without success on the grounds that Judge V. and the prosecutor had allegedly been in the deliberations room with the other judges when they had decided on the previous challenge. 22. On 19 June 2002 the defendants challenged Judge V. on the grounds that he had allegedly disallowed certain questions the defence had sought to put to the aggrieved parties and a witness.", "The other two judges on the panel rejected the challenge, stating that the disallowed questions had been irrelevant, repetitive or leading. 23. On the same day the trial court found that the second applicant was behaving disruptively and decided to exclude him from the courtroom. According to the applicant, on the basis of that ruling he was also excluded from hearings held on 20 and 21 June 2002. 24.", "On 20 June 2002 lawyer Ya. unsuccessfully challenged Judge V. on the grounds that he had allegedly disallowed certain questions put to witnesses, rejected other evidentiary requests by the defence, and held meetings with the prosecutors in his chambers. No details as to the nature and circumstances of the alleged meetings were provided. 25. On 8 July 2002 witness I.Tr.", "addressed a letter to the trial court, claiming that the statement he had given to the investigating authorities during the pre-trial investigation was untrue and given under pressure from the authorities. He sought to be examined during the applicants’ trial, indicating that he was being held at the Kherson Pre-Trial Detention Centre. 26. On 24 July 2002 Mr Nikolenko, then acting as a lawyer for the defence, unsuccessfully challenged Judge V. mainly on the grounds that in his remarks he, as the lawyer believed, had insulted the sixth applicant by implying that his health problems had been related to drug use. 27.", "On 15 August 2002 lawyer Ya. unsuccessfully challenged all the judges of the panel, complaining about the rejection of the defence’s request to extend the examination of a witness, other evidentiary requests by the defence, and the court’s decision to keep the defendants in the metal cage. 28. According to the first applicant, from 2 to 4 September 2002 the trial court decided to appoint a legal aid lawyer for him and a number of the other defendants. The appointed lawyers were then frequently replaced until the end of the trial.", "29. On 2 September 2002 the trial court considered removing the second applicant from the courtroom for laughing. Another defendant stated that it was he, and not the second applicant, who laughed. 30. According to the Government, on 3 September 2002 the trial court granted the second applicant’s request for a recess to allow him to consult his lawyer.", "31. On 5 September 2002, in the course of examination of video recordings of the events of 9 March 2001, the second applicant stated that he could not recognise himself on the video and added that the person on it looked like Judge V. The court considered this remark disrespectful and decided to remove the second applicant from the courtroom for the duration of the trial, until the parties’ closing statements. 32. On 9 September 2002 some of the defendants and their lawyers unsuccessfully challenged Judge V. on the grounds that he had excluded the second applicant from the courtroom and allegedly stated that the defendants’ behaviour in the courtroom would be taken into account in sentencing. 33.", "According to the Government, on 17 September 2002 the first applicant’s lawyer, M., had informed the trial court that he would be unable to attend any hearings and did not appear before the trial court until 22 November 2002. 34. During the trial, the sixth applicant pleaded guilty in part, admitting that he had been in the crowd on Bankova Street and thrown an egg at the police. The other applicants pleaded not guilty. They testified that they had been at the scene of the events and participated in a peaceful political rally and march, but had not committed any acts of violence.", "The first, second and third applicants testified that in the course of the events of 9 March 2001 they had attempted to prevent some of the other protesters from acting violently. The second applicant also testified, in particular, that he had indeed chanted “UNSO on the attack, UNA to power!” and “Impale the traitors!”, but not on Bankova Street. C. Witness testimony examined during the trial 35. According to the trial court judgment, in the course of the trial the court read out the statements of several individuals given during the pre-trial investigation. In justifying its decision to admit these statements as evidence, the trial court stated that they had “valid reasons” for failing to appear in court.", "36. In particular, as regards the events of 9 March 2001 in general, I.Tr. stated during the pre-trial investigation that on 27 February 2001 the UNA leader A.Sh. had offered him a financial reward to come to the events of 9 March 2001 with as many UNA and UNSO supporters as possible. O.Dm.", "stated that when President Kuchma had arrived at the Shevchenko monument, the column of UNA and UNSO protesters had moved towards the police cordon and had tried to break through, pulling away the street barriers separating the crowd from the police. R.Tk., a protester, stated that he had seen the crowd dismantle a street barrier and throw it, as well as stones, wooden boards and other objects, at the police on Bankova Street. 37. As regards the second applicant, M.Sh. stated during the pre-trial investigation that a group of protesters near the Shevchenko monument had attacked the police line in which he had been standing, and had hit him, pulled him from the line, pushed him to the ground and kicked him.", "M.Sh. identified the second applicant as the leader of the crowd, giving them instructions to move towards the police, telling them to move “Forward!” and offering a reward for any riot gear seized or police officer beaten up. S.Ko. stated that the second applicant had been an organiser and active participant in the riots. He commanded the crowd to move towards the police line near the Shevchenko monument.", "In the course of the attack he had shouted “UNA to power, UNSO on the attack!” and “Impale the traitors!” According to S.Ko., he had then shouted the same slogans during the clashes on Bankova Street, as the protesters were trying to break through to the President’s Administration building. According to the witness, these slogans were interpreted by the crowd as a call to action and to attack the police. V.Du. stated that the second applicant had lined up a column of UNA members near the Shevchenko monument. Somebody had then shouted “Forward!” and the column had attacked the police.", "38. As regards the third applicant, R.Py. stated during the pre-trial investigation that the UNA leader A.Sh. and the third applicant had directed the UNA and UNSO column to try to break through the police cordon near the Shevchenko monument and on Bankova Street. He had also seen people from the crowd kick a police officer lying on the ground.", "On Bankova Street he had seen UNSO members throw stones, eggs and a street barrier at the police. D.Ko. stated that the third applicant had told him before the events that the UNA and UNSO were gathering their members for a rally on 9 March 2001, that participants would be remunerated, and that it was important to ensure a large turnout. V.Ma. stated that his travel expenses for his return trip to Kyiv on 9 March 2001 had been paid.", "He also stated that the third applicant had given the command to line up near the Ministry of the Interior building and from time to time shouted “UNA to power, UNSO on the attack!” and slogans directed against President Kuchma. V.Ku. stated that the third applicant had been at the front of the UNA and UNSO column during the riots. M.Pe. stated that the UNA had paid the travel expenses of its members travelling to Kyiv on 9 March 2001, and that when the crowd had seen the police cordon on Bankova Street it had turned in the direction of the cordon and the third applicant had then lined up UNSO members there.", "39. As regards the fourth applicant, I.Gl. stated during the pre-trial investigation that he had been standing in the police cordon on Bankova Street when it had been attacked by a group of protesters. He stated that he in particular had been attacked by a man armed with a wooden stick and a shield, whom he had identified as the fourth applicant. 40.", "According to the trial court judgment, in the course of the trial the court had also examined more than sixty aggrieved parties, namely officers who had participated in maintaining order during the events of 9 March 2001. They had testified in general terms that the protesters, many of whom had been wearing UNSO armbands and had had their faces covered, had behaved violently. 41. In particular, S.Sy. had identified the second applicant as the individual who had given commands to the crowd and had been at the front of the crowd on Bankova Street, shouting “Forward!” and “On the attack!” At least three officers had identified the first applicant, two had identified the third applicant, three had identified the fourth applicant, two had identified the fifth applicant and one had identified the sixth and seventh applicants as individuals who had attacked the police on Bankova Street.", "42. According to the trial court judgment, in the course of the trial the court had also examined over thirty other eyewitnesses and a number of other witnesses who had recognised the defendants on video recordings of the events or had testified to the defendants’ character. 43. In particular, N.Ma., a protester, had testified that the goal of the rally near the Shevchenko monument had been to prevent President Kuchma from being able to lay flowers there and that she had seen a column of about 150 people, almost all with UNSO armbands, run towards and attack the police cordon. S.Po.", "had testified that he had taken part in organising the rally near the Shevchenko monument and that the plan had been to form a circle around the monument to prevent President Kuchma from laying flowers there. When the protesters had arrived at the monument, they had discovered that it was already cordoned off by the police, and the third applicant had given the command to try to break through the police cordon, but “this could have been interpreted in various ways”. Shortly afterwards, the police had attacked the protesters. V.Ch., one of the organisers of the rally, testified that the protesters had planned to express their disagreement with President Kuchma, who on that day had planned to lay flowers at the Shevchenko monument. On Bankova Street he had seen the third applicant with a cut on his hand and the second applicant with a loudspeaker.", "As regards the third applicant, Gre., a police officer, testified that he had seen him direct the crowd on Bankova Street and organise it to try to break through the police cordon. Gro., a protester, testified that he had seen the third applicant direct the crowd to break the street barrier on Bankova Street and participate in the attack on the police there. Y.Yu., an officer of the Security Service of Ukraine (“the SBU”), testified that he had seen him attack the police on Bankova Street. D. Trial court judgment 44. On 25 December 2002 the District Court found the applicants guilty of offences defined in Article 71 of the Criminal Code: (i) the first and third applicants of organising and actively participating in mass disorder; (ii) the second applicant of organising mass disorder; and (iii) the fourth, fifth, sixth and seventh applicants of actively participating in mass disorder.", "45. The court also convicted eleven other defendants in connection with the same events. 46. In convicting the applicants, the court relied on the statements of aggrieved parties and witnesses made during the pre-trial investigation and read out during the trial (see paragraphs 36-39 above), and on the testimony of a number of aggrieved parties and other witnesses heard and examined viva voce during the trial (see paragraphs 41 and 43 above). 47.", "The trial court rejected witness I.Tr.’s letter of 8 July 2002 seeking to be questioned during the trial, on the grounds that his signature had not been certified. 48. It relied on its own identification of the applicants in a number of video recordings of the events of 9 March 2001, filmed both by the law enforcement agencies and television channels. 49. It also relied on medical evidence of injuries suffered by law enforcement officials on the day in question and on expert reports identifying several of the applicants on the video recordings.", "It also referred to physical evidence found at the scene of the events: stones, broken up pavement slabs, sticks and various other objects which could have been used to attack the police; as well as the applicants’ clothes which, according to the trial court, matched the clothes worn by the rioters on the video recordings. 50. The court made the following findings regarding the events of 9 March 2001. 51. As regards organisation of the rally, on 7 and 8 March 2001 UNA leaders including the first three applicants had organised the arrival of UNA and UNSO members and supporters in Kyiv and their gathering near the Shevchenko monument on 9 March 2001.", "52. As regards the events near the monument, the second and third applicants had organised a column of UNA and UNSO supporters and had called on them to attempt to break through the police cordon. As a result of these actions, clashes with the police had ensued, in the course of which acts of violence and resistance towards the police had been committed. The second applicant had incited disorder among the participants, in particular by chanting the slogans: “Form a column of six in line”, “There will be a reward for each trophy!”, “Impale the traitors!”, “UNSO on the attack, UNA to power!” The third applicant had actively taken part in the attempt to break through the police cordon, and had thrown a riot helmet at it, previously seized from the police. At least three times he had punched M.Sh., who had been pulled away from the police line by the protesters.", "53. As regards the events on Bankova Street, the first three applicants had organised the mass disorder there. The protesters had attacked the police cordon with the aim of breaking through to the President’s Administration building throwing stones at the police and attacking them with sticks. They had also pulled away the metal street barrier separating them from the police line and had thrown it at the police. 54.", "The first applicant had chanted “On the attack!”, “UNSO on the attack!” and had directed the crowd which had pulled the street barrier away and attacked the police. He had taken part in dismantling the barrier, had attempted to take away riot shields, had hit and kicked the police, had pulled from the police line and repeatedly hit officer O.Ma., and had thrown a piece of wire at the police. 55. The second applicant had directed and helped the protesters pull the metal street barrier away from the police cordon and had chanted “Forward!”, “UNSO on the attack, UNA to power!”. 56.", "The third applicant had chanted “UNSO on the attack, UNA to power!” and had helped pull the street barrier away from the police cordon, which he had thrown at the police twice. He had also hit police officers, and had attempted to take away riot shields and truncheons. 57. The fourth applicant had thrown a street barrier at the police four times, as well as stones and a wooden stick. He had also kicked and hit officers with a wooden stick and pipe.", "The fifth applicant, acting with others, had thrown the street barrier at the police twice, and had attempted to take away a riot shield and truncheon. The sixth applicant had thrown the street barrier and an egg at the police, had hit officers, and had attempted to take away a riot shield. The seventh applicant had helped pull the street barrier away from the police line and had thrown it at the police. 58. The court found the applicants’ arguments that the events had been provoked unsubstantiated.", "While it acknowledged that the third applicant in particular had been observed trying to stop violent protesters on Bankova Street, in the trial court’s view this only occurred at the end of the clashes once the protesters had realised they could not break through the police line. 59. The applicants received the following sentences: four years and six months (the first applicant), five years (the second applicant), four years (the third and fourth applicants), three years (the fifth applicant), and two years (the sixth applicant). The seventh applicant was sentenced to two years, suspended for two years with probation. 60.", "In convicting the applicants the trial court observed that Article 11 of the Convention did not apply to manifestations which were not peaceful and observed that the participants in the mass disorder on 9 March 2001, including the applicants, had not behaved peacefully. The court further observed that the actions of the police on 9 March 2001 had not breached Article 11 of the Convention because police cordons had only been installed temporarily, to allow the President and other State officials to lay flowers at the Shevchenko monument and to protect the public buildings on Bankova Street. The trial court went on to find that the applicants’ right to peaceful assembly under the Constitution of Ukraine had not been breached by the police because the authorities had not been notified about the manifestations planned for 9 March 2001, as required by Article 39 of the Constitution (see paragraph 86 below). 61. On 27 January 2003 lawyer Ya., acting on behalf of the first two applicants, submitted to the trial court a number of proposed corrections to the trial record.", "The case file does not indicate what decision was made pursuant to this request. E. Appeals and attempted reopening of proceedings 62. All the applicants appealed, arguing in particular that the trial court had erred in the assessment of evidence and that, in fact, the evidence did not support the finding of their guilt. They also argued that the trial court had relied on the statements of absent witnesses, depriving the applicants of the opportunity to confront them, and had breached procedural rules in admitting video evidence. 63.", "In their appeals, the first two applicants also argued that the trial court had not been impartial and had been biased towards the prosecution, had removed the second applicant from the courtroom without sufficient grounds, and had refused the second applicant’s request to discontinue his and other defendants’ confinement in the metal cage. They also argued that the authorities had provoked the protesters by placing large police contingents in riot gear in their path. In his appeal, the second applicant also complained that he had been ill-treated by the police after his arrest, and that he saw his sentence as recognition of his role in the struggle of the Ukrainian nation against President Kuchma’s “criminal regime” engaged in the “genocide” of Ukrainians. 64. On 16 May 2003 the Kyiv City Court of Appeal (“Court of Appeal”) upheld the applicants’ conviction, striking out certain statements from the judgment, and reduced the first applicant’s sentence to three years and six months, the second applicant’s sentence to four years, the third and fourth applicant’s sentences to three years, and the fifth applicant’s sentence to two years and six months.", "65. The first two applicants appealed in cassation, arguing in particular that the trial court had not been impartial and had been biased towards the prosecution, expressing this by denying the second applicant’s request to discontinue his and other defendants’ confinement in the cage and removing him from the courtroom on 19 June 2002. They further stated that the trial court had relied on the statements of absent witnesses, depriving the applicants of the opportunity to confront them, and had breached procedural rules in admitting video evidence. 66. The remaining applicants also appealed in cassation, arguing in particular that the trial court had not been impartial, had relied on the statements of absent witnesses, depriving the applicants of the opportunity to confront them, and had breached procedural rules in admitting video and physical evidence.", "67. On 4 March 2004 the Supreme Court upheld the judgment of 25 December 2002 and ruling of 16 March 2003, finding the applicants’ appeals unsubstantiated. It reduced the first applicant’s sentence to two years and six months. The Supreme Court stated, among other things, that the planned and organised nature of the events of 9 March 2001 had been proven by the testimony of a number of witnesses, including D.Ko., V.Ma., M.Pe. and N.Ma.", "(see paragraphs 38 and 43 above) 68. On an unspecified date the Deputy Prosecutor General (“the DPG”) requested that the Supreme Court review the applicants’ conviction and sentences by way of extraordinary review proceedings. He argued that the authorities had neglected to investigate the possibility that the clashes between the participants of the rally had been provoked by the law enforcement agencies or third parties, and that this information had not been known to the courts which had examined the case. The DPG also pointed to certain evidence which had been in the possession of the investigating authority, the SBU, but had not been examined during the pre-trial investigation or trial. In particular, he referred to video recordings which, in his opinion, could have shed light on the possibility of provocateurs, and to other evidence that prior to the events of 9 March 2001 the UNA and UNSO headquarters had been wiretapped, possibly with the aim of disrupting the rally.", "69. On 7 April 2006 the Supreme Court decided not to reopen the proceedings, holding that it had no jurisdiction to quash the judgment based on the arguments put forward by the DPG. Those facts had to be considered newly discovered circumstances, which first had to be investigated by the prosecutor’s office and then brought to the attention of the trial court and Court of Appeal, in accordance with the procedure for review of final judgments in such circumstances. The case file shows no steps to follow up on the matter. F. The second applicant’s alleged ill-treatment and detention 70.", "According to the second applicant, following his arrest on 9 March 2001 he received serious injuries as a result of ill-treatment by the police and was taken to hospital. 71. Between 9 and 15 March 2001 he underwent inpatient treatment for his injuries, in particular concussion and a fractured rib. 72. On 17 March 2001 an SBU investigator ordered that the applicant be placed in pre-trial detention, a decision endorsed by a prosecutor.", "The applicant was placed in SBU Pre-Trial Detention Centre (SIZO) and then transferred to Kyiv SIZO. 73. On 18 June 2001 an SBU investigator decided to disjoin the ill‑treatment complaint from the criminal case against applicants and send the material concerning the complaint to the Prosecutor General’s Office for investigation. The case file does not indicate whether the matter was followed up in any way. 74.", "On 22 May 2003 the second applicant was transferred to a correctional colony to serve the rest of his sentence. 75. From 20 June 2003 until his release the second applicant was treated for tuberculosis. 76. On 3 October 2003 he was released from serving the remainder of his sentence by virtue of an amnesty law.", "II. RELEVANT LAW AND PRACTICE A. Relevant domestic law and practice 1. Code of Criminal Procedure 1960 (repealed with effect from 19 November 2012) (a) Rules concerning the summoning of witnesses and admission of absent witness testimony 77. Article 70 of the Code required a witness summoned by an investigating authority, prosecutor or a court to appear at the time and place indicated and give truthful testimony.", "Failure to appear without a valid reason could result in the witness being fined by the relevant summoning authority and escorted to the hearing by the police. 78. Article 135 stipulated that “valid reasons” for failure to appear could include delayed receipt of the summons, illness or any other circumstances which made it impossible to appear on time. 79. Article 306 provided that in the course of the trial the court could read out the statements of a witness given during the pre-trial investigation in the following cases: (i) where a substantial contradiction was discovered between the witness’s testimony during the trial and pre-trial testimony; (ii) where it was impossible for the witness to appear in person; or (iii) where a witness under a witness protection programme had reaffirmed his out-of-court testimony in writing.", "80. Under Articles 72 and 308 the above-mentioned rules concerning the summoning of witnesses and the use of out-of-court testimony also applied to aggrieved parties. (b) Rules concerning removal of defendants from the courtroom 81. Article 272 authorised the presiding judge to issue a warning to any defendant behaving in a disorderly fashion during a hearing or failing to obey his or her instructions. In cases of repeated disorderly conduct, the same provision of the Code authorised the court to order the defendant’s removal from the courtroom for a specific period of time or for the entire duration of the proceedings.", "(c) Rules concerning proceedings on appeal 82. Article 362 provided that appellate courts could conduct a judicial investigation, that is examination and evaluation of evidence, in respect of the parts of judgments challenged on appeal in accordance with the rules of criminal procedure applicable to the trial proceedings. According to Articles 303, 310, 313 and 314, in the course of judicial investigation the court had the power to call witnesses, appoint experts, examine physical evidence and documents. 83. Article 367 provided that a judgment could be quashed or amended by an appellate court in the event of: (i) a substantial breach of the criminal procedure law; (ii) incorrect application of the criminal law; (iii) an error in sentencing; or (iv) an error of fact, namely where a pre-trial or judicial investigation had been biased, incomplete or where erroneous conclusions had been drawn by the trial court from the facts of the case.", "2. Criminal Code 1960 (repealed with effect from 1 September 2001) 84. Under Article 71 of the Code organisation or active participation in mass disorder accompanied by violence against the person, riots, arson, destruction of property or armed resistance towards a public official was punishable by two to twelve years’ imprisonment. 3. Police Act of 20 December 1990 (as in force at the material time) 85.", "Section 14 of the Act authorises the police to use special tools to stop mass disorder, such as handcuffs, rubber truncheons and tear-provoking substances. 4. Rules concerning rallies and demonstrations 86. Article 39 of the Constitution of Ukraine provides: “Citizens have the right to assemble peacefully without arms and to hold meetings, rallies, marches and demonstrations, after notifying the executive authorities and bodies of local self-government beforehand. Restrictions on the exercise of this right may be established by a court in accordance with the law − in the interests of national security and public order only − for the purpose of preventing disturbances or crimes, protecting the health of the population, or protecting the rights and freedoms of other persons.” 87.", "Other relevant Ukrainian domestic law and practice concerning the procedure for holding peaceful demonstrations can be found in the Court’s judgment in the case of Vyerentsov v. Ukraine (no. 20372/11, §§ 25-39, 11 April 2013). B. Relevant international material 88. PACE Resolution 1346 (2003) “Honouring of obligations and commitments by Ukraine” reads in the relevant part as follows: “... 5.", "The Assembly recognises that legal reforms have advanced in many areas, but is preoccupied by the lack of enforcement and recalls the need for a proper implementation of existing legislation. In particular, it expresses its deep concern with the slow progress made by the Ukrainian authorities in the implementation of the principles and standards of the Council of Europe, which is demonstrated by: ... 5.3. the application of disproportionate penalties to persons who participated in the political demonstration on 9 March 2001 and who are still in prison and, therefore, could be considered as political prisoners in Ukraine; ...” THE LAW I. JOINDER OF THE APPLICATIONS 89. The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background. II. LOCUS STANDI OF THE SIXTH APPLICANT’S FATHER 90.", "The Court notes that the sixth applicant died after lodging his application under Article 34 of the Convention (see paragraph 5 above). It is not disputed that his father is entitled to pursue the application on his behalf, and the Court sees no reason to hold otherwise (see, for example, Solomakhin v. Ukraine, no. 24429/03, § 20, 15 March 2012; Szerdahelyi v. Hungary, no. 30385/07, § 22, 17 January 2012; and Eerikäinen and Others v. Finland, no. 3514/02, § 1, 10 February 2009).", "However, reference will still be made to the sixth applicant throughout the ensuing text. III. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 91. The first six applicants complained about their confinement in a metal cage in the courtroom during their trial and proceedings before the Court of Appeal, alleging that this amounted to treatment prohibited by Article 3 of the Convention. The second applicant also complained that he had been subjected to ill-treatment in police custody, and that his complaint in this respect had not been investigated.", "He also complained about the conditions of his detention in the SIZO from March 2001 to May 2003 and of a lack of adequate medical treatment for his tuberculosis from summer 2002 to June 2003. The applicants 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. Confinement of the first six applicants in a metal cage in the courtroom 92. The Government submitted that the applicants had been held in a cage until 16 May 2003, when the Court of Appeal had delivered its ruling in their case.", "They had subsequently sought no compensation for the alleged violation of their rights, thereby acknowledging in the Government’s view that no effective remedy existed at the national level. Accordingly, the Government argued that the applicants had not observed the six-month time-limit laid down in Article 35 § 1 of the Convention. 93. The applicants agreed. 2.", "The second applicant’s alleged ill-treatment, conditions of detention and medical treatment in detention 94. The Government considered that the second applicant’s complaint concerning ill-treatment in police custody was inadmissible as he had failed to exhaust domestic remedies. According to them, since his complaint had been sent to the prosecutor, the prosecutor had to make a decision whether to institute criminal proceedings. If the prosecutor had failed in this duty the applicant could have challenged the inaction in court. In the alternative, assuming that the applicant had no effective remedy, he should have lodged his complaint within six months of the alleged violation and therefore it had been lodged out of time.", "As regards his complaint about the conditions of his detention, the Government argued that it was also inadmissible for failure to exhaust domestic remedies. They argued, in particular, that he had failed to appeal to a prosecutor and then, if that prosecutor had rejected his complaint, to a court. They also argued that he had failed to bring a civil claim for damages, and that his complaint concerning medical treatment in detention had been lodged outside the six-month period. 95. The second applicant agreed that his complaint had been lodged outside of the six-month period.", "B. The Court’s assessment 96. In the present case, it has not been contested that the measure complained of by the first six applicants, that is their confinement in a metal cage, was discontinued on 16 May 2003 when the Court of Appeal upheld the applicants’ conviction. Accordingly, 16 May 2003 is the date from which the six-month period ran in respect of this complaint (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 87, ECHR 2014 (extracts)).", "97. As to the second applicant’s complaint concerning his alleged ill‑treatment, the Court notes that he did not raise the issue in his appeal in cassation to the Supreme Court (compare with Kaverzin v. Ukraine, no. 23893/03, §§ 42 and 99, 15 May 2012, and Dzhulay v. Ukraine, no. 24439/06, §§ 25 and 62, 3 April 2014). Accordingly, 16 May 2003, the date of the ruling of the Court of Appeal, is the date from which the six-month period ran in respect of this complaint.", "98. As to his complaint concerning the conditions of his detention, it had to be filed within six months from 22 May 2003 in respect of the complaint about the conditions in the SIZO, and from 1 July 2003 (by which date, according to the applicant, the violation ceased) in respect of the complaint concerning medical treatment (see Koval v. Ukraine (dec.), no. 65550/01, § 96, 30 March 2004, and Melnik v. Ukraine, no. 72286/01, §§ 113-16, 28 March 2006). 99.", "However, the above complaints were only lodged by the first two applicants on 11 August 2004 and by the third, fourth, fifth and sixth applicants on 20 August 2004, so in all cases more than six months after the relevant dates. 100. The Court concludes that the first six applicants’ complaints under Article 3 must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention for being lodged outside the six-month time-limit. IV. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 101.", "The applicants complained of various violations of Article 6 of the Convention, the relevant parts of which provide: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law... 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 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 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; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ...” 102.", "As the requirements of Article 6 § 3 constitute specific aspects of the right to a fair trial guaranteed under Article 6 § 1, the Court will examine the applicants’ complaints presented under Article 6 § 1 or Article 6 § 3 only under these provisions taken together (see, for example, Gäfgen v. Germany [GC], no. 22978/05, § 169, ECHR 2010). A. Alleged violation of Article 6 §§ 1 and 3 (d) in respect of the second and third applicants 1. The parties’ submissions 103.", "The second applicant complained that the pre-trial testimony of one of the aggrieved parties, M.Sh., and witnesses I.Tr., R.Tk., S.Ko. and V.Du. had been read out during the trial, and that he had had no opportunity to confront them. The third applicant made the same submissions concerning the admission of the testimony of M.Sh and witnesses D.Ko., I.Tr., O.Dm., M.Pe., R.Py., V.Du., V.Ku. and V.Ma.", "104. As to the second applicant, the Government submitted that he had not explained why he had needed to examine the victims and witnesses identified by him in person. As to the third applicant, the Government submitted that he had been able to obtain the attendance of witnesses on his behalf on the same conditions as witnesses against him. 2. The Court’s assessment (a) Admissibility 105.", "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 (i) General principles 106. The Court reiterates that Article 6 § 3 (d) enshrines the principle that before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument.", "Exceptions to this principle are possible but must not infringe the rights of the defence which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of the proceedings (see Lucà v. Italy, no. 33354/96, § 39, ECHR 2001‑II). 107. There are two requirements which follow from the general guarantees above. Firstly, there must be a good reason for the non-attendance of a witness.", "Secondly, when a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at trial, the rights of the defence may be restricted to an extent that is incompatible with the guarantees provided by Article 6 (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 119, ECHR 2011). 108. The requirement that there be a good reason for admitting the evidence of an absent witness is a preliminary question which must be examined before any consideration is given as to whether that evidence was sole or decisive (ibid., § 120). Even where the evidence of an absent witness has not been sole or decisive, the Court has still found a violation of Article 6 §§ 1 and 3 (d) when no good reason has been shown for the failure to have the witness examined.", "This is because, as a general rule, witnesses should give evidence during trial, and all reasonable efforts should be made to secure their attendance. Thus, when witnesses do not attend to give live evidence, there is a duty to enquire whether that absence is justified (ibid., § 120, and Rudnichenko v. Ukraine, no. 2775/07, § 104, 11 July 2013). (ii) Application of the above principles to the present case 109. Turning to the present case, the Court notes at the outset that M.Sh., who had the status of an aggrieved party in the criminal proceedings against the applicants, and whose statement given during the pre-trial investigation was read out during the trial, should be regarded as a “witness” for the purposes of Article 6 § 3 (d) (see Vladimir Romanov v. Russia, no.", "41461/02, § 97, 24 July 2008). The Court will, therefore, subsequently refer to the aggrieved party and witnesses whose pre-trial statements were read out at the applicants’ trial collectively as “witnesses”. 110. The Court notes that the trial court explicitly stated in its judgment that in convicting the defendants, it had relied on the pre-trial statements of I.Tr., M.Pe., M.Sh., O.Dm., R.Py., R.Tk., S.Ko., V.Du., V.Ma., D.Ko. and V.Ku.", "111. In particular, while I.Tr., O.Dm. and R.Tk. did not refer to any of the applicants by name, their statements tended to support the charge that the UNA leadership, of which the second and third applicants were members, had taken part in organising the rally on 9 March 2001 and that the protesters had behaved violently during the events of that day (see paragraph 36 above). The Supreme Court referred to V.Ma.’s testimony among the evidence supporting the charge that the riots of 9 March 2001 had been organised in advance (see paragraph 67 above).", "V.Du.’s and M.Sh.’s statements tended to support the finding that the protesters had behaved violently, but in an organised way, near the Shevchenko monument (see paragraph 37 above). Accordingly, the statements of the above-mentioned witnesses concerned both the second and third applicants. 112. In their statements, M.Sh., S.Ko. and V.Du.", "identified the second applicant as an organiser of the group of UNA members which had engaged in clashes with the law enforcement officers near the Shevchenko monument (see paragraph 37 above). In their statements, R.Py., D.Ko., V.Ku. and M.Pe. indicated that the third applicant had played an active part in organising the rally of 9 March 2001, had been present, and had appeared to play a role in organising UNA members during the clashes with the law enforcement officers (see paragraph 38 above). 113.", "There is no indication in the case file that any of the applicants were able to confront any of these witnesses at any stage of the proceedings. 114. Turning to the question of whether there was a good reason for the non-attendance of the above-mentioned witnesses, the Court observes that by way of explanation for its decision to admit their evidence, the trial court stated only that they had had “valid reasons” for failing to appear at trial. The Court of Appeal and Supreme Court failed to specify the reasons the trial court had found “valid”. 115.", "In this connection, the Court notes that I.Tr. was among the witnesses who the trial court found had had “valid reasons” for not appearing. Nevertheless, in the course of the trial I.Tr., or at least someone purporting to be him, addressed a letter to the trial court repudiating his own pre-trial testimony and actively seeking to be examined on this subject at trial. 116. In spite of this apparent expression of I.Tr.’s willingness to testify, the trial court proceeded to rely on his pre-trial statement, simply stating that his signature on the letter had not been certified.", "In doing so, the trial court apparently took no steps to clear up any possible doubts as to the identity of the person who had written the letter in I.Tr.’s name, relying on a purely formal observation that his signature had not been certified. 117. Such an approach is all the more striking given that the person writing in I.Tr.’s name had indicated that I.Tr. had been in pre-trial detention at the time. This should have allowed the authorities to easily contact him, clear up any doubts as to his identity, and ensure his attendance at the applicants’ trial.", "118. Such conduct on the part of the authorities indicates that they took no steps to ensure the attendance of this witness, or to ascertain that there were good reasons for his non-attendance. 119. As to the other witnesses on whose pre-trial testimony the trial court relied in convicting the second, third and fourth applicants, the Court notes that the trial court justified its decision to admit their statements made during the pre-trial investigation in the same terms as its decision to admit I.Tr.’s statement, that is by simply stating that those witnesses had unspecified “valid reasons” for not attending the trial. 120.", "The Court notes that under the rules of criminal procedure in effect in Ukraine at the relevant time, the court could order that a witness who had failed to appear for questioning without a “valid reason” be escorted to the hearing by the police. The definition of a “valid reason” in the domestic law was quite broad and did not only include instances where appearance was impossible, but also where it could be delayed due to illness or late delivery of the summons. At the same time, the law authorised the trial court to read out pre-trial testimony of only those witnesses whose appearance was impossible (see paragraphs 78 and 79 above). The question of whether a witness had a valid reason for not attending and could therefore be excused from being escorted to the hearing by the police was therefore distinct from the question of whether there were circumstances making his appearance impossible. The relevant rulings of the domestic courts indicate that they only considered the former question and not the latter.", "121. In the light of the domestic authorities’ treatment of witness I.Tr. and his testimony, the Court is not convinced that their findings that there were valid reasons for witnesses M.Pe., M.Sh., O.Dm., R.Py., R.Tk., S.Ko., V.Du., V.Ma., D.Ko. and V.Ku. being absent from the applicants’ trial are sufficient to demonstrate that there were good reasons for their non-attendance or for admitting their statements made at the pre-trial investigation stage.", "122. Finally, there is no evidence to suggest that any of the absent witnesses were asked, but refused, to make depositions in the framework of the applicants’ trial for whatever reason such as, for example, a fear of negative repercussions (see and compare with Al-Khawaja and Tahery, cited above, §§ 122-124). 123. The foregoing considerations are sufficient to enable the Court to conclude that no reason, let alone good reason, has been shown for the restriction of the second, third and fourth applicant’s right to obtain examination of the witnesses whose testimony had been used for their conviction. In these circumstances, the Court does not consider it necessary to proceed with the second part of the test as to whether the applicants’ conviction was based solely or to a decisive degree on the depositions of those witnesses (see Rudnichenko, cited above, § 109).", "124. Accordingly, there has been a violation of Article 6 §§ 1 and 3 (d) in respect of the second applicant on account of the non-attendance of I.Tr., M.Sh., R.Tk., S.Ko. and V.Du. as witnesses and in respect of the third applicant on account of the non-attendance of D.Ko., I.Tr., O.Dm., M.Pe., M.Sh., R.Py., V.Du., V.Ku. and V.Ma.", "as witnesses. B. Alleged violation of Article 6 §§ 1 and 3 (d) in respect of the fourth applicant 125. The fourth applicant complained that the trial court had referred in its judgment to the testimony of I.Gl. given during the pre-trial investigation, and that he had had no opportunity to confront him.", "126. The Government submitted that the applicant had been able to obtain the attendance of witnesses on his behalf on the same conditions as witnesses against him. The applicant maintained his complaint. 127. The Court observes that the applicant’s conviction was based on the testimony of a number of eyewitnesses, most of whom were examined during the trial, and other evidence.", "As regards the admission of I.Gl.’s testimony, it is noted that the applicant failed to specify the exact role I.Gl.’s testimony played in his conviction and why I.Gl. had not been examined at trial. There is nothing in the applicant’s submissions to allow the Court to elucidate this question. 128. It follows that the fourth applicant’s complaint concerning his inability to confront witness I.Gl.", "is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. C. Alleged violation of Article 6 §§ 1 and 3 (c) and (d) of the Convention on account of the second applicant’s removal from the courtroom 1. The parties’ submissions 129. The applicant submitted that he had been removed from the courtroom between 19 and 21 June and between 5 September 2002 and the end of the trial, and as a result had been deprived of an opportunity to participate in the proceedings during a substantial part of the trial. 130.", "The Government submitted that the applicant had repeatedly breached the rules of behaviour in the courtroom and the trial court had reprimanded him for this on numerous occasions between 18 December 2001 and 14 March 2002. On 19 June 2002 the applicant had again breached the rules during the questioning of witnesses and had failed to comply with the presiding judge’s warning. For this reason, the trial court had decided, in compliance with domestic law, to temporarily remove him from the courtroom. 2. The Court’s assessment (a) Admissibility 131.", "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 (i) General principles 132. The Court reiterates that neither the letter nor the spirit of Article 6 prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance.", "Furthermore, it must not run counter to any important public interest (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006‑II). 133. The Court has also held that before an accused can be said to have, through his conduct, implicitly waived an important right under Article 6 of the Convention, it must be shown that he could reasonably have foreseen the consequences of his conduct in this regard (see Jones v. the United Kingdom (dec.), no. 30900/02, 9 September 2003).", "134. The Court has held that it is essential for the proper administration of justice that dignity, order and decorum be observed in the courtroom as the hallmarks of judicial proceedings. Flagrant disregard by a defendant of elementary standards of proper conduct neither can nor should be tolerated (see Ananyev v. Russia, no. 20292/04, § 44, 30 July 2009). (ii) Application of the above principles to the present case 135.", "Turning to the circumstances of the present case, the Court notes that during the trial the second applicant was excluded from the courtroom for improper behaviour on two occasions: from 19 to 21 June 2002 and from 5 September 2002 for the remainder of the trial until the parties’ closing statements. 136. The Court is prepared to assume that the applicant’s behaviour might have been of such a nature as to justify his removal from the courtroom on both occasions. However, in both cases it remained incumbent on the presiding judge to establish that he could have reasonably foreseen the consequences of his conduct prior to the court’s decision to order his removal. 137.", "The Court takes note of the Government’s submissions that the trial court had issued warnings to the applicant in connection with his behaviour in the courtroom on as many as ten occasions between 18 December 2001 and 14 March 2002 (see paragraph 20 above). He did not contest these submissions. It also appears from the case file that at the time these warnings were issued, and at the time the decisions were taken on 19 June and 5 September 2002 to remove him, he was represented by a lawyer. According to the rules of criminal procedure in effect at the relevant time, the trial court, having issued a warning to a defendant could, in the event of repeated disruptive behaviour, remove him from the courtroom for a period of time to be determined by the court (see paragraph 81 above). 138.", "In this context it is notable that initially, on 19 June 2002, the trial court decided to remove the applicant from the courtroom for a relatively short period of time, until 21 June 2002. This decision, too, could serve as warning to the applicant that in case of continuing disruptive behaviour he could be removed from the courtroom again, for a longer period of time. Moreover, on 2 September 2002 the trial court considered removing the applicant from the courtroom for laughing, but eventually made no decision to this effect. Despite these repeated express and implied warnings the applicant on 5 September 2002 made remarks which could reasonably be seen by the trial court as having disruptive effect on proceedings, in particular given the pattern of the applicant’s prior conduct. 139.", "Under such circumstances, the possible consequences of continued disruptive behaviour must have been clear to the applicant. By continuing to behave in a disruptive manner on 19 June and 5 September 2002 he tacitly waived, of his own free will, his right to be present at the hearings. The circumstances preceding the decisions to remove him during that period, in particular the repeated nature of his behaviour, allow the Court to conclude that this waiver was established in an unequivocal manner. There is also no indication that this waiver ran counter to any important public interest. Moreover, the Court observes that in any case the applicant’s exclusion from the courtroom did not prejudice his defence rights to a degree incompatible with the requirements of a fair trial.", "Most importantly, he continued to be represented by a lawyer during the parts of the trial from which he himself was excluded. The Court also notes that in assessing the fairness of proceedings it must consider them as a whole, including the decision of the appellate court (see, for example, Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no. 247‑B). The Court observes that in Ukraine the jurisdiction of appellate courts extends to both legal and factual issues and the Court of Appeal had the power to review the case in its entirety and examine the evidence which had been examined by the trial court (see paragraphs 82 and 83 above). During the proceedings before the Court of Appeal, the applicant was both present and represented by his lawyer and could have sought re-examination of the evidence and questions examined by the trial court in his absence (see Jones, cited above, and compare with Idalov v. Russia [GC], no.", "5826/03, § 180, 22 May 2012). The applicant did not argue that he was prevented from exercising any of these rights in the course of the appeal proceedings. 140. It follows that there has been no violation of Article 6 §§ 1 and 3 (c) and (d) of the Convention as regards the second applicant’s removal from the courtroom. D. Alleged violation of Article 6 §§ 1 and 3 (c) on account of appointment of legal aid lawyers for the first applicant 1.", "The parties’ submissions 141. The applicant submitted that after his chosen lawyer M. had failed to appear in court for “some time” due to holidays, on 3 and 4 September 2002 the trial court had appointed a legal aid lawyer for him. This was followed by a succession of legal aid lawyers, each working in two-week shifts. According to the applicant, this had prevented the legal aid lawyers from conducting his defence effectively since they had had little time to familiarise themselves with the case. 142.", "The Government submitted that on 2 September 2002 the first applicant’s lawyer M. had failed to appear at the hearing. It had to be adjourned and the applicant had informed the court that he had been unable to ensure his lawyer’s attendance or pay for his services. The defendants’ lawyers had regularly failed to appear at hearings, and the defendants had been unable to influence them. In particular, on 17 September 2002 lawyer M. had informed the trial court that he would be unable to attend hearings and did not appear before the court until 22 November 2002. Such conduct by M. and the other lawyers had led the trial court, through the relevant bar association, to appoint legal aid lawyers for the defendants in order to prevent delays to the trial.", "2. The Court’s assessment (a) The first applicant’s complaint concerning the appointment of a legal aid lawyer for him on 2 September 2002 (i) Admissibility 143. 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. (ii) Merits 144.", "The Court reiterates that, notwithstanding the importance of a relationship of confidence between lawyer and client, the right to choose one’s own counsel cannot be considered to be absolute. It is necessarily subject to certain limitations where free legal aid is concerned, and also where it is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them. When appointing defence counsel, the national courts must certainly have regard to the defendant’s wishes. However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice (see Croissant v. Germany, 25 September 1992, § 29, Series A no. 237‑B).", "The Court has held that avoiding interruptions or adjournments corresponds to an interest of justice which may well justify the appointment of a lawyer against the accused’s wishes (ibid., § 28). 145. In the present case, it has not been disputed that the trial court appointed a legal aid lawyer for the applicant after his previously chosen lawyer M. had failed to appear at hearings for some time. In his submissions, the applicant acknowledged that due to the tight schedule of hearings, M. had been unable to continue to represent him. The Court also notes that according to the Government’s uncontested submissions, on 17 September 2002 lawyer M. himself informed the trial court that he would be unable to attend hearings, and in fact did not attend them until 22 November 2002.", "146. Under the circumstances, the trial court had relevant and sufficient grounds for holding that the interests of justice, in particular the need to avoid delays caused by the conduct of the applicant’s chosen lawyer, required the appointment of a legal aid lawyer for him. 147. The Court therefore considers that the initial appointment of a legal aid lawyer for the applicant on 2 September 2002 was compatible with the requirements of Article 6 §§ 1 and 3 (c). 148.", "Accordingly, there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention as regards the appointment of a legal aid lawyer for the first applicant on 2 September 2002. (b) The first applicant’s complaint concerning the frequent replacement of legal aid lawyers who represented him 149. The Court also notes the applicant’s submissions that the frequent replacement of legal aid lawyers in his case had undermined his defence. However, it observes that they have not been substantiated in any way and lack specificity. In particular, the applicant did not specify the identities of the lawyers allegedly appointed, when this had happened, why they had been replaced and whether the applicant had objected to their appointment and replacement.", "150. The Court finds that this complaint is wholly unsubstantiated and should therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. E. Alleged violation of Article 6 §§ 1 and 3 (b) on account of limitations on the second applicant’s contact with his lawyer 151. The second applicant complained that he had not had adequate access to his lawyer, as the procedure for requesting and obtaining a visit from a lawyer had been overly complicated and visits could only take place on weekdays. 152.", "The Government argued that his complaint had been lodged outside the six-month period, which they submitted was to be counted from 23 May 2003, when he was transferred from the SIZO to the correctional colony to serve his sentence. According to them, the fact that he had not sought compensation implied that he had accepted that no domestic remedy had been available to him. 153. The applicant agreed that the complaint had been lodged outside the six-month time-limit. 154.", "The Court notes that the Government raised an objection as to the applicant’s compliance with the six-month time-limit. However, it does not consider it necessary to examine this objection, given that this part of the application is, in any event, inadmissible for the following reasons. 155. The Court notes that the applicant’s complaint is framed in general terms. He also failed to substantiate it in any way.", "Moreover, he did not allege that he had requested, but had been denied, additional opportunities to consult with his lawyer (see and compare Öcalan v. Turkey [GC], no. 46221/99, § 136, ECHR 2005‑IV, and Insanov v. Azerbaijan, no. 16133/08, §§ 23 and 167, 14 March 2013). 156. 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.", "F. Alleged violation of Article 6 §§ 1 and 3 (c) on account of the applicants’ confinement in a metal cage during their trial 157. The first two applicants complained that they had not had adequate access to their lawyers in the course of the trial, and that their right to defence had been infringed: they had been placed in a cage and could not speak to their lawyers freely or use notes and documents. According to the third, fourth, fifth and sixth applicants, such restrictions on communication with their lawyers in the courtroom during their trial could not have been remedied through communication outside the courtroom, because the busy schedule of hearings had prevented the lawyers from visiting them in their place of detention. 158. Relying on the same arguments as those presented in respect of the Article 3 complaint, the Government submitted that the applicants’ complaint under Article 6 concerning their confinement in the cage had also been lodged out of time.", "They also submitted that on 3 September 2002 the court had recessed the trial to allow the second applicant additional time to consult with his lawyer. A similar request by another defendant had also been granted. For the Government, this illustrated that the applicants’ right to consult with their lawyers had been respected. 159. The applicants agreed that their complaint had been lodged outside the six-month time-limit.", "160. The Court notes that the Government raised an objection as to the applicants’ compliance with the six-month time-limit. However, it does not consider it necessary to examine this objection, given that the complaint is, in any event, inadmissible for the following reasons. 161. The Court observes that the applicants did not specify in what particular manner their confinement in a metal cage during their trial had impeded their communication with their lawyers or use of notes and documents.", "Their submissions in this respect are couched in very general terms. In particular, they did not provide any details on how the cage had been placed in relation to the lawyers’ seats, or whether communication between them through the metal bars had been restricted in any way (compare with Titarenko v. Ukraine, no. 31720/02, §§ 91-92, 20 September 2012, and Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 646, 25 July 2013). 162.", "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. G. Alleged violations of Article 6 §§ 1 and 2 in respect of impartiality of the trial court, observance of the principles of equality of arms, presumption of innocence and the right to an adversarial trial 1. The parties’ submissions 163. The applicants submitted that the members of the tribunal which had tried their case had not been impartial. On a number of occasions they had unsuccessfully challenged the District Court judges who had examined their case.", "In addition, the first two applicants alleged in general terms that those judges had been biased because they had expressed their conviction that the applicants were guilty and had humiliated the defendants. The third, fourth, fifth, sixth and seventh applicants alleged that Judge V. had also held the position of president of the District Court, which had allowed him to influence other judges. 164. The Government considered that the courts which had examined the applicants’ case had been independent and impartial. They stated that the domestic law provided appropriate guarantees as to the appointment and disciplinary responsibility of judges, and their protection from outside pressure.", "As to the impartiality of the judges who had examined the applicants’ case, the Government considered that the applicants’ assertions in this respect were unsubstantiated. 165. The first two applicants submitted that the principle of “equality of the parties” was infringed in the course of the trial, alleging that the prosecutors had visited the presiding judge’s chambers in the absence of the defence, that Judge V. had not been neutral in questioning the aggrieved parties, that he had declined the defence’s request for a psychiatric assessment of an aggrieved party and, moreover, had stated that in sentencing the defendants their conduct in the courtroom would be taken into account. They further pointed out that Judge V. had disallowed unspecified questions put to witnesses by the defence. The first two applicants also submitted that their right to an adversarial trial had been infringed, alleging that the trial court had rejected testimony which did not fit the prosecution’s case, that the court had rejected the applicants’ requests seeking to collect unspecified exculpatory evidence, and had not rejected unspecified evidence which they believed had been inadmissible.", "166. The third, fourth, fifth, sixth and seventh applicants argued that Judge V. had been biased in the course of the trial, alleging by way of substantiation that Judge V. had prompted witnesses and aggrieved parties on how to answer questions, had made insulting statements about the sixth applicant’s health problems, had shown familiarity with evidence in the file not yet examined at trial, had disallowed certain questions from the defence, and had rejected certain requests by the defence concerning the admission of video recordings. 167. The Government argued that the principles of equality of arms and adversarial proceedings had been observed in the applicants’ case. The Government submitted that the applicants’ questions disallowed by the trial judge had been irrelevant or insulting.", "2. The Court’s assessment 168. The Court notes at the outset that the applicants sought to show that the members of the trial court who had examined their case had lacked impartiality, firstly on the basis of Judge V.’s alleged statements and decisions in the course of the trial, and secondly on the basis that Judge V. had held the position of president of the District Court, and as such could influence other members of the panel which had examined their case. 169. The Court observes that the applicants failed to furnish any evidence in support of their allegations concerning Judge V.’s statements and decisions in the course of the trial.", "In particular, they failed to provide the relevant parts of the trial record. In their submissions they indicated that the trial record “in many instances” had not accurately reflected the proceedings. However, they failed to provide any specific information as to its alleged inaccuracies. It is notable in this context that their corrections to the record, a copy of which was provided by the applicants to the Court, do not contain any corrections relating to the episodes referred to by the applicants in their applications. 170.", "As to the allegation that Judge V. held the position of president of the District Court, and as such could influence other judges, the Court observes that the applicants did not cite any particular facts or arguments in support of this. 171. As to the applicants’ allegations concerning the observance of the principles of equality of arms and the right to an adversarial trial, they, like their allegations in respect of Judge V.’s impartiality, lack any substantiation. In addition, the applicants never raised their allegations concerning prosecutors’ alleged visits to the judges’ chambers in their appeals. 172.", "Finally, the Court observes that the allegations of the third, fourth, fifth, sixth and seventh applicants under Article 6 § 2 of the Convention amount to a restatement of their arguments under Article 6 § 1 with regard to the impartiality and observance of the principle of equality of arms. Their complaint under this head is also wholly unsubstantiated. 173. 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. H. Other alleged violations of Article 6 174.", "The first two applicants complained that unspecified evidence used against them had been inadmissible, and disagreed with the domestic courts’ assessment of the evidence as a whole. The second applicant also complained that several witnesses against him in the course of their questioning during the trial had renounced their testimony unfavourable to the applicant, claiming that it had been extracted under duress. The third applicant complained about the appointment of a legal aid lawyer for him. 175. However, the Court finds that the applicants failed to substantiate these complaints in any way.", "176. 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. V. ALLEGED VIOLATIONS OF ARTICLES 10 AND 11 OF THE CONVENTION 177. Relying on Articles 10 and 11 of the Convention, the applicants complained that denial of access to the Shevchenko monument on 9 March 2001 had infringed their right to freedom of peaceful assembly. They further complained that their arrest and conviction had infringed their right to freedom of expression and assembly.", "The relevant provisions read as follows: Article 10 “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 “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 178.", "The Court notes that the applicants complained of two instances of interference with their rights under Articles 10 and 11. 179. Firstly, under Article 11 they complained that they had been denied access to the Shevchenko monument on 9 March 2001. 180. Secondly, under Articles 10 and 11 they complained about their arrest and conviction for participating in the events of 9 March 2001.", "They alleged that it amounted to persecution for expressing views critical of the President in power at the time and participating in a peaceful protest. Under Article 11, they alleged that the actions of the police on 9 March 2001 had been aimed at provoking the protesters with the aim of prosecuting them and thus disrupting the protest movement. 181. The Government raised no objection as to the admissibility of these complaints. 1.", "Denial of access to the Shevchenko monument 182. All applicants complained that the police had acted unlawfully in placing cordons around the Shevchenko monument and denying them access there in the morning of 9 March 2001. This complaint should be distinguished from the complaint of the first three applicants, that they had been convicted, in part, of organising the rally near that monument, which they asserted had been intended to be peaceful and had degenerated into clashes due to the actions of the authorities. The latter complaint will be examined by the Court as part of the first three applicants’ complaint concerning their arrest and conviction. 183.", "It has not been contested that all the applicants sought to participate in the rally near the Shevchenko monument on 9 March 2001 and were prevented from doing so by the police cordons placed there denying them access to the desired venue of their rally. 184. However, they did not seek any relief in respect of this alleged violation at the domestic level. Assuming that there was no remedy for the applicants to exhaust, the Court notes that this complaint was lodged on 11 and 20 August 2004 by the first two applicants and by the other five applicants respectively, that is out of time and does not comply with the six-month rule set out in Article 35 § 1 of the Convention. It must be rejected pursuant to Article 35 §§ 1 and 4.", "2. The applicants’ arrest and conviction 185. The Court considers that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It therefore concludes 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 186. The applicants complained that their arrest and conviction had infringed their rights under Articles 10 and 11, since they had been prosecuted for participating in the “Ukraine without Kuchma” movement and expressing views critical of President Leonid Kuchma. They alleged that the actions of the police on 9 March 2001 had been aimed at provoking the protesters with the aim of prosecuting them and thus disrupting the protest movement.", "Their arrests and conviction thus amounted to political persecution. 187. The Government submitted that there had been an interference with the exercise of the applicants’ freedom of peaceful assembly within the meaning of Article 11 and their freedom of expression within the meaning of Article 10 of the Convention, but that the interference had been in accordance with the law, in particular Article 71 of the Criminal Code. They submitted that the interference had been in the interests of public safety. They also argued that it had been necessary in a democratic society, particularly because the applicants’ actions during the events of 9 March 2001 had gone beyond the range allowed to be committed by an individual in exercising his rights under the Convention, as they had been accompanied by riotous damage, destruction of property and resistance towards the authorities.", "Their rally had therefore not been of a peaceful character. 2. The Court’s assessment (a) General principles 188. 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 Article 10 § 2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.", "Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society” (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24, and Jersild v. Denmark, 23 September 1994, § 37, Series A no. 298). 189. Similarly, the right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society.", "Thus, it should not be interpreted restrictively (see Djavit An v. Turkey, no. 20652/92, § 56, ECHR 2003‑III, and Barraco v. France, cited above, § 41). 190. However, Article 11 of the Convention only protects the right to “peaceful assembly”. That notion does not cover a demonstration where the organisers and participants have violent intentions (see Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos.", "29221/95 and 29225/95, § 77, ECHR 2001‑IX, and Galstyan v. Armenia, no. 26986/03, § 101, 15 November 2007). Nonetheless, even if there is a real risk of a public demonstration resulting in disorder as a result of developments outside the control of those organising it, such a demonstration does not fall outside the scope of Article 11 § 1, but any restriction placed on such an assembly must be in conformity with the terms of Article 11 § 2 (see Schwabe and M.G. v. Germany, nos. 8080/08 and 8577/08, § 103, ECHR 2011 (extracts)).", "(b) The applicable Convention Article 191. The Court notes that the issues of freedom of expression and freedom of peaceful assembly are closely linked in the present case. It considers, however, that the main thrust of the applicants’ complaints is that they were convicted of participating, together with others, in a political rally. The Court reiterates that in the Galstyan case (cited above, §§ 95-96), where the applicant was arrested and convicted because of his behaviour during a demonstration, it found it unnecessary to consider the complaint under Article 10 separately from that under Article 11 of the Convention (as other examples of this approach, see Ezelin v. France, 26 April 1991, § 35, Series A no. 202, Schwabe and M.G., cited above, § 101, and Primov and Others v. Russia, no.", "17391/06, § 91, 12 June 2014). There are no reasons to depart from that approach in the present case. 192. The Court therefore finds that in the circumstances of the case, 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.", "193. On the other hand, notwithstanding its autonomous role and particular sphere of application, Article 11 must, in the present case, 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 enshrined in Article 11 (see Ezelin, cited above, § 37). (c) The Court’s assessment of the evidence and establishment of the facts 194. Before turning to the legal analysis of the events of 9 March 2001 and their aftermath from the perspective of Article 11, the Court observes that the parties’ accounts of those events differ on certain points.", "The applicants contested the factual findings of the domestic courts, and this dispute is central to the present case. In these circumstances, the Court will need to review certain facts established in the domestic proceedings (see Nemtsov v. Russia, no. 1774/11, § 63, 31 July 2014). 195. In doing so, the Court is sensitive to the subsidiary nature of its role and must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no.", "28883/95, 4 April 2000). Where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts, and as a general rule it is for those courts to assess the evidence before them (see Klaas v. Germany, 22 September 1993, § 29, Series A no. 269). Though the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (ibid., § 30). 196.", "The Court notes that it has not been disputed in domestic proceedings or before it that clashes occurred between the police and protesters near the Shevchenko monument and, to a greater extent, near the President’s Administration building on Bankova Street. 197. Nevertheless, the applicants contested the findings of the domestic courts concerning their role in those clashes and asserted that they had not engaged in any acts of violence. The first three applicants also maintained that they had not incited the other protesters to violence and had indeed attempted to stop some of them from attacking the police. 198.", "As to the first three applicants, the Court cannot overlook the fact that these applicants were convicted, in part, for organising the rally near the Shevchenko monument on 9 March 2010. Accordingly, the questions of (i) whether the gathering was planned to be peaceful and (ii) what factors led to the violence occurring at the rally are crucial for the assessment of the applicants’ complaint under Article 11. 199. The first three applicants were convicted, in part, for organising the political rally on 9 March 2001. The domestic courts concluded that, in doing so, the first three applicants had organised the riots which ensued.", "200. However, the Court observes that the domestic courts did not point to any evidence to show that in organising the rally the applicants actually intended it to become violent. They used evidence that the UNA leadership appeared to finance UNA supporters’ travel to Kyiv to participate in the rally and sought to ensure a large turnout to support their conclusion that the UNA leadership, including the first three applicants, had organised the riots. The Court, however, is not convinced that this organisational activity as such evidenced the organisers’ violent intent. 201.", "It follows that the domestic authorities inferred, from the uncontested facts that the UNA leadership, including the first three applicants, took part in organising the rally of 9 March 2001, and that violence occurred in the course of the gathering, that the applicants as organisers had had violent intentions, that is to say the intention of organising riots. 202. However, the mere fact that acts of violence occur in the course of a gathering cannot, of itself, be sufficient to find that its organisers had violent intentions (see Gün and Others v. Turkey, no. 8029/07, § 50, 18 June 2013). 203.", "The domestic courts’ findings in this respect are all the more tenuous in view of the fact that the Deputy Prosecutor General acknowledged the drawbacks of the domestic investigation into the mechanism by which the rally had deteriorated into clashes with the police (see paragraph 68 above). 204. The Court further notes that witnesses from among the protesters, whose testimony had been relied upon in convicting the applicants, testified that the rally organisers had intended to occupy the space near the Shevchenko monument in order to prevent the President of Ukraine from laying flowers there (see, in particular, paragraph 43 above). Moreover, the Supreme Court identified the evidence of one of these witnesses, N.Ma., as a key piece of evidence concerning the plans of the organisers of the rally on 9 March 2001 (see paragraph 67 above). 205.", "The Court further observes that this was the only evidence before the domestic courts concerning the goal of the rally organisers. Moreover, the domestic courts identified no evidence whatsoever that while taking part in organising the rally on 9 March 2001 near the Shevchenko monument, the first three applicants had any plans to subsequently organise a march on Bankova Street and the clashes which followed there. 206. In view of the above, the Court considers that there are cogent and substantial elements in the present case prompting it to doubt the credibility of the official finding that the applicants, in organising the rally on 9 March 2001, had the intention of organising violent riots. 207.", "On the basis of the material before it, the Court finds it established that the organisers intended the rally to be an obstructive, but peaceful, gathering intended to occupy the space around the Shevchenko monument and thus prevent the President of Ukraine from laying flowers there. According to the Court’s settled case-law, such obstructive actions in principle enjoy the protection of Articles 10 and 11 (see, for example, Steel and Others, §§ 105-109; Drieman and Others; Lucas; and Barraco, §§ 41-49, all cited above). 208. It would appear that the authorities’ decision to block access to the Shevchenko monument on the morning of 9 March 2001 was aimed at preempting the rally and letting the President of Ukraine participate in the flower-laying ceremony at the monument. This appears to have frustrated the rally’s original obstructive goal and ended the first phase of the events of 9 March 2001, which was characterised by the preparation of a peaceful rally near the Shevchenko monument.", "The blocking of access to the monument then led to the second phase of the events, which was characterised by clashes near the Shevchenko monument, and then to the third phase, which was characterised by the march to the Ministry of the Interior and Bankova Street and the clashes which occurred on that street. 209. The Court finds that, concerning the period following the gathering of protesters near the Shevchenko monument and its deterioration into clashes with the police, the applicants failed to identify any cogent elements in the case file which would allow the Court to establish a coherent version of events and of the applicants’ actions alternative to that established by the domestic courts. (d) Whether there was an interference with the applicants’ rights under Article 11 of the Convention 210. The Court reiterates that the term “restrictions” in Article 11 § 2 must be interpreted as including measures taken before or during the public assembly, such as banning the event, blocking access to the venue, dispersing the gathering or arresting participants, and those such as punitive measures, taken after the meeting (see Bączkowski and Others v. Poland, no.", "1543/06, §§ 66-68, 3 May 2007, and Oya Ataman v. Turkey, no. 74552/01, §§ 7 and 30, ECHR 2006‑XIII). 211. The Court observes that the parties did not dispute that the applicants’ arrest and conviction constituted an interference with their rights under Article 11 of the Convention. Even though the second and third phases of events of 9 March 2001 were characterised by clashes between the protesters and the police (see paragraph 208 above), the Court is prepared to assume that during the second and third phases protesters still enjoyed protection of Article 11 of the Convention (see Primov, cited above, § 156).", "In the light of these considerations and having regard to the Government’s submissions, it finds that the applicants’ arrest and conviction can be regarded, on arguable grounds, as an instance of an “interference” with their right to freedom of peaceful assembly. (e) Whether the interference was justified 212. An interference with the right to freedom of peaceful assembly gives rise to a breach of Article 11, unless it can be shown that it was “prescribed by law”, pursued one or more legitimate aims as defined in paragraph 2 of that Article, and was “necessary in a democratic society” (see, for example, Schwabe and M.G., cited above, § 107). (i) “Prescribed by law” and “legitimate aim” 213. The Court notes at the outset that, in contrast to many other cases examined by the Court, the present case does not concern a conviction for having participated in or organised an unauthorised gathering, for failure to comply with formalities for a demonstration or for having disobeyed police orders to discontinue participation in an unauthorised demonstration (compare, for example, with Nemtsov, cited above, 40; Shmushkovych v. Ukraine, no.", "3276/10, § 12, 14 November 2013; Gün and Others, cited above, § 30; Vyerentsov, cited above, § 14; and Ziliberberg v. Moldova, no. 61821/00, § 13, 1 February 2005). 214. Even though the domestic courts found that the organisers had failed to formally notify the authorities about the planned rally (see paragraph 60 above), this finding related to the assessment of the actions of the police on 9 March 2001 and not to the applicants’ actions which were incriminated to them. Failure to observe formalities or unauthorised nature of the rally apparently played no role in their conviction and sentencing.", "The applicants’ were convicted for having organised and participated in violent riots rather than an unauthorised peaceful gathering. 215. For this reason the Court’s findings in its Vyerentsov judgment (cited above, §§ 54 -57) concerning the inadequacy of the legal framework regulating the procedure for holding peaceful demonstrations in Ukraine are not pertinent to the applicants’ case. 216. The Court, therefore, is satisfied that the interference was “prescribed by law”, notably Article 71 of the Criminal Code (see Taranenko v. Russia, no.", "19554/05, § 73, 15 May 2014). 217. The Court also accepts the Government’s submission that the interference had pursued the legitimate aim of maintaining public safety (see Osmani and Others v. the former Yugoslav Republic of Macedonia (dec.), no. 50841/99, 11 October 2001; Gün and Others, cited above, § 59; and Yılmaz Yıldız and Others v. Turkey, no. 4524/06, § 40, 14 October 2014).", "(ii) “Necessary in a democratic society” 218. The Court reiterates that the expression “necessary in a democratic society” implies that the interference corresponds to a “pressing social need” and, in particular, that it is proportionate to the legitimate aim pursued. The nature and severity of the sanction imposed are factors to be taken into account when assessing the proportionality of an interference in relation to the aim pursued (see, for example, Osmani and Others, cited above). 219. The Court must further determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient”.", "In so doing, it has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 47, Reports of Judgments and Decisions 1998‑I, and Stankov and the United Macedonian Organisation Ilinden, cited above, § 87). 220. The Contracting States have a certain margin of appreciation in assessing whether an interference is “necessary in a democratic society”, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it (see Stankov and the United Macedonian Organisation Ilinden, § 87, and Barraco, § 42, both cited above). 221. The Court will now proceed to examine the question of whether this interference was “necessary in a democratic society” in respect of the first three applicants and then, separately, in respect of the fourth, fifth, sixth and seventh applicant.", "(α) The first three applicants 222. The Court notes at the outset that the first three applicants were convicted (see paragraphs 51-56 above): (i) of their role in organising the protest rally of 9 March 2001 near the Shevchenko monument, viewed by domestic courts as preparations for a violent riot; (ii) of incitement to violence in the course of events near the Shevchenko monument and on Bankova Street, in particular through the chanting slogans “Forward!”, “On the attack!”, “Impale the traitors!” and “UNSO on the attack, UNA to power!”; and (iii) in respect of the first and third applicants, of participating in clashes with the police. 223. The Court observes that the domestic courts convicted the applicants for the above actions cumulatively, without identifying the relative weight of each particular element on the overall conviction and sentence. The first applicant was ultimately sentenced to two years and six months’, the second to four years’ and the third to three years’ imprisonment.", "In view of an amnesty, the second applicant in fact spent around two and a half years in detention. 224. The Court refers to its finding that the rally, for the organising of which the applicants were, in part, convicted, was intended as a peaceful gathering of the obstructive type. 225. It notes, however, that the applicants were convicted of an offence which encompassed not only organising the rally of 9 March 2001 but also inciting the protesters to acts of violence in the course of clashes near the Shevchenko monument and near the President’s Administration building on Bankova Street.", "The first and second applicants were also convicted of active participation in clashes with the police. 226. The applicants did not put forward any arguments that would allow the Court to interpret the slogans they chanted as stereotyped, historical or as having other particular meaning (compare with Gül and Others v. Turkey, no. 4870/02, § 41, 8 June 2010). In the absence of any such argument, it considers that these slogans, on the face of it and given the context of the violent police clashes in which they were chanted, advocated violence (see Sürek v. Turkey (no.", "1) [GC], no. 26682/95, § 62, ECHR 1999‑IV, and contrast with Gül and others, cited above, § 42). This was particularly true of the slogans chanted by the applicants in the course of the events on Bankova Street in the afternoon of 9 March 2001, preceded as they were by several violent episodes which had already occurred earlier that day. 227. In this connection, the Court reiterates that a conviction for obstructive actions and incitement to violence at a demonstration can be deemed an acceptable measure in certain circumstances (see, mutatis mutandis, Barraco, § 49, and Osmani and Others, both cited above).", "However, in assessing the proportionality of such a measure the nature and severity of the sanction imposed are factors to be taken into account (see, for example, Schwabe and M.G., cited above, § 111). 228. The Court reiterates that in Osmani and Others the applicant was convicted of inciting widespread violence which included the use of automatic firearms and led to three deaths. He was sentenced to seven years’ imprisonment but eventually granted amnesty, and in fact spent a year and three months in prison. While noting that the original sentence could be considered “severe”, the Court found that the actual period of time spent by the applicant in prison could not be considered disproportionate (ibid.)", "229. In Gündüz v. Turkey (no. 59745/00, ECHR 2003‑XI (extracts)) the Court examined under Article 10 the complaint of a radical Islamist who was convicted to two years’ imprisonment for publishing statements which were interpreted as calling for deadly violence against an easily identifiable individual. In finding this complaint inadmissible, the Court found it relevant that the applicant was able to avail himself of the possibility of release after serving half of his sentence (ibid.) 230.", "By contrast, in the instant case the violence which occurred in the course of clashes between protesters and the police was of a substantially less serious nature than in Osmani and Others. In contrast to Gündüz, in the present case the applicants did not call for deadly violence against specific individuals, even though their slogans had violent overtones. They also spent a substantially longer time in prison than the applicants in Osmani and Others and Gündüz. The greater severity of the sentence imposed on the applicants thus distinguishes the present case from those cases. 231.", "The Court is aware of the fact that the first and third applicants were convicted and sentenced, in part, of participating in clashes with the police. Their conviction in that regard undoubtedly played a role in their sentencing. However, in view of the cumulative and undifferentiated nature of the applicants’ conviction and sentences, determining what weight their organisational activities and chanting of slogans had on their overall sentences is not an easy task. 232. In resolving this question, the Court finds it relevant that the second applicant, who was convicted only of organising mass disorder and not actively participating, nevertheless initially received a sentence of five years’ imprisonment, the heaviest of all the applicants, including those who had been convicted of acts of violence.", "Even though this sentence was subsequently reduced to three years (compare with Üstün v. Turkey, no. 37685/02, § 34, 10 May 2007), it still remained the longest of all the applicants, equal only to that of the fourth applicant, who, unlike the second, was convicted of acts of considerable violence. 233. This leads the Court to conclude that the organisational activity and chanting of slogans, that is to say the elements of the first three applicants’ conduct protected by the Convention, must have weighed heavily on the first three applicants’ sentencing. For this reason and in view of the undifferentiated and cumulative nature of the applicants’ sentence, its overall severity should be examined, as a whole, from the perspective of proportionality.", "234. The Court has held that it must examine with particular scrutiny cases where sanctions imposed by the national authorities for non-violent conduct involve a prison sentence (see Taranenko, cited above, § 87). In this connection it is noted that the applicants’ sentences were based in part on their role in organising the political rally of 9 March 2001 which was, as the Court has found, intended to be a peaceful gathering (see paragraph 207 above). 235. The Court therefore concludes that, although a sanction for the applicants’ actions in organising an obstructive gathering and inciting violence during the events of 9 March 2001 might conceivably have been warranted by the demands of public safety, the long prison sentences imposed on them were not proportionate to the legitimate aim pursued.", "236. It considers, in particular, that the severe sanction imposed in the present case must have had a chilling effect on the applicants and other persons organising protest gatherings (see, mutatis mutandis, Taranenko, cited above, § 95). The Court is also conscious of its previous finding that this sanction was imposed on the second and third applicants as a result of a trial which did not meet the requirements of Article 6 of the Convention. 237. In view of the above, the Court finds that the interference in question was not necessary in a democratic society.", "238. There has therefore been a violation of Article 11 of the Convention in respect of the first three applicants. (β) The fourth, fifth, sixth and seventh applicants 239. The Court notes at the outset that these applicants were convicted exclusively of specific acts of violence committed near the President’s Administration building on Bankova Street (see paragraph 57 above) and that they failed to substantiate their complaints under Article 6 (see paragraphs 162 and 173 above). The applicants also failed to identify any cogent elements which would lead the Court to depart from the findings of fact reached by the domestic courts in respect of their actions.", "240. While these acts occurred in the course of a political march which in principle enjoyed the protection of Article 11, the applicants, in their particular actions, overstepped the boundaries of peaceful protest. 241. In these circumstances the Court concludes that the authorities’ response to the applicants’ aggressive behaviour was not disproportionate and could reasonably be viewed as necessary in a democratic society. 242.", "There has therefore been no violation of Article 11 of the Convention in respect of the fourth, fifth, sixth and seventh applicants. VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 243. The second applicant complained that he had no effective remedy in respect of his alleged ill-treatment by the police. He relied on Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 244.", "Relying on the same arguments as those presented in respect of the applicant’s Article 3 complaint in this regard, the Government submitted that the complaint had been lodged out of time. 245. The Court, having declared the relevant complaint under Article 3 of the Convention inadmissible, concludes that the applicant has no arguable claim for the purposes of Article 13 (see Visloguzov v. Ukraine, no. 32362/02, § 75, 20 May 2010). It follows that his complaint under Article 13 must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4.", "VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 246. 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 247. The first applicant claimed 300,000 Ukrainian hryvnias (UAH), the second applicant claimed UAH 500,000, and the third applicant claimed 25,000 euros (EUR) in respect of non-pecuniary damage.", "248. The Government submitted that the claims were excessive and unsubstantiated. 249. The Court considers that the applicants must have suffered distress and anxiety on account of the violations found. Ruling on an equitable basis, as required by Article 41 of the Convention, the Court awards the first applicant EUR 3,000, the second applicant EUR 4,000 and the third applicant EUR 4,000, plus any tax that may be chargeable.", "B. Costs and expenses 250. The applicants made no claim for costs and expenses. Accordingly, the Court makes no award under this head. C. Default interest 251.", "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. Holds that the sixth applicant’s father has standing to continue the present proceedings in his stead; 3. Declares the second and third applicants’ complaints under Article 6 concerning the right to confront witnesses, the second applicant’s complaint under Article 6 concerning his removal from the courtroom, the first applicant’s complaint under Article 6 concerning the appointment of a legal aid lawyer for him on 2 September 2002, and the applicants’ complaint under Article 11 concerning the interference with their right to freedom of peaceful assembly on account of their arrest and conviction admissible, and the remainder of the applicants’ complaints inadmissible; 4.", "Holds that there has been a violation of Article 6 §§ 1 and 3 (d) in respect of the second applicant on account of the non-attendance of I.Tr., M.Sh., R.Tk., S.Ko. and V.Du. as witnesses and in respect of the third applicant on account of the non-attendance of D.Ko., I.Tr., O.Dm., M.Pe., M.Sh., R.Py., V.Du., V.Ku. and V.Ma. as witnesses; 5.", "Holds that there has been no violation of Article 6 §§ 1 and 3 (c) and (d) of the Convention as regards the second applicant’s removal from the courtroom; 6. Holds that there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention as regards the appointment of a legal aid lawyer for the first applicant on 2 September 2002; 7. Holds that there has been a violation of Article 11 of the Convention in respect of the first three applicants; 8. Holds that there has been no violation of Article 11 of the Convention in respect of the fourth, fifth, sixth and seventh applicants; 9. Holds (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 3,000 (three thousand euros) to the first applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 4,000 (four thousand euros) to the second applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage; and (iii) EUR 4,000 (four thousand euros) to the third applicant, 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; 10.", "Dismisses the remainder of the applicants’ 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. Claudia WesterdiekJosep CasadevallRegistrarPresident" ]

[ "FIFTH SECTION CASE OF CHUKANOV AND OTHERS v. UKRAINE (Application no. 16108/03 and 9 others - see appended list) JUDGMENT STRASBOURG 8 December 2016 This judgment is final but it may be subject to editorial revision. In the case of Chukanov and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Khanlar Hajiyev, President,Faris Vehabović,Carlo Ranzoni, judges,and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 17 November 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Ukrainian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law.", "Some applicants also raised other complaints under the provisions of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION 6.", "The applicants complained principally that the length of the civil proceedings in question had been incompatible with the “reasonable time” requirement and that they had no effective remedy in this connection. They relied on Article 6 § 1 and Article 13 of the Convention, which read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by a ... tribunal ...” Article 13 “Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 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 Svetlana Naumenko v. Ukraine, no. 41984/98, 9 November 2004 and Efimenko v. Ukraine, no. 55870/00, 18 July 2006, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints.", "Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 10. The Court further notes that the applicants did not have at their disposal an effective remedy in respect of these complaints. 11. These complaints are therefore admissible and disclose a breach of Article 6 § 1 and of Article 13 of the Convention.", "III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 12. Some 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 Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, 15 October 2009. IV. REMAINING COMPLAINTS 13. Applicants in applications nos.", "16108/03, 45841/07 and 65999/09 also raised other complaints under various Articles of the Convention. 14. The Court has examined the applications and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 15.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 16. Regard being had to the documents in its possession and to its case‑law (see, in particular, Svetlana Naumenko v. Ukraine, no. 41984/98, §§ 109 and 112, 9 November 2004), the Court considers it reasonable to award the sums indicated in the appended table. It however makes no award in respect of the applicant who failed to respond to the Court’s invitation to submit his just satisfaction claims in accordance with Rule 60 of the Rules of Court. 17.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the complaints concerning the excessive length of civil proceedings, the lack of any effective remedy in domestic law and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible, and the remainder of applications nos. 16108/03, 45841/07 and 65999/09 inadmissible; 3.", "Holds that these complaints disclose a breach of Article 6 § 1 and Article 13 of the Convention concerning the excessive length of civil proceedings; 4. Holds that there has been a violation as regards the other complaints raised under well-established case-law of the Court (see appended table); 5. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. 6. Dismisses the remainder of the applicants’ claims for just satisfaction.", "Done in English, and notified in writing on 8 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıKhanlar HajiyevDeputy RegistrarPresident APPENDIX List of applications raising complaints under Article 6 § 1 and Article 13 of the Convention (excessive length of civil proceedings and lack of any effective remedy in domestic law) No. Application no.Date of introduction Applicant name Date of birth Representative name and location Start of proceedings End of proceedings Total length Levels of jurisdiction Domestic court file number Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 16108/03 16/04/2003 Vladimir Petrovich CHUKANOV 27/04/1947 24/10/2001 11/02/2004 14/12/2005 25/02/2009 4 years, 1 month and 21 days 1 level of jurisdiction 5 years and 15 days 2 levels of jurisdiction Art. 6 (1) - non-enforcement or delayed enforcement of domestic decisions - Alushta City Court of Autonomous Republic of Crimea 04/12/2000, 02/06/2003, 16/04/2004, 18/11/2004 and 11/02/2005 0 41587/07 08/09/2007 Arkadiy Ivanovych SHAPOVALOV 23/05/1964 Oleg Stepanovych Styopochkin Kremenchuk 11/09/1997 25/05/2007 9 years, 8 months and 15 days 3 levels of jurisdiction 2,400 42770/07 24/09/2007 Nataliya Georgiyivna MANDRYK 24/12/1946 11/09/1997 18/05/2007 9 years, 8 months and 8 days 3 levels of jurisdiction 3,100 45841/07 11/10/2007 Dmitriy Nikolayevich KRUZHKOV 05/09/1950 13/12/1999 23/06/2004 4 years, 6 months and 11 days 1 level of jurisdiction Art. 6 (1) - non-enforcement or delayed enforcement of domestic decisions - Bolhrad Local District Court of Odesa Region 23/06/2004 2,600 34963/08 10/07/2008 Dmytro Oleksiyovych ANTIOSHKO 01/01/1961 18/06/2002 26/02/2008 5 years, 8 months and 9 days 3 levels of jurisdiction 600 46323/08 16/09/2008 Grygoriy Yukhymovych LAVRINCHUK 01/09/1943 11/09/1997 01/02/2001 18/12/2003 14/05/1998 06/02/2002 22/04/2008 8 months, 4 days 3 levels of jurisdiction 1 year and 6 days 3 levels of jurisdiction 4 years, 4 months and 5 days 3 levels of jurisdiction 600 15165/09 27/02/2009 Petro Mykhaylovych NESTOR 23/06/1960 31/07/2002 04/11/2008 6 years, 3 months and 5 days 3 levels of jurisdiction 500 65999/09 28/11/2009 Anatoliy Fedorovych KRYSENKO 20/06/1959 23/04/2003 03/04/2014 10 years, 11 months and 12 days 3 levels of jurisdiction 3,900 46371/14 05/06/2014 Oleksandr Anatoliyovych NABOKA 20/08/1957 03/06/2005 18/11/2014 9 years, 5 months and 16 days 2 levels of jurisdiction 3,100 19517/15 15/04/2015 (2 applicants) Valentyna Ivanivna NEZDOLINA 10/10/1944 Vira Viktorivna TSERTIY 20/02/1951 19/05/2008 22/10/2014 6 years, 5 months and 4 days 3 levels of jurisdiction 500 [1] Plus any tax that may be chargeable to the applicants." ]

[ "FIFTH SECTION CASE OF LOGVINENKO v. UKRAINE (Application no. 13448/07) JUDGMENT STRASBOURG 14 October 2010 FINAL 14/01/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Logvinenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Karel Jungwiert,Mark Villiger,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva,Ganna Yudkivska, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 21 September 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "13448/07) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Aleksandr Vladimirovich Logvinenko (“the applicant”), on 25 January 2007. 2. The applicant, who had been granted legal aid, was represented by Mr A. A. Kristenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.", "3. The applicant alleged, in particular, that the conditions of his detention, including medical assistance and the physical arrangements for his health needs, and the manner in which he was treated by the officers of Penitentiary no. 47 had been inhuman and degrading. 4. On 12 January 2009 the President of the Fifth 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 5. The applicant was born in 1976 and is currently serving a life sentence in Kherson. I. THE CIRCUMSTANCES OF THE CASE A.", "Criminal proceedings against the applicant and his detention record 6. On 2 March 2001 the applicant was arrested and placed in the Kyivskyy District police station of Simferopil on suspicion of murder. 7. On 7 March 2001 the applicant was transferred to the Simferopil police temporary detention centre (the “ITT”). 8.", "On 27 April 2001 the applicant was transferred to the Simferopil no. 15 pre-trial detention centre (“the SIZO”) and on the same date placed in the Crimean Psychiatric Hospital for in-patient psychiatric assessment. 9. On 24 May 2001 the applicant was transferred back to the SIZO. 10.", "On 26 October 2001 the Court of Appeal of the Autonomous Republic of Crimea convicted the applicant of murder and sentenced him to life imprisonment. 11. On 28 February 2002 the Supreme Court of Ukraine upheld this judgment and it became final. 12. In October 2004 the applicant was transferred to Sokalska no.", "47 Penitentiary, Lviv Region (“Penitentiary no. 47”). 13. In November 2006 the applicant was transferred to Kherson no. 61 Penitentiary (“Penitentiary no.", "61) and placed in the prison hospital. B. Treatment for HIV and tuberculosis, and the physical conditions of the applicant's detention 14. In spring 1997 (prior to his detention) the applicant was diagnosed with infiltrated tuberculosis of the lung. In February 2000 he was also diagnosed with late stage of HIV (Aids).", "1. The applicant's account of events 15. According to the applicant, throughout the period of 2001-2008 the medical assistance afforded to him on account of his HIV and tuberculosis was grossly inadequate, while the physical arrangements of his detention were incompatible with his state of health. 16. In particular, as regards HIV, no treatment was offered whatsoever.", "Furthermore, in spite of the doctors' recommendations and the applicant's numerous requests, throughout the period of his detention he was denied blood tests to establish his count of CD-4 immunity cells, which are instrumental in combating tuberculosis and possibly inhibited as a result of HIV. On several occasions the applicant was informed that antiretroviral therapy would become available to him after the successful treatment of his tuberculosis. 17. As regards the treatment for tuberculosis, it was irregular and insufficient. In particular, in spite of the applicant's numerous complaints about his state of health (namely, shortness of breath, fever, chest pain, and so on), no medical assistance whatsoever was provided to him between March and May 2001.", "18. On 28 May 2001 the applicant was examined by a panel of the SIZO medical officers, who found that he was at risk of death if his state of health was not promptly addressed and recommended his release in view of the fact that the SIZO lacked the necessary facilities for his treatment. The applicant submitted a copy of the letter from the medical panel addressed to the SIZO governor and a letter from the governor to the district court dated 16 July 2001 requesting his release on humanitarian grounds. It is not clear whether these letters generated any reaction from the court. The applicant, however, remained in detention.", "19. Since June 2001 the applicant has been receiving treatment for tuberculosis, but it has not been effective. On many occasions he was denied routine consultations in spite of his demands. However, even when he was able to obtain consultations, the recommendations of the doctors were not followed through effectively. For example, on 13 July 2006 the applicant consulted a panel of medical specialists and was advised to undergo a number of tests.", "However, these tests were not carried out because the necessary facilities were unavailable, with the exception of two blood tests (biochemical and general) carried out in August 2006. The applicant was likewise unable to obtain timely tests on a number of other (unspecified) occasions in spite of his demands. 20. The applicant's recovery from tuberculosis was further impeded by the physical conditions of his detention. In all of the facilities in which he was detained, the applicant was largely confined to his cell.", "In the ITT he had to sleep on a bare mattress, as no linen was provided. Furthermore, he had no opportunity to wash, shave or take outdoor exercise. In Penitentiary no. 47 the cells had no mirrors or drawers and were poorly heated. The air was so damp that the walls and ceilings were covered with fungi and mould, as well as frost during the winter months.", "The drinking water was rusty and hot water for washing was not available more than once every two to three weeks. Despite suffering from active tuberculosis, on some occasions the applicant had to share a cell with other prisoners, including those who were healthy, which provoked conflicts. As a result of the lack of treatment and the inadequate conditions of his detention, the applicant caught bronchitis and pneumonia on various occasions, while his tuberculosis spread further and became chronic. 21. By way of evidence, the applicant presented a statement by his cellmate, Mr G. According to him, he shared the applicant's cell on various occasions for periods lasting from several days to several weeks.", "Their cell was very cold and no adequate clothing was provided. On numerous occasions the applicant's requests for medical assistance were ignored and the actual administration of anti-tuberculosis drugs was irregular, provoking the aggravation of his condition and resistance of the bacteria to treatment. 22. On numerous occasions the applicant complained to various authorities, including the ombudsman, the Prosecutor's Office and the local Department for the Enforcement of Sentences, of the inadequacy of his medical assistance and the incompatibility of the conditions of his detention with his state of health. His complaints, however, were to no avail.", "23. On two occasions the applicant attempted to lodge complaints about the conditions of his detention with two different courts; however, his submissions were rejected with reference to a lack of territorial jurisdiction. At one time the applicant demanded that a court clerk be commissioned to assist him in drafting his submissions, but this request was refused as not based on law. The applicant never appealed against the court decisions not to examine his claims. 24.", "In September 2006, following the applicant's numerous complaints to the prosecutor's office, the Lviv Prosecutor's Office contacted the Chief of the Regional Department for the Enforcement of Sentences and the governor of Penitentiary no. 47, urging them to take urgent measures to ensure that the applicant receive a comprehensive medical examination. Following this intervention, in November 2006 the applicant was transferred to Kherson no. 61 Penitentiary Hospital. However, following the applicant's transfer, healthcare arrangements did not improve significantly.", "In particular, no HIV therapy was made available to him. 2. The Government's account of events 25. The Government presented extensive handwritten medical notes, which are hardly legible, and a typed synopsis of the applicant's treatment history, on the basis of which they alleged that the applicant was regularly and consistently supervised and received treatment in compliance with the applicable Ministry of Health guidelines. 26.", "According to the synopsis, on 27 April 2001 the applicant was examined by a tuberculosis specialist and diagnosed as suffering from focal tuberculosis of the upper part of the right lung in the consolidation stage. 27. On 28 May 2001 the applicant was x-rayed. His x-ray indicated small low-intensity foci of the tuberculosis infection in the upper part of the right lung. Following this test, the applicant was prescribed standard treatment of a combination of “first-line” anti-tuberculosis antibiotics (streptomycin, isoniazid, rifampicin, ethambutol and pyrazinamide) and vitamins.", "28. The applicant was further examined by a tuberculosis specialist and (or) x-rayed in September 2001 (infiltrating tuberculosis; same treatment continued); March 2002 (diffusion and consolidation of the infection – positive dynamics); September and November 2004 (disseminated tuberculosis of the upper parts of both lungs, diffusion and consolidation stage); February 2005 (positive dynamics: namely, large remaining modifications after the tuberculosis infection – anti-recurrence treatment with “first-line” antibiotics and diet prescribed); May 2005 (same as before); June and November 2005 (recurrence of the tuberculosis infection in both lungs, including tissue destruction); January and February 2006 (recurrent tuberculosis, consolidation stage (positive dynamics), same treatment); June and July 2006 (same diagnosis including tissue destruction; same treatment); October 2006 (chronic tuberculosis including pulmonary fibrosis, numerous polymorphous foci of various sizes and numerous tuberculomas); October 2007 (results unspecified); August 2008 (the number of foci increased in both lungs); February 2009 (slight diffusion and consolidation of the infection foci (positive dynamics)). 29. The synopsis further gives a detailed account of the numerous tests carried out of the applicant's blood, urine and sputum between November 2006 and December 2007 and a record of a drug-resistance test taken in February 2007. Following the test for drug resistance, it was established that the applicant was resistant to some of the “first-line” anti-tuberculosis medication and his treatment regime was supplemented with some “second-line” drugs.", "30. In addition, in May and June 2005 the applicant received anti-inflammatory treatment on account of pneumonia in May 2005 and was treated for bronchitis in August 2005. In August 2008 the applicant was diagnosed with chronic bronchitis and hepatitis. 31. In the light of the positive tuberculosis dynamics, the applicant began preparing for HIV therapy at the beginning of 2009.", "C. Ill-treatment by the officers of Penitentiary no. 47 32. According to the applicant, immediately upon his and two other convicts' arrival at Penitentiary no. 47 in October 2004, they had their heads covered with sacks, were forced onto their knees, handcuffed and beaten by unnamed junior officers for no reason. Furthermore, they were threatened with a dog, strip searched, and then forced to do sit-ups which were counted.", "Subsequently, on numerous occasions the officers continued to humiliate the applicant and create a stressful atmosphere. In particular, on numerous occasions they beat him, threatened him with a dog, knocked on the door with a stick for no reason, interrupted his sleep, opened the door to the cell suddenly for various checks, and verbally insulted him. During the daytime the applicant was forbidden to lie on the bed. Furthermore, when the applicant needed to leave the building, for instance for fluorography, his head was covered with a sack and he was made to walk in an unnatural position (“a duck”- legs bent with hands behind the head). On 6 April 2005 the applicant was beaten for lying on his bed during the daytime when ill and on 29 June 2005 for refusing to assume the “duck” walking position.", "Each day the applicant was handcuffed and body-searched, being forced to stand barefoot on the concrete floor while the officers searched his shoes. 33. The applicant presented a handwritten statement of claim dated 14 June 2006 referring to the above conduct of the prison officers and addressed to the Shevchenkivskyy District Court of Kyiv. However, he did not provide any evidence that this statement was received by the court or even despatched from the penitentiary. 34.", "According to the Government, none of the incidents mentioned above concerning the applicant's ill-treatment at the hands of the penitentiary officers ever took place. II. RELEVANT DOMESTIC AND INTERNATIONAL MATERIALS A. Constitution of Ukraine, 1996 35. Article 55 of the Constitution of Ukraine, insofar as relevant, reads as follows: “Human and citizens' rights and freedoms are protected by the courts.", "Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers. ... Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.” B. Code of Civil Procedure of 1963 (repealed with effect of 1 September 2005) 36. Article 248-1 of the Code (Chapter 31-A) provided in so far as relevant: “Every citizen has the right to apply to court ... with an application, should he consider that a decision, action or inactivity of a public authority, legal person or official during the exercise of their administrative functions has violated his rights or freedoms ...” C. The Code of Administrative Justice (in force since 1 September 2005) 37. Article 2 of the Code, insofar as relevant, reads as follows: “1.", "The task of the administrative justice system is the protection of the rights, freedoms and interests of physical persons, and the rights and interests of legal entities in the field of public law relations from violations by public authorities ... 2. Any decisions, actions or inactivity of public authorities can be appealed against in administrative courts, except for cases in which the Constitution and laws of Ukraine foresee a different procedure of judicial appeal against such decisions, actions or inactivity ...” D. Combating Tuberculosis Act of Ukraine of 5 July 2001 38. Section 17 of the Act provides that persons suffering from tuberculosis detained in pre-trial detention centres (SIZOs) must receive appropriate treatment in the medical units of these detention centres. Persons detained in penitentiary establishments should be treated in specialised prison hospitals. E. Order of the Ministry of Health of Ukraine no.", "120 of 25 May 2000 “On Improving the Organisation of Medical Assistance for HIV Sufferers” 39. According to paragraph 14 of the Order, depending on the stage of the disease, HIV sufferers should have their count of CD-4 cells tested every one to six months. F. Order of the State Department for the Enforcement of Sentences of Ukraine and the Ministry of Health of Ukraine no. 186/607 of 15 November 2005 “On the Organisation of Antiretroviral Therapy for HIV Sufferers Held in Penitentiary Institutions and Remand Centres” 40. According to paragraphs 2.1 and 2.3 of the Instruction, approved by the Order, medical assistance for HIV sufferers is viewed as comprising compulsory dispensary supervision, treatment of opportunistic diseases and access to antiretroviral therapy.", "In-patient treatment of patients with stage III-IV HIV suffering from active tuberculosis infections should be administered in prison hospitals specialising in the treatment of tuberculosis. G. Order of the Ministry of Health of Ukraine no. 45 of 28 January 2005 “On Approval of the Protocol of Medical Assistance for Tuberculosis Sufferers” (repealed on 9 June 2006 by Order no. 384 approving the updated Protocol). 41.", "According to paragraph 6.1 of the Protocol, tuberculosis treatment was to be administered in specialised anti-tuberculosis institutions and to consist of two phases: basic chemotherapy and rehabilitation. The basic chemotherapy course consisted of intensive and supportive treatment stages with “first-line” anti-tuberculosis antibiotics (streptomycin, isoniazid, rifampicin, ethambutol and pyrazinamide), or, in the event of resistance of the infection to the above drugs, with “second-line” or “reserve” antibiotics. 42. According to paragraph 6.6.1, to obtain maximal results, medical or surgical treatment was to be implemented in conjunction with a particular hygiene and exercise regime (complete bed rest, part-time bed rest or training regime) prescribed to an individual patient based on an assessment of his condition. 43.", "Treatment was to be followed by rehabilitation, including curative exercise, massage and physiotherapy, which was recommended to be started within two to two and a half months after the antibiotic treatment. 44. According to paragraph 6.6.4, within several months of starting treatment, a medical commission was to examine whether the intensive treatment stage could be substituted by the supportive stage based on x-ray and microbiological tests. If treatment appeared ineffective at this stage the patient was to be tested for drug resistance, and, if necessary, his case referred to a more qualified institution. In the event that chemical treatment remained ineffective, surgical intervention was to be explored as a possible alternative.", "45. According to paragraph 6.6.4.3, it was recommended that antibiotic treatment be supplemented with anti-pathogenic medicines. 46. According to paragraph 6.7, tuberculosis patients were to be continuously monitored, which included x-rays every two months; blood (general and biochemical) and urine tests every month during the intensive therapy stage and once every two months during the supportive stage. 47.", "On 9 June 2006 Order no.45 was replaced with the Order no. 384 approving an updated Protocol; however, the major approaches remained the same. H. Order of the Ministry of Health no. 276 of 28 May 2008 “On Approval of the Clinical Protocol of Medical Assistance to HIV‑tuberculosis Co-infection Sufferers” 48. According to the Protocol, patients co-infected with HIV and tuberculosis should predominantly be administered anti-tuberculosis therapy first, based on the same principles as for patients suffering from tuberculosis only.", "Under the general rule, antiretroviral therapy should be administered after the completion of the intensive anti-tuberculosis therapy stage, unless the level of CD-4 immunity cells is lower than a certain threshold, in which case antiretroviral therapy is administered immediately. On average, the level of CD-4 cells is expected to be tested once every three months. I. Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 9 to 21 October 2005 (CPT/Inf (2007) 22) 49. Relevant parts of the Committee for the Prevention of Torture's report on its visit to Ukraine in 2005 read as follows: 3.", "Prisoners sentenced to life imprisonment “ ... 115. Access to medical care in specialised facilities remains problematic for this category of prisoner, both male and female... Further, the transfer of life-sentenced prisoners suffering from tuberculosis to specialised medical penitentiary facilities was still not possible. Such persons were kept in their detention units, isolated in their cells, sometimes for many months. The CPT recalls that obliging prisoners to stay in an establishment where they cannot receive appropriate treatment due to a lack of suitable facilities or because such facilities refuse to admit them, is an unacceptable state of affairs which could amount to inhuman and degrading treatment. The CPT recommends that the Ukrainian authorities ensure that life sentenced prisoners – men and women – who require treatment in a specialised hospital facility can be transferred to such a facility without undue delay.” J.", "Other relevant materials 50. Other relevant domestic and international materials can be found in the judgments in the cases of Melnik v. Ukraine (no. 72286/01, §§ 47-53, 28 March 2006), Yakovenko v. Ukraine (no. 15825/06, §§ 49-55, 25 October 2007) and Kats and Others v. Ukraine (no. 29971/04, §§ 85-86, 18 December 2008).", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 51. The applicant complained that the conditions of his detention between 2001 and 2008 had been incompatible with the guarantees of Article 3 of the Convention on account of inadequate medical assistance and incompatibility of the physical arrangements of his detention with his state of health. He further complained under the same provision of the misconduct of the officers of Penitentiary no. 47.", "The relevant provision of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. Submissions of the parties 52. The Government submitted that in so far as the applicant referred to wilful ill-treatment by the officers of Penitentiary no. 47, as well as the healthcare and detention conditions, except for those in Penitentiary no. 47, he had not exhausted relevant domestic remedies.", "In particular, he could have brought these complaints at three levels of domestic jurisdiction (in this respect they referred to Article 55 of the Constitution, Article 248-1 of the Code of Civil Procedure and Article 2 of the Code of Administrative Justice) or addressed them to the Prosecutor's Office. They noted, in particular, that in so far as the applicant had complained to the Prosecutor's Office of the inadequacy of medical assistance available to him in Penitentiary no. 47, it was the Prosecutor's Office that had facilitated his medical assessment and eventual transfer to Penitentiary no. 61. 53.", "The Government further submitted that the applicant's complaints concerning the physical conditions of detention and medical assistance in the Kyivskyy District police station and the ITT were vague, unsubstantiated, and could not be the basis for an arguable claim. 54. The applicant disagreed. He submitted that the remedies referred to by the Government were ineffective. In any event, he had raised all of his complaints before the Prosecutor's Office on a number of occasions, but had not obtained sufficient redress.", "Although he was eventually transferred to Penitentiary no. 61 after his numerous complaints that the conditions of his detention and the physical arrangements in Penitentiary no. 47 had been incompatible with his state of health, his situation had not significantly improved. In particular, he had still been denied access to antiretroviral therapy. 55.", "In so far as the applicant raised his complaints before the judicial authorities, in view of the unclear rules of procedure and the absence of any law entitling him to participate in the hearings in person, this remedy could hardly have provided him with any prospect of success. 56. In any event, the problems he complained about were of a structural nature. He was therefore unlikely to obtain their resolution by applying to any additional authority. 2.", "The Court's assessment (a) Healthcare and physical conditions of detention 57. In so far as the Government relied on the non-exhaustion argument with respect to the applicant's complaints about healthcare and the physical conditions of his detention, the Court notes that it has rejected similar objections in a number of other cases, where the complaints concerned problems of a structural nature in the domestic penitentiary system in question (see, for example, Kalashnikov v. Russia (dec.), no. 47095/99, 18 September 2001; Melnik, cited above, §§ 69-71; and Koktysh v. Ukraine, no. 43707/07, § 86, 10 December 2009). 58.", "The Court finds that the same reasoning is pertinent in the present case. In this regard the Court notes, in particular, that the applicant has presented copies of his abundant correspondence with various authorities on the matters at issue, which, however, did not seem to have brought about adequate resolution to his grievances. The Court finds that the competent authorities were well aware of the applicant's situation and his dissatisfaction with it and yet they did not redress it. In the light of the above, it dismisses the Government's objection as to non-exhaustion of available remedies in this respect. 59.", "As regards other reasons for inadmissibility of this part of the application, the Court notes that the applicant's complaints about the physical conditions of his detention in pre-trial detention facilities (the Kyivskyy District police station, the ITT and the SIZO), relate to the period ending in October 2004, when he was transferred to Penitentiary no. 47 to serve his sentence. In the meantime, the present application was lodged only on 25 January 2007 (i.e. outside the six-month time-limit established by Article 35 § 1 of the Convention). The Court can therefore not assess as such the compatibility of the above conditions of detention with Article 3 of the Convention.", "60. However, in so far as the applicant's complaints relate to healthcare arrangements for HIV and tuberculosis, the Court's conclusion is different. Notwithstanding that between 2001 and 2008 the applicant was held in five different facilities, his allegations of inadequacy of medical assistance during the entire period (namely, inadequacy of tuberculosis treatment and complete unavailability of HIV therapy) are sufficiently similar and can be characterised as a continuing situation (see, mutatis mutandis, Nedayborshch v. Russia, no. 42255/04, § 24, 1 July 2010). The Court also finds that certain allegations concerning, prima facie, the physical conditions (namely, being largely confined to a cell with a lack of exercise and fresh air) are so closely connected to the complaints of ineffective treatment of pulmonary tuberculosis, that it would be artificial to discount them in the overall examination of the healthcare arrangements.", "By the same token, the applicant's complaint of the incompatibility of the physical conditions of his detention in Penitentiary no. 47 with his state of health (for example, the cell being damp and cold), should, in the circumstances of the present case, be examined in the light of his more general complaint of incompatibility of the physical conditions of his detention with his healthcare needs (see, for example, Ukhan v. Ukraine, no. 30628/02, §§ 81‑83, 18 December 2008). 61. The Court finds that the applicant's complaints, in so far as they relate to medical assistance and the compatibility of the physical conditions of his detention with his state of health throughout the period of his detention between 2001 and 2008, are sufficiently consistent and detailed and 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) Ill-treatment by the officers of Penitentiary no. 47 62. In so far as the applicant's complaints relate to wilful ill-treatment by the officers of Penitentiary no.", "47, he has not presented any evidence that this treatment was habitual, endorsed or deliberately tolerated by either the domestic penitentiary system as a whole or even the management of Penitentiary no. 47. The Court, therefore, agrees with the Government that the applicant should have made the authorities aware of his alleged suffering in this respect (see Aliev v. Ukraine (no. 2) (dec.), no. 33617/02, 14 October 2008).", "63. In the meantime, notwithstanding that the case file contains copies of the applicant's numerous complaints to various authorities about different aspects of his medical treatment and the physical conditions of his detention, the only document containing reference to the officers' alleged misconduct is a handwritten copy of an application to the Shevchenkivsky District Court of Kyiv dated 14 June 2006. There is no indication whether this particular document was ever received by or even despatched to the addressee. 64. In these circumstances the Court finds that the applicant failed to show that he had exhausted domestic avenues for redressing his complaints about the officers' conduct and upholds the Government's objection of non‑exhaustion.", "65. This part of the application should therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. B. Merits 66. The applicant asserted that the physical conditions of his detention and medical assistance for HIV and tuberculosis were incompatible with his state of health.", "In particular, although the authorities had been well aware of his medical condition upon his placement in custody in March 2001, he had not received any HIV therapy throughout the period complained about. As regards tuberculosis, no treatment was made available to him until the end of May 2001, after which time treatment was prescribed but remained largely ineffective. The applicant's state of health was further aggravated by the poor physical conditions of his detention, including a lack of heating, hot water, exercise and fresh air. 67. The Government contested this view.", "They submitted that the applicant had been systematically supervised by competent doctors, had undergone the necessary tests on numerous occasions and had obtained treatment in accordance with medical prescriptions. They further noted that, as a result of effective therapy, by the end of 2008 some positive dynamics had been achieved in respect of the applicant's tuberculosis and he had been preparing for HIV therapy. 68. The Court notes that the applicant's general state of health appears to have deteriorated during the period of his detention (see paragraphs 27, 28, and 30 above). While the Court is unable to compare the applicant's current and previous HIV status in the absence of the necessary records, his tuberculosis has progressed.", "In spring 2001 the applicant was suffering a low-intensity tuberculosis infection in the upper right lung. Notwithstanding a few instances of positive dynamics following the administration of antibiotics, the infection recurred on several occasions, eventually spreading to both lungs and becoming chronic, as well as leading to tissue destruction and the formation of tuberculomas by 2008. In addition, by August 2008 the applicant was diagnosed with other infectious diseases (hepatitis and chronic bronchitis). 69. Analysing to what extent the Government may be held responsible for the deterioration of the applicant's health in the light of the general principles established in its case-law (see Ukhan v. Ukraine, cited above, §§ 72-74), the Court notes the apparent lack of systematic and strategic supervision and conditions of detention reasonably adapted to his state of health, which, in its view, was indispensible given the applicant's particular condition.", "70. While the applicant consulted medical specialists, underwent various tests and received medicine on a number of occasions, based on the available materials, no conclusion can be made that these measures were prompt, coherent and regular. The synopsis of the applicant's medical history contains abundant information as regards certain periods (for example, data concerning blood and urine tests from the period of November 2006 to December 2007), but no data has been presented whatsoever for other periods (such as from March to May 2001 and March 2002 to September 2004). Moreover, it appears that on certain occasions the authorities themselves acknowledged the inadequacy of the applicant's medical support (namely, in spring 2001 the SIZO governor requested the applicant's release in view of the unavailability of treatment facilities and in autumn 2006 the applicant was transferred to a different penitentiary following his persistent complaints of insufficient healthcare arrangements). 71.", "Some of the therapeutic measures appear to have been taken with prohibitive delay. In particular, for some six years the applicant was continuously prescribed the same “first-line” anti-tuberculosis medication in spite of the fact that the infection kept recurring and progressed to both lungs. It was not until February 2007 that some of these drugs were replaced with “second-line” antibiotics following a drug-resistance test, which, according to the applicable guidelines (developed in January 2005, see paragraph 41) was recommended to be taken in the early stages of treatment. 72. Yet other standard therapies, indicated in the applicable guidelines, appear to have never been contemplated, or at least recorded.", "As regards tuberculosis, the applicant's treatment consisted solely of the prescription of antibiotics, a special diet and, occasionally, vitamins. There is no information that any alternative (such as surgical) or complimentary (such as anti-pathogenic, physiological, rehabilitation) strategies (seeparagraphs 43 - 45 above) were ever implemented or even explored. 73. As regards HIV, the Court finds it unacceptable that no therapy whatsoever was provided to the applicant during the entire period in issue (more than eight years). The Court considers that this delay cannot be explained by the medical tactics of preferential treatment for tuberculosis (see paragraphs 16 and 48 above).", "There is no record to suggest that HIV therapy was discussed during the several periods when the applicant's tuberculosis was inhibited (for example, in March 2002 and February 2005 – see paragraph 28 above). Moreover, according to the applicable guidelines, HIV treatment in tuberculosis patients is expected to be commenced immediately if the level of CD-4 immunity cells, which is advised to be monitored every few months, drops below a particular threshold. In any event, this treatment is expected to be contemplated within months of the administration of the tuberculosis therapy. The applicant, in the meantime, was denied tests to establish his count of CD-4 cells for numerous years in a row. In the absence of the level of his immunity cells being monitored, it may not be excluded that the applicant's recovery from tuberculosis was impeded by the absence of HIV therapy.", "74. Finally, as provided in the applicable guidelines, particular importance in the treatment of tuberculosis is attached to adhering to a specific hygiene and exercise regime (see paragraphs 42-43 above). There is nothing to suggest whether any special hygiene or exercise regime was developed for the applicant in the present case. The Court notes first of all that according to the Ukrainian legislation it is generally expected that tuberculosis treatment be administered in specially equipped hospitals (see paragraphs 38, 40 and 41 above). It is notable that in the present case, the applicant spent over two years in penitentiary no.", "47, designed for healthy inmates. It appears that for extensive periods of time he was confined to a common prison cell, at times sharing it with other inmates. In the absence of any information from the Government to the contrary, it also appears that at least during his stay in Penitentiary no. 47, the applicant was likewise generally expected to follow the basic exercise–rest regime established for healthy inmates (namely, confined to the cell without outdoor exercise for most of the day and generally not allowed to lie on the bed during the day). 75.", "In so far as the applicant raises other complaints of incompatibility of his detention conditions with his state of health (in particular, damp and cold cells and insufficient hot water for hygiene purposes), the Court notes that these allegations, disputed by the Government, have not been established “beyond reasonable doubt”. However, regard being had to absence of documentary evidence on the Government's behalf, a statement by G. (the applicant's occasional cellmate) and the general deterioration of the applicant's health (including the development of pneumonia in May 2005 and chronic bronchitis by August 2008), the Court finds his description credible and is prepared to conclude that the physical conditions of the applicant's detention were not properly adapted to his healthcare needs. 76. The Court refers to the findings of the Committee for the Prevention of Torture following its visit to Ukraine (see paragraph 49 above) and considers that obliging prisoners to stay in an establishment lacking suitable facilities for appropriate treatment of tuberculosis or refusing them access to such facilities is unacceptable. In addition, when inaccessibility of adapted detention conditions is followed by failure to segregate healthy inmates from those sick with contagious diseases, such as tuberculosis, can not only provoke severe physical and mental suffering in a prisoner needing treatment, but facilitate dissemination of the disease and have serious adverse consequences for the prison population as a whole.", "77. Overall, in the light of the findings concerning the lack of a comprehensive approach to the applicant's medical supervision and treatment for tuberculosis and HIV and failure to ensure physical conditions reasonably adapted for his recovery process, the Court considers that the State authorities have not done what could be reasonably expected of them to discharge their Convention duty under Article 3 vis-à-vis the applicant. As a result he was subjected to inhuman and degrading treatment. 78. There has therefore been a violation of this provision.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 79. The applicant also alleged that he did not have at his disposal an effective domestic remedy for his complaints under Article 3, as required by Article 13 of the Convention. This provision 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 80. The Government referred to their arguments concerning non‑exhaustion of domestic remedies, summarised in paragraph 52 above and contended that the applicant should have complained about his grievances to the Prosecutor's Office and the domestic courts.", "81. The applicant insisted that these remedies were ineffective. 82. The Court refers to its findings in paragraphs 61 and 65 above and observes that the applicant has made out an arguable claim under Article 3 only in so far as his allegations concerned the adequacy of medical assistance for HIV and tuberculosis and the compatibility of the physical arrangements of his detention with his state of health. It finds, therefore, that his complaint under Article 13 of a lack of effective remedies for these complaints must be declared admissible.", "83. As regards the remainder of the claim, it must be dismissed in accordance with Article 35 §§ 3 and 4 of the Convention. B. Merits 84. The Court points out 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.", "It notes that the Ukrainian law contains certain provisions, which may enable prisoners to complain about violations of their rights (see paragraphs 35-37 above). However, with reference to its earlier case-law (see, among other authorities, Melnik v. Ukraine, cited above, §§ 113-116 and Ukhan, cited above, §§ 91-92) and the circumstances of the present case, the Court finds that the Government have not proved that the applicant had in practice an opportunity to obtain effective remedies for his complaints, that is to say, the remedies, which could have prevented the violations from occurring or continuing, or could have afforded the applicant appropriate redress. 85. The Court concludes, therefore, that there has been a violation of Article 13 of the Convention on account of the lack of an effective and accessible remedy under domestic law for the applicant's complaints in respect of his treatment in and the conditions of detention. III.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 86. The applicant also complained under Article 6 § 1 of the Convention that, in view of the fact that he suffered from Aids and tuberculosis, it was unfair to sentence him to life imprisonment. He also complained that he had not had access to a court in view of the fact that his submissions were rejected for lack of territorial jurisdiction and that no court clerk had been made available to him to assist in the proper preparation of his complaint. Lastly, the applicant invoked Articles 2 and 14 of the Convention in respect of the facts of the present case, without further substantiation. 87.", "However, in the light of all the material before it, 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 provisions relied upon by the applicant. 88. 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 89.", "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 90. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage. 91. The Government submitted that this claim was exorbitant and unsubstantiated.", "92. The Court finds that the applicant must have suffered non-pecuniary damage on account of the violations found; however, the requested amount is excessive. Making its decision on an equitable basis, the Court awards the applicant 8,000 euros (EUR) in respect of non-pecuniary damage plus any tax that may be chargeable. B. Costs and expenses 93.", "The applicant, who had also been granted legal aid, claimed EUR 2,000 in legal fees for his representation before the Court. 94. The Government noted that the applicant had not provided any documents in support of his claim. 95. 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 fact that the applicant had been granted legal aid and to the fact that he did not provide any evidence in support of his claim, the Court gives no award. C. Default interest 96. 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 quality of medical assistance and compatibility of the physical conditions of the applicant's detention with his health and the unavailability of effective remedies in this respect 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 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 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to be converted into the national currency of Ukraine 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 14 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Claudia WesterdiekPeer LorenzenRegistrarPresident" ]

[ "THIRD SECTION CASE OF MELNĪTIS v. LATVIA (Application no. 30779/05) JUDGMENT STRASBOURG 28 February 2012 FINAL 09/07/2012 This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of Melnītis v. Latvia, 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,Nona Tsotsoria,Kristina Pardalos, judges,and Marialena Tsirli, Deputy Section Registrar, Having deliberated in private on 7 February 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "30779/05) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Latvian national, Mr Aigars Melnītis (“the applicant”), on 15 August 2005. 2. The applicant, who had been granted legal aid, was represented by Ms I. Betkere, a lawyer practising in Rīga. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine. 3.", "The applicant alleged, in particular, that the conditions of his pre-trial detention in Valmiera Prison had amounted to inhuman and degrading treatment. 4. On 16 May 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 5. The applicant was born in 1969 and lives in Rencēni parish in Latvia. A. The applicant’s pre-trial detention and conviction 6. On 19 May 2005 the applicant was placed in cell no.", "26 in a remand wing of Valmiera Prison. 7. On 14 October 2005 the Valmiera District Court (Valmieras rajona tiesa) convicted the applicant of resistance to a public official and sentenced him to three years’ imprisonment but suspended the sentence. It appears that no appeal was lodged against this judgment. 8.", "On the same date, the court ordered the applicant’s release. B. Conditions of detention in Valmiera Prison 9. According to the applicant, the cell where he was placed together with other detainees had been very poorly lit and poorly ventilated. The toilets had not been separated from the living area and had emitted a foul smell that had lingered in the air.", "Detainees had thus been forced to eat their meals in close proximity to the toilets. The applicant also alleged that the cell had been overpopulated, each detainee having had less than the domestic standard of 2.5 sq. m of living space per male adult detainee. 10. The Government disagreed with the applicant’s version of facts.", "They noted that cell no. 26 had had artificial and natural light and a ventilation system and they submitted that the toilet area in the cell had been separated off with a screen. The Government submitted that cell no. 26 had measured 23.6 sq. m. and had accommodated no more than eight detainees at a time, including the applicant.", "11. In addition, the applicant contended that he had not received any personal hygiene products, save for a quarter of a bar of laundry soap. He had not been provided with toilet soap, a toothbrush, toothpaste and toilet paper, in violation of domestic law (see paragraph 21 below). 12. The Government did not deny that the applicant had not been provided with these products.", "13. On an unspecified date in October 2005 the applicant had received 200 g of laundry soap, one toothbrush, 50 g of toothpaste and one 30 m roll of toilet paper. C. Review of the applicant’s complaints 14. On 13 July 2005, upon the applicant’s complaint addressed to the prosecutor’s office, the Prisons Administration (Ieslodzījuma vietu pārvalde) informed him that the prison lacked the financial resources to provide him with the personal hygiene products as laid down in Cabinet Regulation no. 339 (2002).", "15. On 8 August 2005 the Valmiera Prison administration confirmed that there were no financial resources to provide the relevant personal hygiene products, save for one 200 g bar of laundry soap per month. 16. On 22 July 2005 the National Human Rights Office replied to the applicant in general terms that they had found during their onsite visits that penal institutions did not comply with many legal requirements. They noted, among other things, that they had drawn the attention of the relevant domestic authorities in March 2005 to insufficient financial resources having been allocated to the purchase of personal hygiene products.", "Finally, the applicant was informed of his right to submit an individual petition to the Court. II. RELEVANT INTERNATIONAL LEGAL MATERIAL AND DOMESTIC LAW A. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 17. Prior to 2011, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) had not visited Valmiera Prison, where the applicant was placed during his pre-trial detention.", "18. However, during its ad hoc visit from 5 to 12 May 2004 to several police headquarters (in Daugavpils, Liepāja and Ventspils) and prisons (in Rīga and Daugavpils) it noted that detainees and prisoners were not provided with basic personal hygiene products and recommended that immediate steps be taken to ensure that all detainees and prisoners be provided with adequate quantities of essential personal hygiene products (see paragraphs 20 and 60 of the relevant report: CPT/Inf (2008) 15). The CPT also found that toilets were not adequately partitioned off in a number of cells. 19. In its response, the Latvian Government (see the relevant document: CPT/Inf (2008) 16) noted that due to a lack of funding it was not possible to fully comply with the CPT’s recommendations.", "The Government noted that prisoners could purchase the necessary products in a prison shop. At the same time, they noted that prison authorities used humanitarian aid to help prisoners who did not have sufficient financial means. B. European Prison Rules 20. The European Prison Rules, adopted on 11 January 2006, are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided in legislation and policies by those rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates.", "The relevant parts read as follows: “18.1 The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation. 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; and c. there shall be an alarm system that enables prisoners to contact the staff without delay. 18.3 Specific minimum requirements in respect of the matters referred to in paragraphs 1 and 2 shall be set in national law. ... 19.5 Prisoners shall keep their persons, clothing and sleeping accommodation clean and tidy. 19.6 The prison authorities shall provide them with the means for doing so including toiletries and general cleaning implements and materials.” C. Relevant domestic law and practice 1.", "Standards concerning personal hygiene products 21. Cabinet Regulation no. 339 (2002), in force at the material time and effective until 20 June 2008, laid down the standards governing the basic personal hygiene products to be provided to detainees. A healthy adult male detainee was to receive 200 g of laundry soap, 50 g of toothpaste and one 30 m roll of toilet paper every month and one toothbrush every six months. No toilet soap was to be provided.", "2. Standards concerning detention conditions 22. Cabinet Regulation no. 211 (2003), in force at the material time and effective until 1 April 2006, laid down the standards governing detention conditions in remand wings of prisons. It contained no provision on the partitioning off of toilets in cells.", "23. Subsequently, the requirement to separate the toilet from the rest of the cell was laid down, initially, in cabinet regulations and, later, in law. 3. Administrative proceedings 24. The Law of Administrative Procedure (Administratīvā procesa likums) took effect on 1 February 2004.", "It provides for the right to challenge administrative acts (administratīvais akts) and actions of a public authority (faktiskā rīcība) before the administrative courts. 25. At the material time, section 89 of the Law of Administrative Procedure defined an action of a public authority as “an action within the sphere of public law which is not aimed at issuing an administrative act, provided that its results have or might infringe the rights or legal interests of an individual concerned”. An action of a public authority also included “an omission on the part of a public authority provided that such authority has an obligation under the law to take a specific action”. The 2006 amendments to the Law, which took effect on 1 December 2006, further clarified this definition.", "26. Under section 92 of the Law of Administrative Procedure everyone has the right to receive appropriate compensation for pecuniary and non-pecuniary damage caused by an administrative act or action of a public authority. Under section 93 of the same Law, a claim for compensation can be submitted either together with an application to the administrative courts to have an administrative act or action of a public authority declared unlawful or to the public authority concerned following a judgment adopted in such proceedings. 4. Domestic reports on practice and case-law 27.", "In its annual report dedicated to human rights issues in Latvia for the year 2005[1], the National Human Rights Office (VCB), noted that prisoners most commonly complained about the conditions of their detention and, in particular, about the lack of separation of toilets from other cell areas. Although they had paid a visit to Valmiera Prison, the report did not describe the results of that visit in full. It was merely stated that: “The VCB has concluded that improvement in conditions of detention is connected to the lack of funding and that in many prisons, for example in ... Valmiera Prison, it will be impossible to ensure normal conditions of detention without construction works. Therefore, in spring 2005 the VCB sent a letter to the Prime Minister, pointing out the possible problems [that might occur] if detainees were to lodge applications under Article 3 of the Convention with the Court. Regrettably, the competent authorities did not always follow the VCB’s recommendations and the VCB [was left with no other possibility than to] advise detainees to lodge applications with the Court.", "[If] any improvements had been made, the VCB had not been informed of them”. 28. On 1 December 2006 the Supreme Court issued a compilation and analysis of the domestic case-law on definition and interpretation of the administrative law concept of an action of a public authority (Tiesu prakses apkopojums par faktiskās rīcības jēdzienu un interpretāciju). It was noted that only some 10% of cases before the administrative courts had concerned actions of a public authority. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF CONDITIONS OF DETENTION 29. The applicant complained that the conditions of his detention in Valmiera Prison had been inhuman and degrading, in breach of Article 3 of the Convention. In particular, he submitted that as a result of the prison administration’s refusal to provide him with personal hygiene products such as toilet soap, a toothbrush, toothpaste and toilet paper he had constantly felt dirty and humiliated. He also alleged that the toilets were not separated from the rest of the cell. 30.", "Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Application of Article 37 § 1 (b) of the Convention 1. The parties’ submissions 31. The Government invited the Court to strike the case out of its list of cases, in accordance with Article 37 § 1 (b) of the Convention. The Government relied in this connection on the fact that in October 2005 the applicant had been provided with personal hygiene products.", "They took the view that the situation complained of by the applicant had thus ceased to exist and that the matter giving rise to the applicant’s Article 3 complaint had thereby been resolved. In the Government’s submission, there was no particular reason relating to respect for human rights as defined in the Convention which would require the Court to continue its examination of the application. 32. The applicant objected to the Government’s request to strike out the application and invited the Court to proceed with its examination of the case. He submitted that even though he had received personal hygiene products in October 2005, this had not sufficiently redressed the lack of those products in past.", "2. The Court’s assessment 33. In order to ascertain whether Article 37 § 1 (b) applies to the present case, the Court must answer two questions in turn: firstly, whether the circumstances complained of directly by the applicant still pertain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have been redressed (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 97, ECHR 2007‑I). This approach reflects the structure of the Convention’s supervisory machinery, which provides both for a reasoned decision or judgment as to whether the facts in issue are compatible with the requirements of the Convention (Article 45), and, if they are not, for an award of just satisfaction if necessary (Article 41) (see Pisano v. Italy [GC] (striking out), no.", "36732/97, § 42, 24 October 2002). 34. In the present case, that entails first of all establishing whether the conditions of the applicant’s detention persist. After that, the Court must consider whether the measures taken by the authorities constitute redress for the applicant’s complaint. 35.", "As to the first of these, it is clear that the situation complained of no longer pertains, since the applicant received personal hygiene products in October 2005. Subsequently, on 14 October 2005 he was released from Valmiera Prison. 36. As regards the second question, the Court has to determine if the domestic authorities have adequately and sufficiently redressed the situation complained of (see Sisojeva and Others, cited above, § 102, and El Majjaoui and Stichting Touba Moskee v. the Netherlands (striking out) [GC], no. 25525/03, § 33, 20 December 2007).", "37. The Court notes that the situation complained of concerns the conditions of detention in Valmiera Prison, including the allegation that the toilets were not separated from the rest of the cell and a complete lack of personal hygiene products for nearly five months. The applicant’s complaint therefore relates to the suffering he had to endure in that period. In the Court’s view, the fact that he later received such products or that he was subsequently released merely denotes the end of the situation complained of and, opposite to what has been suggested by the Government, it does not provide any redress to the applicant. To hold the contrary would render the protection of human rights under the Convention – in particular, as regards possible violations emanating from State agents’ omissions – theoretical and illusory.", "38. In conclusion, as the aforementioned conditions have not been met, there can be no question of striking the application out of the list in application of Article 37 § 1 (b) of the Convention. B. Admissibility 1. Non-exhaustion of the domestic remedies (a) The parties’ submissions 39. The Government argued that the applicant had failed to use the remedies established by the Law of Administrative Procedure.", "They asserted that the remedies provided therein were effective, accessible and offered reasonable prospects of success. In this connection they referred to the ruling of the Administrative Department of the Supreme Court in the case of Stāmers, adopted on 15 June 2006, whereby it had established that “in order to admit for examination within administrative proceedings an act or an action of a public authority vis-à-vis, inter alia, persons deprived of their liberty, it is necessary to establish whether the act or action concerned has significantly interfered with human rights”. The Government submitted that the Supreme Court had set aside the conclusions of two lower administrative courts that all complaints arising out of a public authority’s action should be examined following a “subordination procedure”, that is to say, by lodging a complaint with a hierarchically higher institution and not through administrative proceedings in court. 40. The Government asserted that the Stāmers case had been examined at the domestic level around the time when the events of which the applicant complained in the present case had taken place.", "However, the Government did not furnish the Court with a copy of the ruling of 15 June 2006. Nor did they inform the Court about the outcome of those proceedings. They merely stated that the Supreme Court had set aside the decision of a lower court and had sent the case back for fresh examination. 41. The applicant disagreed.", "He submitted that the ruling of 15 June 2006 had been the first decision whereby the Supreme Court had acknowledged that a detainee’s complaint about conditions of detention could be examined by the administrative courts. The applicant contended that before that date the administrative courts had refused to examine detainees’ complaints about conditions of detention for more than two years. The prevailing view, as evidenced by two rulings of the lower courts in the Stāmers case, had been that such complaints were to be examined following a “subordination procedure”, in other words, by a hierarchically higher institution and not by the administrative courts. 42. The applicant contested the Government’s assertion that the case of Stāmers had been examined at the same time as the events complained of in the present case had taken place.", "According to the applicant, the Stāmers case had been lodged with the administrative courts on 24 February 2006 and the above-mentioned ruling of the Supreme Court had been adopted almost four months later. The applicant, however, had complained of events that had taken place one year earlier, as the date of introduction of the applicant’s complaint to the Court dated back to 15 August 2005. The applicant’s argument was that in a new, post-communist legal system, such as the one established following the restoration of the independence of the Republic of Latvia, one year is a long period viewed in terms of the evolution of the interpretation of domestic law – even more so given that the Law of Administrative Procedure, effective since 1 February 2004, had also established new remedies. 43. In their additional observations, the Government did not deny that the administrative courts were a relatively new judicial institution at the time of the events.", "They contented that the very reason for having a three-level court system had been to allow the courts to examine a case thoroughly. It implied that a higher court could overrule a lower court’s ruling. 44. Furthermore, the Government noted that other applicants before the administrative courts had been in the same position as the applicant – they had all had to make recourse to a relatively new remedy in order to defend their rights. The Government considered that the applicant could not be released from the obligation to exhaust domestic remedies, as to release him from that obligation would be unfair to those people who had used the newly established remedy, thereby contributing to the development of domestic case-law and proving its effectiveness.", "Finally, they noted that the applicant had not indicated any particular reason for which he had not exhausted the available domestic remedy. 45. In reply to the Government’s additional observations, the applicant stressed that, at the time of lodging the complaint with the Court, the administrative courts had not interpreted domestic law in a way that would have lead to the conclusion that it was an effective remedy for detainees’ complaints about conditions of detention. Instead, they had ruled that such complaints were to be examined by a hierarchically superior institution. The applicant maintained that an application to the administrative courts had not constituted an effective remedy and had not offered reasonable prospects of success at the time.", "Finally, having not had a lawyer, he had relied on the information given by the National Human Rights Office to the effect that he could apply to the Court. (b) The Court’s assessment 46. The Court recalls that in the area of the exhaustion of domestic remedies there is 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 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 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; Menteş and Others v. Turkey, 28 November 1997, § 57, Reports 1997‑VIII; and, more recently, Bazjaks v. Latvia, no.", "71572/01, § 85, 19 October 2010). 47. In the area of complaints of inhuman or degrading conditions of detention, the Court has already observed that two types of relief are possible: an improvement in the material conditions of detention; and compensation for the damage or loss sustained on account of such conditions (see Benediktov v. Russia, no. 106/02, § 29, 10 May 2007, and Roman Karasev v. Russia, no. 30251/03, § 79, 25 November 2010).", "If an applicant has been held in conditions that are in breach of Article 3, a domestic remedy capable of putting an end to the ongoing violation of his or her right not to be subjected to inhuman or degrading treatment is of the greatest value. Once, however, the applicant has left the facility in which he or she endured the inadequate conditions, he or she should have an enforceable right to compensation for the violation that has already occurred. 48. Where the fundamental right to protection against torture or against inhuman or degrading treatment is concerned, the preventive and compensatory remedies, in principle, should be complementary in order to be considered effective. In contrast to the cases concerning the length of judicial proceedings or non-enforcement of judgments, where the Court has accepted in principle that a compensatory remedy alone might suffice (see Mifsud v. France (dec.) [GC], no.", "57220/00, § 17, ECHR 2002‑VIII; Scordino v. Italy (no. 1) [GC], no. 36813/97, § 187, ECHR 2006‑V; and Burdov v. Russia (no. 2), no. 33509/04, § 99, ECHR 2009 (extracts)), the existence of a preventive remedy is indispensable for the effective protection of individuals against the kind of treatment prohibited by Article 3 (see also Makharadze and Sikharulidze v. Georgia, no.", "35254/07, §§ 54-55, 22 November 2011). Indeed, the special importance attached by the Convention to that provision requires, in the Court’s view, that the States parties establish an effective mechanism in order to put an end to any such treatment rapidly. 49. In the light of the principles reiterated above, the Court observes that in the present case the Government argued that recourse to the administrative courts was a proper remedy for the applicant’s complaint. It further notes that at the material time the administrative courts were a new judicial institution in Latvia that had been established in 2004 with a view to the judicial review of administrative acts and actions of public authorities.", "The Court is also aware that at the material time the prosecution authorities had general competence to supervise prisons and to protect the rights of detained persons (see Kadiķis v. Latvia (no. 2), no. 62393/00, §§ 29 and 62, 4 May 2006). The entry into force of the Law of Administrative Procedure did not clarify the scope of these remedies. The Court has already found that recourse to the prosecution authorities was not an effective remedy in circumstances where they were aware of the problem of prison overcrowding but failed to act to remedy that situation (see Bazjaks, cited above, §§ 88 to 89).", "Similarly, in the present case the prosecutor’s office was aware of the lack of personal hygiene items for detainees but did not act in any way to remedy the applicant’s situation – his complaint in this connection was merely forwarded to the Prisons Administration. In view of such circumstances and clearly conflicting opinions at the national level (see also the position of the National Human Rights Office noted in paragraphs 16 and 27 above) as concerns the proper domestic remedy for the applicant’s complaint, the Court will examine whether review by the administrative courts at the material time was the appropriate course of action. 50. From the outset, the Court recognises the importance, underlined by the Government, of allowing relatively new remedies to develop, if necessary, through rulings of the State’s higher courts setting aside those of the lower courts. It is nevertheless the case that, in the absence of a specifically introduced remedy, the development and availability of a remedy said to exist, its scope and application must be clearly set out and confirmed or complemented by the domestic courts’ case-law (see, mutatis mutandis, Šoć v. Croatia, no.", "47863/99, §§ 93-94, 9 May 2003; Apostol v. Georgia, no. 40765/02, § 38, ECHR 2006‑XIV; and, most recently, McFarlane v. Ireland [GC], no. 31333/06, § 120, 10 September 2010). Referring to the principles established above (see paragraph 46), the Court would add that the burden of proof in this regard lies with the Government and it is for the Government to submit any pertinent examples of domestic case-law to the Court with a view to demonstrating the scope of a newly established remedy and its application in practice. 51.", "Turning to the circumstances of the present case, the Court acknowledges that at the time of lodging of the present application with the Court, the administrative courts in Latvia had been operating for more than one year. To meet the burden incumbent on the Government to prove the effectiveness of the newly established remedy in theory and practice, they submitted information about one ruling of the Administrative Department of the Supreme Court, namely, the decision in the Stāmers case. According to the information provided by the applicant, which was not contested by the Government, the ruling in the Stāmers case was the first decision recognising the administrative courts’ competence to review detainees’ complaints about the conditions of their detention and introducing for that purpose the “significant interference” test. Regrettably, the Court has not been furnished with a copy of that decision or any other relevant ruling showing that conditions of detention fall within the notion of “the action of a public authority” (see paragraph 25 above) to which the administrative courts’ review extends. It appears that the application of this notion in practice was not uniform among the administrative courts at the material time and that this problem prompted the Supreme Court to examine the existing domestic practice (see paragraph 28 above).", "Furthermore, it remains uncertain which complaints would satisfy “the significant interference” test as developed by the administrative courts to be accepted for review and whether that test is similar or equal to that of the “minimum level of severity” as developed by the Court in relation to Article 3 of the Convention. The Court would add, in this respect, that it is not for the Convention organs to cure on their own motion any shortcomings or lack of precision in the respondent Government’s submissions (see Bazjaks, cited above, § 133). 52. Thus it remains highly unclear if the administrative courts at the time of lodging of the present application and in any event at least until 15 June 2006 examined detainees’ complaints about the conditions of their detention, as evidenced by the lower administrative courts in the Stāmers case. 53.", "Taking into account the aforementioned, the Court considers that the Government have not discharged the onus on them to convince the Court that an application to the administrative courts to complain about conditions of detention was a remedy accessible in practice to detainees such as the applicant. It therefore dismisses the Government’s preliminary objection in this regard. 2. Abuse of the right of application (a) The parties’ submissions 54. In their additional observations, the Government relied on the Court’s decision in the case of Bock v. Germany (no.", "22051/07, 19 January 2010) to argue that in view of “the petty nature of the applicant’s complaint” it had to be rejected as an abuse of the right of application. 55. The applicant disagreed and added that the complaint in the present case could not be regarded as trivial, contrary to the circumstances of the case of Bock v. Germany. (b) The Court’s assessment 56. The Court notes that the decision in the Bock case was taken in the particular circumstances of that case (where the applicant complained of the length of civil proceedings that he had instituted for reimbursement of the cost of a dietary supplement, the sum claimed being 7.99 euros (EUR)).", "The Court considers that the applicant’s complaint in the present case cannot be considered as being “petty”. It concerns a complaint about the conditions of his detention and raises issues under Article 3 of the Convention. 57. In view of above, the Court dismisses the Government’s preliminary objection in this regard. 3.", "Conclusion on admissibility 58. Having established that the application cannot be struck off of its list of cases and having rejected the preliminary objections raised by the Government, the Court notes that the application is not inadmissible on any other grounds. It must therefore be declared admissible. C. Merits 1. The parties’ submissions 59.", "The Government submitted that the applicant’s statements about the conditions of his detention were not supported by any evidence and that the standard of proof “beyond reasonable doubt” had not been met. 60. In their view, the detention conditions in cell no. 26 in Valmiera Prison had not been ideal, but referring to their version of facts (see paragraph 10 above) they contented that the conditions of the applicant’s detention had not attained the minimum level of severity within the meaning of Article 3 of the Convention. 61.", "In so far as the complaint concerned the lack of personal hygiene products, the Government added that the applicant could have and, indeed, had bought these products himself. The Government relied in this regard on a record of the applicant’s purchases in the prison shop, which showed that on 5 September 2005 the applicant had bought two bars of soap and a tube of toothpaste. 62. The applicant pointed out that the Government’s version of facts was not supported by sufficient evidence. The Government had not provided a plan of cell no.", "26 showing the separation of the toilets from the rest of the cell or evidenced that a large, clean and transparent window had provided access to daylight. Nor had there been any evidence concerning the presence of sufficient artificial light or ventilation. The same applied to the numbers indicating available space per detainee in cell no. 26. It remained the applicant’s submission that the toilets had not been separated off from the rest of the cell and that they had released an unbearable smell and that the ventilation system had not worked.", "63. The applicant maintained that he had not been provided with a toothbrush, toothpaste or toilet paper and that he had been unable to keep up his personal hygiene in detention. Even if he had been able to buy some (but not all) of the basic personal hygiene products on 5 September 2005, he had not received any from the prison authorities. The applicant additionally relied on the parties’ submissions in the Peers case to argue that the possibility for a detainee to obtain toiletries and toilet paper from another source did not absolve the respondent State from its responsibility under the Convention (see Peers v. Greece, no. 28524/95, § 64, ECHR 2001‑III).", "64. Together with their additional observations, the Government submitted an inventory plan of cell no. 26. They stated that inventory plans by definition did not indicate minor structures, such as a partition separating the toilet from the rest of the cell. 65.", "The Government noted that the conditions of detention in the above-cited Peers case could not be compared to those in Valmiera Prison. In the present case, the applicant had not been detained in “claustrophobic” conditions or in an overcrowded cell. The Government was not in a position to refer to any conclusions made by independent monitoring bodies, because such bodies had never visited Valmiera Prison. They maintained, however, that there had been enough natural and artificial light in the cell, that the ventilation system had been functioning and that the toilets had been separated off from the rest of the cell. 66.", "Finally, the Government argued that the lack of a toothbrush, toothpaste and toilet paper could hardly be seen as raising an issue under Article 3 of the Convention, especially given that the applicant could have purchased these products in the prison shop. 67. In reply to the Government’s additional observations, the applicant stressed that there was still no evidence concerning the number of detainees who had been held in cell no. 26 at the material time. 2.", "The Court’s assessment (a) General principles 68. From the outset, concerning the facts that are in dispute, the Court reiterates its jurisprudence confirming the standard of proof “beyond reasonable doubt” in its assessment of evidence. A “reasonable doubt” is not a doubt based on a merely theoretical possibility or raised in order to avoid a disagreeable conclusion, but a doubt for which reasons can be drawn from the facts presented. The proof of treatment contrary to Article 3 of the Convention may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Farbtuhs v. Latvia, no. 4672/02, § 54, 2 December 2004).", "In this context, the conduct of the parties when evidence is being obtained has to be taken into account. 69. Furthermore, 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 (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000‑XI, and Valašinas v. Lithuania, no. 44558/98, § 102, ECHR 2001‑VIII).", "When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the applicant’s specific allegations (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001‑II; Kalashnikov v. Russia, no. 47095/99, § 102, ECHR 2002-VI; and Ostrovar v. Moldova, no. 35207/03, § 80, 13 September 2005). 70.", "The Court has also held that the absence of an adequate supply of personal hygiene products in prison, such as toilet paper, may raise an issue under Article 3 of the Convention in itself (see Valašinas, cited above, § 104) or in combination with other factors (see Karalevičius v. Lithuania, no. 53254/99, § 40, 7 April 2005, and Bazjaks v. Latvia, no. 71572/01, § 116, 19 October 2010). (b) Application of these principles to the present case 71. The Court observes that the applicant’s complaint relates to the conditions of his detention in Valmiera Prison for nearly five months.", "It relates, in particular, to the lack of personal hygiene products and to the allegation that the toilets were not separated from the rest of the cell. 72. The parties hold divergent views in relation to whether or not the lack of hygiene products attained the threshold of the “minimum level of severity” required to fall within the scope of Article 3 of the Convention. The Court is thus required, firstly, to establish the conditions of the applicant’s detention in Valmiera Prison at the material time and, secondly, to analyse whether they reached the level of severity required for Article 3 of the Convention. 73.", "First of all, the Court notes, on the one hand, that it is common ground between the parties that the applicant did not receive basic personal hygiene products, such as a toothbrush, toothpaste and toilet paper, from the prison authorities from 19 May 2005 until October 2005. On the other hand, the parties are in disagreement about other characteristics of the detention conditions in cell no. 26 in Valmiera Prison – in particular, as regards the applicant’s allegation that the toilets were not separated from the rest of the cell. 74. The Court notes that the applicant’s account in this latter regard is not only clear and concordant, it is also consistent with the conclusions of the national human rights monitoring body, which had visited Valmiera Prison at the material time (see paragraph 27 above), and with the CPT’s conclusions concerning other prisons in Latvia (see paragraph 18 above), which evidence the fact that in the Latvian prison system it has been quite common for toilets not to be partitioned off from other cell areas.", "In such circumstances, the burden of proof rests on the Government to prove the contrary in the instant case. The Government’s failure to present convincing evidence that would overturn the applicant’s submissions, for example by submitting a full report or recommendations and conclusions made by the National Human Rights Office in 2005 concerning Valmiera Prison or any other similar report (for example, a report drawn up by the Prisons Administration, see the above-cited Bazjaks case, § 102), allows the Court to draw negative inferences. Moreover, the lack of any legal standards at the domestic level on the issue of partitioning off of toilets at the material time further supports the applicant’s allegation, even more so in the light of subsequent legislative developments (see paragraphs 22 and 23 above). Taking into account the above-mentioned considerations, the Court finds it established “beyond reasonable doubt” that the toilets in the applicant’s cell were not partitioned off from the rest of the cell. 75.", "Turning to the second point in its analysis, the Court finds that the lack of personal hygiene products in detention for nearly five months is incompatible with respect for human dignity. The applicant was unable to keep up his personal hygiene on a daily basis for a prolonged period and he constantly felt dirty and humiliated. This clearly caused distress and hardship of a level that goes beyond the suffering inherent in detention. Moreover, the domestic authorities’ failure to provide these products contravened international standards (see paragraphs 18 and 20 above) and domestic law (see paragraph 21 above). In any event, the possibility for the applicant to buy such items in the prison shop or otherwise receive them did not absolve the Government from its obligations under the Convention, amongst which is the obligation to ensure that persons are detained in conditions which are compatible with respect for their human dignity.", "76. In such circumstances, the domestic authorities’ dismissive attitude – plainly refusing the applicant’s legitimate request to be provided with personal hygiene products – is even more unacceptable. Such unwarranted refusal applied to persons in custody inevitably contributes to feelings of subordination, total dependence, powerlessness and, consequently, humiliation. The Court highlights in this connection that it is incumbent on the respondent Government to organise its penal system in such a way as to ensure respect for the dignity of detainees, which failure the Government cannot justify by the lack of resources (see Bazjaks, cited above, § 111). 77.", "The Court further notes that it has established to the required standard of proof that in the applicant’s cell, which he shared with at least seven other detainees, toilets were not separated from the rest of cell. The applicant therefore had to use the toilet in the presence and vision of several other detainees and be present and himself witness when the toilet was being used by them. 78. The Court holds the opinion that the above mentioned detention conditions diminished the applicant’s human dignity and aroused in him feelings of anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical or moral resistance. The Court notes, in this connection, that the absence of an intention of humiliating or debasing the applicant on the part of the domestic authorities cannot exclude a finding of a violation of Article 3 of the Convention (see Peers, cited above, § 74, and Kalashnikov, cited above, § 101).", "79. The above factors are sufficient for the Court to conclude, without exploring other aspects of the complaint, that the conditions in which the applicant was held in Valmiera Prison reached the threshold of severity required under Article 3 of the Convention and that there has been a violation of that provision. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 80. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 81. The applicant claimed 5,000 Latvian lati (approximately EUR 7,114) in respect of non-pecuniary damage. He submitted that the violation of his Convention rights had entailed serious detriment to his physical and mental well-being and had caused him to suffer a substantial degree of anxiety and distress. 82. The Government considered the applicant’s claim exorbitant.", "They submitted that the finding of a violation would constitute adequate compensation in the present case in view of the petty nature of the applicant’s complaint. Alternatively, they considered that any award should not exceed EUR 7,000, the amount awarded in the case of Kadiķis v. Latvia (no. 2) (cited above, § 67). 83. Taking into consideration all the relevant factors, including the period of time spent by the applicant in conditions of detention contrary to Article 3 of the Convention, the Court, deciding on an equitable basis, awards the applicant EUR 7,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.", "B. Costs and expenses 84. The applicant did not lodge any claim under this head. C. Default interest 85. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 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 7,000 (seven thousand euros), 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 applicant’s claim for just satisfaction. Done in English, and notified in writing on 28 February 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliJosep CasadevallDeputy RegistrarPresident [1] Available at: http://www.politika.lv/temas/cilvektiesibas/10018/" ]

[ "FOURTH SECTION CASE OF PREZHDAROVI v. BULGARIA (Application no. 8429/05) JUDGMENT STRASBOURG 30 September 2014 FINAL 16/02/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Prezhdarovi v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Ineta Ziemele, President,Päivi Hirvelä,Ledi Bianku,Nona Tsotsoria,Zdravka Kalaydjieva,Paul Mahoney,Faris Vehabović, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 9 September 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "8429/05) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Rumen Trifonov Prezhdarov, a Bulgarian national, and Mrs Anna Aleksandrovna Prezhdarova, a Russian national, (“the applicants”), on 7 March 2005. 2. The Bulgarian Government (“the Government”) were represented by their Agent, Mr V. Obretenov, of the Ministry of Justice. 3. The Russian Government, having been informed of their right to intervene in the case (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court), did not avail themselves of that opportunity.", "4. The applicants alleged, in particular, that the search of their computer club and the seizure and retention of five computers had been unlawful and unnecessary. They also complained of a lack of domestic remedies in this connection. 5. On 31 May 2011 the application was declared partly inadmissible and the complaints concerning the search, seizure and retention of the computers as well as the lack of domestic remedies were communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Background 6. The applicants were born in 1968 and 1965 respectively and live in Pazardzhik. They are spouses.", "7. On 20 August 2002 the first applicant, as a sole trader, took out a bank loan in order to purchase computers and to set up a computer club. The computer club was situated in a garage owned by the applicants. The second applicant assisted the first applicant in running the club and replaced him when he was absent. 8.", "When he started his business, the first applicant purchased five computers and several computer games, which he installed on the computers. His customers were able to use the computers for one Bulgarian lev (BGN) per hour. 9. As the first applicant was renting the computers to his clients, he was obliged to pay the necessary licensing fees to the distributors of the companies that owned the copyright of the products. However, in 2004 the first applicant failed to renew his contracts with the distributors.", "10. On 3 April 2004 the police conducted a check on the applicants’ premises and warned the first applicant to abstain from illegally reproducing and distributing software. 11. On 9 November 2004 the director of the local sanitation department at the Ministry of Health ordered that the computer club be closed down for health reasons. B.", "The search and seizure of the computers 12. On 31 January 2005 Mr V.E., a manager of a company that distributed computer games, lodged a complaint with the district prosecutor in Pazardzhik. Mr V.E. stated that he had visited the applicants’ computer club on several occasions in the period between September and December 2004. He claimed to have noticed that despite their lack of a software license for reproduction and distribution, the applicants had installed certain types of games on the computers and were renting them to their clients.", "Mr V.E. mentioned specifically some of the games. He also claimed that the applicants had visited his office several times and had been aware of the requirements concerning reproduction and distribution of computer games. Lastly, he claimed that he had warned the applicants about the possible sanctions but had received only threats in response, especially from the second applicant. 13.", "In an order of 2 February 2005 the district prosecutor noted that a complaint had been lodged by Mr V.E. alleging that a crime had been committed under Article 172a § 2 of the Criminal Code of 1968 (see paragraph 32 below). He further observed that there was insufficient information to justify the institution of criminal proceedings. Therefore, relying on section 119(1)(3) of the Judiciary Act 1994 (see paragraph 26 below), he ordered the police to conduct an inquiry into the computer club in order to collect more information as to whether a crime had been committed under Article 172a § 2 of the Criminal Code 1968. The prosecutor stated that when examining the computer club, in the event that the police officers established that software was being used illegally, they should take measures to secure the necessary evidence, including an on‑the‑spot inspection and search and seizure of the computers.", "14. In executing the prosecutor’s order, on 14 February 2005 the police authorities drew up an action plan. A police officer with technological expertise would compare the software installed on the computers with the purchased software. In the event that discrepancies were found, the police would conduct a search and seizure. The operation was planned for 21 February 2005.", "15. At approximately 3.30 p.m. on 21 February 2005 the police, including a police investigator (дознател), arrived at the computer club. The applicants claimed that at that time the computer club had been closed to the public following the order of the Ministry of Health (see paragraph 11 above). They submitted that they had been at the club with some friends and that the cash till had been on because the second applicant had just finished a typewriting job and had been paid for it. 16.", "The police officers noted that the computers were running and that there were people in the club. They explained the aim of the inspection. It appears that the first applicant objected to the possible search and seizure, stating that the police did not have a judicial warrant, and asked for permission to contact a lawyer. The police apparently briefly pointed to the prosecutor’s order of 2 February 2005. The first applicant was allowed to contact his lawyer but, according to the applicants’ submissions, the police refused to wait for the lawyer’s arrival.", "17. The police inspected the receipts from the club’s cash till and the daily sales record and concluded that the applicants had received money that day, most probably for providing commercial services. The police then inspected the applicants’ five computers and found that a number of computer games had been installed on them. The first applicant was invited to present documents, such as purchase invoices or any other evidence of his title to the games. As he failed to do so, the police seized the computers.", "The search-and-seizure operation ended at 6 p.m. 18. The search-and-seizure operation was carried out in the presence of two certifying witnesses. The police drew up a report containing an inventory of the seized items, namely the computers and their content, which consisted of computer programs, computer games and films. The report was signed without comment by the certifying witnesses. The first applicant refused to comment on the report or to sign it.", "19. On 22 February 2005 the police investigator sent a letter to the district prosecutor informing the prosecutor of the results of the operation. She noted that following the search-and-seizure operation, criminal proceedings (a police investigation) had been instituted against the first applicant for illegal reproduction and distribution of software. 20. On the same day, at the request of the police investigator, a District Court judge approved the search-and-seizure operation on the basis of Article 135 § 2 of the Code of Criminal Procedure 1974 (“the 1974 Code”).", "The judge described factually the course of the search-and-seizure operation and briefly cited the text of Article 135 § 2, stressing that there had been pressing circumstances and that an immediate search and seizure had been the only means by which the collection and preservation of the necessary evidence could be undertaken. The decision was sent to the police in order to be enclosed with the case file as an integral part of the search-and-seizure record. 21. On 23 February 2005 the first applicant lodged an application with the District Court, requesting the court not to approve the search‑and‑seizure record and arguing that a search and seizure had not been the only means by which the preservation of evidence could have been undertaken and that there had not been pressing circumstances. The first applicant also claimed that the computers contained letters as well as personal information about friends and clients.", "On 2 March 2005 the application was returned to the applicant as inadmissible as the search and seizure had already been approved by a court decision, which was not subject to appeal. C. Retention of the computers 22. On 25 February 2005 both applicants submitted a request to the prosecutor for the return of the computers. They maintained that the computers contained private correspondence and personal information about themselves and their clients, and were also necessary for their other professional activities, namely providing typewriting services to the public. On 14 March 2005 the district prosecutor refused to return the computers.", "23. The first applicant sought judicial review, arguing again that the computers contained personal information and correspondence with different State entities. In a decision of 15 April 2005 the Pazardzhik District Court upheld the prosecutor’s order. It held that the computers were the subject of an expert examination and were necessary for the investigation. It found irrelevant the assertion that the computers contained personal information.", "24. In June 2005 the first applicant again sought the return of the computers. His request was rejected by the prosecutor and the court on 24 June and 15 July 2005 respectively on the grounds that the computers were necessary for the investigation. The applicant’s assertions that the computers contained personal information and were necessary for his wife’s business were not discussed. In October 2005 the applicant submitted the same request to the prosecutor, who again rejected it.", "The applicant submitted that the prosecutor had never forwarded his ensuing appeal against the rejection to the court. D. The criminal proceedings against the first applicant 25. On 8 November 2005 the first applicant was charged, inter alia, with the unlawful distribution of computer programs, computer games and films. In a final judgment of 22 December 2008 the Supreme Court of Cassation upheld the first applicant’s conviction. It held that the first applicant had lawfully acquired title to the computer games but that he had been distributing them illegally by renting the games to his clients.", "It also held that the first applicant had been illegally reproducing computer programs and films. The court found that the first applicant’s conduct had led to significant damage. He was sentenced to one year and six months’ imprisonment suspended for three years, and ordered to pay a fine in the amount of BGN 4,000. The computers were confiscated. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Search and seizure 26. At the relevant time, if there was some information that a crime had been committed but insufficient evidence to initiate a preliminary investigation, a prosecutor could conduct an inquiry and order the police to undertake certain measures, such as to request documents or objects from individuals or State entities (section 119(1)(3) of the Judiciary Act 1994). The inquiry was not part of the criminal proceedings and its aim was to find sufficient information that a crime had been committed (sections 26-31 of Instruction No. 1 of 22 March 2004 about the work of and cooperation between the investigative authorities).", "27. As for search and seizure within the framework of a preliminary investigation (as part of criminal proceedings), at the relevant time Article 134 § 1 of the Code of Criminal Procedure 1974 (“the 1974 Code”) provided that if there were sufficient grounds to believe that certain premises contained objects or documents which might be relevant to the criminal investigation, the investigative authorities could carry out a search‑and-seizure operation there. Under Article 135 § 1 of the 1974 Code, during the preliminary investigation a search-and-seizure operation could only be carried out pursuant to a warrant issued by a judge of the competent first-instance court. The warrant was to be issued in ex parte proceedings, without notification of or participation by the individuals concerned. An exception to the warrant requirement was only possible in pressing circumstances, in which case a record of the search had to be produced for approval before a judge within twenty-four hours (Article 135 § 2 of the 1974 Code).", "If search and seizure concerned computer systems and programs, it had to be carried out in the presence of a person with technical expertise (Article 136 § 5 of the 1974 Code). The authorities could not undertake measures that went beyond the aim of the search-and-seizure operation (Article 137 § 4 of the 1974 Code). The seizure of computer information was its recording on paper or by other means (Article 137 § 7 of the 1974 Code). Similar provisions are contained in the Code of Criminal Procedure 2005 (Articles 159-163). 28.", "Article 191 § 1 of the 1974 Code provided that in certain cases envisaged by the law, the police could conduct an immediate search‑and‑seizure operation if that would be the only possibility of collecting and securing evidence. In this case, the relevant prosecutor was required to be informed within twenty-four hours. Criminal proceedings were considered as instituted following the drawing up of the search record (Article 191 § 2 of the 1974 Code). Similar provisions are contained in the Judiciary Act 2007 (section 145) and the Code of Criminal Procedure 2005 (Article 212 § 2). B.", "Retention of physical evidence during criminal proceedings 29. Pursuant to the relevant provisions as in force at the material time, physical evidence was kept by the authorities for the duration of the criminal proceedings (Article 108 § 1 of the 1974 Code). Chattels collected as physical evidence could be returned to their owners before the termination of criminal proceedings on condition that their return would not hinder the establishment of the facts in the case. A request for their return was to be submitted to the prosecutor. In the event that the prosecutor refused to return them, the owner had a right to appeal before the court, which then examined the issue in camera (Article 108 § 2 and § 4 of the 1974 Code).", "The 2005 Code of Criminal Procedure contains almost identical provisions (Article 111 §§ 1-4). C. The State and Municipalities Responsibility for Damage Act 1988 (“the 1988 Act”) 30. Section 1(1) of the 1988 Act, as in force at the material time, provided that the State was liable for damage suffered by private individuals as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with the performance of administrative action. According to the Supreme Court of Cassation’s case‑law, the actions of the investigative and the prosecuting authorities in the context of a criminal investigation do not amount to administrative action and those authorities are therefore not liable under section 1 of the Act (тълк. реш.", "№ 3 от 22.04.2005 г. по тълк. д. № 3/2004 г., ОСГК на ВКС). According to the Supreme Administrative Court’s case-law, a search-and-seizure record is not an administrative act and cannot be grounds for seeking damages under the 1988 Act (опр. № 1270 от 1.02.2010 г. по адм.", "д. № 63/2010 г., ВАС). 31. Under section 2 of the 1988 Act, as in force at the relevant time, the criminal investigation and prosecuting authorities and the courts were liable in the following circumstances: unlawful pre-trial detention; charging or conviction followed by discontinuance of the criminal proceedings or acquittal; compulsory admission to hospital or other coercive measures ordered by a court which were later set aside as unlawful; and execution of a sentence exceeding the initial length or amount. This exhaustively enumerated list did not include unlawful search and seizure by the judicial authorities.", "D. Illegal reproduction and distribution of computer programs 32. Article 172a § 2 of the Criminal Code 1968, as in force at the material time, provided for a punishment of up to three years’ imprisonment and a fine from BGN 1,000 to BGN 3,000 for an individual who had reproduced or distributed a video record or a computer program without the legal consent of the copyright owner. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 33. The applicants complained, relying on Article 8, that the search in their garage and the seizure of five computers had not been conducted in accordance with the law.", "They complained, in particular, that private documents contained in the seized computers, which were unrelated to the criminal proceedings against the first applicant, had been caught up in the search-and-seizure operation. Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, they further complained that the authorities had retained the computers during the criminal proceedings against the first applicant, despite the fact that they contained personal information and that the second applicant had been using them for her business activities. They also pointed out that on one occasion the prosecutor had failed to send the applicants’ appeal in this respect to the court. 34.", "The Court considers that the applicants’ complaints fall to be examined solely under Article 8, which provides as follows: “1. Everyone has the right to respect for his private ... life .... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 35. The Government stated that the second applicant could not be considered a victim of the alleged violation of Article 8 because the computers belonged not to her but solely to the first applicant. The Government further submitted that the first applicant had failed to exhaust the relevant domestic remedies because he had not raised his objections to the search-and-seizure operation in the search-and-seizure record (see paragraph 18 above).", "36. The applicants responded that the second applicant was a victim of the alleged violations, and that the Government’s objection in this connection was ill-founded. As for the first applicant’s failure to write down his arguments against the measure, they stated that he had been unable to react immediately to the operation. In any event, he had tried to submit his objections to the judge who examined the record, but to no avail. 37.", "The Court considers that the questions of the second applicant’s victim status and of the exhaustion of domestic remedies are closely related to the merits of the complaint, and therefore joins the Government’s objections to the merits. 38. The Court further considers that the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The parties’ submissions 39. The Government submitted that the interference complained of was justified under Article 8 of the Convention. In their view, it was in accordance with the law and based on a reasonable suspicion that the first applicant had committed an offence, namely that he had been illegally distributing software. The first applicant had not been diligent in conducting his business, as was evident from the fact that he had already been warned by the police once and could have predicted the consequences of his behaviour.", "The Government went on to argue that the interference had the legitimate aim of prevention of crime and maintenance of fair competition. They claimed that the interference was also proportionate: the officers who had carried out the search and seizure had known where to search and what to search for, and the operation had been conducted in the presence of the applicants, a technician and two certifying witnesses. Also, the authorities had carefully listed the seized computers in the search-and-seizure record, retained the computers in accordance with the law and in connection with the ongoing criminal proceedings, and the content of the computers had not been made public. Furthermore, the approval of the record by the court had been an important safeguard and had served as a guarantee for the justification of the measure. Lastly, the Government pointed out that unlike the cases of Iliya Stefanov v. Bulgaria (no.", "65755/01, 22 May 2008), Kopp v. Switzerland (25 March 1998, Reports of Judgments and Decisions 1998-II) and Heino v. Finland (no. 56720/09, 15 February 2011), the search-and-seizure operation had not touched upon any privileged material. 40. The applicants argued that the interference had not been justified under Article 8 of the Convention. In particular, they stated that the prosecutor could have interviewed V.E.", "to verify his statements. They claimed that there had been no reasonable suspicion and therefore no basis for the search-and-seizure operation. In response to the Government’s assertion that the first applicant had already been warned by the police once, the applicants submitted that at that time they had presented all the necessary documents. In their view, the operation had been unlawful because the circumstances had not been pressing: the authorities had planned the operation carefully and could have sought judicial approval beforehand. The subsequent judicial review had been formalistic and had failed to provide any safeguards against abuse, and the applicants had been unable to present their arguments.", "Also, it had not been necessary for the authorities to seize the computers; they could have seized only the computer products by recording them on paper or by some other means. Lastly, the applicants asserted that the computers had been retained without due consideration of the fact that they had contained personal information. 2. The Court’s assessment a) Whether there was an interference 41. It has not been disputed between the parties that the search of the computer club and the seizure and retention of the computers allegedly containing personal information amounted to interference with the first applicant’s right to respect for his “private life” (see Funke v. France, 25 February 1993, § 48, Series A no.", "256-A; Crémieux v. France, 25 February 1993, § 31, Series A no. 256-B; and Miailhe v. France (no. 1), 25 February 1993, § 28, Series A no. 256-C). The Court further notes that the second applicant worked at the club: assisting the first applicant, replacing him when he was absent and also providing typewriting services to the public through the use of the computers in the club.", "Those factual submissions by the applicants were not contested by the Government. Therefore the Court accepts that the second applicant could also claim to be a victim of the alleged violation of Article 8, and the Government’s objection in this respect must be rejected. 42. The Court must therefore examine whether the interference with the applicants’ rights was in conformity with the requirements of the second paragraph of Article 8, in other words whether it was “in accordance with the law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve the aim or aims in question. b) Whether the interference was justified 43.", "The Court notes that the expression “in accordance with the law”, within the meaning of Article 8 § 2 requires firstly that the impugned measure should have some basis in domestic law. Second, the domestic law must be accessible to the person concerned. Third, the person affected must be able, if need be with appropriate legal advice, to foresee the consequences of the domestic law for him, and fourth, the domestic law must be compatible with the rule of law (see, among many other authorities, Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V; Liberty and Others v. the United Kingdom, no. 58243/00, § 59, 1 July 2008; and Sallinen and Others v. Finland, no.", "50882/99, § 76, 27 September 2005). 44. In the present case, assuming that the actions of the police at the applicants’ computer club on 21 February 2005 had some basis in domestic law because Article 191 § 1 of the 1974 Code provided that in certain circumstances the police could conduct search-and-seizure operations (see paragraph 28 above), the Court must examine whether that law was “compatible with the rule of law”. In the context of search and seizure, the domestic law must provide sufficient safeguards against arbitrary interference with Article 8 rights (see Camenzind v. Switzerland, 16 December 1997, § 45, Reports 1997-VIII, and Heino, cited above, §§ 40 and 46). 45.", "As stated above, Article 191 § 1 of the 1974 Code allowed the police to conduct an immediate search-and-seizure operation outside the criminal proceedings if that was the only possibility of collecting and securing evidence. The wording of that provision allowed the police authorities to carry out searches without a prior judicial warrant and essentially gave them the discretion to decide whether the circumstances were pressing. The Court, however, doubts whether the circumstances in the present case were really pressing, given that the prosecutor ordered the said operation three weeks before it was conducted. The authorities received information about the illegal distribution of computer products on 31 January, yet the operation was scheduled for 21 February 2005. Therefore the authorities had enough time to collect more information regarding the alleged criminal conduct, to open criminal proceedings and to submit a prior request to the court.", "46. The Court has considered that in such a situation, the absence of a prior judicial warrant may be counterbalanced by the availability of a retrospective judicial review (see Heino, cited above, § 45, and Smirnov v. Russia, no. 71362/01, § 45, 7 June 2007). It reiterates in this respect that notwithstanding the margin of appreciation which the Court recognises the Contracting States have in this sphere, it must be particularly vigilant where, as in the present case, it appears that the authorities are empowered under national law to order and effect searches without a judicial warrant (see Heino, cited above, § 40). 47.", "The Court thus needs to examine whether the post factum judicial review offered sufficient guarantees that the applicants’ right to respect for their private life was not breached. The Court notes at the outset that the relevant domestic law made no mention of the scope of the judicial examination. Therefore the Court turns to the reasoning offered by the domestic court when approving the operation. It notes in this connection that the court limited its reasoning to describing factually the course of the search-and-seizure operation and briefly citing the text of Article 135 § 2 of the 1974 Code, stressing that there had been pressing circumstances and that an immediate search and seizure had been the only means by which the collection and preservation of the necessary evidence could be undertaken. No additional reasoning as to the lawfulness or justification of the impugned measure was given (see the similar approach in Gutsanovi, cited above, § 223).", "48. The Government did not assert that the applicants had any other opportunities to have the lawfulness and the justification of the impugned measure reviewed by a court (see Gutsanovi, cited above, § 223). 49. Furthermore, the Court notes that following the seizure, the applicants complained several times, asserting that the computers contained personal information and requesting their return. The Court observes that the scope of a search-and-seizure operation is a relevant factor to be taken into account when deciding whether the impugned measure met the requirements of Article 8 (see Iliya Stefanov, cited above, § 38).", "The Court cannot speculate on the existence of personal information on the computers but notes that on no occasion did the domestic authorities take account of the applicants’ complaint in this connection: the court that approved the measure did not consider the scope of the operation and did not make a distinction between information which had been necessary for the investigation and information which had not been relevant; during the investigation the applicants requested the return of the computers, arguing that they contained personal information, but neither the prosecutor nor the relevant courts scrutinised that assertion (see paragraphs 22-24 above). While the Court accepts that, as a matter of principle, the retention of the computers for the duration of the criminal proceedings pursues the legitimate aim of securing physical evidence in an ongoing criminal investigation (see, mutatis mutandis, Atanasov and Ovcharov v. Bulgaria, no. 61596/00, § 70, 17 January 2008), the lack of any consideration of the relevance of the seized information for the investigation and of the applicants’ complaint regarding the personal character of some of the information stored on the computers rendered the judicial review formalistic and deprived the applicants of sufficient safeguards against abuse. 50. In conclusion, the Court finds that the lack of clear rules regarding the scope of the judicial review in such a situation, combined with the lack of any meaningful review of the lawfulness of and the justification for the measure, rendered the post factum judicial review ineffective for the purposes of the protection of the applicants’ rights as guaranteed by Article 8 of the Convention.", "Moreover, while it is true, as the Government pointed out, that the applicants did not enter any objections in the search‑and-seizure record, such an omission on their part did not relieve the domestic court from its obligation to provide a meaningful judicial scrutiny of the search and seizure, especially when subsequently the applicants made numerous complaints concerning the personal character of parts of the retained information. Therefore the Government’s objection for non‑exhaustion of domestic remedies must be rejected. 51. Bearing in mind the above, the Court is of the view that even assuming that there exists a general legal basis in Bulgarian law for the impugned measure, the applicants in the present case were not offered sufficient guarantees for their right to respect for their private life before or after the search-and-seizure operation (see Gutsanovi, cited above, § 226). In these circumstances the Court finds that the interference with the applicants’ right to respect for their private life was not “in accordance with the law” as required by Article 8 § 2 of the Convention.", "Consequently, the Court need not examine whether the impugned measure had a legitimate aim and was proportionate. 52. Having considered all of the above, the Court concludes that there has been a violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 IN RELATION TO ARTICLE 8 OF THE CONVENTION 53.", "The applicants complained that they had been denied effective remedies for their complaints under Article 8 regarding, in particular, the search and seizure at the computer club and the retention of five computers. The applicants relied on Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 54. The Government contested that argument. They stated that the search of the computer club and the seizure and retention of five computers had been subject to judicial scrutiny. The applicants submitted that the court’s review both of the search-and-seizure operation and of the retention of the computers could not be regarded as an effective remedy for the grievances raised under Article 8 because it had been very formalistic.", "55. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 56. Having regard to its findings under Article 8, the Court considers that it is not necessary to examine separately whether there has been an additional violation of Article 13 (see Heino, cited above, § 55). III.", "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. In respect of pecuniary damage, the applicants claimed 18,066 euros (EUR): EUR 4,000, which they had to return to the bank (see paragraph 7 above); EUR 4,125, which was the value of the five computers; EUR 1,366, which was the value of the computer software; and EUR 8,575 in loss of profit. 59.", "The first applicant claimed a further EUR 15,000 and the second applicant claimed EUR 5,000 in respect of non-pecuniary damage. 60. The Government contested the claims as exorbitant and speculative. 61. Concerning the claim for pecuniary damage, the Court does not discern a sufficient causal link between the violation found and the pecuniary damage alleged.", "It therefore rejects this claim. Concerning the claim for non-pecuniary damage, the Court accepts that the applicants have suffered distress and frustration resulting from the manner in which the search and seizure were carried out. Ruling on an equitable basis, it awards jointly to the applicants the sum of EUR 3,000, plus any tax that may be chargeable. B. Costs and expenses 62.", "The applicants also claimed EUR 800 in lawyer’s fees for the first applicant’s representation before the domestic courts during the criminal proceedings against him and EUR 174.90 in postage and translation costs. In support of their claim they presented contracts for legal representation and receipts. 63. The Government contested those claims as excessive. 64.", "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 considers that the amount claimed for lawyer’s fees in the domestic proceedings against the first applicant cannot be regarded as having been necessary to prevent or redress the violations found, and rejects this claim. As for the postage and translation expenses, regard being had to the documents produced, the Court considers that they have been actually and necessarily incurred and awards the applicant EUR 174.90 in that respect. C. Default interest 65. 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. Joins to the merits the Government’s objections about the lack of victim status of the second applicant and of non-exhaustion of domestic remedies and declares, by a majority, the remainder of the application admissible; 2. Holds, by six votes to one, that there has been a violation of Article 8 of the Convention and dismisses in consequence the Government’s objections; 3. Holds, unanimously, that there is no need to examine separately the complaint under Article 13 in relation to Article 8 of the Convention; 4. Holds, by six votes to one, (a) that the respondent State is to pay jointly to the two 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 Bulgarian levs 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 174.90 (one hundred and seventy-four euros and ninety cents), plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses, unanimously, the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 30 September 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıIneta Ziemele Deputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge F. Vehabović is annexed to this judgment. I.Z.F.A. DISSENTING OPINION OF JUDGE VEHABOVIĆ I regret that I have been unable to agree with my colleagues that there has been a violation of Article 8 of the Convention in the present case.", "I am not persuaded that there is sufficient factual grounding to hold that the applicant’s right to “home” and “private life”, in the terms of Article 8, has been violated. When the first applicant (assisted by the second) opened an internet club in his garage, he rented computers to his clients and paid the necessary licensing fees to the distributors of the companies which owned the relevant copyrights until 2004, when he failed to renew his contracts with the distributors. On 3 April 2004 the police conducted a check on the applicants’ premises and warned the first applicant to abstain from illegally reproducing and distributing software. The applicant failed to abstain and continued to illegally reproduce and distribute software. In consequence, the police conducted a search-and-seizure operation at the internet club.", "The police seized five computers containing illegally used software. On 8 November 2005 the first applicant was charged, inter alia, with the unlawful distribution of computer programs, computer games and films. That judgment was upheld at final instance on 22 December 2008 by the Supreme Court of Cassation, which concluded that the first applicant had lawfully acquired title to the computer games but that he had been distributing them illegally by renting the games to his clients. It also held that the first applicant had been illegally reproducing computer programs and films. The court found that the first applicant’s conduct had resulted in significant damage.", "He was sentenced to one year and six months’ imprisonment, suspended for three years, and ordered to pay a fine of BGN 4,000. The computers were confiscated. Both applicants requested on several occasion that the confiscated computers be returned, but their requests were dismissed. In their complaints to this Court, the applicants relied on Article 8, alleging that the search of their garage and the seizure of five computers had not been conducted in accordance with the law and, in particular, that private documents contained in the seized computers, and which were unrelated to the criminal proceedings against the first applicant, had been caught up in the search-and-seizure operation. I dissent from the majority for the following reasons: Article 8 is not applicable to the facts of the case.", "The first applicant was charged and sentenced for illegal use of software installed on the confiscated computers. Both applicants submit that the confiscated computers contained personal data. It is well known that a computer is made up of hardware and software. Hardware without software is a merely a box and cannot contain personal data as alleged by the applicants. The applicants did not specify which kind of software contains their personal data, and whether it was legally or illegally installed on the computer.", "That omission renders their allegation in relation to the scope of Article 8 completely unsubstantiated and unsupported by the necessary details, crucial for the applicability of Article 8 of the Convention. Furthermore, bearing in mind that the first applicant was sentenced for illegal use of software, it appears that through his request for return of the confiscated computers (together with software installed on them), he is in fact seeking to regain possession of intellectual property acquired by committing a criminal act. In any democratic country it would be unprecedented that property acquired as a result of a criminal act be returned to a convicted person, even if that property contained personal data, in order to satisfy the requirements of Article 8 under the concepts of “home” or “private life”. Moreover, the confiscated computers were used in the applicants’ internet club. These computers were used by visitors to the club.", "I even assume that the personal data on the computers were available to visitors (if not, the applicants did not specify this in their submission). A question arises: can we consider data as personal for the purposes of the Article 8 if it was previously accessible to everyone with the consent of the owner of that personal data? Finally, as mentioned above in regard to the difference between hardware and software, the only possible way to deal with this case was primarily from the perspective of Article 1 of Protocol No. 1 and possibly Article 6. I consider that the applicants are entitled to request repossession of their property, except for that acquired by a criminal act.", "Any omission regarding the legality of the search-and-seizure operation on the Government’s part may fall under Article 6 and Article 1 of Protocol No. 1, but not under Article 8 of the Convention in these particular circumstances." ]

[ "THIRD SECTION CASE OF SOLOVEY v. RUSSIA (Application no. 24157/11) JUDGMENT STRASBOURG 25 April 2017 This judgment is final but it may be subject to editorial revision. In the case of Solovey v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Luis López Guerra, President,Dmitry Dedov,Branko Lubarda, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 28 March 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 24157/11) 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 Belarusian national, Mr Denis Aleksandrovich Solovey (“the applicant”), on 18 April 2011.", "2. The applicant was represented by Ms N. Yermolayeva, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. On 30 August 2016 the complaint concerning the belated examination of the applicant’s statements of appeal against two detention orders 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 THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1982 and was detained in Moscow until his extradition to Belarus. 5. On 10 September 2010 the applicant was arrested in Moscow pursuant to an extradition request from the Belarus authorities. On the following day the Dorogomilovskiy District Court of Moscow ordered his detention.", "6. The applicant’s detention was subsequently extended by judicial orders on several occasions, in particular, on 28 February and 2 June 2011. Both the applicant and his lawyer lodged their statements of appeal against these detention orders with the Moscow City Court, which upheld them on appeal on 11 April and 18 July 2011, respectively. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 7.", "The applicant complained that the appeal review of the detention orders of 28 February and 2 June 2011 had been excessively long in breach of the “speediness” requirement of 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. The Government request for the case to be struck out under Article 37 of the Convention 8. On 13 December 2016 the Government submitted a unilateral declaration inviting the Court to strike the case out of its list. They acknowledged that the appeal review of the detention orders of 28 February and 2 June 2011 had been excessively long and offered to pay the applicant a sum of money as just satisfaction. 9.", "By his letter of 30 January 2017 the applicant rejected the Government’s offer. He disagreed, in particular, with the amount of the proposed compensation. 10. Having studied the terms of the Government’s declaration, the Court is satisfied that the Government have acknowledged that the appeal proceedings against the detention orders in the applicant’s case fell short of the standard of “speediness” of judicial review under Article 5 § 4 of the Convention. However, the amount of compensation appears to be lower than what the Court generally awards in cases featuring complaints about belated judicial review of detention (see Martins O’Neill Pedrosa v. Portugal, no.", "55214/15, 14 February 2017; Manerov v. Russia, no. 49848/10, 5 January 2016; Šablij v. Slovakia, no. 78129/11, 28 April 2015; Akhadov v. Slovakia, no. 43009/10, 28 January 2014). Without prejudging its decision on the admissibility and merits of the case, the Court considers that the declaration does not provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the case.", "11. For the above reasons, the Court rejects the Government’s request to strike the case out of its list under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the complaint (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 75, ECHR 2003‑VI). B. Admissibility 12. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. C. Merits 13. The Court recalls that it has already found a violation of Article 5 § 4 of the Convention in a number of cases against Russia, where, for instance, the proceedings by which the lawfulness of applicants’ detention was decided lasted thirty-four (see Manerov v. Russia, no. 49848/10, §§ 43-47, 5 January 2016), twenty-seven (see Pichugin v. Russia, no.", "38623/03, §§ 154-56, 23 October 2012), twenty (see Butusov v. Russia, no. 7923/04, §§ 32-35, 22 December 2009) or twenty-six days (see Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006), stressing that their entire duration was attributable to the authorities. 14. In the present case it took the Russian courts forty-two and forty-six days to examine the applicant’s statements of appeal against detention orders of 28 February and 2 June 2011, respectively.", "The Government did not put forward any arguments explaining these delays. Moreover, the Court does not lose sight that they acknowledged that the delays in the examination of the applicant’s appeals ran counter to the requirements of Article 5 § 4 of the Convention. 15. Having regard to the above, the Court considers that the appeal proceedings on review of the lawfulness of the applicant’s detention did not comply with the “speediness” requirement under Article 5 § 4 of the Convention. There has accordingly been a violation of that provision.", "II. 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 the case‑law cited above, the Court awards the applicant 2,500 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable. 18.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Rejects the Government’s request to strike the application out of its list of cases under Article 37; 2. Declares the application admissible; 3. Holds that there has been a violation of Article 5 § 4 of the Convention concerning the excessive length of the judicial review of the applicant’s detention; 4.", "Holds (a) that the respondent State is to pay the applicant, within three months, EUR 2,500 (two thousand five hundred euros) in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 25 April 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıLuis López GuerraDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF WINGRAVE v. THE UNITED KINGDOM (Application no. 40029/02) JUDGMENT (Friendly settlement) STRASBOURG 29 November 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 Wingrave v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: MrJ. Casadevall, President,SirNicolas Bratza,MrM.", "Pellonpää,MrR. Maruste,MrS. Pavlovschi,MrJ. Borrego Borrego,MrJ. Šikuta, judges,and Mrs F. Elens- Passos , Deputy Section Registrar, Having deliberated in private on 8 November 2005 Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 40029/02) 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, Mrs Alberta Pamela Wingrave (“the applicant”), on 28 October 2002. The applicant died on 3 July 2005 and the executors for her estate continued with the application. 2. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott.", "3. The applicant complained under Article 6 § 1 of the Convention about the delays in the procedures for deciding her claim for disability allowances. 4. On 18 May 2004, after obtaining the parties’ observations, the Court declared the application admissible in so far as this complaint is concerned. 5.", "On 24 May 2005, 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 9 June 2005 and 23 September 2005 the Government and the executors for the applicant’s estate respectively submitted formal declarations accepting a friendly settlement of the case. THE FACTS 6. The applicant was born in 1936 and lived in Exeter. 7.", "The applicant submitted a claim to the Benefits Agency for disability living allowance (DLA) on 21 December 1995 and an adjudication officer made a lifetime award on 5 February 1996. Following a review of the award on 4 November 1997, the applicant’s entitlement to DLA was removed as of 20 October 1997. The case came before the Disability Appeal Tribunal (DAT) three times and the first two decisions were set aside by the Social Security Commissioner on the grounds that they were erroneous in law. The third hearing before the DAT took place on 17 July 2002. The applicant did not appeal further.", "THE LAW 8. On 9 June 2005 the Court received the following declaration from the Government: “I, Ms Emily Willmott, Agent of the Government of the United Kingdom, declare that the Government of the United Kingdom offer to pay ex gratia the sum of GBP £4,500 (four thousand five hundred sterling pounds) to Mrs Alberta Pamela Wingrave with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights. This sum is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, and it will be payable within three months from the date of notification of the judgment by the Court pursuant to Article 39 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The 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.” 9. On 23 September 2005 the Court received the following declaration signed by one of the executors for the applicant’s estate: “I, Mrs Alberta Pamela Wingrave, note that the Government of the United Kingdom are prepared to pay me ex gratia the sum of GBP £4,500 (four thousand five hundred sterling pounds) with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights. This sum is to cover any pecuniary and non-pecuniary damage as well as costs and expenses and will be payable within three months from the date of notification of the judgment by the Court pursuant to Article 39 of the European Convention on Human Rights. 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. I accept the proposal and waive any further claims against the United Kingdom in respect of the facts of this application.", "I declare that this constitutes a final resolution 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 judgment.” Signed by Peter S. Hughes, Executor for the applicant who died on 3 July 2005. 10. 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). 11. 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 29 November 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosJosep Casadevall Deputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF FARKAS v. HUNGARY (Application no. 4968/10) JUDGMENT STRASBOURG 23 June 2015 This judgment is final but it may be subject to editorial revision. In the case of Farkas v. Hungary, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Helen Keller, President,András Sajó,Robert Spano, judges, and Abel Campos, Deputy Section Registrar, Having deliberated in private on 2 June 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 4968/10) 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 László Farkas (“the applicant”), on 18 January 2010.", "2. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice. 3. On 20 February 2014 the complaint concerning the length of the proceedings was communicated to the Government and the remainder of the application was declared inadmissible. THE FACTS 4.", "The applicant initiated a payment warrant procedure for repayment of debts on 21 July 1997 which, by the protest of the debtor, developed into court proceedings. 5. The procedure was suspended on 16 April 1999 due to other pending court proceedings, which ended in July 2003. 6. Subsequently, after several hearings, the first-instance court partly found for the applicant on 21 December 2003.", "7. On appeal, the Budapest Regional Court quashed the decision and remitted the case on 10 March 2005. 8. In the resumed proceedings, after the transfer of the case from one court to another for reasons of jurisdiction, the Budapest IV/XV District Court partly found for the applicant on 23 November 2007. 9.", "On appeal, the second-instance court found for the applicant on 25 September 2008. 10. In review proceedings, the Supreme Court upheld this decision on 14 May 2009. Its ruling was served on the applicant on 27 August 2009. 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 of Article 6 § 1 of the Convention. 12. The Government contested that argument. 13.", "The period to be taken into consideration began on 21 July 1997. It thus lasted over eleven years and eight months for three levels of jurisdiction. In view of such lengthy proceedings, this complaint must be declared admissible. 14. 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, among many other authorities, Frydlender v. France [GC], no.", "30979/96, § 43, ECHR 2000-VII). 15. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present circumstances. Having regard to its case-law on the subject, the Court 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.", "16. Relying on Article 41, the applicant claimed 9,000 euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage. 17. The Government contested these claims. 18.", "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 must have sustained some non-pecuniary damage. Ruling on the basis of equity, it awards him EUR 5,400 under that head. 19. The applicant also claimed EUR 1,500 for the costs and expenses incurred before the Court.", "20. The Government contested this 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 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 applicant, who was not represented by a lawyer, the sum of EUR 500 for all costs incurred.", "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 5,400 (five thousand four hundred 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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 23 June 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel CamposHelen KellerDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF SKIBIŃSCY v. POLAND (Application no. 52589/99) JUDGMENT STRASBOURG 14 November 2006 FINAL 26/03/2007 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 Skibińscy 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 Mrs F. Elens-Passos, Deputy Section Registrar, Having deliberated in private on 24 October 2006, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1.", "The case originated in an application (no. 52589/99) 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 two Polish nationals, Ms Urszula Skibińska and Mr Henryk Skibiński (“the applicants”), on 2 March 1999. 2. The applicants, who had been granted legal aid, were represented by Mr W. Hermeliński, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agents, Mr K. Drzewicki and, subsequently, by Mr J. Wołąsiewicz.", "3. The applicants alleged that their right to the peaceful enjoyment of their property had been breached since the land they owned had been designated for expropriation at some undetermined future date. As a result, they had been refused final construction permits and under domestic legislation were not entitled to any compensation for this interference with their ownership. 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. By a decision of 2 September 2004, the Court declared the application admissible. 6. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1).", "Subsequently, this case was assigned to the newly composed Fourth Section (Rule 52 § 1). 7. The parties replied in writing to each other’s observations. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8.", "The applicants owned a number of plots of land located in Częstochowa, on Wręczycka Street. 9. In 1979 a local land development plan was adopted under which a local health centre was to be built on their land. However, this plan was not implemented and apparently the land was later designated for the construction of small individual houses. 10.", "In 1991 the applicants requested the municipal authorities to reclassify their land so that it could be used for construction purposes. In December 1991 they were granted an initial approval for a development project on their land (decyzja o warunkach zabudowy). In June 1992 they obtained a permit under Article 10 of the Land Administration and Expropriation Act 1985 to divide their plot, which was listed in the local land register as plot no. 1/1, into 15 smaller plots suitable for the construction of individual houses (decyzja o zatwierdzeniu projektu podzialu nieruchomości). 11.", "In 1994 the Częstochowa Municipal Council announced that it was intending to adopt a new land development plan under which part of the applicants’ property was to be used for the construction of a major roadway. On 17 October 1994 the applicants lodged their objections against the proposed amendments. On 27 October 1994 the amendments were adopted by the Council. The applicants’ objections were not taken into consideration. 12.", "On 28 November 1994 the applicants requested that final construction permits (zezwolenie na budowę) be granted to them in respect of certain plots on the basis of the decisions given in 1991 and 1992 (see paragraph 10 above). 13. In June 1995 the local State administration obliged the City Hall to draw up a financing plan for local infrastructure investments, including the road network, and to fix time-limits for the purchase from their owners of plots necessary for the implementation of the plans. 14. On 4 September 1995 the applicants requested the City Hall to amend further the local plan as amended in 1994 by providing that the projected roadway would, instead of 40, be 18 metres wide, as provided for in the 1991 and 1992 decisions allowing their property to be divided into smaller construction plots.", "15. In a letter to the City Hall of 6 September 1994, communicated to the applicants for information, the Częstochowa Governor stated that the construction of the roadway would not be provided for in the financing scheme for the local land development plan until at least 2010. Therefore, no purpose was served by blocking the development of the properties concerned. 16. Subsequently, in 1995 the local municipality informed the public that it would start proceedings in order to amend the 1979-1994 land development plan in its part concerning the projected roadway.", "17. On 8 August 1996 the applicants submitted a request to obtain a final construction permit for their plot no. 1/9 on Wręczycka Street. Those proceedings were subsequently stayed, the authorities considering that no decision could be given before the changes to the development plan had been adopted. 18.", "In early 1997 the local municipality made public the proposed amendments to that plan. In April 1997 the applicants lodged their objections against them. 19. On 23 April 1997 the applicants asked the Mayor when the Town Council would discuss the new amendments to the plan. 20.", "On 16 June 1997 they were informed that the Town Council would discuss the amendments to the plan at its session to be held on 19 June 1997, but that it would most likely decline to make any changes to it. 21. On 19 June 1997 the Council decided not to make any changes to the 1979-1994 plan as proposed by the applicants and other persons who had lodged objections against the amendments. It was observed that the proposed changes had resulted in a number of objections being lodged by the owners of properties concerned. It was impossible to reconcile all of the conflicting interests.", "It was further acknowledged that the proposed amendments to the plan would free some of the applicants’ plots. However, on the whole, and having regard to the number of serious objections against the changes, it was not considered feasible to amend the plan accordingly. In particular, it would not have been feasible to build the projected roadway if it were to be only 18 metres wide, as had been proposed inter alia by the applicants. Moreover, had the plan been amended, the municipality would have incurred substantial expenditure for the purchase of plots which would have to be used for the construction of the roadway. It was further noted that the local investment plan did not provide for the construction of the road to begin before 2010.", "Nevertheless, it would be premature to give up the construction, since there remained a possibility that the necessary funds might eventually be secured from the European Union funds. 22. The applicants lodged a complaint against this decision with the Supreme Administrative Court. The court rejected their complaint as it was still open to them to have recourse to a remedy provided by local government legislation, namely requesting the Town Council to bring its actions into conformity with the law. The applicants accordingly did so.", "23. On 2 December 1997 the Town Council refused the applicants’ request. 24. On an unspecified later date the applicants’ request for the final construction permits for their plots was dismissed, regard being had to the fact that these plots were in the vicinity of the projected road. 25.", "The applicants lodged a complaint with the Supreme Administrative Court against the municipality’s failure to adopt changes to the local development plan. They argued that under the 1979-1994 land development plan they could not use their property in accordance with their wishes. Their requests to obtain final construction permits had been refused. The local investment plans did not provide for any work in connection with the construction of the roadway to be carried out before 2010 at the earliest and until then they were be prevented from making use of their property. Therefore, they had to bear an intolerable burden in that the local municipality had adopted the plan to build a roadway which would necessitate their expropriation at some undetermined time in the future.", "However, that plan could not be implemented in the foreseeable future because of lack of financial resources. 26. On 23 July 1998 the Supreme Administrative Court dismissed their complaint. The court recalled the history of the local development plan dating back to 1979. The court noted the municipality’s argument that the current budget did not allow for the construction of the roadway.", "It considered that the applicable planning laws did not make it obligatory for the municipality to amend existing land development plans in response to every request of the public. The nature of the policy functions of the municipality in the area of land development was such that the municipal organs could not be taken to be under an obligation to amend the plan once it had started the relevant proceedings. 27. The 1979 local development plan for the applicants’ municipality expired on 31 December 2003 (see paragraph 38 below). Apparently no new plan was adopted thereafter.", "In 2004 the first applicant requested the municipal authorities to grant her initial planning permission and it was granted in April 2004. II. RELEVANT DOMESTIC LAW A. Changes in land development legislation during the period concerned 28. From 1984 to 1 January 1995 questions of land development were governed by the Local Planning Act of 12 July 1984.", "29. On 7 July 1994 a new Local Planning Act was enacted. It entered into force on 1 January 1995. 30. On 21 December 2001 Parliament passed a law amending the Local Planning Act 1994.", "31. On 27 March 2003 a new Local Planning Act was enacted which repealed the 1994 Act. B.Outline of procedure in which local land development plans are adopted 32. Under the provisions of land planning legislation as applicable at the relevant time, land development plans were adopted by organs of local government. A decision to prepare a new plan was taken by a local council.", "Subsequently, the local mayor prepared, with the assistance of the local administration, a draft land development plan. The public was informed of the decision to prepare a new plan and a draft plan was to be made available to the local public for a period not shorter than 21 days. All members of the public were entitled to submit objections and comments on the draft plan. A final plan was adopted by way of a resolution of a local council. The council, when voting on the draft plan, also decided whether and, if so, in what manner, objections and comments submitted by the local public were to be considered.", "C.Compensation entitlements of owners to be expropriated in the future 33. Under the Local Planning Act of 12 July 1984 owners of properties to be expropriated in the future were not entitled to any form of compensation for damage resulting from restrictions on the use of their property and the reduction in its value originating in expropriations to be carried out at a future undetermined point in time. 34. Section 36 of the Local Planning Act enacted in 1994 created for local authorities a number of obligations towards owners whose properties were to be expropriated at an undetermined future date under land development plans adopted by competent municipal authorities. The municipalities were obliged either to buy plots designated for future expropriation under local land development plans, or to replace those plots by other plots within six months from the date on which a relevant request was submitted by the owner, or to award compensation for damage caused by the fact that the plot was designated for future expropriation.", "35. However, this obligation and the corresponding claims of the owners applied only to plans adopted after the Act had entered into force, that is to say, to plans adopted by local municipalities after 1 January 1995. 36. Pursuant to the 1994 Act, plans adopted before the date of its entry into force were to expire on 31 December 1999. 37.", "In 1999 an amendment to the 1994 Act was adopted under which the validity of such plans was extended for a further two years, namely until 31 December 2001. On 21 December 2001 Parliament passed a law amending the Local Planning Act 1994 which extended until the end of 2002 the validity of the land development plans adopted before 1 January 1995. 38. Under Section 87 of the 2003 Act (see paragraph 31 above), all local plans adopted before 1 January 1995 remained valid, but not beyond 31 December 2003. 39.", "Compensation entitlements for owners, provided for by the 1994 Act (see paragraph 33 above), were in essence maintained by the 2003 Act. Pursuant to Section 36 of that Act, when, following adoption of a new local land development plan, the use of property in the manner provided for by a previous plan has become impossible or has been restricted, it is open to the owner to claim compensation from the municipality, or to request the municipality to buy the plot. Any litigation which may arise in this respect between municipalities and owners can be pursued before the civil courts. D.Relevant provisions of the land expropriation legislation 40. From 29 April 1985 to 1 January 1998 the rules governing the administration of land held by the State Treasury and municipalities were laid down in the Land Administration and Expropriation Act of 29 April 1985 (the “1985 Land Administration Act”).", "41. Article 50 of this Act provided that properties could be expropriated only for the benefit of the State or a municipality. 42. Pursuant to Article 53 (1) of the Act, a decision on expropriation had to include in particular: “(1) an indication of the property to be expropriated, ... (3) an indication of the party upon whose initiative the property is being expropriated, (4) an assessment of the amount of compensation, (5) identification of the persons (name, surname and address) entitled to compensation, (6) detailed factual and legal grounds, (7) instructions on appeal procedures.” 43. Under Article 55 of the Act, expropriation was to be carried out against payment of compensation.", "The payment was to be made within fourteen days from the date on which a decision to expropriate had become final. 44. On 1 January 1998 the 1985 Land Administration Act was repealed and the Land Administration Act of 21 August 1997 (Ustawa o gospodarce nieruchomościami – “the 1997 Land Administration Act”) was adopted, containing similar provisions on expropriation and compensation. E.Relevant provisions of building legislation 1.Before 1 January 1995 45. Until 1 January 1995 the organisation of construction was governed by the Building Act 1974 (Prawo budowlane).", "46. Section 3 of that Act provided that construction works could be carried out only on land designated for construction purposes in local land development plans adopted under relevant provisions of land development legislation. Section 4 of that Act read: “Every person has a right to build on land, provided that he or she possesses a right to use this land for building purposes and that the building project is in compliance with applicable provisions of building laws.” 47. Section 10 of the Land Administration Act 1985 (see paragraph 40 above) provided that division of land into smaller plots designated for construction purposes could be effected by way of an administrative decision only if such a division was in compliance with the local land development plan. 48.", "Section 20 of the Building Act 1974 provided that all essential urban planning, architectural and technical questions connected with a given building project were to be resolved before construction was started. Pursuant to Section 30, the local land development plan was the basis on which all relevant decisions were to be taken. 49. Land owners wishing to commence building projects . were obliged to obtain first from the local administration an initial development permit (decyzja o warunkach zabudowy i zagospodarowania terenu).", "50. Under Section 28 of the Act, building works could be commenced after a final construction permit (pozwolenie na budowę) had been granted. 2.After 1 January 1995 51. The Construction Act 1974 was repealed by a new law enacted on 7 July 1994. It entered into force on 1 January 1995.", "52. Under Section 28 (1) of the Act, building works could be commenced once a final construction permit (pozwolenie na budowę) had been granted. 53. Under Section 32 (4) of Act, prior to submitting to the competent local authority a request to be granted a construction permit, an owner is obliged to obtain from the local authorities a decision on building conditions (decyzja o warunkach zabudowy i zagospodarowania terenu), provided for in Section 59 (1) of the Local Planning Act 2003 as it stands today. Under this latter provision, such a decision should specify the essential characteristics of the land concerned and of the future construction project, if they differ from the use of that land provided for by the local land development plan.", "Under Section 39 of the Building Act, once such a decision has been obtained, the owner can apply for a construction permit (pozwolenie na budowę). THE LAW I. PRELIMINARY OBSERVATION 54. The second applicant died while the case was pending before the Court. It has not been disputed that the first applicant was entitled to pursue the application and the Court sees no reason to hold otherwise (see, mutatis mutandis, Lukanov v. Bulgaria, judgment of 20 March 1997, Reports of Judgments and Decisions 1997‑II, p. 540, § 35, and Sildedzis v. Poland, no.", "45214/99, 24 May 2005, § 30). II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 55. The applicants alleged that their right to the peaceful enjoyment of their property had been breached.", "They referred to Article 1 of Protocol No. 1 to the Convention, which reads: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. The parties’ submissions 1.", "The Government’s submissions 56. The Government first submitted that ownership could not be regarded as ius infinitivum. They further argued that the measures complained of in the present case had served the general interest as they had been intended to resolve the communication and environmental problems of the city of Częstochowa. 57. The Government acknowledged that the applicants’ right to the peaceful enjoyment of their possessions had been limited by the fact that the local development plan, as amended in 1994, had prevented them from constructing on their plots.", "However, the interference had been justified by the general interest of the community, namely by the need to build a roadway which would serve local transport needs. Moreover, it had been consistent with the principles of legal certainty and non-retroactivity of laws. By adopting these provisions, the legislature had given the local government authorities time to adjust local development plans to the new needs of their municipalities, without being obliged to compensate individual owners for the consequences of local development plans adopted before 1989, when the transformation of the legal and economic system of the State had been undertaken. 58. The Government concluded that the interference complained of had been lawful and served the public interest within the meaning of Article 1 of Protocol No.", "1 to the Convention. 59. As to the proportionality of the interference, the Government referred to the principle of “fair balance” established by the Court’s case-law which had to be struck between the demands of the general interest and the requirements of the protection of the individual’s fundamental rights. There had to be a reasonable relationship of proportionality in this connection between the means employed and the aims sought. They further referred to the wide margin of appreciation that the Contracting States enjoyed “in the area as complex and difficult as that of the development of large cities (...) in order to implement their town-planning policy” (see Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no.", "52, p. 26, § 69). 60. In that connection, the Government submitted that the transitional provisions of the 1994 Act staying the enforcement of the right of owners to compensation introduced by that Act and the subsequent prolongations of those provisions until 1 January 2003 had been motivated by a need to protect the budgetary security of the newly-created local governments and of the State. The Government stressed that these provisions had been of a temporary nature and should be seen as part of the process of transition. They had been designed to improve the position of owners and to safeguard their rights in connection with future expropriations for the purposes of local urban development.", "This process had been successfully completed on 1 January 2004 by the annulment of all local development plans adopted before 1 January 1995 (see paragraph 38 above). 61. The Government argued that the contested provisions had not lowered the level of protection of owners. They had introduced no new restrictions on owners’ rights, but had only maintained restrictions on the rights resulting from the adoption of local development plans which had existed before 1994. 62.", "The Government further averred that the system introduced by the land planning legislation enacted in 1994 had been flexible in that it had enabled the municipalities to adjust previously adopted plans to the new conditions created by the sweeping reform of local administration adopted in 1990. 63. The Government submitted that the transitional regulations complained of in the present case had ultimately been repealed in July 2003 (see paragraph 31 above). As from 1 January 2004 all owners had been protected from the negative consequences of delays in carrying out investments foreseen in local development plans. They referred in this connection to the specific forms of compensation listed in section 36 of the 2003 Act (see paragraph 39 above).", "64. As to the specific circumstances of the applicants’ case, the Government acknowledged that under the applicable planning laws, the applicants had not been entitled to request the local authority to purchase their land from them in view of future expropriation, or to claim compensation. However, the Government stressed that the applicants had not been prevented from either selling or leasing their property. It had remained possible for the applicants to use the property in a manner that would not require a building permit, for example for commercial or other purposes. 65.", "The Government submitted that even if the inability to obtain the construction permit under the legal framework created by the 1994 amendments to the 1979 land development plan had amounted to an excessive burden for the applicants, they had been free to sell their property and buy another one, situated in an area where they could easily obtain a construction permit. 66. The Government concluded that in the circumstances of the case a fair balance had been struck between the applicants’ individual rights on the one hand and the public interest and transport needs of the local community on the other. 2. The applicants’ submissions 67.", "The applicants first argued that there had been a breach of Article 1 of Protocol No. 1 resulting from a systemic problem originating in legislation regulating owners’ rights in cases of future expropriation to be carried out at some undetermined point in time on the basis of local development plans. 68. As to whether there had been interference with their right to the peaceful enjoyment of their possessions, they submitted that the legislation applicable before 1994 had been even less favourable to the owners of plots “frozen” under local development plans, because at that time they had not had any right to compensation at all. It was irrelevant whether the 1994 Act had increased or simply maintained the restrictions of owners’ rights originating in the adoption of local development plans.", "What was crucial was the fact that such restrictions had de facto existed both before and after 1994. 69. The applicants argued that the interference complained of consisted in the fact that in 1991 and 1992 they had obtained a decision allowing them to develop their land (decyzja o warunkach zabudowy) and a decision approving the division of their land into smaller plots (decyzja o zatwierdzeniu projektu podzialu nieruchomości) (see paragraph 10 above). However, as a result of the changes to the 1979 plan made in 1994, they could not avail themselves of the rights conferred on them by the decisions given in 1992. Therefore, in their case the amendments to the plan adopted in 1994 had resulted not merely in maintaining limitations which had existed before, but also in the imposition of new and more stringent restrictions on the use to which they could put their land.", "70. The applicants challenged the Government’s opinion that a fair balance had been struck in their case between the general interests of the community on the one hand and their property rights on the other. They conceded that they had not been formally deprived of their possessions since they had remained lawful owners of the land throughout the period covered by the present case. However, as a result of the planning measures taken in their case their property rights had been stripped of any economic significance. The fate of their land remained uncertain from 1994 until 2004.", "While the 1994 amendments to the 1979 local development plan had provided for the construction of a roadway near their plots, the date of its actual construction remained wholly uncertain. As a result, they could not build anything on their property. The Government’s argument that they could still sell their land entirely disregarded the fact that the market value of the plots had been significantly reduced as a result of the adoption of the 1994 plan and the consequential uncertain fate of the applicants’ property. 71. The applicants submitted that the municipality had prepared and adopted the 1994 plan at a time when the bill which was eventually passed as the 1994 Act was being prepared by Parliament.", "At that time it had already been known that, under the future Act, municipalities would be obliged to provide compensation to the owners of plots “frozen” for the purposes of land development plans adopted after its entry into force. Hence, the amendments to the plan had had the aim of leaving the applicants and other owners in the municipality without any right to compensation. They further argued that their efforts to challenge various amendments made to the plan in 1994 had failed (see paragraphs 18-26 above). 72. The applicants concluded that in the circumstances of the case the fair balance between the protection of their right to the peaceful enjoyment of their possessions and the requirements of the general interest had been upset.", "B. The Court’s assessment 1. General principles 73. The Court reiterates that Article 1 of Protocol No. 1 contains three distinct rules.", "They have been described thus (in James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, pp. 29‑30, § 37; see also, among many other authorities, Belvedere Alberghiera S.r.l. v. Italy, no. 31524/96, § 51, ECHR 2000-VI): “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; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest ...", "The three rules are not, however, ‘‘‘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.” 2. Whether there was interference with the peaceful enjoyment of “possessions” 74. The Court must first examine whether there was interference with the peaceful enjoyment of the applicants’ possessions. 75.", "The Court first notes that in 1991 and 1992 the applicants obtained administrative decisions allowing them to take further steps in order to obtain a final construction permit (see paragraph 10 above). However, in 1994 proceedings were instituted by the municipality with a view to amending the local land development plan adopted in 1979. In the same year the applicants requested to be granted final construction permits (pozwolenie na budowę) in respect of certain plots (see paragraph 12 above). 76. The Court observes that the proceedings concerning the amendments to the 1979 plan were pending at that time and that under the planned amendments a roadway was to be built at some undetermined point in time on the applicants’ property.", "In view thereof, there was no progress in the proceedings in which the applicants had sought the final construction permit and they were later stayed. On an unspecified later date the applicants’ request was dismissed, the authorities having had regard to the fact that their plots were in the vicinity of the envisaged road (see paragraph 24 above). As a result, the applicants could not proceed with the construction. Their plots remained blocked in that way until 31 December 2003 when the 1979 land development plan expired (see paragraph 27 above). 77.", "The Court further observes that the applicants’ situation was affected by the amendments to the 1979 plan because the amendments to this plan provided for a future expropriation of their land. The Court would emphasise that the applicants’ situation was negatively affected not so much by the mere prospect of expropriation, but by the fact that this future expropriation was to be carried out at an undetermined point in time and in the absence of any indication, even approximate, as to its future date. 78. In that connection, the Court further notes that before the enactment of the Local Planning Act in 1994 the local authorities did not have any obligation to compensate owners of plots to be expropriated in the future. It was only by virtue of section 36 of that Act that local authorities became obliged either to buy plots designated for future expropriation under local land development plans, or to replace those plots by other plots, or to award the owners compensation for damage caused by the fact that their plots were designated for future expropriation.", "However, the right to compensation applied only to plans adopted after the 1994 Act had entered into force. Consequently, they were not applicable to the applicants’ situation as the plan for the municipality of Częstochowa had been adopted in 1979. 79. To sum up, the measures complained of, taken as a whole, although in law they left intact the applicants’ right to continue to use and dispose of their possessions, nevertheless in practice they significantly reduced the effective exercise of that right. Not only were the applicants prevented from bringing their construction projects to fruition, their property was also to be expropriated at some undetermined future date, without there being any provision for immediate compensation under the applicable laws.", "The applicants’ right of property thus became precarious and defeasible (mutatis mutandis, Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, §§ 58-60). 80. The Court is therefore of the view that there was interference with the peaceful enjoyment of the applicants’ possessions. The Court further considers that the measures complained of did not amount to expropriation.", "Likewise, they cannot be regarded as control of use of property. Accordingly, the interference falls to be examined under the first sentence of Article 1 of Protocol No. 1. 3. Whether the interference was “provided for by law” 81.", "The Court recalls 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 (see Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999‑II). 82. The Court observes that the applicants’ situation was affected by future expropriation for the purposes of the land development plan, by the refusal to grant a final construction permit (see paragraphs 76-78 above) and by a lack of any effective entitlement to compensation (see paragraph 79 above).", "83. The Court notes that the first two measures were taken on the basis of the Local Planning Act of 1994. As to the applicants’ situation regarding compensation, it was affected by the operation of specific provisions of that Act which, by prolonging the validity of the local development plan under the amendments to the Local Planning Act 1994, effectively deprived them of any possibility of obtaining redress for those measures (see paragraphs 34-37 above). 84. The interference complained of was therefore “provided by law” within the meaning of Article 1 of Protocol No.", "1 to the Convention. 4. Whether the interference was “in the general interest” 85. Any interference with a right of property, irrespective of the rule under which it falls, can be justified only if it serves a legitimate public (or general) 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 decide what is “in the public interest”.", "Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures interfering with the peaceful enjoyment of possessions (see Terazzi S.r.l. v. Italy, no. 27265/95, § 85, 17 October 2002, and Elia S.r.l. v. Italy, no. 37710/97, § 77, ECHR 2001-IX).", "86. In the present case the Court accepts that already in 1994 the measures complained of pursued the legitimate aim of securing land in connection with the implementation of the local land development plan. This corresponds to the general interest of the community (see, mutatis mutandis, Cooperativa La Laurentina v. Italy, no. 23529/94, § 94, 2 August 2001; Bahia Nova S.A. (dec.), no. 50924/99, 12 December 2000; and Chapman v. the United Kingdom, no.", "27238/95, § 82, ECHR 2001-I). 5. Proportionality of the interference 87. The Court must examine in particular whether an interference with the peaceful enjoyment of possessions strikes the requisite fair balance between the demands of the general interest of the public and the requirements of the protection of the individual’s fundamental rights, and whether it imposes a disproportionate and excessive burden on the applicant (see, among many other authorities, Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 93, ECHR 2005...‑VI).", "88. The Court considers that in the area of land development and town planning the Contracting States should enjoy a wide margin of appreciation in order to implement their town and country planning policy (see Terazzi S.r.l. and Elia S.r.l., cited above). Nevertheless, in the exercise of its power of review the Court must determine whether the requisite balance was maintained in a manner consonant with the ‘applicants’ right of property (see, mutatis mutandis, Sporrong and Lönnroth, cited above, § 69). 89.", "In that connection, the Court first reiterates that in 1991 and 1992 the applicants obtained decisions authorising them to proceed with their construction plans. In 1994 they requested that final construction permits be granted to them in respect of certain plots. However, in the same year the local municipality launched proceedings in order to make amendments to the local land development plan adopted in 1979. Subsequently, the proceedings concerning the applicants’ request to be granted final construction permits were stayed pending the outcome of these proceedings (see paragraph 17 above). The applicants’ request was eventually refused and in the refusal the authorities made reference to the provisions of the land development plan which provided for the construction of a roadway on the plots owned by the applicants (see paragraph 24 above).", "The authorities also referred to the future expropriation of the applicants’ plots on the basis of that plan. 90. However, the Court observes that as early as 1994 it appeared that the construction of the roadway could not be undertaken in the near future. The Governor, in his letter of 6 September 1994, stated that funding of the construction of the roadway would not be provided until at least 2010. Hence, at the time when the applicants’ request to obtain final building permission was pending before the competent authorities, there were no good grounds on which to believe that the land development plan adopted in 1979 and amended in 1994 would be implemented promptly.", "As a result, the de facto blocking of any construction on the applicants’ property did not serve any immediate or medium-term purpose in the interest of the community. In the Court’s view, given that it was uncertain whether the plans of the land development would be implemented in the reasonably near future, this state of affairs disclosed a lack of sufficient diligence in weighing the interests of the owners against the planning needs of the municipality. 91. The Court further emphasises that this situation lasted for a long period of time: from 1994, when the municipality commenced the proceedings in order to amend the 1979 plan, until 31 December 2003, when this plan eventually expired under the provisions of the Local Planning Act of 2003. 92.", "The Court reiterates that the applicants were unable to proceed with their construction projects and were also threatened with expropriation at an undetermined point of time. What is more, they did not have any effective entitlement to compensation throughout this period. 93. The Court emphasises that the successive prolongations had a double effect: they extended the validity of the local plan and also prolonged the period during which the applicants could not claim any compensation from the municipality. 94.", "In this connection, the Court notes the Government’s argument that the provisions of the 1994 Act were intended to improve the situation of owners, in that this Act introduced a right to compensation which previously had never existed. They also pointed out the temporary nature of the prolongations. The Court observes that it is not in dispute that the 1994 Act was intended to improve the situation of owners to be expropriated in the future in that certain right to compensation entitlements were foreseen for them for the first time in Polish law. However, in its assessment of the proportionality of the measures complained of, the Court cannot overlook the fact that, when enacting the 1994 Act, the legislature on the one hand introduced compensatory provisions into law, but at the same time excluded the application of those provisions in respect of plans adopted before 1 January 1995. What is more, the legislature subsequently prolonged this situation on three occasions, for an overall period of nine years.", "Consequently, until July 2003, the date of entry into force of the Local Planning Act 2003, the applicants could not make any claim for compensation against the municipality in respect of their particular situation. 95. Lastly, the Court notes that since July 2003, when the 2003 Act entered into force, Section 36 of that Act has granted right to compensation to owners who were restricted in the use of their property as a result of the adoption of a local development plan (see paragraph 39 above). Such claims can be pursued before civil courts. However, it observes that these provisions started to operate only after the 2003 Act had entered into force and only in respect of local land development plans adopted after that date.", "It has not been argued or shown that the 2003 Act provides for any retrospective right to compensation for the prejudice suffered by the applicants, before its entry into force, as a result of restrictions originating in a land development plans adopted in the past. Consequently, the entry into force of the 2003 Act did not alter the applicants’ situation. 96. The Court notes the Government’s argument that by adopting these provisions the legislature had given the local government authorities time to adjust land development plans to the new needs of the municipalities, without the latter being obliged to compensate individual owners for the consequences of local development plans adopted before 1989, when the transformation of the legal and economic system of the State had been undertaken. The Court is aware that the difficulties in enacting a comprehensive legal framework in the area of urban planning constitute part of the process of transition from a socialist legal order and its property regime to one compatible with the rule of law and the market economy – a process which, by the very nature of things, is fraught with difficulties.", "However, these difficulties and the enormity of the tasks facing legislators having to deal with all the complex issues involved in such a transition do not exempt the Member States from the obligations stemming from the Convention or its Protocols (see Schirmer v. Poland, no. 68880/01, 21 September 2004, § 38). 97. Having regard to the above considerations, the Court is of the view that a fair balance was not struck between the competing general and individual interests and that the applicants had to bear an excessive individual burden. 98.", "There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention. III. ARTICLE 41 OF THE CONVENTION 99. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 1.", "Damage claimed in the present case 100. The applicants claimed 1,160,500 Polish zlotys (PLN) in compensation for pecuniary damage. This amount was broken down as follows: (i) PLN 8,635 in respect of real estate taxes which the applicants had had to pay for the property from 1995 until the end of 2004; (ii) PLN 9,000 in respect of reimbursement of maintenance costs of the property; (iii) PLN 100,000 in respect of material damage which the property sustained during the material time; (iv) PLN 5,000 in respect of damage resulting from repeated burglaries at the property; (v) PLN 837,884 corresponding to the price which the applicants could have obtained if their plan to have their property divided into smaller construction plots and sold to private parties had been brought to fruition, with the capital thus obtained being paid into their bank account plus interest accruing from February 1995 to July 2003. 101. The applicants further sought compensation for non-pecuniary damage in the sum of PLN 200,000[1].", "They argued that as a result of the contested decisions and the deficiencies in the legislative framework concerning their property, they had suffered considerable anguish. They emphasised the distress they had suffered as a result of their situation which frustrated their projects to use and develop their property and to derive reasonable profit from it. 102. The Government were of the view that the amounts claimed by the applicants were excessive. 103.", "In the circumstances of the case and having regard to the parties’ submissions, the Court considers that the question of the application of Article 41 of the Convention is not ready for decision and reserves it, due regard being had to the possibility that an agreement between the respondent State and the applicant may be reached (Rule 75 § 1 of the Rules of Court). 2. Costs and expenses 104. The applicants also claimed EUR 3,500 for the costs and expenses incurred in the proceedings before the domestic courts and before the Court. 105.", "The Government considered that the amount claimed by the applicants was excessive. 106. 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 amount of EUR 2,500 covering costs under all heads, less EUR 853 paid to the applicant in legal aid, plus any tax that may be chargeable on that amount, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement. 3.", "Default interest 107. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 1 of Protocol No. 1 of the Convention; 2.", "Holds that as far as any pecuniary and non-pecuniary damage is concerned, the question of the application of Article 41 is not ready for decision and accordingly; (a) reserves the said question; (b) invites the Government and the first applicant to submit, within six 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; 3. Holds (a) that the respondent State is to pay the first applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,647 (one thousand six hundred and forty seven 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 on the above 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 14 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosNicolas BratzaDeputy RegistrarPresident [1] Approximately EUR 50,000." ]

[ "FOURTH SECTION CASE OF NOREIKIENĖ AND NOREIKA v. LITHUANIA (Application no. 17285/08) JUDGMENT (Merits) STRASBOURG 24 November 2015 FINAL 24/02/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Noreikienė and Noreika v. Lithuania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: András Sajó, President,Vincent A. De Gaetano,Boštjan M. Zupančič,Nona Tsotsoria,Paulo Pinto de Albuquerque,Egidijus Kūris,Iulia Antoanella Motoc, judges,and Françoise Elens-Passos, Section Registrar, Having deliberated in private on 3 November 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 17285/08) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Lithuanian nationals, Ms Daina Noreikienė and Mr Algirdas Noreika (“the applicants”), on 31 March 2008. 2. The applicants were represented by Ms R. Gradauskienė, a lawyer practising in Kaunas. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė.", "3. The applicants alleged that they had been deprived of their 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 applicants were born in 1965 and 1961 respectively and live in Ramučiai, Kaunas Region. They are wife and husband. 6.", "In 1993 the Karmėlava Circuit Council of the Kaunas Region (Kauno rajono Karmėlavos apylinkės tarnyba) assigned a plot of land measuring 1.97 hectares to the first applicant (hereinafter “the land”), Ms Noreikienė (hereinafter “the first applicant”), for individual farming. In 1996 the Kaunas County Administration authorised her to buy the land for a nominal price of 123 “single-use investment vouchers” (investiciniai čekiai) and 6 Lithuanian litai (LTL – approximately 1.7 euro (EUR)). 7. On 2 August 2004 the first applicant signed a land purchase agreement with the Kaunas County Administration to acquire the land from the State. The plot was subsequently registered in the Land Registry in the joint names of both applicants.", "8. In 2005 a third party, V.A., brought a civil claim against the Kaunas County Administration and the both applicants, seeking restoration of his ownership rights to the land. He argued that a request for restitution of property had already been submitted in 1991, so the land had been assigned and later sold to the first applicant unlawfully. 9. On 14 April 2006 the Kaunas District Court (Kauno rajono apylinkės teismas) allowed V.A.’s claim.", "It held that the first applicant had been assigned the land unlawfully because the local authorities had an obligation to resolve restitution claims before assigning plots to new owners, and because she did not fulfil the legal criteria for being assigned land. Applying the principle of priority of former owners’ rights, the court annulled the administrative decisions assigning the land to the first applicant and the land purchase agreement, and ordered the Kaunas County Administration to return LTL 129 (EUR 37) to the applicants. 10. On 31 October 2006 the Kaunas Regional Court quashed the lower court’s decision and dismissed the civil claim. V.A.", "lodged a cassation appeal. On 15 May 2007 the Supreme Court quashed the disputed decision and remitted the case to the Kaunas Regional Court for re-examination. 11. On 24 September 2007 the Kaunas Regional Court upheld the first‑instance decision of 14 April 2006 and allowed V.A.’s claim. 12.", "On 30 November 2007 the Supreme Court refused to examine the applicants’ cassation appeal, on the grounds that it did not raise any important legal issues. II. RELEVANT DOMESTIC LAW AND PRACTICE 13. For relevant domestic law and practice, see Pyrantienė v. Lithuania (no. 45092/07, §§ 16-22, 12 November 2013) and Albergas and Arlauskas v. Lithuania (no.", "17978/05, §§ 21-33, 27 May 2014). THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 14. The applicants complained that the State had unlawfully deprived them of their property and had not provided them with adequate compensation.", "They 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 ...” A. Admissibility 15. The Government submitted that the applicants had failed to exhaust domestic remedies by not initiating separate judicial proceedings against the State under Article 6.271 of the Civil Code for redress for their allegedly inadequate compensation. 16.", "The applicants did not comment on this point. 17. The Court refers to its findings in the cases of Pyrantienė (cited above, § 27) and Albergas and Arlauskas (cited above, § 44), where it was not demonstrated that at the time the application was lodged with the Court, a claim under Article 6.271 of the Civil Code would have been an effective remedy with any prospect 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.", "18. Accordingly, the Court dismisses the Government’s objection that the applicants failed to exhaust domestic remedies. 19. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. The parties’ submissions 20. The applicants submitted that they had acquired the land lawfully and in good faith on the basis of the decisions of the Karmėlava Circuit Council and the Kaunas County Administration. They also argued that the market value of the plot at the time they had lost title to it was much higher than the LTL 129 returned to them, which meant that they had not received adequate compensation for the loss of their property.", "21. The Government admitted that the applicants had been deprived of their property, but argued that such deprivation was in compliance with Article 1 of Protocol No. 1 to the Convention. They submitted that the land had been assigned and sold to the applicants in breach of “imperative legal norms” protecting the interests of former owners, so the relevant administrative decisions and purchase agreement had been annulled in accordance with the Civil Code. They also maintained that the interference with the applicants’ property rights was justified as being “in the public interest”, namely in defence of the rights of former owners who had lost their title to land during the Soviet regime.", "22. The Government further submitted that the applicants had acquired the land under preferential conditions and had not made any major improvements to it. Moreover, as the applicants lived elsewhere, the property did not constitute their “only home”. The Government also contended that the applicants had enjoyed the property for a relatively short period of time: the land purchase agreement was signed on 2 August 2004, and V.A.’s civil claim was lodged on 23 March 2005, so the time to be taken into account was less than a year. Accordingly, the Government submitted that the applicants had not been disproportionately affected by the interference in question.", "23. Lastly, the Government argued that any errors made by the domestic authorities had occurred in the context of land reform, which was linked to the process of restoration of former owners’ rights to property that had been previously nationalised by the Soviet regime. According to the Court’s case‑law in the context of central and eastern European States, the circumstances concerning the transition from a totalitarian regime to a democracy and the specific circumstances of each case therefore had to be taken into account. 2. The Court’s assessment (a) General principles 24.", "The relevant general principles are set out in Pyrantienė (cited above, §§ 37-40). (b) Application of the above principles in the present case 25. In the present case, it is not disputed that there has been a “deprivation of possessions” within the meaning of the second sentence of Article 1 of Protocol No. 1. The Court must therefore ascertain whether the deprivation in question was justified under that provision.", "(i) Lawfulness of the interference 26. The domestic courts’ decision to annul the administrative decisions taken between 1993 and 1996 and the land purchase agreement signed in 2004 was based on Articles 1.80 and 6.147 of the Civil Code and Government Decree no. 816 on the allocation of plots of land for individual and service use. The courts also relied on the principle of priority of former owners’ rights which had been established in the Supreme Court’s case-law. 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 27. As in Pyrantienė and Albergas and Arlauskas (both cited above), the measures complained of were designed to correct the authorities’ mistakes and to defend the interests of former owners by restoring their ownership rights to land in natura. The Court thus considers that the interference pursued a legitimate aim (see Pyrantienė, cited above, §§ 44-48; see also Bečvář and Bečvářová v. the Czech Republic, no. 58358/00, § 67, 14 December 2004).", "(iii) Proportionality 28. 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 individual’s fundamental rights, 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; Brumărescu v. Romania [GC], no.", "28342/95, § 78, ECHR 1999-VII; and Anthony Aquilina v. Malta, no. 3851/12, §§ 58-59, 11 December 2014, and the cases cited therein). 29. On several occasions in similar cases which, as in the present case, concerned the correction of mistakes made by the State authorities 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 v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01 and 194/02, § 178, 15 March 2007).", "To that end, the 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, which is rightfully that of the State which confiscated those possessions. In other words, the risk of any mistake made by the 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). 30. In order to assess the burden borne by the applicants, the Court must examine the particular circumstances of each case, such as the conditions under which the disputed property was acquired and the compensation received by the applicant in exchange for the property, as well as his or her personal and social situation (see Pyrantienė, cited above, § 51).", "31. In the present case, the first applicant became entitled to a plot of land following a decision taken by the local administrative authorities in 1993, and purchased it from the State in 2004. The Court notes in this respect that although the purchase of the land was only formalised in 2004, the applicant had acquired a proprietary interest in 1993 when the administrative authorities assigned the plot of land to her (see paragraph 6 above). 32. The procedures for the sale of the land were conducted by official bodies exercising the authority of the State, and the land purchase agreement signed by the first applicant and the Kaunas County Administration incorporated the standard conditions of sale (see paragraphs 6 and 7 above).", "The Court considers that the applicants had very little opportunity, if any, to influence the terms of the contract or the purchase price, as this was within the State’s exclusive competence. The authorities were therefore under an obligation to verify the applicants’ eligibility for allocation of the land and the conformity of the sale with the procedures and laws in force (see, mutatis mutandis, Gladysheva, § 79, and Pyrantienė, § 54, both cited above). 33. The applicants’ title to the land was invalidated after the former owner lodged a civil claim, which was then allowed by the domestic courts. It was established that the local authorities had not been entitled to transfer the disputed property to the applicants before the question of restoration of the former owner’s rights had been resolved.", "The Government argued that the errors made by the domestic authorities had occurred in the context of land reform, which was linked to the complex process of restoration of former owners’ property rights in Lithuania. In the Court’s view, although it is true that States face complex legal and factual issues when resolving such matters, in the present case the hindrance to the peaceful enjoyment of the property is attributable exclusively to the respondent State, and the existence of any justifying exceptional circumstances has not been demonstrated by the Government (see Nekvedavičius v. Lithuania, no. 1471/05, § 88, 10 December 2013, and Albergas and Arlauskas, cited above, § 62). 34. In this context, the Court reiterates the particular importance of the principle of good governance, which 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 consistent manner (see Beyeler v. Italy [GC], no.", "33202/96, § 120, ECHR 2000-I; Rysovskyy v. Ukraine, no. 29979/04, § 71, 20 October 2011; and Pyrantienė, cited above, § 55). 35. The Court further notes that the applicants’ good faith concerning the acquisition was never disputed at the domestic level (see, mutatis mutandis, Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 120, 25 October 2012).", "They were ordinary citizens and the purchase was based on laws applicable to all persons having the same status, so there are no grounds to find that they took advantage of their privileged position or otherwise acted unlawfully to acquire property (see Albergas and Arlauskas, cited above, § 68). The applicants were unaware that the land had been sold to them in breach of the law; the unlawfulness of the land purchase was only established by the District Court for the first time on 14 April 2006 (see paragraph 9 above). In this connection, the Court is satisfied that the applicants were bona fide owners, and that their proprietary interest in the enjoyment of the land was sufficiently established (see Pyrantienė, cited above, § 60, and Albergas and Arlauskas, cited above, §§ 68-69). 36. Moreover, the Court considers that the applicants were also entitled to rely on the fact that the administrative decisions taken between 1993 and 1996 and the land purchase agreement signed in 2004, on the basis of which they had acquired the property, would not be retrospectively invalidated to their detriment.", "In these circumstances, the “legitimate expectation” is also based on a reasonably justified reliance on administrative decisions which have a sound legal basis and bear on property rights (see Kopecký v. Slovakia [GC], no. 44912/98, §§ 45-47, ECHR 2004-IX, and Pyrantienė, cited above, § 61). Even assuming that the applicants had paid a preferential price for the land in question, for the Court this fact is immaterial in terms of their right of ownership (see Digrytė Klibavičienė v. Lithuania, no. 34911/06, § 36, 21 October 2014). As a result, it finds that the applicants had a “legitimate expectation” of being able to continue to enjoy that possession.", "37. After the applicants’ lost their title to the land, they were paid LTL 129 (EUR 37), the nominal price of the land in 1996. According to the assessment submitted by the applicants, the market value of the plot in November 2007 was LTL 299,000 (EUR 86,600). While the Government contested this figure, they did not submit an alternative assessment. In any event, the Court finds it reasonable to conclude that the market value of the land in 2007 was higher than the nominal price paid by the applicants in 1996.", "It should also be noted that the LTL 129 returned to the applicants had obviously suffered considerable devaluation and could not reasonably relate to the value of the land eleven years later. Accordingly, the Court finds that the compensation of LTL 129 paid to the applicants in 2007 was clearly insufficient for the purchase of a new comparable plot of land (see, mutatis mutandis, Velikovi and Others, cited above, § 207). 38. The Court reiterates that the taking of property without payment of an amount reasonably related to its value will normally fail to respect the requisite fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights and will constitute a disproportionate burden on the applicant (see The Holy Monasteries v. Greece, 9 December 1994, § 71, Series A no. 301-A, and Former King of Greece and Others v. Greece [GC], no.", "25701/94, § 89, ECHR 2000-XII). In line with the Court’s case-law in similar cases concerning expropriation of property, the balance mentioned above is generally achieved where compensation paid to the person whose property has been taken reasonably relates to its “market” value as determined at the time of expropriation (see Pincová and Pinc v. the Czech Republic, no. 36548/97, § 53, ECHR 2002‑VIII; Vistiņš and Perepjolkins, cited above, § 111; and Guiso-Gallisay v. Italy (just satisfaction) [GC], no. 58858/00, § 103, 22 December 2009). It follows that the amount of compensation for the applicants’ loss of title to the land must be calculated using the value of the property on the date ownership was lost.", "39. The Court takes the view that in the present case, as the applicants had acquired the land for a very low price, the authorities were in principle justified in deciding not to compensate for the full market value of the property (see, mutatis mutandis, Vistiņš and Perepjolkins, cited above, §§ 118 and 130). However, the Court considers that awarding the applicants compensation of LTL 129 did not sufficiently mitigate the negative consequences for them of losing their title to the property. The disproportion between the land’s market value and the compensation awarded is too significant for the Court to find that a “fair balance” was struck between the interests of the community and the applicants’ fundamental rights (see, mutatis mutandis, Urbárska Obec Trenčianske Biskupice v. Slovakia, no. 74258/01, § 126, 27 November 2007; Pyrantienė, cited above, § 68; and Albergas and Arlauskas, cited above, § 74).", "40. The foregoing considerations are sufficient to enable the Court to conclude that the conditions under which the applicants had their title to the land removed imposed an individual and excessive burden on them, and that the authorities failed to strike a fair balance between the demands of the public interest on the one hand and the applicants’ right to peaceful enjoyment of their possessions on the other. There has, accordingly, been a violation of Article 1 of Protocol No. 1 to the Convention. II.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 41. The applicants complained under Article 6 § 1 and Article 8 of the Convention about the unfairness of the proceedings and of an infringement of their right to private life. They argued that the domestic courts had erred in finding that the land had been assigned and sold to them unlawfully. They also submitted that the domestic courts should have rejected the former owner’s civil claim as time-barred. The Court considers it appropriate to examine this complaint solely under Article 6 § 1 of the Convention.", "42. The Court reiterates that it is the role of the domestic courts to interpret and apply the relevant rules of procedural and substantive law (see, among many other authorities, Baumann v. Austria, no. 76809/01, § 49, 7 October 2004). In the present case, the domestic courts’ interpretation of the relevant provision of domestic law does not appear to be arbitrary or unreasonable, and therefore does not appear to be in breach of Article 6 § 1 of the Convention. The Court thus considers that this complaint must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "43. The applicants further complained about the refusal of the Supreme Court to examine their cassation appeal, relying on Article 2 of Protocol No. 7 to the Convention. The Court notes that that provision is only applicable to criminal proceedings, and considers that the applicants’ complaint in substance falls to be examined under Article 6 § 1 of the Convention. 44.", "Given that the assessment of the grounds for cassation is a matter over which the Lithuanian Supreme Court has sole jurisdiction, it is not for the Court to speculate whether it should have accepted the applicants’ cassation appeal (see, mutatis mutandis, Impar Ltd v. Lithuania, no. 13102/04, § 32, 5 January 2010). In view of the above, and in the absence of any unreasonable restrictions on the applicants’ access to the Supreme Court, the Court considers that this complaint must be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. 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.” 46. The applicants claimed 299,000 Lithuanian litai (LTL; 86,600 euros (EUR)) in respect of pecuniary damage. They relied on an expert report issued at their request in August 2012, submitting that the amount of pecuniary damage corresponded to the market value of the land at the time of deprivation. 47. The applicants also claimed LTL 100,000 (EUR 28,960) in respect of non-pecuniary damage.", "They did not make any claims regarding costs and expenses. 48. The Government considered the amount claimed for pecuniary damage excessive and rejected the findings of the expert’s report as lacking objectivity and depending exclusively on the method of calculation. They also argued that the Court could not award compensation for pecuniary damage unless the matter had been examined by the domestic courts, but did not submit any alternative assessment of the market value of the land in support of their arguments. 49.", "The Government also considered that the applicants had failed to prove a direct causal link between the non-pecuniary damage allegedly incurred and the alleged violation of their right to peaceful enjoyment of their possessions. They requested the Court to dismiss the applicants’ claims concerning non-pecuniary damage as excessive and unsubstantiated. 50. In the circumstances, the Court considers that the question of the application of Article 41 is not ready for decision. It is therefore necessary to reserve the matter, due regard being had to the possibility of an agreement between the respondent State and the applicants (Rule 75 §§ 1 and 4 of the Rules of Court).", "51. Accordingly, the Court reserves this question and invites the Government and the applicants to submit, within six months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, their written observations on the amount of damages to be awarded to the applicants and, in particular, to notify the Court of any agreement that they may reach. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint under Article 1 of Protocol No. 1 to the Convention admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 3. Holds that the question of the application of Article 41 is not ready for decision, and accordingly: (a) reserves the said question in whole; (b) invites the Government and the applicants to submit, within six months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, their written observations on the amount of damages to be awarded to the applicants 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 24 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosAndrás SajóRegistrarPresident" ]

[ "THIRD SECTION CASE OF TACİROĞLU v. TURKEY (Application no. 25324/02) 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 Taciroğlu v. Turkey, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrB.M. Zupančič, President,MrJ.", "Hedigan,MrR. Türmen,MrsM. Tsatsa-Nikolovska,MrV. Zagrebelsky,MrE. Myjer,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. 25324/02) 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, Ms. Yeşim Taciroğlu, on 30 May 2002. 2. The applicant was represented by Mrs M. Kırdök and Mr M.A. Kırdök, lawyers practising in Istanbul.", "The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. 3. The applicant alleged that the period of her detention on remand exceeded the reasonable time requirement of Article 5 § 3 of the Convention. 4. On 4 April 2005 the Court decided to communicate the application to the Government.", "Under Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 5. The applicant and the Government each filed observations on the admissibility and merits (Rule 59 § 1). THE FACTS 6. The applicant was born in 1972.", "She is detained in Gebze Prison. 7. On 17 September 1993 the applicant was arrested by police officers from the anti-terrorism branch of the Istanbul Security Directorate on suspicion of being a member of Dev-Sol (Revolutionary Left), and was taken into custody. During the operation, the police officers gathered guns and illegal documents from the flat where they had captured the applicant. The applicant had also two forged identity cards in her possession.", "8. On 1 October 1993 she was brought before the investigating judge at the Istanbul State Security Court. Subsequently, the investigating judge ordered the applicant’s detention on remand. 9. On 31 December 1993 the public prosecutor filed a bill of indictment with the Istanbul State Security Court against twenty-five persons, including the applicant, and requested that the applicant be punished pursuant to Article 146 § 1 of the Criminal Code with the death penalty.", "10. Throughout the criminal proceedings, either on its own motion or at the applicant’s request, the Istanbul State Security Court examined and ordered the applicant’s continued detention. The court relied on “the serious nature of the offences with which the applicant had been charged, the state of evidence, the content of the case file, and the duration of the detention” when further detaining the applicant. On two occasions on 3 November 1997 and 5 May 2000, the court also noted that the case was due to be decided soon. 11.", "On 17 December 2003 the applicant was convicted of the offence as charged and sentenced to life imprisonment. 12. On 1 April 2005 the Court of Cassation quashed the applicant’s conviction, and remitted the case back to the Istanbul State Security Court. 13. The case is still pending before the Istanbul State Security Court.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 14. The applicant complained that her detention on remand exceeded the “reasonable time” requirement as provided in Article 5 § 3 of the Convention, which reads insofar as relevant 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 15. The Government asked the Court to declare the application inadmissible under Article 35 § 3 of the Convention.", "They maintained that the applicant lost her “victim status” since the State Security Court which sentenced her to life imprisonment on 17 December 2003, deducted the period of detention on remand which the applicant had undergone from the actual sentence imposed. They further argued that there were various domestic remedies under Turkish law that the applicant could exhaust if she were to be acquitted at the end of the criminal proceedings. 16. The Court reiterates that the reckoning of detention on remand as part of a later sentence cannot eliminate a violation of Article 5 § 3, but may have repercussions only under Article 41 on the basis that it limits the loss occasioned (Engel and Others v. the Netherlands, judgment of 8 June 1976, Series A. no.22, § 69, and Kimran v. Turkey, no. 61440/00, § 41, 5 April 2005).", "Furthermore, it notes that the decision against the applicant was quashed by the Court of Cassation and the case was remitted to the State Security Court where it is still pending whilst the applicant remains in detention. Accordingly, the Government’s objection that the applicant could not be qualified as a “victim” should be rejected. 17. The Court considers that this 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 18. In the instant case, the period to be taken into consideration began on 17 September 1993 and ended on 17 December 2003, when the applicant was convicted. It thus lasted 10 years and 3 months.", "During this period, the Istanbul State Security Court 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, the contents of the case-file and the duration of detention”. On two occasions it also mentioned that the case was due to be decided upon (paragraph 10 above). 19. The Court reiterates that it falls, in the first place, to the national judicial authorities to ensure that, in a given case, the detention of an accused person pending trial does not exceed a reasonable time. To this end they must examine all the facts arguing 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 set them out in their decisions on the applications for release.", "It is primarily on the basis of the reasons given in these decisions and of the established facts mentioned by the applicant in his appeals that the Court must determine whether or not there has been a violation of Article 5 § 3 of the Convention (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998‑VIII, § 154). 20. The persistence of reasonable suspicion that the person arrested has committed an offence is a sine qua non for the validity of the continued detention but, after a certain lapse of time, it no longer suffices. The Court must then establish whether the other grounds cited by the judicial authorities continue to justify the deprivation of liberty (see, among other authorities, Ilijkov v. Bulgaria, no. 33977/96, § 77, 26 July 2001, and Labita v. Italy [GC], no.", "26772/95, §§ 152-153, ECHR 2000-IV). 21. The Court takes note of the seriousness of the offence attributed to the applicant and the severity of the relevant punishment. However, it recalls that the danger of absconding cannot solely be assessed on the basis of the severity of the sentenced risked, but must be analysed with reference to a number of other relevant additional elements, which may either confirm the existence of such a danger or make it appear so slight that it cannot justify detention pending trial (see Muller v. France, judgment of 17 March 1997, Reports 1997 II, § 43; Letellier v. France, judgment of 26 June 1991, Series A no. 207, § 43).", "In this regard, the Court notes the lack of such sufficient reasoning in the domestic court’s decisions to prolong the applicant’s remand in custody. 22. As for the reason that the case was at the judgment stage, the Court notes that more than three years elapsed between the moment at which the domestic court pronounced this reasoning for the last time and the delivery of its judgment on the case (paragraph 11 above). 23. Finally, although, in general, the expression “the state of the evidence” may be a relevant factor for the existence and persistence of serious indications of guilt, in the present case it nevertheless, alone, cannot justify the length of the detention of which the applicant complains (see Letellier, cited above; Tomasi v. France, judgment of 27 August 1992, Series A no.", "241‑A; Mansur v. Turkey, judgment of 8 June 1995, Series A no. 319‑B, § 55, and Demirel v. Turkey, no. 39324/98, § 59, 28 January 2003). 24. The foregoing considerations are sufficient to enable the Court to conclude that the length of the applicant’s pre-trial detention, which lasted over 10 years and 3 months, taken together with the stereotype reasoning of the court, has exceeded the reasonable-time requirement.", "There has accordingly been a violation of Article 5 § 3 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 25. 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 26.", "The applicant claimed 35,000 new Turkish liras (YTL) in respect of non-pecuniary damages. 27. The Government considered this amount as excessive and unacceptable. 28. The Court notes that the applicant must have suffered non-pecuniary damage such as distress resulting from the lengthy period in detention on remand, which cannot be sufficiently compensate by finding of a violation.", "Making its assessment on equitable basis, the Court awards the applicant EUR 9,000 in respect of non-pecuniary damage. B. Costs and expenses 29. The applicant also claimed YTL 400 in respect of communication and translation costs, and YTL 7,920 for the expenses incurred before the Court. She submitted that the latter included the visiting and travel expenses of her lawyer, as well as thirty-six hours of work relating to the proceedings before the Court in preparing the application and the observations.", "She claimed that her representative had applied the scale recommended by the Istanbul Bar for applications before the Court. 30. The Government submitted that these claims were exaggerated and not documented. 31. 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 awards the applicant the sum of EUR 2,500 for costs and expenses for the proceedings before the Court. C. Default interest 32. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. 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 9,000 (nine thousand euros) in respect of non-pecuniary damage, and EUR 2,500 (two thousand five hundred euros) for costs and expenses, plus any tax that may be chargeable, to be converted into new Turkish liras at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount[s] 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 February 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerBoštjan M. ZupančičRegistrarPresident" ]