Datasets:
MHGanainy
/
ecthr_cases_paragraphs

Dataset card Data Studio Files Community
1
paragraphs
sequencelengths
8
1.99k
[ "FORMER FIRST SECTION CASE OF ŽUGIĆ v. CROATIA (Application no. 3699/08) JUDGMENT STRASBOURG 31 May 2011 FINAL 31/08/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Žugić v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Anatoly Kovler, President,Nina Vajić,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 10 May 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "3699/08) 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 Žugić (“the applicant”), on 8 January 2008. 2. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. 3. On 28 May 2009 the President of the First Section decided to communicate the complaints concerning access to court, freedom of expression and lack of impartiality to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1925 and lives in Zagreb. A. Civil proceedings 5.", "On 11 December 2000 the public utility company V.O., basing its case on unpaid bills for water supply services, instituted enforcement proceedings against the applicant in the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking payment of the debt. 6. On 24 January 2001 the Court issued a writ of execution (rješenje o ovrsi) ordering the applicant to pay the amounts sought. However, since the applicant challenged the writ by objecting to it on 19 March 2001, the court set it aside. As a consequence, the enforcement proceedings were, pursuant to the relevant legislation, transformed into, and resumed as, regular civil proceedings.", "7. The applicant, who has a formal education as a lawyer but is not an advocate, represented himself in the proceedings. 8. On 15 November 2005 judge J.G.F. of the Zagreb Municipal Court delivered a judgment ruling for the plaintiff.", "9. On 27 December 2005 the applicant appealed against the first‑instance judgment. Section 357 of the Civil Procedure Act provides that an appeal to a second-instance court has to be lodged through a first‑instance court. Under section 358 of the same Act the first-instance court conducts a preliminary examination of the appeal and may declare it inadmissible if it finds that it does not meet certain procedural requirements, for example if it finds that it was lodged outside the statutory time-limit. It is, however, not authorised to decide on the merits of the appeal.", "Therefore, the applicant submitted his appeal intended for Zagreb County Court (Županijski sud u Zagrebu) to Zagreb Municipal Court. In his appeal he wrote, inter alia: “After twenty months of waiting ... on 15 November 2005 the second hearing was held, at which, in substance and without hearing [the parties] (apart from stating that the parties were present and that they maintained their positions) the impugned judgment was rendered. It is indicative to mention here that the judge, before dictating the operative provisions of the judgment, asked the defendant whether ‘he would pay this’ to which the defendant replied ‘where did you get that idea?’ [‘što Vam pada na pamet? ‘]and asked whether she had examined the case file.... The judge angrily turned sideways in her chair and dictated the operative provisions of the judgment in the name of the Republic of Croatia to the typist, using a funny expression [navodeći komičan izraz] that the parties were asking for a reasoned judgment – as if in adversarial proceedings judgments without reasons or instruction on remedies available against them existed.", "Unfortunately, the court did not record these dialogues between the judge and the defendant in the minutes. What judicial professionalism this is! [Kakva li je ovo sudačka profesionalnost!] It is evident from the above-mentioned that in these proceedings no hearing was held in accordance with the law, which amounts to breaches of section 354 paragraph 2 subparagraphs 6 and 11 of the Civil Procedure Act. Apart from this, from the contested judgment or the transcripts of the hearings it cannot be discerned whether the court took any evidence ... for which reason the judgment could not be satisfactorily reasoned ...", "Instead of referring to the evidence taken and assessing its evidentiary value, the court immediately ... states on what basis it arrived at the contested findings, from which it is clear that it accepted all arguments of the plaintiff ...” 10. After it carried out the preliminary examination of the appeal, Zagreb Municipal Court forwarded it together with the case file to Zagreb County Court. 11. On 3 April 2007 Judge M.P. at Zagreb County Court delivered a judgment dismissing the applicant’s appeal and upholding the first-instance judgment.", "12. On 24 July 2007 the applicant lodged a constitutional complaint against the second-instance judgment. On 21 January 2010 the Constitutional Court (Ustavni sud Republike Hrvatske) declared his constitutional complaint inadmissible. It found that even though the applicant relied in his constitutional complaint on the relevant Articles of the Constitution guaranteeing the right to a fair hearing and equality before the law, he had not substantiated his complaint by any constitutional law arguments but had merely repeated the arguments raised in the proceedings before the ordinary courts. Therefore, the Constitutional Court had been unable to examine the merits of his constitutional complaint.", "B. Contempt of court proceedings 13. After it had completed the preliminary examination of the applicant’s appeal of 27 December 2005 in the above proceedings, on 4 January 2006 Judge J.G.F. at Zagreb Municipal Court issued a decision whereby it fined the applicant 500 Croatian kunas (HRK) for contempt of court. The relevant part of the decision read as follows: “I.", "The defendant Nikola Žugić from Zagreb ... is hereby fined 500 [Croatian] kunas because in his appeal of 27 December 2005 he insulted the court by stating: ‘It is indicative to mention here that the judge, before dictating the operative provisions of the judgment, asked the defendant whether ‘he would pay this’, to which the defendant replied ‘where did you get that idea?’ and asked whether she had examined the case file.... The judge angrily turned sideways in her chair and dictated the operative provisions of the judgment in the name of the Republic of Croatia to the typist, using a funny expression that the parties were asking for a reasoned judgment – as if in adversarial proceedings judgments without reasons or instruction on remedies available against them existed. Unfortunately, the court did not record these dialogues between the judge and the defendant in the minutes. What judicial professionalism this is!’ ... In the appeal of 27 December 2005 the defendant, insulted the court by, inter alia, [using] the words quoted in the operative provisions of this decision.", "It would follow from the quoted text that during the main hearing the court communicated with the parties in an improper way, that the judge behaved improperly and that she does not know the law. All this constitutes contempt of court and the statements quoted exceed the limits of necessary respect for the court, even attempting to call into question the knowledge and expertise of the judge at issue, which is an impermissible way for the parties to communicate with the court because it represents a direct insult to the judge as a person, implying that she is ignorant and incompetent to exercise the duty of a judge. When imposing the fine the court took into account the fact that the defendant insulted not only the court as an institution, but also the judge as a person, on account of which he had to be fined pursuant to section 110 taken in conjunction with section 10 of the [Civil Procedure Act].” 14. On 16 January 2006 the applicant lodged an appeal against that decision arguing, inter alia, that his statements had been arbitrarily interpreted by the first-instance court, that they had not been insulting, and that he had not had any intention of insulting anyone. 15.", "By a decision of 3 April 2007 Judge M.P. at Zagreb County Court dismissed the applicant’s appeal and upheld the first-instance decision. The relevant part of that decision read as follows: “In this court’s view, the finding of the first-instance court that in his appeal the defendant insulted the court by making the above statements is correct ... It is to be noted that by the statements made in the appeal the defendant demonstrated disrespect for the court, which undoubtedly represents an improper way for the parties to communicate with the court, and exceeds the limits of a civilised and fair relationship with the court as an institution of a society.” 16. On 24 July 2007 the applicant lodged a constitutional complaint against the second-instance decision.", "On 25 October 2007 the Constitutional Court declared his constitutional complaint inadmissible on the ground that the contested decision did not concern the merits of the case and as such was not susceptible to constitutional review. 17. On 21 May 2008 the Zagreb Municipal Court of its own motion issued a writ of execution by garnishment of a part of the applicant’s pension with a view to collecting the above fine. The applicant appealed and the proceedings are currently pending before the Zagreb County Court. II.", "RELEVANT DOMESTIC LAW A. The Constitutional Court Act 18. The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows: Section 62 “1.", "Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional government, or a legal person invested with public authority, on his or her rights or obligations, or as regards suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, guaranteed by the Constitution (‘constitutional right’)... 2. If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this 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 [revizija] is available, remedies shall be considered exhausted only after a decision on these legal remedies has been given.” B. The Civil Procedure Act 19.", "The relevant part of the 1977 Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991 and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 112/1999, 117/2003 and 84/2008 – “the Civil Procedure Act”), as in force at the relevant time, read as follows: Section 10 “1. ... 2. Unless otherwise provided by this Act, the court shall fine a natural person between 500 and 10,000 [Croatian] kunas, or a legal entity between 2,500 and 50,000 [Croatian] kunas, if they commit a serious abuse of the rights they have in the proceedings.", "3. The fine referred to in paragraph (2) of this section may be imposed on a party and an intervener, as well as on their representative if he or she is responsible for the abuse of rights. 4. The fine shall be imposed by the first-instance court. Outside the main hearing the fine shall be imposed by a single judge or the presiding judge.", "5. ... 6. ... 7. The imposed fine shall be collected automatically [ex officio] as a pecuniary debt in accordance with the rules of enforcement procedure.” Section 110 “1. The first-instance court shall fine a natural person between 500 and 5,000 [Croatian] kunas, or a legal person between 2,000 and 20,000 [Croatian] kunas, if in his, her or its submission they have insulted the court, a party or other participant in the proceedings.", "The fine may also be imposed on a representative of a party or an intervener if he or she is responsible for insulting the court. 2. Provisions of section 10 of this Act shall apply mutatis mutandis to cases referred to in paragraph (1) of this section. 3. Provisions of preceding paragraphs of this section shall apply in all cases where the court imposes a fine pursuant to the provisions of this Act, unless otherwise expressly provided for particular cases.” C. The 2008 Amendments to the 1977 Civil Procedure Act 20.", "The 2008 Amendments to the 1977 Civil Procedure Act (Zakon o izmjenama i dopunama Zakona o parničnom postupku, Official Gazette no. 84/2008 and 123/2008 (corrigendum), which entered into force on 1 October 2008, amended, inter alia, paragraph 7 and added five new paragraphs (8 to 12) to section 10 of the 1977 Civil Procedure Act. The relevant part of the amended section 10 reads as follows: “(7) If the person fined ... does not pay the fine within the fixed time-limit ... the court shall ... inform the [Tax Administration] of the unpaid fine with a view to collecting the fine [through tax enforcement proceedings] ... ... (12)... If within a year of service of ... a decision referred to in paragraph 2 of this section [the Tax Administration] does not succeed in collecting the fine, [it] shall inform ... the court [thereof], whereupon the fine shall be converted into a prison sentence in accordance with the rules of criminal law on converting fines into prison sentences, on which the court that imposed the fine shall issue a decision ....” 21. Section 52(1) of the 2008 Amendments provided that they were applicable to all pending proceedings unless otherwise provided in that section.", "D. The Criminal Code 22. Article 52(3) of the Criminal Code (Kazneni zakon, Official Gazette no. 110/97 with subsequent amendments) reads as follows: “A fine shall be converted into a prison sentence so that one [average] daily income is converted into one day of imprisonment, where the maximum duration of imprisonment into which the fine was converted shall not exceed twelve months.” 23. According to the practice of domestic courts, before taking a decision to convert the fine into a prison sentence a court has to summon and hear the person fined. An appeal always lies against such a decision.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 24. The applicant complained that the imposition of a fine for contempt of court, which he considered unjustified in the circumstances, had violated his freedom of expression. He relied on Article 10 of the Convention, which in its relevant part 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, ... for maintaining the authority and impartiality of the judiciary.” 25. The Government contested that argument.", "A. Admissibility 26. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The arguments of the parties (a) The Government 27. The Government admitted that imposing a fine for contempt of court amounted to an interference with the applicant’s freedom of speech. However, they argued that the interference had been in accordance with the law, pursued a legitimate aim and had been necessary in a democratic society. The decision to fine the applicant had been based on section 110 of the Civil Procedure Act and sought to maintain the authority of the judiciary.", "28. The Government also considered that the interference had been proportionate to its aim for the following reasons. 29. They first emphasised that courts were institutions with the purpose of settling disputes in a civilised manner. This required that all parties behaved appropriately in proceedings, especially in their communication with one another, and that they respected the institution of the court.", "Also, a general principle of civil proceedings was that parties needed to use their rights in the proceedings conscientiously, that is, without abuse. 30. The Government further stressed that the applicant in the present case was a lawyer, of whom it was expected, having regard to his profession and experience, that he would be familiar with the rules of conduct in communication with the court. 31. The Government then argued that the present case was considerably different from the Kyprianou case (see Kyprianou v. Cyprus, no.", "73797/01, § 31, 27 January 2004). In that case, the applicant had committed contempt of court at the hearing, immediately after the events which provoked his anger and discontent had taken place, and therefore his reaction had been emotional. In the instant case, the applicant had expressed his discontent in writing, that is after the events which had provoked his discontent had occurred. 32. The Government submitted that the applicant could have responded in a different manner to express his dissatisfaction.", "For example, he could have asked for his remarks to be recorded in the minutes of the hearing, or that the judge appointed to hear the case be replaced. Moreover, the applicant, as a lawyer, could have presented his arguments set out in his appeal, as well as his discontent, in an appropriate and professional manner. It was evident that the applicant’s right to express his disagreement with the court decisions, the manner in which the proceedings had been conducted, and the conduct of the judge appointed to hear the case had not been restricted. The only issue in dispute was the manner in which the applicant had done so, that is, by inappropriate communication in contempt of court. 33.", "Furthermore, the Government noted, the applicant had been entitled to appeal against the decision by which he had been fined. As opposed to the Kyprianou case, the applicant’s appeal postponed the enforcement. 34. Lastly, the Government averred that there was a significant difference compared to the Kyprianou case where, in spite of less severe alternatives, the applicant had received a prison sentence, which the Court assessed as disproportional. However, in the present case the applicant had received the lowest fine prescribed for the contempt of court.", "35. In the light of the foregoing, the Government considered that the interference in the present case had been “necessary in a democratic society” and therefore had not contravened Article 10 of the Convention. (b) The applicant 36. The applicant first cited the old Latin proverb which says it is unbecoming to a judge to be angry (Iudicem irasci dedecet or Irasci iudicem non decet). 37.", "He further submitted that his remarks had not been insulting, and that he had not had any intention of insulting either Judge J.G.F. or the court as an institution. Rather, his statements had been arbitrarily interpreted by the domestic courts. In particular, he had never said, as implied by the first‑instance court, that Judge J.G.F. was incompetent or did not know the law.", "38. In his view he had been fined for speaking the truth, which had been his duty as a party to court proceedings. He also submitted that Judge J.G.F. was in no way liable for humiliating and disparaging him throughout the proceedings, whereas he had received a hefty fine for the slightest criticism of her work. 39.", "Furthermore, in the applicant’s view, the judge who had felt personally offended by his remarks had fined him for contempt of court even though it had been clear that he had only criticised her performance in a particular case and not the court as an institution. 2. The Court’s assessment 40. The Court reiterates that Article 10 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 (see, for example, Kubli v. Switzerland (dec.), no. 50364/99, 21 February 2002).", "Furthermore, freedom of expression protects not only the substance of the ideas and information expressed but also the form in which they are conveyed (see, for example, Mariapori v. Finland, no. 37751/07, § 62, 6 July 2010; Kyprianou, cited above, § 174). The Court therefore considers that fining the applicant for contempt of court in the present case amounted to an interference with his freedom of expression, as guaranteed by Article 10 § 1 of the Convention. 41. The Court further reiterates in this connection that this Article does not guarantee wholly unrestricted freedom of expression and that the exercise of this freedom carries with it “duties and responsibilities” (see, for example, Europapress Holding d.o.o.", "v. Croatia, no. 25333/06, § 58, 22 October 2009). As set forth in Article 10 § 2, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, for example, Skałka v. Poland, no. 43425/98, § 32, 27 May 2003, and Kubli, cited above). In particular, the parties’ freedom of expression in the courtroom is not unlimited and certain interests, such as the authority of the judiciary, are important enough to justify restrictions on this freedom (see Mariapori, loc.", "cit.). 42. The Court finds in this regard that in the present case the interference with the applicant’s freedom of expression was prescribed by law, in particular section 110(1) of the Civil Procedure Act, and that it pursued a legitimate aim of maintaining the authority of the judiciary within the meaning of Article 10 § 2 of the Convention. Therefore, the only question for the Court to determine is whether that interference was “necessary in a democratic society”. In so doing the Court must ascertain whether on the facts of the case a fair balance was struck between, on the one hand, the need to protect the authority of the judiciary and, on the other hand, the protection of the applicant’s freedom of expression.", "43. The test of “necessity in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered 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, for example, Kyprianou, cited above, § 170; and Skałka, cited above, § 33, 27 May 2003). 44.", "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 they were made. In particular, it must determine whether the interference in question was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see, for example, Nikula v. Finland, no. 31611/96, § 44, ECHR 2002‑II, and Skałka, cited above, § 35). 45.", "The phrase “authority of the judiciary” includes, in particular, the notion that the courts are, and are accepted by the public at large as being, the proper forum for the ascertainment of legal rights and obligations and the settlement of disputes relative thereto; further, that the public at large have respect for and confidence in the courts’ capacity to fulfil that function (see Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 55, Series A no. 30). The work of the courts, which are the guarantors of justice and which have a fundamental role in a State governed by the rule of law, needs to enjoy public confidence. It should therefore be protected against unfounded attacks.", "However, the courts, as with all other public institutions, are not immune from criticism and scrutiny (see Skałka, cited above, § 34). Therefore, while parties are certainly entitled to comment on the administration of justice in order to protect their rights, their criticism must not overstep certain bounds (see Saday v. Turkey, no. 32458/96, § 43, 30 March 2006). In particular, a clear distinction must be made between criticism and insult. If the sole intent of any form of expression is to insult a court, or members of that court, an appropriate sanction would not, in principle, constitute a violation of Article 10 of the Convention (see Skałka, loc.cit).", "46. In the present case, in its decision of 4 January 2006 the Zagreb Municipal Court found that the applicant’s statements made in his appeal of 27 December 2005 were insulting both to the Judge J.G.F. and the court as an institution (see paragraph 13 above). This finding was endorsed by the Zagreb County Court in its decision of 3 April 2007 (see paragraph 15 above). 47.", "The Court sees no reason to hold otherwise as the present case can be compared to those in which the Convention organs found that the applicants’ statements had been insulting (see, for example, Saday, cited above, in which the accused described the Turkish judiciary as “torturers in robes”; W.R. v. Austria, no. 26602/95, Commission decision of 30 June 1997, in which counsel had described the opinion of a judge as “ridiculous”; and Mahler v. Germany, no. 29045/95, Commission decision of 14 January 1998, where counsel had asserted that the prosecutor had drafted the bill of indictment “in a state of complete intoxication”). In the instant case the impugned statements, framed in belittling and impertinent terms, were not only a criticism of the first-instance judgment of 15 November 2005 and the way Judge J.G.F. had conducted the proceedings, but also, as found by the domestic courts, implied that she was ignorant and incompetent.", "There is nothing to suggest that the applicant could not have raised the substance of his criticism without using the impugned language (see A. v. Finland (dec.), no. 44998/98, 8 January 2004). 48. Furthermore, in assessing the proportionality of the interference, the nature and severity of the sanction imposed are also factors to be taken into account (see, for example, Keller v. Hungary (dec.), no. 33352/02, 4 April 2006; and Kwiecień v. Poland, no.", "51744/99, § 56, ECHR 2007‑I). In this respect, the Court notes that the applicant in the present case was fined HRK 500, that is, the minimum penalty under section 110(1) of the Civil Procedure Act (see paragraphs 13 and 19 above). 49. In the light of the foregoing, the Court considers that the reasons given by the domestic courts in support of their decisions were “relevant and sufficient” and that the fine imposed on the applicant was not disproportionate to the legitimate aim pursued, namely, maintaining the authority of the judiciary. Therefore, the interference with the applicant’s freedom of expression was “necessary in a democratic society”.", "There has accordingly been no violation of Article 10 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LACK OF ACCESS TO COURT 50. The applicant further complained that his right of access to court had been breached in that the Constitutional Court had never decided on his (first) constitutional complaint (see paragraph 12 above) lodged in the above civil proceedings on 24 July 2007 against the Zagreb County Court judgment of 3 April 2007. He relied on Article 6 § 1 of the Convention, which in its relevant part reads as follows: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [an] impartial tribunal established by law.” 51.", "The Government submitted that the Constitutional Court had given its decision on the applicant’s constitutional complaint on 21 January 2010, and provided a copy thereof. 52. The applicant did not contest the Government’s submissions. 53. In the light of the evidence submitted by the Government confirming that the Constitutional Court did eventually decide on the applicant’s constitutional complaint, and given that the applicant did not dispute their submissions nor reformulate his complaint, the Court considers that this complaint is inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LACK OF IMPARTIALITY 54. The applicant further complained, also under Article 6 § 1 of the Convention, that Zagreb Municipal Court lacked impartiality because the same judge who had felt personally offended by remarks made in his appeal of 27 December 2005 had fined him for contempt of court. 55. The Government contested that argument.", "A. Admissibility 56. The Government disputed the admissibility of this complaint, arguing that Article 6 § 1 of the Convention was not applicable to the contempt of court proceedings against the applicant. 1. The arguments of the parties 57. The Government argued that Article 6 was not applicable in this case, neither under its “civil law” head nor under its “criminal law” head.", "58. In their view, fining the applicant for contempt of court did not give rise to a “dispute” over, nor did it involve determination of, his civil rights or obligations. 59. Likewise, the case did not fall under the “criminal head” of Article 6 either. Relying on the Court’s case law, in particular the judgments in the Ravnsborg and Putz cases (see Ravnsborg v. Sweden, 23 March 1994, Series A no.", "283‑B, and Putz v. Austria, 22 February 1996, Reports of Judgments and Decisions 1996‑I), the Government averred that the measures ordered by courts under the rules sanctioning disorderly conduct in court proceedings did not fall under Article 6 of the Convention, since they were akin to exercise of disciplinary powers. 60. In particular the Government submitted that the applicant’s case did not meet any of the criteria developed by the Court in cases of contempt of court, namely, the legal classification of the offence in domestic law, the nature of the offence, and the nature and severity of the penalty. Firstly, imposing a fine for contempt of court was prescribed by the Civil Procedure Act and was possible exclusively within the context of civil proceedings. This fine was not correlated with the fines imposed under the Criminal Code.", "Secondly, the contempt of court, for which the applicant was fined, did not constitute a criminal offence under Croatian law, nor was the perpetrator’s guilt being determined according to the criteria of criminal law. Also, the purpose of imposing a fine for contempt of court was not the same as the purpose of imposing sanctions under the Criminal Code, because it was a disciplinary measure against disorderly conduct in court proceedings. Thirdly, the law stipulated that the fine imposed on the applicant could range from HRK 500 to HRK 5,000. The applicant had been fined with the lowest possible fine of HRK 500. The fine was to be enforced in accordance with the provisions of the Enforcement Act, and the possibility of converting the fine into a prison sentence was not provided.", "This sanction was not being entered into any records, and the applicant, apart from paying the fine, had not suffered any other consequences. 61. Having regard to the above-mentioned, the Government considered that Article 6 was not applicable in the present case. 62. The applicant did not make any specific comments on this issue.", "However, it follows from his submissions that he considered Article 6 to be applicable. 2. The Court’s assessment 63. The Court considers that it first has to examine whether the fine for contempt of court imposed on the applicant by the Zagreb Municipal Court amounted to a determination of any of the applicant’s civil rights or obligations. It reiterates in this connection that such fines aim to ensure the proper administration of justice and therefore have the characteristics of a sanction not involving the determination of civil rights or obligations (see Veriter v. France, no.", "25308/94, Commission decision of 2 September 1996, Decisions and Reports (DR) 86-B, pp. 96 and 101-103). 64. The next question is whether the fine for contempt of court imposed on the applicant constituted the determination of a criminal charge against him. The Court reiterates that the question whether the criminal head of Article 6 applies to the contempt of court proceedings has to be assessed in the light of three alternative criteria laid down by the Court in the Engel case (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no.", "22): (a) the classification of the offence under the domestic law, (b) the nature of the offence and (c) the nature and degree of severity of the penalty that the person concerned risks incurring (see Ravnsborg, cited above, § 30; Putz, cited above, § 31; T. v. Austria, no. 27783/95, § 61, ECHR 2000‑XI; Kubli, cited above; Jurík v. Slovakia (dec.), no. 50237/99, 18 March 2003; Kyprianou, cited above, § 31; Zaicevs v. Latvia, no. 65022/01, § 31, ECHR 2007‑IX (extracts); and Veriter, cited above). 65.", "As to the legal classification of the offence under the domestic law, the Court notes that the behaviour for which a fine was imposed on the applicant is not formally classified as a criminal offence under Croatian law. This follows from the fact that the fine imposed on the applicant was based on section 110(1) of the Civil Procedure Act, and not on provisions of the Criminal Code, that such a fine is not entered in the criminal record and that its amount does not depend on income as in criminal law (see, mutatis mutandis, Ravnsborg, cited above, § 33; Putz, cited above, § 32; Kubli, cited above; R.T. v. Austria, no. 27783/95, Commission’s report of 8 September 1999, unreported, § 78; and Veriter, cited above, pp. 101‑102). 66.", "As to the nature of the offence in question, the Court reiterates that rules enabling a court to sanction disorderly conduct in proceedings before it are a common feature of legal systems of the Contracting States. Such rules and sanctions derive from the indispensable power of a court to ensure the proper and orderly functioning of its own proceedings. Measures ordered by courts under such rules are more akin to the exercise of disciplinary powers than to the imposition of a punishment for commission of a criminal offence. The kind of proscribed conduct for which the applicant in the present case was fined in principle falls outside the ambit of Article 6 of the Convention. The courts may need to respond to such conduct even if it is neither necessary nor practicable to bring a criminal charge against the person concerned (see Ravnsborg, cited above, § 34; Putz, cited above, § 33; Kubli, cited above; Jurík, cited above; R.T. v. Austria, cited above, § 79; and Veriter, cited above, p. 102).", "The Court sees no reason for assessing the fine imposed on the applicant in a different manner. 67. As to the nature and severity of the penalty, the Court first reiterates that notwithstanding the non-criminal character of the proscribed misconduct, the nature and degree of severity of the penalty that the person concerned risked incurring may bring the matter into the category of “criminal” matters (see Ravnsborg, cited above, § 35; Putz, cited above, § 34; Kubli, cited above; Balyuk v. Ukraine (dec.), no. 17696/02, 6 September 2005; and Veriter, cited above, p. 102). 68.", "The applicant in the present case was fined HRK 500, the minimum penalty, whereas the maximum penalty which he risked incurring under section 110(1) of the Civil Procedure Act amounted to HRK 5,000 (see paragraph 19 above). In the Court’s view, neither the relatively small fine imposed nor the possible amount of the fine attain a level that would make it a “criminal” sanction (see, mutatis mutandis, Ravnsborg, loc. cit., § 35; Kubli, cited above). As already noted above (see paragraph 65), unlike ordinary fines, the one at issue is not entered in the criminal record (see, mutatis mutandis, Ravnsborg, loc. cit., § 35; Putz, cited above, § 37; Kubli, cited above; and Veriter, cited above, p. 102).", "Furthermore, section 10(7) of the Civil Procedure Act, as in force at the relevant time, did not provide for the possibility of converting a fine imposed under section 110(1) of the same Act into a prison term (see paragraph 19 above, and mutatis mutandis, Jurík, cited above; and Veriter, cited above, p. 102). This possibility was introduced with the entry into force of the 2008 Amendments to the Civil Procedure Act on 1 October 2008 (see paragraph 20 above). However, even then the fine was not convertible into imprisonment on default (see, mutatis mutandis, Balyuk, cited above) since it could be converted into a prison sentence only in limited circumstances, namely if the fine was not paid and the Tax Authority could not collect it in tax enforcement proceedings (see paragraph 20 above, and mutatis mutandis, Putz, cited above, § 37, and Kubli, cited above). In this connection the Court notes that in the applicant’s case it is most unlikely that the conditions for converting the fine into a prison sentence would ever materialise, because the authorities, with a view to collecting the fine, issued a writ of execution by garnishment of a part of the applicant’s pension (see paragraph 17 above), that is, a stable source of income certainly sufficient to cover the amount of the fine. Lastly, according to the practice of domestic courts, a decision to convert the fine into a prison sentence could only be taken after hearing the applicant who would also have the right to appeal against such a decision (see paragraph 23 above, and Ravnsborg, cited above, § 35; see also, by converse implication, T. v. Austria, cited above, § 66).", "69. Having regard to these factors in the light of the disciplinary nature of the offence (see paragraph 66 above), the Court considers that the penalty the applicant risked incurring was not sufficiently severe to bring the “criminal head” of Article 6 § 1 of the Convention into play (see, mutatis mutandis, Brown v. the United Kingdom (dec.), no. 38644/97, 24 November 1998). 70. In view of all the above considerations, the Court finds that the proceedings leading to the imposition of the above fine on the applicant concerned neither determination of “civil rights or obligations” nor “criminal charge” within the meaning of Article 6 § 1 of the Convention.", "Accordingly, the guarantees of that provision do not extend to those proceedings. 71. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 72.", "Lastly, the applicant complained under Articles 6 § 1 and 14 of the Convention about the outcome of the above civil proceedings and that they had been unfair. 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.” 73. As regards the applicant’s complaint under Article 6 § 1 of the Convention, the Court notes that he complained about the outcome of the proceedings, which, unless it was arbitrary, the Court is unable to examine under that Article. Moreover, there is no evidence to suggest that the courts lacked impartiality or that the proceedings were otherwise unfair. In the light of all the material in its possession, the Court considers that in the present case the applicant was able to submit his arguments before courts which offered the guarantees set forth in Article 6 § 1 of the Convention and which addressed those arguments in decisions that were duly reasoned and not arbitrary.", "74. As regards the applicant’s complaint under Article 14 of the Convention, the Court considers that it is wholly unsubstantiated. 75. It follows that these complaints are inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention. FOR THESE REASONS, THE COURT 1.", "Declares unanimously the complaint concerning freedom of expression admissible and the remainder of the application inadmissible; 2. Holds by four votes to three that there has been no violation of Article 10 of the Convention. Done in English, and notified in writing on 31 May 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenAnatoly KovlerRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Spielmann, joined by Judges Hajiyev and Nicolaou is annexed to this judgment. A.K.S.N.", "DISSENTING OPINION OF JUDGE SPIELMANN, JOINED BY JUDGES HAJIYEV AND NICOLAOU I am unable to agree with the majority view that there has been no violation of Article 10 of the Convention. This is a rather unusual case in that the alleged contempt of court stems from the wording of a procedural document. In my view, nothing in the wording of the appeal went beyond the acceptable limits. Admittedly, the exercise of the right to freedom of expression may be subject to limitations necessary for maintaining the authority of the judiciary. The case-law cited in paragraph 47 concerns instances where applicants’ statements have undoubtedly been grossly insulting.", "Judges in those cases had been described as “torturers in robes” and as “ridiculous”, and a prosecutor as having acted “in a state of complete intoxication.” It goes without saying that such statements cannot and should not be protected by Article 10 of the Convention. In the case at hand, the applicant only described, albeit in strong words, what had happened during the hearing. His misgivings concerning the judge’s attitude during the hearing were part and parcel of his grounds of appeal and were characterised in legal terms under section 354, paragraph 2, subparagraphs 6 and 11, of the Civil Procedure Act. In paragraph 42 of the judgment, the Court duly reiterates that it “must ascertain whether on the facts of the case a fair balance was struck between, on the one hand, the need to protect the authority of the judiciary and, on the other hand, the protection of the applicant’s freedom of expression”. The Court rightly adds in paragraph 44: “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 they were made ....[T]he 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 themselves on an acceptable assessment of the relevant facts” (emphasis added).", "I disagree with the assessment of the facts. The applicant’s statements in his appeal fell short of being insulting and hence the reasons given by the domestic courts in support of their decisions were, in my view, not “relevant and sufficient”." ]
[ "FIRST SECTION (as composed before 1 April 2006) CASE OF KUZNETSOV AND OTHERS v. RUSSIA (Application no. 184/02) JUDGMENT STRASBOURG 11 January 2007 FINAL 11/04/2007 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 Kuznetsov and Others v. Russia, The European Court of Human Rights (Former Section I), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrP.", "Lorenzen,MrsS. Botoucharova,MrA. Kovler,MrV. Zagrebelsky, MrsE. Steiner,MrK.", "Hajiyev, judges, and Mr S. Nielsen, Section Registrar, Having deliberated in private on 7 December 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 184/02) 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 Mr Konstantin Nikanorovich Kuznetsov and one hundred and two other Russian nationals whose names are listed in the schedule (“the applicants”), on 17 December 2001. 2. The applicants were represented before the Court by Mr A. Leontyev and Mr J. Burns, lawyers practising in St. Petersburg and Mr R. Daniel, a barrister of the Bar of England and Wales.", "The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicants alleged, in particular, a violation of Articles 8, 9, 10 and 11 of the Convention, taken alone or in conjunction with Article 14 of the Convention, in that their meeting for religious worship had been unlawfully disrupted. They further complained under Articles 6 and 13 of the Convention that they had been denied a fair hearing and an effective remedy for their grievances. 4.", "A hearing took place in public in the Human Rights Building, Strasbourg, on 9 September 2004 (Rule 54 § 3). There appeared before the Court: (a) for the GovernmentMrP. Laptev, Representative of the Russian Federation at the European Court of Human Rights, MrY. Berestnev, Counsel, MrD. Yuzvikov,Adviser; (b) for the applicantsMrR.", "Daniel,Counsel,MrA. Leontyev, MrJ. Burns,Advisers. The Court heard addresses by Mr Laptev and Mr Daniel. 5.", "By a decision of 9 September 2004, following the hearing on admissibility and the merits, the Court declared the application partly admissible. 6. The applicants, but not the Government, filed further written observations on the merits (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7.", "The applicants are Jehovah's Witnesses. The applicant Mr Konstantin Nikanorovich Kuznetsov is a representative of the Administrative Centre of Jehovah's Witnesses in Russia. The other applicants are members of the Chelyabinsk community of Jehovah's Witnesses. A. Background of the case 1.", "Registration of the Chelyabinsk community 8. Between 1997 and 2001 the Chelyabinsk community of Jehovah's Witnesses filed twelve applications for State registration with the regional Department of the Ministry of Justice. Their applications were refused on 17 May 1996, 20 June and 3 November 1997, 21 January, 30 April, 28 June, 15 July and 16 December 1999, 30 June and 17 August 2000, 11 May and 24 September 2001. Each refusal was justified by reference to alleged formal defects in the registration documents. 9.", "The applicants complained to a court. On 24 July 2002 the Tsentralniy District Court of Chelyabinsk ruled that the refusal of 24 September 2001 had been unlawful. On 28 October 2002 the Chelyabinsk Regional Court upheld this decision and ordered the registration of the Chelyabinsk community of Jehovah's Witnesses. On 31 March 2003 the community was officially registered by the Chief Directorate of the Ministry of Justice for the Chelyabinsk Region. 2.", "Criminal investigation into the local community of Jehovah's Witnesses 10. In the applicants' submission, Ms Yekaterina Gorina, appointed by the Chelyabinsk Regional Governor as Chairwoman of the regional Human Rights Commission (“the Commissioner”), had attempted on several occasions to initiate criminal proceedings against the Chelyabinsk community of Jehovah's Witnesses on the ground that the community had “lured” young children into their “sect”. 11. On 25 May 1999 a senior investigator with the Chelyabinsk town prosecutor's office found no indications of a criminal offence and decided not to open a criminal investigation into the activities of the members of the Jehovah's Witnesses' community. 12.", "Following the Commissioner's intervention, the decision of 25 May 1999 was reversed and an additional inquiry was ordered. 13. On 3 March 2000 the deputy Chelyabinsk town prosecutor again dismissed the allegations against the members of the Jehovah's Witnesses' community on the ground that no evidence pointing towards a criminal offence could be found. 3. Negotiation of the lease agreement 14.", "On 6 February 1999 Mr Z., a member of the local community of Jehovah's Witnesses, acting on behalf of the Administrative Centre of the Religious Organisation of Jehovah's Witnesses, negotiated a lease agreement with Mr U., principal of vocational training college no. 85 in Chelyabinsk, in respect of the college auditorium and associated facilities. According to Article 1.1 of the lease agreement, the premises were rented for the purpose of holding religious meetings on Tuesdays between 7 a.m. and 9 p.m. and on Sundays between 10 a.m. and 4 p.m., outside the normal college teaching hours. 15. The lease agreement was intended to run from 7 February to 31 December 1999.", "It also contained a provision that it would be automatically renewed on the same terms and conditions and for the same period unless either side gave one month's advance notice of its intent to terminate the agreement. No such notice appears to have been given by either party. Thereafter the agreement continued to run for the extended one-year period, but with the lessees only authorised to terminate it subject to two months' notice in writing. There was no reciprocal power for the college to terminate the agreement during the extended period. 16.", "By April 2000 the applicants had been using the college facilities for fourteen months and had paid their rent on time and in accordance with the terms and conditions. As a means of raising additional revenue for the college, its principal entered into similar lease agreements with four other organisations. 4. Attempts to terminate the lease agreement 17. On 31 March 2000 the Chief Directorate for Vocational Training and Science of the Chelyabinsk Regional Administration issued an order prohibiting all educational establishments in the Chelyabinsk Region from renting out their premises for religious services, meetings, and so forth.", "18. On 12 April 2000 the Commissioner, together with an unidentified senior police officer, visited Mr U., principal of college no. 85, and attempted to persuade him to terminate the lease agreement with the applicants. The principal refused the request. The Commissioner demanded to see the agreement and took a photocopy of it.", "She then asked a number of detailed questions about the days and times of the Jehovah's Witnesses' meetings. The principal provided the information. B. Alleged disruption of a religious meeting on 16 April 2000 19. On Sunday 16 April 2000, in accordance with the lease agreement, the Jehovah's Witnesses used the college facilities.", "Two consecutive meetings were on the agenda. The first meeting ended without incident. 20. The second meeting, from 1.30 to 3.30 p.m., was of a group with special needs; most of the participants were profoundly deaf. Many of those in attendance were elderly and also had impaired vision.", "A person trained in sign language provided interpretation at the meeting, the purpose of which was to study the Bible and join in public worship. The meeting was open to the general public: attendants were positioned near the entrance to the meeting place to greet newcomers and assist with seating. 21. The first part of the meeting was a talk given from the platform by Mr Kuznetsov, who had a mastery of sign language. There were 159 persons present, including all the applicants.", "22. At some time between approximately 2.10 and 2.15 p.m. the Commissioner entered the foyer which gives access from the street to the meeting place, holding a child by the hand. The applicant Mr Setdarberdi Oregeldiev, who is profoundly deaf but has no speech impairment, was the attendant on duty. He went out into the foyer to greet the Commissioner and the child and show them to a seat. Realising that the visitor was not deaf, another applicant, Mr Dmitri Gashkov, who did not have impaired speech or hearing, went to assist.", "He invited the Commissioner into the meeting hall and offered her a chair; she refused and said that the police were about to arrive. 23. After this brief exchange the Commissioner left the foyer. The speaker went on with his talk, which ended at approximately 2.25 p.m. 24. The second part of the meeting was conducted in sign language.", "This part was in progress, with about 15 minutes left and 45 minutes to go before the end of the contracted rental time of 4 p.m., when the Commissioner again entered the foyer, this time without the child. She was now accompanied by Mr Tomskiy, managing director of the Commissioner-affiliated commercial company Man. Law. Power, and by two senior police officers, Mr Vildanov, deputy head of the District Inspectors' Service of the Traktorozavodskiy Police Department of Chelyabinsk, and Mr Lozovyagin, a senior district inspector with the same department. Mr Tomskiy was holding and using a camcorder to film.", "25. The Commissioner led the way forward and walked to the threshold of the door into the meeting hall. Mr Tomskiy was a short distance behind, filming with the camcorder. One of the applicants, Ms Lappo, who was not hearing-impaired and was sitting close to the door in a position to observe the events, later testified before the District Court as follows: “On 16 April 2000 a woman accompanied by two police officers and a man in plain clothes came to the meeting. They stood in the entrance so that I couldn't see the programme.", "The Commissioner said to one of the men 'Stop the meeting', but he hesitated and said 'But they are deaf mutes'. I told one of the congregation to go and get Konstantin [Kuznetsov]. When Konstantin came out to them there was a conversation with raised voices. The Commissioner asked if there were children in the hall and whether they were all with their parents. Then they asked Konstantin for his passport in an unpleasant manner...", "...When I found out who the Commissioner was I was very displeased. I demand that you fire her from her position in the Human Rights Commission...” When asked by the judge what the Commissioner had said to the police officer, Ms Lappo responded: “She said: 'You – go up on to the stage and say that the congregation has to disperse'.” 26. Mr Kuznetsov approached the Commissioner and the police officers. As he was standing in the doorway with his back to the meeting hall, the police officer Mr Lozovyagin asked him for his identity papers. He also asked Mr Kuznetsov whether he had a registered residence in Chelyabinsk.", "Mr Lozovyagin testified before the District Court as follows: “So I asked him [Kuznetsov] to show me his passport. It showed that he was registered in the Krasnodar Region. I told him that he did not have the right to conduct arrangements without documents”. Mr Kuznetsov submitted that that statement had been incorrect; it was true that his registered place of birth was in the Krasnodar Region, but he also had a properly and lawfully registered temporary residence in Chelyabinsk. 27.", "In his testimony before the District Court, Mr Lozovyagin continued as follows: “I told Kuznetsov that their organisation did not have the right to conduct its activities without the appropriate documents. He promised to bring the documents to the police station. I asked him to produce the documents. He said 'They exist and are elsewhere', but which documents and where he did not say. I asked him for a document confirming his relationship to the organisation...” Responding to the judge's question about the violations of law and order that he had observed, Mr Lozovyagin said: “Yes, to start with a meeting of an organisation whose activities could not be confirmed by any documents... By law I had to stop the activities until the documents were produced.” This was confirmed by the police officer Mr Vildanov who spoke as follows before the District Court: “Lozovyagin said that the meeting should no longer be conducted and that documents should be prepared giving permission [for services of worship in educational establishments].” In their written submissions on the admissibility and merits of the case, the Government indicated that Mr Lozovyagin had invited Mr Kuznetsov to cancel all events until such time as the appropriate documents had been produced.", "28. Mr Kuznetsov submitted that he had been faced with authoritarian demands and the intimidating behaviour of the Commissioner and the police and had thought it best to comply. He described the situation in the following manner: “I believe that we were conducting the meetings on a lawful basis. Pressure was being put on me. Tomskiy gave me an official warning.", "I was afraid they would start removing those present at the meeting by force. Vildanov and Lozovyagin were in uniform. I understood that they were in a position of authority and must be obeyed...” 29. Mr Kuznetsov went to the platform, interrupted the Bible discussion and made an announcement in sign language: “Police. We have to submit”.", "The attendees offered no resistance. They gathered their personal belongings and filed out of the meeting place and the foyer. The Commissioner and the police officers stood outside the building and watched; Mr Tomskiy was no longer filming. 30. According to the applicants, the Commissioner came up with several conflicting and mutually exclusive versions of her role in the events.", "Initially she maintained that the visit had been purely for the purpose of fact-finding; that neither she nor the police had done anything to cause the meeting to be stopped; and that Mr Kuznetsov had stopped the meeting entirely of his own free will. As the case progressed and more evidence was heard from eyewitnesses who testified to the part played by her and the police, the Commissioner eventually admitted that steps had indeed been taken to stop the meeting; however, she blamed the police. She insisted that she had made no demands to Mr Kuznetsov as the operation had been organised and carried out by the police officials. At the trial, however, she was pressed to say that she had agreed with and supported the police decision. Finally, in explaining her agreement with the police decision and when pressed as to why, as Chairwoman of the Human Rights Commission, she had given her agreement, she gave the following answer: “I still consider these actions to be lawful – I was defending the rights of all the children who study at college no.", "85. [Question:] In which documents is information about the danger of Jehovah's Witnesses to the neighbourhood contained? [The Commissioner:] As far as I'm concerned, the reports in the press are sufficient.” C. Termination of the lease agreement 31. On 17 April 2000, the day after the disruption of the religious meeting, the principal of college no. 85 informed Mr Z. that the lease agreement between the college and the community of Jehovah's Witnesses would be terminated as of 1 May 2000 “because of certain irregularities committed by the college administration at the time of its signing”.", "D. The applicants' complaints and judicial proceedings 1. Complaint to a prosecutor's office 32. On an unspecified date the applicants complained to the Chelyabinsk town prosecutor about the actions of the Commissioner and the police officers. They requested a criminal investigation into the officials' actions. 33.", "The prosecutor's office put questions to the Commissioner, Mr Lozovyagin and Mr Vildanov. In their written statements of 3 May 2000 the officials claimed that they had investigated a complaint by a 15-year-old girl who had been “lured” into the Jehovah's Witnesses “sect”. The Commissioner stated that “Lozovyagin and Vildanov [had] decided to halt the event, which was being held by an unknown organisation in sign language”. Mr Lozovyagin did not deny that he had asked Mr Kuznetsov for documents and told him that the event would be halted until such time as they had been produced. Mr Vildanov testified in the same vein.", "As to the lawfulness of their actions, all three officials claimed that, as it was not registered with the State as a legal entity, the Chelyabinsk community of Jehovah's Witnesses had no right to hold religious services and that the lease agreement with the college principal had been null and void. 34. On an unspecified date the prosecutor's office decided not to institute criminal proceedings against the Commissioner and the police officers. 2. Proceedings before the courts 35.", "On 11 July 2000 the applicants filed a civil complaint with the Sovietskiy District Court of Chelyabinsk alleging unlawful actions on the part of the Commissioner. 36. On 13 November 2000 the applicants amended their complaint and joined Mr Tomskiy, Mr Lozovyagin, Mr Vildanov and Mr Kuryshkin, deputy head of the Traktorozavodskiy police department, as co-defendants. The applicants alleged violations of their rights to freedom of religion and freedom of association, as guaranteed both by the Russian Constitution and the Convention. 37.", "During the trial the presiding judge did not consent to the use of audio-recording equipment provided by the applicants' lawyers. However, this injunction applied only to advocates and one of the applicants was able to record the trial on a personal audio recorder. 38. On 25 January 2001 the Sovietskiy District Court of Chelyabinsk gave judgment. It found it established that the Commissioner, Mr Tomskiy, Mr Lozovyagin and Mr Vildanov had arrived at college no.", "85 on 16 April on a fact-finding mission to check whether a religious meeting had been taking place there. However, as it had been Mr Kuznetsov who had got up on the stage and announced, in sign language, that the meeting was to end, the District Court found that the applicants had failed to show that the religious meeting had been terminated on the defendants' orders. As regards the assessment of the evidence given by the applicants, the District Court held as follows: “Assessing the statements given by certain plaintiffs, and in particular by Ms Lappo and Ms Kadyrova, who claimed that they had heard Ms Gorina giving the police officers the instruction to halt the meeting and that they, in turn, had relayed it to Mr Kuznetsov... the court takes into account the fact that these individuals are interested in the outcome of the proceedings and, for that reason, the court views their submissions critically ... During the trial, none of the State officials... admitted to taking action to halt the meeting; their position concurs with the witness statements given by many of the plaintiffs, who confirmed that they had not entered the hall but remained in the foyer”. The District Court dismissed the applicants' complaint for their failure to prove that the early termination of the meeting had been brought about by the Commissioner and her aides. 39.", "The applicants filed a statement of appeal. They pointed to multiple admissions by the Commissioner and the police officers, before the District Court and in their statements to the prosecutor dated 3 May 2000, that they had instructed Mr Kuznetsov to terminate the meeting. They also submitted that the concordant statements of fifteen applicants could not be rejected as those of “interested witnesses” and that the District Court had not specified what the applicants' “interest” had been, given that no claim for damages had been filed. 40. On 28 June 2001 the Chelyabinsk Regional Court, ruling on an appeal by the applicants, upheld the judgment of 25 January 2001.", "The Regional Court repeated verbatim the reasoning of the District Court. It did not address the arguments set out in the statement of appeal. 3. Complaint to the Ombudsman 41. The applicants also complained about the actions of the regional Commissioner to Mr Mironov, Ombudsman of the Russian Federation.", "42. On 1 December 2000 the Ombudsman sent a letter to Mr Ustinov, the Prosecutor General of the Russian Federation. The Ombudsman strongly condemned the use of derogatory terms such as “sect” and “totalitarian sect” in the documents issued by State officials. In its relevant part the letter read as follows: “...In particular, the letter from the deputy Prosecutor General, Ye.G.Chuganov, to the Chairwoman of the Governor's Commission for Human Rights in the Chelyabinsk Region, Ye.V.Gorina, was widely distributed... It recommended using as reference material on the activity of the Jehovah's Witnesses the book An Introduction to Sectarianism by A. Dworkin, and the handbook New Destructive and Occult-Related Religious Organisations in Russia, prepared by the Missionary Department of the Moscow Patriarchate [of the Russian Orthodox Church]...", "The publication referred to in the letter is highly condemnatory in respect of certain faiths. It reflects the judgment of one religious organisation about others and its contents serve to prove the 'authenticity' of one religion and the 'falseness' of the other(s)... The situation is further aggravated by the fact that Chuganov's letter was used in trials where it was portrayed as reflecting the official stance taken by the Prosecutor General's Office of Russia. For example, in Chelyabinsk, in the course of examination of a complaint by the local community of Jehovah's Witnesses against the Chairwoman of the regional Commission for Human Rights Ms Gorina, the latter constantly referred to Dworkin's book as a handbook recommended by the Prosecutor General's Office that contained reliable information on the activity of so-called destructive sects, including the community of Jehovah's Witnesses. This was used to justify the extremely heavy-handed conduct of the municipal authorities towards the Jehovah's Witnesses, in particular their breaking-up, with the aid of the police, of the believers' prayer meeting being held on the premises which they had been renting for an extended period of time.” II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Statutory provisions 1. Constitution of the Russian Federation 43. Article 29 guarantees freedom of religion, including the right to profess either alone or in community with others any religion or to profess no religion at all, to freely choose, have and share religious and other beliefs and to manifest them in practice. 2. Religions Act of 26 September 1997 44.", "The State may not interfere with the activities of religious associations provided that they comply with the law (section 4 § 2). State and other public officials may not use their position to foster any specific attitude towards a religion (section 4 § 4). 45. Religious associations may take the form of either a religious group or a religious organisation (section 6 § 2). A religious group carries on its activities without State registration and without obtaining legal entity status (section 7 § 1).", "The right to use rented property for religious purposes is conferred only on registered religious organisations; religious groups may only use premises provided by participants (section 22). 46. Services of worship and other religious rites and ceremonies may be performed without interference in buildings and structures intended for worship and their adjacent areas, and in other premises made available to religious organisations for these purposes (section 16 § 2). 3. Law of 27 April 1993 on complaints about actions and decisions impinging upon the rights and freedoms of citizens 47.", "A court of general jurisdiction may hear complaints about actions or decisions of State and public officials which infringe citizens' rights or freedoms or prevent citizens from exercising their rights and freedoms. It is incumbent on the officials concerned to demonstrate the lawfulness of their actions or decisions (section 2). 4. Education Act of 10 July 1992 (as amended on 16 November 1997) 48. The Education Act prohibits structural units of political parties, political and religious movements and organisations from being set up and operated in State and municipal educational establishments and education management bodies (section 1 § 5).", "49. An educational establishment may lease and rent out property. Rental income must be used for educational needs (section 39 § 11). B. Case-law of the Supreme Court of the Russian Federation 50. On 30 July 1999 a deputy President of the Supreme Court ruled on the complaint brought by the local authorities of Kaluga against an elder of the local community of Jehovah's Witnesses who had allegedly failed to give notice of a religious meeting to the local authorities: “...according to the Russian Law on freedom of conscience and religious associations, the phrase 'without obstruction' means that no permission from, or clearing of the matter with, the secular authorities is required for performing religious ceremonies on premises provided [for that purpose].” 51.", "On 14 August 2001 a deputy President of the Supreme Court ruled on a similar complaint brought by the authorities of Kislovodsk against a Jehovah's Witness in connection with an allegedly unauthorised religious gathering: “According to Article 16 of the Russian Federation Law on freedom of conscience and religious associations, religious services and other religious rites and ceremonies can take place without any interference... in other places made available to religious organisation for that purpose... Therefore, the local religious organisation was not required to inform the State authority of its gathering.” THE LAW I. ALLEGED VIOLATION OF ARTICLES 8, 9, 10 AND 11 OF THE CONVENTION 52. The applicants complained under Articles 8, 9, 10 and 11 of the Convention that on 16 April 2000 they had been prevented from having a religious meeting without undue interference on the part of the authorities. 53.", "The Court notes that the main purpose of the applicants' gathering on 16 April 2000 was to join in Biblical study and public worship. In doing so they undeniably exercised their rights to freedom of expression and to freedom of peaceful assembly under Articles 10 and 11 of the Convention. That being said, since the nature of the assembly was primarily religious and the participants belonged to the religion of the Jehovah's Witnesses (see Thlimmenos v. Greece [GC], no. 34369/97, § 42, ECHR 2000‑IV), the Court will first examine this complaint from the standpoint of Article 9 of the Convention, which reads as follows: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” A. Whether there has been interference 1. Arguments by the parties 54. The Government claimed, firstly, that the applicants had failed to produce – in the domestic proceedings or before this Court – any evidence in support of their allegation that the meeting had been disrupted.", "In their submission, Mr Kuznetsov, confronted with the request to produce documents demonstrating the lawfulness of the community meeting, realised that “the meeting should not be held” and indicated to the congregation that the meeting should end. The Government also asserted that the founding documents of the Jehovah's Witnesses religious organisations did not provide for the forms of worship mentioned by the applicants – a “worship meeting” or “religious meeting”. 55. The applicants pointed to the overwhelming body of evidence submitted to the domestic courts, including statements by independent witnesses such as the college principal, to the effect that the meeting of their congregation had been disrupted following the arrival of the Commissioner and her aides. There was no requirement in law to demonstrate the lawfulness of the meeting or to show that it was “necessary” or “should be held”.", "In any event, Mr Kuznetsov had never made an admission of the kind alleged by the Government. The Government's attempts to reverse the burden of proof notwithstanding, it was incumbent on the intervening authorities to show that the meeting had been unlawful, which they had been unable and failed to do. As to the form of the meeting in question, the applicants considered that its actual form – be it a rite, ceremony, prayer, hymn or other liturgy – was of no relevance for the legal analysis of the alleged violation. 2. The Court's assessment 56.", "As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to “manifest [one's] religion”. Bearing witness in words and deeds is bound up with the existence of religious convictions (see Metropolitan Church of Bessarabia and Others v. Moldova, no.", "45701/99, § 114, ECHR 2001‑XII, and Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260‑A, § 31). 57. The Court further reiterates that Article 9 of the Convention protects acts of worship and devotion which are aspects of the practice of a religion or belief in a generally recognised form (see C. v. the United Kingdom, no. 10358/83, Commission decision of 15 December 1983, Decisions and Reports 37, p. 142).", "It is undeniable that the collective study and discussion of religious texts by the members of the religious group of Jehovah's Witnesses was a recognised form of manifestation of their religion in worship and teaching. Thus, the applicants' meeting on 16 April 2000 attracted the protection of Article 9 of the Convention. 58. The Government claimed that there had been no interference since the applicants had interrupted the meeting on their own initiative, once their attention had been drawn to the fact that they did not have the appropriate documents for holding it. The Court considers that this claim is not borne out by the materials produced before it.", "59. There is nothing in the parties' submissions to indicate that the religious meeting would have been wound up ahead of time had it not been for the arrival of the Commissioner and her aides. The Government did not furnish any alternative explanation or reason for the early termination of the applicants' meeting. The Court therefore considers that there was a causal link between their arrival at the site and the disruption of the meeting. 60.", "It is not contested that the command to halt the meeting was given by Mr Kuznetsov, who had gone on stage and indicated, in sign language, that the police wanted the meeting to end (see paragraph 29 above). However, in so doing, he was relaying the demand of the senior police inspector, Mr Lozovyagin, who had told him that the meeting could not be continued without the appropriate documents (see paragraphs 27 and 33 above). It further appears that neither Mr Lozovyagin nor any other person in the Commissioner's team mastered sign language. For that reason they were unable to communicate directly with the audience, which consisted mostly of profoundly deaf applicants. The Court notes the testimony of the applicant Ms Lappo in the domestic proceedings.", "She is not hearing-impaired and witnessed an exchange between the Commissioner and one of her aides, who claimed to be unable to stop the meeting because the participants were “deaf mutes” (see paragraph 25 above). The Commissioner then told Mr Kuznetsov to disperse the gathering. The Court finds that in these circumstances Mr Kuznetsov merely acted as a medium of communication, passing on the Commissioner's order. 61. The Court further recalls that the responsibility of a State under the Convention may arise for acts of all its organs, agents and servants, even where their acts are performed without express authorisation and even outside or against instructions (see Wille v. Liechtenstein, no.", "28396/95, Commission decision of 27 May 1997, and Ireland v. the United Kingdom, Commission Report of 25 January 1976, Yearbook 19, p. 512 at 758). In the present case the Government did not contest the fact that the Commissioner and the accompanying police inspectors had acted, or pretended to act, in their official capacity. The police officers wore uniforms and were perceived by the applicants as law-enforcement officials. It follows that their actions engaged the State's responsibility. 62.", "In sum, the Court finds that there has been interference with the applicants' right to freedom of religion in that, on 16 April 2000, the State officials caused their religious assembly to be terminated ahead of time. It will next examine whether this interference was justified, that is whether it was “prescribed by law”, whether it pursued one or more legitimate aims enumerated in paragraph 2 of Article 9 and whether the interference was “necessary in a democratic society”. B. Whether the interference was justified 1. Arguments by the parties 63.", "The Government asserted that the meeting had been attended by hearing-impaired and disabled children without proof of the consent of their parents or legal guardians. The Commissioner asked the police officers to assist her in verifying whether this was the case. In the Government's view, the suspected participation of children had been sufficient justification for the interference, which was “prescribed by law” and necessary for the protection of the health and rights of others. 64. The Government further alleged that the applicants had no right to use the rented premises for religious purposes.", "Firstly, religious groups which did not have legal entity status could only use property or premises provided by their members and the lease agreement between the Administrative Centre of the Jehovah's Witnesses in Russia and college no. 85 had therefore been void. Secondly, the Education Act prohibited religious organisations from being set up or operated in State or municipal educational establishments, both during and after school hours, and the lease agreement had therefore been void ab initio because it contravened this absolute prohibition and because it had been signed by the college principal acting ultra vires. 65. The applicants pointed out that the Government had not disputed that there had been no police documents or authorisation for the raid, that the Commissioner and Mr Tomskiy were civilians and had no legal authority to take part in a police operation and that they had travelled to the college by private car and filmed the events with a private video camera.", "66. The applicants further submitted that the Government's assertion about the presence of children without parental consent was untenable in the light of the facts of the case and unsupported by any evidence. The Commissioner and police officers had never entered the auditorium but had remained in the foyer, so they could not see who was inside. They had only asked Mr Kuznetsov for the documents and never attempted to establish the identity or parentage of the minors present or any other information relating to them, either while the meeting was in progress or after its termination. 67.", "In so far as the Government alleged that the lease agreement had been void, the applicants contended that the Government's arguments were factually incorrect and inconsistent. The lease agreement had been signed not by a religious group which did not have legal entity status but by the Administrative Centre of the Jehovah's Witnesses in Russia, that is, the umbrella organisation at national level, which had legal entity status. The Government had failed to specify on the basis of which facts or law the legally binding lease agreement, the terms and mutual obligations of which had been fulfilled by both parties for more than fourteen months, could be rendered void without the intervention of a judicial authority. Indeed, the validity of the agreement on the date in question (16 April 2000) was not contested and the notice of termination had only been served on the following day. Moreover, even assuming that there was a defect in the agreement, this would be a matter inter partes and it would not justify the disruption by a third-party civilian such as the Commissioner of a religious meeting held under the agreement.", "68. Lastly, the applicants challenged the Government's reliance on the Education Act as a misinterpretation of the law. They pointed out that the community had been lawfully using an auditorium outside college hours and without involving college students or staff, whereas the legal provision invoked by the Government referred only to the setting-up of “structural units” of religious organisations. 2. The Court's assessment 69.", "The parties disagreed as to whether the interference had been “prescribed by law”. The Government advanced several legal grounds for the acts of the Commissioner and her aides; the applicants disputed that their acts had had any legal basis. The Court will examine these grounds in turn. 70. In so far as the Government claimed that the applicants had not had the appropriate documents for holding the religious meeting, the Court observes that the Government never specified the nature of the allegedly missing documents.", "Furthermore, it notes the consistent case-law of the Russian Supreme Court to the effect that religious assemblies do not require any prior authorisation from, or notification to, the authorities (see paragraph 50 et seq.). It is striking that the police officer Mr Lozovyagin only asked Mr Kuznetsov about his registered home address, but did not specify what other documents he wanted to see (see paragraph 27 above). Although it is in dispute whether Mr Kuznetsov had a valid registered address in Chelyabinsk or in Krasnodar, this issue is obviously of no relevance to the legal ability of the other applicants to hold a service of religious worship. It follows that the Government's allegation that the applicants lacked the appropriate documents for the religious meeting has not been made out. 71.", "As regards the validity of the lease agreement, the Court notes at the outset that, contrary to the Government's submission, it was entered into by the organisation of the Jehovah's Witnesses officially registered at national level rather than by the local religious group which did not have legal entity status. The lease had no obvious legal defect and by the date of the events it had been duly fulfilled by both parties for at least fourteen months. By 16 April 2000 there had been no eviction order, no pending court proceedings and no other legal challenges to the validity of the lease agreement. Nor has it been claimed that the administrative order of 31 March 2000 prohibiting colleges from renting out their premises for religious meetings had affected the validity of earlier leases retrospectively. It follows that the applicants had a lawful contractual basis for using the college premises on 16 April 2000.", "72. The Government also claimed that the holding of the meeting on the college premises had been contrary to section 1 § 5 of the Education Act (cited in paragraph 48 above). The Court observes, however, that this ground was not relied upon in the domestic proceedings and that the Government relied on it for the first time in their pleadings before the Court. In any event, it appears that the Education Act expressly authorised educational establishments to rent out their premises (see paragraph 49 above). The provision on which the Government relied did not prohibit the physical use of college space by third parties, but rather the clericalisation of schools through the setting-up of religious structures involving students and/or staff.", "In the present case the applicants used the college premises for their meetings on Tuesday nights and on Sundays, that is, outside normal college hours, and there is no evidence that their activities interfered in any way with the educational process or involved college students or teachers. Thus, the Education Act could not serve as a legal basis for the interference. 73. Finally, the Government alleged that the Commissioner, assisted by two police officers and one civilian, had come to the meeting to investigate a complaint about the unauthorised presence of children at a religious event. The Court observes firstly that no evidence – such as, for example, a copy of the complaint or materials from a police investigation – has been produced in support of that contention.", "Similar allegations by the Commissioner had been examined previously by the Chelyabinsk prosecutors, who had found them unsubstantiated and decided not to institute criminal proceedings (see paragraphs 10-13 above). Furthermore, the course of action adopted by the Commissioner suggests that her purpose was to disrupt the meeting rather than to investigate a complaint of that nature. Had there been a genuine attempt to investigate the matter, the identities of the participants in the meeting should have been established and the presence of children without their parents ascertained. However, the Commissioner and the accompanying officers did neither; they did not enter the hall, but stayed behind in the foyer; the only person who was asked for documents of any kind was the applicant Mr Kuznetsov, and no checks were carried out after the termination of the meeting. Moreover, the only list of participants in the meeting available to the Court is that compiled by the applicants (see the schedule), and no person on that list was younger than nineteen at the material time.", "It follows that the Government's contention that the Commissioner investigated a complaint is untenable on the facts. 74. Lastly, the Court observes that the Government did not submit any documents relating to the official powers of the Commissioner and that no such documents were produced in the domestic proceedings. There are, however, strong and concordant indications that she acted without any legal basis in pursuance of her private ends. The involvement of two senior police officers gave her intervention a spurious authority.", "However, the police officers were not formally subordinate to her and she had no authority to give them orders, such as the one she gave to have the meeting dispersed (see paragraph 60 above). There was no ongoing inquiry of any kind, nor had there been any complaint about disturbance of the public order or any other indication of an offence warranting police involvement. Thus, as the Court has found above, the legal basis for breaking up a religious event conducted on the premises lawfully rented for that purpose was conspicuously lacking. Against that background the Court finds that the interference was not “prescribed by law” and that the Commissioner did not act in good faith and breached a State official's duty of neutrality and impartiality vis-à-vis the applicants' religious congregation (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 62, ECHR 2000‑XI).", "Since the Court has already found that the interference with the applicants' right was not “in accordance with the law”, this finding makes it unnecessary to determine whether it pursued a legitimate aim and was necessary in a democratic society (see Gartukayev v. Russia, no. 71933/01, § 21, 13 December 2005). 75. There has therefore been a violation of Article 9 of the Convention on account of the disruption of the applicants' religious meeting on 16 April 2000 by the Commissioner and her aides. In these circumstances, the Court does not consider it necessary to examine the same events from the standpoint of Articles 8, 10 or 11 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN IN CONJUNCTION WITH ARTICLE 9 76. The applicants further complained under Article 14 of the Convention, taken in conjunction with Article 9, that they had been victims of discrimination on account of their religious beliefs. 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.” 77. The Court reiterates that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and the 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 invoked both on its own and together 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 also, 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 Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999‑III, and Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, § 67). 78. In the circumstances of the present case the Court considers that the inequality of treatment, of which the applicants claimed to be victims, has been sufficiently taken into account in the above assessment that led to the finding of a violation of a substantive Convention provision (see, in particular, paragraph 74 above).", "It follows that there is no cause for a separate examination of the same facts from the standpoint of Article 14 of the Convention (see Metropolitan Church of Bessarabia, cited above, § 134). III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 79. The applicants complained under Article 6 of the Convention that they had been denied a fair hearing because (i) the trial judge had been manifestly biased against them and had overtly favoured the defendants; (ii) they had not benefited from the equality-of-arms principle; and (iii) the court had refused to admit their evidence and made findings that had been perverse and unsustainable in the light of the facts. Article 6, in its relevant part, provides as follows: “In the determination of his civil rights and obligations... everyone is entitled to a fair... hearing ... by [a]... tribunal established by law...” A.", "Arguments by the parties 80. The Government submitted that the judgments of the domestic courts did not disclose any violations of the procedural rights of the parties. Both parties had submitted their observations to the courts and the courts had made an impartial, comprehensive and thorough examination of the evidence before them. 81. The applicants submitted that the proceedings had been fundamentally defective in that the judge had rejected crucial evidence on which they had sought to rely.", "They pointed out that the judgment had been silent on the issue of the credibility of key witnesses, especially the Commissioner, who had given three mutually exclusive accounts of the events. The judicial decision had not stated any reasons for rejecting the evidence given by the applicants. B. The Court's assessment 82. After the prosecutor had decided against initiating a criminal investigation into the actions of the Commissioner and her aides, the applicants lodged a civil complaint in accordance with the procedure for contesting unlawful actions on the part of State officials.", "The burden of proof was on the officials concerned to show that their actions had been lawful (see paragraph 47 above). The domestic courts rejected the applicants' complaint, finding that they had failed to show that the religious meeting had been terminated ahead of time on the orders of the Commissioner and/or the police officers accompanying her. The evidence produced by the applicants to that effect was rejected as emanating from “interested witnesses” (see paragraphs 38 and 40 above). 83. The Court reiterates that, according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based.", "Article 6 § 1 obliges courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument. The extent to which this duty to give reasons applies may vary according to the nature of the decision (see Ruiz Torija v. Spain, judgment of 9 December 1994, Series A no. 303-A, § 29). Even though a domestic court has a certain margin of appreciation when choosing arguments in a particular case and admitting evidence in support of the parties' submissions, an authority is obliged to justify its activities by giving reasons for its decisions (see Suominen v. Finland, no. 37801/97, § 36, 1 July 2003).", "A further function of a reasoned decision is to demonstrate to the parties that they have been heard. Moreover, a reasoned decision affords a party the possibility to appeal against it, as well as the possibility of having the decision reviewed by an appellate body. It is only by giving a reasoned decision that there can be public scrutiny of the administration of justice (see Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001). 84.", "In the present case the applicants repeatedly – in their oral and written submissions to the District and Regional Court – pointed to multiple admissions by the police officers Mr Lozovyagin and Mr Vildanov that they had instructed Mr Kuznetsov to tell the audience to end the meeting (see, in particular, their oral testimony before the District Court in paragraph 27 above and their statements to the prosecutor in paragraph 33 above). The judgments of the domestic courts did not address their submissions on that issue and remained silent on that crucial point. Neither the District nor the Regional Court explained the reasons for rejecting the evidence given by those applicants who had been witnesses to the exchange between the Commissioner, the police officers and Mr Kuznetsov and who had given concordant testimonies on the matter. The Court is struck by the inconsistent approach of the Russian courts, on the one hand finding it established that the Commissioner and her aides had come to the applicants' religious meeting and that it had been terminated ahead of time, and on the other hand refusing to see a link between these two elements without furnishing an alternative explanation for the early termination of the meeting. Their findings of fact appear to suggest that the Commissioner's arrival and the applicants' decision to interrupt their religious service had simply happened to coincide.", "That approach permitted the domestic courts to avoid addressing the applicants' main complaint, namely that neither the Commissioner nor the police officers had had any legal basis for interfering with the conduct of the applicants' religious event. The crux of the applicants' grievances – a violation of their right to freedom of religion – was thus left outside the scope of review by the domestic courts which declined to undertake an examination of the merits of their complaint. 85. In these circumstances, the Court finds that the domestic courts failed in their duty to state the reasons on which their decisions were based and to demonstrate that the parties had been heard in a fair and equitable manner. There has therefore been a violation of Article 6 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 86. The applicants further complaint that they did not have an effective remedy for a violation of their rights, as required by 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.” 87. The Court reiterates that the role of Article 6 § 1 in relation to Article 13 is that of a lex specialis, the requirements of Article 13 being absorbed by more stringent requirements of Article 6 § 1 (see, among other authorities, Brualla Gómez de la Torre v. Spain, judgment of 19 December 1997, Reports of Judgments and Decisions 1997‑VIII, § 41). Consequently, it is unnecessary to examine the complaint under Article 13 separately.", "V. 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 applicants claimed 750 euros (EUR) for each victim of the alleged violations, or an overall amount of EUR 75,000, in respect of non‑pecuniary damage, representing the suffering resulting from the premeditated violation of their rights by a prejudiced State official advancing her own political ends to the detriment of a disadvantaged minority, namely the deaf Jehovah's Witnesses. They authorised Mr Kuznetsov (the forty-seventh applicant and the community elder) to receive the sum awarded and to apply it to the benefit of all the applicants.", "90. The Government claimed that the amount was excessive and “not proved by the circumstances of the case”. 91. The Court has found that the applicants' religious meeting was disrupted through unlawful interference by the State officials and that the applicants did not benefit from a fair hearing. These events affected a significant number of individuals, many of whom suffered from a physical disability.", "The Court considers that the finding of violations would not constitute sufficient compensation for the distress and frustration the applicants must have endured. However, it finds the particular amount claimed excessive. Making its assessment on an equitable basis, it awards the applicants a global amount of EUR 30,000, plus any tax that may be chargeable on that amount, to be paid into the bank account of Mr Konstantin Kuznetsov on behalf of all the applicants. B. Costs and expenses 92.", "The applicants were represented in the domestic proceedings by three Russian lawyers at a rate of EUR 50 per hour and one paralegal at a rate of EUR 30 per hour, and in the Strasbourg proceedings by Mr Daniel, a member of the English Bar, at a rate of EUR 200 per hour. The nature of the applicants' disability made it necessary to employ specialist translators qualified in Russian, English and deaf signing. It was also necessary to prepare a verbatim transcript of the domestic hearings. 93. The applicants claimed EUR 91,059 in respect of costs and expenses relating to their legal representation.", "This included: 94. The Government did not dispute the details of the calculations submitted by the applicants, submitting that any reimbursement should be reasonable and cover only real and necessary expenses. 95. The Court notes that this case was rather complex, in view of the number of the applicants and their particular disability, the length of the domestic proceedings, the seriousness of the violations alleged and the considerable number of documents involved. There was an oral hearing before the Court which required additional preparation of documents and oral submissions.", "The Court, however, considers excessive the amount of time spent by counsel on the case. Having regard to the materials in the case file, it awards the applicants the entire amount claimed in respect of the domestic proceedings, that is EUR 35,544, and EUR 25,000 in respect of the Strasbourg proceedings, plus any tax that may be chargeable on these amounts. The total amount of EUR 60,544 is to be paid into the bank account of Mr Konstantin Kuznetsov on behalf of all the applicants. 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. Holds that there has been a violation of Article 9 of the Convention; 2. Holds that no separate examination of the same issues under Articles 8, 10 or 11 of the Convention is necessary; 3. Holds that no separate examination of the complaint under Article 14 of the Convention is necessary; 4. Holds that there has been a violation of Article 6 of the Convention; 5.", "Holds that no separate examination of the complaint under Article 13 of the Convention is necessary; 6. Holds (a) that the respondent State is to pay Mr Konstantin Kuznetsov on behalf of all the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement: (i) EUR 30,000 (thirty thousand euros) in respect of non-pecuniary damage; (ii) EUR 60,544 (sixty thousand five hundred and forty-four 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; 7. Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 11 January 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident SCHEDULE – List of applicants # Name (last name, first name, and father's name) Year of birth Abilmazhinov Yertustik Gazizovich 1957 Abrosimova Valentina Nikolaevna 1931 Akimochkina Anastasia Dmitrievna 1933 Alekseyeva Galina Leonidovna 1952 Aptasheva Olga Alekseyevna 1974 Aptasheva Valentina Alekseyevna 1977 Arkadyeva Valentina Mikhailovna 1936 Avdieva Valentina Petrovna 1951 Batayeva Olga Vasilievna 1958 Berchatov Viktor Vasilievich 1947 Berkutova Nadezhda Leonidovna 1962 Brovina Lyubov Alekcandrovna not known Butina Nelli Fyodorovna 1970 Chernyenko Tatiana Ivanovna 1948 Cheskidova Lyudmila Ivanovna 1960 Chmykhalo Galina Alekseyevna 1948 Chugayeva Anna Stepanovna 1935 Fattakhova Darya Ivanovna 1925 Fokina Gaishura Gainullovna 1953 Fomina Galina Anatolievna 1957 Gaas Andrey Aleksandrovich 1959 Galyanova Lyubov Stepanovna 1952 Gashkov Dmitri Valerievich 1975 Gavrilova Tatiana Mikhailovna 1969 Gerashenko Tatiana Mikhailovna 1962 Goryunova Tatiana Borisovna not known Grigoriev Aleksei Nikolayevich 1975 Grigorieva Natalya Viktorovna 1977 Guskova Tatiana Alekseyevna 1963 Gusyeva Nina Mikhailovna 1947 Israfilova Irina Leonidovna 1968 Kadirova Elmira Faskhutdinovna 1978 Kapashev Kurgalebek Berkutovich 1965 Kapasheva Natalya Anatolyevna 1963 Karpushenko Denis Sergeyevich 1977 Khamidullina Mavlikha Farkhitovna 1959 Khudaigulova Mindiyamal Mansurovna 1960 Khusainova Hadezhda Mikhailovna 1958 Kochkova Aleksandra Yegorovna 1932 Kotov Yevgeniy Vladimirovich 1966 Kotova Alyona Petrovna 1971 Kovshov Valeriy Nikolayevich 1930 Kozhakhmetova Saulye Nabievna 1970 Kozhevnikova Lidia Miniyakhmetovna 1946 Kozhin Sergei Aleksandrovich 1979 Lappo Olga Viktorovna 1977 Kuznetsov Konstantin Nikanorovich 1970 Lebsak Nadezhda Vasilievna 1954 Levchenko Oleg Petrovich not known Levchenko Olga Yurievna 1970 Loshmanov Viktor Andreyevich 1940 Lyubchenko Gennadiy Vladimirovich 1960 Lyubchenko Marina Genadiyevna 1981 Lyubchenko Olga Vasiliyevna 1960 Makashova Madina Rayinbekovna 1976 Malygina Iraida Nikolayevna 1956 Mamayev Mikhail Gennadiyevich 1972 Markina Vera Vasilievna 1956 Matveyeva Lyudmila Vasilievna 1961 Morets Fridrikh Ivanovich 1947 Morets Tatiana Semionovna not known Nadyrshinna Inna Rustamovna 1981 Nizametdinova Flyura Ivanovna 1946 Nizhegorodtseva Galina Borisovna 1959 Nurmiyeva Lyudmila Nuritdinovna 1959 Ogneva Olga Yevgenievna 1963 Oregeldiev Setdarberdi 1964 Oregeldieva Galina Fridonovna 1962 Ovchinnikova Nina Aleksandrovna 1951 Parshukov Andrei Viktorov 1973 Parshukova Irina Vladimirovna 1975 Peshkova Yelena Valerievna 1972 Petrova Lyubov Romanovna 1927 Pechenkina Maria Fyodorovna 1935 Pidzhakov Sergei Borisov 1956 Pidzhakova Larisa Nikolayevna 1957 Pleshkova Vera Karlovna 1966 Prokhorova Irina Vladimirovna 1958 Puzanov Vladimir Aleksandrovich 1969 Puzanova Yelena Leonidovna 1976 Safiyulin Ruslan Nasritdinovich 1977 Samoilova Marina Nikolayevna 1963 Samsonova Yekaterina Petrovna 1926 Shalakov Vladimir Konstantinovich 1941 Shalakova Valentina Pavlovna 1950 Shilyayeva Tamara Ivanovna 1941 Sinyukin Oleg Vladimirovich 1968 Sinyukina Tatiana Vladimirovna 1973 Sorokina Vera Alekseyevna 1960 Stepina Zoya Sergeyevna 1940 Sveshnikova Nina Nikolayevna 1947 Taruta Tatiana Alekseyevna 1950 Taskayev Ivan Mikhailovich 1940 Taskayeva Anna Aleksandrovna 1933 Tereschuk Larisa Igoryevna 1976 Tereschuk Svetlana Yurievna 1964 Tipyao Galina Pavlovna 1947 Tipyao Gennadiy Ivanovich 1936 Verednikova Anna Borisovna 1958 Volosnikova Iraida Vladimirovna 1964 Yegorova Yekaterina Grigorievna 1979 Zinovieva Lyubov Porfiryevna 1927 Zhuravlyova Larisa Yevgenievna 1969" ]
[ "SECOND SECTION CASE OF Z.W. v. THE UNITED KINGDOM (Application no. 34962/97) JUDGMENT (Friendly settlement) STRASBOURG 29 July 2003 This judgment is final but it may be subject to editorial revision. In the case of Z.W. v. the United Kingdom, The European Court of Human Rights (Second Section), sitting as a Chamber composed of MrJ.-P. Costa, President,SirNicolas Bratza,MrL.", "Loucaides,MrC. Bîrsan,MrK. Jungwiert,MrV. Butkevych,MrsW. Thomassen, judges,and Mrs S. Dollé, 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. 34962/97) against the United Kingdom of Great Britain and Northern Ireland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a United Kingdom national, Z.W. (“the applicant”), on 23 October 1996. 2. The applicant, who had been granted legal aid, was represented by Andersons Solicitors, practising in Nottingham.", "The United Kingdom Government (“the Government”) were represented by their Agent, Mr C.A. Whomersley. The President of the Chamber acceded to the applicant’s request not to have her name disclosed (Rule 47 § 3 of the Rules of Court). 3. The applicant complained that the local authority had failed to protect her welfare whilst she was in foster care contrary to Article 3 of the Convention, and that she had had no redress for her complaints against the local authority contrary to Article 13.", "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 and was allocated to the Third Section of the 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 Second Section (Rule 52 § 1). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. On 27 November 2001, having obtained the parties’ observations, the Court declared the application admissible. 6. Following an exchange of correspondence, on 11 and 16 June 2003 the applicant and the Government respectively submitted formal declarations accepting a friendly settlement of the case.", "THE FACTS 7. The applicant, born in 1972, is detained in Rampton Hospital. 8. In July 1973 the applicant and her three siblings were admitted to foster care by the local authority, following reports that their mother was unable to care for them and of squalid living conditions. 9.", "In May 1976 the applicant and her sister were placed with Mr and Mrs D. Over the following thirteen years the local authority noted various concerns about the placement. In 1980 matters had deteriorated to the extent that the girls were almost removed. A 1981 memorandum stated that they showed many signs of emotional disturbance. In 1984 and 1985 Mr and Mrs D. resisted a number of attempts by social workers to see the girls alone. 10.", "In 1989 the girls made allegations of physical and sexual abuse although no prosecution was brought. In June 1989 both made suicide attempts. In August 1989, the applicant finally left Mr and Mrs D. She was subsequently convicted of various offences, including assault and arson. She was admitted to psychiatric hospitals on a number of occasions and since 1993 has been detained in Rampton Hospital, with a diagnosis of mental illness and psychopathic disorder. 11.", "In 1995 the applicant issued proceedings in negligence against the local authority. A psychiatric report was prepared in which the applicant’s account of the horrific abuse she had endured was set out. It included details of how she and her sister had been deprived of food, severely beaten, locked in their room, denied access to the toilet and treated as slaves. The report concluded that the applicant’s traumatic upbringing had significantly contributed to her mental disorder, the symptoms of which included self-mutilation, mood disorder and anti-social behaviour. The applicant had not been aware of any sexual abuse, but her sister later made a statement, in support of a claim by the applicant for criminal injuries compensation, in which she detailed physical and sexual abuse.", "12. In 1996 the High Court struck out the negligence claim as disclosing no reasonable cause of action, on the basis that there was no duty of care owed by a local authority to children in its care in English law at the time. In 1999 the applicant was awarded 50,000 pounds sterling (GBP) by the Criminal Injuries Compensation Authority, in respect of the abuse by her foster-parents and for a separate claim relating to an assault. THE LAW 13. On 11 June 2003 the Court received the following declaration signed by the applicant’s representative: “I note that the Government of the United Kingdom are prepared to pay the sum of GBP 77,000 (seventy seven thousand), covering pecuniary and non-pecuniary damage and costs [to Z.W.]", "with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights. I accept the proposal and waive any further claims against the United Kingdom in respect of the facts of this application. I declare that this constitutes a final settlement of the case. This declaration is made in the context of a friendly settlement which the Government and the applicant 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.” 14.", "On 16 June 2003 the Court received the following declaration from the Government: “I declare that, with a view to securing a friendly settlement of the above-mentioned case, the Government of the United Kingdom offer to pay GBP 77,000 (seventy seven thousand) to the applicant. This sum is to cover any pecuniary and non-pecuniary damage as well as costs, and is paid on condition that the applicant will pay out of it to the United Kingdom’s Criminal Injuries Compensation Authority the sum of GBP 50,000, being the amount which the applicant is obliged to repay to the Authority under the arrangements relating to the compensation already received by her from the Authority. The sum of GBP 77,000 will be payable by the Government within three months from the date of delivery of the judgment by the Court pursuant to Article 39 of the European Convention on Human Rights. This payment will constitute the final resolution of the case. The Government further undertake not to request that the case be referred to the Grand Chamber under Article 43 § 1 of the Convention.” 15.", "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). 16. 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 July 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. Dollé J.-P. CostaRegistrarPresident" ]
[ "THIRD SECTION CASE OF TALATTİN AKKOÇ v. TURKEY (Application no. 50037/99) JUDGMENT STRASBOURG 10 November 2005 FINAL 12/04/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Talattin Akkoç 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 20 October 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 50037/99) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Talattin Akkoç (“the applicant”), on 14 June 1999. 2. The applicant was represented by Ms N. Baylav, a lawyer practising in İstanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.", "3. On 28 January 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. 4. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1).", "The case was assigned to the newly composed Third Section. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1957 and lives in Kocaeli. 6.", "On 14 December 1995 the Kocaeli Provincial Private Administration Office (Kocaeli İl Özel İdare Müdürlüğü) expropriated a plot of land belonging to the applicant. A committee of experts assessed the value of the plot of land and the relevant amount was paid to him on 22 November 1996. 7. On 22 October 1996 the applicant filed an action for compensation with the Gebze Civil Court of First Instance. 8.", "On 20 February 1998 the first-instance court ordered the administration to pay the applicant 4,619,997,360 Turkish liras (TRL) plus interest at the statutory rate, running from 22 November 1996, the date on which the ownership of the property was transferred to the administration. 9. On 22 September 1998 the Court of Cassation upheld the decision of the first-instance court. 10. On 15 December 1998 the Court of Cassation rejected the applicant’s request for the rectification of its decision.", "11. On 29 July 1999 the Kocaeli Provincial Private Administration paid the applicant the amount due together with interest. II. RELEVANT DOMESTIC LAW AND PRACTICE 12. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp.", "2674-76, §§ 17-25) and Akkuş v. Turkey judgment of 9 July 1997 (Reports 1997‑IV, §§ 13-16). THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 13. The applicant complained that the rate of interest for delay payable on the additional compensation for expropriation was too low and that the expropriating authority had delayed in settling the relevant amounts.", "He relied on Article 1 of Protocol No. 1, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 14. The Government submitted that the applicant had not exhausted domestic remedies as required by Article 35 of the Convention, as he had failed to make proper use of the remedy available to him under Article 105 of the Code of Obligations.", "15. The Court observes that it dismissed a similar preliminary objection in the case of Aka (cited above, pp. 2678-79, §§ 34-37). It sees no reason to do otherwise in the present case and therefore rejects the Government’s objection. 16.", "The Court finds that, in the light of the principles it has established in its case-law (see, among other authorities, Aka and Akkuş, cited above) and of all the evidence before it, the application requires examination on the merits and there are no grounds for declaring it inadmissible. B. Merits 17. The Court has found a violation of Article 1 of Protocol No. 1 in a number of cases that raise similar issues to those arising here (see Akkuş, cited above, p. 1317, § 31; and Aka, cited above, p. 2682, §§ 50-51).", "18. Having examined the facts and arguments presented by the Government, the Court considers that there is nothing to warrant a departure from its findings in the previous cases. It finds that the delay in paying for the additional compensation awarded by the domestic courts was attributable to the expropriating authority and caused the owner to sustain loss additional to that of the expropriated land. As a result of that delay and the length of the proceedings as a whole, the Court finds that the applicant had had to bear an individual and excessive burden that has upset the fair balance that must be maintained between the demands of the general interest and protection of the right to the peaceful enjoyment of possessions. 19.", "Consequently, there has been a violation of Article 1 of Protocol No. 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.” 21.", "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”. 22. In the instant case, on 22 June 2004, after receiving Government’s observations on the admissibility and merits of the application, the applicant was invited to submit his claims for just satisfaction, but he did not do so within the required time‑limits. Accordingly, the Court makes no award under Article 41 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 1 of Protocol No. 1. Done in English, and notified in writing on 10 November 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerBoštjan M. ZupančičRegistrarPresident" ]
[ "FOURTH SECTION CASE OF SORVISTO v. FINLAND (Application no. 19348/04) JUDGMENT STRASBOURG 13 January 2009 FINAL 13/04/2009 This judgment may be subject to editorial revision. In the case of Sorvisto v. Finland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Giovanni Bonello,David Thór Björgvinsson,Ján Šikuta,Päivi Hirvelä,Ledi Bianku,Nebojša Vučinić, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 9 December 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 19348/04) 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, Mr Juha Sorvisto (“the applicant”), on 2 June 2004.", "2. The applicant was represented by Mr Markku Fredman, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The applicant alleged under Articles 6 § 1 and 13 of the Convention that the length of the civil proceedings and two sets of criminal proceedings had been excessive and that there had been no effective remedy in this connection.", "Moreover, he alleged that the search and seizure of allegedly privileged material had violated his right to respect for his private life, home and correspondence, as guaranteed by Article 8 of the Convention. 4. On 21 June 2007 the President of the Fourth Section decided to communicate the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1959 and lives in Espoo. 1. The first set of criminal proceedings 6. On 2 February 1995 the applicant, a member of the board of a wound-up company (“V.”), was detained on suspicion of involvement in offences of aggravated fraud, debtor dishonesty and false book-keeping, allegedly committed in 1991 and 1992, before the winding up of V. 7.", "The criminal proceedings against his four co-defendants began on 18 April 1996 before the Salo District Court (käräjäoikeus, tingsrätten). The charges were served on the applicant on 6 May 1996 and 16 December 1996, respectively, and the trial against him apparently began on 19 March 1997. 8. On 21 March 2006 the District Court gave its judgment. It convicted the applicant of aggravated fraud.", "The court found that the “reasonable time” requirement laid down in the Constitution and the Convention had not been respected and that the applicant was therefore entitled to redress. The court considered that the redress had to be significant and, having regard to the exceptionally lengthy nature of the proceedings, it should also be substantial. The applicant had not contributed to the length of the proceedings. The court stated that it would reduce the applicant’s sentence by half, owing to the breach of the “reasonable time” requirement. It sentenced the applicant to 18 months’ imprisonment.", "9. The applicant and his co-defendants appealed to the Turku Appeal Court (hovioikeus, hovrätten). 10. One of the applicant’s co-defendants requested that the Appeal Court terminate the proceedings immediately in his respect and dismiss all charges against him. He based his request on the European Court’s judgment of 9 January 2007 in the case Uoti v. Finland (application no.", "61222/00), in which the Court found a violation of Article 6 § 1 of the Convention due to the excessive length of proceedings. 11. On 16 January 2007 the Appeal Court rejected this request. The court found that the European Court had not requested in its judgment that the proceedings be terminated. 12.", "On 22 October 2007 the Appeal Court gave its judgment. It found that, taking into account the applicant’s previous conviction, the applicant should have been sentenced to imprisonment of three years and three months. However, due to the excessive length, this sentence should be mitigated and the redress had to be more significant than that granted by the District Court. The Appeal Court mitigated the applicant’s sentence by two-thirds owing to the breach of the “reasonable time” requirement and sentenced him to 13 months’ imprisonment. 13.", "The applicant and his co-defendants appealed to the Supreme Court (korkein oikeus, högsta domstolen). 14. On 22 May 2008 the Supreme Court refused leave to appeal. 2. The civil proceedings 15.", "On 29 June 1994 the bankruptcy estate of V. lodged claims for damages against the applicant and three other persons with the Helsinki District Court. 16. The court informed the applicant three times, the first being on 29 January 1996, that the case had been adjourned in anticipation of the outcome of the criminal proceedings pending before the Salo District Court (see above), which was based on the same facts as the civil proceedings. On 7 October 1999 and 2 June 2000 it issued decisions to the same effect. 17.", "The applicant objected and requested that the civil proceedings be continued. He also requested that the claims be dismissed because the length of the proceedings had already exceeded a reasonable time. On 1 April 2003 the court rejected his request. It stated that the length of the proceedings was due to the need to await the outcome of the pending criminal proceedings, and adjourned the case. 18.", "The applicant complained to the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman). On 22 June 2005 the Deputy Parliamentary Ombudsman found that the domestic legislation did not provide a possibility for the Finnish courts to dismiss civil claims because of the length of proceedings. The applicable domestic law and practice were unsatisfactory, also in the light of Article 13 of the Convention. However, as the instant case was pending before the domestic court and the European Court, he could not rule on the complaint. 19.", "On 5 January 2007 the applicant renewed his request to the District Court that the claims be dismissed, arguing that during the pre-trial investigation the plaintiff’s (V.’s) lawyer had seen and read legally privileged documents which could not be used as evidence against him. He also maintained that the proceedings had exceeded a reasonable time. 20. The plaintiff objected. It gave an assurance that it would not use any privileged information in the forthcoming trial.", "It further stated that the appellate court would deliver its judgment in the criminal proceedings in August or September 2007. If the first-instance court’s judgment were upheld, there would be no grounds for continuing the civil proceedings against the applicant. 21. On 1 March 2007 the District Court rejected the applicant’s request. It noted the plaintiff’s submission that no prohibited privileged material would be used in the trial.", "Furthermore, the criminal proceedings were the main proceedings and consequently, in order to avoid unnecessary trial costs, the civil proceedings should only be resumed once the criminal proceedings had come to an end. 22. By a letter of 11 June 2008, the plaintiff in the civil proceedings withdrew its action. The case was expected to be pending for a few weeks more as the District Court needed to decide on the costs and expenses. 3.", "The second set of criminal proceedings 23. On 17 May 1999 the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen, “the police”) conducted a search of a storage facility, situated in Helsinki and rented by Mr O. The search was based on the suspicion that the applicant had not declared all his assets in debt recovery proceedings. The police seized a large number of documents belonging to some private persons, including, inter alia, correspondence between the applicant and his Spanish lawyer, C. 24. The applicant requested the Vantaa District Court to annul the seizure on grounds of its unlawfulness, since the documents seized contained privileged information between him and his lawyer.", "On 24 March 1999 the court upheld the seizure. It found that the material seized contained documents which were protected by legal professional privilege under Chapter 17, Article 23 of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken). Consequently, such documents could not be seized from the applicant’s or his lawyer’s possession. The court, however, went on to find that in the instant case the seized documents were not “in the possession” of the applicant or his lawyer within the meaning of Chapter 4, section 2, subsection 2, of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen) as they had been stored in a storage facility together with other persons’ belongings. The seizure had therefore been lawful.", "25. The applicant appealed to the Helsinki Appeal Court, claiming that the Coercive Measures Act had been interpreted in a manner that contradicted the Convention, given that he had sole authority over the seized documents. They were thus “in his possession” and had only been stored in the storage facility. 26. On 14 January 2000 the Appeal Court revoked the seizure in so far as it concerned the correspondence between the applicant and C. and ordered the documents to be returned to the applicant.", "It held that the correspondence had not been in the possession of a third party and was therefore protected by legal professional privilege. In its view, the domestic legislation had to be interpreted in the applicant’s favour. 27. On 24 March 2000 the Supreme Court refused the police leave to appeal. 28.", "Consequently, the police requested the District Court to prolong the seizure until 17 May 2000. In their view, the correspondence between the applicant and C. was not privileged material which had been drafted for the applicant’s defence in a pending trial but concerned his possessions abroad, thus falling outside legal professional privilege. 29. The District Court disagreed. In its decision of 3 April 2000, it held that the correspondence might have contained legally privileged information.", "Thus it was, as a whole, subject to a prohibition on seizure. 30. Upon the applicant’s request, the bailiff ordered the police to return the documents. The documents were to be stored in the bailiff’s office until the decision on seizure had acquired legal force. 31.", "The police appealed to the Appeal Court, maintaining that the seized documents did not concern legally privileged information that the applicant had passed to C. for the purpose of pleading a case before a trial. In addition C. was not, at the time, the applicant’s defence lawyer. 32. On 25 May 2000 the Appeal Court upheld the decision. 33.", "Having granted interim measures, the Supreme Court granted the police leave to appeal on 8 August 2000. By decision of 9 April 2001 it quashed the Appeal Court’s decision of 25 May 2000, finding that the revocation of the seizure had already acquired legal force on 24 March 2000 when the Supreme Court had refused leave to appeal. On that date the seizure was revoked and the documents were to be returned to the applicant. Consequently, it would not have been possible, even in theory, to prolong the seizure after that date. The court did not address the issue of whether the documents seized concerned legally privileged material.", "It also declined to examine the police’s request to prolong the time-limit for prosecution as such a request should have been filed with the District Court. 34. On 30 May 2001 the police again seized the same documents on the basis that they could be used as evidence in forthcoming criminal proceedings against the applicant. 35. On 24 July 2001 the police requested the District Court to prolong the time-limit for bringing charges against the applicant and for the seizure of the documents, as they had not been allowed to examine the content of the seized documents due to the pending complaints concerning their allegedly privileged nature.", "The applicant objected, claiming that the police should not have seized the same documents twice. He further maintained that the material was privileged and could not be seized. In his view, the seizure was in breach of Article 8 of the Convention. 36. The District Court revoked the seizure on 10 August 2001, referring to the Appeal Court’s decision of 14 January 2000 and finding that legal privilege applied to the correspondence.", "37. The police appealed to the Appeal Court, renewing their argument that the documents seized did not concern information which the applicant had passed to C. for the purpose of pleading a case before a trial, and which, for that reason, could be covered by legal professional privilege. 38. On 21 May 2002 the Appeal Court upheld the decision, rejecting the police’s appeal. 39.", "Having granted the police leave to appeal, the Supreme Court quashed the decision by nine votes to two on 5 December 2003. The decision became a precedent (no. KKO 2003:119). The majority found that the main issue in the proceedings was whether counsel’s right not to testify against his client and the consequent prohibition on seizure extended also to material passing between a client and his lawyer if that material did not relate to a pending or forthcoming trial. They found the domestic legislation in this respect somewhat open to interpretation but concluded, having assessed the Court’s case-law, that as the seized documents did not concern information which the applicant had given to his lawyer in order to assist him in a trial, they could have been subject to seizure.", "Two of the Justices dissented, finding that the seizure had interfered with the applicant’s fundamental rights. However, the applicable domestic legislation was not clear and unambiguous, and therefore it should have been applied with due regard to fundamental rights and the requirements of legal professional privilege. The dissenting Justices interpreted the domestic law to the effect that the correspondence between the applicant and C. was covered by the prohibition on seizure. 40. The documents seized were returned to the police and it appears that the seizure was prolonged a number of times until summer 2005.", "41. On 6 July 2006 the criminal proceedings started in the Vantaa District Court. On 23 August 2006 the charges, three counts of aggravated debtor fraud, were served on the applicant. On 25 August 2006 the District Court dismissed the first count as it was already statute-barred. This decision was upheld by the Appeal Court on 19 October 2006 and by the Supreme Court on 24 October 2007.", "42. On 23 April 2008 the District Court convicted the applicant on two counts of aggravated debtor fraud and sentenced him to a six-month term of imprisonment. The court found that the pre-trial investigation had been excessively long in the applicant’s case. The applicant would have been sentenced to 18 months’ imprisonment but as he had already been sentenced to imprisonment on 29 November 2006 and on 22 October 2007, his sentence was mitigated by twelve months. 43.", "The applicant and the public prosecutor appealed to the Appeal Court where the case is apparently still pending. II. RELEVANT DOMESTIC LAW AND PRACTICE 1. Excessive length and effective remedy 44. Chapter 6, Article 7, point 3, of the Penal Code (rikoslaki, strafflagen; as amended by Act No.", "515/2003 which took effect on 1 January 2004) reads: “In addition to what is provided above in section 6, grounds for mitigating the sentence that are also to be taken into consideration are ... (3) a considerably long period that has passed since the commission of the offence; if the punishment that accords with established practice would for these reasons lead to an unreasonable or exceptionally detrimental result.” 45. In its judgment of 11 June 2004 (KKO 2004:58), the Supreme Court noted that, although there were no legal provisions justifying the dismissal of a criminal charge due to unreasonably long proceedings, such a dismissal or declaring a case inadmissible might in some exceptional circumstances, for example if their duration ruled out a good defence, be the only effective remedy satisfying the requirements of Article 13 of the Convention. That was, however, not the case here. In considering whether there were grounds for applying Chapter 6, Article 7, point 3, of the Penal Code, the Supreme Court held that it had to be decided in casu whether the duration of the proceedings (here over 5.5 years) had been unreasonable. It concluded that in this case there were no grounds not to impose a sentence or to mitigate the sentence owing to the duration of the proceedings.", "46. In its judgment of 15 June 2005 (KKO 2005:73) the Supreme Court, applying Chapter 6, Article 7, point 3, of the Penal Code, reduced the sentence by six months owing to the lengthy proceedings (some ten years). It imposed an immediate term of ten months’ imprisonment, finding that it was not justifiable to further mitigate the sentence by suspending the term of imprisonment. 2. Seizure of privileged materials 47.", "According to Chapter 5, section 1, of the Coercive Measures Act (Act No. 450/1987, as in force at the relevant time), the police may conduct a search, inter alia, if there is reason to suspect that an offence has been committed and provided the maximum sentence applicable exceeds six months’ imprisonment. The search warrant is issued by the police themselves. 48. Chapter 4, section 2, subsection 2, of the Coercive Measures Act provides that a document shall not be seized for evidential purposes if it may be presumed to contain information in regard to which a person referred to in Chapter 17, Article 23, of the Code of Judicial Procedure is not allowed to give evidence at a trial and provided that the document is in the possession of that person or the person for whose benefit the secrecy obligation has been prescribed.", "A document may nevertheless be seized if, under section 27, subsection 2, of the Pre-Trial Investigation Act (esitutkintalaki, förundersökningslagen; Act No. 449/1987), a person referred to in Chapter 17, Article 23, of the Code of Judicial Procedure would have been entitled or obliged to give evidence in the pre-trial investigation about the matter contained in the document. 49. Under Chapter 17, Article 23, subsection 1, of the Code of Judicial Procedure, counsel may not testify in respect of what a client has told him or her for the purpose of pleading a case, unless the client consents to such testimony. Although subsection 3 provides for an exception to this secrecy obligation if the charges concern an offence carrying a minimum sentence of six years’ imprisonment (or attempting or aiding and abetting such an offence), this exception does not extend to counsel for an accused.", "50. Under section 5c (626/1995) of the Advocates Act (laki asianajajista, lagen om advokater) an advocate or his assistant shall not without due permission disclose the secrets of an individual or family or business or professional secrets which have come to his knowledge in the course of his professional activity. Breach of this confidentiality obligation shall be punishable in accordance with Chapter 38, Article 1 or 2, of the Penal Code, unless the law provides for a more severe punishment on another count. 51. According to section 40 of the Pre-trial Investigation Act, only such evidence as may be considered relevant in the case shall be entered in the records of investigation.", "As regards other evidence, any police officer is under an obligation to respect the confidentiality requirement. 52. The Supreme Court issued on 5 December 2003 a precedent on the interpretation of Chapter 17, Article 23, of the Code of Judicial Procedure (KKO 2003:119, no. 3010, votes 9–2). The decision concerned specifically the course of events in the present case.", "According to the decision of the Supreme Court, the documents seized from the applicant, related to the commission relationship between himself and his Spanish legal counsel, did not contain information entrusted by the applicant to his legal counsel for the pursuit of a case as referred to in Chapter 17, Article 23, subsections 1 and 4, of the Code of Judicial Procedure. Therefore, there was no obstacle to seizing the documents from the applicant. The Supreme Court ruled on the case by nine votes to two, sitting as an enlarged chamber presided by the President of the Court. 53. The Supreme Court reiterated this position in its other precedent case, KKO 2003:137.", "III. OTHER RELEVANT MATERIALS Council of Europe Recommendation 54. Recommendation Rec(2000)21 of the Committee of Ministers to member States on the freedom of exercise of the profession of lawyer provides, inter alia, as follows: “Principle I - General principles on the freedom of exercise of the profession of lawyer ... 6. All necessary measures should be taken to ensure the respect of the confidentiality of the lawyer-client relationship. Exceptions to this principle should be allowed only if compatible with the rule of law.", "” THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 55. The applicant complained that the length of the civil proceedings and two sets of criminal proceedings had been excessive and that there had been no effective remedy in this connection. 56. Article 6 § 1 reads insofar as relevant: “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 ...” 57.", "Article 13 reads: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 58. The Government contested those arguments. A. Admissibility 1. The first set of criminal proceedings 59. As to the length of the first set of criminal proceedings, the Government argued that the applicant could no longer claim to be a victim within the meaning of Article 34 of the Convention on the following grounds.", "In its judgment the District Court had mitigated the applicant’s sentence by half, whereas the Appeal Court, after its own proceedings lasting 18 months, afforded further redress in reducing further the sentence, that is, by two thirds of the standard sentence. The District Court found that an ordinary sentence for the applicant would have been three years’ imprisonment. However, the Appeal Court found, taking into account the applicant’s previous conviction, that an appropriate punishment would have been three years and three months’ imprisonment. It mitigated this sentence by two-thirds and sentenced him to 13 months’ imprisonment. The Appeal Court found no grounds to sentence the applicant to a suspended term of imprisonment.", "60. The Government stressed that when mitigating the sentence, the Appeal Court applied Chapter 6, Article 7, point 3, of the Penal Code containing the grounds for mitigating a sentence. The Appeal Court expressly discussed the length of the proceedings both generally and then separately for each defendant. It clearly stated what the standard sentence would be for each defendant and then noted the reduction it was making to their sentences due to the unreasonable length of the proceedings. The way in which the length of the proceedings was taken into account provided adequate redress for the alleged violation.", "The Appeal Court’s judgment became final when the Supreme Court, in its own proceedings lasting only five months, refused leave to appeal. The applicant had been afforded express and quantifiable redress, which was sufficient to make good any violation for the entire length of the proceedings. 61. As to the Article 13 complaint, the Government submitted that Chapter 6, Article 7, point 3, of the Penal Code, generally and in the manner applied in the present case, constituted an effective remedy. The effectiveness of the remedy did not depend on the certainty of a favourable outcome.", "Thus, this part of the application was manifestly ill-founded. 62. The applicant argued that even if the mitigation of the sentence was measurable it could not be considered as sufficient redress for the serious breach of the reasonable-time requirement. Rendering a domestic court judgment just before the European Court’s judgment – taking into consideration that the proceedings had already lasted over twelve and a half years – could not deprive the applicant of victim status at this stage. At any rate, the redress granted in such an exceptional case should be a complete waiver of the sentence.", "63. The Court notes that the period to be taken into consideration for the purposes of the “reasonable time” requirement began on 2 February 1995 when the applicant was detained on suspicion of involvement in offences of aggravated fraud, debtor dishonesty and false book-keeping. It ended on 22 May 2008 when the Supreme Court refused leave to appeal. The proceedings thus lasted some 13 years and 4 months. 64.", "The question is whether the applicant may continue to claim to be a victim of a violation of Article 6 § 1 of the Convention on the grounds of the length of the criminal proceedings against him in view of the fact that his sentence was mitigated owing to the excessive length. 65. An individual can no longer claim to be a victim of a violation of the Convention when the national authorities have acknowledged, either expressly or in substance, the breach of the Convention and afforded redress (see Eckle v. Germany, 15 July 1982, § 66, Series A no. 51, for the application of this principle in the context of Article 6, see Lüdi v. Switzerland, 15 June 1992, § 34, Series A no. 238, and Schlader v. Austria (dec.), no.", "31093/96, 7 March 2000). 66. In this regard the mitigation of a sentence on the ground of the excessive length of proceedings does not in principle deprive the individual concerned of his status as a victim within the meaning of Article 34 of the Convention. However, this general rule is subject to an exception when the national authorities have acknowledged in a sufficiently clear way the failure to observe the reasonable-time requirement and have afforded redress by reducing the sentence in an express and measurable manner (see Eckle v. Germany, cited above, § 66, Beck v. Norway, no. 26390/95, § 27, 26 June 2001, Cocchiarella v. Italy [GC], no.", "64886/01, § 77, ECHR 2006-, and Morby v. Luxembourg (dec.), no. 27156/02, ECHR 2003‑XI). 67. Applying these principles in the present case, the Court notes that the District Court expressly upheld the substance of the applicant’s length complaint when it stated that it was taking into account the length of the proceedings in reducing his sentence by half of the appropriate punishment. The Appeal Court, concurring with the lower court that the “reasonable time” requirement had not been met, stated that it reduced the applicant’s sentence by two-thirds of the appropriate punishment.", "It can therefore be said that the applicant was afforded express and quantifiable redress for the breach of the reasonable-time requirement (see Beck v. Norway, cited above, §§ 27-29; also Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001‑ X). The Appeal Court’s judgment took into account the various possibilities and explained how it afforded the applicant redress for the excessively lengthy proceedings. The Court, exercising its supervisory function, is satisfied that the redress given was sufficient. 68.", "Therefore, the applicant can no longer claim to be a victim of a breach of the “reasonable time” requirement as required by Article 34 of the Convention. 69. As to the Article 13 complaint, the Court has found above that the applicant has been afforded redress for the breach of the “reasonable time” requirement. In the circumstances, this must be considered as disclosing effective redress also for the purposes of Article 13 (see, for example, Scordino v. Italy (no. 1) [GC], no.", "36813/97, § 186, ECHR 2006‑...). 70. It follows that both complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 2. The civil proceedings and the second set of criminal proceedings 71.", "The Court notes that the complaints concerning the length of the civil proceedings and the second set of criminal proceedings are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1.", "The civil proceedings 72. The period to be taken into consideration began on 29 June 1994 when the bankruptcy estate of V. initiated compensation proceedings in the District Court which are still pending. The proceedings have thus lasted to date over 14 years and 6 months for one level of jurisdiction. 73. 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). 74. The applicant maintained that, even if the suspension of the civil proceedings pending the outcome of the criminal proceedings might in many cases be seen as appropriate and necessary, it had no significant relevance when assessing the overall length of the civil proceedings. In any event, the Government were responsible for the excessive length of such civil proceedings. Even if the Court considered the redress afforded in the context of the criminal proceedings to be express, quantifiable and sufficient, this could not offer any redress as regards the civil proceedings.", "75. As to the Article 13 complaint, the applicant pointed out that the Court had already, in its well-established case law, found that under Finnish law there was no effective remedy as regards the excessive length of the proceedings. 76. The Government noted that under Finnish law a case could be suspended pending the outcome of other proceedings. In the present case, the suspension of the civil case pending the conclusion of the criminal proceedings was justifiable for the proper conduct of the proceedings and was reasonable under Article 6 § 1 of the Convention.", "It was not possible to resolve the civil case before the criminal case as the civil proceedings were based on the same facts as the criminal proceedings. Moreover, the Government argued that the case was undoubtedly complex. 77. The Court notes that the District Court on 29 January 1996, 7 October 1999 and 2 June 2000 adjourned the civil proceedings pending the outcome of the first set of criminal proceedings, which were based on the same facts as the civil proceedings. The criminal proceedings became final on 22 May 2008 when the Supreme Court refused leave to appeal, that is, almost 12 years and 4 months after the “initial” adjournment.", "The Court understands that the civil case was adjourned in anticipation of the final criminal judgment, which might have affected the civil liability of the applicant and his co-defendants. However, the Court observes in this connection that Article 6 § 1 of the Convention imposes on the Contracting States the duty to organise their legal systems in such a way that their courts can meet each of the requirements of that provision, including the obligation to decide cases within a reasonable time (see Pélissier and Sassi v. France [GC], no. 25444/94, § 74, ECHR 1999‑II). 78. The Court notes in this connection that the domestic courts themselves found that the first set of criminal proceedings did not comply with the reasonable-time requirement (see paragraph 67 above).", "While the applicant’s complaint in respect of the length of the criminal proceedings was redressed at the domestic level, this however had no consequences whatsoever for the suspended civil proceedings. The fact is that the dilatory conduct of the criminal proceedings contaminated the handling of the civil action, and continues to do so. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the civil proceedings was excessive and failed to meet the “reasonable time” requirement. 79. There has accordingly been a breach of Article 6 § 1 of the Convention.", "80. As to the Article 13 complaint, the Court sees no reason to depart from its findings that no specific remedy against unreasonable length of civil proceedings is available under Finnish law (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 82, ECHR 2007‑...). 81. In this connection it notes that, under Finnish law, the applicant was at no stage of the proceedings able to request a domestic court to expedite the conduct of the proceedings or to file a claim for compensation either during their course or following their termination (see, for example, Scordino v. Italy (no.", "1) [GC], cited above, § 186). 82. There has accordingly been a breach of Article 13 of the Convention. 2. The second set of criminal proceeding 83.", "The period to be taken into consideration began on 17 May 1999 when the police conducted a search of a storage facility. The proceedings are still pending and they have thus lasted to date 9 years and 8 months at two levels of jurisdiction. 84. The applicant maintained that these proceedings had also been excessively long and that there was no effective remedy in this respect. 85.", "The Government pointed out that the proceedings in question did not relate to the above-mentioned criminal proceedings but to other criminal proceedings brought against the applicant. 86. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the ones in the present case (see Pélissier and Sassi, cited above). 87. 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 this set of criminal proceedings was excessive and failed to meet the “reasonable time” requirement. 88. There has accordingly been a breach of Article 6 § 1 of the Convention. 89. As to the Article 13 complaint, the Court notes that the District Court did not acknowledge in any way that the length of the proceedings was excessive and did not afford any redress by reducing the applicant’s sentence in an express and measurable manner under Chapter 6, Article 7, point 3, of the Penal Code (see paragraphs 44-46 above).", "The Court also reiterates that the Finnish law does not provide the applicant with any other effective means of recourse (see paragraph 81 above). The applicant thus did not have an effective remedy in the present case. 90. There has accordingly been a breach of Article 13 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 91. The applicant complained that the search and seizure of allegedly privileged material violated his right to respect for his private life, home 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.” 92. The Government contested that argument. A. Admissibility 93. The Government did not contest the applicability of Article 8 to the present case. 94.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ submissions (a) The applicant 95. The applicant claimed that there had been an interference with the exercise of his right to respect for his private life, home and correspondence. As to the interference with his private life and home, the applicant stated that he had had access to the storage facility, which had been rented at his request. He argued that a separate storage facility, where one deposited goods of a private nature, could be regarded as private premises and that he had had a reasonable expectation of privacy regarding the correspondence which had been stored in that facility. He referred to the Court’s recent judgment in the case of van Vondel v. the Netherlands (no.", "38258/03, § 48, 25 October 2007) in which the Court found that there was no reason of principle to justify excluding activities of a professional or business nature from the notion of “private life” and that there was therefore a zone of interaction of a person with others, even in a public context, which might fall within the scope of “private life”. In any event, the applicant claimed that there had been an interference with his right to respect for his correspondence. 96. The applicant acknowledged that the search and seizure had had a legal basis in Finnish law but argued that the quality of that law was questionable due to the lack of foreseeability. In the Sallinen case (see Sallinen and Others v. Finland, no.", "50882/99, § 87, 27 September 2005) the Court had found that the relevant provision of the Code of Judicial Procedure was unclear as it did not state with requisite clarity whether the notion of “pleading a case” covered only the relationship between a lawyer and his or her clients in a particular case or their relationship generally. 97. Should the Court find that the quality of law was sufficient, the applicant accepted that the interference in question had had a legitimate aim within the meaning of Article 8. 98. As to the necessity of the measure in question, the applicant pointed out that the case at hand concerned a very fundamental aspect of a democratic society and that the lawyer-client privilege was, as a starting point, inviolable.", "The applicant argued that Recommendation Rec(2000)21 (see paragraph 54 above) gave strong support for a broad interpretation of the lawyer-client privilege and that the domestic provisions should also have been interpreted broadly in the light of Article 8. In any event, there had not been any pressing social need in the present case to seize privileged documents. (b) The Government 99. As to the interference, the Government submitted that there was a significant difference between the aforementioned Sallinen and Others v. Finland judgment (cited above) and the applicant’s case. In the former case, the documents were in legal counsel’s possession and the search and seizure were conducted on his premises, while in the present case the search was conducted outside the applicant’s home, more specifically in a separate storage facility.", "There had thus been no interference with respect for the applicant’s home or private life. However, the Government acknowledged that there had been an interference with the right to respect for his correspondence. 100. The Government maintained that the search and seizure had been in accordance with the law, namely Chapter 5, section 1 of the Coercive Measures Act. As to the quality of the law, the Government referred to the Court’s findings in the Sallinen case (cited above, § 87) but maintained that the question of lack of foreseeability of domestic law had to be assessed in another manner.", "101. They argued that the question of foreseeability in the present case had to be solved on the basis of Chapter 4, section 2 of the Coercive Measures Act and Chapter 17, Article 23 of the Code of Judicial Procedure. The wording “has entrusted to him or her for the pursuit of the case” in the latter provision could be given either a broad or a narrow interpretation but the fact that the legal literature contained different views on this question did not, as such, render the provision imprecise. Moreover, after the precedent decision of the Supreme Court (KKO 2003:119), issued by an enlarged Chamber with eleven members instead of the normal composition of five, the expression “pleading a case” had been given a precise meaning. This position of the Supreme Court was reiterated in its other precedent case, KKO 2003:137.", "Furthermore, Chapter 4, sections 1 and 2 of the Coercive Measures Act contained precise provisions on the conditions for seizure and the reference to Chapter 17, Article 23 of the Code of Judicial Procedure made in section 2 of the Coercive Measures Act was also clear. 102. As to the legitimate aim, the Government submitted that the search had been performed for the purposes of prevention of crime and for the protection of the rights and freedoms of others, and that it thus pursued a legitimate aim. 103. As to whether the said interference was “necessary in a democratic society”, the Government stated that, even though the confidentiality of the lawyer-client relationship had to be protected, it was not unlimited, and did not apply, for instance, when legal counsel was being used for hiding documents from authorities.", "However, the Government admitted that this was not the issue in the present case. Still, in their view, the necessity requirement had been complied with in the present case as the police needed to examine the material in the storage facility in order to investigate the offence, and the search and seizure were proportionate to the legitimate aims pursued. 2. The Court’s assessment (a) Whether there was an interference 104. For the purposes of Article 8 it is necessary to establish whether there was an interference with the applicant’s rights under that Article.", "As the parties agree that there was such interference in respect of the applicant’s right to respect for his correspondence with his lawyer, the Court sees no reason to differ on that point. Consequently, the Court finds it unnecessary to determine whether there has also been an interference with the applicant’s right to respect for his home or private life as guaranteed by Article 8 § 1. 105. The Court must therefore examine whether this interference 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) Was the interference justified?", "(i) Was the interference “in accordance with the law”? 106. 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; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law (see, inter alia, Kopp v. Switzerland, 25 March 1998, Reports of Judgments and Decisions 1998-II, § 55). (α) Was there a legal basis in Finnish law? 107.", "The Court reiterates that, in accordance with the case-law of the Convention institutions, in relation to Article 8 § 2 of the Convention, the term “law” is to be understood in its substantive sense, not its formal one. In a sphere covered by written law, the “law” is the enactment in force as the competent courts have interpreted it (see, inter alia, Société Colas Est and Others v. France, no. 37971/97, § 43, ECHR 2002-III). In this respect, the Court notes that its power to review compliance with domestic law is limited, it being in the first place for the national authorities, notably the courts, to interpret and apply that law (see, inter alia, Chappell v. the United Kingdom, 30 March 1989, § 54, Series A no. 152‑A).", "108. In principle, therefore, it is not for the Court to express an opinion contrary to that of the domestic courts, which found that the search and seizure had a basis in the Coercive Measures Act and in the Code on Judicial Procedure. 109. In short, the interference complained of had a basis in Finnish law. (β) “Quality of the law” 110.", "The second requirement which emerges from the phrase “in accordance with the law” – the accessibility of the law – does not raise any problem in the instant case. 111. The same is not true of the third requirement, the “foreseeability” of the meaning and nature of the applicable measures. 112. The Court reiterates in that connection that Article 8 § 2 requires the law in question to be “compatible with the rule of law”.", "In the context of search and seizure, the domestic law must provide some protection to the individual against arbitrary interference with Article 8 rights. Thus, the domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in and conditions on which public authorities are empowered to resort to any such measures (see mutatis mutandis, Kopp v. Switzerland, cited above, § 64; Liberty and Others v. the United Kingdom, no. 58243/00, § 62, 1 July 2008). 113. The Court must examine the “quality” of the legal rules applicable to the applicant in the instant case.", "It notes in the first place that under the Coercive Measures Act, Chapter 4, section 2, subsection 2, a document shall not be seized for evidential purposes if it may be presumed to contain information in regard to which a person is not allowed to give evidence. Under the Code of Judicial Procedure, Chapter 17, Article 23, counsel may not testify in respect of what a client has told him or her for the purpose of pleading a case. 114. On the face of the above-mentioned provision of the Code of Judicial Procedure, the Court finds the text unclear as far as it concerns confidentiality. The above-mentioned domestic law does not state with the requisite clarity whether the notion of “pleading a case” covers only the relationship between a lawyer and his or her clients in a particular case or their relationship generally.", "The Court refers to a lawyer’s general obligation of professional secrecy and confidentiality. In this respect the Court refers to the Recommendation Rec(2000)21 of the Committee of Ministers, according to which States should take all necessary measures to ensure the respect of the confidentiality of the client-lawyer relationship. 115. The Government sought to resolve this by noting that, in the applicant’s case, the question of foreseeability must be solved on the basis of Chapter 4, section 2 of the Coercive Measures Act and Chapter 17, Article 23 of the Code of Judicial Procedure and that since the precedent decisions of the Supreme Court, the expression “pleading a case” has been given a precise meaning. 116.", "The Court, however, is not convinced by these arguments. The precedent decisions of the Supreme Court were given only in December 2003 whereas the seizure in the present case took place on 17 May 1999. Even if the Supreme Court decisions were capable of clarifying the provisions in question, this does not change the fact that at the time of the seizure, the applicant could not benefit from this new interpretation. 117. Moreover, as the Court already found in the Sallinen case (cited above, § 89), there was no independent or judicial supervision when granting the search warrant as the decision to authorise the order was taken by the police themselves (see mutatis mutandis, Kruslin v. France, 24 April 1990, §§ 34-35, Series A no.", "176‑A; Silver and Others v. the United Kingdom, 25 March 1983, § 90, Series A no. 61). 118. The Court would emphasise in this connection that search and seizure represent a serious interference with Article 8 rights, in the instant case correspondence, and must accordingly be based on a law that is particularly precise. It is essential to have clear, detailed rules on the subject, setting out safeguards against possible abuse or arbitrariness.", "119. In that connection, the Court reiterates that the relationship between the Coercive Measures Act and the Code of Judicial Procedure (read together) was somewhat unclear and gave rise to diverging views on the extent of the protection afforded to privileged material in search and seizure, a situation which was identified also by the Deputy Chancellor of Justice of Finland (valtioneuvoston apulaisoikeuskansleri, justitiekansleradjointen i statsrådet) in the context of the Sallinen case (cited above, § 91). 120. The Court concludes that, even if there could be said to be a general legal basis for the measures provided for in Finnish law, that law does not indicate with sufficient clarity the circumstances in which privileged material could be subject to search and seizure. The applicant was thus deprived of the minimum degree of protection to which he was entitled under the rule of law in a democratic society (see Sallinen and Others, § 92).", "The Court has thus no reason to reach a different conclusion in the present case than in the Sallinen case. 121. The Court finds that in these circumstances it cannot be said that the interference in question was “in accordance with the law” as required by Article 8 § 2 of the Convention. 122. There has therefore been a violation of Article 8 of the Convention.", "(ii) Legitimate aim and necessity of the interference 123. Having regard to the above conclusion, the Court does not consider it necessary to review compliance with the other requirements of Article 8 § 2 in this case (see e.g. Kopp, cited above, § 76). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 124.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 125. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage for all proceedings having lasted an excessively long time. He claimed EUR 10,000 in respect of non-pecuniary damage suffered for the violation of Article 8. 126.", "As far as the first set of criminal proceedings were concerned, the Government invited the Court to award the applicant reasonable monetary compensation due to their long duration, should it find that he was entitled to further redress in addition to the mitigation of his sentence. However, they maintained that the part of this complaint which related to Article 13 of the Convention and the complaint concerning the civil proceedings were inadmissible and thus, at any rate, no compensation could be awarded in this respect. As regards the violation of Article 8, the Government considered the sum claimed for non-pecuniary damage excessive. In their view, the amount to be awarded should not exceed EUR 2,500. 127.", "With respect to Articles 6 § 1 and 13 in the context of the civil proceedings and the second set of criminal proceedings, the Court considers that the applicant must have sustained non-pecuniary damage in regard to the breaches found. Ruling on an equitable basis, it awards him EUR 10,000 under that head. 128. As to the Article 8 violation, the Court accepts that the applicant has suffered non-pecuniary damage – such as distress and frustration resulting from the search and seizure – which is not sufficiently compensated by the finding of violation of the Convention. The Court awards the applicant EUR 2,500 under this head.", "B. Costs and expenses 129. The applicant claimed EUR 9,806.62 (including value added tax, “VAT”) for the costs and expenses incurred before the Court. An itemised invoice for the same amount was submitted to the Court together with the applicant’s final observations in the case. 130.", "The Government noted that the costs and expenses itemised in the invoice came to EUR 6,898.81 (inclusive of VAT). They referred to the domestic legal aid scales in which an hourly rate of EUR 91 and an alternative supplemented rate of EUR 109.20 for more complicated proceedings are set out. Although the Court is not bound by domestic scales and practices, it may derive assistance from them (see, among other authorities, Kutzner v. Germany, no. 46544/99, § 90, ECHR 2002‑I). If the Court were to find all the violations alleged by the applicant to have taken place, the Government considered that the total amount of compensation for costs and expenses, assessed on an equitable basis, should not exceed EUR 5,700 (including VAT) in the present case.", "If the number of violations found were lower, the compensation awarded to the applicant should be reduced accordingly. 131. 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 9,000 (including VAT) covering costs and expenses under all heads in the proceedings before the Court. C. Default interest 132.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the length of the first set of criminal proceedings and the lack of an effective remedy in that respect inadmissible and the remainder of the application admissible; 2. Holds that there has been a violation of Articles 6 § 1 and 13 of the Convention on account of the excessive length of the civil proceedings and the lack of an effective remedy in that respect; 3. Holds that there has been a violation of Articles 6 § 1 and 13 of the Convention on account of the excessive length of the second set of criminal proceedings and the lack of an effective remedy in that respect; 4.", "Holds that there has been a violation of Article 8 of the Convention in regard to the search and seizure measures; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 12,500 (twelve thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 9,000 (nine 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; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 13 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident" ]
[ "SECOND SECTION CASE OF KASPEROVIČIUS v. LITHUANIA (Application no. 54872/08) JUDGMENT STRASBOURG 20 November 2012 FINAL 20/02/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kasperovičius v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Ineta Ziemele, President,Danutė Jočienė,Dragoljub Popović,Işıl Karakaş,Guido Raimondi,Paulo Pinto de Albuquerque,Helen Keller, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 23 October 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "54872/08) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr Aleksandras Kasperovičius (“the applicant”), on 24 October 2008. 2. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė. 3. The applicant alleged that the conditions of his detention at the Anykščiai Police Remand Facility had been degrading and in breach of Article 3 of the Convention.", "4. On 21 February 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 Vilnius. 6. In October 2006 the applicant was detained at the Anykščiai Police Detention Facility (hereinafter – “the Anykščiai Facility”) in cell No. 3. From 9 to 11 October he shared the cell with another person, and from 12 to 16 October he was held alone.", "The detention facility contained seven cells in total. 7. The applicant complained to the administration of the Anykščiai Facility that the conditions of his detention had been appalling. In their letter of reply dated 6 November 2006, they informed the applicant that because the cell in which he had been held was situated at semi-basement level, it was technically impossible for it to have a window through which natural light could enter. They also explained that in order to install sinks and toilets in the cells, full-scale renovation would be required, but said that this was precluded owing to a lack of financial resources.", "8. The applicant then lodged a complaint, the content of which is unknown to the Court, with the Anykščiai District Prosecutor’s Office. In its reply dated 16 November 2006, the Prosecutor’s Office conceded that some of the applicant’s allegations were true: the Anykščiai Facility had indeed not met proper “norms of hygiene and functioning”. They said that the Government had been informed about the fact and that the building of a new facility was planned. 9.", "The applicant lodged a further complaint with the Ombudsman, arguing that he had been held in a cell without a sink or toilet. The cell also lacked a window, so there had been no natural light or fresh air. 10. The head of the Anykščiai Facility informed the Ombudsman that the building had been constructed in 1926 and thus it had been impossible to install toilets and sinks in the cells. He explained that detainees were taken to a communal toilet at the end of the corridor and that “each cell had a bucket for the night”.", "Detainees could also take drinking water to their cell. 11. On 23 January 2007 the Ombudsman found the applicant’s complaint valid. He noted that in March 2006 health care specialists had pointed out “over and over again” (eilinį kartą) that the cells lacked sanitary units as well as natural light, although the artificial lighting met domestic legal norms. The old air vents were inadequate and the air conditioning system was ineffective.", "However, the facility administration was not to blame for the insufficient funding that had precluded the possibility of improving conditions in the facility. 12. The applicant then initiated proceedings before the Panevėžys Regional Administrative Court seeking compensation for non-pecuniary damage, arguing that he had been held in degrading conditions at the Anykščiai Facility. In particular, his cell had had no built-in toilet, so he had had to use a bucket. Nor did the cell have a sink, so he had suffered from a lack of drinking water.", "Furthermore, as a result of the inadequate lighting and the lack of fresh air, he had suffered constant headaches and his eyes had become sore. The applicant claimed 210,000 Lithuanian litai (approximately 61,000 euros) in non-pecuniary damages. He also claimed that his rights under Article 3 of the Convention had been violated. 13. In reply to the lawsuit, the Anykščiai Facility acknowledged that the establishment did not meet the domestic legal hygiene requirements, but argued that its administration was not to blame for the lack of funding that had caused the problem and that the construction of a new remand facility was planned.", "14. On 19 October 2007 the Panevėžys Regional Administrative Court dismissed the applicant’s claims as unfounded. The court acknowledged that the conditions at the Anykščiai Facility had been unacceptable, particularly as the cells lacked sinks and toilets and inmates had to be taken to a communal toilet and had to take water to their cells. Moreover, not all cells had natural light, the air came through old vents and the air conditioning system was ineffective. Nevertheless, the court held that the facility’s administration could not be held liable for those deficiencies because the State had not allocated sufficient financial resources to improve the situation.", "15. The applicant appealed against the judgment, and on 11 July 2008 the Supreme Administrative Court granted the appeal in part, acknowledging that the conditions of the applicant’s detention had been unacceptable. The court noted that the Anykščiai Facility had not challenged the applicant’s claim that while detained, he had had to relieve himself in a bucket at night. The court considered that fact degrading. The court also found it established that the applicant had been held in a cell without a sink, and that his cell had had no natural light or adequate ventilation, which had had a negative effect on his mental health (sukėlė neigiamus išgyvenimus).", "On these points the court found that certain domestic regulations on hygiene standards in detention facilities - providing that cells should have natural light and that detainees should be able to use a toilet in conditions that were not degrading - had been breached. The court conceded that degrading conditions of detention could in theory amount to a violation of Article 3 of the Convention. With regard to the applicant’s case, the court held that the conditions in which he had been held had “approached the threshold of a violation of Article 3 of the Convention”. Nevertheless, the applicant had been held for only a short time, he was 44 years of age and there was no evidence that the conditions at the detention facility had affected his [physical] health. Nor was there any indication that the detention facility administration had intended to humiliate the applicant.", "Certain hardships, such as a lack of privacy, were to be considered unavoidable for those who were deprived of their liberty. In the light of the above-mentioned considerations, the Supreme Administrative Court held that, in the applicant’s case, the minimum level of severity within the meaning of Article 3 of the Convention had not been reached. 16. As to the applicant’s claim in respect of non-pecuniary damage, the Supreme Administrative Court referred to the case-law of the European Court of Human Rights, noting that in some cases the finding of a violation was recognised as sufficient just satisfaction. It also noted that the applicant had instituted court proceedings for damages nine months after the end of his detention in the police facility, by which time the effects of the negative experience would have diminished to a certain extent.", "Emphasising that in the instant case there had been no violation of Article 3 of the Convention, as well as the fact that the poor detention conditions were a result of limited financial resources, the Supreme Administrative Court rejected in its entirety the applicant’s claim for pecuniary compensation for the non-pecuniary damage he had sustained. 17. When submitting their observations on the admissibility and merits, the Government provided the Court with a copy of the schedule of the Anykščiai Facility, which showed that at the relevant time the inmates were to be taken for an hour’s walk once a day. II. RELEVANT DOMESTIC LAW AND PRACTICE 18.", "The Civil Code provides: Article 6.250. Non-pecuniary damage “1. Non-pecuniary damage shall be deemed to be a person’s suffering, emotional distress, inconvenience, mental shock, emotional depression, humiliation, damage to reputation, diminished opportunity to associate with others, etc., evaluated by a court in pecuniary terms. 2. Non-pecuniary damage shall be compensated only in the cases provided for by law.", "Non-pecuniary damage shall be compensated in all cases where it is incurred on account of crime, health impairment or deprivation of life, as well as in other cases provided for by law. In assessing the amount of non-pecuniary damage, the court shall take into consideration the consequences of the damage sustained, the extent of the fault of the person by whom the damage has been caused, his financial status, the amount of pecuniary damage sustained by the aggrieved person, any other circumstances of importance for the case, and the criteria of good faith, justice and reasonableness.” 19. In case no. A143-1966/2008 the Supreme Administrative Court acknowledged that a person who had been detained in improper, unsanitary conditions had sustained non-pecuniary damage. 20.", "The Regulations applicable to the activities of detention facilities at police stations, approved by Order no. 88 of the Ministry of the Interior on 17 February 2000, provide that “detainees shall have a right to use the lavatory in conditions that do not degrade their honour and dignity” (point 76). They also provide that “the [detainees] shall be taken by a guard from the cells that lack sanitary units to a lavatory (...). During the changing of the guards’ shifts, any other traffic on the remand facility premises is forbidden” (point 219). 21.", "Hygiene Norm HN 37:2002 “Detention facilities. Rules for construction and operation”, approved by Ministry of Health Order no. 215 of 17 May 2002, reads, in so far as relevant, as follows: “1. This hygiene norm applies to all newly constructed, reconstructed, renovated and operational police station detention facilities. 2.", "The hygiene norm prescribes the main hygiene requirements applicable to the construction of police station detention facilities, providing a safe and healthy living environment for the detainees and a safe and healthy working environment for the employees and officials. 3. The hygiene norm must be observed by all persons who design, equip or operate in the detention facilities and the detainees ... 22. In operating detention facilities, natural light and air circulation shall be ensured in the cells by constructing clear glass windows which can be opened ... 28. The cells and the lock-up room shall contain a sanitary unit (a lavatory and a washbasin).", "In the cells the sanitary unit shall be separated by a 1.2 metre high barrier ...” III. RELEVANT INTERNATIONAL DOCUMENTS 22. Recommendation Rec(2006)2 of the Committee of Ministers of the Council of Europe on the European Prison Rules, adopted on 11 January 2006, reads as follows: Basic principles “1. All persons deprived of their liberty shall be treated with respect for their human rights. ... 4.", "Prison conditions that infringe prisoners’ human rights are not justified by lack of resources. ...” Scope and application “10.1 The European Prison Rules apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction. ...” Allocation and accommodation “... 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.” Hygiene “19.1 All parts of every prison shall be properly maintained and kept clean at all times ... 19.3 Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy.” 23.", "The Committee for the Prevention of Torture and Inhuman or Degrading Treatment (hereinafter referred to as “the CPT”) visited Lithuania from 17 to 24 February 2004. Its report reads as follows: Police detention centres “34. In its first report to the Lithuanian authorities, drafted following its visit in 2000, the CPT was critical of conditions of detention in police detention centres; with a view to improving the situation in the establishments concerned, it made a number of specific recommendations. In their follow-up report (dated September 2001), the authorities acknowledged that of the 47 police detention centres in Lithuania, only eight (i.e., 17%) met “the requirements set forth by Hygiene Norm HN 37-1997”; it was considered necessary to secure sufficient resources in order to renovate or replace the other detention centres. Nevertheless, by the time of the 2004 visit, the proportion of detention centres which conformed to the requisite standards remained low (20%).", "As the Seimas (Parliamentary) Ombudsman has recently pointed out, ‘legal acts have been adopted on the improvement of living conditions of inmates in police commissariat detention establishments, however the real results are expected only in a couple of years since the implementation of the program directly depends on State funding’. The 2004 visit confirmed that many of the CPT’s key recommendations concerning conditions of detention in police detention centres have yet to be implemented. 35. The material conditions under which detained persons (in police custody, on remand, or sentenced) were being held in the police detention centres in Kaunas and Marijampolė were totally unacceptable. Detainees were locked up ... with little or no access to natural light and, in many cases, dim artificial lighting.", "A tap placed directly above the minimally partitioned lavatory was the only source of drinking water. In certain cells, persons were obliged to relieve themselves in a bucket in the direct presence of their cellmates. The ventilation system which had been installed in Kaunas since the visit in 2000 could scarcely counter the effects of the above-mentioned conditions on the air in the cells ... The cumulative effect of the very poor material environment and the impoverished regime could be described as inhuman and degrading, especially considering that persons were being held under such conditions for prolonged periods.” 24. After a further visit to Lithuania from 21 to 30 April 2008, the CPT delegation noted that efforts were being made to improve conditions in certain police detention centres.", "Particular mention was made of the recent substantial renovation of the detention facilities at Kaunas City Police Headquarters, which had been the subject of severe criticism by the CPT after the 2000 and 2004 visits. During the 2008 visit, the delegation observed very good material conditions in that establishment. The authorities informed the delegation at the outset of the visit that major renovation had also been carried out in police detention centres at Klaipėda and Panevėžys. Indeed, when visited by the delegation, the latter establishment was found to offer good detention conditions. The delegation was also informed that renovation work was planned in several other police detention centres, in the context of the “Police Development Programme for 2007-2011” (paragraphs 24 and 25 of the CPT report).", "25. However, the CPT noted that material conditions in the other police detention centres visited (Jonava, Rokiškis, Kupiškis, Šiauliai and Trakai) displayed a number of major shortcomings and could in some cases be considered inhuman and degrading. The majority of cells seen by the delegation were in a poor state of repair and filthy. Detainees often had little or no access to natural light, and the cells had dim artificial lighting and poor ventilation. At Jonava, a tap placed directly above the minimally partitioned and unhygienic in-cell toilets was the only source of drinking water.", "Furthermore, as was the case during previous CPT visits, most detainees in police detention centres were locked in their cells for the majority of the day, their only diversions consisting of conversing with their cellmates or, in some detention centres, watching TV. For the CPT, “such a state of affairs was totally unacceptable” (paragraph 26 of the CPT report). 26. More generally, the CPT called upon the Lithuanian authorities to step up their efforts to bring conditions of detention in all police detention centres to an acceptable level. In particular, measures had to be taken to ensure first that access to natural light and artificial lighting, as well as ventilation, was adequate; secondly that all detainees had ready access to drinking water in salubrious conditions and were provided with basic hygiene products; and thirdly that the state of repair and hygiene in the cells and the communal sanitary facilities was adequate (paragraph 27 of the CPT report).", "27. After a further visit to Lithuania from 14 to 18 June 2010, the CPT concluded: Conditions of detention “25. Material conditions of detention in the three police detention centres visited ranged from very good (Kaunas) to satisfactory (Wing 2 at Klaipėda) to poor − and in some areas very poor (Wing 1 at Klaipėda and Vilnius). Kaunas City Police Detention Centre had been renovated prior to the 2008 visit and the CPT’s report commented favourably on the material conditions. The delegation which carried out the 2010 visit observed that those conditions remained of a very good standard.", "Klaipėda City Police Detention Centre had been partially refurbished. In the renovated wing of the building (Wing 2), material conditions were satisfactory on the whole. Nonetheless, access to natural light left something to be desired, and the toilets were insufficiently partitioned. Conversely, conditions in the non-renovated wing (Wing 1) were very poor. The cells were in a dilapidated state, dirty and damp, and the same was true of the mattresses and blankets.", "Further, access to natural light, artificial lighting and ventilation were limited, and the toilets lacked a partition and were malodorous. As for the electrical installations, they seemed hazardous. The delegation was also informed that, in winter, the cells were very cold. At Vilnius City Police Detention Centre, the cells were in a poor state of repair and hygiene, and access to natural light and ventilation were inadequate. Moreover, the toilets only had a low partition.", "In four cells (nos. 8 to 11), the windows had been concreted over, and there was therefore no access to natural light and no evident means of ventilation; the atmosphere in these cells was damp and suffocating.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 28. The applicant complained that the conditions of his detention at the Anykščiai Facility had amounted to inhuman and degrading treatment. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.", "The submissions by the parties 1. The applicant 29. The applicant argued that the conditions of his detention at the Anykščiai Facility had been appalling, in breach of domestic legislation and the European Prison Rules, and amounted to a violation of Article 3 of the Convention. 30. In particular, he had been held in a cell located at semi-basement level.", "Given that there was no toilet in the cell, he had had to relieve himself in a bucket or plastic bottle, despite the fact that he had not been the only occupant of the cell. The odour from the bucket had been so strong that it had been impossible to eat in the cell. Furthermore, as the cell had had no sink, he had not had sufficient drinking water. Poor lighting and ventilation had further aggravated his situation by causing him headaches and sore eyes. The applicant submitted that he remembered the degrading conditions of his detention to this day.", "He noted that the accuracy of his complaints had been confirmed by the Ombudsman, the administration of the police facility itself and the prosecutor. 31. Lastly, the applicant was also dissatisfied that although the Supreme Administrative Court had acknowledged the inappropriateness of the detention conditions, it had failed to award him any damages. 2. The Government 32.", "The Government noted at the outset that, in contrast to Peers v. Greece (no. 28524/95, § 75, ECHR 2001‑III), where the applicant had spent at least two months in a remand facility and the Court had found a violation of Article 3 of the Convention, in the present case, similarly to the Court’s decision in Karalevičius v. Lithuania (no. 53254/99, 6 June 2002), the applicant had spent only seven days in the Anykščiai Facility. During that time, he had been held with another person for only three days; for the remaining four days he had been held alone. Furthermore, the remand facility was very small, consisting of only seven cells in total.", "The inmates were taken out of the cell daily for an hour’s walk, which improved their well-being. 33. Whilst in essence admitting the shortcomings established by the Lithuanian authorities as regards the conditions of the applicant’s detention, the Government nonetheless had a few observations to make. They submitted that although the cells in the facility had not been equipped with sanitary units, the inmates were accompanied to a lavatory shared by all detainees in accordance with their individual needs. This was one of the statutory functions of the guard on duty.", "The Government maintained that the officers of the small detention facility could always be reached by knocking on the cell doors. The cells were also equipped with containers for the satisfaction of physiological needs, which served “as an additional tool only”. Whilst certain discomfort had been caused by the infrastructural limitations of the remand facility, the conditions of the applicant’s detention had not caused him any adverse health effects. Furthermore, despite the lack of natural light and the ineffective ventilation system, the artificial lighting and the microclimate in the cell met the requirements of the domestic legislation. In addition, the domestic courts had not found that the conditions in the facility were unsanitary in general.", "Lastly, it was important to note that the officers in the remand facility had not intended to degrade the applicant by subjecting him to unsanitary conditions in that institution. 34. In the light of the above, the Government concluded that the applicant had not been subjected to inhuman or degrading treatment during his stay at the Anykščiai Facility. The complaint that Article 3 of the Convention had been breached was thus unfounded. B.", "The Court’s assessment 1. Admissibility 35. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits 36. The Court reiterates that, according to its 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, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).", "37. Furthermore, in considering whether a treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see Raninen v. Finland, 16 December 1997, § 55, Reports of Judgments and Decisions 1997‑VIII). 38. To the extent that the applicant complains about the detention conditions at the Anykščiai Facility, the Court notes that the applicant was detained there for seven days from 9 to 16 October 2006. The Government have argued that the instant case was similar to that of Karalevičius (cited above), where the applicant had spent only six days in detention and the Court had found that short duration of relevance when finding that the unsatisfactory conditions of his detention had not attained the minimum level of severity to fall within the ambit of Article 3 of the Convention.", "Whilst acknowledging that the two cases appear similar as regards the duration of the detention, the Court nonetheless notes that the particular elements characterising the conditions of detention are different. In particular, in Karalevičius the applicant complained about the absence of windows and a stroll yard at the Kaunas Central Police Department Remand Prison. In the instant case, however, the applicant has laid emphasis on the allegedly degrading treatment that consisted of the necessity to relieve himself in a bucket at night, sometimes in the presence of another inmate, and the lack of adequate ventilation, alongside a complaint about inappropriate lighting. For the Court, a lack of appropriate toilet facilities, combined with limited ventilation, appear to be factors that affected his situation in a way that was more severe than in Karalevičius. Accordingly, the Government’s argument must be dismissed.", "39. On the facts of the instant case, the Court notes that, except for one hour’s walk, the applicant had to spend the entire 24-hour period in his cell. Of the seven days that he spent in the Anykščiai Facility, the applicant shared his cell with another inmate for three days. As has been acknowledged by the administration of the remand facility (see paragraph 7 above) and established by the Ombudsman and the Supreme Administrative Court, at night the applicant had to use a bucket toilet in the presence of another inmate and be present while the bucket toilet was being used by his cellmate (see paragraphs 11 and 15 above). This fact had in essence been acknowledged by the Government, which stipulated that “containers for the satisfaction of physiological needs had been provided in the cells as an additional tool only”.", "Furthermore, even though the Government suggested that the inmates could knock on the cell door to ask the guard to take them to the toilet, the Court finds that this measure merely left the inmates at the discretion of the guard. In addition, such practice appears to have been in contradiction with the Lithuanian legislation itself (see paragraphs 20 and 21 above). Finally, the situation the applicant was in did not meet Council of Europe standards to the effect that prisoners should have ready access to sanitary facilities that are hygienic and respect privacy (point 19.3 of the European Prison Rules; see paragraph 22 above). 40. The Court also notes that, as established by the Ombudsman and the Supreme Administrative Court, the ventilation system in the remand facility was “ineffective”.", "Given the lack of appropriate toilet facilities in the cell, it is not unreasonable to conclude that the lack of a proper ventilation system must have contributed to a malodorous cell and thus further aggravated the applicant’s situation. 41. The Court next turns to the Government’s argument that the Anykščiai Facility’s administration had no intention of humiliating the applicant. Be that as it may, it reiterates that although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (see V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999‑IX, and Peers, cited above, § 74).", "42. Indeed, in the present case, the fact remains that the competent authorities took no steps to improve the objectively unacceptable conditions of the applicant’s detention. In the Court’s view, this omission denotes a lack of respect for the applicant. On this point the Court also takes into account that, despite the fact that in 2006 health care specialists had already pointed out “over and over again” the lack of sanitary units in the Anykščiai Facility (see paragraph 11 above), the institution was still used to hold remand prisoners. The Court also has had regard to the CPT reports to the effect that the situation in a substantial number of police detention facilities, especially in smaller towns, was “totally unacceptable” and in some cases “could be considered inhuman and degrading” (see paragraphs 23-27 above).", "43. In the light of the above considerations, the Court is not convinced by the Government’s submission that these conditions did not affect the applicant in a manner incompatible with Article 3. On the contrary, the Court is of the view that the prison conditions complained of diminished the applicant’s human dignity and aroused in him feelings of anguish and inferiority capable of humiliating and debasing him. In sum, the Court considers that the conditions of the applicant’s detention in the Anykščiai Police Detention Facility amounted to degrading treatment within the meaning of Article 3 of the Convention. There has thus been a breach of this provision.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 44. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 45. The applicant claimed 210,000 Lithuanian litai (approximately 60,820 euros (EUR)) in respect of non-pecuniary damage.", "46. The Government disputed the claim as unsubstantiated and excessive. 47. The Court reiterates, firstly, that the applicant cannot be required to furnish any proof of the non-pecuniary damage he sustained (see Gridin v. Russia, no. 4171/04, § 20, 1 June 2006).", "The Court also considers that the applicant’s suffering and frustration cannot be compensated for by a mere finding of a violation. Nevertheless, the amount claimed appears excessive. Making its assessment on an equitable basis, it awards the applicant EUR 3,000 in respect of non-pecuniary damage. B. Costs and expenses 48.", "The applicant made no claims for the costs and expenses incurred before the domestic courts or the Court. Accordingly, the Court makes no award under this head. 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 1.", "Declares unanimously the application admissible; 2. Holds unanimously that there has been a violation of Article 3 of the Convention; 3. 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 3,000 (three 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 on the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points; 4. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 20 November 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stanley NaismithIneta ZiemeleRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Jočienė is annexed to this judgment. I.Z.S.H.N. PARTLY DISSENTING OPINION OF JUDGE JOČIENĖ I agree with the majority’s conclusion that there has been a violation of Article 3 of the Convention in this case concerning the degrading conditions of the applicant’s detention at the Anykščiai Police Remand Facility. However, I would like to express my disagreement as regards the just satisfaction claim under Article 41, where the Chamber decided to award the applicant 3,000 euros in respect of non-pecuniary damage. In my opinion, the sum awarded is excessive, insufficiently reasoned and unacceptable in the overall circumstances relevant to the case.", "The applicant was detained in the above-mentioned Police Remand Facility for only seven days. Moreover, the Lithuanian administrative courts found (see paragraphs 14 to 16 of the judgment) that certain domestic regulations on hygiene standards had been breached (as regards the natural light in cells and the possibility to use the toilet in conditions that were not degrading), but nevertheless came to the conclusion that the minimum level of severity required under Article 3 of the Convention had not been reached in this case as there was no indication that the conditions of detention had affected the applicant’s physical health. Therefore, even while disagreeing with the national courts’ conclusion that the minimum level of severity required in order to find a substantive violation of Article 3 was not reached in this case, I think that the Chamber should have taken into account the analysis of the national courts regarding the fact that no negative impact of the detention conditions on the applicant’s physical health had been established (see paragraph 15 of the judgment). Furthermore, the national courts placed great emphasis on the fact that the applicant was a healthy man of 44, detained for a very short period of seven days. They also had regard to the fact that there had been no intention on the part of the authorities to humiliate or debase the applicant.", "In my opinion such facts, established by the national courts, are of crucial importance and must be taken into account also in the light of the case-law of the Court when awarding just satisfaction to applicants in Article 3 cases (see Price v. the United Kingdom, no. 33394/96, § 34, ECHR 2001‑VII). I could accept that the Chamber, bearing in mind its findings with regard to the degrading treatment suffered by the applicant (see paragraph 43 of the judgment), might have considered that the applicant had suffered some non‑pecuniary damage even as a result of his short detention which could not be compensated solely by the finding of a violation (see Peers v. Greece, no. 28524/95, § 88, ECHR 2001‑III; Savenkovas v. Lithuania, no. 871/02, § 117, 18 November 2008; and Longin v. Croatia, no.", "49268/10, § 76, 6 November 2012). However, in my opinion, in determining the amount of the award, the above-mentioned criteria should have been taken into account and therefore the award for non-pecuniary damage should have been significantly reduced in this case. Further, I note that the just satisfaction claim of the applicant (even for non-pecuniary damage under Article 41) is not supported by any medical evidence which might provide proof of the adverse consequences caused to the applicant, such as distress and/or frustration. The claim is based on the applicant’s personal assessment, which cannot be considered reasonable in the particular circumstances of this case. I conclude that the Chamber should have been more cautious when deciding on the non-pecuniary award under Article 41, in order to justify the satisfaction claims as “just” in the circumstances of the case at issue while also taking into account the economic situation or standard of living in the country (see, mutatis mutandis, Giedrikas v. Lithuania (dec.), no.", "51392/07, 14 December 2010). In Lithuania, the average minimum monthly salary is 850 Lithuanian litai[1], meaning that the applicant, for seven days’ detention without any negative consequences, will receive compensation equal to approximately twelve months’ average salary in that country. [1] Key social indexes. <http://www.sodra.lt/index.php?cid=2841>; Exchange rate: 1 EUR = 3.45 LTL." ]
[ "FIRST SECTION CASE OF GORLOVA v. RUSSIA (Application no. 29898/03) 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 Gorlova 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. 29898/03) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Anna Nikolayevna Gorlova (“the applicant”), on 9 July 2003. 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 1 March 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS 4. The applicant was born in 1942 and lives in the town of Yakutsk in the Sakha (Yakutiya) Republic.", "A. Proceedings for provision of housing 5. On 4 October 2002 the Yakutsk Town Court ordered that the Yakutsk Town Council should provide the applicant with a well-equipped one-room flat. The judgment was not appealed against and became final on 19 October 2002. 6.", "On 13 January 2003 the Yakutsk mayor's office took over the functions of the Town Council because the latter had ceased to exist as a legal entity. 7. The applicant asked the Yakutsk Town Court to impose on the Yakutsk mayor's office the obligation to enforce the judgment of 4 October 2002. On 26 August 2003 the Yakutsk Town Court dismissed the request because she had not provided any evidence that the mayor's office was the successor to the Town Council. The applicant did not appeal against that judgment.", "8. On 10 October 2003 the Yakutsk Town Court dismissed the applicant's request for immediate enforcement of the judgment of 4 October 2002. The judgment was upheld on appeal on 17 November 2003. 9. On 30 March 2004 the Yakutsk Town Court, upon the applicant's request, amended the judgment of 4 October 2002 and ordered that the Yakutsk mayor's office should enforce it.", "10. On 28 December 2004 the Yakutsk Town Court once again amended the judgment of 4 October 2002 and ordered that the Yakutsk mayor's office should pay the applicant 700,000 Russian roubles in lieu of the flat. The judgment was not appealed against and became final. 11. On 7 April 2006 the Yakutsk mayor's office credited RUR 700,000 to the bailiffs' account.", "In June 2006 the bailiffs sent a letter to the applicant informing her about the transaction and asking to provide details of her bank account. According to the Government, the applicant did not respond. The bailiffs also attempted to personally serve the applicant with the letter, but she could not be found at her place of residence. 12. On an unspecified date the bailiffs learned the details of the applicant's bank account and on 4 September 2006 they credited RUR 700,000 to it.", "B. Proceedings concerning restoration of the heating supply 13. In 1994 a housing maintenance company cut off the heating in the applicant's flat. The applicant sued the company seeking restoration of the heating supply and compensation for damage. 14.", "On 8 December 1999 the Supreme Court of the Sakha (Yakutiya) Republic, in the final instance, partly accepted the action. The maintenance company restored the heating. 15. The judgment of 8 December 1999 was quashed by way of a supervisory review on 25 October 2001 and the case was remitted for a fresh examination. 16.", "On 18 November 2002 the Yakutsk Town Court awarded the applicant RUR 1,845 in compensation. The judgment was upheld on appeal on 11 December 2002. C. Tort proceedings 17. The applicant sued the Yakutsk Town Council claiming compensation for damage caused to her flat due to the absence of the heating. 18.", "On 28 August 2002 the Yakutsk Town Court dismissed the action because the municipal authorities had not been responsible for the damage. The judgment was upheld on appeal on 7 October 2002. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF THE NON-ENFORCEMENT OF THE JUDGMENT OF 4 OCTOBER 2002 19.", "The applicant complained that the judgment of 4 October 2002, as amended on 30 March and 28 December 2004, was not timeously enforced. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 (see Burdov v. Russia, no. 59498/00, § 26, ECHR 2002‑III). The relevant parts of these provisions read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time... by [a]... tribunal...” Article 1 of Protocol No.", "1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...” A. Admissibility 20. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 21. The Government stated that the judgment of 4 October 2002 had been enforced on 4 September 2006. However, the domestic authorities should not be held responsible for a delay in the enforcement proceedings after 7 April 2006 because the applicant had not co-operated and showed no diligence, which could be reasonably expected, thereby delaying the proceedings. In any event, the Yakutsk Town Council and then the Yakutsk mayor's office had not had the necessary resources to enforce the judgment.", "22. The applicant maintained her complaints. 23. The Court observes that on 4 October 2002 the applicant obtained a judgment by which the Town Council was to provide her with a flat. The judgment became final and enforceable on 19 October 2002.", "On 30 March 2004 the Yakutsk Town Court ordered that the Yakutsk mayor's office should enforce the judgment of 4 October 2002. On 28 December 2004 the Town Court further amended the judgment of 4 October 2002 and awarded the applicant a sum of money in lieu of the flat. On 4 September 2006 the judgment of 4 October 2002, as amended on 30 March and 28 December 2004, was enforced in full when the applicant received the money. Thus, it has remained unenforced for approximately three years and eleven months. 24.", "The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the ones in the present case (see Malinovskiy v. Russia, no. 41302/02, § 35 et seq., ECHR 2005; Teteriny v. Russia, no. 11931/03, § 41 et seq., 9 June 2005). 25.", "Having examined the material submitted to it, 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. The Court notes that the judgment was not enforced because the debtor did not possess available housing and did not have financial recourses to purchase a flat. However, the Court reiterates that it is not open to a State authority to cite the lack of funds or other resources, such as housing, as an excuse for not honouring a judgment debt (see Malinovskiy v. Russia, no. 41302/02, § 35, 16 June 2005; Plotnikovy v. Russia, no. 43883/02, § 23, 24 February 2005).", "26. The Court is not convinced by the Government's argument that the applicant contributed to the length of the enforcement proceedings by failing to provide details of her bank account. The Court observes that the bailiffs had inquired the applicant about the account almost two years after the Town Court had awarded her the money in lieu of the flat. The Government did not provide any explanation for such a delay. Moreover, the Government did not produce any evidence showing that after the applicant had, in fact, been notified about the money transfer she had failed to indicate the details of her account.", "27. The Court finds that by failing for years to comply with the enforceable judgment in the applicant's favour the domestic authorities impaired the essence of her right to a court and prevented her from receiving a flat, or subsequently the sum of money, she could reasonably have expected to receive. 28. There has accordingly been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 29. The applicant also complained under Articles 1, 6 § 1, 8 and 13 of the Convention that in 1994 the heating supply had been cut off in her flat, that the judgment of 8 December 1999 had not been enforced and had been quashed on supervisory review, that the tort proceedings and proceedings concerning the restoration of the heating supply had been unfair because the courts had incorrectly applied the law and assessed the facts and that on 26 August and 17 November 2003 the courts had dismissed her claims. 30. Having regard to all the materials in its possession, and in so far as these complaints fall within the Court's competence ratione temporis and ratione personae, 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 being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. 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.” A. Damage 32.", "The applicant claimed 43,000 euros (EUR) in respect of pecuniary damage, of which EUR 40,000 represented the market price of a one-room flat in Yakutsk and EUR 3,000 represented the reduction of maintenance charges in respect of her old flat which she had not obtained due to the absence of registration in that flat. She further claimed EUR 100,000 in respect of non-pecuniary damage. 33. The Government argued that on 28 December 2004 the Yakutsk Town Court had awarded the applicant the sum representing the cost of a one-room flat. She had already received that money.", "They further stated that the applicant could have registered at her old flat and could have asked the authorities to reduce the maintenance charges. However, she had not done it. In any event, the claims were excessive and irrelevant. 34. As regards the claim for compensation in respect of pecuniary damage, the Court observes that on 28 December 2004 the Town Court awarded the applicant the money in lieu of a flat which she was to receive under the judgment of 4 October 2002.", "It appears that the awarded sum satisfied the applicant as she did not appeal against the judgment of 28 December 2004. The sum has already been paid to her. The Court therefore rejects that claim. As regards the pecuniary damage claimed by the applicant in respect of reduction of maintenance charges, the Court observes that the applicant's calculations are speculative. She did not submit any evidence to substantiate her calculations.", "The Court therefore rejects her claim in respect of pecuniary damage. 35. The Court considers that the applicant must have suffered certain distress and frustration resulting from the State's failure to enforce a judgment in her favour. However, the amount claimed appears excessive. The Court takes into account the relevant aspects, in particular, the length of the enforcement proceedings and the nature of the domestic award.", "Making its assessment on equitable basis, it awards the applicant EUR 3,100 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 36. The applicant did not make any claims for the costs and expenses incurred before the domestic courts and before the Court. 37.", "Accordingly, the Court does not award anything under this head. C. Default interest 38. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning delay in enforcement of the judgment of 4 October 2002, as amended on 30 March and 28 December 2004, admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,100 (three thousand and one hundred euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of the settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 15 February 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenLoukis LoucaidesRegistrarPresident" ]
[ "FIRST SECTION (as composed before 1 April 2006) CASE OF RUSSIAN CONSERVATIVE PARTY OF ENTREPRENEURS AND OTHERS v. RUSSIA (Applications nos. 55066/00 and 55638/00) JUDGMENT STRASBOURG 11 January 2007 FINAL 11/04/2007 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 the Russian Conservative Party of Entrepreneurs and Others v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrP.", "Lorenzen,MrsN. Vajić,MrsS. Botoucharova,MrA. Kovler,MrsE. Steiner,MrK.", "Hajiyev, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 7 December 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos. 55066/00 and 55638/00) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the Russian Conservative Party of Entrepreneurs (“the applicant party”) and two Russian nationals, Mr Aleksandr Anatolyevich Zhukov (“the second applicant”) and Mr Viktor Sergeyevich Vasilyev (“the third applicant”), on 8 and 22 February 2000. 2. The applicants were represented before the Court by Mr M. Toporkov, the chairman of the applicant party, and Mr P. Sklyarov, the head of its legal department.", "The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicants alleged a violation of the applicant party's and the second applicant's right to stand for election and a violation of the third applicant's right to cast his vote for the party of his choice. The applicant party also complained about the domestic authorities' refusal to return the election deposit. Finally, all the applicants complained that they had had no effective remedy in respect of the alleged violations of their rights.", "4. The applications were 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. On 3 April 2003 the Chamber decided to join the applications (Rule 42 § 1).", "6. By decision of 18 March 2004, the Court declared the applications admissible. 7. The applicants and the Government filed observations on the merits (Rule 59 § 1). The applicants submitted their comments on the Government's observations.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8. The applicant party, the Russian Conservative Party of Entrepreneurs (Российская консервативная партия пред­при­ни­ма­те­лей), is a nationwide political party established under the laws of the Russian Federation. The second applicant, Mr Aleksandr Anatolyevich Zhukov, was born in 1949 and lives in Smolensk. He stood as one of the applicant party's candidates for the 1999 elections to the State Duma.", "The third applicant, Mr Viktor Sergeyevich Vasilyev, was born in 1959 and lives in Moscow. He was a supporter of the applicant party. A. Participation in the 1999 elections to the State Duma 1. Registration of the applicant party for election 9.", "On 24 September 1999 the applicant party nominated 151 candidates for the elections to the State Duma of the Federal Assembly of the Russian Federation, the lower chamber of the Russian bicameral parliament. 10. On 15 October 1999 the Central Electoral Commission of the Russian Federation (Центральная избирательная комиссия РФ – “the CEC”) confirmed receipt of the applicant party's list of candidates. The applicant party paid the election deposit. 11.", "On 3 November 1999 the CEC refused to register the applicant party's list, with reference to sections 24(1), 47 (6) (d), 51 (11) and 91 (2) of the Elections Act. The CEC established that seventeen candidates had submitted substantially inaccurate information about their income and property and struck them off the list. One of them was the number two candidate on the list. On that ground the CEC decided: “2. To refuse the registration of the federal list of candidates to the State Duma of the Russian Federation nominated by [the applicant party] because of the withdrawal [выбытие] of the candidate listed as number two in the nationwide section of the accepted federal list of candidates.” 2.", "Judicial proceedings concerning the applicant party's complaint 12. The applicant party appealed to a court against the CEC's refusal to register it. 13. On 10 November 1999 the Civil Division of the Supreme Court of the Russian Federation, acting as a first-instance court, upheld the CEC's decision to remove from the list the candidates who had made false representations, but declared unlawful the CEC's refusal to register the list in its entirety. The court interpreted the term “withdrawal” in section 51(11) of the Elections Act as meaning only a candidate's voluntary withdrawal of his or her own free will.", "The court therefore held that the provision should not apply to a situation where one of the top three candidates had been struck off the list by the CEC. 14. The CEC appealed against that judgment. The applicant party submitted its observations on the CEC's grounds of appeal. 15.", "On 22 November 1999 the Appeals Division of the Supreme Court of the Russian Federation upheld the judgment of 10 November 1999. The court thoroughly analysed the wording of the Elections Act and agreed that the word “withdrawal” in section 51(11) of the Act should only refer to situations where the candidate's name had been taken off the list of the candidate's own free will or at the request of the candidate's electoral union. 16. On the same date the CEC allowed the registration of the applicant party's list of candidates. 3.", "Supervisory-review proceedings and quashing of earlier judgments 17. On 26 November 1999 a deputy Prosecutor General of the Russian Federation lodged an application for supervisory review with the Presidium of the Supreme Court of the Russian Federation. The prosecutor argued that “withdrawal” was a generic term which applied to any situation where a candidate was struck off the list, be it the expression of will of the candidate himself, of his electoral union, or of the CEC. Hence a candidate's exclusion as a result of the CEC's decision should count as “withdrawal” and thus render section 51(11) of the Elections Act applicable. 18.", "On 8 December 1999 the Presidium of the Supreme Court of the Russian Federation granted the application for supervisory review and quashed the judgment of 22 November 1999. The court followed the line of reasoning suggested by the deputy Prosecutor General. The court emphasised that the exclusion of a candidate from the list as a result of the CEC's decision was only a specific instance of “withdrawal” and that the CEC's refusal to register the list had therefore been lawful. 19. On 9 December 1999 the CEC annulled its earlier decisions, refused the registration of the applicant party's list and ordered the applicant party's name to be removed from the ballot papers.", "The applicant party appealed against the CEC's decision to the Supreme Court of the Russian Federation. On 18 December 1999 the Supreme Court of the Russian Federation dismissed the applicant party's complaint. The court found that pursuant to the judgment of the Presidium of the Supreme Court of the Russian Federation, the CEC had no discretion in the matter and it was obliged as a matter of law to refuse the registration of the applicant party's list. 20. On 19 December 1999 the elections to the State Duma took place.", "The applicant party was not listed in the voting papers. 4. Ruling no. 7-P of the Constitutional Court of the Russian Federation 21. On 25 April 2000 the Constitutional Court of the Russian Federation, acting on an application by a group of Russian MPs, declared unconstitutional the part of section 51(11) of the Elections Act which provided for the refusal or cancellation of a party's registration in the event of the withdrawal of one of the top three candidates on the list.", "22. The Constitutional Court stressed that the right to stand for election was an individual rather than a collective right. However, the contested provision made the exercise of that right conditional on the consistent presence of the top three candidates on the list, which amounted to a restriction on the other candidates' right to stand for election and on the citizens' right to vote for them. It violated the principle of equality between the candidates because it only applied in the event of withdrawal of one of the top three candidates but not of those in lower positions on the list. Such a restriction could not be justified by the special role played by the top three candidates, who were usually political heavyweights, in the electoral campaign and it did not serve any legitimate aim listed in the Constitution.", "23. Moreover, withdrawal of one of the top three candidates had a disproportionately crippling effect on the electoral union or bloc, which forfeited the right to stand for election through no fault of its own. On the other hand, it made it difficult for the top three candidates to leave an electoral union whose platform had changed to the point of being inconsistent with their own views. It also encroached on the active voting rights of the electorate, depriving them of an opportunity to vote for the candidates and impairing the formation of a representative spectrum of members of Parliament. 24.", "Finally, the Constitutional Court noted that the refusal or cancellation of registration was essentially a sanction imposed on an electoral union or bloc. Sanctions could only be inflicted for violations of the electoral laws and should be proportionate to the violation. However, the contested provision made it possible to sanction electoral unions, blocs and other candidates who had not committed any violation, and this was incompatible with the general principles of justice and rule of law. 25. The Constitutional Court also ruled that the finding that section 51(11) was unconstitutional was of no consequence for the State Duma elections of 19 December 1999 and could not be relied upon to seek a review of their results.", "26. On 4 May 2000 the Constitutional Court of the Russian Federation disallowed the applicant party's application for review of the compatibility of section 51(11) with the Constitution, because the subject-matter of the application was essentially the same as the matter adjudicated on 25 April 2000. 5. Request for a review on account of new circumstances 27. In 2001 the applicant party lodged an application with the Presidium of the Supreme Court of the Russian Federation to review the judgment of 8 December 1999 in the light of a new circumstance, namely the ruling of the Constitutional Court.", "28. On 7 February 2001 the Presidium of the Russian Federation Supreme Court refused the applicant party's application. The court ruled that the ruling of the Constitutional Court was not a new circumstance under domestic law and that, in any event, the applicant party had failed to comply with the procedural time-limit of three months for lodging its application for a review. B. Proceedings for the return of the election deposit 29.", "On 30 July 2000 the applicant party applied to the CEC to have its election deposit paid back. 30. In a letter of 24 August 2000, the CEC informed the applicant party that the election deposit had been credited to the federal budget and could not be repaid. The CEC maintained that the decision of the Constitutional Court did not apply to the 1999 elections and that there was consequently no ground for returning the election deposit. 31.", "On 26 April 2001 the applicant party brought a civil action against the CEC for the return of the election deposit. 32. In a judgment of 6 September 2001, the Basmanniy District Court of Moscow dismissed the applicant party's action. The court based its decision on a provision of the Elections Act to the effect that the election deposit could not be repaid if the party's list had not been registered in accordance with section 51(11) of the Act. The court held that the applicant party's request for the return of the deposit on the basis of the Constitutional Court's ruling was in fact a disguised request for a review of the election results, which had been expressly prohibited by the Constitutional Court.", "33. On 10 June 2002 the Moscow City Court upheld on appeal the judgment of 6 September 2001. II. RELEVANT DOMESTIC LAW A. Constitution of the Russian Federation 34.", "The Constitution of the Russian Federation guarantees to the citizens of the Russian Federation the right to elect and to stand for election to State and municipal bodies (Article 32 § 2). B. The Elections Act 35. The Federal Law on Elections of Deputies to the State Duma of the Russian Federation Federal Assembly (no. 121-FZ of 24 June 1999 – “the Elections Act”) provided at the material time as follows: Section 47.", "Registration of a candidate or of a federal list of candidates “1. No later than ten days after the submission of the lists of signatures ([or] upon receipt of the election deposit in the special account of the Central Electoral Commission) and of other documents required for the registration of the federal list of candidates, the Central Electoral Commission shall make a decision to register the federal list of candidates or a reasoned decision to refuse to register the said list... 6 ... Grounds for a refusal shall include: (d) [“(г)” in the original] inaccuracy of information submitted by candidates, electoral unions or blocs in accordance with the present Federal Law, provided that such inaccuracy is substantial (inaccuracy of information in respect of specific candidates on the federal list of candidates of an electoral union or bloc may only be a ground for the exclusion of the candidates in question from the approved federal list)...” Section 51. Withdrawal of candidates, registered candidates, electoral unions or electoral blocs “11. If the number of candidates, registered candidates and candidates excluded from the federal list of candidates of their own motion or by virtue of a decision of the electoral union or electoral bloc exceeds 25 per cent of the total number of candidates in the approved electoral list or if withdrawal of one or more candidates listed in the top three positions in the nationwide section of the approved federal list of candidates occurs (except in the event of compelling circumstances as described in subsection 16 of this section), the Central Electoral Commission shall refuse to register the federal list of candidates or shall cancel such registration.", "15. ...[If] the registration of the federal list was cancelled pursuant to subsection 11 of this section..., all expenses incurred by the electoral commission in connection with the preparation and organisation of elections shall be reimbursed by that registered candidate, electoral union or electoral bloc.” Section 64. Election deposit “7. ...If... a registered candidate withdraws on his own initiative or a candidate, registered candidate or the federal list is withdrawn by the electoral union or electoral bloc (with the exception of cases described in section 51(15) of this Federal Law) ... [or] registration of a candidate or of the federal list is refused (except on the grounds set out in section 91(2) of this Federal Law) ..., the election deposit that has been paid shall be returned by the electoral commission to the appropriate electoral fund no later than ten days after an application (notice) to that effect is submitted to the Central Electoral Commission ... by the electoral union, electoral bloc, candidate, or registered candidate, or after the registration is refused.” Section 91.", "Grounds for refusal or cancellation of the registration of a candidate or a federal list of candidates “2. An electoral commission may refuse to register a candidate or a federal list of candidates if: (а) it is established that the information submitted by the candidate or an authorised representative of an electoral union or bloc under this Federal Law is substantially inaccurate ...” C. Decree no. 65/764/3 of the Central Electoral Commission of the Russian Federation on the Approval of the General Election Results for the State Duma of the Federal Assembly of the Russian Federation 36. On 29 December 1999 the CEC approved, by the above decree, the general election results. It appears from the appendices to the decree that 28 political parties and blocs took part in the elections, of which six passed the requisite 5% threshold for representation in Parliament.", "66.8 million voters cast their votes in the election, representing 61.85% of the voting population. 3.3% of voters voted “against all candidates”. III. RELEVANT COUNCIL OF EUROPE DOCUMENTS A. Resolution of the Parliamentary Assembly on the Code of Good Practice in Electoral Matters 37.", "The relevant parts of Resolution 1320 (2003) adopted by the Parliamentary Assembly on 30 January 2003, read as follows: “1. The holding of free, equal, universal, secret and direct elections at regular intervals remains a sine qua non [condition] for recognising a political system as democratic... 5. The Assembly considers that the code constitutes a major step towards harmonising standards for the organisation and observation of elections and in establishing procedures and conditions for the organisation of the electoral process... 8. The Assembly considers that, as a reference document not only for member states but also for itself, the code would reinforce the impact and the credibility of the electoral observation and monitoring activities conducted by the Council of Europe.” B. Declaration by the Committee of Ministers on the Code of Good Practice in Electoral Matters 38.", "The relevant parts of the declaration adopted by the Committee of Ministers on 13 May 2004 at its 114th Session, read as follows: “The Committee of Ministers... Recalling the importance of the effective implementation of the principles of Europe's electoral heritage: universal, equal, free, secret and direct suffrage... Recognises the importance of the Code of Good Practice in Electoral Matters, which reflects the principles of Europe's electoral heritage, as a reference document for the Council of Europe in this area, and as a basis for possible further development of the legal framework of democratic elections in European countries; Calls on governments, parliaments and other relevant authorities in the member states to take account of the Code of Good Practice in Electoral Matters, to have regard to it, within their democratic national traditions...” C. Code of Good Practice in Electoral Matters: Guidelines on Elections and Explanatory Report 39. The Code of Good Practice was adopted by the European Commission for Democracy through Law (Venice Commission) at its 51st (Guidelines) and 52nd (Report) sessions on 5-6 July and 18-19 October 2002 (Opinion no. 190/2002, CDL-AD (2002) 23 rev.). 40. Guidelines on Elections provide as follows: I.", "Principles of Europe's electoral heritage “The five principles underlying Europe's electoral heritage are universal, equal, free, secret and direct suffrage. Furthermore, elections must be held at regular intervals. 3.1. Freedom of voters to form an opinion a. State authorities must observe their duty of neutrality.", "In particular, this concerns: i. media; ii. billposting; iii. the right to demonstrate; iv. funding of parties and candidates. b.", "The public authorities have a number of positive obligations; inter alia, they must: i. submit the candidatures received to the electorate; ii. enable voters to know the lists and candidates standing for election, for example through appropriate posting. iii. The above information must also be available in the languages of the national minorities. c. Sanctions must be imposed in the case of breaches of duty of neutrality and voters' freedom to form an opinion.", "3.2. Freedom of voters to express their wishes and action to combat electoral fraud i. voting procedures must be simple; ii. voters should always have the possibility of voting in a polling station... vii. at least two criteria should be used to assess the accuracy of the outcome of the ballot: the number of votes cast and the number of voting slips placed in the ballot box... x. polling stations must include representatives of a number of parties, and the presence of observers appointed by the candidates must be permitted during voting and counting... xiii. counting must be transparent.", "Observers, candidates' representatives and the media must be allowed to be present. These persons must also have access to the records; xv. the state must punish any kind of electoral fraud.” 41. Explanatory Report reads as follows: “3. Free suffrage 26.", "Free suffrage comprises two different aspects: free formation of the elector's opinion, and free expression of this opinion, i.e. freedom of voting procedure and accurate assessment of the result. 3.1 Freedom of voters to form an opinion a. Freedom of voters to form an opinion partly overlaps with equality of opportunity. It requires the state – and public authorities generally – to honour their duty of even-handedness, particularly where the use of the mass media, billposting, the right to demonstrate on public thoroughfares and the funding of parties and candidates are concerned.", "b. Public authorities also have certain positive obligations. They must submit lawfully presented candidatures to the citizens' votes. The presentation of specific candidatures may be prohibited only in exceptional circumstances, where necessitated by a greater public interest. Public authorities must also give the electorate access to lists and candidates standing for election by means, for instance, of appropriate billposting... 3.2.", "Freedom of voters to express their wishes and combating electoral fraud 27. Freedom of voters to express their wishes primarily requires strict observance of the voting procedure. In practice, electors should be able to cast their votes for registered lists or candidates, which means that they must be supplied with ballot papers bearing their names and that they must be able to deposit the ballot papers in a ballot box. ... Electors must be protected from threats or constraints liable to prevent them from casting their votes or from casting them as they wish, whether such threats come from the authorities or from individuals; the state is obliged to prevent and penalise such practices.” IV. RELEVANT INTERNATIONAL DOCUMENTS 42.", "The relevant part of the summary of the findings of the Final Report on the parliamentary elections in the Russian Federation (19 December 1999), prepared by the Office for Democratic Institutions and Human Rights of the Organisation for Security and Cooperation in Europe (OSCE/ODIHR), reads as follows: “In general, and in spite of episodic challenges that could have undermined the general integrity of the process as a whole, the State Duma elections marked significant progress in consolidating representative democracy in the Russian Federation. They reflected a political environment in which voters had a broad spectrum of political forces from which to choose. A solid turnout demonstrated a respectable level of public confidence in the process, and the final result showed a significant increase in the representative share of overall voter support actually included in the State Duma. The electoral laws governing the process had improved significantly with each successive election and were found to be consistent with commonly recognized democratic principles, including those formulated in the OSCE Copenhagen Document of 1990. This legal framework provided a sound basis for the conduct of orderly, pluralistic and accountable elections.", "The law provides the framework for parties and blocs to enter the political arena on an equal basis and provides a foundation for maintaining a level playing field for political participants. In particular, the law provided a basis for equal access to free media time for all participants, and instituted rigid parameters for enforcing accountability measures and controlling the use of campaign funds. The political campaigns were competitive and pluralistic with 26 parties and blocs ultimately competing on the federal list and 3 to 24 candidates appearing on ballots for the single-mandate constituency races...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL NO. 1 43.", "The applicants complained under Article 3 of Protocol No. 1 to the Convention that the first and second applicants' right to stand for election and the third applicant's right to vote had been violated. Article 3 of Protocol No. 1 provides as follows: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” 44. The Court will consider separately the alleged violation of the applicant party's and the second applicant's right to stand for election, and the alleged violation of the third applicant's right to vote.", "A. The right to stand for election 1. The parties' arguments 45. The applicants submitted that the Central Electoral Commission had acted in excess of its jurisdiction. It followed from the CEC's decision of 3 November 1999 that it had uncovered false representations made by individual candidates rather than by the applicant party as an entity.", "Neither section 47(6)(d) nor section 91(2) of the Elections Act could be construed as a legal basis for the applicant party's exclusion: the former provision provided for a sanction against individual candidates rather than against the entire list, whereas the latter refused registration of a party that submitted substantially inaccurate information about itself. Neither provision was applicable to the case at hand. Registration of the applicant party had been cancelled on the basis of section 51(11), which had later been struck down by the Constitutional Court because it unduly restricted voting rights. There had been a violation of the applicant party's and the second applicant's right to stand for election, which comprised, in particular, the right to be listed on a ballot paper. 46.", "The Government submitted that there had been no violation because after the elections the contested section 51(11) had been struck down by the Constitutional Court. The CEC's decision to refuse to register the applicant party and the second applicant, subsequently upheld by the domestic courts, was a consequence of a breach of the requirement to submit exact information about the property and income of all candidates on the federal list. That decision had been based not only on section 51(11), but also on section 91(2), which the applicants had disregarded. In any event, from 22 November to 9 December 1999 the applicants had participated in the election campaign on a par with other parties and candidates. 2.", "The general principles established in the Court's case-law 47. Article 3 of Protocol No. 1 enshrines a fundamental principle for effective political democracy, and is accordingly of prime importance in the Convention system (see Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2 March 1987, Series A no. 113, p. 22, § 47). As to the links between democracy and the Convention, the Court has made the following observations (see United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, pp.", "21-22, § 45, cited in Yazar and Others v. Turkey, nos. 22723/93, 22724/93 and 22725/93, § 47, ECHR 2002-II): “Democracy is without doubt a fundamental feature of the European public order ... That is apparent, firstly, from the Preamble to the Convention, which establishes a very clear connection between the Convention and democracy by stating that the maintenance and further realisation of human rights and fundamental freedoms are best ensured on the one hand by an effective political democracy and on the other by a common understanding and observance of human rights ... The Preamble goes on to affirm that European countries have a common heritage of political traditions, ideals, freedom and the rule of law. The Court has observed that in that common heritage are to be found the underlying values of the Convention ...; it has pointed out several times that the Convention was designed to maintain and promote the ideals and values of a democratic society ...” 48. The Court reiterates that implicit in Article 3 of Protocol No.", "1 are the subjective rights to vote and to stand for election. Although those rights are important, they are not absolute. In their internal legal orders the Contracting States make the rights to vote and to stand for election subject to conditions which are not in principle precluded under Article 3. They have a wide margin of appreciation in this sphere, but it is for the Court to determine in the last resort whether the requirements of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see Sadak and Others (no.", "2) v. Turkey, nos. 25144/94 et al., § 31, ECHR 2002‑IV). 49. More particularly, States enjoy considerable latitude to establish in their constitutional order rules governing the status of parliamentarians, including criteria for disqualification. Though originating from a common concern – ensuring the independence of members of parliament, but also the electorate's freedom of choice – the criteria vary according to the historical and political factors peculiar to each State.", "The number of situations provided for in the Constitutions and the legislation on elections in many member States of the Council of Europe shows the diversity of possible choice on the subject. None of these criteria should, however, be considered more valid than any other provided that it guarantees the expression of the will of the people through free, fair and regular elections (see Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002‑II; and Gitonas and Others v. Greece, judgment of 1 July 1997, Reports 1997‑IV, pp. 1233-34, § 39). 50.", "The Court further reiterates that the object and purpose of the Convention, which is an instrument for the protection of human rights, requires its provisions to be interpreted and applied in such a way as to make their stipulations not theoretical or illusory but practical and effective (see United Communist Party of Turkey and Others, cited above, pp. 18-19, § 33). The right to stand as a candidate in an election, which is guaranteed by Article 3 of Protocol No. 1 and is inherent in the concept of a truly democratic regime, would only be illusory if one could be arbitrarily deprived of it at any moment. Consequently, while it is true that States have a wide margin of appreciation when establishing eligibility conditions in the abstract, the principle that rights must be effective requires the finding that this or that candidate has failed to satisfy them to comply with a number of criteria framed to prevent arbitrary decisions (see Podkolzina, cited above, § 35, and Melnychenko v. Ukraine, no.", "17707/02, § 59, ECHR 2004‑X). 3. Application of the above principles to the present case 51. Turning to the present case, the Court notes that the applicant party and the second applicant did not participate in the 1999 elections to the Russian legislature because the Central Electoral Commission (CEC) refused registration of the applicant party's list of candidates, with the result that all candidates on the list, the second applicant among them, were disqualified. 52.", "In its decision of 3 November 1999 the CEC found that certain candidates on the list, including the candidate listed second, had provided incorrect information about their income and property, and ordered their disqualification in their individual capacity. Paragraph 2 of the decision additionally refused the registration of the applicant party's list “because of the withdrawal of the candidate listed as number two”. Although the decision referred indiscriminately to a number of sections of the Elections Act, that particular reason was mentioned only in section 51(11), and paragraph 2 did not give any other reason for the refusal. 53. The Court notes that it is not called upon to examine whether the refusal to register individual candidates disclosed a violation of Article 3 of Protocol No.", "1. Not one of the candidates in question is an applicant in the present case and the applicants did not complain about that part of the CEC's decision. Rather, their complaint hinged on the fact that the applicant party and the other candidates who had done nothing wrong, such as the second applicant, had been disqualified in the election through the fault of the number two candidate. 54. Section 51(11) provided for disqualification of the entire party's list in the event of “withdrawal” (выбытия) of one of the top three candidates on the list.", "That provision was interpreted by the CEC as encompassing all instances of “withdrawal” for whatever reasons: both voluntary withdrawal of the candidate's own free will, and involuntary withdrawal as a consequence of his or her registration having been cancelled or refused by an electoral commission. 55. Disagreeing with such an interpretation, the applicant party challenged the CEC's decision before a court of general jurisdiction. The Supreme Court found for the applicant party at two instances and rejected the CEC's appeal. As a result, on 22 November 1999 the applicant party obtained a final judgment to the effect that section 51(11) applied only if the “withdrawal” had been voluntary.", "As in the applicant party's case the withdrawal had not been voluntary since the number two candidate had been refused by the CEC, the judgment was immediately enforced: on the same day the CEC registered the applicant party and allowed it to carry on its electoral campaign. 56. The judgment of 22 November 1999 was final and no ordinary appeal lay against it. However, on 26 November 1999 a deputy Prosecutor General lodged an application for supervisory review of the adopted judgments, requesting the Supreme Court to reopen the proceedings and to accept the CEC's original broad interpretation of section 51(11). The Presidium of the Supreme Court acceded to the prosecutor's request, quashed the earlier judgments by way of supervisory-review proceedings and upheld the CEC's position.", "On the following day the CEC annulled its decision to register the applicant party's list of candidates. 57. The Court has already found a violation of Article 3 of Protocol No. 1 in a case where the procedure for determination of the applicant's eligibility as a candidate in the election had not satisfied the requirements of procedural fairness and legal certainty (see Podkolzina, cited above, § 37). 58.", "The Court further reiterates that the requirement of legal certainty presupposes respect for the principle of res judicata, that is the principle of finality of judgments. This principle underlines that no party is entitled to seek a re-opening of the proceedings merely for the purpose of a rehearing and a fresh decision of the case. Higher courts' power to quash or alter binding and enforceable judicial decisions should be exercised for correction of fundamental defects. The mere possibility of two views on the subject is not a ground for re-examination. Departures from that principle may be justified only when made necessary by circumstances of a substantial and compelling character (see Ryabykh v. Russia, no.", "52854/99, § 52, ECHR 2003‑IX). Indeed, as the Court has noted, “judicial systems characterised by the objection procedure and, therefore, by the risk of final judgments being set aside repeatedly ... are, as such, incompatible with the principle of legal certainty that is one of the fundamental aspects of the rule of law” (see Sovtransavto Holding v. Ukraine, no. 48553/99, § 77, ECHR 2002‑VII). 59. Turning back to the present case, the Court notes that the final and enforceable judgment of 22 November 1999 which cleared the way for the applicant party and the second applicant to stand in the elections was quashed by means of supervisory-review proceedings on an application by a deputy Prosecutor General, a State official who was not a party to the proceedings.", "The purpose of his application was precisely to obtain a fresh determination of the issue that had been already settled in the judgment of 22 November 1999, notably whether section 51(11) of the Elections Act also applied to instances where the withdrawal of a candidate was involuntary. The Government did not point to any circumstances of a substantial and compelling character that could have justified that departure from the principle of legal certainty in the present case. As a result of the re-examination, the CEC's point of view prevailed and the applicant party and the second applicant were prevented from standing for election. 60. It follows that by using the supervisory-review procedure to set aside the judgment of 22 November 1999, the domestic authorities violated the principle of legal certainty in the procedure for determining the applicant party's and the second applicant's eligibility to stand in the elections.", "61. Independently of the issue of legal certainty, the Court has to examine whether the decision to disqualify the applicant party and the second applicant from standing in the election was proportionate to the legitimate aims pursued, having regard to the State's margin of appreciation. 62. The Court has accepted as incontestably legitimate the interest of each State in ensuring the normal functioning of its own institutional system. That applies all the more to the national parliament, which is vested with legislative power and plays a primordial role in a democratic State (see Podkolzina, cited above, § 33).", "The requirement to submit information on the candidate's property, earnings and sources of income serves to enable the voters to make an informed choice and to promote the overall fairness of elections. Regard being had to the principle of respect for national specificity (see paragraph 49 above), the introduction of such a requirement, which is determined by historical and political considerations particular to the Russian Federation, does not appear arbitrary or unreasonable. Accordingly, the Court concludes that requiring a candidate for election to the national parliament – be it a person or an electoral bloc or union – to make his or her financial situation publicly known pursues a legitimate aim. 63. In a party-list proportional representation system, where a voter votes for a party list on the understanding that candidates placed higher on the list have more chances of obtaining seats in the parliament, it is not surprising that, as part of their electoral campaigning strategy, political parties nominate the most well-liked or charismatic figures at the top of their lists.", "Legal provisions reinforcing the bond between the top candidates and the entire party list are therefore instrumental for promoting the emergence of a coherent political will, which is also a legitimate aim under the terms of Article 3 of Protocol No. 1 (see, mutatis mutandis, Gorizdra v. Moldova (dec.), no. 53180/99, 2 July 2002). 64. The Court notes that section 47(6)(d) of the Elections Act provided for disqualification of candidates or electoral unions if a substantial discrepancy in their financial submissions was uncovered.", "That provision expressly restricted the application of the measure to individual candidates. Section 51(11) of the Elections Act, however, provided for disqualification of the entire list of candidates in the event of the withdrawal of one of the top three candidates. 65. The Court observes that neither the applicant party as an entity nor the second applicant as an individual candidate on the applicant party's list was found to have been in breach of the electoral laws. Thus, it was not their own conduct that led to their ineligibility or disqualification.", "As noted above, they were prevented from standing for election because the number two candidate on the party's list had been withdrawn in connection with his untrue financial declaration. However, under the domestic law, electoral blocs or candidates on the list were not required to verify the truthfulness of financial representations that were not their own. It follows that the applicant party and the second applicant were sanctioned for circumstances which were unrelated to their own law-abiding conduct and were also outside their control. Notwithstanding the considerable latitude which States are allowed in establishing criteria for disqualification, the Court considers that the disqualification of the applicant party and the second applicant for the above reasons was disproportionate to the legitimate aims pursued, namely ensuring the truthful disclosure of the candidates' financial position and promoting the integrity of electoral blocs or unions. 66.", "The Court notes that this was also the view of the Russian Constitutional Court, which subsequently found section 51(11) of the Electoral Law to be incompatible with the Russian Constitution in so far as it disproportionately restricted the party's and other candidates' right to stand for election (see paragraphs 21 et seq. above). The Constitutional Court convincingly established that disqualification of candidates and entire electoral alliances for reasons unrelated to their conduct unduly impaired their passive voting rights, irrespective of the grounds for the withdrawal of a top-three candidate, and was contrary to the legal principle nulla poena sine culpa. The Court sees no reason to dissent from these findings. 67.", "It follows that there has been a violation of Article 3 of Protocol No. 1 in respect of the applicant party and the second applicant. B. The right to vote in elections 1. The parties' arguments 68.", "The applicants submitted that, irrespective of the applicant party's electoral potential in the 1999 elections, the fact that it was not allowed to stand for election had forced its supporters, such as the third applicant, to change their voting preference or not to cast their vote at all. This represented an unjustified interference with the third applicant's right to vote. 69. The Government responded that there had been no restriction on the third applicant's right to vote because he had been able to vote for any lawfully registered candidate or party. The applicant party had not been registered for elections because of its failure to abide by the legislation in force at the time.", "Alternatively, the third applicant could have cast his vote “against all candidates”, making use of a special line on the ballot paper indicating that the voter did not wish to see any of the listed candidates elected. In any event, the applicant party's low level of popular support would not have permitted it to gain representation in the legislature. 2. The Convention institutions' case-law and the Council of Europe's general principles pertaining to the right to vote 70. The common principles of the European constitutional heritage, which form the basis of any genuinely democratic society, frame the right to vote in terms of the possibility to cast a vote in universal, equal, free, secret and direct elections held at regular intervals (see Resolution of the Parliamentary Assembly on the Code of Good Practice in Electoral Matters, paragraph 37 above; Declaration by the Committee of Ministers on the Code of Good Practice in Electoral Matters, paragraph 38 above; and the Guidelines on Elections, paragraphs 40 and 41 above).", "Article 3 of Protocol No. 1 explicitly provides for the right to free elections at regular intervals by secret ballot and the other principles have also been recognised in the Convention institutions' case-law. 71. Freedom of suffrage is the cornerstone of the protection afforded by Article 3 of Protocol No. 1.", "The Court considers, as did the Commission, that the words “free expression of the opinion of the people” primarily signify that “the elections cannot be made under any form of pressure in the choice of one of more candidates, and that in this choice the elector [may] not be unduly induced to vote for one party or another” (see X. v. the United Kingdom, no. 7140/75, Commission decision of 6 October 1976, Decisions and Reports 7, p. 96). In other words, from a voter's perspective, free suffrage comprises two aspects: freedom to form an opinion and freedom to express that opinion (see the Explanatory Report, § 26). 72. As regards the freedom of voters to form an opinion, the Court notes that the Council of Europe's institutions have primarily described it in terms of the State authorities' obligation to honour their duty of neutrality, particularly where the use of the mass media, billposting, the right to demonstrate and the funding of parties and candidates are concerned (see, for example, the Guidelines on Elections, § 3.1 (a), and the Explanatory Report, § 26 (a)).", "In addition, this freedom has been considered to imply certain positive obligations on the part of the authorities, such as the obligation to submit the candidatures received to the electorate and to make information about candidates readily available (see the Guidelines on Elections, § 3.1 (b), and the Explanatory Report, § 26 (b)). 73. The freedom of voters to express their wishes, on the other hand, has been understood in terms of strict observance of the voting procedure. The electors should be able to cast their votes for registered lists or candidates in conditions shielding them from threats or constraints liable to prevent them from casting their votes or from casting them as they wish, whether such threats come from the authorities or from individuals (see the Guidelines on Elections § 3.2, and the Explanatory Report, § 27). 3.", "The Court's assessment 74. The Court notes at the outset that the cases concerning the right to vote that have come before the Convention institutions in the past have focused on the possibility for the applicant to exercise his or her franchise. Thus, the Court has found a violation of Article 3 of Protocol No. 1 in cases where the voting ban was not proportionate to the legitimate aim pursued (see Vito Sante Santoro v. Italy, no. 36681/97, ECHR 2004‑VI; Labita v. Italy [GC], no.", "26772/95, ECHR 2000‑IV; and Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, ECHR 2005‑IX) or where the applicants belonged to a disenfranchised cluster of the population (see Matthews v. the United Kingdom [GC], no. 24833/94, ECHR 1999‑I, and Aziz v. Cyprus, no. 69949/01, ECHR 2004‑V).", "The Commission extended the reasoning in respect of a single voter's right to vote to the entire voting population in Greece and expressed the opinion that there had been a violation of Article 3 of Protocol No. 1 in that “the Greek people were... prevented from expressing their political opinion by choosing a legislature...” owing to the dissolution of Parliament and the postponement of new elections (see the Commission report in the Greek case, Yearbook 12, pp. 179-80). 75. In the present case it has not been claimed that the third applicant was disenfranchised because of any restriction on his right to vote existing in law or in practice.", "The thrust of his grievance was not that his right to vote had been taken away but rather that it had been impossible for him to cast his vote for a party of his choosing – the applicant party – which had been denied registration for the election. 76. The Court, however, does not consider that an allegedly frustrated voting intention is capable, by itself, of grounding an arguable claim of a violation of the right to vote. It notes, firstly, the obvious problem of laying down a sufficient evidentiary basis for demonstrating the nature and seriousness of such an intention. An intention to vote for a specific party is essentially a thought confined to the forum internum of an individual.", "Its existence cannot be proved or disproved until and unless it has manifested itself through the act of voting or handing in a blank or spoiled paper (see X v. Austria, Commission decision of 22 March 1972, Yearbook 15, p. 474). Moreover, a voter's preference is not static but may evolve in time, influenced by political events and electoral campaigning. A sudden and sweeping change in voters' intentions is a well-documented political and social phenomenon. 77. The Court reiterates that an individual applicant should be able to claim to be actually affected by the measure of which he complains and that Article 34 may not be used to found an action in the nature of an actio popularis (see, among other authorities, Norris v. Ireland, judgment of 26 October 1988, Series A no.", "142, § 30). The third applicant did not furnish any information about the way in which he had exercised his right to vote. It is not known whether he cast a ballot paper or, for that matter, whether he attended the polling station on the voting day. He did not bring, or take part in, any domestic proceedings in which the courts could have established the fact that he had intended to vote for the applicant party. 78.", "On a more general level, the Court is mindful of the ramifications of accepting the claim of a frustrated voting intention as an indication of an interference with the right to vote. Such acceptance would confer standing on a virtually unlimited number of individuals to claim that their right to vote had been interfered with solely because they had not voted in accordance with their initial voting intention. 79. In the light of the above considerations, the Court finds that the right to vote cannot be construed as laying down a general guarantee that every voter should be able to find on the ballot paper the candidate or the party he had intended to vote for. It reiterates, nevertheless, that the free expression of the opinion of the people is inconceivable without the participation of a plurality of political parties representing the different shades of opinion to be found within a country's population (see Federación Nacionalista Canaria v. Spain (dec.), no.", "56618/00, ECHR 2001-VI). Accordingly, it must have regard to the broader context in which the right to vote could be exercised by the third applicant. 80. The Court notes that more than twenty-five political parties and electoral blocs representing a broad gamut of political views and platforms competed in the 1999 elections to the lower chamber of the Russian Parliament. The elections were acclaimed as competitive and pluralistic by international observers (see paragraph 42 above).", "The observers recognised that the voters' freedom to form an opinion had a secure basis in domestic law, which laid down “a foundation for maintaining a level playing field for political participants” (ibid.). It was not alleged that the voters lacked sufficient or adequate information about the candidates, and the strict measures adopted by the CEC in respect of the candidates who had made false representations about themselves served to reinforce that guarantee. Nor has it been claimed that the third applicant was subjected to any form of pressure or undue inducement in his voting choices. Indeed, if there were no candidates to his taste (assuming that he persisted in his wish to vote for the applicant party), he could have voted “against all candidates”, as more than two million other voters did (see paragraph 36 above). It cannot therefore be said on the basis of the information available that the third applicant's right to take part in free elections has been unduly restricted.", "81. There has therefore been no violation of Article 3 of Protocol No. 1 as regards the third applicant's right to vote. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 82.", "The applicants complained that they had had no effective remedy in respect of the breach of Article 3 of Protocol No. 1. The Court has decided to examine this complaint under Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The applicant party and the second applicant 1. The parties' arguments 83.", "The applicants submitted that the Presidium of the Supreme Court should not have adjudicated on the interpretation issue and should have referred it to the Constitutional Court, which was the only judicial body competent to determine the compatibility of the contested provision with the Constitution. The question to be determined was not whether any means of appeal had existed but whether the applicants had had a real opportunity to redress a breach of their electoral rights in the framework of the electoral campaign. Furthermore, although the Constitutional Court had received the applicants' complaint at the time when a similar application by a group of Russian MPs had been examined, it had not joined the two applications. Instead, it had disallowed the applicants' complaint as “substantially the same”. Lastly, the applicants submitted that Russian law did not provide for a procedure for granting compensation for breaches of electoral law.", "84. The Government asserted that the applicants' contention that they had had no effective remedy was incompatible with the provisions of Russian law in force at the time and was not based on the facts of the case. The applicants had had their claims examined by the Supreme Court and also by the Constitutional Court. In particular, the Supreme Court had heard their appeal against the CEC's decision of 9 December 1999 and dismissed it as unsubstantiated. After the Constitutional Court had declared the contested provision invalid, the applicants could have applied for a review of the Presidium's judgment in the light of newly discovered circumstances, but had not complied with the three-month time-limit for lodging that application.", "2. The Court's assessment 85. 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. The scope of the Contracting States' obligations under Article 13 varies depending on the nature of the applicant's complaint; the “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. However, the remedy required by Article 13 must be “effective” in practice as well as in law in the sense either of preventing the alleged violation or remedying the impugned state of affairs, or of providing adequate redress for any violation that had already occurred (see Balogh v. Hungary, no.", "47940/99, § 30, 20 July 2004, and Kudła v. Poland [GC], no. 30210/96, § 158, ECHR 2000‑XI). 86. In the instant case the applicant party and the second applicant were disqualified as candidates in the election as a result of the Central Electoral Commission's decision of 9 December 1999 (see paragraph 20 above). Accordingly, the Court has to examine whether they had an effective remedy in respect of the violation of their right to stand for election.", "87. The Government argued that the applicant party had been able to appeal to a court against the decision of 9 December 1999. However, the remedy they suggested was obviously not an effective one: the appeal failed because the domestic courts considered that the supervisory-review judgment of the Presidium of the Supreme Court was final and that no further examination of the matter was possible. 88. The RSFSR Code of Civil Procedure at the time did not provide for any appeal against a judgment or decision given in supervisory-review proceedings.", "It could only be set aside by means of another supervisory-review judgment or decision. However, the power to institute supervisory-review proceedings was discretionary, that is to say it was solely for the State official concerned to decide whether or not a particular case warranted supervisory review (see Ryabykh, cited above, § 34). It follows that a new round of supervisory-review proceedings could not have been set in motion by a party and that that “remedy” was not accessible to the applicants. 89. It follows that the applicant party and the second applicant were denied an effective remedy in respect of the violation of their electoral rights through the use of the supervisory-review procedure.", "There has accordingly been a violation of Article 13 of the Convention. In the light of this finding, the Court does not consider it necessary to examine whether further developments in the case, such as the Constitutional Court's refusal to consider the merits of the applicants' complaint, also disclose a violation of that provision. B. The third applicant 90. The Court reiterates that Article 13 applies only in respect of grievances under the Convention which are arguable (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no.", "131, § 52). As it has found above that the third applicant did not have an arguable claim of a violation of his right to vote (see paragraph 76 et seq. ), Article 13 finds no application in this situation. There has therefore been no violation of the third applicant's right under Article 13 of the Convention. III.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 91. The applicant party complained under Article 1 of Protocol No. 1 that the refusal to return its election deposit and the requirement for it to pay for the airtime it had used on State television had violated its property rights. Article 1 of Protocol No.", "1 provides as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. The parties' arguments 92. The applicant party submitted that the election deposit could be credited to the budget only if registration of the party's list had been refused, inter alia on the grounds set out in section 51(11) of the Elections Act, or if the party received less than 3% of the votes.", "However, the applicant party had not been allowed to stand for election and the level of its support had therefore remained unknown. Likewise, the requirement to pay for airtime had also impaired its property rights because it only applied to parties that had stood for election and obtained less than 2% of the votes. 93. The Government submitted that the applicant party had obtained State financial assistance and used free airtime for campaigning in the same conditions as other parties until the judgment of the Presidium of the Supreme Court had been given. In any event, the election deposit was payable out of the electoral fund created by the applicant party and accordingly did not directly form part of its assets.", "The CEC's decision to refuse to return its election deposit had been justified because there were no legal grounds for returning it. After the deposit had been credited to the budget, the CEC had had no control of the money concerned, and the Constitutional Court's ruling of 25 April 2000 could not change that situation. B. The Court's assessment 94. It has been the Convention institutions' settled case-law that the requirement to pay an election deposit and the provisions making reimbursement of the deposit and/or campaigning expenses conditional on the party's having obtained a certain percentage of votes serve to promote sufficiently representative currents of thought and are justified and proportionate under Article 3 of Protocol No.", "1, having regard to the wide margin of appreciation afforded to the Contracting States in this matter (see Tête v. France, nos. 11123/84 and 11802/85, Commission decisions of 9 December 1987 and 10 March 1988; André v. France, no. 27759/95, Commission decision of 18 October 1995; and New Horizons and Others v. Cyprus, no. 40436/98, Commission decision of 10 September 1998). 95.", "The situation in the present case is different. Firstly, the applicant party complained about a violation of its property rights under Article 1 of Protocol No. 1 rather than about a violation of its right to take part in free elections under Article 3 of Protocol No. 1, as the applicants in the above-mentioned cases did. Secondly, and more importantly, the applicants in those cases did participate in the election, albeit unsuccessfully, whereas the applicant party in the present case was prevented from standing for election as a result of the defective domestic procedure.", "96. The Court notes that the domestic courts refused the applicant party's request for the return of its election deposit because it had been disqualified from standing for election on the basis of section 51(11) of the Elections Act. However, it has already found that the application of that provision in the present case was incompatible with the requirements of the Convention. In particular, the Court has found that the domestic proceedings were conducted in breach of the principle of legal certainty. That conclusion holds true for the applicant party's complaint under Article 1 of Protocol No.", "1 (see, mutatis mutandis, Brumărescu v. Romania [GC], no. 28342/95, § 74, ECHR 1999‑VII). 97. It follows that there has been a violation of Article 1 of Protocol No. 1 in respect of the applicant party.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 98. 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 99. The applicants claimed 2,315,520 Russian roubles (RUR) in respect of compensation for pecuniary damage.", "The amount claimed represented 91.3% of the election fund, of which 90.7% represented the applicant party's own assets and 0.6% represented contributions from private individuals, which had been used to pay the election deposit. The applicants further claimed 1,600,000,000 euros (EUR) for the applicant party and EUR 200,000 for each of the second and third applicants in respect of non-pecuniary damage. 100. The Government considered these claims excessive and “fabulous”. 101.", "The Court refers to its above finding that the election deposit was forfeited as a consequence of the domestic procedure, which was incompatible with the principles set forth in the Convention. There is therefore a causal link between the violation found and the pecuniary damage claimed. Accordingly, the Court awards the applicant party the entire amount claimed for the pecuniary damage plus any tax that may be chargeable on it. 102. As regards the claim in respect of non-pecuniary damage, the Court considers that the finding of a violation would constitute sufficient just satisfaction in respect of the applicant party and the second applicant.", "B. Costs and expenses 103. The applicants claimed RUR 168,306 as reimbursement of the court fees paid in the domestic proceedings and RUR 28,371 for postal, translation and notary expenses incurred in the Strasbourg proceedings. They also submitted that the applicant party had signed a contingency fee agreement with Mr Sklyarov, according to which he was to receive EUR 10,000 plus 5% of any amount awarded after the judgment of the Court had been delivered. 104.", "The Government did not comment on those claims. 105. The Court notes that Mr Sklyarov is the head of the applicant party's legal department. It would therefore be logical to assume that the representation of the applicant party's legal interests before judicial bodies is part of his normal professional duties, any additional pay or bonus in the event of successful litigation being a matter between him and his employer. It has not been shown that the second applicant paid him any fee for representing him before the Court.", "In these circumstances, the Court makes no award in respect of Mr Sklyarov's fees. 106. The Court is satisfied that the other expenses have been necessarily incurred by the applicant party and are supported by appropriate documentation. Accordingly, it awards the entire amount claimed in respect of the domestic costs, as well as postal, notary and translation expenses, that is, RUR 196,677, plus any tax that may be chargeable on it. C. Default interest 107.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 3 of Protocol No. 1 in respect of the applicant party and the second applicant; 2. Holds that there has been no violation of Article 3 of Protocol No.", "1 in respect of the third applicant; 3. Holds that there has been a violation of Article 13 of the Convention in respect of the applicant party and the second applicant; 4. Holds that there has been no violation of Article 13 of the Convention in respect of the third applicant; 5. Holds that there has been a violation of Article 1 of Protocol No. 1 in respect of the applicant party; 6.", "Holds (a) that the respondent State is to pay the Russian Conservative Party of Entrepreneurs, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) RUR 2,315,520 (two million three hundred and fifteen thousand five hundred and twenty Russian roubles) in respect of pecuniary damage; (ii) RUR 196,677 (one hundred and ninety-six thousand six hundred and seventy-seven Russian roubles) 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; 7. Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 11 January 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]
[ "FIFTH SECTION CASE OF IVAN HRISTOV v. BULGARIA (Application no. 32461/02) JUDGMENT STRASBOURG 20 March 2008 FINAL 20/06/2008 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 Ivan Hristov v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Snejana Botoucharova,Karel Jungwiert,Volodymyr Butkevych,Rait Maruste,Mark Villiger,Mirjana Lazarova Trajkovska, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 26 February 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "32461/02) 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 Ivan Angelov Hristov, a Bulgarian national who was born in 1938 and lives in Pleven (“the applicant”), on 21 August 2002. 2. The applicant was represented before the Court by Ms S. Margaritova‑Vuchkova, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Pasheva, of the Ministry of Justice. 3.", "On 3 April 2006 the Court declared the application partly inadmissible and decided to communicate to the Government the complaints concerning the length of the first and the second criminal proceedings against the applicant. 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 is a businessman.", "At the relevant time he, inter alia, owned and operated a flour‑mill. The criminal proceedings against him related to his business activities. A. The first set of criminal proceedings against the applicant 5. On 13 September 1995 the prosecution authorities opened an investigation against the applicant for having provided banking services (collecting money deposits) without the requisite licence, contrary to Article 252 § 1 of the Criminal Code of 1968 (“the CC”).", "On 9 October 1995 the applicant was charged with the above offence and bailed. 6. On 15 December 1997 the charges were amended and the applicant was accused of having committed the above offence in concert with others. 7. On 20 December 1997 the investigator finished his work on the case and sent the file to the Pleven District Prosecutor’s Office with a recommendation to bring the applicant to trial.", "8. In the beginning of 1998 a prosecutor of the Pleven Regional Prosecutor’s Office took over the case and on 25 February 1998 sent it back for further investigation. 9. After that the case file was transferred several times on undisclosed grounds as follows: on 22 December 1998 to the Pleven Regional Prosecutor’s Office, on 4 January 1999 to the Supreme Cassation Prosecutor’s Office, on 4 February 1999 to the Pleven Regional Prosecutor’s Office and on 16 April 1999 to the Pleven Investigation Service. 10.", "On 3 June 1999 the applicant complained to the Pleven Appellate Prosecutor’s Office about the excessive length of the proceedings. The complaint was filed through the Pleven Regional Prosecutor’s Office, which forwarded it in February 2000. On 10 February 2000 the Pleven Appellate Prosecutor’s Office ordered that the investigation be continued under the supervision of the Pleven District Prosecutor’s Office. 11. The Pleven District Prosecutor’s Office took over the case on 22 March 2000 and shortly after that sent it back for additional investigation.", "12. Between 15 March and 12 April 2001 the investigator interviewed seven witnesses. 13. On 26 November 2001 he sent the file to the Pleven Regional Prosecutor’s Office, proposing that the criminal proceedings against the applicant be discontinued. 14.", "The prosecutor to whom the case was assigned expressed her wish to withdraw. On 31 January 2002 the head of the Pleven Regional Prosecutor’s Office rejected her request. Upon her appeal, on 22 February 2002 the Pleven Appellate Prosecutor’s Office upheld this decision. However, on 18 June 2002 the Supreme Cassation Prosecutor’s Office quashed both decisions and sent the case to the Pleven District Prosecutor’s Office. 15.", "On 26 June 2002 the Pleven District Prosecutor’s Office sent the case back for further investigation. 16. On 5 July 2002 the investigation authorities sent the case to the Pleven District Prosecutor’s Office, which on the same day transmitted it to the Pleven Regional Prosecutor’s Office. The prosecutor to whom the case was assigned apparently did not undertake any actions on it. 17.", "On 20 April 2004 another prosecutor of the Pleven Regional Prosecutor’s Office sent the case back for additional investigation. 18. In the meantime, on 25 March 2004 the applicant filed a request with the Pleven Regional Court under Article 239a of the Code of Criminal Procedure of 1974 (see paragraphs 31‑33 below), asking to be either brought to trial or to have the proceedings against him discontinued. Accordingly, on 15 April 2004 the Pleven Regional Court, having found that the length of proceedings against the applicant had exceeded the time stipulated in that provision, instructed the Pleven Regional Prosecutor’s Office to indict the applicant or discontinue the proceedings. As the Pleven Regional Prosecutor’s Office failed to comply with these instructions within the statutory two‑month time‑limit, on 26 August 2004 the Pleven Regional Court, acting upon the request of the applicant, discontinued the proceedings.", "This decision entered into force on 20 September 2004. B. The second set of criminal proceedings against the applicant 19. On 8 April 1997 the prosecution authorities opened an investigation against the applicant on suspicion that he had obtained large-scale unlawful gains (a credit from a bank) by using forged documents, contrary to Article 212 § 3 of the CC. On 16 June 1997 the applicant was charged with the above offence and detained.", "On 21 July 1997 he was released on bail. 20. On unspecified dates the charges were amended to include also forgery committed in an official capacity (contrary to Article 310 of the CC), drawing-up a false document in an official capacity (contrary to Article 311 of the CC), large-scale fraud (contrary to Article 211 of the CC), based on the allegations of a contractor with whom the applicant had a dispute about the performance of a contract, and making a false declaration to avoid paying taxes (contrary to Article 313 § 2 of the CC). 21. On 12 and 13 February 1998 the applicant was allowed to inspect the materials in the case file.", "22. On 16 February 1998 the investigator in charge of the case finished his work and sent the file to the Pleven Regional Prosecutor’s Office with a proposal to bring the applicant to trial. 23. On 26 January 2000 the Pleven Regional Prosecutor’s Office dropped all charges except two – large‑scale fraud and making a false declaration. The next day, 27 January 2000, it submitted an indictment against the applicant to the Pleven District Court.", "24. On 31 January 2000 the case was set down for hearing. 25. At the hearing, which took place on 27 April 2000, the Pleven District Court remitted the case to the prosecution authorities, noting that they had made a number of errors in charging the applicant and drafting the indictment, thus infringing his defence rights. 26.", "On 13 October 2000 the Pleven District Prosecutor’s Office sent the case back for further investigation. 27. On 25 March 2004 the applicant filed a request with the Pleven Regional Court under Article 239a of the Code of Criminal Procedure of 1974 (see paragraphs 31‑33 below), asking that his case be examined on the merits by a court or, alternatively, that the proceedings be discontinued. It is unclear whether this request was acted upon. 28.", "On 28 April 2004 the investigator finished his work on the case and sent it to the Pleven District Prosecutor’s Office with a proposal to discontinue the proceedings against the applicant. 29. On 5 November 2004 the Pleven Regional Prosecutor’s Office discontinued the criminal proceedings against the applicant on the ground that the charges had not been made out. 30. In a final decision of 7 January 2005, given pursuant to the appeal of the victim of the alleged offence, the Pleven District Court upheld the discontinuation.", "II. RELEVANT DOMESTIC LAW 31. An amendment to the Code of Criminal Procedure of 1974 which entered into force on 2 June 2003 introduced the possibility for an accused person to request that his case be brought for trial if the investigation has not been completed within two years in cases concerning serious offences and one year in all other cases (new Article 239a of the Code, as in force until 28 April 2006). By paragraph 140 of the transitional provisions of the 2003 amendment, that possibility applies with immediate effect in respect of investigations opened before June 2003. On 29 April 2006 Article 239a was superseded by Articles 368 and 369 of the Code of Criminal Procedure of 2005, which are similarly worded.", "32. The procedure under these provisions is as follows. The accused may submit a request to the relevant court which has seven days to examine the file. It may refer the case back to the prosecuting authorities or terminate the criminal proceedings. If the case is referred back to the prosecution authorities, they have two months to file an indictment with the trial court or terminate the proceedings, failing which the court must terminate the proceedings against the accused who had filed the request.", "33. The reasons for the bill introducing the June 2003 amendment said that such a mechanism was necessary to secure observance of the right to trial within a reasonable time as guaranteed by the Convention. THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS 34. The applicant complained that the length of the two sets of criminal proceedings against him had been unreasonable, in breach of Article 6 § 1 of the Convention, which reads, as relevant: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 35.", "The Government contested that allegation. A. Admissibility 36. The Court notes at the outset that both sets of criminal proceedings against the applicant were discontinued prior to trial, the first on account of the use by the applicant of the remedy provided by the new Article 239a of the Code of Criminal Procedure of 1974 (see paragraphs 31‑33 above), and the second on account of the prosecution authorities’ decision to drop the charges against the applicant. The issue thus arises whether the applicant may still claim to be a victim within the meaning of Article 34 of the Convention. 37.", "Concerning the first set of proceedings, the Court observes that their discontinuation was grounded on the authorities’ finding that their length had been excessive. The question whether the applicant may still claim to be a victim in respect of their length is therefore intimately connected with the merits of his complaint, namely the extent of the alleged breach of his right to a trial within a reasonable time (see Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, p. 32, § 70 in fine). Consequently, the Court considers that it should join it to the merits and will revert to it subsequently (see Vasilev and Others v. Bulgaria, no. 61257/00, § 29, 8 November 2007).", "38. As regards the second set of proceedings, the Court notes that, despite the fact that the applicant made a request under Article 239a of the Code of Criminal Procedure of 1974 (see paragraphs 31‑33 above), their discontinuation was entirely based on the authorities’ finding that the charges against the applicant had not been made out. It cannot therefore be said that this discontinuation constituted any acknowledgment, whether explicit or implicit, that the applicant’s case had not been heard within a reasonable time (see, mutatis mutandis, Nankov v. the former Yugoslav Republic of Macedonia, no. 26541/02, § 33, 29 November 2007). The applicant may therefore still claim to be a victim in respect of the length of these proceedings.", "39. The Court further considers that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention, nor inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1.", "The first set of criminal proceedings against the applicant 40. The period to be taken into consideration began on 9 October 1995, when the applicant was charged (see Corigliano v. Italy, judgment of 10 December 1982, Series A no. 57, p. 14, § 35 in fine), and ended on 20 September 2004, when the Pleven Regional Court’s decision to discontinue the proceedings against him entered into force. It thus lasted almost nine years. 41.", "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 (ibid., p. 14, § 37). 42. The parties presented arguments as to the way in which these criteria should apply in the present case. 43. The Court does not consider that the overall length of the proceedings can be explained by the complexity of the case.", "Nor does it find that the applicant was responsible for any delays. On the other hand, a number of delays are attributable to the authorities. In particular, the Court notes that during the entire period to be taken into consideration – almost nine years – the proceedings remained at the preliminary investigation stage. Such a time-span appears excessive. The Court further observes that there were lengthy periods during which no activity seems to have taken place.", "Such gaps occurred between October 1995 and December 1997, between February 1998 and March 2000, between March 2000 and March 2001, and between July 2002 and April 2004. The Court also notes that the numerous transfers of the case between the investigators and the various prosecution offices contributed further to the delay. 44. The Court thus comes to the conclusion that the length of the proceedings exceeded the “reasonable time” prescribed by Article 6 § 1 of the Convention. 45.", "However, the Court must also examine whether this breach was sufficiently remedied through the discontinuation of the proceedings under Article 239a of the Code of Criminal Procedure of 1974 (see paragraphs 31‑33 above) and whether the applicant thereby lost his victim status. 46. According to the Court’s case‑law, the mitigation of a sentence or the discontinuation of a criminal prosecution on account of the excessive length of the proceedings does not in principle remedy a failure to comply with the reasonable time requirement of Article 6 § 1, unless the national authorities have acknowledged either expressly or in substance, and then afforded redress for, the breach of the Convention (see Eckle, cited above, p. 30, § 66). 47. In the instant case, the Court considers that by discontinuing the proceedings under Article 239a of the Code of 1974 the authorities in substance acknowledged the excessive duration of the preliminary investigation against the applicant.", "However, the Court must also determine whether this discontinuation constituted sufficient redress for the applicant’s grievance. 48. On this point, the Court notes that when Article 239a was introduced in May 2003 the proceedings against the applicant had already lasted more than seven and a half years and that serious delays had already accumulated (see paragraph 43 above). It further notes that until that time the applicant had not been found guilty of an offence, nor had his alleged guilt been established, even by a trial court. It cannot therefore be said that the discontinuation of the proceedings against him remedied their excessive duration and amounted to sufficient redress for his complaint (see Vasilev and Others, cited above, § 40).", "49. In view of the foregoing considerations, the Court concludes that the applicant may still claim to be a victim of a violation of his right to a trial within a reasonable time and that there has been a violation of Article 6 § 1 of the Convention on that account. 2. The second set of criminal proceedings against the applicant 50. The period to be taken into consideration began on 16 June 1997, when the applicant was charged (see Corigliano, cited above, p. 14, § 35 in fine).", "It ended on 7 January 2005, when the discontinuation of the proceedings was upheld by the Pleven District Court. It thus lasted seven years and almost seven months. 51. The criteria for assessing the reasonableness of the length of the proceedings have been set out in paragraph 41 above. 52.", "The parties presented arguments as to the way in which these criteria should apply in the present case. 53. The Court observes that the case bore a certain amount of complexity, as it concerned numerous charges. However, most of those were dropped in January 2000 and in any event cannot explain the overall length of the proceedings. 54.", "The Court further notes that the applicant does not seem responsible for any delays, whereas a number of delays seem attributable to the authorities. In particular, the Court notes that during the entire period to be taken into consideration – more than seven and a half years – the proceedings remained at the preliminary investigation stage. Such a time‑span appears excessive. The Court further observes that there were substantial periods of inactivity. Such gaps lasted from February 1998 to January 2000, as well as from October 2000 to April 2004.", "Further delay was caused by the remittal of the case to the prosecution authorities in April 2000. 55. The Court thus comes to the conclusion that the length of the proceedings exceeded the “reasonable time” prescribed by Article 6 § 1 of the Convention. There has therefore been a violation of that provision. II.", "ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 56. In his observations in reply to those of the Government, dated 27 November 2006, the applicant raised additional complaints. 57. He complained under Article 6 § 1 of the Convention that both sets of criminal proceedings against him had been unfair and that the charges had been determined by the prosecution authorities rather than by independent and impartial tribunals.", "58. He also complained under Article 13 of the Convention that he did not have effective remedies against the excessive length of the criminal proceedings against him. In particular, he submitted that the remedy provided by the new Article 239a of the Code of Criminal Procedure of 1974 had not been effective in his case, as both proceedings had already lasted a long time before its introduction. No other remedies existed. 59.", "Finally, he alleged a breach of Article 1 of Protocol No. 1 stemming from the negative impact which the criminal proceedings had had on his business. 60. The Court does not consider it necessary to examine the substance of these complaints. It observes that the running of the six‑month time‑limit under Article 35 § 1 of the Convention is, as a general rule, interrupted by the first letter from the applicant indicating an intention to lodge an application and giving some indication of the nature of the complaints made.", "The running of this time‑limit with regard to complaints not included in the initial application is interrupted only on the date when they are first submitted to the Court (see Allan v. the United Kingdom (dec.), no. 48539/99, 28 August 2001; and Ekimdjiev v. Bulgaria (dec.), no. 47092/99, 3 March 2005). 61. It is apparent from the partial admissibility decision in the present case (see Hristov v. Bulgaria (dec.), no.", "32461/02, 3 April 2006) that before the communication of the application to the Government the applicant did not raise, expressly or in substance, any of the above complaints, which stem entirely from the two criminal proceedings against him. They were all first formulated in his observations in reply to those of the Government, dated 27 November 2006, whereas the criminal proceedings against him had come to an end on 20 September 2004 and on 7 January 2005 respectively, more than six months before that. 62. It follows that these complaints were introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 63. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 64. The applicant claimed 40,000 euros (EUR) for the non‑pecuniary damage sustained on account of the length of the first criminal proceedings, and EUR 50,000 for the non-pecuniary damage suffered as a result of the second criminal proceedings. He said that these amounts were warranted by the utter groundlessness of the charges against him, which had made the length of the proceedings even more acutely detrimental.", "The second criminal proceedings, in the course of which he had been detained on remand for a certain period of time, had in addition negatively impacted on his health. 65. The applicant also claimed 923,807 Bulgarian levs (BGN) in pecuniary damages. He submitted that he had lost this amount as a result of the early termination of contracts by clients of his flour‑mill, who had been worried by the negative impact of the criminal proceedings against him on their businesses. 66.", "The Government did not express an opinion on the matter. 67. The Court does not discern a sufficient causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim (see Eckle v. Germany (Article 50), judgment of 21 June 1983, Series A no. 65, pp. 9‑10, § 20).", "On the other hand, it awards the applicant EUR 8,800, plus any tax that may be chargeable, in respect of non‑pecuniary damage. B. Costs and expenses 68. The applicant also sought the reimbursement of EUR 2,500 for lawyer’s fees in the proceedings before the Court, plus BGN 350 for translation, BGN 150 for clerical expenses, and BGN 122 for postage. He requested that any amount awarded by the Court under this head be transferred to the account of his legal representative, Ms S. Margaritova-Vuchkova.", "69. The Government did not express an opinion on the matter. 70. According to the Court’s case‑law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, bearing in mind the information in its possession and the above criteria, and also noting that part of the applicant’s complaints were declared inadmissible, the Court considers it reasonable to award the sum of EUR 1,000, plus any tax that may be chargeable, covering costs under all heads.", "This amount is to be paid in the bank account of the applicant’s representative, Ms S. Margaritova‑Vuchkova. C. Default interest 71. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints concerning the length of the first and the second sets of criminal proceedings against the applicant admissible and the remainder of the application inadmissible; 2.", "Holds that there have been violations of Article 6 § 1 of the Convention on account of the length of the first and the second sets of criminal proceedings against the applicant; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with 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 8,800 (eight thousand eight hundred euros) in respect of non‑pecuniary damage; (ii) EUR 1,000 (one thousand euros) in respect of costs and expenses, to be paid in the bank account of the applicant’s legal representative, Ms S. Margaritova‑Vuchkova; (iii) any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 20 March 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]
[ "SECOND SECTION CASE OF BOR v. HUNGARY (Application no. 50474/08) JUDGMENT STRASBOURG 18 June 2013 FINAL 18/09/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bor v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Peer Lorenzen,Dragoljub Popović,András Sajó,Nebojša Vučinić,Paulo Pinto de Albuquerque,Helen Keller, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 28 May 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "50474/08) 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 László Bor (“the applicant”), on 15 October 2008. 2. The applicant was represented by Mr V. Szűcs, a lawyer practising in Zalaegerszeg. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice. 3.", "The applicant complained of the impossibility to enforcing, in an effectively and timely manner, the Hungarian Railway Company’s obligation to keep the noise level under control near his home. He relied on Articles 8, 13 and 17 of the Convention, Article 1 of Protocol No. 1 and Article 1 of Protocol No. 12. Moreover, he complained under Article 6 § 1 of the Convention about the length of the related court proceedings.", "4. On 14 March 2012 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 1954 and lives in Zalaegerszeg. 6. The applicant’s house is situated across the street from Zalaegerszeg Railway Station, in front of the starting position of trains. When about 1988 the Hungarian Railway Company (“MÁV”) replaced its steam engines with diesel ones, the noise level increased significantly. 7.", "On 22 October 1991 the applicant and his neighbours filed an action in trespass against MÁV, seeking that it be obliged to keep its noise emission under control by constructing a noise barrier wall, modernising the railway station, preheating the engines in another place and avoiding the use of certain engines. This action was later extended to include a compensation claim. 8. Between 7 February 1992 and January 1993 the proceedings were stayed upon the parties’ request. From 22 July 1994 to 27 November 1998 the proceedings were suspended upon the applicant’s request, pending his similar complaint before the National Public Health and Medical Officer Service.", "9. In 1995 the applicant also complained to the Regional Environment Protection Authority about the noise disturbance. In remitted proceedings, on 27 August 1997 the Environment Protection Authority established the noise limits applicable to preheating trains. On 18 May 1998 it imposed a fine on MÁV for non-compliance with those limits. The noise did not decrease, therefore the applicant and his neighbours turned to the Public Prosecutor.", "On 4 May 2008 the Public Prosecutor initiated civil proceedings against MÁV. These proceedings were consolidated with the ones initiated by the applicant and his neighbours. 10. Relying on acoustic and engineering expert opinions, on 24 September 2004 the Zalaegerszeg District Court established the existence of sound pollution and ordered MÁV to finance the installation of soundproof doors and windows on the plaintiffs’ houses, but dismissed the remaining claims. 11.", "On appeal, the case was remitted to the first instance. 12. In the remitted proceedings, on 9 November 2005 the District Court delivered a partial judgment, maintaining that the noise level exceeded the limit value, prohibiting MÁV from making the excessive noise emission, and obliging it to construct a noise barrier wall. 13. On appeal, on 30 March 2006 the Zala County Regional Court dispensed with the obligation to build the protection wall, considering it unnecessary in addition to the prohibition on noise pollution.", "The Regional Court relied on section 101 (3) of the Act no. LIII of 1996 on the Protection of Nature (“Nature Protection Act”). 14. The partial judgment having become final, the first-instance proceedings continued with regard to the compensation claims. On 7 March 2008 the District Court ordered MÁV to pay the applicant 4,150,000 Hungarian forints[1] (HUF) in compensation for the loss of value of his house and HUF 445,000[2] for the costs of replacing the doors and windows.", "15. On appeal, on 5 June 2008 the Regional Court partly reversed the judgment, dispensing with the award for the loss of value. It relied on a real estate expert opinion, according to which if MÁV complied with the partial judgment, the remaining noise would not reduce the market value of the house. 16. MÁV complied with its payment obligation without delay.", "In addition to that, between 2010 and 2012 several noise mitigating measures, investments and developments were implemented at Zalaegerszeg Railway Station, including reduction in the number of trains passing through the station, minimisation of the stay of freight trains on passenger-train tracks and the stationing of trains in the applicant’s street, renovation of engines, electrification of shunting, reorganisation of pre-heating, limitation of the number of diesel engines and their operation only on branch tracks, and avoidance of unnecessary working of machines in the station area. 17. The applicant claims that due to the above measures the noise has decreased to a degree but still exceeds the statutory limit value by night and at dawn. However, no evidence has been produced to that effect. II.", "RELEVANT DOMESTIC LAW 18. Act no. LIII of 1996 on the Protection of Nature provides as follows: Section 101 “(1) Users of the environment shall – in the manner specified in this Act and in other laws – bear criminal, regulatory, civil and administrative liability for the effects exerted by their activities on the environment. (2) Users of the environment shall a) refrain from performing, and shall stop continuing to perform conduct endangering or damaging the environment; ... (3) In case of lack of success or non-compliance with the provisions contained in subsection (2) items a) and e) the environment protection authority or – in case of an activity permitted by another authority, upon the request of the environment protection authority – the permitting authority or the court shall – depending on the degree of environment-endangering or environment-damaging – restrict, suspend or prohibit the environment-endangering or environment-damaging activity until the conditions determined by it are met. (4) Where the carrying out of the prevention and restoration measures affects lands owned, possessed, (used) by others, the owner, possessor (user) of such lands shall tolerate the carrying out of such prevention and restoration measures.", "The owner, possessor (user) of such lands shall be entitled to indemnification.” Section 109 “(1) Where the environmental components are damaged in ways prohibited under the Criminal Code, the public prosecutor shall act in compliance with the Code of Criminal Procedure. (2) In case of endangerment of the environment the public prosecutor shall also be entitled to bring an action for prohibiting the activity or seeking compensation for damages caused by the environment-endangering activity.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 19. The applicant complained that the noise disturbance caused by the operation of the railway station made his home virtually uninhabitable, and he had not received effective and timely protection against that nuisance. He relied on Articles 8, 13 and 17 of the Convention and Article 1 of Protocol No.", "1. The Court considers that this complaint falls to be examined under Article 8, 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.” 20.", "The Government contested that argument. A. Admissibility 21. 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 22. The applicant submitted that the extreme noise disturbance caused by the railway station had started in 1988, while the first measures aiming at reducing the noise had only been implemented in 2010. The noise had exceeded the statutory levels for more than twenty years, and there still remained some unbearable noise by night and at dawn. In his view, due to the non-compliance with the statutory levels, the appropriateness of which was not questioned, the interference with his right to respect his private life and home could not be regarded as being ‘in accordance with the law’ or proportionate.", "23. The Government argued that the Nature Protection Act provided for a clear sanction system, which the courts had duly applied by prohibiting MÁV from making the excessive noise emission and by obliging it to bear the costs of installing soundproof doors and windows. In full compliance with this ruling, MÁV had implemented measures which had significantly reduced the noise emission. The remaining noise should be tolerated by the applicant, as his house was situated by a railway station, the activity of which served both public and private interests. Therefore, the restriction on his rights should be regarded as lawful and proportionate.", "24. The Court recalls that there is no explicit right in the Convention to a quiet environment, but where an individual is directly and seriously affected by noise, an issue may arise under Article 8 (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003‑VIII). Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; 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 Hatton and Others v. the United Kingdom, cited above, § 98). The Court has already held that noise significantly above statutory levels, to which the State has not responded with appropriate measures, may as such amount to a violation of Article 8 of the Convention (cf. Oluić v. Croatia, no. 61260/08, §§ 48 to 66, 20 May 2010; Moreno Gómez v. Spain, no. 4143/02, §§ 57 to 63, ECHR 2004‑X; Deés v. Hungary, no.", "2345/06, § 23, 9 November 2010). 25. Turning to the present case, the Court notes that – even assuming that the status of MÁV, a State-controlled enterprise, is that of a legal entity distinct from the State – the State authorities had, upon the applicant’s complaint about the company’s noise emission, a positive obligation under Article 8 § 1 to strike a fair balance between the interest of the applicant in having a quiet living environment and the conflicting interest of others and the community as a whole in having rail transport. 26. The Court notes that the applicant did not contest the appropriateness of the applicable noise limit values.", "It further notes that the applicant has not submitted any evidence to show whether the noise produced by the activities at the railway station still exceeds those values. However, the Court attaches importance to the fact, not contested by the Government, that the statutory noise values were overstepped until at least the end of the related proceedings in 2008, when MÁV paid for the replacement of the applicant’s doors and windows (see paragraph 16 above). The complaint about the noise disturbance was brought in the domestic courts in 1991. The Convention entered into force with regard to Hungary on 5 November 1992, and it took almost sixteen years from this date to carry out a proper balancing exercise and to reach an enforceable decision by the domestic courts. Therefore, the applicant remained unprotected against the excessive noise disturbance, which caused serious nuisance preventing him from enjoying his home, for an unacceptably long period.", "27. The Court accepts that the State enjoys a margin of appreciation in determining the steps to be taken to ensure compliance with the Convention when it comes to the determination of regulatory and other measures intended to protect Article 8 rights (see Deés v. Hungary, cited above, § 23). However, it emphasises that the existence of a sanction system is not enough if it is not applied in a timely and effective manner. In this respect it draws attention once again to the fact that the domestic courts failed to determine any enforceable measures in order to assure that the applicant would not suffer any disproportionate individual burden for some sixteen years. 28.", "Therefore the Court concludes that the State has failed to discharge its positive obligation to guarantee the applicant’s right to respect for his home. Accordingly, there has been a violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 29. The applicant also complained that the length of the proceedings which he brought in this matter was incompatible with the “reasonable time” requirement of Article 6 § 1.", "The Government did not contest that argument. 30. The period to be taken into consideration began on 5 November 1992, when the recognition by Hungary 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 had already been pending for over one year on that date.", "The period in question ended on 8 June 2008. It thus lasted for fifteen years and seven months before two levels of jurisdiction. From this time, a period of one year between 7 February 1992 and January 1993 must be deducted, as the proceedings were stayed upon the parties’ request. Another period of four years between 22 July 1994 and July 1998 must be further deducted, when the proceedings were suspended upon the applicant’s request (see paragraph 8 above). The remaining duration is therefore ten years and seven months for two levels of jurisdiction.", "In view of such lengthy proceedings, this complaint must be declared admissible. 31. 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). Having examined all the material submitted to it, it finds no reason to reach a different conclusion in the present circumstances.", "Having regard to its case-law on the subject, the Court finds that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 32. The applicant, lastly, invoked Article 1 of Protocol No.", "12 to the Convention in respect of alleged discrimination in the above proceedings. 33. Since Hungary has not ratified Protocol No. 12, this complaint must be rejected as incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention and rejected pursuant to Article 35 § 4. 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 4,000,000 Hungarian forints (HUF)[3] in respect of pecuniary damage, as compensation for the alleged decrease in the market value of his house. As non-pecuniary damages, he claimed HUF 18,000,000[4] for the violation of Article 8 and HUF 10,000,000[5] for the violation of Article 6 (length).", "36. The Government contested these claims. 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 considers that the applicant must have sustained some non-pecuniary damage and awards him, on the basis of equity, EUR 9,500 under this head.", "B. Costs and expenses 38. The applicant also claimed HUF 929,700[6] for the costs and expenses incurred before the domestic courts and HUF 73,943[7] (HUF 30,000 of lawyer’s fee and HUF 43,943 of translation costs) plus VAT for those incurred before the Court. 39. The Government contested this claim.", "40. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,500 covering costs under all heads. 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 complaints concerning Articles 6 § 1 and 8 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention (length of the proceedings); 3. Holds that there has been a violation of Article 8 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Hungarian forints at the rate applicable at the date of settlement: (i) EUR 9,500 (nine thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 18 June 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithGuido RaimondiRegistrarPresident [1] Approximately EUR 15,660 [2] Approximately EUR 1,680 [3] Approximately 13,500 euros (EUR) [4] Approximately EUR 61,000 [5] Approximately EUR 33,800 [6] Approximately EUR 3,100 [7] Approximately EUR 250" ]
[ "FORMER SECTION IV CASE OF KOKY AND OTHERS v. SLOVAKIA (Application no. 13624/03) 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 Koky and Others v. Slovakia, The European Court of Human Rights (Former Section IV), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,David Thór Björgvinsson,Ján Šikuta,Päivi Hirvelä,Ledi Bianku,Nebojša Vučinić, judges,and Fatoş Aracı, Deputy 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.", "13624/03) 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 ten Slovak nationals of Roma ethnic origin: Mr Ján Koky, Mr Martin Kočko, Ms Žaneta Kokyová, Mr Milan Baláž, Mr Rastislav Koky, Ms Renáta Kokyová, Ms Ružena Kokyová, Ms Renáta Čonková, Ms Justina Lacková and Mr Ján Koky Jr. (“the applicants”), on 17 April 2003. The applicants’ particulars appear in the appendix to this judgment. 2. The applicants were represented by the League of Human Rights Advocates in Bratislava and the European Roma Rights Centre in Budapest (Hungary). 3.", "The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms A. Poláčková, who was succeeded in that function by Ms Pirošíková. 4. The applicants alleged, in particular, that – in violation of Article 3 of the Convention and several other of their Convention rights - the State authorities had failed to ensure a prompt, effective and impartial investigation into, and to punish the perpetrators of, an allegedly racially motivated assault on them by private individuals. 5. By a decision of 22 September 2009, the Court declared the whole application admissible, joining to the merits a question of exhaustion of domestic remedies under Article 167 of the Code of Criminal Procedure (Law no.", "141/1961 Coll., as in force at the relevant time,“the CCP”) and sections 31 et seq. of the Public Prosecution Service Act ((Law no. 153/2001 Coll., as amended – “the PPS Act”). 6. The applicants and the Government each submitted further written observations (Rule 59 § 1) on the merits, and the applicants replied in writing to the observations submitted by the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Incidents of 28 February 2002 7. The following incidents occurred on 28 February 2002. The detailed accounts of events by the parties and those involved are at variance at times.", "In this section, therefore, the incidents are described only briefly. Differing details, if any, are pointed out in the subsequent sections. 1. Argument at the bar 8. In the evening of 28 February 2002, at around 7.30 p.m., an argument started in a bar in the village of Gánovce-Filice, when a non-Romani waitress, I.S., refused to serve a drink to a person of Roma ethnic origin, M.K.", "9. The argument developed with the tipping of a drink over M.K., in response to which he slapped or attempted to slap Ms I.S. in the face, accidentally knocking glasses over, which fell and broke. 10. Subsequently I.S.", "telephoned one of her three sons, P.S., who came to the bar soon afterwards. After he had left, another of her sons, M.S., who was the owner of the bar, came to the bar and remained there, assisting I.S. in serving customers, until closing time. Around that time, the girlfriend of P.S., E.N., also came to the bar and then accompanied I.S. home.", "2. Attack at Roma settlement (a) The attack 11. Later that evening, at around 9.45 p.m., a group of at least twelve people went into the Roma settlement in the village where the applicants lived. Some of them were wearing balaclavas and they were armed with baseball bats and iron bars. 12.", "Allegedly shouting racist language, they forcibly entered houses nos. 61, 67 and 69, damaging the interior and breaking the windows. 13. On entering house no. 67, the attackers physically assaulted applicant Mr Ján Koky.", "Some of the other applicants and another person, who were also present at the house during the attack, witnessed the attack but managed to avoid it by hiding (see paragraph 16 below). 14. Once the attackers understood that the police had been called, they made their escape. When they had gone approximately 200 metres from the settlement, they met applicants Mr Martin Kočko and Mr Rastislav Koky and physically assaulted them, causing them the injuries described below. Racist language is alleged to have been used during this part of the attack too.", "(b) Circumstances and consequences of the attack 15. House 61 was inhabited by applicant Ms Renáta Čonková and her partner, Z.K. They were both at home during the attack. 16. House 67 was inhabited by applicants Mr Ján Koky, Ms Žaneta Kokyová, Mr Rastislav Koky, Ms Renáta Kokyová, Ms Ružena Kokyová and Mr Ján Koky Jr and by a certain J.K. Apart from applicant Rastislav Koky, they were all present at the house during the incident, and so were applicants Mr Milan Baláž and a certain H.B.", "17. When the attack took place in his house, applicant Mr Ján Koky sustained no physical injuries. 18. House 69 was owned and inhabited by applicant Ms Justína Lacková. 19.", "The overall damage to the applicants’ property was estimated at the equivalent of at least 310 euros (EUR). 20. The parties are not united over the extent of the physical injuries sustained by Mr Martin Kočko and Mr Rastislav Koky (see paragraph 14 above). 21. The applicants claim that Mr Rastislav Koky suffered a skull fracture, a cut to the left side of the back of the head, a crushed left arm, a pressure injury to the left side of the back and bruises to the left knee, which required him to stay in hospital for ten to fourteen days.", "22. As regards Mr Martin Kočko, the applicants claim that he had sustained a scraped elbow and a crushed arm, which required a recovery time of seven to ten days. In that respect the applicants relied on the decisions of 26 April and 22 May 2002 (see paragraphs 73 and 81 below). 23. In contrast, the Government submit that Mr Martin Kočko’s injuries necessitated no stay in hospital, while those of Mr Rastislav Koky only required him to stay in hospital for four days.", "3. Attack at I.S.’s family’s house 24. After I.S. had come home from her shift, an unknown person broke the window of her house by throwing a stone at it and also broke the windows of a car parked in her yard. 25.", "It is not entirely clear what relation this attack bore to the argument at the bar and the attack at the settlement, both in terms of time and of cause. 26. It appears that those present during the attack at I.S.’s house included I.S., P.S., E.N., her brother: M.N., and a certain M.L. B. Initial response by the police 27.", "The police arrived at the Roma settlement about half an hour after the incident. That night and in the early hours of the following day, that is to say 1 March 2002, the police carried out inspections and interviews, as summarised below on the basis of official records. 1. Inspections 28. Between 10.30 and 11 p.m. house no.", "67 was inspected in connection with a suspected offence, which was referred to as “damage to family house”. Applicant Mr Ján Koky, who lived in the house, was present. Broken windows were found in various parts of the house, and two biological traces were identified (bloodstains on a door and on a baseball bat) and sent for further analysis. 29. Between 0.15 and 1.00 a.m. house no.", "61 was inspected in connection with a suspected offence, which was referred to as “damage to windows and door of a house”. Z.K., whose house it was, was present. Damage to the latch and casing of the front door were identified, as well as broken panes in two of the windows. Inside the house, on the floor in the kitchen and a room where the windows had been broken, two stones of 8 and 20 cm diameter were found. 30.", "Between 1 a.m. and 1.30 a.m. the following day house no 69 was inspected in connection with a suspected offence, which was referred to as “damage to a window pane of a house”. Applicant Ms Justína Lacková, whose house it was, was present. Broken panes in three windows were identified, and one biological trace was sampled for further analysis. 2. Interviews 31.", "Applicant Mr Ján Koky, Z.K. and applicant Ms Justína Lacková were interviewed: the interviews started at 2.25 a.m., 3.45 a.m. and 4.30 a.m. respectively. 32. Mr Ján Koky submitted, inter alia, that earlier that evening a group of approximately five attackers had entered his house, no. 67.", "They had been armed with batons and had tried to hit him. He managed to fend them off and other occupants of his house had managed to hide, so the attackers had mainly been hitting the kitchen furnishings. Four of the attackers were wearing balaclavas to conceal their faces. The remaining one, whom he did not know, had no balaclava. They had not uttered a word.", "33. Z.K. described how the attackers had broken windows in his house, no. 61, had forcibly entered and had made their escape after learning that the police were on their way. According to the transcript, the interview ended at 4.20 a.m. Z.K.", "then added that when they entered his house the attackers were shouting: “Gypsies, we’re going to strike you down today”. 34. Ms Justína Lacková submitted that she had been at home with her three minor children during the attack and that her husband had not been there. She had witnessed the turmoil outside her house through a window. Two of her house windows had subsequently been broken, probably with sticks, because no stones or other foreign objects had been found inside.", "In her submission, the attackers had pounded at her entrance door but had not succeeded in getting in. Ms Lacková assessed the damage to her house and submitted a claim for compensation to the proceedings. The interview was concluded at 5.15 a.m. and then reopened to pose a direct question to the applicant, in response to which she retorted that, on the part of the attackers, she had only heard indistinct shouting. The interview was finally concluded at 5.30 a.m. C. First investigation into the incidents of 28 February 2002 1. Initial stage 35.", "On 1 March 2002 the Poprad District Police Investigator (“the DPI”) initiated a criminal investigation into the offences of causing bodily harm, violating the privacy of a home and criminal damage within the meaning of Articles 221 § 1, 238 §§ 1 and 3 and 257 § 1 of the Criminal Code (Law no. 140/1961 Coll., as applicable at that time) respectively. 36. It was suspected that a group of at least twelve individuals had unlawfully entered houses nos. 61, 67 and 69, and that they had damaged these houses, as well as house no.", "69. It was also suspected that while at his house the attackers had tried to hit applicant Mr Ján Koky with baseball bats and that while making their escape from the scene of crime, they had assaulted applicants Mr Martin Kočko and Mr Rastislav Koky by hitting them with baseball bats and kicking them, thus causing them bodily injuries on account of which, according to a preliminary estimate, they would need recovery time and would be unfit for work for seven to ten days and ten to fourteen days respectively. 37. The injuries to the applicants Mr Martin Kočko and Mr Rastislav Koky were also assessed in an expert medical report procured by the DPI, in which their recovery time was assessed at four weeks and thirteen days respectively. 38.", "On 1 and 4 March 2002 respectively, an official note was made in the investigation file summarising the applicants’ submissions and a document was included in it outlining the investigation strategy. 39. On 5 March 2002 at 10.00 and 10.50 a.m. respectively, the DPI interviewed I.S. and P.S. They described their involvement in the incident at the pub and the subsequent attack which took place at I.S.’s house and on his car.", "I.S. submitted, inter alia, that she had closed the bar and had gone home at around 9.50 p.m. P.S. submitted that the closing time of the bar was 10 p.m. and that his mother had arrived home after that time. 40. On 7 March 2002 the DPI reported to the Ministry of the Interior on the status of the investigation.", "It was mentioned, inter alia, that the applicants’ legal representative had been obstructing the investigation, in that he had instructed the applicants not to accept summonses to interviews if handed to them in person, and not to take part in any interviews unless he was present. The qualification of the representative to appear on the applicants’ behalf in criminal proceedings in Slovakia was also called into question. 2. Interviews on 12 March 2002 41. In the morning of 12 March 2002, the DPI interviewed applicant Mr Rastislav Koky, T.K.", "and M.K. and applicants Mr Ján Koky Jr. and Mr Martin Kočko. These interviews started at 8.20, 9.15, 9.45, 10.10 and 10.40 respectively. 42. Mr Rastislav Koky described the pub incident between I.S.", "and M.K. According to him, following the altercation I.S. had called P.S., who had arrived within five minutes, and who had warned Mr Koky that another son of I.S. would come round and there would be trouble. He also submitted that, later that evening, about thirty men had caught and beaten him, that he had subsequently had to be taken to hospital by ambulance, that he had been hospitalised for three to four days and that due to his injuries he was still unfit for work.", "In response to a direct question, Mr Rastislav Koky submitted that “during the attack, none of the attackers uttered a word”. 43. T.K. and M.K. submitted that on the evening of the incident they had seen I.S.", "with a group of forty to fifty men approaching the Roma settlement. 44. Mr Ján Koky Jr. described the pub incident, including the remark that P.S. had told him and others to go away because his brother would come and there would be trouble. Mr Ján Koky Jr. also submitted that, after he had seen his brother, applicant Mr Rastislav Koky, and his injuries, he had been convinced that P.S.", "was responsible. He had therefore gone to I.S.’s house, where he had had a verbal exchange with E.N. and M.N. However, he had gone away after the latter had produced a handgun and threatened to shoot him. 45.", "Mr Martin Kočko described the pub incident, the arrival of P.S. in the pub, the departure of about forty-five men and the assault on him by four individuals wearing balaclavas to conceal their faces and two without, accompanied with a cry “Negroes, gypsies, we’re going to kill you”. After receiving medical care in hospital, he had gone home and had not been hospitalised. 3. Interviews of 13 March 2002 46.", "During the morning of 13 March 2002 the DPI interviewed applicants Mr Milan Baláž, Ms Žaneta Kokyová, Ružena Kokyová and Mr Ján Koky. They also interviewed H.B., the respective interviews having commenced at 8.50, 9.20, At 9.50, 10.25 and at 10.55. 47. Mr Milan Baláž submitted his account of the assault at house no. 67, where he had been present at the relevant time, visiting his girlfriend.", "In his submission, the assault had been accompanied by a shout of “Gypsies get out, we’re going to kill you!” 48. Ms Žaneta Kokyová, who lived in house no. 67, gave an account of the assault at their house and settlement, submitting that it had been accompanied by shouts of “Get out!”, “[religious expletive], gypsy whores, gypsy gang, get out, or else we are going to kill you all!” and “Gypsy whores, today you are dead, you are going to get a kicking today!”. 49. Ms Ružena Kokyová gave an account of the attack at her house, no.", "67, submitting that it had been accompanied by a male voice shouting “Gypsies, black muzzles, today you are going to get killed, get out!”. 50. Mr Ján Koky gave an account of the attack at house no. 67, where he lived, submitting that it had been accompanied by shouts of “Gypsies, today you are going to be burned”. 51.", "H.B., who was in house no. 67 during the attack, gave an account of it and submitted that it had been accompanied by shouts of “Gypsies, black muzzles, get out!” 4. Extension of the investigations 52. On 13 March 2002 the DPI initiated a criminal investigation into a further offence, namely that of violence against an individual or a group of individuals within the meaning of Article 196 §§ 1 and 2 of the Criminal Code. 53.", "The decision was based on the suspicion that, in the incident described above, several unidentified individuals had entered the Roma settlement shouting “Gypsies, come out or we will kill you”, while some of them had gone into houses 61 and 67 shouting “Gypsies, come out or we will kill you”. 54. The decision refers to the charges of 1 March 2002 and to subsequent statements from H.B., T.K., M.K. and applicants Mr Ján Koky, Mr Martin Kočko, Ms Žaneta Kokyová, Mr Milan Baláž, Mr Rastislav Koky, Ms Ružena Kokyová and Mr Ján Koky Jr. 55. The decision also refers to the assault on applicant Mr Martin Kočko being accompanied by shouts of “Negroes, gypsies, we will kill you!”.", "5. Interviews of 14 March 2002 56. The series of interviews started at 8 a.m. with P.J., continued at 8.35 a.m. with Ms E.N., and at 9.10 a.m. with the last son of I.S. : M.S. 57.", "P.J. said that he could see that I.S. was distressed when he arrived at the bar. E.N. described her arrival at the bar and what happened while she was there, that she went with I.S.", "to her house, and the subsequent incident there. The deposition of M.S. was fully in line with those of his family members. 6. Interviews of 20 March and 10 April 2002 58.", "In the morning of 20 March 2002 the DPI interviewed applicant Ms Renáta Čonková, J.K. and applicant Ms Renáta Kokyová, whose interviews began at 9.10, 9.45 and 10 a.m. respectively. 59. Ms Renáta Čonková gave an account of the attack at the house of applicant Ján Koky, which she had observed through the window of her own house. In her submission, the attack at the house of the applicant Ján Koky was accompanied by a shout of “Black whores, today we’re going to kill you!”. As to Ms Čonková’s own house, five windows had been broken by thrown stones which were found inside.", "The attackers had only got as far as a corridor in the house before they made their escape. 60. J.K. gave an account of the attack at house no. 67, in which she lived. In her submission, the attack was accompanied by a shout of “Gypsy whores, today you will kick the bucket”.", "61. Ms Renáta Kokyová gave an account of the attack at house no 67, where she lived. In her submission, the attack was accompanied by a shout of “Gypsy whores, today we’re going to kill you”. 7. Interviews of 27 March and 10 April 2002 62.", "The morning of 27 March 2002 saw a long series of short interviews, starting at 8 with applicant Mr Ján Koky, at 8.10 with applicant Ms Ružena Kokyová, at 9 with H.B., at 9.30 with J,K,, at 9.35 with applicant Mr Rastislav Koky, at 9.40 with applicant Ms Renáta Kokyová, at 9.45 with applicant Mr Milan Baláž, at 9.50 with applicant Ms Žaneta Kokyová, at 9.55 with Z.K., at 10.05 with applicant Ms Renata Čonková, at 10.10 with applicant Ms Justína Lacková, and at 10.25 with applicant Mr Martin Kočko. 63. Mr Ján Koky, Z.K. and J.K. completed their respective depositions of 1 and 20 March 2002 in so far as the extent of the material damage they had sustained was concerned, and added a claim for compensation to the proceedings. 64.", "Ms Justína Lacková specified the damage she stated she had sustained and for which she was seeking compensation. 65. Ms Ružena Kokyová, HB, Ms Žaneta Kokyová, Mr Milan Baláž, Ms Renáta Kokyová and Ms Renáta Čonková completed their respective depositions of 13 and 20 March 2002 and declared that they had no compensation claim to join to the proceedings, as they themselves had not sustained any material damage. Ms Renáta Kokyová added that compensation for any damage sustained by their family would be claimed by her husband. 66.", "Mr Rastislav Koky and Mr Martin Kočko completed their respective depositions of 12 March 2002 in that they specified that, as a result of the injuries sustained in the attack, Mr Rastislav Koky had been incapable of work for fourteen days, from 28 February to 14 March 2002, and Mr Martin Kočko was still unable to work. 67. At 8 a.m. on 10 April 2002 the DPI started interviewing applicant Mr Ján Koky Jr, who completed his depositions of 1 March 2002 in so far as the extent of the material damage he had sustained was concerned, and added a claim for compensation to the proceedings. 8. Further investigative actions 68.", "Without providing any details the Government submitted that “[the authorities] had requested records of incoming and outgoing communication to and from mobile phones of [I.S. ], [M.S. ], [P.S.] and [E.N.]”. 9.", "Identity exercise on 10 April 2002 69. On 10 April 2002 the DPI held an identity exercise, in the course of which the participants were to identify presumed perpetrators from photographs in albums. It produced the following results: - applicant Mr Ján Koky identified one person, with a subjectively perceived probability of seventy to eighty percent, as one of the people who had been attacking him in his house; - applicant Mr Martin Kočko recognised one individual, who had been present at the pub during the argument, but had not been among those who had beaten him. He also identified one individual who had been among those who had beaten him, of which he was sixty percent sure. - applicant Ms Žaneta Kokyová identified one individual, with a subjectively perceived probability of fifteen to twenty percent, as an intruder in their house and an attacker of her father; - applicant Mr Rastislav Koky recognised two individuals who had been present at the pub during the argument but had not been among those who had beaten him.", "He also identified one individual who had been present at the settlement during the attack but was not sure whether that individual had beaten him; and - applicants Mr Milan Baláž, Ms Renáta Kokyová and Mr Ján Koky Jr. did not identify anyone. 70. In what may appear to be a follow-up to the identity exercise, on 19 April 2002, the DPI requested the Police Institute of Forensic Analysis to examine buccal mucus samples of three individuals, B.B., V.P. and E.K. and to compare biological material thus obtained with other biological evidence taken from the scene of crime.", "10. Conclusion of the first investigation 71. On 26 April 2002 the DPI suspended the above-mentioned criminal investigations. The decision stated that the police had taken several investigative measures and had carried out a search with a view to establishing the identity of the perpetrators of the assault of 28 February 2002. Until then, however, no evidence could be established which would have made it possible to bring charges against a specific person.", "72. The decision of 26 April 2002 also stated that it was established that the incident at the Roma settlement “had been preceded by an assault on a waitress, I.S., by a Roma, M.K., and subsequent damage to the property of the family of I.S. by a hitherto unidentified Roma and so the actions of the unidentified perpetrators [could] not be considered or qualified as a criminal offence with a racial motive, because it [had come] down only to an act of retribution”. 73. As to the injuries sustained by applicants Mr Rastislav Koky and Mr Martin Kočko, the decision refers to the decision of 1 March 2002 and its contents (see paragraph 36 above).", "D. Second investigation into the incidents of 28 February 2002 1. Opening of the second investigation and initial steps taken 74. On 3 May 2002 applicants Mr Ján Koky and Mr Rastislav Koky lodged an interlocutory appeal (sťažnosť) against the decision to suspend the investigation. Referring to the facts of the case, they submitted that the assault had been racially motivated and that it had been organised by people who were close to the family of the waitress concerned. Citing, inter alia, Articles 5 and 13 of the Convention, they sought resumption of the investigation.", "75. On the same day, namely 3 May 2002, the Poprad District Prosecutor (Okresná prokuratúra) (“the District Prosecutor”) issued a written instruction to the DPI specifying the measures to be taken and lines of inquiry to be pursued in order to establish the identity of the perpetrators and highlight the alleged racial motive. 76. Still on 3 May 2002, the DPI took a decision to resume the investigation. That decision contains a summary of the previous procedural developments, followed by a plain statement, without further elucidation, that “during further investigation it [had been] established that a racially motivated criminal offence [was] implicated and therefore it [was] necessary to take further investigative steps and resume the investigation ...”.", "77. On 14 May 2002 the Police Forensic Analysis Institute filed a report with the DPI concluding that, having examined the biological material of B.B., V.P. and E.K. (see paragraph 70 above) and having compared it with the material taken from the crime scene, no link could be established. 2.", "Interviews of 20 and 21 May 2002 78. In the morning of 20 May 2002, at 8.40, 8.50, 9 and 9.15 respectively, the DPI commenced interviewing M.S., P.S. and F.S., as well as M.N. They completed their respective submissions of 14 March, 19 March, 17 April and 3 May 2002 and agreed to provide buccal mucus samples for the purposes of DNA testing and comparison with the biological material taken from the crime scene. 79.", "On 21 May 2002 at 8 am the DPI commenced interviewing M.L., who gave an account of his arrival in the village and at the bar and also of his perception of the incident at the house of I.S. He stated that he had not been at the Roma settlement. 80. The following day the DPI again requested the Police Forensic Analysis Institute to analyse and compare biological material obtained from the three sons of I.S., M.N. and M.L.", "with the material taken from the scene of crime. 3. Decision on the first interlocutory appeal 81. On 22 May 2002 the District Prosecutor declared the interlocutory appeal of applicants Mr Ján Koky and Mr Rastislav Koky of 3 May 2002 (see paragraph 74 above) inadmissible, replying on Articles 43, 124 § 1, 148 § 1 (b) and 173 § 4 of the CCP, and holding that as victims of the alleged offences the appellants had no standing to challenge the decision in question. 82.", "In its concluding part, which under the applicable procedural rules (see paragraph 125 below) contains information concerning available remedies, the decision provided that: “An interlocutory appeal against this decision is not permissible.” 83. However, in a letter of the same date, namely 22 May 2002, the District Prosecutor informed the applicants that she had reviewed the matter on her own authority, that on 3 May 2002 (see paragraph 75 above) she had quashed the decision, and that she had instructed the DPI to carry on the investigation so as to clarify the events without leaving any doubt as to the identity and motive of the alleged perpetrators. 4. Investigative actions taken between 23 May and 18 June 2002 84. At 8 a.m. on 23 May 2002 the DPI commenced interviewing E.K.", "During the morning of 4 June 2002 they interviewed R.S. (at 8.30), I.K. (8.45), J.H. (9.00) and M.K. (9.10).", "On 6, 7 and 18 June 2002 respectively the DPI interviewed J.K. (at 10 a.m.), P.P. (at 10 a.m.) and B.P. (before 9 a.m.). 85. They all had either already provided or agreed to provide buccal mucus samples for the purposes of DNA testing and comparison with the biological material taken from the scene of crime.", "86. In addition, E.K. submitted that he had not been at the Roma settlement and that he had no explanation of how he could have been identified as someone involved in the attack. 87. R.S.", "acknowledged having been at the bar with B.P. and J.K. (see paragraphs 91 and 93 below) during the incident, which however he had not seen, and he had no information concerning the event investigated. 88. I.K. stated that he had no knowledge of the incident, of which he had learned from the media, and that he had not been at the Roma settlement.", "89. J.H. had been away on a skiing trip from 28 February until 1 March 2002. 90. M.K.", "had been away on business in the week in question and had only returned on 1 March 2002. 91. J.K. had been at the bar during the incident, but had not witnessed it directly. He had not been at the Roma settlement and had no knowledge of who had been there. 92.", "P.P. acknowledged knowing M.S. However, he had not been at the Roma settlement, remembered nothing useful and had no explanation of why one of the victims had identified him as someone involved in the attack which took place in their house. 93. B.P.", "acknowledged having been at the bar with R.S. and J.K. (see paragraphs 87 above and 91 above), but he had not directly witnessed the incident. He had not been at the Roma settlement, nor did he have any knowledge of anyone who had been there. 94. On 18 June 2002 the Police Forensic Analysis Institute reported to the DPI that, having examined the biological samples taken from F.S., P.S., M.S., M.N.", "and M.L. (see paragraph 80 above) and having compared it with the material taken from the scene of crime, no link could be established. 5. Conclusion of the second investigation 95. On 26 June 2002 the DPI again suspended the investigation, relying on Article 173 § 1 (e) of the CCP, and referring to similar considerations to those in the decision of 26 April 2002.", "It summarised previous procedural developments and observed that, despite additional information taken from H.B., T.K., M.K. and applicants Mr Ján Koky, Mr Martin Kočko, Ms Žaneta Kokyová, Mr Milan Baláž, Mr Rastislav Koky, Ms Ružena Koky and Mr Ján Koky Jr., it had not been possible to establish any evidence allowing charges to be brought against any specific person. However, it was considered established that the attack at the Roma settlement had been preceded by the incident at the bar and had been followed by the attack at the house of the family of Ms I.S. 6. Interlocutory appeal and submission to the Prosecutor General 96.", "On 3 July 2002 applicants Mr Ján Koky and Mr Rastislav Koky lodged an interlocutory appeal against the decision of 26 June 2002, requesting that the criminal proceedings be resumed with a view to establishing the relevant facts of the case. 97. The appellants relied on Articles 5, 6, 8, 13 and 14 of the Convention, 1 of Protocol No. 1 and 15 and 21 of the Constitution and referred to the results of the identity exercise on 10 April 2002. In particular, they emphasised that, on that occasion, applicant Mr Martin Kočko had recognised one person; applicant Mr Rastislav Koky had recognised F.S.", "and submitted that the organisation of the attack had had a connection with the family of I.S. ; and applicants Mr Ján Koky and Ms Žaneta Kokyová had recognised one person each. 98. On 11 July 2002 the applicants’ representative wrote to the Prosecutor General to inform him that they had lodged an interlocutory appeal against the decision of 26 June 2002 with the District Prosecutor and that they suspected that the investigation had been tampered with in order to downplay the racial motive for the assault. He requested that the applicants be informed of the Prosecutor General’s office’s actions in the matter.", "99. The applicants have not received any answer to their letter of 11 July 2002, and it appears that it has not given rise to any specific action or decision. According to an official statement of the Office of the Prosecutor General the letter is not a part of their case file. 100. On 17 July 2002 the District Prosecutor declared the interlocutory appeal inadmissible on similar grounds to those in the decision of 22 May 2002, relying on Articles 43, 142 § 1 a 173 of the CCP.", "101. The decision contains information as to the available remedies, to the effect that: “An interlocutory appeal against this decision is not permissible.” 102. Nevertheless, the District Prosecutor reviewed the decision on her own initiative and, by a letter of the same day, namely 17 July 2002, informed the appellants that the DPI had taken all the actions necessary to carry out a successful prosecution. 103. According to the letter, it was true that applicant Mr Rastislav Koky had recognised P.S., F.S.", "and M.N., but he had submitted either that they had not beaten him or that he was not sure whether they had beaten him. Applicant Mr Ján Koky had recognised F.S. and had submitted that it was the latter who had beaten him in his house. This submission however contradicted a previous submission by applicant Mr Ján Koky (see paragraph 32 above) to the effect that, of the five attackers in his house, four were wearing balaclavas and one, whom he did not know, was not. It was also observed that Ms Žaneta Kokyová had not recognised any of the attackers.", "104. The letter further states that additional action had been taken with a view to identifying those responsible, such as a comparison of the traces found at the scene of the incident with buccal mucus samples from the suspects, but the available evidence did not permit the bringing of charges against any particular person. 7. Further investigative steps 105. Meanwhile, on 11 July 2002 and again on 19 August and 8 November 2002, the DPI interviewed seven other individuals.", "These interviews however produced no useful new information. 106. On an unspecified date, in response to a request of 20 August 2002, the Police Institute of Forensic Analysis reported to the DPI that, having examined buccal mucus samples from P.G., M.S. and M.A. and compared it with the biological material taken from the scene of crime, no link could be established.", "107. On 13 January 2003, in response to a request, the DPI reported to the District Prosecutor that hitherto “no perpetrator had been identified and that tasks were continuously being carried out under an integrated investigation plan”. 108. No information has been made available in respect of any further investigative actions and their outcome. E. Constitutional complaint 109.", "On 17 September 2002 all ten applicants lodged a complaint with the Constitutional Court under Article 127 of the Constitution. Represented by a lawyer, they contended that the events of 28 February 2002 had not been sufficiently thoroughly and efficiently investigated to ensure that those responsible were identified and punished. In particular, they submitted that the authorities had failed to draw adequate conclusions from the oral evidence and from the information concerning the identity of the alleged perpetrators, as obtained from the identity exercise of 10 April 2002. In addition, the authorities should have taken and assessed further evidence, such as records of mobile telephone communications between those involved, but had not done so. The applicants also contended that the assault had not been motivated by revenge but was racially motivated, to which the authorities had failed to pay adequate attention.", "110. In the text of their complaint the applicants made reference to Article 1 § 2 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended), in conjunction with a principle of “general acceptance and observance of human rights and basic freedoms for everybody”, Articles 5 § 1 and 13 of the Convention and the Court’s judgment in the case of Aksoy v. Turkey (18 December 1996, Reports of Judgments and Decisions 1996‑VI). 111. In the standardised prescribed form containing a summary of their claim, the applicants applied for a ruling declaring a violation of their right to an effective remedy under Article 13 of the Convention and to judicial and other legal protection under Article 46 § 1 of the Constitution by actions of the DPI in the investigation referred to above.", "112. On 23 October 2002 the Constitutional Court declared the complaint inadmissible on the ground that the applicants had failed to exhaust all remedies as required by section 53(1) of the Constitutional Court Act (Law no. 38/1993 Coll., as amended). 113. In particular, the Constitutional Court held that it had been open to the applicants to ask the Public Prosecution Service (“the PPS”), under Articles 167 and 174 § 2 (a) and (c) of the CCP, to instruct the DPI to proceed with the case.", "Had such a request been dismissed, the applicants could have used further remedies available to them under sections 31 et seq. of the PPS Act. No appeal against the decision of the Constitutional Court was available. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "The Constitution 114. Article 1 § 2 provides that: “The Slovak Republic acknowledges and adheres to general rules of international law, international treaties by which it is bound, and its other international obligations.” 115. In so far as relevant, Article 15 stipulates that: “1. Everyone has the right to life. [...] 2.", "No one shall be deprived of life. ... 3. No infringement of rights according to this Article shall occur if a person has been deprived of life in connection with an action not defined as unlawful under the law.” 116. Article 21 § 1 provides that: “The home shall be inviolable. Entry without the consent of the person living there is not permitted.” 117.", "Article 46 § 1 of the Constitution reads as follows: “Everyone may claim his or her right by procedures laid down by an act of parliament before an independent and impartial court of law or, in cases provided for by an act of parliament, before another organ of the Slovak Republic.” 118. Pursuant to Article 127: “1. The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act, and shall quash such a decision, measure or act.", "If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to a person whose rights under paragraph 1 have been violated.” B. The Constitutional Court Act 119.", "Article 31a reads as follows: “Unless this Act provides otherwise or it is excluded by the nature of the matter, the proceedings before the Constitutional Court shall be subject to application mutatis mutandis of the provisions of the Code of Civil Procedure and the Code of Criminal Procedure.” 120. Under the relevant part of section 53(1) and (2): “1. A[n] [individual] complaint is not admissible if the complainant has not exhausted legal remedies or other legal means, which a statute effectively provides to [the complainant] with a view to protecting [the complainant’s] fundamental rights or freedoms, and which the complainant is entitled to use under special statute [such as the Civil Procedure Code and the Administrative Procedure Code]. 2. The Constitutional Court shall not declare a[n] [individual] complaint inadmissible even if the condition under paragraph 1 has not been fulfilled, if the complainant establishes that [the complainant] has not fulfilled this condition due to reasons worthy of particular consideration.” C. Code of Criminal Procedure (as in force at the relevant time) 121.", "The purpose of the CCP is defined in its Article 1 § 1 as follows: “The purpose of the [CCP] is to regulate actions of the agencies involved in criminal proceedings with a view to establishing properly whether criminal offences have been committed and to punishing perpetrators lawfully and justly. The proceedings must work for reinforcement of compliance with the law, for prevention and obstruction of crime, [and] for the education of citizens in the spirit of consistent compliance with the law and rules of civic coexistence, as well as honest fulfilment of duties towards the State and the society.” 122. The fundamental principles of criminal proceedings are laid down in Article 2, the relevant parts of paragraphs 3 and 5 of which provide: “3. The prosecutor is duty bound to prosecute all criminal offences of which [he or she] has been apprised; any exception is permissible only under statue or a promulgated international treaty. 5.", "The agencies involved in criminal proceedings shall proceed so that the facts of the matter are duly established, to the extent which is absolutely necessary for their decision. With equal care, they shall elucidate circumstances both against and in favour of the charged person and, in both respects, they shall take and examine evidence without awaiting the parties’ proposals....” 123. The role of victims of crimes in criminal proceedings is defined in section (Oddiel) five of chapter (Hlava) two in part (Časť) one. The relevant part of its Article 43 § 1 provides as follows: “1. A victim is a person upon whom a criminal offence has inflicted health damage, property damage, non-pecuniary damage or other damage or it has violated or jeopardised [his or her] rights or freedoms protected by law.", "A victim has... the right to lodge [in the proceedings] [his or her] claim for damages; to propose that evidence be taken, examined and completed; to take part in the hearing,...; to comment on the evidence taken and examined...; and to make use of legal remedies to the extent defined by the CCP... 2. A victim who has a lawful claim against a person facing charges for compensation in respect of damage inflicted [on the victim] by a criminal offence, shall be entitled to propose that, in a judgment leading to conviction, the court should impose a duty on the accused to compensate for that damage. The proposal shall be made at the latest during the main court hearing before the presentation of evidence. The proposal has to be clear as to the ground and the amount of damages claimed.” 124. Section 3 of Chapter 3 in Part 1 contains rules concerning the making of and dealing with applications, the relevant part of its Article 59 § 1 providing that: “An application shall be assessed according to its content, irrespective of whether it is incorrectly named.” 125.", "Section 2 of Chapter 6 in Part 1 lays down rules concerning decisions (uznesenie), paragraph 134, the relevant part of which is cited below, defining the attributes, structure and content of a decision: “1. A decision must contain... e) information about available remedies.” 126. Chapter 7 in Part 1 regulates interlocutory appeals against decisions, their admissibility being defined in Article 141, the relevant part of which provides: “1. A remedy in respect of decisions consists of an interlocutory appeal. 2.", "An interlocutory appeal shall be available against any decision of an investigator or a police authority except for a decision on the opening of a criminal prosecution (Article 160). A decision by a court or by a prosecutor may be challenged by an interlocutory appeal only in those instances where the statute expressly so provides and if [a matter] is being decided on at first instance.” 127. Article 142 contains locus standi for such appeals, as follows: “1. Unless provided for otherwise by a statute, an interlocutory appeal may be lodged by a person who is directly affected by the [impugned] decision or who has prompted the decision by a request which [the appellant] was entitled to make by law....” 128. Section 2 of Chapter 10 in Part 2 regulates investigations, Article 167 providing for the possibility of having an investigator’s actions reviewed, in the following terms: “The person facing charges and the victim shall have the right at any time in the course of the investigation to demand that a prosecutor [ensure] that delays in the investigation or shortcomings on the part of the investigator be eliminated.", "The right to make such a demand shall not be restricted by any time-limit. This demand, which must be submitted to the prosecutor at once, must be dealt with by the prosecutor without delay. The outcome of the review must be notified to the person making the demand.” 129. Section 4 of Chapter 10 in Part 2 deals with decisions at the preliminary stage of the proceedings, the relevant part of Article 173 providing that: “1. An investigator shall suspend criminal proceedings... (e) if it has been impossible to identify evidence allowing for the prosecution of a particular person... 3.", "Prior to suspending criminal proceedings everything needs to be done which is necessary for securing a successful completion of a criminal prosecution. Should there no longer be any reason for the suspension, the criminal proceedings shall be resumed.” 130. Section 5 of Chapter 10 in Part 2 regulates the prosecutor’s supervision of adherence to lawfulness in pre-trial proceedings, the relevant part of Article 174 providing that: “1. Supervision of lawfulness in pre-trial proceedings shall be carried out by the prosecutor. 2.", "While carrying out this supervision, the prosecutor shall have the power: (a) to give binding instructions for the investigation of criminal offences... (c) to take part in activities carried out by an investigator or a police authority or directly to take a particular action, to carry out the entire investigation and to take a decision on any matter whereby the provisions of [the CCP] normally applicable to an investigator shall apply to the prosecutor mutatis mutandis and, as a decision of an investigator, the decision by the prosecutor shall be challengeable by an interlocutory appeal.” D. Public Prosecution Service Act (as in force at the relevant time) 131. The Act entered into force on 1 May 2001, replacing previous legislation (Law no. 314/1996 Coll., as amended). The object of the Act is defined in its section 1, which reads as follows: “1. This Act determines the status and jurisdiction of the Public Prosecution Service, the status and jurisdiction of the Prosecutor General, the status of other prosecutors, organisation and administration of the Public Prosecution Service.", "2. The status of prosecutors; their rights and obligations; the establishment, modification and termination of [their] service relationship and the claims ensuing from it; the relationships of responsibility; disciplinary proceedings and self‑governance of prosecutors shall be subject to a special statute.” 132. Petitions to the PPS are regulated by Part (Časť) four of the Act. Pursuant to the relevant part of its section 31: “1. A prosecutor may examine the lawfulness of actions and decisions of bodies of public administration, prosecutors, investigators, police authorities and courts in so far as a statute so provides, including upon a petition, and is entitled to take measures to rectify established violations, provided [such measures] do not fall under a special statute within the exclusive jurisdiction of other bodies.", "2. A petition is understood as a written or oral demand, proposal or other submission by an individual or a legal entity, which is aimed at a prosecutor taking a measure within [the prosecutor’s] jurisdiction, in particular lodging an application for proceedings to commence before a court, or submitting a remedy, joining existing proceedings, or taking other measures for rectification of a violation of the law, which fall within [the prosecutor’s] jurisdiction.” 133. The relevant part of section 33 provides that: “1. A prosecutor is duty bound to process a petition within two months of its introduction... 2. A prosecutor shall notify a petitioner within the period specified in subsection 1 of the manner in which the petition has been resolved.", "[...]” 134. Section 34 deals with repeated petitions and further repeated petitions. Its relevant part reads as follows: “1. A petitioner may demand a review of the lawfulness of how the petition has been resolved by means of a repeated petition, which shall be dealt with by a prosecutor at a higher level. 2.", "A further repeated petition shall be dealt with by a prosecutor at a higher level only if it contains new information. A further repeated petition is understood to be a third and any further consecutive petition, in which the petitioner expresses discontent with the manner in which [his or her] petitions in the same matter have been resolved.” 135. Under the relevant part of section 35: “1. In dealing with a petition, a prosecutor is duty bound to examine all circumstances decisive for the assessment of whether there has been a violation of the law; whether the conditions are fulfilled for lodging an application for proceedings before a court to commence or for submitting a remedy; or whether [the prosecutor] may join existing proceedings before a court or take other measures which [the prosecutor] is entitled to take under [the Public Prosecution Service Act].” 2. The prosecutor assesses the petition according to its content... 3.", "If the prosecutor establishes that a petition is well founded, [he or she] shall take measures for rectification of the violation of law pursuant to [the Public Prosecution Service Act] or a special statute.” E. Constitutional Court practice 136. In a decision of 13 December 2001 (in case no. III. ÚS 123/01) the Constitutional Court declared inadmissible a submission, in which an individual had complained that criminal proceedings against him had been too lengthy and that they, as well as a warrant for his arrest, had been unjustified. In rejecting the claim, the Constitutional Court held that, in respect of the criminal proceedings as such, it was for the applicant first to seek redress from the investigator or the supervising prosecutor by the means available under the CCP and, as the case might be, also from a higher level of the PPS by means available under the PPS Act.", "As to the arrest warrant, it was for the applicant to assert his rights before the ordinary courts. 137. In a decision of 20 November 2002 (in case no. I. ÚS 143/02) the Constitutional Court declared inadmissible a complaint under Article 127 of the Constitution, in which an individual had contested the way the PPS had handled his complaint concerning interference with his correspondence by prison authorities. In rejecting the complaint, the Constitutional Court held that, by virtue of the rule of exhaustion of remedies, it was for the complainant, prior to claiming protection from the Constitutional Court, first to seek it from a higher level of the PPS by means of a repeated petition under section 34(1) of the Public Prosecution Service Act.", "138. In a decision of 2 July 2003 (in case no. III. ÚS 155/03) the Constitutional Court declared inadmissible a complaint under Article 127 of the Constitution in which an individual had contested a decision of the PPS quashing a previous decision of an investigator to restore to the applicant cash and objects retained in the context of criminal proceedings against him. In rejecting the complaint, the Constitutional Court held that, by virtue of the rule of exhaustion of remedies, it was for the complainant, prior to claiming protection from the Constitutional Court, first to seek it from a higher level of the PPS by means of a petition under section 31 of the PPS Act, irrespective of the fact that the decision was not subject to appeal under the CCP.", "139. In a decision of 28 April 2004 (in case no. III. ÚS 127/04) the Constitutional Court declared inadmissible a complaint under Article 127 of the Constitution, in which an individual had contested a decision by the PPS to reject an interlocutory appeal by the complainant against a decision of a lower level of the PPS to discontinue proceedings in the complainant’s criminal complaint concerning an alleged violation of the privacy of a home. In that case, the interlocutory appeal had been rejected because, being in the procedural position of a victim, the complainant had no standing to appeal.", "In rejecting the complaint, the Constitutional Court held that, by virtue of the rule of exhaustion of remedies, it was for the complainant, prior to claiming protection from the Constitutional Court, first to seek a review of the decision at the highest level of the PPS, that is to say the Prosecutor General, under sections 31 to 36 of the PPS Act. At the same time, the Constitutional Court observed that no grounds had been established for exempting the complainant from the obligation to use that remedy. 140. The principles stemming from the Constitutional Court’s decisions mentioned above were applied mutatis mutandis in the Constitutional Court’s subsequent decisions of 26 May 2004 (in case no. IV.", "ÚS 179/04) and 24 May 2007 (in case no. IV. ÚS 126/07). 141. Meanwhile, on 7 July 2006 (in case no.", "II. ÚS 223/06), the Constitutional Court declared inadmissible a complaint under Article 127 of the Constitution of 14 June 2006, in which a group of individuals had contested the outcome of the proceedings concerning their criminal complaint of an alleged abuse of official authority in connection with the termination of their service in the police. The Constitutional Court observed that the complainants’ criminal complaint had been rejected on 21 July 2005 and that their interlocutory appeal to the PPS had been dismissed on 29 September 2005. The Constitutional Court found that, as the constitutional complaint had been lodged on 14 July 2006, it had clearly been lodged outside the statutory two-month time-limit for lodging such a complaint. The Constitutional Court held that the position had not been altered by the subsequent decisions at a higher level of the PPS to dismiss the complainants’ petition and repeated petition for re‑examination of the lawfulness of the decision of 29 September 2005.", "In reaching that conclusion, the Constitutional Court observed that the complainants’ petition and repeated petition had been aimed at having a complaint in the interest of law (sťažnosť pre porušenie zákona) lodged by the Prosecutor General on their behalf, which was however an extraordinary remedy, and a negative decision: accordingly it did not restart the running of the two-month time-limit. F. Criminal Code (as in force at the relevant time) 142. The offence of violence against a group of citizens and against an individual is defined in Article 196, the relevant part of which reads as follows: “1. He who threatens a group of citizens with killing, causing bodily harm or causing damage on a large scale (škoda veľkého rozsahu) shall be punished by imprisonment for up to one year. 2.", "He who perpetrates violence against a group of citizens or an individual or threatens them with death, causing bodily harm or causing damage on a large scale on account of political belief, nationality, race, affiliation to an ethnic group, religion or because they are without religion, shall be punished by imprisonment for up to two years.” 143. The offence of causing bodily harm is defined in Article 221, the relevant part of which provides that: “1. He who intentionally causes bodily harm to another’s health shall be punished by imprisonment for up to two years or by a financial penalty.” 144. Article 238 defines the offence of violating the privacy of a home, its relevant part reading as follows: “1. He who enters a house or a flat of another without authority to do so or remains there unauthorised shall be punished by imprisonment for up to two years or by a financial penalty... 3.", "The perpetrator who, in committing the act referred to in section 1, applies violence or a threat of immediate violence and commits such an act with a weapon or with at least two others shall be punished by imprisonment for between one year and five years. 145. The offence of criminal damage is defined in Article 257, the relevant part of which provides that: “1. He who destroys, damages or makes unusable something belonging to someone else and thereby causes a non-negligible damage (škoda nie nepatrná) to someone else’s property shall be punished by imprisonment for up to one year or interdiction of an activity or a financial penalty or forfeiture of an item of property.” III. RELEVANT INTERNATIONAL PRACTICE A.", "The Committee on the Elimination of Racial Discrimination 1. Anna Koptova v. Slovak Republic, Communication No. 13/1998, U.N. Doc. CERD/C/57/D/13/1998 (2000). 146.", "The communication was considered by the Committee in an Opinion adopted at its meeting on 8 August 2000. 147. The case concerned difficulties that the petitioner and several other families, being of Roma ethnic origin, had been experiencing with settling down and establishing a home and, in particular, two municipal resolutions forbidding the families in question from settling in the villages concerned and threatening them with expulsion. The petitioner unsuccessfully complained about the municipal resolutions before the Constitutional Court and a criminal investigation into the matter was suspended, by a decision of the PPS. 148.", "In defending the case, the State party concerned argued, inter alia, that the petitioner had the opportunity to contest the decision to suspend the investigation under the PPS Act of 1996 (see paragraph 131 above) and to assert her rights by way of an action for protection of her personal integrity under Articles 11 et seq. of the Civil Code (see paragraphs 4.4 and 4.6 of the Opinion). 149. The Committee, however, “did not share the State party’s view that domestic remedies had not been exhausted and considered that neither a new petition to the Constitutional Court nor a civil action would be effective remedies in the circumstances of the case” (see paragraph 6.4 of the Opinion). 2.", "Miroslav Lacko v. Slovak Republic, Communication No. 11/1998, U.N. Doc. CERD/C/59/D/11/1998 (2001) 150. The communication was considered by the Committee in an Opinion adopted at its meeting on 9 August 2001. 151.", "The case concerned a Slovak national, who had been refused service in a restaurant and was told to leave on account of his Roma ethnic origin, and an alleged failure by the State party to sanction or remedy this treatment. Following investigation upon the petitioner’s criminal complaint in that respect, the police found that there was no evidence that any criminal offence had been committed. Upon the petitioner’s appeal to the PPS, the decision was upheld. 152. In defending the case, the State party concerned argued, inter alia, that the petitioner had the opportunity to seek a review of the lawfulness of the position taken by the public prosecution service at a higher level in that body under the PPS Act of 1996 (see paragraph 131 above) and of asserting his rights by way of an action for protection of his personal integrity under Articles 11 et seq.", "of the Civil Code (see paragraphs 4.1 and 4.2 of the Opinion). 153. In response, the Committee observed that Article 14 § 7 (a) of the International Convention on the Elimination of All Forms of Racial Discrimination provides that the Committee is not to consider any communication unless it has ascertained that all available domestic remedies have been exhausted and that it has held in its previous jurisprudence that a petitioner is only required to exhaust remedies that are effective in the circumstances of the particular case (see paragraph 6.2 of the Opinion). 154. Furthermore, the Committee noted that “the decision of the [PPS] was a final decision as far as the criminal procedure was concerned.", "The State party [had] failed to demonstrate that a petition for review, which would be a remedy against the legality of the decision, could in the present case [have] [led] to a new examination of the complaint”. Furthermore, the Committee found that “the facts of the claim were of such a nature that only criminal remedies could constitute an adequate avenue of redress. The objectives pursued through a criminal investigation could not be achieved by means of civil or administrative remedies of the kind proposed by the State party”. Therefore, the Committee found that “no other effective remedies were available to the petitioner” (see paragraph 6.3 of the Opinion). B.", "The Committee against torture Henri Unai Parot v. Spain, Communication No. 6/1990, U.N. Doc. A/50/44 at 62 (1995) 155. The communication was considered by the Committee at its meeting on 2 May 1995. Among the views it adopted, in the relevant part of their paragraph 6.1, dealing with the requirement of exhaustion of domestic remedies, the Committee: “considered that, even if these attempts to engage available domestic remedies may not have complied with procedural formalities prescribed by law, they left no doubt as to [the alleged victim’s] wish to have the allegations investigated.", "The Committee concluded that, in the circumstances, it was not barred from considering the communication.” THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTION 156. The Government objected that the applicants had failed to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention in that they should have, but had not, asserted their Convention rights by way of threefold remedies, which are dealt with below in turn. A. CCP and PPS Act 1. The Government 157.", "In their observations on the admissibility and merits of the application, the Government contended that the applicants, Mr Martin Kočko, Ms Žaneta Kokyová, Mr Milan Baláž, Ms Renáta Kokyová, Ms Ružena Kokyová, Ms Renáta Čonková, Ms Justina Lacková and Mr Ján Koky Jr. had not sought review of the actions of the DPI by the PPS under Article 167 of the CCP. Should they have been unsuccessful with asserting their rights by means of such a review, it was open to them further to seek review of the lawfulness of the actions of the DPI and even of the PPS by way of a petition and, as the case may be, a renewed petition to higher levels of the PPS under sections 31 et seq. of the PPS Act. 158. As regards applicants Mr Ján Koky and Mr Rastislav Koky, the Government submitted that, although the District Prosecutor had declared their interlocutory appeals against the DPI’s decisions to suspend the investigation inadmissible, the District Prosecutor had actually examined the decisions, quashing the former and remedying the situation.", "159. As in their original observations, in their further observations on the merits the Government relied on the decision of the Constitutional Court of 23 October 2002. 160. In the latter observations, the Government submitted that none of the applicants had availed themselves of the remedy available to them under Article 167, in conjunction with Article 174 § 2 (a) and (c) of the CCP, namely a request to the PPS for review of actions of the DPI. 161.", "As regards applicants Mr Ján Koky and Mr Rastislav Koky, the Government pointed out that the District Prosecutor had never made any pronouncement to the effect that they were not entitled to the remedies under section 31 et seq. of the PPS Act and that, quite to the contrary, the District Prosecutor had dealt with their interlocutory appeals as provided for under section 31 of the PPS Act. It was nevertheless open to them to pursue their rights further by means of a renewed petition under section 34 of the PPS Act. 162. In support of the above contentions, the Government relied on the case-law of the Constitutional Court, as summarised above, and submitted that none of these remedies had been subject to a time-limit and that, as the investigation had not been terminated but only suspended, the remedies were all still at the applicants’ disposal 2.", "The applicants 163. The applicants considered that, in view of the gravity of the case, rather than dwelling on the procedural intricacies of various remedial mechanisms, the respondent State should have addressed the situation proactively and on its own initiative. 164. The applicants further submitted that if there were several avenues of redress at their disposal they should not be required to try more than one of them. 165.", "The applicants also submitted that, in so far as applicants Mr Ján Koky and Mr Rastislav Koky were concerned, their interlocutory appeals under the CCP had been rejected on account of their lack of standing to appeal, the respective decisions informing them that no further appeal was available as, indeed, was the case under the CCP, to disprove which the Government had submitted nothing in terms of jurisprudence or otherwise. 166. As regards the remaining applicants, it was submitted that they were in an identical position to applicants Mr Ján Koky and Mr Rastislav Koky and that, accordingly, any remedies on their part would be bound to meet with the same result as those of Mr Ján Koky and Mr Rastislav Koky. 167. In the applicants’ submission, the Government had failed to substantiate that, in the circumstances, any further submission to the PPS had had better prospects of success than those already made.", "In that context, the applicants pointed out that, at the relevant time, the PPS Act had been a relatively new piece of legislation with no existing case-law, to the effect that the remedies referred to by the Government were to be exhausted prior to the lodging of a complaint with the Constitutional Court. The Constitutional Court’s decision of 20 November 2002 (see paragraph 137 above) and any of its subsequent decisions in similar matters, as relied on by the Government, post-dated the applicants’ constitutional complaint and were accordingly not of relevance. 3. The Court’s assessment 168. The Court observes that, in its admissibility decision in the present case, it decided to join to the merits the question of the exhaustion of domestic remedies under Article 167 of the CCP and section 31 et seq.", "of the PPS Act. It will accordingly proceed to examination of this question, relying on the general principles and applying them as laid out below under separate headings. (a) General principles 169. The Court reiterates the following general principles, which are of relevance in this case, as formulated and summarised, for example, in its judgment in the case of Akdivar and Others v. Turkey ([GC], 16 September 1996, §§ 65 - 69, Reports of Judgments and Decisions 1996‑IV): - The rule of exhaustion of domestic remedies 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. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system.", "The rule is based on the assumption, reflected in Article 13 of the Convention, with which it has close affinity, that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. - Under this 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. 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. - The rule also requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used.", "- However, as indicated above, there is no obligation to have recourse to remedies which are inadequate or ineffective. In addition, according to the “generally recognised rules of international law” there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal. The rule is also inapplicable where an administrative practice consisting of a repetition of acts incompatible with the Convention and official tolerance by the State authorities has been shown to exist, and is of such a nature as to make proceedings futile or ineffective. - 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 in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints, and offered reasonable prospects of success.", "However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement. - The application of the rule 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 set up. Accordingly, it has recognised that it 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; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case. This means amongst other things that it 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.", "170. Moreover, as further formulated and summarised by the Court, for example, in the case of Mađer v. Croatia (no. 56185/07, § 87, 21 June 2011): - Where an applicant has a choice of domestic remedies, it is sufficient for the purposes of the rule of exhaustion of domestic remedies that he or she make use of a remedy which is not unreasonable and which is capable of providing redress for the substance of his or her Convention complaints. - Indeed, where an applicant has a choice of remedies and their comparative effectiveness is not obvious, the Court interprets the requirement of exhaustion of domestic remedies in the applicant’s favour. - Once the applicant has used such a remedy, he or she cannot also be required to have tried others that were available but probably no more likely to be successful.", "(b) Application of the general principles in the present case 171. As to the circumstances of the present case, the Court reiterates first of all that it has been recognised that the Constitutional Court is the supreme authority for the protection of human rights and fundamental freedoms in Slovakia, and that it has jurisdiction to examine individual complaints and to afford complainants redress if appropriate (see, mutatis mutandis, Lawyer Partners, a.s. v. Slovakia, nos. 54252/07, 3274/08, 3377/08, 3505/08, 3526/08, 3741/08, 3786/08, 3807/08, 3824/08, 15055/08, 29548/08, 29551/08, 29552/08, 29555/08 and 29557/08, § 45, ECHR 2009-..., with further references). 172. The applicants in the present case resorted to the Constitutional Court by way of an individual complaint under Article 127 of the Constitution.", "173. As regards the scope of their constitutional complaint, the Court observes that the applicants mainly contended that the events of 28 February 2002 had not been thoroughly and efficiently investigated so as to ensure that those responsible were identified and punished (see paragraph 109 above), making reference to Article 1 § 2 of the Constitution, the principle of “general acceptance and observance of human rights and basic freedoms for everybody”, Articles 5 § 1 and 13 of the Convention and the Court’s judgment in the case of Aksoy v. Turkey (cited above) (see paragraph 110 above), and in the summary of their claim seeking a finding of a violation of Article 13 of the Convention and Article 46 § 1 of the Constitution (see paragraph 111 above). 174. The Court is of the view that the scope of the applicants’ constitutional complaint has to be viewed in the context of the proceedings, in which Articles 5, 6, 8, 13 and 14 of the Convention, 1 of Protocol No. 1 and 15 and 21 of the Constitution were cited (see paragraph 97 above).", "175. Bearing in mind that the Convention is intended to guarantee rights that are not theoretical or illusory, but rights that are practical and effective (see, for example, Matthews v. the United Kingdom [GC], no. 24833/94, § 34, ECHR 1999-I), the Court is of the view that, on the particular facts of the present case, the scope of the applicants’ constitutional complaint was such as to allow the Constitutional Court to examine the matters now arising before the Court. 176. At the same time, the Court points out that the circumstances of the present case differ from those where a particularly strict interpretation and application by the Constitutional Court of the formal rules on the scope of the constitutional complaint were held acceptable in Convention terms in the context of the length of proceedings (see, for example, Obluk v. Slovakia, no.", "69484/01, §§ 48, 51 and 61, 20 June 2006; Šidlová v. Slovakia, no. 50224/99, § 53, 26 September 2006; Mazurek v. Slovakia (dec.), no. 16970/05, 3 March 2009; and STARVYS, s.r.o. v. Slovakia (dec.), no. 38966/03, 30 November 2010).", "177. The Court however observes that the applicants’ constitutional complaint was declared inadmissible on 23 October 2002 under section 53(1) of the Constitutional Court Act, on the ground that the applicants had failed to exhaust ordinary remedies (see paragraph 112 above) under Articles 167 and 174 § 2 (a) and (c) of the CCP and sections 31 et seq. of PPS Act (see paragraphs 113 above). 178. To that end, the Court acknowledges that it is first of all for the national authorities to devise means and methods of examining individual complaints so as to render the protection of the individual rights effective (see Gál v. Slovakia, no.", "45426/06, § 65, 30 November 2010, and Michalák v. Slovakia, no. 30157/03, § 176, 8 February 2011). More specifically, the Court acknowledges that, in line with the subsidiary role of its jurisdiction, it is first of all for the Constitutional Court to interpret and apply the rules on admissibility of individual complaints before it. 179. Nevertheless, it remains the Court’s task to satisfy itself in each individual case whether the protection of the applicant’s rights granted by the national authorities is comparable with that which the Court can provide under the Convention (see, mutatis mutandis, Bako, cited above; Gál, cited above, § 66; and Michalák, cited above, § 177).", "More specifically, the Court considers that, in the circumstances of the present case, it remains to be ascertained whether there is anything more for the applicants to do in order to satisfy the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention. 180. In that respect, the Court considers that it is reasonable to assume that the applicants were victims of criminal offences. In that capacity, they became involved in criminal proceedings against one or more persons unknown which, at the given stage, were aimed at investigating the relevant facts and establishing the identity of the perpetrators. 181.", "The Court also observes that the procedural framework for those proceedings and the applicants’ role and legal position as victims in them were defined by the provisions of the CCP. It was among other things the purpose of those proceedings to establish the facts and to identify and punish the perpetrators (see paragraph 21 above). Being considered victims of the alleged offences, the applicants had an array of procedural rights (see paragraph 123 above) which included, inter alia, that their submissions be assessed as to content irrespective of their name or form (see paragraph 124 above) and that the applicants be informed on available remedies (see paragraph 125 above). 182. The Court notes that the orders to suspend the proceedings were taken in the procedural form of a decision (uznesenie), that they were then challenged by applicants Mr Ján Koky and Mr Rastislav Koky by way of an interlocutory appeal to the PPS, and that these appeals were rejected for the appellants’ lack of standing to appeal.", "183. At the same time, the Court notes that the decisions rejecting these appeals expressly stated that, as indeed appears to be the case under the relevant provisions of the CCP, no further interlocutory appeal was permissible and that they contained no instructions about any other remedy. None the less, the PPS on its own initiative reviewed the contested situation in the light of the appellants’ arguments, in which ultimately it found no merit. 184. The Court also observes that nothing has been proposed by the Government or established by the Court otherwise to suggest that the position of the remaining applicants in respect of the remedies used by applicants Mr Ján Koky and Mr Rastislav Koky was such as to support a conclusion that the use of these remedies by them had better chances of success than those of applicants Mr Ján Koky and Mr Rastislav Koky.", "The Court accordingly finds no reason for considering the remaining applicants in relation to the exhaustion requirement under Article 35 § 1 of the Convention differently from applicants Mr Ján Koky and Mr Rastislav Koky. 185. As to the specific remedies referred to by the Government, that is to say those under Article 167 of the CCP and sections 31 et seq. of the PPS Act, the Court observes that there appears to be a degree of uncertainty as to the functioning of the system in respect of the various remedies available in the applicants’ situation and their mutual causal and functional relationship. 186.", "The Court notes that this uncertainty has been enhanced by what may appear to be a certain incongruity in the relevant part of the Government’s argumentation in their observations on the admissibility and merits of the case and in their further observations on its merits. In particular, in the former observations, the Government appear not to have intended to reproach Mr Ján Koky and Mr Rastislav Koky for not having resorted to the remedy under Article 167 of the CCP, whereas in their latter observations they may be understood as arguing that none of the applicants, that is to say including Mr Ján Koky and Mr Rastislav Koky, have. 187. The lack of clarity as to the procedural regime in which the PPS examined the arguments of applicants Mr Ján Koky and Mr Rastislav Koky, presented in their inadmissible interlocutory appeals, and any relationship of causality between their arguments and the continuation of the investigation under the order of the District Prosecutor of 3 May 2002, is further enhanced by the fact that the District Prosecutor’s decision on a written reply to the interlocutory appeal, which had been lodged on the same day as the order, was not made until 22 May 2002, which was after the order in question, and that neither the order nor the decision to resume the investigation appear to make any reference to the interlocutory appeal. 188.", "However, judging the submissions of applicants Mr Ján Koky and Mr Rastislav Koky of 3 May and 3 July 2002 by their content, which the District Prosecutor appears also to have been duty bound to do, and having regard to the District Prosecutor’s response to these submissions as well as the Government’s original observations on the admissibility and merits of this case, the Court finds that the applicants cannot be considered as having failed to make use of the remedy available to them under Article 167 of the CCP. 189. Turning to the remedies under sections 31 et seq. of the PPS Act, the Court considers it of relevance at the outset to evaluate the purpose of this piece of legislation, which is to determine the status and jurisdiction of the PPS, the status and jurisdiction of the Prosecutor General, the status of other prosecutors and organisation and administration of the PPS (see paragraph 132 above). In other words, it appears to be primarily a tool of internal organisation of the PPS, rather of granting and regulating individual rights of substance or procedure, which in turn appears to be a matter to be addressed by the relevant procedural codes.", "190. As to the case-law of the Constitutional Court concerning the interpretation and application of the exhaustion of ordinary remedies in respect of the remedies under sections 31 et seq. of the PPS Act, the Court observes that, except for the Constitutional Court’s decision of 13 December 2001, all the other decisions relied on by the Government post-date the applicants’ constitutional complaint. 191. As regards the decision of 13 December 2001, which does make reference to the remedies under sections 31 et seq.", "of the PPS Act, the Court considers it noteworthy that this decision was taken in respect of a legally undefined “motion” in a legal regime which preceded the current one, in which a complaint under Article 127 of the Constitution is considered to be an effective remedy for the purposes of Article 35 § 1 of the Convention, and which has existed under a constitutional amendment of 2001 with effect from 1 January 2002 (see Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01 and 60226/00, ECHR 2002‑IX). In addition, in the situation complained of by that “motion”, before bringing an action with the Constitutional Court the complainant had exhausted no remedies at all. The Court considers that these differences distinguish the present case from that examined by the Constitutional Court on 13 December 2001. 192.", "The Court therefore concludes that there was not sufficient support in the domestic law and practice at the relevant time for the conclusion that, for the purposes of Article 35 § 1 of the Convention, the applicants were required to resort to the remedies under sections 31 et seq. of the PPS Act. 193. Moreover, and in any event, noting that the applicants in fact did address the Prosecutor General with a submission clearly aimed at ensuring that their case was handled with the necessary care and attention, that it is not disputed that the PPS has received this submission (see paragraph 99 above), and that nevertheless no attention at all appears to have been given to it, the Court finally concludes that there is no scope for rejecting the application under Article 35 § 1 of the Convention in connection with the remedies under sections 31 et seq. of the PPS Act.", "194. As regards the remedies under sections 31 et seq. of the PPS Act, and whether the present case bears any apparent resemblance to that of Zubaľ v. Slovakia (no. 44065/06, § 13 and 33, 9 November 2010), the Court points out that they differ in a number of aspects, including that the proceedings in the present case were aimed at investigating allegedly unlawful actions by private individuals and not by agents of the State; that the unlawful actions investigated in the present case were of a significantly greater gravity compared to the case of Zubaľ , the substantive complaint in which concerned solely Article 8 of the Convention. Further, as observed in the previous paragraph, the applicants in the present case in fact arguably did raise their arguments with the PPS prior to the introduction of their constitutional complaint.", "195. In reaching the conclusions in paragraphs 192 and 193 above, the Court has also taken into consideration the applicants’ personal circumstances, the fact that rights as fundamental as those under Article 3 of the Convention (see below) are at stake, and that the Convention is intended to guarantee rights that are not theoretical or illusory but rights that are practical and effective. 196. Lastly, the Court observes that its conclusions in this respect are in consonance mutatis mutandis with relevant international jurisprudence as cited above. 197.", "The first limb of the Government’s preliminary objection therefore cannot be sustained. B. Protection of personal integrity 198. In their observations on the admissibility and merits of the application, as regards the complaint under Article 14 of the Convention, the Government contended, in reliance on Article 35 § 1 of the Convention, that the applicants should have asserted their rights by means of an action for protection of personal integrity under Articles 11 et seq. of the Civil Code, but had not done so.", "199. The Court will deal with this matter below together with the merits of the Article 14 complaint. C. Other objections 200. In their observations on the merits of the case, the Government added further objections of non‑exhaustion of domestic remedies. In particular, they submitted that the scope of the applicants’ complaints to the Court was not identical to those asserted before the Constitutional Court; that the action for protection of personal integrity was a remedy to be exhausted in respect of all of the applicants’ complaints, and that an action against the State for damages under section 78 of the Police Act (Law no.", "171/1993 Coll., as amended) was an effective further remedy at the applicants’ disposal. In that respect, the Government relied on the Court’s decision in (see Baláž and Others v. Slovakia (dec.), no. 9210/02, 28 November 2006). 201. The Court reiterates that, pursuant to Rule 55 of the Rules of Court, “any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application submitted as provided in Rule 51 and 54, as the case may be”.", "202. It has neither been argued by the Government, nor otherwise established by the Court that it was not possible for the Government to raise these new objections at the admissibility stage. They are accordingly estopped from raising them now (for recapitulation of the applicable principles see, for example, Mooren v. Germany [GC], no. 11364/03, §§ 57‑59, ECHR 2009-...). II.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 203. Alleging that there had been systematic discrimination and racist attacks against Roma in Slovakia, combined with a general failure of the State authorities properly to investigate and prosecute such crimes, the applicants complained that they had been subjected to violence amounting to torture and inhuman and degrading treatment and that the Slovakian authorities had failed to carry out a prompt, impartial and effective official investigation into the case. On that account, the applicants alleged a violation of Article 3 of the Convention, which provides that: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Arguments of the parties 204. The applicants objected that the DPI had only questioned three of some thirty suspected perpetrators and that they had only questioned them once, at the beginning of the investigation.", "The applicants also contended that none of the suspects had been re-interviewed after the identity exercise and despite the information it had established. Furthermore, the applicants suggested that the DPI had failed to take any new oral depositions after the second investigation had been opened pursuant to the District Prosecutor’s instructions. 205. The Government responded by pointing out that except for Mr Ján Koky, Mr Martin Kočko and Mr Rastislav Koky the applicants had not been exposed to direct physical attack and that it had only been applicants Mr Martin Kočko and Mr Rastislav Koky who had sustained any bodily injuries, the actual extent of which was, however, debatable. They submitted that any mental distress caused to the remaining applicants and, in particular Ms Renáta Čonková (see paragraph 34 above) and Ms Justína Lacková (see paragraph 59 above) had not reached the Article 3 threshold.", "206. Moreover, and in any event, referring to the facts of the case, the Government opposed the applicants’ factual assertions, emphasised that the investigation had been supervised by the PPS and also by the Ministry of the Interior, and considered that it had been carried out in full compliance with Convention principles. 207. As to the applicants’ specific objections, the Government submitted that P.S. and M.S.", "had been repeatedly questioned as suspects and that a number of investigative actions had been taken between 3 May and 26 June 2002. Furthermore, the investigation had not been terminated, but merely stayed, and further investigative actions had been and still could be taken with a view to further establishing the relevant facts, even after the second suspension. 208. In so far as any racial motive might have been at the heart of the incident, the Government considered that the investigation had been adequately refocused as soon as allegations to that effect surfaced in the interviews of 20 March 2002. In that context, however, the Government pointed out that in the applicants’ submissions immediately after the incident there had been no sign of any racial slurs on the part of the attackers, in view of which the Government considered remarkable the applicants’ later detailed accounts of rather expressive alleged racial affronts.", "209. In reply, the applicants emphasised the physical injuries sustained by Mr Martin Kočko and Mr Rastislav Koky and the humiliation, fear, stress and trauma sustained by all of them. These repercussions had been aggravated by the presence of women and children at the scene of the incident and by its blatantly racial and derogatory nature. Accordingly, in the applicants’ submission, the seriousness of the treatment to which they had been exposed had reached the threshold of Article 3 of the Convention. 210.", "As to the investigation itself, the applicants asserted that, although they had been in a particularity vulnerable position and it had accordingly been the responsibility of the State authorities to proceed proactively and on their own initiative, the authorities had made it necessary for the applicants to press for the investigation to proceed and that all the authorities had done was make an inquiry of a purely formal nature. B. The Court’s assessment 1. General principles 211. The Court reiterates that Article 3 of the Convention must be regarded as one of the most fundamental provisions of the Convention and as enshrining the core values of the democratic societies making up the Council of Europe (see Pretty v. the United Kingdom, no.", "2346/02, § 49, ECHR 2002-III). In contrast to the other provisions in the Convention, it is cast in absolute terms, without exception or proviso, or the possibility of derogation under Article 15 of the Convention (see, inter alia, Chahal v. the United Kingdom, judgment of 15 November 1996, § 79, Reports of Judgments and Decisions 1996-V). 212. The Court also reiterates that the ill-treatment suffered must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Price v. the United Kingdom, no.", "33394/96, § 24, ECHR 2001 VII). 213. It is further to be reiterated that, in general, actions incompatible with Article 3 of the Convention primarily incur the liability of a Contracting State if they were inflicted by persons holding an official position. However, the absence of any direct State responsibility for acts of violence that meet the condition of severity such as to engage Article 3 of the Convention does not absolve the State from all obligations under this provision. The obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, also requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment administered by other private persons (see, for example, Milanović v. Serbia, no.", "44614/07, § 83, 14 December 2010, and Denis Vasilyev v. Russia, no. 32704/04, § 98, 17 December 2009, with further references). 214. The Court further reiterates that where an individual raises an arguable claim that he has been seriously ill-treated in breach of Article 3, that provision, read in conjunction with Article 1 of the Convention, requires by implication that there should also be an effective official investigation capable of leading to the identification and punishment of those responsible (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII). A positive obligation of this sort cannot, in principle, be considered to be limited solely to cases of ill-treatment by State agents (see M.C.", "v. Bulgaria, no. 39272/98, § 151, ECHR 2003‑XII, and Šečić v. Croatia, no. 40116/02, § 53, 31 May 2007). 215. Even though the scope of the State’s procedural obligations might differ between cases where treatment contrary to Article 3 has been inflicted through the involvement of State agents and cases where violence is inflicted by private individuals, the requirements as to an official investigation are similar.", "For the investigation to be regarded as “effective”, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The investigation must be independent, impartial and subject to public scrutiny and that the competent authorities must act with diligence. Among other things, they must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, a detailed statement concerning the allegations from the alleged victim, eyewitness testimony, forensic evidence and, where appropriate, additional medical reports. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard, and a requirement of promptness and reasonable expedition is implicit in this context (see, for example, Beganović v. Croatia, no.", "46423/06, § 75, 25 June 2009, and Denis Vasilyev, cited above, § 100 with further references). 2. Application of the general principles to the present case (a) Was there ill-treatment within the meaning of Article 3 of the Convention? 216. The Court observes that, in the present case, it has not been disputed between the parties that a group of persons, some of whom were wearing balaclavas and armed with baseball bats and iron bars, entered the settlement where the applicants lived and engaged there in a disturbance involving direct physical assault on applicants Mr Ján Koky, Mr Martin Kočko and Mr Rastislav Koky, and causing bodily harm to the latter two.", "And neither has it been disputed that the attackers caused damage to the exterior of houses nos. 61, 67 and 69, forcibly entered houses nos. 61 and 67, and inflicted further damage to the furniture and equipment inside the latter. 217. Where however there appears to be a degree of disagreement between the parties is the number of attackers, the extent and nature of the injuries to applicants Mr Martin Kočko and Mr Rastislav Koky, the extent of the damage inflicted upon the applicants’ property, and the racial slurs uttered by the attackers.", "218. The number of the attackers varies between twelve, as in the official documentation (see paragraph 11 above), and fifty, as submitted by one of the witnesses (see paragraph 43 above). 219. As regards the injuries suffered by applicant Mr Rastislav Koky, the applicants’ submission points to a skull fracture, a cut to the left side of the back of the head, a crushed left arm, pressure injury to the left side of the back and bruises on the left knee, which necessitated hospitalisation of ten to fourteen days while the Government assert that he was hospitalised for no more than three to four days. 220.", "In the case of applicant Mr Martin Kočko, the applicants’ submission has been that he suffered a scraped elbow with a pressure injury on the right side, needing recovery time of seven to ten days, the Government submitting that his injuries did not merit a stay in hospital. 221. In any event, there has not been any dispute that the injuries sustained by applicants Mr Rastislav Koky and Mr Martin Kočko required treatment in hospital, where they had to be taken by ambulance. 222. The Court considers however that, in the assessment of the gravity of these injuries and any damage to property from the perspective of the threshold of Article 3 of the Convention, apart from the damage itself, regard has to be had to the overall context of the attack.", "223. From that perspective, the Court observes that the incident took place at night time and in a Roma settlement, and that it involved a group of partly armed and masked men who forcibly invaded the applicants’ home and privacy; moreover, damage was caused to the applicants’ property and there was a physical confrontation inside the applicants’ home as well as outside. 224. Furthermore, it has been submitted by the applicants and not rebutted by the authorities that the incident was marked by verbal threats and imprecations affronting the applicants’ ethnic dignity. 225.", "In view of the above-mentioned considerations, the Court concludes that there can be no doubt that the treatment the applicants were exposed to at the hands of private individuals fell within the purview of Article 3 of the Convention (see, for example, Beganović, cited above, § 68). (b) Was the investigation compatible with Article 3 of the Convention? 226. The Court observes that the investigation under review was twice suspended, the former suspension being lifted and the latter being upheld. Investigative actions were thus taken in periods before its first suspension, between the two suspensions and after the second suspension.", "For the sake of clarity, the Court will review these periods and the investigative actions taken in them below, in turn. 227. In the first segment, the police inspected the crime scene and, in particular, the three houses which had been damaged, the inspection having produced, inter alia, two biological traces. Applicant Mr Ján Koky was interviewed three times, applicant Mr Ján Koky Jr. once and the remaining applicants twice. 228.", "The DPI also interviewed the waitress I.S., her two sons P.S. and M.S. and the former’s girlfriend, E.N. 229. Furthermore, three witnesses (Z.K., H.B.", "and J.K.) were interviewed twice and three others (T.K., M.K. and P.J.) once. 230. In addition, an identity exercise took place and the Government submitted that transcripts of the incoming and outcoming mobile phone communications of I.S., M.S., P.S.", "and E.N. had been requested. 231. Lastly, at this stage of the investigation, the DPI procured and obtained analysis of biological material from three people (B.B., V.P. and E.K.)", "with reference to biological traces from the crime scene. 232. In the period between the two suspensions, the DPI re-interviewed P.S. and M.S. and interviewed the third son of I.S., F.S., and M.N., as well as nine other individuals (M.L., E.K., R.S., I.K., J.H., M.K., J.K., P.P.", "and B.P. ), all of whom consented to provide biological material for the purposes of forensic analysis, the case file containing the results of the analysis in respect of M.S., P.S., F.S., M.N. and M.L. only. 233.", "Finally, in the period after the second suspension, the DPI interviewed seven other individuals and had biological material analysed and compared with that from the crime scene in respect of three individuals (P.G., M.S. and M.A.). 234. In view of the above, the Court observes that, in quantitative terms, the incident at the applicants’ settlement was subject to structured and substantive investigation. However, it remains to be seen whether this investigation was indeed conducted in a determined manner and whether all was done that could reasonably have been expected to be done with a view to establishing the identity of the perpetrators and their motives and, as the case may be, to provide an adequate basis for their prosecution and punishment.", "235. In that regard, the Court observes that a crucial piece of evidentiary material secured at the crime scene appears to be the biological traces, which were later analysed and compared with biological material from the suspects. In particular, the Court observes that in the period between the two suspensions of the investigation biological material appears to have been taken for the purposes of such an analysis from the three sons of I.S. and ten other individuals. However, the results of these analyses, as submitted to the Court, pertain to the sons of I.S.", "and two others only, the results in respect of eight others being missing. 236. Furthermore, the Court observes that in suspending the investigation for the second time the authorities appear to have placed emphasis on the incongruity between the initial deposition of applicant Mr Ján Koky that he did not know the identity of one of the five assailants who was not wearing a balaclava, and his later submission during the identity parade of 10 April 2002 to the effect that he had recognised and known that assailant. However, there does not appear to have been any action taken with a view to clarifying this controversy, such as, for example, a face‑to‑face interview (konfrontácia). 237.", "Moreover, it has not escaped the Court’s attention that, although the Government submitted that records of the mobile communications of some of the involved had been requested with a view to further enlightenment of the facts, nothing has been submitted in terms of substantiation of this claim and there does not appear to have been any action taken by way of follow‑up. 238. In addition, in so far as the Government may be understood as arguing that the investigation had not been terminated, but had merely been suspended, and that, accordingly, there has not been any formal obstacle to its continuation and completion, it has to be pointed out that there is no appearance that since 13 January 2003 (see paragraph 107 above) any action has been taken to support such a submission. 239. The Court considers that these elements, coupled with the sensitive nature of the situation related to Roma in Slovakia at the relevant time (see, for example, Mižigárová v. Slovakia, no.", "74832/01, §§ 57-63, 14 December 2010 and V.C. v. Slovakia, no. 18968/07, §§ 78-84 and 146-9, 8 November 2011), are sufficient for it to conclude that the authorities have not done all that could have been reasonably expected of them to investigate the incident, to establish the identity of those responsible and, as the case may be, to draw consequences. In reaching this conclusion, the Court has taken into account the particular importance for an investigation into an attack with racial overtones to be pursued with vigour and impartiality, having regard to the need to reassert continuously society’s condemnation of racism and to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence (see, mutatis mutandis, Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V).", "240. In conclusion, the Court finds that the investigation into the incident at the applicants’ settlement cannot be considered as having been effective. Accordingly, there has been a violation of the procedural limb of Article 3 of the Convention. III. OTHER ALLEGED VIOLATIONS 241.", "The applicants also alleged that the perpetrators’ intrusion into their homes and destruction of their property, coupled with the authorities’ failure to prevent and suppress racist violence and to carry out an effective investigation, amounted to a violation of their rights under Article 8 of the Convention and 1 of Protocol No. 1. 242. On the basis of the same arguments, and in connection with their Roma ethnicity, the applicants further alleged a violation of Article 13, in conjunction with Articles 3 and 8 of the Convention, and of Article 14, in conjunction with Articles 3, 8 and 13 of the Convention. 243.", "The Court observes first of all that, as for the substance, to a significant extent the essence of these complaints overlaps with that of the complaints presented and examined above under Article 3 of the Convention. The Court finds that there is no justification for a separate examination of the same matters under any of the other Convention provisions cited. 244. Furthermore, in view of its findings in respect of the complaint under Article 3 of the Convention, the Court considers that it is unnecessary to examine the remaining complaints. This conclusion applies accordingly to the Government’s preliminary objection concerning the action for protection of personal integrity as a remedy to be used under Article 35 § 1 of the Convention in respect of the applicants’ complaint under Article 14 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 245. 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 246.", "The applicants claimed 85,300 euros (EUR) by way of compensation in respect of pecuniary damage. This amount consisted of: - EUR 7,000 in respect of damage caused to the house of applicant Mr Ján Koky; - EUR 833 in respect of earning opportunities lost by applicant Mr Ján Koky due to the time he had to dedicate to repairing his house; - EUR 667 in respect of damage caused to the house of applicant Ms Renáta Čonková; and - EUR 76,700 in respect of present and future earnings lost by applicant Mr Martin Kočko on account of his injuries. 247. The Government considered the claims overstated and unsubstantiated and pointed out that the investigation had not been terminated but merely suspended, which is why the applicants’ claim could still be pursued at the domestic level. 248.", "The Court observes first of all that the claim in respect of pecuniary damage has not been supported by any evidence. In addition, the Court finds no causal link between the damage alleged, which was essentially caused by non-State actors, and the violation found of the respondent State’s obligations under the Convention. The claim therefore has to be dismissed. 2. Non-pecuniary damage 249.", "Applicants Mr Martin Kočko and Mr Rastislav Koky claimed EUR 10,000 each in respect of non-pecuniary damage, consisting of pain, frustration, helplessness and humiliation they had suffered as a result of the beatings they had been subjected to and the deficiencies of the investigation they complained of. 250. Applicants Ms Žaneta Kokyová, Mr Milan Baláž, Ms Ružena Kokyová, Ms Renáta Čonková, Ms Justínka Lacková and Mr Ján Koky Jr. claimed EUR 5,000 each in respect of non-pecuniary damage consisting of pain, frustration, helplessness, stress and humiliation and lasting harm and emotional and mental trauma due to the attack. 251. Applicant Ms Renáta Kokyová claimed EUR 10,000 in compensation for non-pecuniary damage on account of the circumstances involving her minor children being present at and witnessing the attack.", "252. The Government opposed these claims as overstated and submitted that, should the Court find a violation of the applicants’ Convention rights, a more appropriate amount of damages should be paid. 253. The Court observes that the violation found above is of a procedural nature and that it does not concern the underlying treatment suffered by the applicants at the hands of non-State actors. It considers that, as a result of the violation found, the applicants must have sustained damage of a non-pecuniary nature.", "Having regard to the amount of their claims and ruling on an equitable basis, it awards EUR 10,000 to each of the applicants Mr Martin Kočko and Mr Rastislav Koky and EUR 5,000 to each of the applicants Ms Žaneta Kokyová, Mr Milan Baláž, Ms Renáta Kokyová, Ms Ružena Kokyová, Ms Renáta Čonková, Ms Justína Lacková, and Mr Ján Koky Jr., plus any tax that may be chargeable under that head. 254. Noting that applicant Mr Ján Koky does not appear to have made any claim in respect of non-pecuniary damage, no ruling is made in that respect. B. Costs and expenses 255.", "Lastly, the applicants claimed EUR 7,116 in respect of legal costs and EUR 62 in respect of administrative expenses incurred at the national level and before the Court. 256. Relying on the Court’s judgment in the case of Young, James and Webster v. the United Kingdom ((former Article 50), 18 October 1982, § 15, Series A no. 55), the Government submitted that effective protection of human rights required human rights lawyers to be moderate in the fees that they charged to applicants; that only reasonably incurred legal costs should be compensated, and that the remainder of the claim should be dismissed. 257.", "In accordance with the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). Furthermore, Rule 60 § 2 of the Rules of Court provides that itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part. 258. In the instant case, the Court observes that the applicants have not substantiated their claim with any relevant supporting documents establishing that they were under an obligation to pay for the costs of legal services and administrative expenses or that they have actually paid for them.", "Accordingly, the Court does not award any sum under this head (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 133-134, ECHR 2004-XI). C. Default interest 259. 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.", "Dismisses the Government’s preliminary objection in respect of the remedies under Article 167 of the Code of Criminal Procedure and sections 31 et seq. of the Public Prosecution Act; 2. Holds that, except for the remedy under Articles 11 et seq. of the Civil Code in respect of the complaint under Article 14 of the Convention, the Government are estopped from raising their remaining preliminary objections; 3. Holds that there has been a violation of Article 3 of the Convention under its procedural head; 4.", "Holds that it is not necessary to decide on the Government’s preliminary objection in respect of the remedy under Articles 11 et seq. in respect of the complaint under Article 14 of the Convention; 5. Holds that it is not necessary to decide on the merits of the remaining complaints under Article 8 of the Convention and Article 1 of Protocol No. 1; Article 13 of the Convention, in conjunction with Articles 3 and 8 of the Convention; and Article 14 of the Convention, in conjunction with Articles 3, 8 and 13 of the Convention; 6. Holds (a) that the respondent State is to pay the applicants, 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 10,000 (ten thousand euros), plus any tax that may be chargeable, to each of the applicants, Mr Martin Kočko and Mr Rastislav Koky, in respect of non-pecuniary damage; (ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, to each of the applicants, Ms Žaneta Kokyová, Mr Milan Baláž, Ms Renáta Kokyová, Ms Ružena Kokyová, Ms Renáta Čonková, Ms Justína Lacková, and Mr Ján Koky Jr., in respect of non-pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7.", "Dismisses the remainder of the applicants’ 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. Fatoş AracıNicolas BratzaDeputy RegistrarPresident A P P E N D I X LIST OF THE APPLICANTS 1. Mr Ján KOKY, born in 1959, residing in Gánovce. 2.", "Mr Martin KOČKO, born in 1985, residing in Gánovce. 3. Ms Žaneta KOKYOVÁ, born in 1984, residing in Gánovce. 4. Mr Milan BALÁŽ, born in 1978, residing in Gánovce.", "5. Mr Rastislav KOKY, born in 1982, residing in Gánovce. 6. Ms Renáta KOKYOVÁ, born in 1978, residing in Gánovce. 7.", "Ms Ružena KOKYOVÁ, born in 1959, residing in Gánovce. 8. Ms Renáta ČONKOVÁ, born in 1975, residing in Gánovce. 9. Ms Justína LACKOVÁ, born in 1968, residing in Gánovce.", "10. Mr Ján KOKY, born in 1976, residing in Poprad." ]
[ "SECOND SECTION CASE OF KEMAL KAHRAMAN v. TURKEY (Application no. 39857/03) JUDGMENT STRASBOURG 22 July 2008 FINAL 22/10/2008 This judgment may be subject to editorial revision. In the case of Kemal Kahraman 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 1 July 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 39857/03) 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 two Turkish nationals, Mr Ali Kahraman and Mr Kemal Kahraman (“the applicants”), on 17 November 2003.", "2. The applicants were represented by Mr H. Tuna, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3. The applicants alleged under Articles 3 and 6 of the Convention that they had been subjected to ill-treatment during their detention in police custody and that they had been denied a fair hearing by the Istanbul State Security Court, which tried and convicted them.", "4. On 3 October 2006 the Court declared the application partly inadmissible, particularly as regards the complaints of the first applicant, Mr Ali Kahraman, and communicated Mr Kemal Kahraman’s allegations of ill-treatment to the Government. Hereafter, only Kemal Kahraman is referred to as the applicant in the case. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant Kemal Kahraman was born in 1972 and lives in Istanbul. 6. On 10 June 1999 the applicant was arrested by police officers from the Anti-Terrorism Branch of the Istanbul Security Directorate on suspicion of membership of the IBDA-C (Great Eastern Islamic Raiders’ Front- İslami Büyükdoğu Akıncılar Cephesi). He was believed to have been involved in the bombing of bars and clubs in Istanbul on three different occasions, which had caused casualties.", "The police found instructions on how to make bombs, the necessary materials and explosives for doing so, as well as photographs in which the applicant was covered in the organisation’s flag whilst holding a Kalashnikov-type rifle, at his place of residence. The applicant claimed that during his questioning by the police officers he was blindfolded and subjected to various forms of ill-treatment. In particular, he was suspended by his arms (“reverse hanging”), hosed with cold water and beaten up by the police officers. Thereafter the applicant was made to sign statements in which he admitted the charges against him. 7.", "On 14 June 1999 the applicant was brought before the public prosecutor at the Istanbul State Security Court, where he repudiated the content of his police statements, alleging that they had been extracted from him under torture. 8. On the same day, the applicant was examined by a doctor at the Istanbul Forensic Medicine Institute. The medical report recorded a bruise of 2 cm on his left upper leg, a bruise of 1.5 cm on the inner part of his right upper arm, a hyperaemic[1] area of 2cm on the right elbow, a bruise of 1.5 cm on the inner part of the left upper arm, a scab-covered lesion of 1 cm on the left elbow, and a complaint of pain in the back and arms. In her report the doctor also noted the applicant’s complaints that he had been suspended by his arms, beaten up and threatened during his detention in police custody.", "She thus concluded that the applicant had been subjected to physical violence which rendered him unfit for work for two days. The applicant was then brought before the investigating judge, who ordered his pre-trial detention. 9. On 18 September 1999 the Chief Public Prosecutor filed a bill of indictment with the Istanbul State Security Court, accusing the applicant of membership of the IBDA-C. The Public Prosecutor sought the death penalty, under Article 146 § 1 of the Criminal Code, on account of the applicant’s participation in that organisation’s activities, and his aim to undermine the constitutional order of the State and to replace it with a theocratic regime.", "10. In the course of the criminal proceedings, the applicant applied to the Istanbul State Security Court, alleging that he had been tortured during his detention in police custody. He protested his innocence and stated that he had been forced under torture to sign statements which he had not seen, including the report on the search of his home, and that the materials allegedly found at his home did not belong to him. 11. In his defence submissions dated 21 May 2002, the applicant’s lawyer referred to the medical report of 14 June 1999 indicating signs of ill-treatment, and asked the Istanbul State Security Court to acquit his client for lack of evidence.", "12. On 1 October 2002 the State Security Court found the applicant guilty as charged. The court relied on the evidence gathered by the police from the applicant’s place of residence, such as the photographs showing him wrapped in the IBDA-C banner whilst holding a gun, materials for making bombs, as verified by a criminal expert report, and the applicant’s handwriting on some of the papers, giving instructions on how to make bombs, as well as the statements made by the applicant’s co-accused. It therefore convicted the applicant and sentenced him to life imprisonment. 13.", "On 7 November 2002 the applicant’s lawyer lodged an appeal with the Court of Cassation, arguing that the State Security Court had disregarded their defence submissions. Relying on the medical report dated 14 June 1999, he claimed that, in convicting the applicant, the first-instance court had relied on the statements which the police had obtained from the applicant under torture and that no investigation had been carried out into his allegations before the impugned statements had been included in the case file. He therefore asked the court to quash the first-instance court’s judgment and to refer the case back for a new trial. 14. On 23 September 2003 the Court of Cassation dismissed the appeal and upheld the judgment of the Istanbul State Security Court.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 15. A description of the relevant domestic law at the material time can be found in Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 96‑100, ECHR 2004-IV). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 16. The applicant complained that he had been subjected to various forms of torture during his detention in police custody, in violation of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. The parties’ submissions (a) The Government 17. The Government submitted that this complaint was inadmissible for failure to comply with the six-month rule and to exhaust domestic remedies within the meaning of Article 35 of the Convention. 18.", "Referring to the Court’s admissibility decision of 3 October 2006 (paragraph 4 above), in which the first applicant Ali Kahraman’s complaint under Article 3 of the Convention had been dismissed for failure to observe the six-month rule, the Government submitted that the complaints of the present applicant, Kemal Kahraman, should also be dismissed for non-compliance with the six-month rule. In this connection, they contended that, even assuming that there were no remedies to be exhausted, as alleged by the applicant, he should have understood this, at the latest, by the time the Istanbul State Security Court had given its judgment on 1 October 2002 and that the application should have been lodged with the Court not later than 1 April 2003. The applicant had lodged his complaint on 17 November 2003, clearly outside the six-month time-limit. 19. The Government further claimed that the applicant had not exhausted domestic remedies since he had failed to avail himself of the relevant civil and administrative-law remedies.", "They noted that the applicant could have brought an action for a full remedy (tam yargı davası) in the Ankara Administrative Court against the Ministry of Interior in respect of his allegations of ill-treatment. (b) The applicant 20. The applicant claimed that he had complied with the six-month and exhaustion of domestic remedies rules under Article 35 § 1 of the Convention. He noted that he had brought his allegations of torture to the attention of the national authorities, namely before the State Security Court and the Court of Cassation, but that no action had been taken to investigate those allegations. He therefore maintained that he had lodged his application following the appeal court’s judgment, and therefore after the exhaustion of all remedies and within the six-month time-limit.", "2. The Court’s assessment 21. As regards the first limb of the Government’s objections, the Court notes that it indeed dismissed Ali Kahraman’s complaints under Article 3 of the Convention for failure to observe the six-month rule and decided to communicate Kemal Kahraman’s complaints to the respondent Government. As explained in its decision dated 3 October 2006, Ali Kahraman’s failure to pursue his complaints of ill-treatment during the proceedings before the first-instance court and the Court of Cassation grounded the Court’s considerations that, even assuming that Ali Kahraman was right in his assertion that the domestic remedies were ineffective, he must have become aware of the ineffectiveness of those remedies by the date on which the Istanbul State Security Court gave judgment. Accordingly, in Ali Kahraman’s case, the six-month period started to run from the date of the Istanbul State Security Court’s judgment because he did not raise his complaints, alleging ill-treatment, in his appeal and the Court of Cassation therefore did not deal with them.", "22. However, the present applicant, Kemal Kahraman, repeatedly asked the judicial authorities to take action against the police officers who had allegedly ill‑treated him and to disregard the statements which the police had obtained from him thereby (see paragraphs 7, 10 and 11 above). He also reiterated his complaints before the Court of Cassation and lodged his application within six months of the latter’s decision (see paragraph 13 above). In these circumstances, the Court considers that Kemal Kahraman complied with the six-month time-limit under Article 35 § 1 of the Convention. 23.", "As regard the second limb of the objections, namely the alleged non‑exhaustion of civil and administrative-law remedies, the Court reiterates that it has already examined and dismissed the Government’s preliminary objections in similar cases (see, in particular, Karayiğit v. Turkey (dec.), no. 63181/00, 5 October 2004, and Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996‑VI, §§ 51-52). It finds no particular circumstances in the instant case that require it to depart from its findings in the foregoing applications. 24. In these circumstances, the Court dismisses 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 26. The applicant alleged that he had been suspended by his arms (“reverse hanging”), hosed with cold water and beaten up during his detention in police custody. 27. The Government submitted that the applicant’s complaints were unsubstantiated. 28.", "The Court notes at the outset that Article 3 enshrines one of the most fundamental values of democratic societies, making no provision for exceptions and with no derogation from it being permissible, as provided by Article 15 § 2 (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V, and Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports 1998-VIII, p. 3288, § 93). 29. It also reiterates that where an individual is taken into custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused and to produce evidence casting doubt on the victim’s allegations, particularly if those allegations were corroborated by medical reports, failing which a clear issue arises under Article 3 of the Convention (see Selmouni, cited above, § 87, ECHR 1999‑V, and Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, p. 26, § 34).", "30. Furthermore, allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Talat Tepe v. Turkey, no. 31247/96, § 48, 21 December 2004). Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Labita v. Italy [GC], no.", "26772/95, § 121, ECHR 2000‑IV). Moreover, where allegations are made under Article 3 of the Convention, the Court must make a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch, cited above, § 32). 31. In the instant case, following his release from police custody, the applicant was examined by a doctor from the Istanbul Forensic Institute. In her report, the doctor noted the applicant’s complaints and found numerous injuries on his body, in particular hyperaemia, bruising and a scab‑covered lesion, as well as pain in his arms.", "She concluded that the applicant had been subjected to physical violence which rendered him unfit for work for two days (see paragraph 8 above). In the Court’s opinion, these injuries are consistent with the applicant’s allegations of having been suspended by his arms and beaten up by the police officers. They are therefore sufficiently serious to fall within the scope of Article 3 (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162). 32.", "The Government did not offer any explanation for the injuries observed on the applicant’s body. Nor did they challenge the medical report in question or allege that those injuries dated from the period prior to the applicant’s arrest. 33. As to the seriousness of the treatment in question, the Court reiterates that, in accordance with its case-law in this sphere (see, among other authorities, Selmouni, cited above, §§ 96-97), in order to determine whether a particular form of ill-treatment should be qualified as torture, it must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. It appears that it was intended that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering.", "34. In this connection, the Court considers that the treatment complained of was inflicted on the applicant intentionally by the police officers for the purpose of extracting confessions from him. In these circumstances, the Court finds that this act was particularly serious and cruel, and capable of causing severe pain and suffering. It therefore concludes that this sort of ill-treatment can only be described as torture within the meaning of Article 3 of the Convention (see Aksoy, cited above, § 64, and Koçak v. Turkey, no. 32581/96, § 48, 3 May 2007).", "35. Considering the circumstances of the case as a whole, and the absence of a plausible explanation from the Government as to the cause of the injuries sustained by the applicant while in custody, the Court finds that these injuries were the result of torture for which the Government bore responsibility. 36. It follows that there has been a violation of Article 3 of the Convention. II.", "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. Without specifying an amount, the applicant asked the Court to make an award for non-pecuniary damage. He also claimed 2,000 Turkish liras (TRY – approximately 1,000 euros (EUR)) in respect of pecuniary damage incurred during the domestic proceedings.", "39. The Government submitted that no award should be made, given the applicant’s failure to claim a specific amount for non-pecuniary damage. 40. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore dismisses this claim. However, having regard to the extremely serious violation of Article 3 suffered by the applicant and ruling on an equitable basis, it awards him EUR 15,000 in respect of non-pecuniary damage.", "B. Costs and expenses 41. The applicant also claimed EUR 5,500 for legal fees incurred by him and Ali Kahraman for their representation before the Court. In this connection, he submitted a time-schedule indicating 12.5 hours’ legal work carried out by his legal representative and a table of costs and expenditures. The applicant also claimed TRY 394 (approximately EUR 200) for stationery, postage and translation fees.", "42. The Government claimed that the amount claimed was not justified and had not been actually and necessarily incurred. 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 were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court finds it reasonable to award the sum of EUR 1,500 for the proceedings before it.", "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 remainder of 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, Kemal Kahraman, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Turkish liras at the rate applicable at the date of settlement: (i) EUR 15,000 (fifteen 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, 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 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 July 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléFrançoise TulkensRegistrarPresident [1] Relating to or caused by hyperaemia (increased blood in an organ or other body part)" ]
[ "FIRST SECTION CASE OF FIL LLC v. ARMENIA (Application no. 18526/13) JUDGMENT STRASBOURG 31 January 2019 FINAL 30/04/2019 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Fil LLC v. Armenia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Linos-Alexandre Sicilianos, President,Ksenija Turković,Krzysztof Wojtyczek,Armen Harutyunyan,Pauliine Koskelo,Jovan Ilievski,Gilberto Felici, judges,and Abel Campos, Section Registrar, Having deliberated in private on 8 January 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "18526/13) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Fil LLC (“the applicant company”), on 5 March 2013. 2. The applicant company was represented by Mr A. Kiviryan, Mr T. Yegoryan, Ms L. Hakobyan and Ms D. Grigoryan, lawyers practising in Yerevan. The Armenian Government (“the Government”) were represented by their Agent, Mr Y. Kirakosyan, Representative of the Republic of Armenia to the European Court of Human Rights. 3.", "The applicant company alleged that the length of civil proceedings initiated in 2008 was excessive, and that there was no effective domestic remedy in that respect. 4. On 7 June 2017 notice of the application was given to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 5. The applicant company is a private company that was set up in 2007 and has its registered office in Yerevan.", "6. On 7 May 2007 the applicant company and company S. concluded a contract, under which the applicant company had to carry out construction work on the premises of company H. 7. On 18 January 2008 the applicant company initiated compensation proceedings against company S. in the Yerevan Civil Court (“the Civil Court”), arguing that it had completed the construction work as required by the contract of 7 May 2007, but company S. had failed to make full payment for the work. 8. On 21 January 2008 the Civil Court admitted the applicant company’s claim.", "9. On 20 February 2008 the Civil Court ordered a forensic technical examination of the construction work which the applicant company had carried out on the premises of company H., and stayed the proceedings. The examination was assigned to the Bureau of Forensic Examinations under the Ministry of Justice (“the Bureau”). In particular, the court ordered the experts to measure the surface area of the construction work and assess the quality of the construction work carried out. 10.", "On 11 March 2008 the expert in charge of conducting the forensic examination filed a letter with the Civil Court, stating that it was necessary for the Civil Court to ensure his access to the premises of company H. for the purposes of the examination, as that company was not a party to the civil proceedings. 11. On 4 April 2008 the Civil Court resumed the proceedings and summoned company H. to the proceedings as a third party. 12. On 15 May 2008 the Civil Court ordered a forensic technical examination of the construction work on the premises of company H., and again stayed the proceedings.", "13. On 28 October 2008 the expert concluded that, owing to the lack of opportunity to access the premises of company H., it had not been possible to carry out the forensic examination ordered by the Civil Court on 15 May 2008. 14. On 19 November 2008 the Civil Court resumed the proceedings. 15.", "On 19 February 2009 the Civil Court granted the applicant company’s claim. 16. On 27 February 2009, due to reorganisation of the judiciary, the Civil Court decided to transfer the case to the Kentron and Nork-Marash District Court of Yerevan. 17. On 4 March 2009 company S. appealed against the judgment of 19 February 2009.", "18. On 23 April 2009 the Civil Court of Appeal quashed that judgment and remitted the case, reasoning, inter alia, that in the absence of an expert opinion on the questions posed by the Civil Court as regards the disputed construction work, that judgment was unfounded. 19. On 29 July 2009 the Shengavit District Court of Yerevan (“the District Court”) took over the applicant company’s case. 20.", "On 26 August 2009 the District Court ordered a forensic technical examination of the construction work on the premises of company H., and stayed the proceedings. 21. On 31 May 2010 the expert concluded that, owing to the lack of opportunity to access the premises of company H., it had not been possible to carry out the forensic examination ordered by the District Court on 26 August 2009. 22. On 7 June 2010 the District Court resumed the proceedings.", "23. On 16 July 2010 the District Court ordered a forensic technical examination of the construction work on the premises of company H., and stayed the proceedings. The court ordered that the forensic examination be carried out with the help of the Department for the Enforcement of Judicial Acts (“the DEJA”). It is unclear what the outcome of that order was. 24.", "On 21 June 2012 the expert concluded that, owing to the lack of access to the premises of company H., it had not been possible to carry out the forensic examination ordered by the District Court on 16 July 2010. 25. On 27 June 2012 the District Court resumed the proceedings. 26. On 3 October 2012 the applicant company filed additional submissions with the District Court.", "27. On the same date the District Court ordered a forensic technical examination of the construction work on the premises of company H., and stayed the proceedings. 28. On 25 November and 24 December 2014 the applicant company submitted a letter to the Bureau, enquiring about the progress of the examination ordered by the District Court. 29.", "On 27 December 2014 the Bureau responded by stating that the examination which had been ordered had not been carried out due to the lack of an expert in the relevant field. The Bureau also noted that it had already recruited and trained relevant experts, and the examination was expected to be carried out in January 2015. 30. On 28 February 2015 the applicant company submitted another letter to the Bureau, reminding it that the examination had not yet been carried out and informing it about the delay that the lack of an expert examination had caused in the civil proceedings. 31.", "On 5 May 2015 the applicant company submitted a letter to the Ministry of Justice, complaining about the delay in the civil proceedings and requesting that it take measures to expedite them. 32. On 20 May 2015 the Minister of Justice responded by stating that even though it would take one day to carry out the expert examination and approximately five days to complete the report, the examination had not been carried out for reasons such as the lack of an expert in the Bureau, the expert’s inability to access the premises of company H., the excessive workload in the Bureau, and so on. The Minister concluded by stating that the examination could be carried out by the Bureau, provided that the expert was granted access to the premises concerned. 33.", "On 30 June 2015, apparently after performing the technical examination, the Bureau sent the relevant expert opinion to the District Court. 34. On 9 July 2015 the District Court resumed the proceedings. 35. The District Court held a number of hearings in 2015 and 2016, and on 9 June and 2 August 2016 it also decided to conduct a new examination of the case.", "36. On 10 October 2016 the District Court granted the applicant company’s claim in part. 37. On 15 December 2016 company S. appealed against that judgment. 38.", "On 23 March 2017 the Civil Court of Appeal rejected the appeal and upheld the contested judgment. 39. No appeal on points of law was lodged against the decision of 23 March 2017, which became final. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION 40.", "The applicant company 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, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by a ... tribunal ...” 41. The applicant company further complained that it had not had at its disposal an effective domestic remedy in respect of the alleged violation of Article 6 § 1, in breach of 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. The parties’ submissions 42. The Government argued that the applicant company had had an effective remedy at its disposal in respect of the alleged violation of Article 6 § 1. It was not one single remedy, but a combination of several actions by which the applicant company could have expedited the proceedings.", "In particular, the applicant company had had the opportunity to indicate to the courts another expert organisation which would have been more efficient in carrying out the court-ordered expert assessment, but it had failed to do so. Furthermore, it had failed to obtain a writ of execution for the courts’ decisions ordering the technical examination and submit it to the DEJA for compulsory enforcement. Lastly, the applicant company had failed to contest the decisions of the trial courts staying the proceedings before the Civil Court of Appeal. The Government argued that, since the applicant company had failed to take any of these actions, the application should be declared inadmissible for non-exhaustion of domestic remedies under Article 35 § 1 of the Convention. 43.", "The applicant company argued that the actions indicated by the Government could not constitute an effective remedy. It maintained that there was no effective remedy against the excessive length of the civil proceedings, and that there had been a violation of Article 6 § 1 and Article 13 of the Convention. B. The Court’s assessment 1. Admissibility 44.", "Taking note of the Government’s objection, the Court considers that the issue of non-exhaustion of domestic remedies in this case is closely linked to the merits of the applicant company’s complaint that it did not have at its disposal an effective remedy regarding the alleged violation of its right to a trial within a reasonable time. Thus, the Court finds it necessary to join the Government’s objection to the merits of the complaint under Article 13 of the Convention (see, for example, Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 70, 10 January 2012). 45. The Court further considers that the applicant company’s complaints concerning the allegedly excessive length of the proceedings and the lack of an effective domestic remedy 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) Exhaustion of domestic remedies and alleged violation of Article 13 of the Convention 46. 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.", "The effect of that provision 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. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint. However, the remedy required by Article 13 must be “effective” in practice as well as in law. The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective.", "Also, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 268, 15 December 2016). 47. As regards the “effectiveness” of remedies in length-of-proceedings cases, the Court has held that the best solution in absolute terms is indisputably, as in many spheres, prevention. 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.", "Where the judicial system is deficient in this respect, a remedy designed to expedite the proceedings in order to prevent them from becoming excessively lengthy is the most effective solution. Such a remedy offers an undeniable advantage over a remedy affording only compensation since it also prevents a finding of successive violations in respect of the same set of proceedings and does not merely repair the breach a posteriori, as does a compensatory remedy. Hence, this type of remedy is “effective” in so far as it hastens the decision by the court concerned. At the same time, a remedy designed to expedite the proceedings may not be adequate to redress a situation in which the proceedings have clearly already been excessively long. In such situations, different types of remedy may redress the violation appropriately, including a compensatory remedy.", "Furthermore, States may choose to combine two types of remedy, one designed to expedite the proceedings and the other to afford compensation, although they may also choose to introduce only a compensatory remedy without such remedy being regarded as ineffective (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 183-187, ECHR 2006‑V, and Cocchiarella v. Italy [GC], no. 64886/01, §§ 74-78, ECHR 2006‑V). 48.", "The Court notes that the delays in the proceedings in the present case were caused because of the failure, for various reasons, to produce a timely technical expert opinion, which was necessary for the resolution of the case. It was the responsibility of the domestic courts which ordered the expert examinations to satisfy that requirement by choosing the most appropriate expert organisation, following up their own orders, and making sure that those orders were promptly implemented, if necessary through compulsory enforcement. Furthermore, it appears that the main reason for the failure to carry out a timely expert examination was the experts’ inability to access the premises of company H., where the examination was to be conducted, even though the authorities attempted to secure such access with the assistance of DEJA (see paragraph 23 above). It is therefore unclear how the actions suggested by the Government could have remedied that situation. Lastly, the Court does not see how contesting the decisions staying the proceedings could have expedited the proceedings in question, taking into account that those decisions were the result rather than the cause of the failure to carry out the required expert examinations.", "Moreover, contesting the decisions staying the proceedings before the Civil Court of Appeal, aside from being unlikely to expedite the proceedings, could itself have become a factor delaying those proceedings (see, for example, Efimenko v. Ukraine, no. 55870/00, § 64, 18 July 2006). The Court therefore considers that the combination of actions indicated by the Government did not constitute an “effective remedy” against lengthy proceedings within the meaning of Article 13 of the Convention. 49. The Court further notes that the Government did not suggest any other procedure available in the Armenian domestic system at the material time that could have constituted an effective remedy capable of either expediting the proceedings in question and/or providing redress for the delays which had already occurred.", "50. The Court therefore dismisses the Government’s objection as to the non-exhaustion of domestic remedies and concludes that the applicant company did not have an effective domestic remedy as regards the length of the civil proceedings concerned. 51. Accordingly, there has been breach of Article 13 of the Convention. (b) Article 6 § 1 of the Convention 52.", "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, 27 June 2000). 53. The period to be taken into consideration began on 18 January 2008, when the applicant company initiated compensation proceedings before the Yerevan Civil Court, and ended with the decision of the Civil Court of Appeal dated 23 March 2017. It thus lasted nine years and two months over three levels of jurisdiction, the trial and the appellate courts examining the case twice.", "It must be emphasised that the lengthiest delay of seven years and five months took place between 23 April 2009 and 10 October 2016, when the case was pending before the District Court and the parties were waiting to receive the expert opinion which had been ordered. 54. The Court notes that the delay in the present case was not attributable to the applicant company. Instead, it was attributable to the domestic courts, which ordered five technical expert examinations over the course of nine years that were necessary for the resolution of the case, but failed to ensure that four of those orders were implemented. 55.", "The Court further notes that the case was not of particular complexity. In this regard, the Court emphasises that the letter from the Ministry of Justice dated 20 May 2015 stated that it would take only one day to carry out the required technical examination and five days to compile the expert opinion. However, the expert opinion initially ordered on 20 February 2008 was finalised and submitted to the District Court only on 30 June 2015. 56. 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 other authorities, Capuano v. Italy, 25 June 1987, §§ 30-35, Series A no.", "119, and Sürmeli v. Germany [GC], no. 75529/01, §§ 128-134, ECHR 2006‑VII). 57. 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.", "58. There has accordingly been a breach of Article 6 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 59. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 60. The applicant company claimed 4,000 euros (EUR) in respect of non-pecuniary damage. 61. The Government contested the claim on the grounds that it was excessive. 62.", "The Court considers that the applicant company must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards the applicant company EUR 2,400 under that head. B. Costs and expenses 63. The applicant company also claimed EUR 860 for the costs and expenses incurred before the domestic courts, EUR 2,220 for those incurred before the Court, and EUR 16 for postal services.", "64. The Government contested the claim. In particular, as regards the costs incurred before the domestic courts, they argued that there was no causal link between the claim and the alleged violation of the applicant company’s right. 65. The Court agrees that none of the costs of the domestic proceedings appear to have been incurred in an attempt to prevent or redress the violation found.", "However, considering that unreasonable delays in proceedings entail an increase in an applicant’s costs (see, among other authorities, Maurer v. Austria, no. 50110/99, § 27, 17 January 2002, and Sürmeli, cited above, § 148), the applicant company’s claim under that head does not appear unreasonable. Therefore, regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 2,000 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 and joins the Government’s objection as to non-exhaustion of domestic remedies to the merits; 2. Holds that there has been a violation of Article 13 of the Convention and dismisses the Government’s objection as to non-exhaustion of domestic remedies; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant company, 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 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses the remainder of the applicant company’s claim for just satisfaction. Done in English, and notified in writing on 31 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel CamposLinos-Alexandre SicilianosRegistrarPresident" ]
[ "THIRD SECTION CASE OF MAWAKA v. THE NETHERLANDS (Application no. 29031/04) JUDGMENT STRASBOURG 1 June 2010 FINAL 01/09/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mawaka v. the Netherlands, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Elisabet Fura,Corneliu Bîrsan,Boštjan M. Zupančič,Alvina Gyulumyan,Egbert Myjer,Ann Power, judges,and Stanley Naismith, Deputy Section Registrar, Having deliberated in private on 4 May 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "29031/04) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Congolese national, Sita Mawaka (“the applicant”), on 10 August 2004. 2. The applicant, who had been granted legal aid, was represented by Ms H. van der Wal, a lawyer practising in Rotterdam. The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Netherlands Ministry of Foreign Affairs.", "3. The applicant alleged that he would face a real risk of treatment contrary to Article 3 if he were to be expelled to the Democratic Republic of the Congo (the “DRC”). He further alleged an unjustified interference with his right, under Article 8, to respect for his family life with his wife and child in the Netherlands. 4. On 9 September 2008 the President of the Third Section decided to give notice of the application to the Government.", "It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant, who is a national of the DRC, was born in 1969 and lives in Rotterdam. 6.", "From September 1992 until January 1994 the applicant resided in Belgium, at which point he returned to Zaire (as the DRC was then called) after having obtained a laissez-passer from the Zairean Embassy in Brussels. 7. In 1994 the applicant was working in Kinshasa, the DRC, as the personal secretary of a prominent member of the opposition party Union pour la Démocratie et le Progrès Social (“UDPS”), who was also the editor of the opposition newspaper NSEMO. In October 1994 the applicant was contacted by unknown men who asked him to help assassinate his boss. The applicant refused, but a few weeks later his boss disappeared and was then found unconscious and badly beaten.", "He died a few days later in a local hospital. On 20 November 1994 the applicant was arrested and put in prison; he was never shown an arrest warrant. On 25 November 1994 the applicant was transferred to the central Makala prison in Kinshasa. During the interrogations he was told he had been arrested because he had refused to help assassinate his boss. He was also told he would not live to see 1995.", "The applicant was beaten during the interrogation. On 26 December 1994 the applicant managed to escape with the assistance of a guard who happened to be from the same tribe as the applicant. He stayed in the guard's house while travel documents were arranged and on 6 January 1995 the applicant flew to Belgium. After arriving in Brussels, the applicant was driven to the Netherlands where he requested asylum on 7 January 1995. 8.", "The applicant was granted a residence permit for the purposes of asylum for an indefinite period (verblijfsvergunning asiel voor onbepaalde tijd) on 2 July 1996 since there were sufficient grounds to believe that he would be persecuted should he return to the DRC. 9. On 27 July 1999 the applicant filed a request for naturalisation. On the basis of this request, the applicant was interviewed by an official from the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst) on 13 October 2000. During the interview the applicant was confronted with the fact that, on 2 January 1997, he had been convicted and sentenced to two years' imprisonment in Belgium for participation in a criminal organisation and possession of cocaine, by the Brussels tribunal de première instance.", "10. On 4 October 1999 the applicant married Ms M. with whom he had already had a son who was born on 22 May 1999. Ms M., also a national of the DRC, requested a residence permit for the purpose of staying with her spouse (verblijfsvergunning voor verblijf bij echtgenoot) and the permit was granted to her. 11. By letter of 23 November 2001 the Deputy Minister of Justice (Staatssecretaris van Justitie) notified the applicant of her intention (voornemen) to revoke the applicant's residence permit pursuant to article 35 of the Aliens Act (Vreemdelingenwet), which allows the withdrawal of a residence permit on the basis of a criminal conviction of a certain severity.", "12. In her letter the Deputy Minister noted that the applicant had enjoyed legal residence in the Netherlands since 2 July 1996 and that his conviction in Belgium dated back to 2 January 1997. She further concluded that, according to Dutch sentencing guidelines, a sentence of 10 months' imprisonment would have been imposed on the applicant had the offence been committed in the Netherlands. The Deputy Minister concluded accordingly that the length of the sentence, compared to the length of time the applicant had been living in the Netherlands, justified revoking the applicant's residence permit. Considering that the applicant had been granted asylum in the Netherlands, the Deputy Minister held that a forced return of the applicant would have to be in compliance with the non-refoulement principle contained in the UN Refugee Convention.", "In this regard the Deputy Minister considered that an individual report (ambtsbericht) from the Ministry of Foreign Affairs explained that there had already been some doubts, given certain inconsistencies in the applicant's story, when he had applied for asylum and that a new individual report had confirmed these doubts created by the inconsistencies. Moreover, since the applicant had left the DRC, regime changes had taken place in that country in 1997 and 2001. The Deputy Minister considered that since the applicant had not shown that he had anything to fear from the new regime, he had not established that he would still face a real and personal risk of persecution in his country of origin. Finally, the Deputy Minister considered that revoking the applicant's residence permit did not constitute an interference with the applicant's right to respect for family life under the Convention since the interests of public order outweighed the interests of the applicant. Furthermore, it had become known that the applicant and his wife had separated, that he had not had any contact with her or their child for some weeks and that there were no indications that he was actively participating in the upbringing of their son.", "In any event, since the applicant, his wife and their son all had Congolese nationality, there were no objective obstacles for them to continue their family life in the DRC. 13. In his written comments (zienswijze) of 19 December 2001, the applicant disputed the finding that he would have been sentenced to 10 months' imprisonment in the Netherlands for an offence similar to the one he had committed in Belgium. The applicant argued that there was no set indication of the length of a sentence but that the individual circumstances of the person concerned would always be taken into consideration. It was therefore not possible to determine what kind of sentence he would have received had he been tried by a Dutch court.", "The applicant further submitted that the grounds on which he had been granted his residence permit were still valid and that the reports used by the Deputy Minister in no way detracted from that. A forced return to the DRC would therefore entail a violation of the Convention. The applicant also submitted that he could exercise his family life only in the Netherlands, since his wife and child were living there. 14. On 4 July 2002 the applicant appeared before an official board of inquiry (ambtelijke commissie) and on 24 July 2002 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie, the successor to the Deputy Minister of Justice – hereafter “the Minister”) issued a decision to revoke the applicant's residence permit.", "The Minister considered that the estimate of a 10-month sentence in the Netherlands for the Belgian offence was indeed correct, as an advisory letter from the prosecutor at the Regional Court of 's-Hertogenbosch (“Den Bosch”) stated that a 10-month sentence would have represented the minimum length of sentence the prosecutor could have sought based on the facts available to him. The Minister further noted that the applicant's statement regarding his arrest in Belgium before the official board of inquiry differed from the original statement he had given during the interviews that were conducted pursuant to his request for naturalisation on 13 October 2000. From these new statements the Minister concluded that the applicant had been fully aware of his actions when transporting the drugs across the border between the Netherlands and Belgium. The Minister further noted that although the applicant had stated during the hearing before the board that he had had no further contact with judicial authorities, he had in fact been convicted of a number of insurance offences as well as violations of the 1994 Road Traffic Act (Wegenverkeerswet 1994). Concerning the risk of persecution that the applicant would face upon his return to the DRC, the Minister considered that the reports of the Ministry of Foreign Affairs did disclose discrepancies in the applicant's story.", "The Minister further considered that it had been concluded in the intention to revoke the applicant's residence permit that the situation in the DRC had changed since the applicant had last been in that country and that he had failed to establish that he would still be at risk of persecution there. A forced return to the DRC would thus not be in violation of the UN Refugee Convention, nor would it be contrary to Article 3 of the Convention. Moreover, the applicant had been convicted of a drugs-related offence. For these reasons the Minister considered that the interests of the State in protecting public order outweighed the interests of the applicant. Finally, the Minister noted that the applicant and his wife (with whom he had been reconciled by then) and child all had Congolese nationality and that there were no objective obstacles for them to continue their family life in the DRC.", "15. By submissions of 14 August 2002 and 3 September 2003 the applicant appealed against the decision of the Minister to the Regional Court of The Hague. On 26 February 2004 the Regional Court rejected the applicant's appeal. The Regional Court considered that the Minister had been correct in applying article 35 of the Aliens Act and that the estimated sentence of 10 months' imprisonment, had the offence been committed in the Netherlands, was reasonable as well. The Regional Court further determined that the Minister had been correct in taking notice of the reports from the Ministry of Foreign Affairs in finding that the applicant's original story contained inconsistencies.", "The resulting lack of credibility of the applicant's story was sufficient to show that the applicant would not face a real, personal risk of treatment contrary to Article 3 upon his return to the DRC. The Minister had therefore been entitled to attach more weight to the protection of public order in relation to the interests of the applicant. The Regional Court finally considered that the applicant had failed to establish a possible violation of Article 8. 16. On 22 March 2004 the applicant appealed against the judgment of the Regional Court to the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State – “the Division”) on essentially the same grounds.", "The applicant added, however, that according to a letter dated 24 June 1998 from the prosecutor in Den Bosch (which the Minister had neglected to add to the case file and for which the Regional Court had reopened the proceedings so that it could be introduced), the prosecutor in Den Bosch did not have possession of the complete Belgian case file and had thus only been able to estimate the length of the sentence that could be imposed. Furthermore, a judicial sentencing document submitted in the proceedings showed that a similar offence in the Netherlands would attract a custodial sentence of only 8 months and 28 days. A sentence of that duration would not engage the consequences of article 35 of the Aliens Act, meaning that the applicant's residence permit would not be in jeopardy. 17. On 9 June 2004 the Division dismissed the applicant's appeal.", "The Division considered that the Minister had correctly applied the provisions of article 35 of the Aliens Act in determining the length of imprisonment had the offence been committed in the Netherlands, based on the information obtained from the prosecutor in Den Bosch. In particular, the Division considered that the indication of an 8 month and 28 day sentence applied solely in relation to the possession of cocaine and did not include the charge of participation in a criminal organisation. The remaining grounds of appeal submitted by the applicant were dismissed summarily as not raising any points of law warranting determination. 18. The applicant currently lives in the Netherlands and has since divorced his wife but continues to visit her and their child regularly.", "19. After the introduction of the application the applicant informed the Court by a letter of 23 April 2008 that he had spent a number of days in an aliens' detention centre in France after being apprehended there without a valid residence permit. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Asylum and residence permits 20. The applicant's original asylum application was submitted under article 15 § 1 of the Aliens Act 1965 (Vreemdelingenwet), pursuant to which aliens coming from a country where they had a well-founded reason to fear persecution on account of their religious or political conviction, or of belonging to a particular race or a particular social group, could be admitted by the Minister of Justice as refugees.", "21. Since 1 April 2001 the admission, residence and expulsion of aliens have been governed by the Aliens Act 2000 (Vreemdelingenwet 2000), the Aliens Decree 2000 (Vreemdelingenbesluit 2000), the Regulation on Aliens 2000 (Voorschrift Vreemdelingen 2000) and the Aliens Act Implementation Guidelines 2000 (Vreemdelingencirculaire 2000). The General Administrative Law Act (Algemene Wet Bestuursrecht) is also applicable, except where otherwise stipulated. 22. Pursuant to article 115 § 7 of the Aliens Act 2000, an asylum-based right of abode that was valid at the time that Act entered into force automatically entails a permanent residence permit under that Act.", "23. Under the policy laid down in article 35 § 1 (b) of the Aliens Act 2000 in conjunction with article 3.86 § 1 (c) of the Aliens Decree 2000, an alien who has been given a custodial sentence (at least part of which was not suspended) by a Dutch or foreign court in a judgment that has become final and conclusive, for intentionally committing an offence punishable by a custodial sentence of three years or more, could be refused permission for continued residence in the country. Underlying this policy is the principle that the longer an alien has lawfully resided in the Netherlands, the more serious the offence has to be before it may justify refusing continued residence; the authorities thus apply a “sliding scale” (glijdende schaal). The seriousness of an offence is determined on the basis of the sentence attached to it. To determine whether an alien may be refused permission for continued residence, the length of the sentence imposed is compared to the length of time that the alien had been living in the Netherlands when he or she committed the offence.", "24. The revocation of a residence permit is also assessed in the light of the principle of non-refoulement and whether returning the alien to his country of origin would be in violation of Article 3 of the Convention. B. Netherlands policy on DRC asylum seekers 25. The respondent Government's policy on asylum seekers from the DRC is devised by the Deputy Minister of Justice (Staatssecretaris van Justitie) and, was temporarily – between July 2002 and December 2006 – devised by the Minister for Immigration and Integration. It is based on official country reports published by the Minister of Foreign Affairs and external sources.", "26. At the time of the applicant's initial request for asylum, his application was assessed on the basis of the official country reports of 2 June 1992, 14 December 1993, 8 March 1994 and 14 September 1994 in conjunction with the US State Department's Country Reports on Human Rights Practices – Democratic Republic of Congo (formerly Zaire) of 1994 and 1995. 27. In the period when the applicant's residence permit was revoked, applications from the DRC were assessed on the basis of the Netherlands official country report of 8 November 2000. Since then further reports have been issued by the Netherlands Minister of Foreign Affairs in 2005, 2006, 2007, 2008 and the latest in January 2010.", "28. The Netherlands authorities operate on the basis that the human rights situation in the DRC remains a cause for concern, but that it is not such that every asylum seeker should automatically be deemed a refugee within the meaning of the 1951 Convention relating to the Status of Refugees. The latest official country report of January 2010 classifies the general security situation as such: “During the entire reporting period the Congolese authorities were unable to control their territory in large parts of the country, as well as to ensure the safety of citizens and maintain their monopoly on the use of force. In both the North and South Kivu province the security situation remained under pressure due to military operations of the Congolese army against the FDLR, after which the FDLR resorted to large scale retaliations. Other rebel factions, including several Mai-Mai groups, caused a large decrease in security.", "In the Haut- en Bas-Uélé districts in the Orientale province there was an increase in attacks by the LRA despite military actions by the FARDC. In the district of Ituri militias of the FRPI and FPJC fought with the FARDC and launched assaults on villages. In all areas where FARDC units were stationed and active the security situation was such that soldiers displayed severe misconduct towards the civilian population. The former rebel faction CNDP, which had recently integrated into the FARDC, played a key role in these infractions. At the end of the reporting period the security situation in the Equateur province deteriorated because of violent confrontations between a number of ethnic groups who later turned against the FARDC.", "In the remaining parts of the country the security situation remained stable, although some security incidents occurred in the Bas-Congo province.” III. RELEVANT INTERNATIONAL MATERIALS A. Fourth special report of the Secretary-General on the United Nations Organization Mission in the Democratic Republic of the Congo, 21 November 2008 29. The report describes the overall situation in the DRC as follows: “Efforts to stabilize the eastern region of the Democratic Republic of the Congo witnessed significant setbacks during the reporting period. The processes relating to the Goma statements of commitment (actes d'engagement) and the Nairobi communiqué stalled, and large-scale hostilities between the Armed Forces of the Democratic Republic of the Congo (FARDC) and the Congrès national pour la défense du peuple (CNDP), led by Laurent Nkunda, resumed on 28 August.", "The fighting, which spread throughout North Kivu, has further exacerbated the humanitarian crisis, displacing over 250,000 people and bringing the number of internally displaced persons in the eastern part of the country to more than 1.35 million. Exchanges of fire across the border between Rwanda and the Democratic Republic of the Congo, as well as a resurgence of armed groups in Ituri and a resumption of atrocities committed by the Lord's Resistance Army (LRA), further compounded the crisis in the area. While the security situation remained stable elsewhere in the Democratic Republic of the Congo, little progress was achieved in the key peace consolidation tasks, including the delivery of basic services and the extension of State authority. Preparations for local elections continued, but key legislation, without which the necessary preparatory work cannot proceed, has yet to be adopted, risking further delays in the conduct of the elections.” B. U.S. Department of State Country Reports on Human Rights Practices 2008, 25 February 2009 30. Concerning freedom of speech in the DRC and the treatment of UDPS supporters, the report stated: “Generally individuals could privately criticize the government, its officials, and private citizens without being subject to official reprisals.", "However, on February 8, ANR agents in Goma arbitrarily arrested and detained a member of the Union for Democracy and Social Progress/Goma for discussing politics with local citizens. The victim, who was released on February 13 after the UNJHRO intervened, claimed that he was subjected to cruel, inhumane, and degrading treatment while in detention. No action had been taken against the responsible ANR agents by year's end.” C. Freedom House report: Freedom in the World 2009 - Congo, Democratic Republic of (Kinshasa) of 16 July 2009 31. Concerning political rights and parties, the report stated: “The DRC is not an electoral democracy. The 2006 elections were a significant improvement over previous elections, but serious problems remained.", "The opposition Union for Social Democracy and Progress (UDPS) party did not participate as a result of the party leader's call for a boycott of the recent constitutional referendum. International observers noted voter registration irregularities and corruption. The campaign period included clashes between opposition militants and government forces as well as an attempt on opposition leader Jean-Pierre Bemba's life. The 2007 Senate elections were similarly plagued by political corruption, with allegations of vote buying. Local elections initially scheduled for 2008 were delayed until at least 2009.” D. U.K. Home Office Country of Origin Information Report of 30 June 2009 32.", "Regarding the treatment of failed asylum-seekers upon return to the DRC, the report noted: “34.02 The UNHCR response on the ill-treatment of failed asylum seekers returned to the Democratic Republic of Congo noted: 'The Congolese human rights NGO 'Voix des Sans Voix' informed the office that rejected asylum-seekers are received upon arrival at the airport by agents of DGM, who question them why they left and applied for asylum. The NGO had an office at the airport and are closely monitoring the situation. They mentioned that there were many failed asylum-seekers who are sent back by western European countries, but they are not aware of any of these persons detained and/or tortured upon return. They reported that some of the failed asylum-seekers had to pay some money to the police (5 to 10 USD).' 34.03 UNHCR's response also recorded that the International Office for Migration (IOM) Kinshasa, the Mission of the United Nations in the Democratic Republic of Congo (MONUC), the Association Africaine de Defense des Droits de l'Homme (ASADOH) and UNHCR staff who were '... at times present at the airport [in Kinshasa] ...' did not hold the information to confirm the existence of instances of the detention, abuse or torture of failed asylum-seekers.", "The UNHCR response concluded 'With the limited information available to UNHCR, it does not have evidence that there is a systematic abuse, including detention and mistreatment, of failed asylum-seekers returned to the DRC through Kinshasa airport.' 34.04 An e-mail from the British Embassy in Kinshasa via the FCO dated 11 October 2007 stated that at a meeting with a Policy Officer of the Asylum and Migration Affairs Division of the Netherlands MFA, the officer told them that he had spent a week talking to NGOs, international organisations and Embassies, he said that MONUC, UNHCR, IOM and all the NGOs he spoke to said that, while there were obviously serious human rights issues in DRC, returned failed asylum seekers were not targeted, nor were they singled out as a particular group by the authorities. All of his interlocutors had said that the stories of abuse that they had heard had all come from Europe, and that their investigations had shown the allegations to be either false, or doubtful due to lack of evidence.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 33. The applicant complained that his expulsion to the DRC would expose him to a real risk of treatment in breach of Article 3 of the Convention.", "Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 34. The Government contested that argument. A. Admissibility 35. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The parties' submissions (a) The applicant 36. The applicant argued that he would face a real risk of treatment contrary to Article 3 if he were to be expelled to the DRC.", "He submitted that the Minister had failed to strike a proper balance between the interests involved. Furthermore, the applicant stated that the decision to revoke his residence permit was based on an incorrect conversion of the custodial sentence he had received in Belgium. 37. Apart from indicating that there was a general state of violence in the DRC, the applicant also argued that he had originally been admitted for asylum purposes and that he could not now go back to the DRC as the authorities there were aware of the fact that he used to be politically active and that he had sought asylum in the Netherlands. In that respect the applicant submitted that the current situation in the DRC was not relevant to his situation but that the circumstances pursuant to which he had been granted asylum should be taken into account.", "(b) The Government 38. The Government remained of the opinion that the applicant, if expelled, did not run a real risk of being exposed to treatment in breach of Article 3. The Government submitted that, in the light of the Court's ex nunc assessment of the facts as well as recent country reports of the Ministry of Foreign Affairs, the applicant had failed to establish that he would still face a real and personal risk upon return to his country of origin. 39. With regard to the applicant's argument relating to the equivalence of the sentence imposed on him in Belgium, the Government submitted that the applicant had not shown in any way that the sentence conversion applied by the Dutch Public Prosecution Service had been incorrect.", "Accordingly the use of the sliding scale and the fact that the applicant, who had been residing in the Netherlands for less than three years when he committed the offence, would have been sentenced to a prison term of more than nine months, meant that the revocation of the residence permit had been in accordance with the law. 2. The Court's assessment (a) General principles 40. In assessing whether there would be a violation of Article 3 if a Contracting State were to expel an individual to another State, the Court will apply the general principles as set out in its settled case-law (see, among other authorities, NA. v. the United Kingdom, no.", "25904/07, §§ 108-117, 17 July 2008). (b) Application in the present case 41. The Court observes from the materials in its possession and the materials submitted by the Government that, although significantly better than in 1996, the general situation in the DRC at the present time certainly gives cause for concern (see paragraphs 29-32 above), with the circumstances in the Kivu provinces in the north-east being particularly dire. The applicant has not submitted evidence that would lead the Court to change that observation. 42.", "The Court notes that the applicant resided in Kinshasa before he left his country of origin. It is therefore considered that there is no reason to assume that he would be expelled to the north-eastern part of the DRC. 43. Furthermore, the applicant has not adduced evidence capable of proving that the general situation in the DRC is such as to entail that any removal to it would necessarily breach Article 3. 44.", "The Court therefore cannot but conclude that the general situation in the DRC is not one of such extreme general violence that there exists a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return. 45. As regards the existence of a real and personal risk by virtue of the applicant's past activities in the DRC, the Court notes first of all that a significant period of time has elapsed since the applicant left his country of origin. There is no indication from the case file that the applicant has attracted any other negative attention from the DRC authorities since that time apart from the problems he submitted as the basis for his asylum request in the Netherlands. In this regard the Court further notes that the domestic authorities carried out an assessment of the alleged risk of treatment contrary to Article 3 at the time when the applicant's residence permit was revoked.", "46. The Court notes that the applicant was granted asylum in the Netherlands on 2 July 1996. After obtaining asylum, the applicant spent time in Belgium (inter alia in order to serve a custodial sentence) before returning to the Netherlands. 47. The applicant has argued that the risk he faces of treatment in violation of Article 3 must be assessed on the basis of the situation that existed in 1996 when he was granted asylum in the Netherlands.", "48. The Court reiterates however that in cases where an applicant has not yet been extradited or deported when it examines the case, the relevant time for the assessment of the existence of a real risk will be that of the proceedings before the Court. A full and ex nunc assessment is called for as the situation in a country of destination may change in the course of time (see NA. v. the United Kingdom, cited above, § 112). 49.", "The Court considers that the applicant has not adduced evidence that supports his claim that his previous political activism, membership of the UDPS or position as a returning asylum seeker would create specific personal risks of persecution on the part of the DRC authorities in the light of an ex nunc assessment. 50. The Court therefore cannot but conclude that the applicant has failed to establish that he would face a real and personal risk upon his return to his country of origin. 51. The foregoing considerations are sufficient to enable the Court to conclude that the expulsion of the applicant to the DRC as envisaged by the respondent Government would not be in violation of Article 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 52. The applicant complained of a violation of his right to respect for his family life as guaranteed by Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life .... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 53.", "The Government contested that argument. A. Admissibility 54. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. The parties' submissions (a) The applicant 55. The applicant submitted that the revocation of his residence permit had constituted an unjustified interference with his right to respect for his family life with his ex-wife and their son. He claimed that the Dutch authorities had not taken this family life into consideration and had thus failed to strike a proper balance between the interests involved.", "He further argued that he had a right to be able to exercise his family life and that the Netherlands was the country best suited for that purpose. 56. The applicant further alleged that owing to the revocation of his residence permit he was no longer able to work or apply for social security in the Netherlands. These circumstances had led to his wife divorcing him for another man. (b) The Government 57.", "The Government submitted that whilst they considered that the applicant indeed had a family life with his son, the envisaged expulsion of the applicant would not constitute an interference with that family life. The Government stated that after the applicant's residence permit had been revoked, the dependent residence permits held by his ex-wife and son were revoked as well. As a result, the applicant's ex-wife and son did not have lawful residence status in the Netherlands either and were also obliged to leave the country. As all three were nationals of the DRC, the Government concluded, there were no reasons why they should not return to the DRC to continue their family life there. 2.", "The Court's assessment 58. The Court reiterates that the Convention does not guarantee the right of an alien to enter or to reside in a particular country. However, the removal of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life as guaranteed in Article 8 § 1 of the Convention (see Boultif v. Switzerland, no. 54273/00, § 39, ECHR 2001‑IX). 59.", "As regards the facts of the present case, the applicant arrived in the Netherlands in 1995. He married Ms M. in 1999 and together they had a son who had been born earlier that year. Ms M. and the applicant's son were granted a temporary residence permit for the purpose of residing with the applicant. Upon the revocation of the applicant's residence permit, the residence permits of Ms M. and the applicant's son were revoked as well, on 2 October 2002, as their residence permits were dependent on that of the applicant. Ms M. and their son have not instituted any proceedings concerning their residence status and therefore do not have a legal entitlement to reside in the Netherlands.", "Since the lodging of the present application the applicant and Ms M. have divorced, but the applicant regularly visits his son. 60. In this light the Court considers that the relationship between the applicant and his son evidently falls within the scope of “family life” as indicated in Article 8 (see also Berrehab v. the Netherlands, 21 June 1988, § 21, Series A no. 138). However, the Court notes that the envisaged measure of the applicant's removal from the Netherlands is not aimed at breaking up the family (see also Slivenko v. Latvia [GC], no.", "48321/99, § 97, ECHR 2003‑X). The Court notes moreover that at this moment the applicant's ex-wife and son do not have legal residence in the Netherlands and might therefore be required to leave the country as well. 61. While the withdrawal of the applicant's residence permit results in the situation that he is unable lawfully to reside in the country where he has been enjoying family life with his wife and child (and, subsequent to his divorce, with his child), the Court notes that these family members are also no longer lawfully residing in the Netherlands. As mentioned above (see paragraph 58) it is indeed well-established in the Court's case-law that an issue may arise under Article 8 due to the removal of a person from a country where close members of his family are living.", "However, that principle is in general to be understood as applying only if those family members are residing lawfully in that country or, exceptionally, if there is a valid reason why it could not be expected of them to follow the person concerned. In the present case, it has not appeared that the applicant's ex-wife and son - who are not parties to the present proceedings and who have not themselves lodged an application to the Court - have attempted to regularise their situation in the Netherlands, and neither have any arguments been submitted to the effect that they are unable to return to the DRC. 62. Accordingly, there has been no violation of Article 8. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the application admissible; 2. Holds that there would be no violation of Article 3 of the Convention if the applicant were expelled from the Netherlands; 3. Holds that there would be no violation of Article 8 of the Convention if the applicant were expelled from the Netherlands. Done in English, and notified in writing on 1 June 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithJosep CasadevallDeputy RegistrarPresident" ]
[ "THIRD SECTION CASE OF LOGINOV AND OTHERS v. RUSSIA (Application no. 14925/16 and 6 others – see appended list) JUDGMENT STRASBOURG 22 February 2018 This judgment is final but it may be subject to editorial revision. In the case of Loginov 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 1 February 2018, 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 mainly complained of the inadequate conditions of their detention.", "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, §§ 139‑65, 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. 33535/16 and 53618/16, the applicants also raised other complaints under the Convention.", "12. 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 matter complained of is 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. IV. 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, 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. 15.", "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 about the conditions of the applicants’ detention admissible and the remainder of applications nos. 33535/16 and 53618/16 inadmissible; 3.", "Holds that these applications disclose a breach of Article 3 of the Convention concerning the inadequate conditions of detention; 4. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 22 February 2018, 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 Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 14925/16 29/02/2016 Ilya Alekseyevich Loginov 19/03/1981 IK-11 Bor Nizhny Novgorod Region 18/07/2011 01/06/2017 5 year(s) and 10 month(s) and 15 day(s) 140 inmate(s) 1.4 m² 1 toilet(s) overcrowding, poor quality of food, no hot water, inadequate and insufficient provision of clothing, lack of flush toilets, lack of hand basins, insufficient time allotted for eating meals 9,000 21849/16 04/04/2016 Aleksandr Aleksandrovich Novozhilov 20/09/1989 IK-15 Norilsk 09/09/2013 to 16/11/2015 2 year(s) and 2 month(s) and 8 day(s) 160 inmate(s) 1 m² 6 toilet(s) overcrowding, lack of fresh air, lack of (adequate) heating, lack of (regular) physical exercise on fresh air, toilet not separated from the rest of the cell 5,000 33535/16 22/05/2016 Maksim Vladimirovich Savchenko 29/04/1984 IK-11 Bor Nizhny Novgorod region 04/04/2016 pending More than 1 year(s) and 8 month(s) and 16 day(s) 1.5 m² overcrowding, lack of or inadequate hygienic facilities, sharing cells with inmates infected with contagious disease, lack of requisite medical assistance, poor quality of food 7,300 52089/16 18/08/2016 Aleksandr Sergeyevich Yaroshok 08/07/1989 IK-29 Primorye Region 16/05/2011 to 16/08/2016 5 year(s) and 3 month(s) and 1 day(s) 100 inmate(s) 1.88 m² overcrowding, no or restricted access to running water, poor quality of food 5,000 53618/16 30/08/2016 Aleksandr Vitalyevich Selyakov 10/12/1987 LIU-10 Novosibirsk Region 13/01/2016 to 05/03/2016 1 month(s) and 22 day(s) IK-14 Novosibirsk Region 05/03/2016 to 15/04/2016 1 month(s) and 11 day(s) 32 inmate(s) 1.4 m² sharing cells with inmates infected with contagious disease overcrowding 2,100 1335/17 12/12/2016 Vladimir Gennadyevich Krasnov 17/12/1987 IK-11 Nizhniy Novgorod Region Unit 7 27/07/2015 01/04/2017 1 year(s) and 8 month(s) and 6 day(s) 1.6 m² bunk beds, lack of fresh air, lack of or inadequate hygienic facilities, infestation of cell with insects/rodents, lack or insufficient quantity of food 6,000 1869/17 20/12/2016 Aleksey Gennadyevich Surkov 08/04/1962 IK-11 Nizhniy Novgorod Region 25/01/2013 19/12/2016 3 year(s) and 10 month(s) and 25 day(s) 64 inmate(s) 1.5 m² lack of privacy for toilet, lack of or insufficient physical exercise in fresh air, no or restricted access to shower 5,000 [1] Plus any tax that may be chargeable to the applicants." ]
[ "FOURTH SECTION CASE OF CHRISTIAN DEMOCRATIC PEOPLE’S PARTY v. MOLDOVA (No. 2) (Application no. 25196/04) 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 Christian Democratic People’s Party v. Moldova (no.", "2), The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Ljiljana Mijović,David Thór Björgvinsson,Ján Šikuta,Päivi Hirvelä,Mihai Poalelungi, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 12 January 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 25196/04) 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 the Christian Democratic People’s Party (“the applicant party”) on 26 May 2004. 2. The applicant was represented by Mr V Nagacevschi, a lawyer practising in Chişinău.", "The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. 3. The applicant party alleged, in particular, that its right to freedom of assembly had been violated. 4. On 4 April 2008 the President of the Fourth Section decided to give notice of the application to the Government.", "It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The Christian Democratic People’s Party (“the CDPP”) is a political party in the Republic of Moldova which was represented in Parliament and was in opposition at the time of the events. 6.", "On 3 December 2003 the applicant party applied to the Chişinău Municipal Council for an authorisation to hold a protest demonstration in the Square of the Great National Assembly, in front of the Government’s building, on 25 January 2004. According to the application, the organisers intended to express views on the functioning of the democratic institutions in Moldova, the respect for human rights and the Moldo-Russian conflict in Transdniestria. 7. On 20 January 2004 the Chişinău Municipal Council rejected the applicant party’s request on the ground that “it had convincing evidence of the fact that during the meeting, there will be calls to a war of agression, ethnic hatred and public violence”. 8.", "The applicant party challenged the refusal in court and argued, inter alia, that the reasons relied upon by the Municipal Council were entirely baseless. 9. On 23 January 2004 the Chişinău Court of Appeal dismissed the applicant party’s action. The court found that the Municipal Council’s refusal to authorise the CDPP’s demonstration was justified because the leaflets disseminated by it contained such slogans as “Down with Voronin’s totalitarian regime” and “Down with Putin’s occupation regime”. According to the Court of Appeal, these slogans constituted a call to a violent overthrow of the constitutional regime and to hatred towards the Russian people.", "In this context, the court recalled that during a previous demonstration organised by the applicant party to protest against the presence of the Russian military in Transdniestria, the protesters burned a picture of the President of the Russian Federation and a Russian flag. 10. The applicant party appealed against the above decision arguing, inter alia, that the impugned slogans could not have reasonably been interpreted as a call to a violent overthrow of the Government or as a call to ethnic hatred and that the refusal to authorise the meeting constituted a breach of its rights guaranteed by Articles 10 and 11 of the Convention. 11. On 21 April 2004 the Supreme Court of Justice dismissed the applicant party’s appeal and confirmed the judgment of the Court of Appeal.", "II. RELEVANT DOMESTIC LAW 12. The relevant provisions of the Assemblies Act of 21 June 1995 read as follows: “Section 6 (1) Assemblies shall be conducted peacefully, without any sort of weapons, and shall ensure the protection of participants and the environment, without impeding the normal use of public highways, road traffic and the operation of economic undertakings and without degenerating into acts of violence capable of endangering the public order and the physical integrity and life of persons or their property. Section 7 Assemblies shall be suspended in the following circumstances: (a) denial and defamation of the State and of the people; (b) incitement to war or aggression and incitement to hatred on ethnic, racial or religious grounds; c) incitement to discrimination, territorial separatism or public violence; d) acts that undermine the constitutional order. Section 8 (1) Assemblies may be conducted in squares, streets, parks and other public places in cities, towns and villages, and also in public buildings.", "(2) It shall be forbidden to conduct an assembly in the buildings of the public authorities, the local authorities, prosecutors’ offices, the courts or companies with armed security. (3) It shall be forbidden to conduct assemblies: (a) within fifty metres of the parliament building, the residence of the president of Moldova, the seat of the government, the Constitutional Court and the Supreme Court of Justice; (b) within twenty-five metres of the buildings of the central administrative authority, the local public authorities, courts, prosecutors’ offices, police stations, prisons and social rehabilitation institutions, military installations, railway stations, airports, hospitals, companies which use dangerous equipment and machines, and diplomatic institutions. (4) Free access to the premises of the institutions listed in subsection (3) shall be guaranteed. (5) The local public authorities may, if the organisers agree, establish places or buildings for permanent assemblies. Section 11 (1) Not later than fifteen days prior to the date of the assembly, the organiser shall submit a notification to the Municipal Council, a specimen of which is set out in the annex which forms an integral part of this Act.", "(2) The prior notification shall indicate: (a) the name of the organiser of the assembly and the aim of the assembly; (b) the date, starting time and finishing time of the assembly; (c) the location of the assembly and the access and return routes; (d) the manner in which the assembly is to take place; (e) the approximate number of participants; (f) the persons who are to ensure and answer for the sound conduct of the assembly; (g) the services which the organiser of the assembly asks the Municipal Council to provide. (3) If the situation so requires, the Municipal Council may alter certain aspects of the prior notification with the agreement of the organiser of the assembly.” Section 12 (1) The prior notification shall be examined by the local government of the town or village at the latest 5 days before the date of the assembly. (2) When the prior notification is considered at an ordinary or extraordinary meeting of the Municipal Council, the discussion shall deal with the form, timetable, location and other conditions for the conduct of the assembly and the decision taken shall take account of the specific situation. (...) (6) The local authorities can reject an application to hold an assembly only if after having consulted the police, it has obtained convincing evidence that the provisions of sections 6 and 7 will be breached with serious consequences for society. Section 14 (1) A decision rejecting the application for holding an assembly shall be reasoned and presented in writing.", "It shall contain reasons for refusing to issue the authorisation... Section 15 (1) The organiser of the assembly can challenge in the administrative courts the refusal of the local government.” THE LAW 13. The applicant party complained that the refusal to authorise its protest violated its right to freedom of peaceful assembly as guaranteed by Article 11 of the Convention, which provides: “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.” I. ADMISSIBILITY OF THE CASE 14. The Court considers that the present application raises questions of fact and law which are sufficiently serious for their determination to depend on an examination of the merits, and that no grounds for declaring it inadmissible have been established. The Court therefore declares the application admissible. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 4 above), the Court will immediately consider its merits.", "II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION A. The arguments of the parties 15. The applicant party submitted that the interference with its right to freedom of assembly did not pursue a legitimate aim and was not necessary in a democratic society. 16.", "The Government accepted that there has been an interference with the applicant’s rights as guaranteed by Article 11 of the Convention. However, that interference was prescribed by law, namely by the Assemblies Act, pursued a legitimate aim and was necessary in a democratic society. 17. In so far as the legitimate aim was concerned, the Government argued that the interference was warranted as it pursued national security and public order interests. In the Government’s opinion, the holding of the demonstration in front of the Government could have led to tension between the majority electorate of the Communist Party and the minority electorate of the applicant party and degenerate into acts of violence.", "Moreover, the calls of the applicant party concerning the “Russian occupation of Moldova” amounted to an instigation to a war of aggression and hatred against Russians. As to the proportionality of the interference with the legitimate aim pursued, the Government argued that the interest of the majority electorate who had voted for the Communist Party prevailed over that of the minority electorate who had voted for the applicant party. In addition, in limiting the applicant’s freedom of assembly, the authorities took into account the interest of Moldova in maintaining good bilateral relations with the Russian Federation. B. The Court’s assessment 18.", "It is common ground between the parties, and the Court agrees, that the decision to reject the applicant party’s application to hold a demonstration on 25 January 2004 amounted to “interference by [a] public authority” with the applicant’s right to freedom of assembly under the first paragraph of Article 11. Such interference will entail a violation of Article 11 unless it is “prescribed by law”, has an aim or aims that are legitimate under paragraph 2 of the Article and is “necessary in a democratic society” to achieve such aim or aims. 19. The parties do not dispute that the interference was lawful within the meaning of Article 11 of the Convention. At the same time they disagreed as to whether the interference served a legitimate aim.", "The Court, for the reasons set out below, does not consider it necessary to decide this point and will focus on the proportionality of the interference. 20. The Court recalls that it has stated many times in its judgments that not only is democracy a fundamental feature of the European public order but the Convention was designed to promote and maintain the ideals and values of a democratic society. Democracy, the Court has stressed, is the only political model contemplated in the Convention and the only one compatible with it. By virtue of the wording of the second paragraph of Article 11, and likewise of Articles 8, 9 and 10 of the Convention, the only necessity capable of justifying an interference with any of the rights enshrined in those Articles is one that may claim to spring from a “democratic society” (see Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos.", "41340/98, 41342/98, 41343/98 and 41344/98, §§ 86‑89, ECHR 2003‑II, and Christian Democratic People’s Party v. Moldova, no. 28793/02, ECHR 2006‑II). 21. Referring to the hallmarks of a “democratic society”, the Court has attached particular importance to pluralism, tolerance and broadmindedness. In that context, it has held that although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position (see Young, James and Webster v. the United Kingdom, 13 August 1981, § 63, Series A no.", "44, and Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 112, ECHR 1999‑III). 22. When carrying out its scrutiny under Article 11 the Court’s task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they have delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”.", "In 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 of Judgments and Decisions 1998‑I). 23. The right to freedom of peaceful assembly is secured to everyone who has the intention of organising a peaceful demonstration. The possibility of violent counter-demonstrations or the possibility of extremists with violent intentions joining the demonstration cannot as such take away that right (see Plattform “Ärzte für das Leben” v. Austria, judgment of 21 June 1988, § 32, Series A no. 139).", "The burden of proving the violent intentions of the organisers of a demonstration lies with the authorities. 24. In view of the essential role played by political parties in the proper functioning of democracy, the exceptions set out in Article 11 are, where political parties are concerned, to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties’ freedoms guaranteed by Article 11. In determining whether a necessity within the meaning of Article 11 § 2 exists, the Contracting States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision (see Socialist Party and Others v. Turkey, 25 May 1998, § 50, Reports 1998‑III). While freedom of expression is important for everybody, it is especially so for an elected representative of the people.", "He represents his electorate, draws attention to their preoccupations and defends their interests. Accordingly, interferences with the freedom of expression of an opposition member of parliament call for the closest scrutiny on the part of the Court (see Castells v. Spain, 23 April 1992, § 42, Series A no. 236). 25. The Court has often reiterated that the Convention is intended to guarantee rights that are not theoretical or illusory, but practical and effective (see Artico v. Italy, judgment of 13 May 1980, § 33, Series A no.", "37). It follows from that finding that a genuine and effective respect for freedom of association and assembly cannot be reduced to a mere duty on the part of the State not to interfere; a purely negative conception would not be compatible with the purpose of Article 11 nor with that of the Convention in general. There may thus be positive obligations to secure the effective enjoyment of the right to freedom of association and assembly (see Wilson, National Union of Journalists and Others v. the United Kingdom, nos. 30668/96, 30671/96 and 30678/96, § 41, ECHR 2002-V) even in the sphere of relations between individuals (see Plattform “Ärzte für das Leben”, cited above, § 32). Accordingly, it is incumbent upon public authorities to guarantee the proper functioning of a political party, even when it shocks or gives offence to persons opposed to the ideas or claims that it is seeking to promote.", "Their members must be able to hold meetings without having to fear that they will be subjected to physical violence by their opponents. Such a fear would be liable to deter other associations or political parties from openly expressing their opinions on highly controversial issues affecting the community. 26. Turning to the circumstances of the present case, the Court notes that at the material time the CDPP was a minority parliamentary opposition party with approximately ten per cent of the seats in Parliament, while the majority Communist Party had approximately seventy per cent of the seats. The interference concerned a demonstration in which the applicant party intended to protest against alleged anti-democratic abuses committed by the Government and against the Russian military presence in the break-away Transdniestrian region of Moldova.", "Given the public interest in free expression in respect of such topics and the fact that the applicant party was an opposition parliamentary political party, the Court considers that the State’s margin of appreciation was correspondingly narrow and that only very compelling reasons would have justified the interference with the CDPP’s right to freedom of expression and assembly. 27. The Court notes that the Chişinău Municipal Council and the domestic courts considered that the slogans “Down with Voronin’s totalitarian regime” and “Down with Putin’s occupation regime” ammounted to calls to a violent overthrow of the constitutional regime and to hatred towards the Russian people and an instigation to a war of agression against Russia. The Court notes that such slogans should be understood as an expression of dissatisfaction and protest and is not convinced that they could reasonably be considered as a call to violence even if accompanied by the burning of flags and pictures of Russian leaders. The Court recalls that even such forms of protest as active physical obstruction of hunting were held to be an expression of an opinion (see Steel and Others v. the United Kingdom, 23 September 1998, § 92, Reports 1998‑VII; Hashman and Harrup v. the United Kingdom [GC], no.", "25594/94, § 28, ECHR 1999‑VIII). In the present case also the Court finds that the applicant party’s slogans, even if accompanied by the burning of flags and pictures, was a form of expressing an opinion in respect of an issue of major public interest, namely the presence of Russian troops on the territory of Moldova. The Court recalls in this context that the freedom of expression refers 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 (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298). Accordingly, the Court is not convinced that the above reasons relied upon by the domestic authorities to refuse the applicant party authorisation to demonstrate could be considered relevant and sufficient within the meaning of Article 11 of the Convention.", "28. In their decisions, the domestic authorities also relied on the risk of clashes between the demonstrators and the supporters of the governing party. The Court considers that even if there was a theoretical risk of violent clashes between the protesters and supporters of the Communist Party, it was the task of the police to stand between the two groups and to ensure public order (see paragraph 25 above). Therefore, this reason for refusing authorisation could not be considered relevant and sufficient within the meaning of Article 11 of the Convention too. 29.", "In reaching the above conclusions the Court recalls that the applicant party had a record of numerous protest demonstrations held in 2002 which were peaceful and at which no violent clashes had occurred (see, Christian Democratic People’s Party v. Moldova, cited above; Roşca and Others v. Moldova, nos. 25230/02, 25203/02, 27642/02, 25234/02 and 25235/02, 27 March 2008). In such circumstances the Court considers that there was nothing to suggest in the applicant party’s actions that it intended to disrupt public order or to seek a confrontation with the authorities or with supporters of the governing party (see Hyde Park and Others v. Moldova, no. 33482/06, § 30, 31 March 2009). 30.", "Accordingly, Court concludes that the interference did not correspond to a pressing social need and was not necessary in a democratic society. There has been a violation of Article 11 of the Convention. III. 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.” A.", "Damage 32. The applicant claimed 3,000 euros (EUR) in respect of moral damage. 33. The Government disagreed and argued that the amount was excessive and unsubstantiated. 34.", "The Court awards the applicant party the entire amount claimed. B. Costs and expenses 35. The applicants also claimed EUR 1,098.05 for the costs and expenses incurred before the domestic courts and the Court. 36.", "The Government contested the amount and argued that it was excessive. 37. The Court awards EUR 1,000 for costs and expenses. C. Default interest 38. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 11 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 3,000 (three thousand euros) in respect of non-pecuniary damage plus any tax that may be chargeable on this amount; (ii) EUR 1,000 (one thousand euros) in respect of costs and expenses plus any tax that may be chargeable to the applicant on this amount; (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 BratzaDeputy RegistrarPresident" ]
[ "FIRST SECTION CASE OF MOGILAT v. RUSSIA (Application no. 8461/03) JUDGMENT STRASBOURG 13 March 2012 FINAL 24/09/2012 This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of Mogilat v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Anatoly Kovler,Peer Lorenzen,Elisabeth Steiner,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Julia Laffranque, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 21 February 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "8461/03) 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 Ukrainian national, Mr Ruslan Alekseyevich Mogilat (“the applicant”), on 13 February 2003. 2. The applicant, who had been granted legal aid, was represented by Ms M. Samorodkina, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, the then Representative of the Russian Federation at the European Court of Human Rights. 3.", "On 6 November 2007 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1971.", "The applicant’s home address after his release from detention in 2003 was not provided. A. Alleged ill-treatment in the police station 1. Arrest of the applicant 5. As established in the criminal case against the applicant (see paragraph 26 below), on 6 November 2001, at around 5 a.m., the applicant and an accomplice attempted to steal a car.", "A person residing in the neighbourhood called the police. Seeing that his accomplice had been apprehended by two officers, the applicant ran off and did not stop despite warnings from officer S., who was pursuing him. Later on, this officer stated under oath that after he had fired a warning shot in the air he saw the applicant fall into an opening for water drainage. Having been asked to stand up and move into a lighted area, the applicant, as perceived by S., adopted a threatening stance and moved forward to inflict a blow on S. To prevent resistance, the officer inflicted a blow to the applicant’s chest and used martial arts. The applicant fell to the ground and was handcuffed.", "Officer S. subsequently confirmed his earlier description of the arrest during a confrontation with the applicant. Another officer, K., was interviewed and also confirmed S.’s description of the arrest. 6. According to the applicant, early in the morning of 6 November 2001, when he was about to answer the call of nature on the street, a car stopped nearby and he saw a gun being pointed at him from the car window. Fearing for his life, he started to run away.", "However, hearing a gun shot and “Stop, police!”, he lay down on the ground and did not resist. 2. Detention in the police station 7. After the arrest the applicant was taken to the Kryukovo district police station in Moscow (ОВД «Крюково» г. Москвы). In the police station, field service officer Ma.", "interviewed the applicant from 11.30 a.m. to 11.40 a.m. The interview record indicates that the applicant was informed of his right under Article 51 of the Constitution and that “in addition to his earlier statement” the applicant also mentioned his previous convictions. 8. Investigator M. ordered field service officer G. to interview the applicant. Officer G. interviewed the applicant from 12.25 p.m. to 1 p.m.", "The applicant admitted that he had opened the door of the car with a screwdriver and had tried to start up the engine. 9. As can be seen from another interview record signed by investigator M., after the above-mentioned interviews the applicant requested legal assistance and named as his representatives the advocate Mr Koblev and Ms Chuvilova, who was not an advocate but worked for a non-governmental organisation. According to the applicant, the investigator refused permission to call his representatives or otherwise notify them of his arrest (see, however, paragraph 12 below). 10.", "According to the applicant, at the police station he was ill-treated by the operational officer who took his confession to the car theft. The applicant was handcuffed to a chair and punched and kicked. The officer put a gas mask on his face and blocked the air vent on it (see also paragraph 14 below). 11. At 3.15 p.m. the applicant was examined for alcohol intoxication at a Moscow clinic.", "According to the record, the applicant was not intoxicated and had no cuts or bruises but his clothing was dirty. 12. At 10 p.m. Ms Chuvilova arrived to see the applicant. On seeing injuries on his face and body, she called for an ambulance. It arrived and took the applicant to an emergency medical centre.", "The record of his admission there reads as follows: “Pain on the bridge of the nose, ribs X and XII on the right side, and especially in the right wrist in the area of I metacarpal bone I ... [illegible] ... Dark blue haematomas on the body (the left side of the chest) and nose.” The applicant’s chest and right wrist were X-rayed. The X-rays disclosed no fractures. It was concluded in the discharge certificate that the applicant was fit to remain in police custody. 13.", "On 7 November 2001 investigator M. interviewed the applicant in the presence of his counsel Mr Koblev. The interview concerned the alleged ill-treatment of the applicant, and the interview record reads, in the relevant part, as follows: “Mr Koblev: During this interview I have observed haematomas on your right ear and your nose. I also see that your right hand is bandaged. Please explain when and where these injuries were caused. Answer by Mr Mogilat: These injuries were inflicted on me during an interview with an operational officer whom I can identify.", "This happened in office no. 213 of the Kryukovo police station. In addition to these injuries, I have bruises all over my body ... Question for Mr Mogilat: When you were arrested by police officers at 5 a.m. on 6 November 2001, did you attempt to flee or resist the arrest? Did the police officers use any special measures or means, martial arts or firearms?", "Answer by Mr Mogilat: During the arrest I attempted to escape, but after a police officer fired a shot in the air, I lay down and did not resist. They handcuffed me and took me to a police station ...” The applicant’s counsel requested an inquiry to be ordered without delay and that the applicant be immediately examined by a forensic medical expert. 14. During an interview with an assistant to the public prosecutor on 8 November 2001 the applicant described the operational officer in question in more detail: “On 6 November 2001, at or around 11 or 12 a.m., I was in office no. 213 of the Kryukovo police station together with the operational officer, who was 175 to 180 cm tall, had a round face and dark brown hair and was stocky.", "Following the beatings he must have had a bleeding abrasion on his hand. At first I was handcuffed to a chair. The officer told me to sign a statement which indicated that I had tried to hijack the car. I refused to sign and he started hitting and kicking me all over my body; I do not remember the details as I was in a state of shock. Then he put a dark brown gas mask on me and blocked the air vent, and I felt a sudden strong blow to my head ...", "I signed the interview record. The handcuffs had to be removed with the aid of a hammer ... I would be able to identify the officer who ill-treated me ... A blow from the hammer used to remove the handcuffs left traces on the office table ...” The applicant’s counsel, Mr Kovlev and Ms Chuvilova, were present at the interview and reiterated their request for an immediate expert examination of the applicant. Such an examination was carried out in December 2001 (see paragraph 16 below). 15.", "On 9 November 2001 investigator M. ordered the applicant’s continued detention. The investigator referred to the “gravity of the crime committed by Mr Mogilat” and the risk that he would flee the investigation or trial. The prosecutor of the Zelenogradskiy district of Moscow countersigned the decision. 3. The inquiry into the allegation of ill-treatment and the applicant’s criminal trial 16.", "On 4 December 2001 investigator Ts. from the Investigations Unit of the Kryukovo police station submitted the applicant’s medical documents for a forensic examination in order to determine the extent and origin of the applicant’s injuries. On 6 December 2001 the expert returned the following findings: “During the examination [the applicant] was aggressive. When asked to get undressed, he swore and threatened to complain to the Strasbourg court. He wanted to be assisted by counsel in answering the questions raised before the expert ... Having examined [the applicant], the medical hospital record and two X-rays, I have reached the following conclusions: Having examined [the applicant] on 4 December 2001 (that is, one month after the events) I have not detected any injuries or traces of injuries ...", "The medical record from the hospital referred to haematomas on the right hand, chest and face. I note in this connection that the medical record has insufficient information about the morphological characteristics of the injuries, such as quantity, form, size, and exact anatomic location. Thus it is difficult to provide answers to certain questions raised by the requesting authority. It follows that the following injuries were caused to Mr Mogilat: a haematoma on the right hand followed by oedema, a haematoma on the left side of the chest and a haematoma on the nose. These bodily injuries have no forensic qualification and their gravity cannot be determined because they did not entail temporary disability for up to 21 days ...", "The injuries could have been caused as a result of impact by a hard object(s)... it is possible that they could have been caused on 6 November 2001 in the circumstances described in the file ...” 17. On 18 December 2001 the applicant read the expert report and requested that an alternative expert report be commissioned because he had not been informed of the investigator’s decision of 4 December 2001 to request an expert report and he had thus not been able to suggest questions to be raised before the expert. This request for a new expert report was rejected. 18. It appears that on an unspecified date Ms Chuvilova was interviewed in relation to the applicant’s complaint of ill-treatment.", "The applicant also confirmed his earlier allegations. 19. Several other persons were interviewed by unspecified officials during the inquiry. Arresting officers S. and K. claimed that the applicant had resisted arrest and that they had resorted to martial arts. Investigator M. stated that he had not seen any injuries on the applicant and that he had asked officer G. to conduct the interview.", "Officer G. denied that he had used force against the applicant in the police station. This officer also maintained that the applicant had confessed voluntarily. 20. On an unspecified date, the inquiry file into the allegation of ill-treatment was submitted to an assistant to the Zelenogradskiy district prosecutor. 21.", "On 26 December 2001 Ms Chuvilova filed a complaint with the Zelenogradskiy District Court of Moscow alleging violations of the applicant’s rights on account of ill-treatment by the police, the conducting of interviews in the absence of counsel, the belated commissioning of a forensic examination, and the lack of an investigation into the allegations of ill-treatment. 22. On 29 December 2001 the assistant to the district prosecutor issued a decision refusing the institution of criminal proceedings in relation to the applicant’s allegations of ill-treatment. On the basis of the testimony of above-mentioned witnesses, the medical report and the applicant’s own statements, the assistant to the prosecutor found that the injuries could have been caused during the applicant’s arrest and that there was no indication of abuse of power on the part of officer G. The Zelenogradskiy deputy prosecutor approved the assistant’s decision not to prosecute. It appears that the applicant’s counsel received a copy of that decision at the beginning of the trial in the applicant’s own criminal case.", "23. By a letter of 24 January 2002, a judge of the District Court forwarded Ms Chuvilova’s complaint of 26 December 2001 to the Moscow city prosecutor. Ms Chuvilova complained to the Moscow City Court that the District Court had not taken any procedural decision on her complaint. She received no reply from the City Court. Instead, on 18 February 2002 the District Court issued a decision by which it declared itself not competent to examine the complaint on the ground that such matters were not amenable to judicial review.", "24. According to the Government, on 28 February 2002 another refusal to institute criminal proceedings was issued in relation to the applicant’s allegation of ill-treatment. In the Government’s submission, this document could not be submitted to the Court because of the destruction on an unspecified date of the inquiry file containing this document, due to the expiry of the retention period. 25. On an unspecified date, the criminal case against the applicant was set for trial before the District Court.", "The applicant pleaded not guilty. Ms Chuvilova was removed from the proceedings by a decision of 2 April 2002 with reference to her previous questioning as a witness in relation to the allegation of ill-treatment. 26. On 18 April 2002 the District Court convicted the applicant as charged and sentenced him to five years and three months’ imprisonment. The District Court addressed the issue of the applicant’s injuries in the following manner: “During the pre-trial investigation and the trial the applicant repeatedly claimed that he had been severely beaten by police/operational officers and that he had been taken to a trauma unit and been treated for injuries by the emergency squad.", "The court does not doubt the fact that the defendant sustained some injuries because his arrest, as it has been established, was accompanied by the use of force. Mr S. hit him in the stomach and used martial arts on him, which certainly does not preclude some bodily injury ... A forensic medical expert issued a report ... The district prosecutor’s office carried out an inquiry into the applicant’s complaint. The inquiry did not confirm the facts alleged by Mr Mogilat and the institution of criminal proceedings was refused.” 27. On 22 April 2002 the City Court quashed the decision of 18 February 2002 (see paragraph 23 above) and remitted the matter for a new examination by the District Court (see also paragraph 30 below).", "28. The applicant appealed against his conviction and sought leave to be represented by Ms Chuvilova, but the court refused his request, noting that the applicant already had two lawyers, Mr Koblev and Mr Kozlov. On 17 June 2002 the City Court upheld the conviction. Following an application for supervisory review lodged by the President of the City Court, the Presidium of the City Court quashed the appeal judgment on unspecified grounds and remitted the matter for a new appeal hearing. 29.", "On 26 July 2002 the City Court scheduled a new appeal hearing for 7 August 2002 and ordered that the applicant’s lawyers be informed accordingly and that the applicant should participate in the hearing by way of a video link from his detention facility. On 7 August 2002 one of the lawyers asked the City Court to adjourn the hearing because the other lawyer was participating in other unrelated proceedings. The City Court granted his request and fixed a hearing for 13 August 2002. The text of the adjournment order indicates that the lawyer was to inform his absent colleague of the adjournment. The adjournment decision sets out the lawyer’s undertaking to this effect and bears his signature.", "It is also indicated in the order that on 8 August 2002 the presiding judge left a telephone message with the absent lawyer’s office about the adjournment. On 13 August 2002 the appeal court held a hearing. On the same date, the appeal court issued an appeal decision upholding the conviction. The text of the decision indicates that the court heard the applicant and his lawyers. 30.", "In the meantime, on 10 July 2002 the District Court re-examined Ms Chuvilova’s complaint about various violations of the applicant’s rights at the pre-trial stage of the proceedings (see paragraphs 23 and 27 above). Referring to Article 125 of the Code of Criminal Procedure, in force since 1 July 2002, the District Court noted that the applicant had already been convicted at final instance and that Ms Chuvilova had been removed from the proceedings by a decision of 2 April 2002 which had not been appealed against. On the merits of the complaint, the District Court ruled as follows: “As regards the substance of Mrs Chuvilova’s arguments, the court has established that all these arguments were examined by the court in the criminal proceedings against Mr Mogilat; certain pieces of evidence were declared inadmissible ... The trial court made an appropriate legal assessment of these arguments ... ” On 15 August 2002 the Moscow City Court summarily upheld that decision. 31.", "On 25 October 2002 Mr Kozlov sought supervisory review of the trial and appeal judgments in the criminal case against the applicant. 32. On 10 April 2003 the Presidium of the City Court upheld the judgment and reduced the applicant’s sentence to four years’ imprisonment. The applicant’s arguments were summarised as follows in the Presidium’s decision: “... The appeal decision does not comply with the requirements of law because it does not contain responses to the entirety of the defence’s arguments as presented in the statements of appeal.", "Nor does it contain sufficient reasoning for rejecting certain points of appeal. Moreover, the appeal hearing did not remedy the shortcoming previously identified by the supervisory-review court.” As to the alleged ill-treatment, the Presidium held as follows: “The trial court found that [the applicant] had sustained injuries during his arrest; he had attempted to leave the crime scene. The police officers had had to use firearms and martial arts. As stated by the witness S., after his warning shot [the applicant] had fallen into an opening for water drainage ... his clothes were dirty.” 33. The applicant was released in December 2003.", "B. Conditions of detention 34. From 10 to 13 November 2001 the applicant was held in a temporary detention centre and was then transferred to Moscow remand centre no. 77/5. 35.", "Allegedly, the applicant was not given any food on the days of the court hearings between 28 March and 18 April 2002. He had to wake up at 5 a.m. and was taken back to his cell in the detention facility at 11 p.m. His cell was overcrowded and the material conditions were unsatisfactory. II. RELEVANT DOMESTIC LAW AND PRACTICE 36. The RSFSR Code of Criminal Procedure of 1960 was, in its major part, in force until 1 July 2002.", "Article 113 of the Code provided that a prosecutor, an investigator or a court could issue a refusal to institute criminal proceedings. An appeal against such a refusal could be brought before a competent prosecutor or a higher court. In a ruling of 29 April 1998 the Constitutional Court of Russia held that judicial review of a refusal issued by a prosecutor or an investigator should be available. 37. Article 218 of the Code provided that a complaint against actions on the part of investigating authorities had to be brought before a prosecutor.", "In a ruling of 23 March 1999 the Constitutional Court considered that judicial review of actions or inaction on the part of investigating authorities or a prosecutor should be made available. The Constitutional Court considered that on receiving a criminal case with a bill of indictment, a trial court should be empowered to review procedural actions taken during the pre-trial stage of the proceedings. Such review should also concern decisions taken by investigating authorities which had resulted in a limitation of rights and freedoms. The availability of judicial review only after the closure of the preliminary investigation was not judged to be incompatible with the Constitution; however, it was noted in that connection that if pre-trial decisions seriously affected rights and freedoms beyond the scope of criminal procedure, judicial review even before the closure of the preliminary investigation should be made available. However, the Constitutional Court stated that in a judicial review procedure a court should not prejudge matters relating to the scope of a criminal trial in the main case.", "THE LAW I. THE ALLEGED ILL-TREATMENT AND SUBSEQUENT INVESTIGATION 38. The applicant complained under Articles 3, 6 and 13 of the Convention that he had been ill-treated and that there had been no effective investigation into his complaint. The Court will examine these complaints under Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 1.", "The Government 39. The Government submitted that since the applicant had resisted a lawful arrest, the officers had had to use physical force and handcuffs on him. The inquiry into his allegation of the excessive use of force, including the expert assessment of the bodily harm sustained, had been prejudiced by the belated introduction of the complaint by the applicant’s lawyer. 40. Furthermore, the Government argued that the applicant had failed to seek judicial review of the refusal to institute criminal proceedings in relation to his allegation of ill-treatment.", "The applicant had been represented by a lawyer at the pre-trial stage of the proceedings and thus should have applied for judicial review. His raising this matter before the trial court had been irrelevant since he had only sought the exclusion of his confession statement. 2. The applicant 41. The applicant argued that the national authorities and the respondent Government had failed to provide a plausible explanation for his injuries.", "The authorities had not specified the details of the applicant’s alleged resistance to the police during the arrest or the exact sequence of events and the nature of the force used against him. Nor had they compared the nature and location of the injuries with the force used. In any event, the applicant had not complained about the arresting officer’s actions. Officer G. and investigator M. should have noticed injuries on the applicant’s face and wrist. 42.", "The inquiry into the complaint of ill-treatment had not been thorough. The authorities had not taken any note of the details provided by the applicant (see paragraphs 13 and 14 above). Nor had they ordered a confrontation with or an identification parade to identify any officer. They had not carried out a search of the office in the police station where the applicant was interviewed, or an inspection of the place where the arrest was effected. Nor had they looked for a gas mask, a hammer or the damaged handcuffs.", "No investigative measures had been taken to remove inconsistencies between the testimony of the applicant and that of investigator M. and the arresting officers. Despite the immediate complaint of ill-treatment and reiterated requests for a forensic medical examination, such an examination had been carried out only one month after the events so that certain injuries had healed or left no further traces. The applicant and his counsel had not been afforded an opportunity to suggest questions to be raised before the medical expert. The inquiry could not have been independent since the officials of the prosecutor’s office had had the double task of prosecuting the applicant and supervising other public authorities. The applicant had obtained a copy of the refusal to institute criminal proceedings after a substantial delay and had not been given any subsequent related decisions.", "B. The Court’s assessment 1. Admissibility 43. The Government argued that the applicant should have sought judicial review of the refusal to institute criminal proceedings issued on 29 December 2001. 44.", "The Court reiterates that the purpose of Article 35 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 it (see Civet v. France [GC], no. 29340/95, § 41, ECHR 1999-VI). Whereas Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of effective remedies designed to challenge the decisions already given. It normally also requires that the complaints intended to be brought subsequently before the Court should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Cardot v. France, 19 March 1991, § 34, Series A no. 200).", "45. The Court considers that the question of exhaustion of domestic remedies is closely linked to the merits of the applicant’s complaint concerning the procedural aspect of Article 3 of the Convention (see, for a similar approach, Samoylov v. Russia, no. 64398/01, § 27, 2 October 2008, and paragraphs 66-68 below). 46. The Court also notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) Alleged ill-treatment (i) General principles 47. The Court reiterates that Article 3 of the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment.", "In order to fall within the scope of Article 3, the ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among others, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25). 48. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.", "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 Zelilof v. Greece, no. 17060/03, § 44, 24 May 2007, and Polyakov v. Russia, no. 77018/01, §§ 25 and 26, 29 January 2009). 49.", "The Court also reiterates that where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see Klaas v. Germany, 22 September 1993, § 29, Series A no. 269). Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Matko v. Slovenia, no. 43393/98, § 100, 2 November 2006). Where allegations are made under Article 3 of the Convention, however, the Court must apply a particularly thorough scrutiny.", "50. In respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see Sheydayev v. Russia, no. 65859/01, § 59, 7 December 2006; Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336; and Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004).", "(ii) Application of the principles in the present case 51. It is undisputed that on 6 November 2001 the applicant sustained injuries to his face, chest, ribs and wrist. In the Court’s view, those injuries were sufficiently serious to reach the “minimum level of severity” under Article 3 of the Convention. It remains to be considered whether the State should be held responsible under Article 3 for the injuries. 52.", "The applicant alleged at the domestic level and before the Court that at the police station he had been handcuffed to a chair, punched and kicked, and that an officer had put a gas mask on him and blocked the air vent (see paragraph 14 above). According to the national authorities and the Government, these injuries stemmed from the time of the applicant’s arrest and were not inflicted during his subsequent stay in the police station. 53. The Court observes that on 6 November 2001 the applicant attempted to run away from the police and that he was apprehended soon thereafter. It must be accepted that the national authorities’ task was rendered more difficult in such circumstances.", "The domestic findings indicate that on perceiving a physical threat from the applicant a police officer had to inflict a blow to the applicant’s chest and to use martial arts. The applicant fell to the ground; handcuffs were used on him. The domestic findings also indicate that the applicant fell into the opening of a water drainage system. 54. In the applicant’s submission, having heard a warning shot, he lay down on the ground and did not resist any further actions from the police.", "At the same time, the applicant did not seriously dispute the circumstances relating to his arrest. Nor did he complain about the use of force against him at that time. Although the Court was not provided with a copy of any reports which may have been made by the officers to their superiors in that connection, the applicant made no specific comment before this Court concerning the arresting officer’s use of force against him. The Court finds it plausible that the injuries which were subsequently recorded (see paragraphs 11 and 12 above) were sustained during the arrest. The Court does not have sufficient reasons to disagree with the domestic assessment.", "Thus, it may be accepted that the final stage of the arrest was carried out in a way which did not offend the requirements of Article 3 of the Convention. 55. Moreover, the Court considers that there are insufficient elements in support of the applicant’s allegation that he was subjected to inhuman or degrading treatment after his arrest. Thus, it has not been established that any inhuman or degrading treatment was inflicted on the applicant in the police station. 56.", "For these reasons, the Court concludes that no violation of Article 3 of the Convention has been established in relation to the injuries sustained by the applicant on 6 November 2001. (b) Alleged inadequacy of the investigation 57. The Court reiterates that where an individual raises a credible claim that he has been seriously ill-treated by agents of the State in breach of Article 3, there should be a thorough and effective investigation (see, among others, Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII, and Gäfgen v. Germany [GC], no. 22978/05, § 117, ECHR 2010). 58.", "Such an investigation should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002-II, and Mahmut Kaya v. Turkey, no. 22535/93, § 124, ECHR 2000-III). 59. The investigation into credible allegations of ill-treatment must be thorough.", "That means that the authorities must make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis for their decisions (see Assenov and others, cited above, § 103 et seq.). They must take all reasonable steps available to them to secure evidence concerning the incident, including eyewitness testimony and forensic evidence (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 104 et seq., ECHR 1999-IV, and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Also, the Court has often assessed whether the authorities have reacted promptly to the complaints at the relevant time, consideration being given to the date of commencement of investigations, delays in taking statements and the length of time taken to complete the investigation (see Labita v. Italy [GC], no.", "26772/95, § 133 et seq., ECHR 2000‑IV, and Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001). Furthermore, the Court reiterates its finding made on a number of occasions that the “investigation” in terms of Article 2 or 3 of the Convention should be carried out by competent, qualified and impartial experts who are independent of the suspected perpetrators and the agency they serve (see Oğur v. Turkey [GC], no. 21594/93, §§ 91 and 92, ECHR 1999-III, and Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 325, ECHR 2007‑II).", "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 applicable standard. 60. Turning to the present case, the Court first observes that the applicant’s injuries and his allegations against State agents were sufficiently serious and credible to require some form of investigation on the part of the national authorities. 61. In the Court’s view, having been alerted at the latest by 7 November 2001 to the presence of injuries on the applicant’s body and having learnt that they had probably been sustained and/or inflicted during and/or after his arrest, it was incumbent on the national authorities to verify that no proscribed treatment had been inflicted on him.", "However, the respondent Government has not indicated the exact date on which an inquiry was launched. 62. In that connection, it should also be noted that the applicant’s counsel twice, on 7 and 8 November 2001, insisted that the applicant should be subjected, without any further delay, to an examination by a medical expert. However, it does not appear that any investigative measures in relation to the alleged ill-treatment were carried out until 4 December 2001. On that date an investigator commissioned a medical report.", "63. Regarding this report, first, it has not been convincingly shown that the investigator in question was entirely unrelated to the Kryukovo police station to which the officer accused by the applicant of ill-treatment was assigned. On a more general level, the Court observes that at least two investigators and two assistants to public prosecutors were involved in the preliminary inquiry which resulted in the decision not to institute criminal proceedings against any public officials. It appears that investigator M. was in charge of the criminal case against the applicant at least at the initial stage of the proceedings (see paragraphs 8, 9, 13 and 15 above). At the same time, he worked in direct contact with officer G. and also interviewed the applicant in relation to his allegation of ill-treatment.", "Moreover, it is unclear which of the above or other officials carried out the interviews in the inquiry. The Court has doubts as to whether the “investigation” within the meaning of Article 3 of the Convention was carried out in the present case by officials or authorities who were both impartial and independent of the suspected perpetrators and the agency they served. 64. As regards the quality of the expert examination carried out from 4-6 December 2001, the Court reiterates that proper medical examinations are an essential safeguard against ill-treatment (see Akkoç v. Turkey, nos. 22947/93 and 22948/93, §§ 55 and 118, ECHR 2000-X, and numerous cases concerning Russia, for instance, Maksimov v. Russia, no.", "43233/02, § 88, 18 March 2010). In the present case, as noted by the applicant and the expert herself, the medical expert examination took place one month after the events and the medical record which was made available to the expert had insufficient information about the morphological characteristics of the injuries, such as quantity, form, size, and exact anatomic location. Thus, it was impracticable for the expert to provide adequate answers to the questions raised by the requesting authority. The previously recorded bodily injuries had no forensic qualification and their gravity could not be determined (see paragraph 16 above). While before this expert examination the applicant had been examined in a clinic and a hospital, the nature, purpose and scope of these earlier examinations were not such as to remedy the shortcomings arising from the belated recourse to a forensic expert in the present case.", "65. Moreover, while the applicant’s counsel and emergency doctors noted injuries, investigator M., officer G. and the clinic did not notice any. The domestic inquiry did not contain any comparative assessment of these apparently contradictory accounts. Nor did the authorities arrange for an identification parade or a confrontation between the applicant and officer G. 66. As to judicial review of a refusal to institute criminal proceedings, the Court reiterates that in the ordinary course of events such proceedings could be regarded as a possible remedy where the authorities have decided not to investigate the claims (see Samoylov, cited above, § 40).", "However, the Government have not contested that the refusal of 29 December 2001 was received by the defence at the beginning of the trial. It is noted that a court could not, in separate judicial review proceedings, prejudge matters relating to the scope of a criminal trial in the main case (see paragraph 37 above). Indeed, the matter of ill-treatment had received some attention on the part of the trial and appeal courts in the applicant’s own criminal case before it was raised before this Court (see paragraph 26 above). Second, by the time the defence obtained a copy of the decision of 29 December 2001 counsel had already brought proceedings in which certain matters relating to the alleged ill-treatment were raised (see paragraphs 23 and 30 above). 67.", "Lastly, referring to the destruction of the inquiry file due to the expiry of the period for retention on an unspecified date, the Government submitted that a new refusal to prosecute had been issued in February 2002. In the absence of any indication to the contrary, the Court is prepared to assume that this new refusal replaced the refusal issued on 29 December 2001. 68. In such circumstances, the Court accepts that the present complaint cannot be rejected on account of the applicant’s failure to seek judicial review in respect of the latter refusal (see, for comparison, Medvedev v. Russia, no. 9487/02, §§ 41-43, 15 July 2010).", "Thus, the Government’s argument concerning non-exhaustion of domestic remedies should be dismissed in the circumstances of this case. Having reached this conclusion, the Court also considers that the domestic courts in the present case did not remedy any shortcomings in the preliminary inquiry carried out in relation to the allegation of ill-treatment. 69. For the reasons stated in paragraphs 61-65 above, the Court concludes that the investigation into the complaint of ill-treatment did not comply with the requirements of Article 3 of the Convention. There has therefore been a violation of that provision.", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 70. The applicant complained that he had not been able to obtain a copy of the appeal judgment of 13 August 2002 in his criminal case. The Court will examine this complaint under Article 6 § 1 of the Convention, which reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 71. The Government made no comment as regards the alleged unavailability of the copy of the appeal decision.", "Instead, the Government argued with reference to the text of the appeal judgment that the applicant and his two lawyers had been present at the appeal hearing. Had it been otherwise, the applicant could have referred in his application for supervisory review to the violation of his defence rights in the appeal proceedings. 72. The applicant maintained his complaint, noting the Government’s omission to comment on the unavailability of the appeal decision. He subsequently added that the respondent Government had not furnished documentary proof of any proper notification or of the defence’s presence at the appeal hearing.", "73. As to access to the appeal decision, it follows from the defence’s submissions to the supervisory-review court that the defence was aware of the contents of the appeal decision (see paragraph 32 above). Indeed, it does not appear that the matter at the heart of the present complaint was aired in the supervisory-review proceedings, which resulted in a partially favourable outcome for the applicant. Thus, it has not been substantiated that the defence did not obtain a copy of the appeal decision. 74.", "Furthermore, the Court observes that it has not been expressly argued that the applicant and/or his counsel were not notified of the appeal hearing and were not present at it. Instead, the main thrust of the applicant’s reasoning related to the Government’s omission to submit any documentary proof. However, it transpires that the defence were made aware of the appeal hearing and participated in it (see paragraph 29 above). 75. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 76. Lastly, the applicant complained about the conditions of detention in the temporary detention centre, about his arrest and detention in January 2002, and of certain other violations of his rights in the criminal proceedings against him. 77. The Court has examined these complaints as submitted by the applicant.", "However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, 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 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 78. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 79. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage in relation to the alleged ill-treatment and EUR 19,400 in relation to the other alleged violations of the Convention. 80. The Government contested the first sum as excessive and the second sum as unrelated to the subject-matter of the present application. 81.", "The Court has found a violation of Article 3 of the Convention as regards its procedural aspect. Thus, the second part of the applicant’s claims should be dismissed as unrelated to this finding. Bearing in mind the nature of the violation and making an assessment on an equitable basis, the Court awards the applicant EUR 10,000, plus any tax that may be chargeable, in respect of non-pecuniary damage. B. Costs and expenses 82.", "The applicant made no claim and thus no award is required. C. Default interest 83. 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 alleged ill-treatment and ineffective investigation admissible and the remainder of the application inadmissible; 2.", "Holds that there has been no violation of Article 3 of the Convention in its substantive aspect; 3. Holds that there has been a violation of Article 3 of the Convention in its procedural aspect; 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 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable on the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 13 March 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenNina VajićRegistrarPresident" ]
[ "FIRST SECTION CASE OF STANISLAV VOLKOV v. RUSSIA (Application no. 8564/02) JUDGMENT STRASBOURG 15 March 2007 FINAL 15/06/2007 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 Stanislav Volkov 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,MrK. Hajiyev,MrD.", "Spielmann, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 20 February 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 8564/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Stanislav Yevgenyevich Volkov (“the applicant”), on 28 January 2002. 2. The applicant was represented by Mr V. Skibin, a lawyer practising in the town of Cherkessk.", "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 5 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 4.", "The applicant was born in 1968 and lives in the town of Cherkessk of the Karachayevo-Cherkessiya Republic. 5. According to the applicant, on 13 July 1997 the police instituted administrative proceedings against him for having disobeyed a lawful order of a police officer and arrested him. On the following day the Elista Town Court of the Kalmykiya Republic discontinued the proceedings because there was no indication of an administrative offence. The decision of the Town Court did not contain any reference to the applicant's alleged deprivation of liberty.", "6. The applicant submitted that after the hearing the policemen brought him back to a police station. They handcuffed him to a heating device, put a plastic bag on his head and severely beat him up. 7. On 16 July 1997 an investigator of the Department of Internal Affairs of the Karachayevo-Cherkessiya Republic instituted criminal proceedings against the applicant and three other persons on suspicion of participation in a criminal enterprise and ordered their arrest.", "As it follows from a record of 16 July 1997, the applicant was arrested on the same day at 11.50 p.m. He was also charged with unlawful possession of a weapon. 8. On 30 December 1998 the Cherkessk Town Court acquitted the applicant and ordered his immediate release. The judgment became final on 2 February 1999 when it was upheld by the Supreme Court of the Karachayevo-Cherkessiya Republic.", "9. In August 2000 the applicant lodged an action against the Treasury and the Ministry of Internal Affairs of the Russian Federation for compensation for non-pecuniary damage incurred through unlawful detention. 10. On 11 March 2001 the Cherkessk Town Court accepted the applicant's action and ordered that the Ministry of Internal Affairs should pay the applicant 190,000 Russian roubles (RUR, 7,095 euros) at the expense of the Treasury. The Town Court held as follows: “Mr Volkov was unlawfully detained from 16 July 1997 to 30 December 1998, that is for a total of 535 days.", "It was proven at the court hearing that Mr Volkov sustained non-pecuniary damage and it should be compensated because he was acquitted by a final judgment. According to paragraph 8 of the Decree of the Plenary Supreme Court of the Russian Federation no. 10 of 20 December 1994 'On certain questions concerning application of the domestic law on compensation for non-pecuniary damage'... the amount of compensation depends on the character and extent of moral and physical suffering caused to the plaintiff, fault of the defendant in each particular case, and other circumstances which merit attention... The court ... takes into account that the amount and extent of moral and physical suffering of a person depend on his subjective perception of the existing situation and considers that, having regard to the arguments and evidence submitted by the parties, it is possible to award the plaintiff 190,000 roubles in compensation for non-pecuniary damage. Assessing the moral sufferings caused to the plaintiff, possible consequences of the plaintiff's conviction, and having examined the materials of the criminal case-file, the court considers that the awarded amount is reasonable and fair.” The judgment of 11 March 2001 was not appealed against and became final.", "11. On an unspecified date the President of the Supreme Court of the Karachayevo-Cherkessiya Republic lodged before the Presidium of the Supreme Court an application for a supervisory review of the judgment of 11 March 2001 because the Town Court should have issued the judgment directly against the Treasury and should have excluded the Ministry of Internal Affairs from the proceedings. 12. On 8 August 2001 the Presidium of the Supreme Court of the Karachaevo-Cherkessiya Republic, by way of supervisory-review proceedings, quashed the judgment of 11 March 2001 and remitted the case for a fresh examination. The Presidium noted that the Town Court had incorrectly assessed the amount of compensation and that it should have joined the Treasury as defendant to the proceedings.", "13. On 27 September 2001 the Cherkessk Town Court found that the applicant's detention had been unlawful but reduced compensation to RUR 5,000 (EUR 184). The reasoning in the judgment of 27 September 2001 repeated word by word that of the judgment of 11 March 2001, save for the amount in the penultimate paragraph where 190,000 was replaced with 5,000. The judgment of 27 September 2001 was upheld on appeal on 16 October 2001. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF THE QUASHING OF THE JUDGMENT OF 11 MARCH 2001 14. The applicant complained that the quashing of the final judgment of 11 March 2001 had violated his “right to a court” and his right to peaceful enjoyment of possessions. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.", "The relevant parts of these provisions read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...” A. Submissions by the parties 15. The Government argued that that the Presidium of the Supreme Court of the Karachayevo-Cherkessiya Republic quashed the judgment of 11 March 2001 with a view to correcting the judicial error committed by the Town Court. 16.", "The applicant averred that the quashing of the final judgment had irremediably impaired the principle of legal certainty and had deprived him of the right to receive compensation for damage caused by the unlawful detention for 535 days which was found by the domestic courts to be unlawful. B. The Court's assessment 1. Article 6 § 1 of the Convention (a) Admissibility 17. 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 18. 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).", "19. This principle insists that no party is entitled to seek re-opening of the proceedings merely for the purpose of a rehearing and a fresh decision of the case. Higher courts' power to quash or alter binding and enforceable judicial decisions should be exercised for correction of fundamental defects. The mere possibility of two views on the subject is not a ground for re-examination. Departures from that principle are justified only when made necessary by circumstances of a substantial and compelling character (see, mutatis mutandis, Ryabykh v. Russia, no.", "52854/99, § 52, ECHR 2003-X; and Pravednaya v. Russia, no. 69529/01, § 25, 18 November 2004). 20. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect.", "However, that right would be illusory if a Contracting State's domestic legal system allowed a final and binding judicial decision to be quashed by a higher court on an application made by a State official whose power to lodge such an application is not subject to any time-limit, with the result that the judgments were liable to challenge indefinitely (see Ryabykh, cited above, §§ 54-56). 21. The Court observes that on 11 March 2001 the Cherkessk Town Court accepted the applicant's tort action and granted him a sum of money in respect of compensation for non-pecuniary damage caused by the wrongful detention. The judgment was not appealed against and became binding and enforceable. On 8 August 2001 that judgment was quashed by way of supervisory review initiated by the President of the Supreme Court of the Karachayevo-Cherkessiya Republic who was a State official but not a party to the proceedings (see paragraph 11 above).", "22. The Court has found a violation of an applicant's “right to a court” guaranteed by Article 6 § 1 of the Convention in many cases in which a judicial decision that had become final and binding, was subsequently quashed by a higher court on an application by a State official whose power to intervene was not subject to any time-limit (see Roseltrans v. Russia, no. 60974/00, §§ 27-28, 21 July 2005; Volkova v. Russia, no. 48758/99, §§ 34-36, 5 April 2005; and Ryabykh, cited above, §§ 51-56). 23.", "Having examined the materials submitted to it, the Court observes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Accordingly, the Court finds that there has been a violation of Article 6 § 1 of the Convention on account of the quashing of the judgment given in the applicant's case by way of supervisory-review proceedings. 2. Article 1 of Protocol No. 1 (a) Admissibility 24.", "The Court observes that the applicant's complaint under Article 1 of Protocol No. 1 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. (b) Merits 25. The Court reiterates that the existence of a debt confirmed by a binding and enforceable judgment constitutes the judgment beneficiary's “possession” within the meaning of Article 1 of Protocol No.", "1. Quashing of such a judgment amounts to an interference with his or her right to peaceful enjoyment of possessions (see, among other authorities, Androsov v. Russia, no. 63973/00, § 69, 6 October 2005). 26. The Court observes that the final and enforceable judgment of 11 March 2001 by which the applicant had been awarded a certain sum of compensation was quashed on a supervisory review on 8 August 2001.", "The applicant's claims were sent for re-consideration, following which the Town and Regional courts substantially reduced the amount of the initial award, despite the fact that the reasons given in their judgments were identical to those of the judgment of 11 March 2001. Thus, the applicant was prevented from receiving the initial award through no fault of his own. The quashing of the enforceable judgment frustrated the applicant's reliance on the binding judicial decision and deprived him of an opportunity to receive the money he had legitimately expected to receive. In these circumstances, the Court considers that the quashing of the enforceable judgment of 11 March 2001 by way of supervisory review placed an excessive burden on the applicant and was incompatible with Article 1 of Protocol No. 1.", "There has therefore been a violation of that Article. II. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION 27. The applicant complained under Article 5 § 5 of the Convention that the quashing of the final judgment of 11 March 2001 had violated his right to adequate compensation for his unlawful detention. Article 5 § 5 of the Convention read as follows: “Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. Submissions by the parties 28.", "The Government submitted that the applicant had not exhausted domestic remedies because he had not claimed compensation for the pecuniary damage. 29. The applicant averred that he had not claimed compensation in respect of pecuniary damage because he had considered that he had only sustained non-pecuniary damage as a result of his unlawful detention. He further submitted that he had remained in detention for 535 days. The authorities had acknowledged that his detention had been unlawful but by the final judgment of 16 October 2001 they had awarded him RUR 5,000, that is approximately RUR 9 (EUR 0.3) per day of detention.", "The amount was inadequate. B. The Court's assessment (a) Admissibility 30. Having regard to the above findings under Article 6 of the Convention and Article 1 of Protocol No. 1, as well as the parties' submissions under Article 5 § 5 of the Convention, the Court considers that the latter is closely linked to the other complaints declared admissible.", "In these circumstances, the Court considers that this complaint should be declared admissible as well. (b) Merits 31. The Court observes that the applicant complained under Article 5 § 5 of the Convention that as a result of the supervisory review he could no longer receive the compensation awarded to him under the judgment of 11 March 2001. The present complaint is, in fact, a restatement of his complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 concerning the quashing of the judgment of 11 March 2001.", "The Court observes that the reduction of the amount of compensation complained of by the applicant was the incidental effect of the quashing of the judgment of 11 March 2001, which the Court has held to be in breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. 32. In view of its findings under Article 6 of the Convention and Article 1 of Protocol No. 1 and taking into account that it was the quashing of the judgment of 11 March 2001 which was at the heart of the present complaint, the Court considers that it is not necessary to examine separately the applicant's complaint under Article 5 § 5 of the Convention.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 33. The applicant further complained under Articles 3 and 5 § 1 (c) of the Convention that the policemen had ill-treated him on 13 July 1997 and that he had been unlawfully detained from 13 to 15 July 1997. 34. The Court observes that the events about which the applicant complained had occurred before 5 May 1998, when the Convention entered into force in respect of Russia, and that the applicant did not raise these issues before any Russian authorities.", "However, the Convention only governs, for each Contracting Party, facts subsequent to its entry into force with respect to that Party. 35. Accordingly, the Court considers that this part of the application is incompatible ratione temporis with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 36.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 37. The applicant claimed compensation, without specifying the amount. He left the determination of the amount to the Court's discretion. 38.", "The Government argued that it was for the Russian courts to determine the amount of compensation. However, the applicant did not exhaust domestic remedies because he had not lodged claims in respect of pecuniary damage. In any event, his claims are excessive. 39. The Court recalls that for the purposes of examining claims for just satisfaction submitted under Article 41 of the Convention the requirement of exhaustion of domestic remedies does not apply (see Gridin v. Russia, no.", "4171/04, § 20, 1 June 2006, with further references). 40. The Court reiterates that in the instant case it found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, in that the final judicial decision in the applicant's favour had been quashed by way of supervisory review. Having regard to the nature of the violation found, the Court considers it appropriate to award the applicant the sum which he would have received had the judgment of 11 March 2001 not been quashed, deducting the sum awarded to him under the judgment of 27 September 2001 (see paragraphs 10 and 13 above) (cf.", "Stetsenko v. Russia, no. 878/03, § 69, 5 October 2006). 41. The Court further considers that the applicant must have suffered distress and frustration resulting from the quashing of the final judicial decision by way of the supervisory-review proceedings. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 2,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on the above amount.", "B. Costs and expenses 42. The applicant did not seek reimbursement of costs and expenses relating to the proceedings before the domestic courts or the Convention organs and this is not a matter which the Court has to examine on its own motion (see Motière v. France, no. 39615/98, § 26, 5 December 2000). C. Default interest 43.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints concerning the quashing of the final judgment of 11 March 2001 and the reduction of the compensation for unlawful detention following that quashing admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1; 3.", "Holds that it is not necessary to examine the applicant's complaint under Article 5 § 5 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) RUR 185,000 (one hundred and eighty-five thousand Russian roubles) in respect of pecuniary damage; (ii) EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of the settlement; (iii) any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Done in English, and notified in writing on 15 March 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]
[ "FIFTH SECTION CASE OF VINNIK AND OTHERS v. UKRAINE (Application no. 13977/05 and 45 other applications) JUDGMENT STRASBOURG 7 November 2013 This judgment is final. It may be subject to editorial revision. In the case of Vinnik 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 15 October 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in 46 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 nationals, one Lithuanian national (application no.", "74608/10) and companies based in Ukraine. Their details are specified in the appended tables (“the applicants”). 2. In applications nos. 20748/09, 25288/10, 25762/10 and 31562/13 the applicants died in course of the proceedings before the Court.", "Their next-of-kin expressed the wish to pursue the applications. 3. The Government were represented by their Agent, Mr Nazar Kulchytskyy. 4. The applications listed in the Appendix to the present judgment were communicated to the Government on various dates between 2008 and 2011.", "5. On various dates the Government submitted to the Court a number of unilateral declarations aimed at resolving the non-enforcement issues raised in seventeen applications. The Government requested the Court to strike the applications concerned out of the list of cases pursuant to Article 37 § 1 (c) of the Convention on the basis of the declarations. The Court examined the declarations and decided to reject the Government’s request. 6.", "The Lithuanian Government, having been informed of their right to intervene in the proceedings in respect of the applicant in application no. 74608/10 (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise that right. THE FACTS THE CIRCUMSTANCES OF THE CASE 7. On the dates set out in the appended table domestic courts and labour disputes commissions 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. 8. 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 9. 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. ADMISSIBILITY OF APPLICATION No. 36411/06 AS REGARDS THE SECOND, THIRD AND FOURTH APPLICANTS 10. In application no. 36411/06 the applicants, members of the same family, complain about the lengthy non-enforcement of three judgments given exclusively in favour of the first applicant, Mr Petro Stanislavovych Abramov.", "The other applicants do not have an enforceable and final judgment adopted in their favour and therefore they neither can complain of the lengthy non-enforcement of the judgments, nor can they claim to be victims of the alleged violations of their Convention rights. 11. It follows that insofar as application no. 36411/06 has been lodged by the second, third and fourth applicants it is incompatible ratione personae with the provisions of the Convention. This part of the application should therefore be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "III. THE STANDING OF THE APPLICANTS IN APPLICATIONS Nos. 20748/09, 25288/10, 25762/10 AND 31562/13 12. The Court considers that the applicants’ heirs or next-of-kin in applications nos. 20748/09, 25288/10, 25762/10 and 31562/13 (see paragraph 2 above) have standing to continue the proceedings in the applicants’ stead (see, among other authorities, Mironov v. Ukraine, no.", "19916/04, § 12, 14 December 2006). IV. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 13. The applicants 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. 14. The Court notes that the above complaints (see paragraph 13 above) lodged by the applicants listed in the Appendix (by the first applicant only in application no. 36411/06) 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. 15. The Court finds that the decisions in the applicants’ favour were not enforced in due time, for which the State authorities were responsible. 16.", "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. V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 17.", "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. 18. 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. VI.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 19. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 20. In the present case, 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 (to the first applicant in application no. 36411/06). This sum is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses. 21. The Court further notes that the respondent State has an outstanding obligation to enforce the decisions which remain enforceable.", "22. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join the applications set out in the Appendix; 2. Declares application no.", "36411/06 partly inadmissible insofar as it has been lodged by the second, third and fourth applicants; 3. Declares the complaints of the applicants listed in the Appendix (the first applicant only in application no. 36411/06) 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; 4. Holds that there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No.", "1; 5. Holds that there has been a violation of Article 13 of the Convention; 6. 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 (to the first applicant only in application no. 36411/06) 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. Done in English, and notified in writing on 7 November 2013, 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 13977/05 15/02/2005 Tatiana Leonidovna VINNIK 03/10/1958 Lysychansk 1) Labour disputes commission of the State enterprise \"Lysychanskyy Remontno-Mekhanichnyy Zavod\", 15/05/2003 2) Labour disputes commission of the State enterprise \"Lysychanskyy Remontno-Mekhanichnyy Zavod\", 02/11/2004 36411/06 18/08/2006 Petro Stanislavovych ABRAMOV (“the first applicant”)[1] 06/01/1968 Poltava 1) Kyivskyy District Court of Poltava, 12/08/2003, as amended by the Kharkiv Regional Court of Appeal, 24/03/2004 2) Kyivskyy District Court of Poltava, 25/05/2005 3) Kharkiv Regional Court of Appeal, 16/06/2005 23939/07 16/05/2007 Kostyantyn Volodymyrovych LOGUTOV 25/06/1976 Kyiv Vyshgorod Court, 17/03/2005 55215/07 03/12/2007 Iryna Yuriyivna SHAPARENKO 08/12/1957 Tarashcha Solomyanskyy District Court of Kyiv, 21/10/2008 3001/08 04/01/2008 Inna Valeryivna MANOYLYK 07/11/1976 Chernigiv Chernigiv Regional Court of Appeal, 09/07/2004 7932/08 28/01/2008 Valentina Ivanovna TARASOVA 13/10/1954 Yenakiyeve Donetsk Regional Commercial Court, 23/07/2003 (no. 33/221?) 9091/08 05/02/2008 Vladimir Ivanovich BONDAR 09/06/1934 Odesa Malynovskyy District Court of Odesa, 03/06/2003 34957/08 04/07/2008 Kateryna Dmytrivna KOLESNIKOVA 23/09/1950 Poltava Poltava Regional Court of Appeal, 24/10/2006 42506/08 14/08/2008 Nina Mykolayivna KLINCHUK 28/10/1958 Korosten Korosten Court, 24/02/2006 48488/08 15/07/2008 Vitaliy Pavlovych ONYSHCHAK 19/04/1952 Khrystynivka Uman Court, 03/04/2008 17140/09 16/01/2009 Mykola Mykhaylovych YAVOROVENKO 05/01/1949 Vinnytsya 1) Leninskyy District Court of Vinnytsya, 23/11/2006 2) Leninskyy District Court of Vinnytsya, 12/11/2008 3) Zamostyanskyy District Court of Vinnytsya, 22/12/2006 4) Zamostyanskyy District Court of Vinnytsya, 26/06/2007 (case no.", "2-1772) 5) Zamostyanskyy District Court of Vinnytsya, 26/06/2007 (case no. 2-a-824-07) 6) Zamostyanskyy District Court of Vinnytsya, 22/07/2008 18168/09 22/03/2009 Sergey Panasovich IVASHCHENKO 20/10/1916 Andreyevo-Ivanovo Mykolayivskyy District Court of the Odesa Region, 03/10/2007 20748/09 01/04/2009 Nikolay Ivanovich CHAYENKO 30/08/1947 Leninske Sverdlovsk Court, 17/04/2007 23273/09 17/04/2009 Anatoliy Ivanovych MATSNEV 06/10/1950 Vinnytsya Zamostyanskyy District Court of Vinnytsya, 30/03/2007 23366/09 04/04/2009 Sergiy Viktorovych KISELYOV 28/09/1965 Vatutine Vatutine Court, 03/08/2007, quashed by the Kyiv Administrative Court of Appeal on 20/05/2010 23702/09 16/04/2009 Yevgeniy Vladimirovich SKUDIN 07/08/1986 Mariupol Prymorskyy District Court of Mariupol, 30/05/2008 30370/09 26/05/2009 Viktor Mykolayovych KOVAL 07/05/1954 Oleksandriya 1) Dnipropetrovsk Administrative Court of Appeal, 24/07/2008 2) Oleksandriya Court, 10.04.2008. 32650/09 26/05/2009 Sergey Nikolayevich PELIKHOS 15/06/1971 Makiyivka Chervonogvardiyskyy District Court of Makiyivka, 12/04/2007 46819/09 19/08/2009 Leonid Ivanovych GRYGORUK 23/04/1956 Kyiv Darnytskyy District Court of Kyiv, 12/02/2008 (as amended by the Higher Administrative Court on 26/07/2011) 62241/09 03/11/2009 Daniya Galimzhanovna SHAKIRZYANOVA 24/02/1954 Zhuravlivka Shakhtarsk Court, 27/12/2005 2831/10 16/12/2009 Valentina Georgiyevna OVCHINNIKOVA 23/11/1932 Mykolayiv Tsentralnyy District Court of Mykolayiv, 12/07/2007 4855/10 06/01/2010 Mikhail Mefodyevich GRIGORYEV 27/05/1951 Lugansk Artemivskyy District Court of Lugansk, 13/10/2008 4862/10 06/01/2010 Vladimir Fedorovich DUDENKO 22/04/1951 Lugansk Artemivskyy District Court of Lugansk, 10/11/2008 25288/10 23/04/2010 Oleksandr Oleksandrovych SHMULYA 12/02/1945 Koroviy Yar Krasnyy Lyman Court, 17/08/1999 25762/10 23/04/2010 Vasyl Ivanovych TYSHCHENKO 04/05/1950 Koroviy Yar Krasnyy Lyman Court, 12/12/2003 28839/10 07/05/2010 Iryna Myroslavivna CHAYKOVSKA 22/08/1981 Ternopil Ternopil Court, 11/05/2009 (date stated in the text of the judgment 11/06/2009) 42011/10 13/07/2010 Nina Panteleymonovna ASTAPENKO 01/01/1939 Tsyurupynsk Tsuyrupinsk Court, 29/03/2000 46017/10 26/07/2010 Mykhaylo Mykolayovych SIRENKO 19/11/1957 Selydove Sylidove Court, 17/05/2004 48219/10 02/08/2010 Petr Stepanovich TRIFONOV 06/02/1953 Kiliya 1) Kiliya Court, 28/02/2007 2) Kiliya Court, 28/08/2002 3) Kiliya Court, 10/02/2000 51820/10 20/07/2010 Aleksandr Ivanovich PODOPRIGORA 15/12/1957 Kryvyy Rig Saksaganskyy District Court of Kryvyy Rig, 11/07/2008 as amended by judgment of the Saksaganskyy District Court of Kryvyy Rig, 22/06/2009 64871/10 26/10/2010 Yelena Aleksandrovna BELOCHENKO 24/05/1926 Sevastopol Kotovsk Court, 27/05/2008, quashed by the Odesa Administrative Court of Appeal, 01/06/2011 68156/10 01/07/2010 Ivan Tymofiyovych BAVINOV 28/10/1934 Kremenchuk Avtozavodskyy District Court of Kremenchuk, 04/09/2003 68607/10 05/11/2010 Larisa Fedorovna KOLESNIKOVA 03/04/1951 Mariupol Novoazovsk Court, 07/07/2006 69438/10 09/11/2010 Ruslan Yuriyovych LYAKH 13/08/1966 Kolomyya Zamostyanskyy District Court of Vinnytsya, 27/11/2006 74338/10 20/11/2010 FPK GROSS OOO Kharkiv Kyivskyy District Court of Kharkiv, 21/04/2000 74608/10 07/12/2010 Yevgeniy Stepanovich UGLEV 23/07/1952 Cherkasy Sosnovskyy District Court of Cherkasy, 11/02/2008 572/11 12/12/2010 1) Volodymyr Mykolayovych OLKHOVSKYY 28/01/1981 Poltava 2) Olena Oleksandrivna OLKHOVSKA 28/01/1981 Poltava Applicant 1 Kyivskyy District Court of Poltava, 15/07/2009 Applicant 2 Kyivskyy District Court of Poltava, 15/07/2009 656/11 20/12/2010 Viktor Pavlovich ZAKHAROV 06/09/1950 Kripenskiy 1) Lugansk Regional Commercial Court, 01/11/2005; 2) Lugansk Regional Commercial Court, 01/11/2005 768/11 13/12/2010 Magdalina Vasilyevna LADZHUN 20/08/1949 Mukachevo Zakarpattya Regional Court of Appeal, 14/07/2005 1205/11 22/12/2010 Ivan Prokofyevich SKREBTSOV 02/11/1949 Lugansk 1) Zhovtnevyy District Court of Lugansk, 20/11/2007, as amended by the Higher Administrative Court, 22/07/2010 2) Zhovtnevyy District Court of Lugansk, 25/11/2008 1503/11 25/12/2010 Nataliya Viktorivna ARKHYPOVA 20/10/1970 Lysychansk Lysychansk Court, 15/02/2005 1677/11 26/12/2010 Nataliya Nikolayevna BACHKALOVA 14/06/1953 Poltava 1) Poltava Circuit Administrative Court, 08/10/2008 2) Oktyabrskyy District Court of Poltava, 03/08/2007, as amended by the Kharkiv Administrative Court of Appeal, 15/05/2008 3) Oktyabrskyy District Court of Poltava, 02/11/2009 2491/11 29/12/2010 IBRIS, TOV Dnipropetrovsk Kyiv Commercial Court 27/02/2006 (amended on 19/04/2006 by the Kyiv Commercial Court of Appeal and on 31/01/2007 by the Higher Administrative Court) 4510/11 10/01/2011 Vladimir Alekseyevich POPOV 04/01/1944 Lugansk Kamyanobridskyy District Court of Lugansk, 24/06/2009 6638/11 15/01/2011 Oleksandr Onysymovych KUDLAYENKO 18/01/1955 Vinnytsya 1) Zamostyanskyy District Court of Vinnytsya, 21/12/2006 2) Zamostyanskyy District Court of Vinnytsya, 27/04/2007 31562/13 24/02/2010 Anatoliy Sydorovych PASTUSHENKO 08/09/1947 Donetsk Kirovskyy District Court of Donetsk, 09/12/2008 [1]. Second, third and fourth applicants (inadmissible): Mariya Leontiyivna ABRAMOVA, Olga Petrivna ABRAMOVA, Sofiya Petrivna ABRAMOVA" ]
[ "SECOND SECTION CASE OF DALA v. HUNGARY (Application no. 71096/01) JUDGMENT STRASBOURG 5 October 2004 FINAL 05/01/2005 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 Dala 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 14 September 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 71096/01) 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 Sándor Dala (“the applicant”), on 12 January 2001. 2. The Hungarian Government (“the Government”) were represented by their Agent, Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice. 3.", "On 5 February 2003 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 4. The applicant was born in 1929 and lives in Komárom, Hungary. 5.", "On 29 April 1991 the applicant brought an action against his former spouse seeking the division of the matrimonial property. 6. Following three hearings, the District Court was inactive between 9June 1993 and 19 October 1995. The District Court then held four more hearings. On 13 March 1997 the defendant requested that a real-estate expert be appointed.", "Due to a delay in depositing the expert’s costs attributable to the parties, the expert was only appointed on 19 January 1998. Having obtained evidence from numerous witnesses as well as from a judicial real-estate expert, on 4 June 1998 the Komárom District Court ruled on the division of the property. 7. On 10 February 1999 the Komárom-Esztergom County Regional Court confirmed the first-instance decision in substance. 8.", "On 30 April 1999 the applicant filed a petition for review with the Supreme Court, which on 29 December 2000 upheld the Regional Court’s judgment. This decision was served on the applicant on 16 January 2001. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION CONCERNING THE LENGTH OF THE PROCEEDINGS 9. 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...” 10.", "The Government contested that argument. 11. The period to be taken into consideration only began on 5 November 1992, when the recognition by Hungary 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. By that date the proceedings had already been pending for over a year and a half.", "The period in question ended with the service of the Supreme Court’s decision on 16 January 2001. It thus lasted over eight years and two months before three court instances. A. Admissibility 12. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 13. The 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).", "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 case (see Frydlender, cited above). 15. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "There has accordingly been a breach of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION CONCERNING THE FAIRNESS OF THE PROCEEDINGS The applicant also complained that the decisions given by the domestic courts in the above proceedings were wrong. He again invoked Article 6 § 1 of the Convention. However, the Court considers that there is nothing in the case file which indicates that the courts hearing the case lacked impartiality or that the proceedings were otherwise unfair.", "The mere fact that the applicant is dissatisfied with the outcome of the litigation cannot of itself raise an arguable claim of a breach of Article 6. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention. III. 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.” A.", "Damage 17. The applicant claimed 32,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. 18. The Government found the applicant’s claim excessive. 19.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards the applicant EUR 4,500 in respect of non-pecuniary damage. B. Costs and expenses 20. The applicant did not make any separate claim under this head.", "C. Default interest 21. 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 (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, 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 5 October 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. Dollé J.-P. CostaRegistrarPresident" ]
[ "THIRD SECTION CASE OF VAUDELLE v. FRANCE (Application no. 35683/97) JUDGMENT STRASBOURG 30 January 2001 FINAL 05/09/2001 In the case of Vaudelle v. France, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrW. Fuhrmann, President,MrJ.-P. Costa,MrL. Loucaides,MrP. Kūris,MrK.", "Jungwiert,MrsH.S. Greve,MrM. Ugrekhelidze, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 19 September 2000 and 9 January 2001, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 35683/97) against the French Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mr Marcel Vaudelle (“the applicant”), on 7 August 1996.", "2. The applicant was represented before the Court by a lawyer. The French Government (“the Government”) were represented by their Agent. 3. The applicant alleged that his defence rights had been violated in criminal proceedings that had been brought against him.", "4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5.", "The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 6. On 23 May 2000 the Chamber declared the application partly admissible [Note by the Registry. The Court's decision is obtainable from the Registry.].", "7. A hearing took place in public in the Human Rights Building, Strasbourg, on 19 September 2000 (Rule 59 § 2). There appeared before the Court: (a) for the GovernmentMrsM. Dubrocard, Head of the Human Rights Section,Legal Affairs Department,Ministry of Foreign Affairs,Agent,MrG. Bitti, Human Rights Office,Department of European and International Affairs,Ministry of Justice,Counsel; (b) for the applicantMsH.", "Farge, of the Conseil d'Etat and Court of Cassation Bar,Counsel. The Court heard addresses by Ms Farge and Mrs Dubrocard and their replies to its questions. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8. By an order of 17 November 1994 the guardianship judge of the District Court of the 16th Administrative District of Paris granted the applicant's son a special power of attorney to deal with the applicant's affairs.", "The order stipulated that the special power of attorney would remain effective until the judge had decided whether or not to make a guardianship order (tutelle) or a supervision order (curatelle). The order conferred power on the attorney, inter alia, to: “... receive all correspondence, including registered letters, addressed to the protected person regarding his administrative or financial affairs. The special attorney shall give the protected person his personal correspondence within forty-eight hours ...” 9. On 16 February 1995 a complaint was lodged against the applicant for several alleged offences of indecent assault on minors. 10.", "The applicant was questioned by the gendarmerie on 20 February 1995 and admitted some of the allegations. The investigating officers noted in their report that the applicant's son had a special power of attorney to deal with his affairs and that the applicant lived in Paris; they also made reference to the order made on 7 November 1994 by the guardianship judge of the District Court of the 16th Administrative District of Paris. 11. On 1 March 1995, in view of the pending criminal investigation, the guardianship judge adjourned the decision whether or not to make an order for the applicant's supervision and heard the applicant's son in chambers in order to elicit further information. 12.", "By a judgment of 29 March 1995 the guardianship judge at the District Court of the 16th Administrative District of Paris made a supervision order in respect of the applicant. The applicant's son was appointed as the supervisor. The judge referred to a written opinion dated 14 February 1995 of State Counsel's Office, which concluded that the applicant should be placed under supervision. The judge said, inter alia: “The Court has had regard to (i) the expert report dated 16 September 1994 of Dr L., a specialist medical practitioner on the list of experts compiled by State Counsel; (ii) the medical certificate issued by Dr M., the patient's doctor, on 16 September 1994; (iii) the record of evidence taken from the person requiring protection on 1 February 1995; (iv) the record of evidence taken from Mr Alain Vaudelle and Mrs N. on 1 February 1995; (v) the written opinion dated 14 February 1995 of the representative of State Counsel's Office, concluding that Mr Marcel Vaudelle should be placed under supervision. The Court notes that the expert medical practitioner's report and the information before it show that, owing to the impairment of his faculties, Mr Marcel Vaudelle requires representation and assistance in the conduct of his civil affairs.", "Consequently, he must be placed under supervision ... The Court reminds those concerned that the protected adult may not, without the assistance of his supervisor, perform any act for which permission from the guardianship council would be required under the regime applicable to the guardianship of minors [sic], in particular he may not without his supervisor's assistance divide up any part of his estate, receive or use any capital, let or rent property, take part in court proceedings, make gifts ...” 13. State Counsel's Office in Paris was notified of the supervision order. 14. On 30 March 1995 the public prosecutor's office at the Tours tribunal de grande instance made an order for the applicant's examination by a psychiatrist.", "The applicant was given two appointments by the psychiatrist – on 20 April and 11 May 1995 – but did not attend either. 15. On 19 October 1995, after a hearing earlier that day, the Tours Criminal Court found the applicant guilty of sexual assault by violence, coercion, threats and taking the victim unawares on minors aged under 15, holding: “... the case alleged against the accused has been substantiated both by the evidence in the case file and the evidence heard at the hearing. The Court must find the accused guilty and apply the criminal law to him. The offences are particularly serious as they concern repeated acts of indecent assault on minors aged under 15.", "In these circumstances, a partly immediate custodial sentence is called for ...” The Criminal Court sentenced the applicant to twelve months' imprisonment, of which eight months were suspended for eighteen months, the applicant being on probation during the latter period. It also ordered him to pay damages. 16. It found that the applicant had been duly summoned to attend the hearing and that the form of acknowledgment of receipt of the registered letter sent by bailiff (which the applicant had signed on 7 October 1995) showed that the applicant had received the summons and had therefore been aware that he was required to appear before it. However, he had not appeared in person, been represented or shown due cause for failing to appear.", "His case was therefore decided by a judgment delivered in proceedings that were deemed to have been adversarial. 17. On 8 November 1995 the guardianship judge took further evidence from the applicant's son, in his capacity as supervisor, regarding the applicants' change of address and the criminal proceedings. At the hearing, the judge directed the applicant's son to forward the applicant his correspondence. The applicant's son said that he had received no news from his father about the criminal proceedings since March 1995.", "18. On 10 November 1995, after the applicant had changed address, the guardianship judge at the District Court of the 16th Administrative District of Paris made an order relinquishing jurisdiction in favour of the Loches guardianship judge. 19. The judgment of 19 October 1995 was served on the applicant on 5 December 1995. He served his prison sentence from 16 April to 19 July 1996.", "20. The applicant affirms that his son, in his capacity as supervisor, was not informed of his arrest or of his conviction on 19 October 1995 until 16 April 1996, as all the summonses and notices of appointment in the criminal proceedings were sent to him directly. His son had subsequently contacted the guardianship judge, informing him of his father's arrest and explaining that he knew nothing about the criminal proceedings against him. On 20 April 1996 his son had also complained to the public prosecutor at the Tours tribunal de grande instance about not being informed of the proceedings against the applicant. According to the son, on becoming aware of the complaint against his father, he had made enquiries at the gendarmerie in order to obtain additional information, but had been advised that no proceedings had been brought and that there had merely been a request for a psychiatric report.", "21. The Government said that the judgment of the guardianship judge of the District Court of the 16th Administrative District of Paris dated 1 March 1995 showed that the judge had decided to adjourn hearing the application for a supervision order because of the criminal proceedings pending against the applicant and had required the applicant's son to attend court to give information about those proceedings. 22. In a letter of 24 April 1996 the guardianship judge of Loches District Court informed the applicant's son that there was no recourse against the judgment of 19 October 1995, since, in the absence of an appeal, it had become final. The judge explained that the applicant's supervisory regime entitled him only to assistance: it did not entail an obligation for the supervisor to be informed that criminal proceedings had been brought against the person supervised.", "23. In a letter of 25 April 1996 the public prosecutor at the Tours tribunal de grande instance observed in reply to a letter from the applicant's son dated 20 April 1996 that the applicant had failed to attend the court hearing even though he had received the summons by registered letter and had signed an acknowledgment of receipt of it on 7 October 1995. He had not seen fit to attend the court's hearing just as he had not seen fit to attend his appointments on 20 April and 11 May 1995 with the psychiatrist who had been instructed by the public prosecutor's office to examine him. The public prosecutor also pointed out that the applicant had given no indication that he was subject to a supervision order. Lastly, he repeated that the applicant had received notification of the judgment.", "24. On 10 May 1996 the lawyer acting for the applicant's son wrote to the judge responsible for the execution of sentences to enquire what measures were to be taken in favour of the applicant in view of the fact that it was “unusual” for a person in respect of whom a supervision order had been made to be convicted without being afforded an opportunity to receive assistance at the hearing from his supervisor. He explained in his letter: “... Marcel Vaudelle personally received the summonses which were sent to him both by the registries and the gendarmerie, but his son, Alain Vaudelle, was never informed of the existence of any of that correspondence although he had informed the gendarmerie concerned that his father was subject to a supervision order ...” 25. On 24 June 1996 the applicant's supervisor lodged an appeal against the judgment of 19 October 1995 on the ground that the applicant “[had been] ill at the time of the hearing and unable to comply with the court's summons or to appeal”. On 28 June 1996 he received a reply informing him that he did not have standing to appeal and that, in any event, the applicant's conviction had become final owing to his failure to appeal.", "On 30 May 1997 the supervisor wrote a further letter to the public prosecutor contesting the judgment of 19 October 1995. 26. The applicant was examined by a psychiatrist following a direction issued by the Loches guardianship judge on 22 August 1996. The expert concluded that the consultation: “[did] not reveal any intellectual deficit. There [was] no major impairment of the memory, the powers of concentration or the ability to reason logically”.", "27. On 27 August 1996 the guardianship judge heard the applicant, who complained that his supervisor had been taking his money without accounting to him for it and requested a change of supervisor. On 29 August 1996 the applicant's son was heard by the guardianship judge. He accepted that relations with his father were perturbed and requested that his father be made subject to a guardianship order. 28.", "By an order of 25 September 1996 Loches District Court discharged the applicant from his role as supervisor. That decision was upheld by a judgment of 9 January 1997. II. RELEVANT DOMESTIC LAW AND PRACTICE 29. The relevant provisions of the Civil Code are the following: Article 490 “When the mental faculties are impaired by illness, infirmity or decline due to age, the interests of the person concerned shall be provided for by one of the protective regimes laid down in the following chapters.", "The same protective regimes shall be applicable in the event of impairment of the physical faculties if the person concerned is thereby prevented from expressing his or her will. Impairment of the mental or physical faculties must be established by medical evidence.” Article 492 “A guardianship order shall be made if, for one of the reasons set out in Article 490, an adult requires continual representation in the conduct of his or her civil affairs.” Article 508 “When, for any of the reasons set out in Article 490, an adult, though not incapable of acting, requires advice or supervision in the conduct of his or her civil affairs, he or she shall be placed under a supervisory regime.” Article 510 “An adult subject to supervision may not, without the assistance of his or her supervisor, perform any act for which permission from the guardianship council would be required under the guardianship of adults regime. Nor may he or she receive or use capital sums without such assistance.” Article 510-2 “Any service of judicial process on an adult subject to a supervision order must also be made on his or her supervisor, on pain of nullity.” Article 511 “When making a supervision order or in a subsequent judgment the judge may, on the advice of the patient's doctor, enumerate certain acts which the person subject to the order shall have capacity to perform alone as an exception to Article 510 or, conversely, add other acts to the list of those for which assistance from the supervisor is required under that Article.” 30. Extracts from the relevant case-law: The Court of Cassation overturned a judgment of a court of appeal in a case in which there was no indication from the written annotations, the procedural documents or any other item of evidence that the supervisor had been notified of a notice of appeal against a divorce decree lodged by the person subject to the supervision order (Court of Cassation, First Civil Division, 17 December 1991, Dalloz 1992, p. 373). Conversely, the Court of Cassation declared admissible an appeal on points of law that had been served on the supervisor after being served on the person subject to the supervision order (Court of Cassation, First Civil Division, 6 January 1988, Bull.", "civ. [Civil Bulletin] I, no. 3). THE LAW I. THE GOVERNMENT'S PRELIMINARY OBJECTION 31.", "The Government pleaded a failure to exhaust domestic remedies on the ground that the applicant had not appealed against conviction. 32. As the Court held in its admissibility decision, the issue whether the applicant has complied with his obligation to exhaust domestic remedies is the same in substance as his complaint to the Court. The Court therefore joins the objection to the merits (see Kremzow v. Austria, judgment of 21 September 1993, Series A no. 268-B, pp.", "40-41, §§ 41-42, and Prinz v. Austria, no. 23867/94, § 30, 8 February 2000, unreported). II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 33. The applicant complained that he had been unable to exercise his defence rights properly in the criminal proceedings that had been instituted against him.", "He explained that he had been subject to a supervision order and was incapable of defending himself alone in the criminal proceedings. A judgment had been delivered against him in proceedings that had been deemed to be adversarial and he alone had been served with it. His supervisor had not been informed of the criminal proceedings pending against him or of his subsequent conviction. As an unrepresented defendant, he had not been able to defend his rights properly before judgment was delivered or to lodge an appeal, as by himself he was incapable of comprehending the seriousness of the offences he was accused of. 34.", "He relied on Article 6 of the Convention, which provides: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” He relied in particular on Article 6 § 3 (a), which lays down: “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;” 35. The Court reiterates that the requirements of paragraph 3 of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1; accordingly, the Court will examine the complaint under those two provisions taken together (see, among other authorities, F.C.B. v. Italy, judgment of 28 August 1991, Series A no. 208-B, p. 20, § 29).", "A. The parties' submissions 1. The applicant 36. The applicant said that the decision to place him under supervision had been taken, with State Counsel's approval, on 29 March 1995, as the guardianship judge had found on the basis of a medical opinion and evidence from the applicant that “owing to the impairment of his faculties, Mr Marcel Vaudelle requires representation and assistance in the conduct of his civil affairs”. The judge had stated that the applicant could not take part in court proceedings without the assistance of his supervisor.", "37. In the applicant's submission, it followed that if he required assistance in civil proceedings, he must have been in even greater need of assistance in criminal proceedings against him concerning his fundamental rights. He thus rejected the Government's argument that the fact that he was incapable of acting alone in civil proceedings had no bearing on the issue whether he could defend himself in criminal proceedings. The potential consequences in criminal proceedings were more serious, in terms notably of deprivation of liberty, than in civil proceedings. In addition, the same mental faculties were required to defend a criminal charge as to plead one's case in civil proceedings.", "38. It was true that there was no specific criminal-law provision of domestic law that laid down that adults subject to a supervision order could only be validly prosecuted if they had the assistance of their supervisor. However, there was no provision either that established an exception in criminal proceedings to the rule that supervised persons had to be assisted by their supervisor if the guardianship judge ordered that such assistance was required in court proceedings. Moreover, in a judgment of 8 March 2000, the Criminal Division of the Court of Cassation had ruled that a protected adult acting as a civil party in criminal proceedings was entitled to assistance by the supervisor. 39.", "The applicant pointed out that the investigators had noted in their report of 20 February 1995 that proceedings were pending before the guardianship judge and that the applicant's son had been appointed as his attorney on 7 November 1994. He complained that, although the Criminal Court had been aware that he was subject to supervision, he had nevertheless been given a custodial sentence, even though he had been questioned only once by the gendarmes, there had been no confrontation with his accusers, the Criminal Court had not been certain that he had received the summons to appear before it, he had not been heard or even seen by a judge, he had not been assisted or represented by a lawyer and, lastly, he had not taken part in the trial that had resulted in his being convicted in what were nonetheless deemed to have been “adversarial proceedings”. 40. Since he had been incapable of defending his interests, the proceedings instituted against him and in which he had received no assistance were manifestly unfair, not only because of the inequality of arms caused by his position of weakness, but also because he could not, without assistance, be “informed ... in a language which he underst[ood]”. Thus, he had been prevented by his declining mental faculties from properly ascertaining the charge against him and understanding its nature and scope, and therefore from defending himself effectively.", "41. The judicial authorities responsible for his prosecution had been informed of his incapacity. However, the French authorities had not informed his supervisor of the pending criminal proceedings or of the hearing before the Criminal Court and had not served the conviction on him. They had confined themselves to sending the summonses and notices of appointment to the applicant himself, without making any attempt to obtain information from the guardianship judge or to secure special assistance for the applicant. They had also failed to have the applicant's mental condition examined.", "42. Further, the Government's criticism of the applicant for failing to take the necessary steps to have his supervisor informed of the position in the criminal proceedings was unfounded. Supervision was a protective regime and, as such, conferred rights on the protected adult without imposing any additional special obligation on him or her. 2. The Government 43.", "The Government replied that the applicant was under the ordinary supervision regime, under which supervised persons retained their legal capacity except for acts expressly excluded by the statutory provisions. Under the domestic law, supervision was a regime for providing assistance to adults who were not incapable of acting, but merely needed advice or supervision in the conduct of their civil affairs. The regime was intended to preserve the pecuniary interests of protected adults who were under a general incapacity. Supervision orders were made when persons acted in a manner that exposed them to a risk of “becoming needy or unable to fulfil their family obligations”. Unlike persons subject to a guardianship order, protected adults under supervision were not considered as being in need of constant representation but as people whose situation meant that they required advice, and even supervision, in the conduct of certain civil affairs (Article 508 of the Civil Code – see “Relevant Domestic Law and Practice” above).", "Thus, with regard to property, persons subject to a supervision order were empowered to take protective measures, to perform administrative acts and to perform certain acts disposing of property of limited value. As regards other spheres, they were entitled, inter alia, to be registered on the electoral register and vote. They were also at liberty to change their address (the reference to the need for the applicant's representation in court proceedings appeared only in the reasoning of the judgment of 29 March 1995 and not in the operative provisions, which indicated that the judge had not intended representation within the meaning of Article 492 of the Civil Code, otherwise he would have made a guardianship order in respect of the applicant). 44. Article 510 of the Civil Code laid down that an adult subject to a supervision order could not, without the supervisor's assistance, perform any act for which the permission of the guardianship council would be required under the guardianship of adults regime.", "That signified that the inability of persons under supervision to take part in court proceedings was restricted to civil proceedings and did not affect their rights and obligations or the procedure in the criminal courts. Thus, the situation of an adult subject to a supervision order could not be equated with that of a person lacking in discernment and incapable of performing, understanding or complying with his or her obligations under the criminal law. It was for that reason that the law made no provision for supervisors (who, moreover, were not parties to the proceedings) to be informed and supervisors had no power to represent the persons under their supervision at the hearing. The same rule applied when, as in the instant case, in which the applicant had been ordered to pay damages to the minors concerned, a civil claim was joined to criminal proceedings. Furthermore, it was a general principle of domestic law that civil provisions such as Article 510 were not applicable to proceedings in the criminal courts.", "45. The supervision order made in respect of the applicant had essentially been intended to ensure that his supervisor gave him help with the management of his financial affairs and, more particularly, the payment of his bills. That protective measure did not concern the criminal proceedings against the applicant. It had therefore been correct procedure to send the notices of the appointments with the experts and the summons to attend the hearing before the Criminal Court to the applicant personally. 46.", "Furthermore, the psychiatrists had agreed in their reports that the applicant was not suffering from any psychopathological disorder and there was no need for a guardianship order. Moreover, the applicant had attended appointments at the gendarmerie in February 1995 and with a psychiatrist in August 1996, but had given no explanation for failing to attend his appointments with the psychiatrist in 1995 or for his absence at the hearing before the Criminal Court. He had also attended the hearing before the Tours tribunal de grande instance on 9 January 1997. 47. In the Government's submission, the applicant had therefore been capable of understanding the procedure and what was at stake in the proceedings that had been instituted against him.", "It could not be inferred from the fact that he was under supervision that he was incapable of defending himself satisfactorily or defending his interests before the Criminal Court, had he considered it necessary. Moreover, the fact that he had applied for a change of supervisor in person showed that he had been equally able to defend himself before a court and to lodge an appeal against conviction. Besides, when convicting him, the domestic court had necessarily decided the issue of his criminal responsibility. 48. The Government denied that the applicant's son had not been informed of the criminal proceedings against the applicant, pointing out that he had said in evidence on 8 November 1995 that he had had no news of the indecent assault case since March 1995.", "The fact of the matter was that the applicant's son had failed in his task as supervisor. It was noteworthy too that the applicant had clearly expressed an intention to prevent his supervisor learning of “his personal affairs” and in particular of the criminal proceedings against him. In his order of 25 September 1996 the district judge had noted that the applicant “does not inform his son of his personal affairs such as the summons to appear before the Tours Criminal Court”. Lastly, the applicant had duly signed the acknowledgment of receipt of the registered letter containing the summons requiring him to appear before the Criminal Court and, accordingly, the verdict against him was deemed to have been delivered in adversarial proceedings. There was nothing to support the affirmation that the applicant's supervisor would have managed to convince his father to appear at the hearing and subsequently to appeal if he had been aware of the summons.", "49. The Government concluded from the above that, as an accused in criminal proceedings, the applicant could have asserted his defence rights and appealed against his conviction even though he was subject to a supervision order. The fact that he was under supervision did not by itself establish that he was incapable of defending himself alone. B. The Court's assessment 50.", "The Court observes that the applicant personally received a summons to attend the hearing before the Criminal Court and that the judgment convicting him was subsequently served on him personally. 51. The Court has already had occasion to say that only personal service is “conclusive” (see F.C.B. v. Italy, cited above, p. 20, § 32). In these circumstances, it notes that the judicial authorities complied with the applicant's procedural rights and afforded him, at least in form, the means of ensuring that his rights under Article 6 of the Convention were respected.", "52. The Court reiterates, however, that the Convention system requires that in certain cases the Contracting States take positive measures to guarantee effective compliance with the rights set out in Article 6 (see Artico v. Italy, judgment of 13 May 1980, Series A no. 37, p. 18, § 36). They must exercise diligence to ensure the effective enjoyment of the rights guaranteed by Article 6 (see T. v. Italy, judgment of 12 October 1992, Series A no. 245-C, p. 42, § 29).", "53. It follows that the issue to be determined here is whether compliance with the applicant's procedural rights guaranteed him effective enjoyment of the right to a fair hearing and enabled him to exercise his defence rights, regard being had to the guardianship judge's ruling that, “owing to the impairment of his faculties, [he] require[d] representation and assistance in the conduct of his civil affairs” and could not “without his supervisor's assistance” “take part in court proceedings”. 54. The Government have explained that under domestic law the supervision order does not affect the criminal procedure and there is no rule requiring the supervisor to be informed of criminal proceedings or specially represented in them. They said that domestic law had therefore been complied with.", "55. The Court reiterates that it is not its role to decide in the abstract whether the applicable domestic law is compatible with the Convention or whether the domestic law has been complied with by the national authorities (see Ringeisen v. Austria, judgment of 16 July 1971, Series A no. 13, p. 40, § 97). In cases arising from individual petitions it must as far as possible examine the issues raised by the case before it (see The Holy Monasteries v. Greece, judgment of 9 December 1994, Series A no. 301-A, pp.", "30-31, § 55). 56. The Government said that, although subject to a supervision order, the applicant had remained capable of understanding the procedure and what was at stake in the criminal proceedings. This was demonstrated by a number of factors, first and foremost the guardianship judge's decision to make a supervision, not a guardianship, order. The Criminal Court had therefore not been under a duty to exercise greater diligence.", "57. The Court reiterates that the Contracting States enjoy a wide discretion as regards the choice of the means calculated to ensure that their legal systems are in compliance with the requirements of Article 6 § 1 in this field. The Court's task is not to indicate those means to the States, but to determine whether the result called for by the Convention has been achieved (see, mutatis mutandis, De Cubber v. Belgium, judgment of 26 October 1984, Series A no. 86, p. 20, § 35). For this to be so, the resources available under domestic law must be shown to be effective (see Colozza v. Italy, judgment of 12 February 1985, Series A no.", "89, pp. 15-16, § 30). In order to determine “whether a proceeding provides adequate guarantees, regard must be had to the particular nature of the circumstances in which such proceeding take place” (see De Wilde, Ooms and Versyp v. Belgium, judgment of 18 June 1971, Series A no. 12, pp. 41-42, § 78, and Wassink v. the Netherlands, judgment of 27 September 1990, Series A no.", "185-A, p. 13, § 30). 58. In the present case, the Court attaches particular weight to the following special circumstances. The applicant was accused of sexual abuse of minors aged under 15. The offences were therefore particularly serious, as the Criminal Court itself indicated (see paragraph 15 above).", "The nature of the offences also made an assessment of the applicant's mental condition necessary since, after the applicant had been questioned by the gendarmerie, the public prosecutor ordered a psychiatric report on him. The applicant did not, however, attend either of the two appointments he was given and offered no explanation for his failure to do so, so that the Criminal Court had no means of knowing the reason for his absence. Further, the applicant was liable to a prison sentence and was given a custodial sentence, part of which was to be served immediately. He therefore had a material interest at stake in the proceedings. Lastly, State Counsel's Office in Paris had been notified of the supervision order and the Government did not deny that the judicial authorities had been informed that the applicant was under supervision.", "However, the Court notes that the proceedings before the Criminal Court were begun by a direct summons, that is without a prior investigative stage, and that the Criminal Court convicted the applicant in a verdict delivered in proceedings that were deemed to have been adversarial, although the applicant was absent and unrepresented at the hearing and it had not received the expert psychiatric report which the public prosecutor's office had itself previously ordered. 59. In the Court's opinion, faced with that combination of factors, the Criminal Court was bound out of fairness to take additional steps before trying the case to ensure that the applicant effectively enjoyed the rights guaranteed to him by Article 6 of the Convention. In that connection, it reiterates that it is important for the accused to be present in person at first instance (see, among other authorities, Colozza, cited above, p. 14, § 27), and points out that under Article 6 § 3 (c) of the Convention the accused is entitled to have a lawyer assigned by the court of its own motion “when the interests of justice so require”. 60.", "In addition: “Special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves” (see, mutatis mutandis, Megyeri v. Germany, judgment of 12 May 1992, Series A no. 237-A, pp. 11-12, § 22; Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, p. 24, § 60 in fine; and Prinz, cited above, § 44). 61.", "In this context the supervision order, which was made seven months before the hearing in the Criminal Court and was still effective at the time, provides useful guidance. It shows that the national authorities had themselves decided at the material time that the applicant was not fully capable of acting alone on his own behalf. Like the applicant, the Court considers that, as he was regarded as being incapable of acting alone on his own behalf in the conduct of his civil affairs, he should have been regarded as being equally incapable of acting alone in the criminal proceedings. At stake in those proceedings was the right to liberty, a right whose importance in a democratic society has been consistently emphasised by the Court (see, among other authorities, Winterwerp, cited above, pp. 16-17, § 37).", "Thus, criminal proceedings produce far more serious consequences than civil proceedings. 62. The Court therefore fails to see on what basis or for what reason an individual who it is accepted is incapable of defending his civil interests and is entitled to assistance for that purpose should not also be given assistance to defend himself against a criminal charge. 63. Besides, in the instant case, the applicant was ordered to pay damages.", "The proceedings therefore affected his pecuniary rights. Since supervision orders are intended to protect the pecuniary rights of the adult concerned (see paragraphs 43-44 above), the Court sees no justification for the applicant's being denied assistance in the criminal proceedings. 64. In the Government's submission, the responsibility lay essentially with the supervisor who, although informed of the criminal proceedings against the applicant, had failed to discharge his obligations. The Court notes however that the supervisor was not informed at any stage between his appointment in that capacity on 29 March 1995 and the conviction on 19 October 1995 that criminal proceedings had been brought against the adult he was responsible for protecting (see paragraphs 12-15 and 20-21 above).", "65. Ultimately, the Court considers that in a case such as the present one, which concerns a serious charge, the national authorities should take additional steps in the interests of the proper administration of justice. They could have ordered the applicant to attend the appointment with the psychiatrist (see paragraph 14 above) and to appear at the hearing and, in the event of his failing to comply, arranged for him to be represented by his supervisor or a lawyer. That would have enabled the applicant to understand the proceedings and to be informed in detail of the nature and cause of the accusation against him within the meaning of Article 6 § 3 (a) of the Convention; it would also have enabled the Criminal Court to reach its decision entirely fairly. However, that did not happen.", "66. In the special circumstances of this case, the Court therefore holds that there has been a violation of Article 6 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 67. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 68. The applicant made no claim to the Court under this head. The Court notes that in the application form the applicant lodged with the Commission he claimed non-pecuniary damage, which he estimated, without furnishing particulars, at 300,000 French francs (FRF). 69. The Government submitted that a finding of a violation would in itself constitute sufficient just satisfaction.", "70. Ruling on an equitable basis in the light of the special circumstances of the case, the Court decides to award the applicant the sum of FRF 50,000 in respect of his alleged non-pecuniary damage. B. Costs and expenses 71. The Court notes that the applicant has made no claim for costs and expenses and was legally aided in the proceedings before it.", "It therefore holds that no sum is to be awarded under this head. C. Default interest 72. According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 2.74% per annum. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 of the Convention; 2.", "Holds 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, FRF 50,000 (fifty thousand French francs) in respect of non-pecuniary damage, plus simple interest at an annual rate of 2.74% payable from the expiry of the above-mentioned three months until settlement; Done in French, and notified in writing on 30 January 2001, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléW. FuhrmannRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Mr Costa is annexed to this judgment. W.F.S.D. CONCURRING OPINION OF JUDGE COSTA (Translation) Not without some hesitation, I have found a violation of the Convention in this case.", "Besides being novel, the issue before the Court was, to tell the truth, a delicate one. The capacity of natural persons raises, as one would expect, issues of legal classification, but also questions of fact. Under French law as it currently stands, there exist persons whose capacity is in principle not in doubt, others whose incapacity is indisputable (unemancipated minors, adults under guardianship orders) and still others, such as persons under supervision, who come within a sort of intermediate regime. As regards the latter, the eminent legal writer, Carbonnier, spoke of semi-incapacity or, equally aptly, of semi-capacity. Since, in addition, the protective regimes are civil in nature and have no direct bearing on criminal procedure, one may have serious reservations about the need to provide an accused in criminal proceedings with assistance or representation on the basis of what I will venture to call his or her degree of incapacity.", "For example, the law and judicial practice on minors are clear. Article 13 of the Ordinance of 2 February 1945 on Delinquent Children imposes an obligation on youth courts to hear the parents or guardians of juvenile defendants, and the Criminal Division of the Court of Cassation is strict in ensuring compliance with that statutory requirement. In contrast, the statute book is silent about supervisors and there is no case-law on the subject. So far as I am aware, the nullity laid down by Article 510-2 of the Civil Code, cited in paragraph 29 of the judgment, does not extend to criminal proceedings. Indeed, the Government see the division of civil and criminal proceedings into “watertight compartments” as an argument in their favour (see paragraphs 44-45 of the judgment).", "However, it seems to me that that is precisely where the real issue lies. Speaking generally, even though an adult under supervision can be presumed to be “less incapable” than a minor and is able to conduct some of his civil affairs, why, once a judge has appointed a supervisor for him, is the supervisor not informed of procedural steps of such potential importance as a summons to appear before a criminal court or service of a judgment, which starts time running for the purposes of appeal? That is not very logical. In the present case, admittedly, there is room for genuine doubt about the degree of the applicant's incapacity, as there was, to say the least, a substantial change between the degree of impairment noted in the psychiatric report of 16 September 1994, on the basis of which the guardianship judge made the supervision order, and the psychiatric report of 22 September 1996, which was requested by another guardianship judge shortly before the applicant's son was discharged from his duties as a supervisor. Nor can I believe that the applicant was, as he claimed before the Court, unable without assistance “to be informed in a language which he understands” (see paragraph 40 of the judgment) (besides, this linguistic requirement under Article 6 § 3 (a) of the Convention seems to me to be of marginal relevance in the instant case, as the applicant is French; but it is of little matter).", "However, it is one thing to understand the accusation, quite another to know how to react with regard to such matters as attending appointments, appearing at the hearing, obtaining assistance from a lawyer, and, if appropriate, appealing in time against conviction and sentence to a term of imprisonment... As to the role of the supervisor, the case file shows that he was undoubtedly partly to blame (see paragraphs 27-28 of the judgment). However, it is speculative to suggest, as the Government do (see paragraph 48 of the judgment), that if the supervisor had been aware of the summons to appear “[t]here was nothing to support the affirmation that [he] would have managed to convince his father to appear at the hearing and subsequently to appeal”. It was for the national authorities to make it possible for the son to offer effective assistance to his father (an easy enough task for them in practice). By omitting to do so, they have in my opinion furnished the applicant with an irrefutable argument for criticising the fairness of the procedure that was followed. I have therefore voted in the end in favour of finding a violation of Article 6 and it is my hope that the problem of the effects of legal protective regimes in criminal proceedings will be reconsidered.", "The Strasbourg Court is sometimes a catalyst for reform in the States that are parties to the Convention. The judgment in this case seems to me at the very least to have disclosed the existence of a problem." ]
[ "FIFTH SECTION CASE OF BUISHVILI v. THE CZECH REPUBLIC (Application no. 30241/11) JUDGMENT STRASBOURG 25 October 2012 FINAL 25/01/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Buishvili v. the Czech Republic, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Dean Spielmann, President,Mark Villiger,Karel Jungwiert,Boštjan M. Zupančič,Angelika Nußberger,André Potocki,Paul Lemmens, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 2 October 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "30241/11) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Mr Artur Buishvili (“the applicant”), on 16 May 2011. 2. The applicant was represented by Ms H. Franková, a lawyer at the Organization for Aid to Refugees (OPU), Prague. The Czech Government (“the Government”) were represented by their Agent, Mr Vít A. Schorm, of the Ministry of Justice. 3.", "The applicant alleged, in particular, a violation of Article 5 § 4 of the Convention, because he had no access to judicial proceedings in which his release could be ordered. 4. On 10 October 2011 the application was communicated to the Government. The Government of Georgia were invited to state whether they wished to submit written comments on the case (Article 36 of the Rules of Court). They did not avail themselves of that opportunity.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant, Mr Artur Buishvili, is a Georgian national who was born in 1975 and is currently an asylum seeker in the Czech Republic. 6. On 7 March 2011 the applicant was transferred to the Czech Republic from the Netherlands under EU Regulation no.", "343/2003/EC (the Dublin Regulation) and applied for asylum. He was held at the reception centre for asylum seekers at Prague airport. On his arrival he handed the staff of the reception centre medical records issued in Georgia and the Netherlands, showing that he was suffering from hepatitis C and had been treated at a hospital neurology department. A. The proceedings concerning the applicant’s time in the reception centre 7.", "On 9 March 2011 the Ministry of the Interior (“the Ministry”) refused the applicant entry to the territory of the Czech Republic: that is, it refused to allow him to leave the reception centre. The applicant had not been interviewed before the decision was taken. He applied for judicial review, seeking to have the refusal quashed, arguing in particular that his medical condition was incompatible with his being in the reception centre. 8. On 6 April 2011 the Prague Municipal Court (městský soud) quashed the refusal, on the grounds that the Ministry had first to consider whether the applicant was a vulnerable person under section 73(7) of the Asylum Act, in view of his medical condition, and thus whether he was to be allowed to enter the country.", "It added that the applicant must be heard in person. 9. On 11 April 2011 the Ministry again refused the applicant entry to the country. It held that he was suffering from an ordinary illness, which did not require any specialist treatment, and that he was receiving appropriate treatment at the reception centre. 10.", "On 13 May 2011 the Municipal Court rejected the applicant’s request for judicial review of the second refusal, stating that his state of health did not require him to be hospitalised. Moreover, as his medical treatment had not yet started, his transfer to a medical facility was not necessary. If the situation changed a fresh assessment might be required. 11. On 28 April and 23 May 2011 the applicant once again requested leave to enter the country.", "The Ministry did not decide on his requests, relying on section 73(6) of the Asylum Act, which stipulated that a foreigner was not entitled to lodge a new request for leave to enter the country until one month had passed since the rejection of a previous one. It added, though, that it was proprio motu continuing to review the existence of the reasons for the applicant’s detention. 12. On 6 June 2011 the Ministry granted the applicant entry to enable him to have medical treatment. It took into account his latest medical reports; the impossibility for him to have treatment at the reception centre and the impossibility for him to have treatment at Motol Hospital because of lack of facilities.", "13. On 27 October 2011 the Supreme Administrative Court (Nejvyšší správní soud) quashed the 13 May 2011 judgment and remitted the case to the Municipal Court, holding that it was insufficiently reasoned. 14. On 10 November 2011 the Municipal Court again rejected the applicant’s request for judicial review. The applicant did not lodge an appeal on points of law, as by then he was no longer detained.", "15. The asylum proceedings seem to be still pending. B. Medical reports 16. On 19 April 2011 the applicant was examined by a specialist at Motol Hospital, who concluded that he was suffering from hepatitis C and that the requisite medical treatment should begin as soon as possible following further examinations.", "17. On the same day a doctor at the reception centre, noting the results of the applicant’s examination at Motol Hospital, informed the applicant’s lawyer in writing that the reception centre was unable to provide adequate treatment for his client. He added that it was not appropriate for the applicant to be held at the reception centre, because of the psychological stress caused by the medical treatment he required, and that he should be transferred to an open asylum facility. 18. During May 2011 several other medical reports confirmed that the applicant’s condition required urgent specialist treatment, which was not available at the reception centre.", "19. In a letter of 26 May 2011 the reception centre doctor informed the Ministry of the Interior that the applicant’s state of health had been stabilised, that an appropriate diet was being provided, and that he was being provided with medication to enhance his liver function. He further stated that the medical care was adequate and that the applicant was under the permanent supervision of medical personnel. The doctor admitted that his previous assessment had been based on the assumption that a sudden deterioration of the condition was possible; however, this had not been confirmed later. He concluded that the recent care was fully comparable to the care provided to ordinary citizens, and was appropriate to the applicant’s actual state of health.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 20. The relevant domestic law and practice are set out in the Court’s judgment, Rashed v. the Czech Republic, no. 298/07, 27 November 2008. 21.", "With effect from 1 January 2011 a new paragraph 5 was introduced into section 73 of the Asylum Act (no. 325/1999) setting a time-limit of seven working days for a court to decide on a request for judicial review of a decision of the Ministry refusing entry to the Czech Republic to an asylum seeker who was being held at an airport reception centre. If the judicial review quashes the decision, the Ministry must issue a new decision within three days or grant the asylum seeker entry. 22. Under section 73(7) of the Asylum Act the Ministry shall allow asylum seekers to enter the territory if they are unaccompanied minors, a family including minors, people with serious health problems, pregnant women, or people who have been tortured or subjected to other forms of psychological, physical or sexual violence.", "III. RELEVANT INTERNATIONAL LAW AND PRACTICE 23. Article 9 § 4 of the International Covenant on Civil and Political Rights (“the ICCPR”) provides a similar guarantee as Article 5 § 4 of the Convention: Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. The Human Rights Committee, which is empowered to interpret the ICCPR, has on numerous occasions expressed the opinion that the court mentioned in Article 9 § 4 of the ICCPR must have the power to order release if the detention is unlawful (see, for example, A. v. Australia, no. 560/1993, § 9.5, 3 April 1997, and Danyal Shafiq v. Australia, no.", "1324/2004, § 7.4, 31 October 2006). THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 24. The applicant complained that the courts in the judicial review proceedings against the decision of the Ministry of the Interior not to grant him entry to the Czech Republic did not have the power to order his release as provided in Article 5 § 4 of the Convention, which reads as follows: Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 25.", "The Government contested that argument. A. Admissibility 26. The Government raised an objection of non-exhaustion of domestic remedies. They maintained that the applicant had not requested release in the judicial review proceedings and neither had he complained that the domestic law contradicted the Convention. Nor had he lodged an appeal on points of law when he was not released by the Municipal Court, which had quashed the decision not to release him.", "Furthermore, the applicant had not lodged a constitutional appeal, even though the Constitutional Court had the power to repeal a law that violated the Convention, and proceedings brought before it could also have indirectly led to his release. 27. The applicant maintained that he had exhausted all effective domestic remedies. He had requested judicial review of the administrative decision not to release him. It was not possible in those proceedings for him to request release under the applicable domestic law; he could only request the quashing of the administrative decision.", "28. The Court notes that the key point of the applicant’s complaint is that no proceedings were available by which he could have challenged the lawfulness of his detention and which would satisfy the guarantees of Article 5 § 4 of the Convention. The Court considers that this question is closely linked to the Government’s plea on the merits that there existed such a remedy. The Court therefore joins this question to its examination on the merits of the complaint (see Rashed, cited above, § 46). 29.", "It adds that the present complaint is materially different from cases where the Court examined the issue of exhaustion of domestic remedies under Article 5 § 4 of the Convention at the admissibility stage, because in those cases the issue was not the existence of such a remedy itself but the fairness or speediness or otherwise of the Article 5 § 4 proceedings (see, a contrario, Knebl v. the Czech Republic, no. 20157/05, § 77, 28 October 2010). 30. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 31. The applicant maintained that he could not have instituted any judicial proceedings in which a court could have ordered his release as the administrative courts could only quash the Ministry’s decision but not order his release. The only way to do this was for the Ministry to issue a new decision to release him, as eventually happened in his case (see paragraphs 12 and 14 above).", "32. The Government acknowledged that the judicial review proceedings instituted by the applicant were the only proceedings in which the lawfulness of his detention could have been reviewed. They maintained however that these proceedings satisfied all the guarantees of Article 5 § 4 of the Convention. 33. In their view, it was sufficient for the purposes of this provision that the judicial proceedings could lead indirectly to the detainee’s release.", "They pointed out that if the administrative courts found the detention unlawful, the Ministry was then bound by that decision. They referred to the Court’s case-law that Article 5 § 1 (c) of the Convention was not violated if a court quashed a detention decision for some minor irregularities but did not order a release (for example Mooren v. Germany [GC], no. 11364/03, 9 July 2009). Consequently, the same should apply to a remedy under Article 5 § 4 of the Convention. 34.", "Under the domestic law, if a decision of the Ministry was quashed the latter had to make a new decision within three days, otherwise the person must be released. This short time constitutes, according to the Government, a sufficient guarantee against arbitrary detentions. 35. Lastly, the Government maintained that under Article 5 § 1 (f) of the Convention States enjoyed a margin of appreciation. According to them, the administrative authorities are better equipped to decide whether to release detainees.", "36. The Court notes that the parties did not dispute that the applicant had been deprived of his liberty within the meaning of Article 5 of the Convention, and that no court could have directly ordered his release. 37. At the outset, the Court is not persuaded by the Government’s argument that the applicant should have complained in judicial review proceedings and before the Constitutional Court that there was no direct power to release him. Indeed, without referring to any domestic judicial practice, they did not explain how such a complaint could lead to an extension of the powers of the administrative courts, that is to enable them to directly order the release of the applicant.", "In this context, the Court notes that the Constitutional Court was empowered to repeal laws which it found unconstitutional, but not to adopt a new law. Moreover, the judicial review proceedings were still pending when the applicant was released, his constitutional appeal was likely to be dismissed as premature (see Rashed v. the Czech Republic, cited above, § 55). Accordingly, this objection must therefore be dismissed. 38. In respect of the merits of the applicant’s complaint, the Court reiterates that Article 5 § 4 is a lex specialis in relation to the more general requirements of Article 13.", "It entitles an arrested or detained person to institute proceedings bearing on the procedural and substantive conditions which are essential for the “lawfulness” of his or her deprivation of liberty. The reviewing “court” must not have merely advisory functions, but must have the competence to “decide” the “lawfulness” of the detention and to order release if the detention is unlawful (see Benjamin and Wilson v. the United Kingdom, no. 28212/95, § 34, 26 September 2002, with further references, and A. and Others v. the United Kingdom [GC], no. 3455/05, § 202, ECHR 2009). 39.", "Moreover, as a matter of textual interpretation, the wording of Article 5 § 4, especially its French version, clearly suggests that the court must have the power to order a release if it finds the detention unlawful (... un tribunal, afin qu’il statue à bref délai sur la légalité de sa détention et ordonne sa libération si la détention est illégale). 40. Turning to the present case, the Court notes that there was no formal decision to detain the applicant who was held in the reception centre ex lege. The Ministry refused to let him enter the territory and thus effectively decided to keep him in detention. It was required to take this decision by law at the latest five days after the applicant’s asylum request.", "The applicant requested judicial review of this decision. 41. In the present case whilst the courts in the domestic proceedings could establish whether the detention was lawful or not, they could not order the applicant’s release if the detention was unlawful. The Court must therefore assess whether, as the Government suggest, an arrangement whereby a finding of unlawful detention can lead indirectly to release, is sufficient to comply with the requirements of Article 5 § 4 of the Convention. 42.", "The Court has already mentioned above that the Czech courts could only quash the administrative decision, having no power to release the applicant. It is true that the Ministry of the Interior would then be bound by the court’s legal opinion and would have to issue a new decision releasing the applicant if the court so found. 43. And yet, the Court has previously found a similar practice to be at variance with Article 5 § 4, in Benjamin and Wilson, cited above, § 36. In that case the tribunal could technically only issue a recommendation to release.", "The Court based its decision on the assumption that the administrative authority was not able lawfully to depart from the recommendation. Therefore, that reasoning is fully applicable to the present case where the administrative courts were able to issue a binding decision on the lawfulness of the detention but could not order release. 44. In addition, the Court notes its interpretation of Article 5 § 3 of the Convention that when a detention is unlawful, the judicial officer must then have the power to release (see McKay v. the United Kingdom [GC], no. 543/03, § 40, ECHR 2006‑X); the Court also notes the close affinity between this provision and Article 5 § 4 which requires consistent interpretation.", "45. The Court notes that the Government relied, in support of their position that indirect power of release suffices for the purposes of Article 5 § 4 of the Convention, on the case of Smatana v. the Czech Republic (no. 18642/04, § 122, 27 September 2007), where the Court applied that provision to proceedings before the Constitutional Court because its decision could indirectly lead to the release of the applicant. The Court, however, considers that the present case is different. First, in Smatana the issue was applicability of Article 5 § 4 to a further stage of proceedings to which that provision undoubtedly applied, whereas here the question is the existence of proceedings satisfying this provision at all.", "Secondly, in Smatana the Constitutional Court was able to quash a decision of the ordinary courts that then had the power to release the detainee, whereas in the present case there were no courts with that power. 46. The foregoing considerations are sufficient to enable the Court to conclude that the applicant could not have instituted any proceedings before a court which could have directly ordered his release as required by Article 5 § 4 of the Convention. 47. Accordingly, the Court dismisses the Government’s objection of non-exhaustion of domestic remedies in this respect and finds that there has been a violation of Article 5 § 4 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 48. The applicant complained that his detention contravened the domestic law because due to his illness he was a vulnerable person who should have been released under section 73(7) of the Asylum Act. He further argued that due to his illness his detention was not necessary or proportionate. He relied on Article 5 § 1 of the Convention which reads, so far as relevant 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. 49. The Court considers that Article 5 § 1 (f) of the Convention is applicable to the applicant’s detention as his liberty was restricted in order to prevent his effecting an unauthorised entry into the country (see Rashed, cited above, § 70). That provision does not require that the detention be necessary or proportionate (see Saadi v. the United Kingdom [GC], no.", "13229/03, § 74, ECHR 2008). Reiterating its constant case-law in this matter (see Rusu v. Austria, no. 34082/02, § 55, 2 October 2008), it further considers that the domestic decisions in the present case were not unreasonable and do not show any sign of arbitrariness. 50. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 51. Relying on Article 3 of the Convention, the applicant complained that he was detained for three months at the reception centre without receiving an appropriate medical treatment. 52. The Government objected that the applicant failed to exhaust domestic remedies.", "They maintained that the proceedings instituted by the applicant were not aimed at the provision of an appropriate healthcare. According to them, the applicant should have introduced proceedings under Article 82 of the Code of Administrative Court Procedure, in which he could have also requested an interim measure to receive the required treatment immediately. Furthermore, he should have also lodged aconstitutional appeal, in which he could similarly have asked for an interim measure. 53. The applicant disagreed, without providing any further arguments.", "54. The Court observes that alongside its general interpretation of the principle of exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention (see, for instance, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V), it usually requires, in respect of applications against the Czech Republic, that the applicants lodge a constitutional appeal unless they can provide cogent reasons that it is not an effective remedy in their case (see Miler v. the Czech Republic (dec.), no. 56347/10, § 24, 25 September 2012). 55.", "Turning to the present case, the Court notes that the only court proceedings that the applicant instituted were aimed at securing his release from detention. In those proceedings the authorities were considering whether the applicant was suffering from a serious health problem, which is one of the grounds under the Asylum Act for releasing asylum seekers from detention. However, neither the administrative authorities nor the courts dealt with the question of appropriate medical treatment of the applicant. Accordingly, the remedy used by the applicant was not an adequate remedy for the purpose of Article 35 § 1 of the Convention. 56.", "The Court considers that the applicant should have used the remedies suggested by the Government. Furthermore, he should have addressed his issues to the Constitutional Court, which is empowered to decide on violations of the human rights of an individual, including those guaranteed by the Convention, and it may also issue interim measures. The Court reiterates in this connection that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 61, 15 March 2012). In the instant case, there were avenues in which the applicant could have raised his complaint of inadequate medical treatment before the domestic authorities.", "57. Accordingly, this part of the application must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention. IV. 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.” 59.", "The applicant claimed just satisfaction only in respect of non-pecuniary damage, in an amount that the Court considers appropriate. 60. The Government considered that the amount of just satisfaction should not exceed 2,000 euros (EUR). 61. The Court considers that the applicant undoubtedly suffered feelings of frustration and anxiety which cannot be compensated for solely by the finding of a violation.", "Having regard to the circumstances of the case, and ruling on an equitable basis, as required by Article 41, it awards him EUR 3,000 in respect of non-pecuniary damage. 62. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning Article 5 § 4 of the Convention admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 5 § 4 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Czech korunas 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 October 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekDean SpielmannRegistrarPresident" ]
[ "THIRD SECTION CASE OF MAGÁT v. SLOVAKIA (Application no. 44646/15) JUDGMENT This version was rectified on 5 September 2017 under Rule 81 of the Rules of Court. STRASBOURG 25 July 2017 This judgment is final but it may be subject to editorial revision. In the case of Magát v. Slovakia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helen Keller, President,Pere Pastor Vilanova,Alena Poláčková, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 4 July 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "44646/15) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovak national, Mr Anton Magát (“the applicant”), on 3 September 2015. 2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3. On 8 March 2016 the complaint concerning the length of the proceedings 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 1957 and lives in Zákopčie. 5. On 28 February 2011 the applicant was sued by his son in proceedings on child maintenance before the Čadca District Court (file no. 10 C 38/2011).", "6. During those proceedings he made an incomplete submission on 21 April 2011, which he supplemented the month after alleging that he had been waiting for a response from the Centre for Legal Aid in respect of his request for a legal aid lawyer. He also lodged two complaints with the president of the District Court about the excessive length of proceedings, namely on 9 February 2012 and 29 February 2012, which were unsuccessful. Having been dissatisfied with their outcome, he turned to the appellate court for review of his complaints to no avail. 7.", "The District Court, on the other hand, took the following steps. It asked several public authorities, such as for example Social Security Authority and the Job Centre, to provide it with information relevant to the case. Between May 2012 and April 2014, it was dealing with an appointment of a guardian to the applicant, who at the material time was undergoing an ambulatory psychiatric treatment. Such an appointment was eventually revoked in September 2014 on the grounds that the Centre for Legal Aid had appointed a lawyer for the applicant in June 2014. The District Court also joined the present case file to another set of proceedings for several months.", "In January 2014, the District Court judge responsible for hearing the applicant’s case changed. The District Court further scheduled several hearings, which were either adjourned or cancelled. 8. On 13 May 2015 the Constitutional Court rejected the applicant’s complaint about a violation of his right to a hearing within a reasonable time in the proceedings held before the District Court as manifestly ill-founded. It concluded that the District Court proceeded with the matter actively and properly, apart from a few minor exceptions, such as the joining of a case file to another set of proceedings, changing of the judge and a procedural error made during one of the hearings.", "In particular, the Constitutional Court took into account the fact that the applicant had complained of excessive delays with the president of the District Court and challenged them further on appeal on each occasion. 9. Subsequently, the District Court took several steps as follows. It asked for further information from inter alia the applicant’s employer. It also scheduled a hearing for 12 August 2015, which was adjourned to 31 August 2015.", "It then postponed the latter hearing to an unspecified date, since it had to deal with a procedural request from the plaintiff, which was also challenged on appeal. In the absence of any further information from the parties, it appears that the proceedings are still pending and no judgment on the merits has been delivered by the District Court. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 10. 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 11.", "The Government contested that argument. They relied on the Constitutional Court’s conclusion reached in its decision of 13 May 2015, arguing that the proceedings had only lasted four years and three months at the time of the Constitutional Court’s decision on the applicant’s complaint. They further recalled that the District Court as well as the appellate court had to deal with the applicant’s complaints about the delays in the proceedings lodged with the president of that court twice. They also stated that the applicant was the defendant and thus the proceedings were not particularly significant for him, whereas they were for the plaintiff. Also, in respect of some minor shortcomings identified by the Constitutional Court, the Government referred to the Court’s decision in Horňák v. Slovakia (no.", "43527/04, 24 November 2009), in which it declared the application inadmissible, even though some shorter periods of delay occurred in those proceedings. The Government emphasised the Court’s conclusion that those delays did not render the duration of those proceedings at the time of the Constitutional Court’s decisions contrary to the requirement of Article 6 § 1 of the Convention. In this connection, they proposed to declare the application manifestly ill-founded. In respect of the follow-up period, which is after the Constitutional Court’s decision, they submitted that the applicant should have turned to the Constitutional Court again had he considered that delays were occurring in the proceedings. Since he failed to lodge such a complaint, this part of the application should be declared inadmissible for non-exhaustion of domestic remedies.", "12. The applicant disagreed. In particular, he submitted that the District Court should not have appointed him a guardian without having an expert opinion about his mental health. He further stated that he had the attorney representing him in the proceedings. 13.", "Having regard to the parties arguments, in particular to the Government’s proposal to declare this complaint manifestly ill-founded and inadmissible for non-exhaustion of domestic remedies, the Court notes that both those arguments are intertwined. In order to assess whether the applicant should have sought a repeated protection before the Constitutional Court, the Court needs to first examine the Constitutional Court’s conclusions reached in its decision of 13 May 2015. 14. At the time of the Constitutional Court’s decision, the length of the proceedings was almost four years and three months for one level of jurisdiction without a single decision on the merits having been taken. 15.", "The Court notes that the matter before the District Court concerned the child maintenance for which the applicant had been sued by his son. Such a subject matter carried no particular complexity. The District Court had to collect some relevant information from other offices in respect of the merit’s assessment. In May 2012 the District Court learned from an expert opinion made in the context of another set of proceedings, that the applicant was undergoing psychiatric treatment. Therefore, it appointed him a guardian in April 2014, which it eventually revoked in September 2014 on the grounds that he had a legal aid lawyer appointed in the meantime, that is in June 2014.", "While the Court appreciates the fact that all the aforesaid steps taken by the District Court might have been relevant for its decision-making, it is of the view that they could not have justified overall duration of the proceedings in question. Also, the Court cannot agree with the Government that the District Court proceeded with that matter properly in the proceedings. It is due to the fact that those proceedings had already started in February 2011 and to the Court’s knowledge the District Court has not delivered any decision on the merits to date. In this connection, the Court further notices that the District Court caused some delays during the contested time, which were recognised by the Constitutional Court as well (see paragraph 8 above). For example, it joined the case file to another set of proceedings for almost five months.", "It also changed a judge in the applicant’s case, which contributed to the overall duration. 16. The Government also tried to reproach the applicant for lodging complaints about the delays with the president of the District Court. In this regard, the Court points out that it is the applicant’s procedural right to complain to that president in accordance with the domestic law (see, for example, Ištván and Ištvánová v. Slovakia, no. 30189/07, § 28, 12 June 2012), which he had used twice and only after one year from the commencement of those proceedings (see paragraph 6 above).", "That, in itself cannot be said to have caused such excessive delays attributable to the applicant, in particular where the domestic law allowed him to avail himself of such a procedural avenue. 17. As for the Government’s comparative argument concerning the case of Horňák (cited above), the Court considers it irrelevant, since the decisive elements for the Court’s decisions were different in that case, in particular with regard to the actual length of the impugned proceedings before the Constitutional Court. 18. In view of above and the absence of any decision on the merits, the Court disagrees with the conclusions reached by the Constitutional Court on 13 May 2015.", "Therefore, it cannot but conclude that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, as claimed by the Government. Therefore, their argument is to be dismissed. 19. As for the submission of the respondent Government concerning the repeated recourse to the remedy under Article 127 of the Constitution, the Court reiterates that an applicant is normally not required to resort repeatedly to a remedy in respect of the length of proceedings where the effects produced by the decision of the competent authority in response to that applicant’s first use of that remedy do not satisfy the criteria applied by the Court. Such is the case, for example, where the domestic authority, unlike the Court, concluded that the length of the proceedings in issue was not excessive; or where a low amount of just satisfaction was granted, due consideration being given in this connection, if appropriate, to whether or not the proceedings were subsequently accelerated in accordance with the domestic authority’s order; or where the remedy in issue was incapable of providing redress in respect of the overall length of the proceedings complained of (see, for example, Sukobljević v. Croatia, no.", "5129/03, § 52, 2 November 2006, Sika v. Slovakia, no. 2132/02, § 31, 13 June 2006; Šidlová v. Slovakia, no. 50224/99, §§ 49 and 50, 26 September 2006, Tomláková v. Slovakia, no. 17709/04, §§ 34-35, 5 December 2006; and Becová v. Slovakia (dec.), no. 23788/06, 18 September 2007).", "This above list is not exhaustive. 20. From the conclusions in paragraphs 13 to 18 above it follows that, unlike in the case of Becová (cited above), in the case at hand the Constitutional Court’s decision cannot be considered to be compatible with Convention principles (see Sukobljević, cited above, § 45). 21. In view of the above considerations the Court finds that the applicant was not required, for the purposes of Article 35 § 1 of the Convention, to resort to the remedy under Article 127 of the Constitution anew.", "The application, accordingly, cannot be rejected for non-exhaustion of domestic remedies. 22. The period to be taken into consideration began on 28 February 2011. At the time of notification of this case to the Government in March 2016, the proceedings were still pending before the District Court. In the light of the documents in its possession, the Court notes that no judgment on the merits has been delivered yet and the impugned proceedings have not been finalised.", "They have thus lasted more than six years before one level of jurisdiction. 23. In view of the above consideration, the Court notes that this complaint is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 24. 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). 25. 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).", "26. The Court notes that, apart from the arguments already addressed above, the parties did not bring any new line of reasoning concerning the merits of the present case. In view of the particular circumstances of the case and 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 merits of the applicant’s complaint. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 27.", "There has accordingly been a breach of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 29.", "The applicant claimed 27,122.24 euros (EUR) in respect of pecuniary and non-pecuniary damage. Concerning the former, he referred to damage allegedly sustained in the context of other sets of proceedings. 30. The Government contested that claim. 31.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 2,700 under that head. B. Costs and expenses 32.", "The applicant also claimed EUR 284.08 for the costs and expenses incurred before the Constitutional Court. 33. The Government pointed to the fact that the applicant failed to substantiate his claim by an invoice or any other supporting document establishing that he had actually paid that amount claimed. 34. According to the Court’s case-law, the 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 letter of 19 July 2016 the applicant was asked to submit quantified claims, together with supporting documents such as the necessary vouchers (bills of costs). Although the applicant stated his claim, he failed to show that he had actually paid or had obligation to pay those costs. In the absence of any documents supporting the applicant’s claim, and bearing in mind the terms of Rule 60 §§ 2 and 3 of its Rules, the Court makes no award in respect of this head (see, for example, Ištván and Ištvánová v. Slovakia, no. 30189/07, § 122, 12 June 2012). C. Default interest 35.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint concerning Article 6 § 1 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, EUR 2,700 (two thousand seven hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;[1] (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 25 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıHelen KellerDeputy RegistrarPresident [1]. Rectified on 5 September 2017 : the text was “(a) that the respondent State is to pay the applicant, within three months, EUR 2,700 (two thousand seven hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage;”" ]
[ "FIRST SECTION CASE OF EDUARD SHABALIN v. RUSSIA (Application no. 1937/05) JUDGMENT STRASBOURG 16 October 2014 FINAL 16/01/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Eduard Shabalin v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Julia Laffranque,Paulo Pinto de Albuquerque,Linos-Alexandre Sicilianos,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 23 September 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "1937/05) 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 Eduard Albinovich Shabalin (“the applicant”), on 3 December 2004. 2. The applicant was represented by Mr S. Obolentsev, a lawyer practising in Tula. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicant alleged, in particular, that his remand in custody from 25 August 2004 to 25 February 2005 had been unlawful, and that the detention order issued on 21 August 2003 had been issued in absentia. 4. On 12 October 2009 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1971 and lives in Yefremov, Tula Region. 6. On 8 November 2002 criminal proceedings were opened against the applicant, who was suspected of murder. The same day he gave an undertaking not to leave town. 7.", "On 11 November 2002 the applicant was arrested. On 12 November 2002 the Yefremovskiy Town Court of the Tula Region (“the Town Court”) remanded him in custody. His detention was subsequently extended by court order on several occasions. 8. On 20 November 2002 the applicant was formally charged with murder and the illegal acquisition, keeping and wearing of a handgun and ammunition.", "On 28 February 2003 he was committed to stand trial before the Town Court. 9. On 21 August 2003 the Town Court extended the applicant’s detention pending trial for three months until 28 November 2003. Neither he nor his counsel were present at the hearing. No ordinary appeal was brought by them against that detention order; however, the applicant challenged the detention order in supervisory review proceedings.", "10. On 27 February 2004 the Town Court extended the applicant’s remand in custody from 28 February until 28 May 2004 in his absence. His counsel was not present at the hearing either. Instead of bringing an ordinary appeal, the applicant lodged a request with the court to have supervisory review proceedings initiated in respect of the detention order. 11.", "On 26 May 2004 the Town Court convicted the applicant of murder and sentenced him to six years’ imprisonment, acquitting him of the other charges. He appealed. 12. On 25 August 2004 the Tula Regional Court quashed the judgment on appeal and remitted the case to the first-instance court for fresh examination. The appellate court noted in the operative part of its judgment that the preventive measure applied to the applicant should “remain unchanged”.", "13. On 9 September 2004 the applicant’s criminal case file arrived at the Town Court. 14. On 6 October 2004 the Town Court examined a request by the applicant for release and dismissed it, stating: “On 12 November 2002 the court remanded [the applicant] in custody. The reasons for that decision were the risk of him absconding and interfering with the investigation ...", "The court does not see any reason to grant the request [for release]. Although the conviction of 26 May 2004 was quashed on appeal on 25 August 2004, the case was remitted for retrial ... The appellate court left the preventive measure unchanged. The [applicant’s] reference ... to the deterioration of his health while in detention is [inconclusive]. In the remand prison [he] receives the necessary medical assistance.” The decision was amenable to appeal; however, it appears that no appeal was lodged.", "15. On 25 February 2005 the Town Court ruled that the applicant was considered to have been detained “pending trial” from 9 September 2004 and that the maximum period of detention of that kind was to expire on 9 March 2004 [sic]. It extended his detention for three months until 9 June 2005. On 23 March 2005 the detention order was upheld on appeal. 16.", "On 15 August 2005 the Supreme Court of Russia, following the applicant’s supervisory review complaint, initiated supervisory review proceedings in respect of the detention order of 21 August 2003 (see paragraph 9 above) and remitted the case to the Presidium of the Tula Regional Court for examination. 17. On 24 October 2005 the Presidium reviewed and upheld the detention order of 21 August 2003. It found that there had been no violation of the applicant’s rights as a result of his remand in custody being extended in his and his lawyer’s absence. The prosecutor was present at the hearing before the Presidium, but the applicant and his representative were not.", "18. On 3 November 2005 the Supreme Court of Russia accepted the applicant’s complaint and initiated supervisory review proceedings in respect of the detention order of 27 February 2004 (see paragraph 10 above). It ordered that the complaint be examined by the Presidium of the Tula Regional Court. 19. On 23 January 2006 the Presidium acknowledged that the applicant’s defence rights had been violated as a result of his remand in custody being extended in his and his lawyer’s absence, quashed the detention order of 27 February 2004 and remitted the matter to the first-instance court for fresh examination.", "20. On 23 January 2006 the Town Court convicted the applicant as charged and sentenced him to eleven years’ imprisonment. He appealed. 21. On 21 February 2006 the Town Court conducted a new hearing on the issue of the applicant’s detention from 28 February until 28 May 2004 and authorised his detention for that period.", "He and his counsel were present at the hearing and made oral submissions. That detention order was upheld on appeal on 24 March 2006. 22. On 26 April 2006 the Tula Regional Court upheld the applicant’s conviction on appeal, but reduced his sentence to eight years and six months’ imprisonment. 23.", "It appears that in 2010 he was released on probation, having served only part of his sentence. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Right to be heard in detention proceedings 24. The Code of Criminal Procedure of the Russian Federation (“CCrP”), in force from 1 July 2002, allows the court to remand a defendant in custody in his absence, only if an international warrant for his arrest has been issued (Article 108 § 5).", "The court cannot extend detention in the absence of a defendant, unless he is undergoing forensic psychiatric examination in an inpatient institution, or where other circumstances making his presence impossible have been shown to exist by appropriate documentation. In these circumstances, the participation of defence counsel at the hearings is mandatory (Article 109 § 13). 25. In judgment no. 4-P of 22 March 2005 the Constitutional Court of the Russian Federation pronounced its opinion on the right of defendants to be heard in detention matters during the criminal proceedings and stated: “3.3.", "... Since deprivation of liberty ... is only permissible pursuant to a court decision taken at a hearing ... on condition that the detainee has been provided with an opportunity to submit his arguments to the court, the prohibition on issuing a detention order ... without a hearing shall apply to all court decisions, whether they concern the initial imposition of this preventive measure or its confirmation.” B. Right to a reasoned detention order setting a specific time-limit 26. The CCrP provides that when quashing a verdict and remitting the matter for fresh consideration to the first-instance court for retrial, the appellate court must decide whether a preventive measure should be applied to a defendant (Article 378 § 1 (3) and Article 388 § 1 (8)). That decision is not amenable to ordinary appeal.", "27. In its resolution no. 1 of 5 March 2004 “On the Application by Courts of the Russian Code of Criminal Procedure”, in force at the relevant time, the Russian Supreme Court noted that when deciding whether to extend a defendant’s detention pending trial, the court should indicate the grounds justifying the extension and set a time-limit (paragraph 16). 28. In its ruling no.", "245-O-O of 20 March 2008, the Russian Constitutional Court noted that it had reiterated on several occasions (judgment nos. 14-P and 4-P of 13 June 1996 and 22 March 2005, and ruling nos. 417-O and 330-O of 4 December 2003 and 12 July 2005 respectively) that a court, when taking a decision under the Code of Criminal Procedure whether to place an individual in detention or extend a period of detention, is under an obligation to indicate the grounds justifying his or her deprivation of liberty and set a time-limit. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 29.", "Relying on Article 5 of the Convention, the applicant complained that his remand in custody from 25 August 2004 to 25 February 2005 had not been covered by any lawful detention order. The Court considers that this complaint falls to be examined under Article 5 § 1 (c) of the Convention which, in so far as relevant, reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;” 30. The Government conceded that in its appeal judgment of 25 August 2004, the Tula Regional Court had failed to give any reasons for the applicant’s detention during the above period, in breach of domestic law and contrary to the requirements of Article 5 of the Convention.", "31. The applicant maintained his complaint. A. Admissibility 32. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 33. The Court reiterates that it has previously found violations of Article 5 § 1 (c) of the Convention in many Russian cases where the domestic court has maintained a custodial measure in respect of applicants, without indicating any particular reason for such a decision or setting a specific time-limit for the continued detention or for a periodic review of the preventive measure (see Strelets v. Russia, no. 28018/05, § 72, 6 November 2012, with further references).", "The Court considered that such detention orders did not comply with the requirements of clarity, foreseeability and protection from arbitrariness, and therefore applicants’ detention pursuant to such detention orders was not “lawful” for the purposes of Article 5 § 1 of the Convention. 34. Turning to the present case, the Court notes that on 25 August 2004 the Tula Regional Court quashed the first-instance judgment of 26 May 2004 by which the applicant had been convicted, and remitted the case for new consideration by the trial court and ordered that he remain in detention. It gave no reasons for its decision to keep him in custody, nor did it set any specific time-limit for his continued detention. The subsequent judicial authorisation of his detention did not take place until 25 February 2005 (see paragraphs 12 and 15 above).", "35. The Court notes that the Government have acknowledged that the applicant’s detention from 25 August 2004 to 25 February 2005 had not been duly authorised and had thus been in breach of Article 5 of the Convention. 36. Having regard to its established case-law on the issue and the circumstances of the present case, the Court does not see any reason to hold otherwise. In view of the foregoing, the Court considers that the period complained of – 25 August 2004 to 25 February 2005 – was not covered by a lawful detention order.", "37. There has accordingly been a violation of Article 5 § 1 (c) of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 38. The applicant complained of a violation of Article 5 of the Convention, because the detention order of 21 August 2003 had been issued by the Town Court in his and his counsel’s absence.", "The Court considers that this complaint falls to be examined 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.” 39. The Government acknowledged that the detention order of 21 August 2003 had been issued in the absence of the applicant, his legal counsel and the prosecutor and that none of them had been informed of the date and time of the hearing in question. They admitted that there had been a violation of Article 5 § 4 of the Convention in this respect. 40. The applicant maintained his complaint.", "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 42. The Court reiterates that in the case of a person whose detention falls within the ambit of Article 5 § 1 (c) of the Convention, a hearing is required (see Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999‑II). The opportunity 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 Idalov v. Russia [GC], no. 5826/03, § 161, 22 May 2012).", "43. The Court notes that on 21 August 2003 the applicant’s remand in custody was extended by the Town Court until 28 November 2003 in absentia and that, as acknowledged by the Government, none of the parties to the proceedings (the applicant, his legal counsel or the prosecutor) had been informed of the hearing. 44. It follows that in the present case the defence was deprived of the opportunity to be heard in the procedure which ended in the detention order of 21 August 2003. The Court further notes that the above defect was not remedied in the subsequent proceedings (see, by contrast, Yefimova v. Russia, no.", "39786/09, § 282, 19 February 2013). 45. The Court takes note of the Government’s acknowledgment of the violation of Article 5 § 4 of the Convention and, in the circumstances of the present case, finds no reason to hold otherwise. It therefore concludes that there has been a violation of that provision. III.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 46. The applicant further complained that he had had no effective remedy against his unlawful remand in custody authorised by the Tula Regional Court on 25 August 2004, in breach of Article 13 of the Convention, which provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 47. The Government argued that the applicant had had effective remedies at his disposal. In particular, during the above period he could have obtained a judicial review of the lawfulness of his detention in the appeal proceedings. In support of this argument, they submitted several appeal decisions issued in detention proceedings decided in the detainees’ favour.", "They added that compensation for damage sustained through an unlawful remand in custody could have been obtained under Article 1070 of the Civil Code in civil proceedings. 48. The applicant did not comment on the Government’s objections. 49. The Court observes that the applicant’s detention between 25 August 2004 and 25 February 2005 derived its legal basis from the detention order incorporated in the Tula Regional Court’s appeal judgment of 25 August 2004, by which his conviction was quashed, the case was referred back to the trial court and his detention remained “unchanged” (see paragraph 34 above).", "It is true that under the domestic law (see paragraph 26 above) this detention order was not amenable to ordinary appeal; however, Article 13 of the Convention does not, as such, guarantee a right to a second level of jurisdiction (see Luchaninova v. Ukraine, no. 16347/02, § 37, 9 June 2011, with further references). The mere fact that the decision of the highest judicial body is not amenable to further judicial review does not in itself infringe the provision in question (see Murtazin v. Russia, no. 26338/06, §§ 46-47, 27 March 2008, with further references). 50.", "The Court further notes that the applicant was, at any time during his detention on the basis of the detention order of 25 August 2004 (between 25 August 2004 and 25 February 2005), entitled to apply for release to the trial court and to appeal against its decisions. He availed himself of this opportunity during the above period and lodged an application for release, which was rejected by the Town Court on 6 October 2004 (see paragraph 14 above). It was open to him to appeal against that decision; however, for reasons unknown, he did not do so. It cannot therefore be said that the inability to lodge an appeal against the decision of 25 August 2004 seriously affected his rights under Article 13 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 51. Lastly, the applicant submitted a number of other complaints under Articles 3, 5, 6 and 13 of the Convention related to his detention and trial. 52. The Court has examined the above complaints, as submitted by the applicant.", "However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 53. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 54.", "The applicant claimed 44,400 euros (EUR) in respect of pecuniary damage for 888 days of his unlawful detention and EUR 50,000 in respect of non-pecuniary damage for the violations found. 55. The Government submitted that his claim for pecuniary damage was totally unsubstantiated. As for his claim for non-pecuniary damage, they stated that it was excessive. 56.", "The Court notes that the applicant’s claim for pecuniary damage lacks any substantiation; it therefore rejects this claim. As regards non‑pecuniary damage, the Court considers that he must have suffered distress and frustration resulting from the violations of Article 5 §§ 1 (c) and 4 found in the present case. However, the amount claimed by him appears excessive. Making its assessment on an equitable basis, the Court awards the applicant EUR 7,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable on the above amount. B.", "Costs and expenses 57. The applicant also claimed EUR 1,000 for the costs and expenses of his legal representation incurred before the Court. He submitted a copy of an agreement of 23 March 2010 made with Mr S. Obolentsev, a member of the Tula Bar Association, and a detailed invoice of his costs and expenses, which included research, drafting documents and correspondence with the Court, representing twenty-five hours of work at an hourly rate of EUR 40. 58. The Government did not comment on this claim.", "59. 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, which represents the sum requested, plus any tax that may be chargeable to the applicant on that amount. 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 complaints concerning unlawfulness of the applicant’s detention on remand between 25 August 2004 and 25 February 2005, and the applicant’s and his lawyer’s absence from the detention hearing of 21 August 2003 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 5 § 1 (c) 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, 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 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the representative’s bank account in Russia; (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 16 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]
[ "FIRST SECTION CASE OF BRIENZA v. ITALY (Application no. 62849/00) JUDGMENT STRASBOURG 16 October 2003 FINAL 16/01/2004 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Brienza v. Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrP.", "Lorenzen,MrG. Bonello,MrsF. Tulkens,MrA. Kovler,MrV. Zagrebelsky,MrK.", "Hajiyev, judges, and Mr E. Fribergh, Section Registrar, Having deliberated in private on 25 September 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 62849/00) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mr Silvano Carmelo Brienza (“the applicant”), on 2 November 2000. 2. The applicant was represented by Mr F. Scorsone and Mrs C. Zuardi Scorsone, lawyers practising in Rome.", "The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza and by their successive co-agents, respectively Mr V. Esposito and Mr F. Crisafulli. 3. On 10 October 2002 the Court declared the application admissible. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1956 and lives in San Cesareo (Rome). 5. P.C. was the owner of a flat in Rome, which she had let to A.C. 6. In a writ served on the tenant on 3 March 1986, the owner informed her of her intention to terminate the lease and summoned her to appear before the Rome Magistrate.", "7. By a decision of 12 June 1986, which was made enforceable on 6 November 1986, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1988. 8. On 30 April 1990, a notice was served on the tenant requiring her to vacate the premises. 9.", "On 18 May 1990, a notice was served on the tenant informing her that the order for possession would be enforced by a bailiff on 11 July 1990. 10. Between 11 July 1990 and 5 October 1999, the bailiff made thirty attempts to recover possession, but they proved unsuccessful as the owner and then the applicant were not entitled to police assistance in enforcing the order for possession. 11. On 21 June 1991, the applicant became the owner of the flat and pursued the enforcement proceedings 12.", "On 13 October 1997, he made a statutory declaration that he urgently required the premises as accommodation for himself. 13. On 2 May 2000, the applicant recovered possession of the flat. II. RELEVANT DOMESTIC LAW 14.", "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 15.", "As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows. 16. 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. 17.", "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. 18.", "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 19. 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.” 20. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law no. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat. 21.", "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. 22. 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 23. The applicant complained of his prolonged inability to recover possession of his flat, owing to the lack of police assistance. He alleged a violation of his right of property, as guaranteed by Article 1 of Protocol No. 1 to the Convention, which provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.", "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 24. The applicant also alleged a breach of Article 6 § 1 of the Convention, the relevant part of which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 25. The Court has previously examined a number of cases raising issues similar to those in the present case and found a violation of Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention (see Immobiliare Saffi, cited above, §§ 46-75; Lunari v. Italy, no.", "21463/93, §§ 34-46, 11 January 2001; Palumbo v. Italy, no. 15919/89, §§ 33-48, 30 November 2000). 26. The Court has examined the present case and finds that there are no facts or arguments from the Government which would lead to any different conclusion in this instance. It notes that the applicant had to wait approximately eight years and ten months after he became the owner of the flat 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 27. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 28.", "The applicant claimed 63,300 euros (EUR) for the pecuniary damage, the sum being the loss of rent for a period of ten years. The applicant submitted this amount as the result of the difference between the market value rent (EUR 7,230.39 per year) – as estimated on the basis of a new contract for the year 2000 – and the rent imposed by law paid by the tenant (approximately EUR 900 per year). 29. The Government contested the claim. 30.", "The Court recalls that on 13 October 1997, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself. In such circumstances, for the period of time from 13 October 1997 to 2 May 2000, he cannot claim any entitlement to reimbursement of loss of rent but can only claim the reimbursement of such costs and expenses incurred to rent another flat which go beyond the rent received from the tenant. However, he has not made such a claim. Therefore, the Court rejects this part of the claim. As regards the remaining period until 13 October 1997, the Court considers that the applicant must be awarded compensation for the pecuniary damage resulting from the loss of rent for the period of time related to the violations found.", "Having regard to the means of calculation proposed by the applicant and in the light of the evidence before it and the period concerned, it decides to award him on an equitable basis EUR 16,000 under this head. B. Non-pecuniary damage 31. The applicant claimed EUR 33,170 for the non-pecuniary damage. He also left the matter to the Court's discretion. 32.", "The Government contested the claim. 33. The Court considers that the applicant must have sustained some non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 6,000 under this head. C. Costs and expenses 34.", "The applicant also claimed reimbursement of his legal costs and expenses as follows: - EUR 3,040 for the costs of the enforcement proceedings; - EUR 11,124.38 for the costs and expenses before the Court. 35. The Government contested the claims. 36. On the basis of the information in its possession and the Court's case-law, the Court considers it reasonable to award the applicant the sum of EUR 1,000 for the costs and expenses incurred in the domestic proceedings and EUR 2,000 for the proceedings before the Court.", "37. The Court awards a total sum of EUR 3,000 for legal costs and expenses. D. Default interest 38. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts: (i) EUR 16,000 (sixteen thousand euros) for pecuniary damage; (ii) EUR 6,000 (six thousand euros) for non-pecuniary damage; (iii) EUR 3,000 (three thousand euros) for legal costs and expenses; (iv) any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction.", "Done in English, and notified in writing on 16 October 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Erik FriberghChristos RozakisRegistrarPresident" ]
[ "THIRD SECTION CASE OF VARGA v. SLOVAKIA (Application no. 36931/08) JUDGMENT STRASBOURG 10 July 2012 FINAL 19/11/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Varga v. Slovakia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Alvina Gyulumyan,Ján Šikuta,Ineta Ziemele,Luis López Guerra,Nona Tsotsoria,Kristina Pardalos, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 19 June 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "36931/08) 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 two Slovak nationals, Mr Oliver Varga and Mr Barnabáš Varga (“the applicants”), on 21 July 2008. 2. The applicants were represented by Mr R. Belanský, a lawyer practising in Košice. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3.", "The applicants alleged a breach of their right to a fair hearing in proceedings concerning their claim for restitution of a plot of land. 4. On 6 September 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. Mr Oliver Varga (the first applicant), is a Slovakian national who was born in 1959 and lives in Veľké Kapušany. He is the brother of Mr Barnabáš Varga (the second applicant), a Slovakian national who was born in 1954 and died on 19 May 2009. After his death the first applicant, as his brother’s sole heir, expressed the wish to pursue the application in the second applicant’s stead. 6.", "In 1981 several plots of land situated in Veľké Kapušany were expropriated from the applicants’ family. Their ownership was later transferred to the Veľké Kapušany municipality. Under a contract of 25 July 1991 that municipality transferred the ownership of the plots to a gas distribution company. The applicants’ mother, and, after her death in 1993 the applicants, claimed restitution of the plots. A.", "The first set of restitution proceedings 7. The municipality refused to restore one of the plots to the applicants’ mother under the Extra-Judicial Rehabilitations Act 1991, on the ground that it had been transferred to a legal person. She therefore brought an action with the Trebišov District Court. 8. On 24 April 1995 the District Court ordered the Veľké Kapušany municipality to conclude a contract with the applicants under which the plot in issue would be restored to them.", "The judgment transferred to the applicants ownership rights in respect of the plot with effect from the date it became final. 9. The District Court established that the municipality possessed the plot at the time of the entry into force of the Extra-Judicial Rehabilitations Act 1991, on 1 April 1991. The subsequent transfer of the plot to a company was void, as section 9(1) of the Extra-Judicial Rehabilitations Act 1991 prohibited transfer of property falling under that Act to third parties after its entry into force. 10.", "On 27 June 1996 the Košice Regional Court upheld the District Court’s judgment. 11. As a result, the plot was restored to the applicants. B. The second set of restitution proceedings 12.", "On 16 March 2004 the applicants claimed restitution of a different plot of land with a surface area of 593 square metres by virtue of Law no. 503/2003 on Restoration of Land Ownership (“the 2003 Act”). 13. On 27 July 2005 the District Land Office in Michalovce found, with reference to section 6(1)(a) of the 2003 Act, that ownership of the plot could not be restored to the applicants, as it was owned by a legal person. The decision acknowledged that under section 6(2) of the 2003 Act, the applicants were entitled either to have an alternative plot of land owned by the State transferred to them or to financial compensation.", "The redress was to be provided by the Slovak Land Fund. 14. The first applicant sought judicial review of the administrative decision. He argued that the administrative authority had not decided within the time-limit laid down in section 49 of the Administrative Proceedings Act 1967, and that section 6(1)(a) of the 2003 Act, excluding restitution of the plot on the ground that it was owned by a legal person, was enacted with effect from 1 May 2004, that is after the proceedings had been brought. That provision should not, therefore, have been applied to his claim with retroactive effect.", "Finally, the first applicant argued that the expropriation of the land in 1981 and its transfer to a company in 1991 had been unlawful. 15. On 21 February 2006 the Košice Regional Court upheld the administrative decision of 27 July 2005. It held that the Land Office had decided in accordance with the law as in force at the material time. The Regional Court considered the argument that the plot was not being used for the purpose for which it had been expropriated irrelevant, as it was uncontested that the applicants were entitled to redress pursuant to the relevant provisions of the 2003 Act.", "16. On 17 January 2007 the Supreme Court upheld the first-instance judgment. It held that the Regional Court had established all relevant facts and had applied the relevant law correctly. The judgment indicated that the thirty-day period set out in section 49 of the Administrative Proceedings Act 1967 was of a procedural nature. A failure by an administrative authority to respect it did not affect the legal position of parties to the proceedings.", "It was nevertheless open to parties who considered themselves affected to claim compensation in accordance with special law. The Supreme Court further confirmed the conclusion that, since the applicants were clearly entitled to redress under the 2003 Act, it was superfluous to take further evidence or to examine the lawfulness of the expropriation of the property in 1981 and its subsequent transfer to a different person in 1991. 17. The decision on the applicants’ claim became final on 21 February 2007. 18.", "On 23 April 2007 the applicants lodged a complaint with the Constitutional Court. They alleged a breach of their constitutional right to judicial protection in the proceedings on their restitution claim of 16 March 2004. They claimed that the transfer of their land in the same area to a gas distribution company on 25 July 1991 had been found contrary to the Extra-Judicial Rehabilitations Act 1991. The courts, dealing with their first restitution claim, had declared that transfer void on that ground. The courts dealing with their second restitution claim had disregarded their argument in that respect.", "They further argued that the ordinary courts’ conclusion, that the newly enacted section 6(1)(a) of the 2003 Act was to be applied to their case, was contrary to the constitutional principle of legal certainty and prohibition of laws having retroactive effects. 19. On 6 December 2007 the Constitutional Court dismissed the applicants’ complaint. It found no appearance of unlawfulness or arbitrariness in the proceedings leading to the Supreme Court’s judgment. Reference by the applicants to the fact that the transfer of their land to a company had been found unlawful in the context of a different set of proceedings under the Extra-Judicial Rehabilitations Act 1991 was not capable of undermining the conclusion the Supreme Court had reached in the proceedings under consideration governed by a different piece of legislation.", "The administrative authority and ordinary courts had decided in accordance with the relevant law then in force. In the context of the proceedings introduced by the applicants the Constitutional Court lacked the power to examine whether that law was in conformity with the Constitution. 20. The Constitutional Court’s decision became final on 19 February 2008. 21.", "The applicants’ right to claim either an alternative plot of land or financial compensation from the Slovak Land Fund as foreseen by section 6(2) and (8) of the 2003 Act lapsed on 21 February 2010, as they had not availed themselves of that right before that date. II. RELEVANT DOMESTIC LAW A. The 2003 Act 22. Law no.", "503/2003 on Restoration of Land Ownership (“the Land Ownership Restoration Act 2003”, “the 2003 Act”) governs restitution of agricultural and forest land which was not restored under earlier legislation. 23. Section 4(1) specifies that the obligation to restore land covered by that law extends to legal persons who, at the moment of its entry into force, use or administer land in the ownership of the Slovak Republic, and to agricultural cooperatives. 24. Until 30 April 2004 section 6(1)(a) provided that where the land in issue was owned by a natural person it could not be restored to the person entitled to claim it.", "With effect from 1 May 2004 that provision was amended, in that the exemption from the obligation to restore land extended also to cases where the land was in the ownership of legal persons who were different from those referred to in section 4(1). 25. Pursuant to section 6(2), in cases where land cannot be restored for reasons set out in sub-section 1, alternative land in State ownership of an appropriate area and quality should be transferred free of charge to the person concerned, where possible within the area of the same municipality. Where the person concerned disagrees with such a transfer, he or she is entitled to financial compensation. Its amount is to be determined in accordance with the Ministry of Justice Regulation 576/2003 on determination of general value of property.", "26. Section 6(8), amended with effect from 1 January 2008, allowed for a request for an alternative plot or compensation to be lodged with the Slovak Land Fund before 1 January 2009 as regards decisions which became final before 1 January 2008, but in all cases at least three years from the date the relevant decision takes effect. B. The Administrative Proceedings Act 1967 27. Section 49(1) obliges administrative authorities to decide on simple matters immediately.", "28. Pursuant to section 49(2), in other matters administrative authorities are obliged to decide within thirty days, unless a different period has been fixed in a special law. The thirty-day period can be extended to sixty days in particularly complex cases. Any further extension has to be approved by a higher authority. THE LAW I.", "THE SECOND APPLICANT’S DEATH 29. The second applicant died on 19 May 2009. The first applicant, as his brother’s sole heir, expressed the wish to pursue the application in the second applicant’s stead as well. 30. The Court accepts that the first applicant as his brother’s heir has a legitimate interest in pursuing the application in his stead (see also Ječius v. Lithuania, no.", "34578/97, § 41, ECHR 2000‑IX). II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 31. The applicants complained that their right to a fair hearing had been breached in the proceedings concerning their restitution claim. They relied on Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 32.", "The Government contested that argument. A. Admissibility 33. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 34. The applicants alleged that the dismissal of their claim on the basis of a legislative amendment enacted after the introduction of the proceedings had been in breach of their right to a fair hearing by a tribunal. They further maintained that the domestic authorities had failed to establish the relevant facts correctly, disregarded their argument that the property had been taken away from their predecessors unlawfully, and had decided arbitrarily. The applicants also argued that a legislative amendment had reduced the limitation period for claiming compensation to three years in 2008, and that they had not been informed thereof.", "35. The Government admitted that the amendment of section 6(1)(a) of the 2003 Act with effect from 1 May 2004 interfered with pending restitution proceedings including those of the applicants. That interference pursued the aim of ensuring the legal certainty and equal protection to natural persons and private-law legal persons who had acquired the property in issue in good faith. The interference was thus in the general interest and did not overturn the situation of individuals to whom the 2003 Act applied, as they were entitled to compensation. The Government further argued that the guarantees of Article 6 § 1 had been complied with in the proceedings complained of.", "36. The Court notes that the present case concerns the applicants’ claim for restitution of land which had been taken away from their predecessors under the communist regime, before the entry into force of the Convention in respect of Slovakia. As regards such situations, the Court has acknowledged that the Contracting States enjoy a wide margin of appreciation in choosing the conditions under which they agree to restore property rights or to provide other form or redress to former owners. The enactment of laws providing for such redress involved comprehensive consideration of manifold issues of a moral, legal, political and economic nature (see Kopecký v. Slovakia [GC], no. 44912/98, §§ 35-38, ECHR 2004‑IX, with further references).", "37. In this context the Court accepts the Government’s argument that the amendment excluding restitution of real property under the 2003 Act, where such property was owned not only by natural persons but also by legal persons falling under the regime of private law, pursued the aim of ensuring legal certainty for those owners. Obliging legal persons, similarly as the natural ones, who owned property in good faith to return it to the original owners or their heirs would require further measures with a view to ensuring appropriate compensation for them. This is supported by the fact that the amendment excluded restitution in natura of real property only in respect of legal persons who did not use or administer State-owned property. Albeit not relevant in the case of the present applicants, the obligation of the State to restore such property where it was still in its possession remained unaffected.", "38. The legislative amendment under consideration was thus enacted with a view to addressing an issue of general interest which concerned a number of persons, and not for the specific purpose of interfering with the proceedings which the applicants had brought. It did not deprive the applicants of the right to claim other forms of redress available. In particular, section 6(2) of the 2003 Act provided for transfer of different land in State ownership of an appropriate area and quality to the person concerned, where possible within the area of the same municipality. Where the person concerned disagreed with such a transfer, he or she was entitled to financial compensation.", "39. In view of the above considerations, the Court takes the view that the legislative amendment in issue which modified the legal framework as regards real property restitution claims was not contrary to the applicants’ right under Article 6 § 1 of the Convention in the circumstances. 40. It is true that, on 1 January 2008, the limitation period for submitting claims for an alternative plot of land or compensation with the Slovak Land Fund was reduced to three years. The applicants had until 21 February 2010 to submit such a claim, but they failed to do so.", "There is no indication that that failure can be imputed to the respondent State or that an issue under Article 6 of the Convention arises in that regard. 41. The Court further reiterates that its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, among other authorities, Garcia Ruiz v. Spain [GC], no.", "30544/96, § 28, ECHR 1999-I). 42. The documents available indicate that the domestic courts considered the applicants’ arguments and gave sufficient and relevant reasons for their decisions (paragraphs 15, 16 and 19 above), which do not appear to be arbitrary. There is no appearance of unfairness in the way in which the domestic authorities dealt with the applicants’ case. 43.", "The foregoing considerations are sufficient to enable the Court to conclude that in the present case there has been no violation of Article 6 § 1 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that the first applicant has standing to continue the present proceedings in his late brother’s stead; 2. Declares the application admissible; 3. Holds that there has been no violation of Article 6 § 1 of the Convention.", "Done in English, and notified in writing on 10 July 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident" ]
[ "FIRST SECTION CASE OF SHANOVY v. RUSSIA (Application no. 21834/05) JUDGMENT STRASBOURG 7 February 2012 This judgment is final but it may be subject to editorial revision. In the case of Shanovy v. Russia, The European Court of Human Rights (First Section), sitting as a Committee composed of: Mirjana Lazarova Trajkovska, President,Anatoly Kovler,Erik Møse, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 17 January 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 21834/05) 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 two Russian nationals, Ms Olga Yuryevna Shanova and Mr Aleksandr Aleksandrovich Shanov (“the applicants”), on 12 April 2005.", "2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3. On 27 August 2010 the President of the First Section decided to give notice of the application 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 are mother and son who were born in 1954 and 1985 respectively and live in Selyatino in the Moscow Region. 6.", "On 14 March 1997 the applicants’ husband and father Mr Shanov died. Before his death Mr Shanov was a recipient of the Chernobyl social benefits. 7. On 29 May 1999 the first applicant brought proceedings before the Naro-Fominsk Town Court of the Moscow Region (“the Town Court”) against the Pension Department of the Naro-Fominsk District (Управление пенсионного фонда РФ по Наро-Фоминскому району) seeking reassessment of the amount of benefits that she and the second applicant were entitled to after Mr Shanov’s death. 8.", "Her claims were rejected by a judgment of the Town Court of 21 March 2000, as upheld by the Moscow Regional Court (“the Regional Court”) on 18 April 2000. 9. On an unspecified date at the first applicant’s request the president of the Regional Court lodged an extraordinary appeal for supervisory review against the above court decisions. 10. On 17 January 2001 the Presidium of the Regional Court granted the appeal, quashed the judgment of 21 March 2000 and the decision of 18 April 2000 by way of supervisory review and remitted the matter to the first instance for fresh consideration.", "11. On 31 May 2001 the Town Court granted the first applicant’s claims for reassessment and recovery of the benefits. However, on 8 August 2001 the judgment was set aside on appeal by the Regional Court which required a new hearing. 12. On 21 October 2002 the Town Court granted the first applicant’s claims against the Pension Department and Department of Social Protection of the Naro-Fominsk District (Комитет социальной защиты населения администрации Наро-Фоминского района) for recovery of the benefits, awarding her lump-sum compensation amounting to 298,801 Russian roubles (RUB) and monthly payments in the amount of RUB 15,381.", "13. On 2 December 2002 the above judgment was upheld by the Regional Court on the respondents’ appeal. The appeal court did not recite the reasoning of the grounds of appeal but mentioned that the arguments of the appellant had been considered by the trial court. 14. In respect of the lump-sum compensation award, the first applicant received the first instalment on 4 August 2004 and the second instalment on 13 November 2004.", "She has not received the remaining RUB 100,014 (approximately 2,380 euros (EUR)) to date. 15. On 21 April 2003 the respondent lodged an application for supervisory review on account of allegedly erroneous application of the material law in the judgment of 21 October 2002 and the appeal decision upholding it. 16. The applicants were notified that a hearing of the application for supervisory review by the Presidium of the Regional Court was scheduled for 8 September 2004.", "17. On 8 September 2004 the applicants’ representative appeared in court but was informed that the hearing had been rescheduled to a later date of which he would be notified in due course. 18. On an unspecified date the applicants received the decision of the Presidium of the Regional Court of 8 December 2004 to quash by way of supervisory review the impugned judgments for incorrect application of the material law and a failure to subtract a previously received payment from the total amount due. The Presidium remitted the matter for fresh consideration to the first instance.", "The applicants had not been notified of the hearing of 8 December 2004 and did not appear in it. 19. On 6 February 2005 the first applicant brought proceedings for compensation of pecuniary and non-pecuniary damage resulting from the delayed enforcement of the judgment of 21 October 2002. Her original claims and damages action were joined in one case against the Treasury of Russia and the Moscow Region Department of the Ministry of Social Protection (Министерство социальной защиты населения Московской области), where the claimant party was eventually represented by the second applicant who had come of age. 20.", "On 12 September 2005 the Town Court delivered a new judgment which partially granted the applicant’s claims for recovery of the benefits but dismissed the damages action. 21. On 2 November 2005 the Regional Court upheld on appeal the part of the judgment dismissing the claim for damages and remitted the rest of the judgment for fresh consideration due to erroneous application of the material law. 22. On 28 March 2006 the Town Court again granted the second applicant’s claims in part awarding him RUB 10,474 in monthly payments and a lump-sum amount of RUB 98,564.", "According to the Government, this judgment was enforced on 29 November 2007, but the applicants submitted that they had received the payment on 5 December 2007. 23. By a final decision of 12 December 2008 the Town Court index‑linked the lump-sum amount awarded by the judgment of 28 March 2006. This amount was paid to the applicants on 28 October 2009. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF SUPERVISORY REVIEW 24. The applicants complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 about the quashing of the final judgment in their favour on 8 December 2004. They also complained under Article 6 § 1 that they had not been duly summoned to the hearing at the supervisory instance on 8 December 2004.", "These provisions read in the relevant part as follows: Article 6 “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 25. 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 26. The Government claimed that the supervisory review had been used to correct a “fundamental defect” in the adjudication of the dispute by the lower courts, namely errors in the calculation of the amounts due to the applicant.", "As a result of one of these errors, the applicants had allegedly received twice the amount of compensation for a certain period. 27. The Court reiterates that legal certainty, which is one of the fundamental aspects of the rule of law, implies respect for the principle of res judicata, the principle of the finality of judgments. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character, such as correction of fundamental defects or miscarriage of justice (see, among many other authorities, Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII, and Ryabykh v. Russia, no.", "52854/99, §§ 51-52, 24 July 2003). The Court has previously listed among such possible defects jurisdictional errors, serious breaches of court procedure or abuse of power (see Luchkina v. Russia, no. 3548/04, § 21, 10 April 2008). 28. Turning to the present case, the Court observes that the judgment of 21 October 2002 was quashed by way of supervisory review two years after it became final and enforceable, for incorrect application of the material law and erroneous calculation of the final amount due to the applicant.", "It further observes that the respondent appealed the original judgment in the context of the normal court procedure and was free to raise the same issues in its grounds of appeal as it did in the application for supervisory review. The Court cannot agree that possible arithmetical errors or errors in application of the material law here at issue fall into the category of a “fundamental defect” as it has so far been interpreted in the Court’s case-law. Nor does the Court discern any other element warranting a departure from the principle of legal certainty in the present case. 29. The foregoing considerations are sufficient to enable the Court to conclude 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. 30. As to the complaint of the lack of due notification of the hearing at the supervisory instance, the Court does not find it necessary to consider it separately in view of its finding that the quashing of the final judgment in the applicant’s favour as such breached the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No.", "1 ON ACCOUNT OF DELAYED ENFORCEMENT 31. The applicants also complained about the failure of the authorities to pay them the remaining amount of RUB 100,014 due by the judgment of 21 October 2002 and the delayed payment of RUB 98,564 due by the judgment of 28 March 2006. They relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. The relevant parts of these provisions are quoted above.", "A. Admissibility 32. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 33. The Government submitted that if the judgment of 21 October 2002 had been enforced in full, the applicant would have unlawfully received RUB 376,785. They did not provide any other comments on this complaint. 34. The Court reiterates 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, cited above, §§ 55-57, and Burdov v. Russia, no.", "59498/00, § 34, ECHR 2002-III). Having regard to its finding of a violation of Article 6 on account of the quashing of the judgment of 21 October 2002 in supervisory‑review proceedings above, the Court finds that it is not necessary to examine separately the issue of its subsequent partial non‑enforcement by the authorities (see Kulkov and Others v. Russia, nos. 25114/03 et al, § 35, 8 January 2009, with further references). 35. However, prior to being quashed, the judgment of 21 October 2002 in the applicants’ favour had remained partially unenforced for approximately two years.", "Furthermore, the judgment of 28 March 2006 was enforced with a delay of one year and eight months. The Court considers that the delay in the enforcement of these two judgments is such as to breach the Convention. 36. Accordingly, there has been a violation of Article 6 § 1 and Article 1 of Protocol No. 1 on this account.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 37. The applicants further complained under Articles 6 and 13 of unreasonable length of the proceedings that ended with the judgment of 28 March 2006. They also complained under Article 6 and Article 1 of Protocol No. 1 of the Convention of unlawfulness of the judgments adopted by the courts on 21 September 2005 and 28 March 2006, and under Article 6 of a biased court.", "38. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the above complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 39.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 40. The applicants claimed pecuniary damage in the amount of 490,511 Russian roubles (RUB) (approximately 11,840 euros (EUR)) calculated as the amount that had remained unpaid under the judgment of 21 October 2002 with compensation for its depreciation, as well as compensation for allegedly delayed payment of the remainder of the award due by that judgment and of the award under the judgment of 28 March 2006. In particular, they calculated that according to the bank refinancing rates in force between 2 December 2002 and 31 March 2011, their losses resulting from the authorities’ failure to pay them RUB 100,014 under the judgment of 21 October 2002 amounted to RUB 99,735 (approximately EUR 2,370). 41.", "They also claimed non-pecuniary damage in the amount of EUR 3,000 for violation of their right to legal certainty, EUR 3,000 for partial non-enforcement of the judgment of 21 October 2002, EUR 2,375 for the delay in the enforcement of the judgment of 28 March 2006, and EUR 5,000 for an allegedly excessive length of the proceedings. 42. The Government disagreed with the claims. They pointed out that the award under the judgment of 21 October 2002 had ceased to be enforceable with adoption of the decision to quash that judgment in supervisory review. In any event, under that judgment the applicants had already received the money that they had not been entitled to, and despite the quashing they had not been required to return the money.", "The Government also disputed the claim for non-pecuniary damage as excessive and unsubstantiated. 43. The Court reiterates that the most appropriate form of redress in respect of the violations found would be to put the applicants as far as possible in the position they would have been if the Convention requirements had not been disregarded (see Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85, and, mutatis mutandis, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003).", "It further reiterates its constant approach that the adequacy of the compensation would be diminished if it were to be paid without reference to various circumstances liable to reduce its value (see, mutatis mutandis, Gizzatova v. Russia, no. 5124/03, § 28, 13 January 2005). 44. Having regard to the claim for pecuniary damage, the Court notes firstly that the applicants’ complaints of non-enforcement concerned originally only the unpaid amount of RUB 100,014 and the delayed enforcement of the judgment of 28 March 2006. It also notes that the applicants have already been paid compensation for pecuniary damage resulting from delayed enforcement of the judgment of 28 March 2006 (see paragraph 23 above).", "45. In these circumstances the Court decides that the amount of RUB 100,014 which has not been paid in accordance with the judgment of 21 October 2002 must be paid in full. Furthermore, the Court notes that the Government did not provide an alternative method of calculation of the pecuniary damage sustained by the applicants as a result of the depreciation of the original award. It does not find the applicants’ calculation unreasonable and awards them a total of EUR 4,750 for pecuniary damage. 46.", "As to the claim for non-pecuniary damage, the Court accepts that the applicants suffered distress and frustration on account of the violation of their right to legal certainty and the right to access to a court and awards them EUR 3,000 in respect of non-pecuniary damage. B. Costs and expenses 47. The applicants also claimed RUB 4,081 (approximately EUR 100) for the costs and expenses incurred before the Court. In support of their claim they submitted several receipts for postal expenses, as well as various administrative and legal fees.", "48. The Government challenged the claim as unsubstantiated. 49. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to accept the applicants’ claim and awards them EUR 100 under this head. C. Default interest 50.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints concerning quashing in supervisory review and delayed enforcement 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 in supervisory review; 3.", "Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of delayed enforcement of the judgments in the applicants’ favour; 4. Holds (a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement: (i) EUR 4,750 (four thousand seven hundred and fifty euros), plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 100 (one hundred euros), plus any tax that may be chargeable, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 7 February 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "André WampachMirjana Lazarova Trajkovska Deputy RegistrarPresident" ]
[ "FIFTH SECTION CASE OF BECKER v. GERMANY (Application no. 8722/02) JUDGMENT (Friendly settlement) STRASBOURG 14 December 2006 This judgment is final but it may be subject to editorial revision. In the case of Becker v. Germany, 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 20 November 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 8722/02) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mrs Elke Becker (“the applicant”), on 19 February 2002. 2. The applicant was represented by Mr L. Ose, a lawyer practising in Ludwigshafen. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialrätin, of the Federal Ministry of Justice.", "3. The applicant complained under Article 6 § 1 of the Convention about the length of a set of civil proceedings which the applicant had joined as a private party. 4. On 8 July 2004, after obtaining the parties' observations, the Court declared the application admissible. 5.", "On 24 August 2006, 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 19 and 16 October 2006 the applicant and the Government respectively submitted formal declarations accepting a friendly settlement of the case. THE FACTS 6. The applicant was born in 1952 and lives in Frankenthal. 7.", "On 28 May 1991 the applicant's husband instituted proceedings with the Frankenthal District Court, sitting as a court competent in family matters, with a view to obtain the spouses' divorce. 8. On 21 February 1992 the Frankenthal District Court pronounced the spouses' divorce. It ordered the applicant's former husband to pay alimony to their son. Having regard to a marriage contract in which both parties had agreed to manage their property separately and to waive alimony in case of a divorce, it found that the applicant was not entitled to any alimony payments.", "Contrary to the applicant's allegations, it considered the marriage contract to be compatible with German law, finding that the applicant's pregnancy at the time that it was concluded did not place her at an excessive disadvantage that would automatically make the contract null and void. 9. On 12 November 1992 the Palatinate Court of Appeal, following the applicant's appeal, amended the District Court's decision. It obliged her former husband to pay her a monthly alimony of DEM 300 (approximately EUR 153), finding that this was necessary to ensure the upbringing of their child and the applicant's other child from an earlier marriage, who is severely disabled. The Court of Appeal also increased the monthly alimony to be paid to the spouses' son.", "Referring to the reasoning in the District Court's decision, it also found that the marriage contract was compatible with German law. 10. On 2 December 1992 the applicant lodged a constitutional complaint with the Federal Constitutional Court. 11. On 29 March 2001 the Federal Constitutional Court found that the decision of the Court of Appeal violated the applicant's rights under the German Basic Law.", "It found that when determining the validity of the marriage contract, the Court of Appeal had not taken into account that the applicant's pregnancy, in addition to the strain of caring for a handicapped child, placed her at an obvious disadvantage towards her former husband when concluding the marriage contract. The matter was thus remitted to the Court of Appeal. 12. On 8 November 2001 the proceedings before the Court of Appeal were discontinued following the engagement of the applicant's former husband, in the context of a court settlement, to pay monthly alimony to the applicant, as well as a lump sum with respect to the past. THE LAW 13.", "On 16 October 2006 the Court received the following declaration from the Government: “I, Mrs Almut Wittling-Vogel, Agent of the Government, declare that the Government of Germany offer to pay ex gratia 9,500 euros to Mrs Elke Becker with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights. This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the 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.” 14. On 19 October 2006 the Court received the following declaration signed by the applicant's representative: “I, Mr Ludwig Ose, Lawyer, note that the Government of Germany are prepared to pay ex gratia the sum of 9,500 euros to Mrs Elke Becker with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights. This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the 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 Germany 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 the applicant 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.” 15. 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). 16. 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 14 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]
[ "FIRST SECTION CASE OF OAO PLODOVAYA KOMPANIYA v. RUSSIA (Application no. 1641/02) JUDGMENT STRASBOURG 7 June 2007 FINAL 12/11/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of OAO Plodovaya Kompaniya 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 15 May 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 1641/02) 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 OAO Plodovaya Kompaniya, an open joint-stock company incorporated in Russia (“the applicant”), on 20 December 2001. 2. The applicant was represented by Mr M. de Guillenchmidt, a lawyer practising in Paris.", "The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicant alleged that the final decision in its civil case before the commercial courts was quashed by way of supervisory review in violation of Articles 6, 13 and 14 of the Convention and of Article 1 of Protocol No. 1 to the Convention. 4.", "By a decision of 23 May 2006, the Court declared the application admissible. 5. The applicant and the Government each filed further written observations (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other's observations. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 6. In 1966 the Ministry of Foreign Trade of the USSR created a State Export and Import Agency “Soyuzplodoimport” (Всесоюзное экспортно-импортное объединение «Союзплодоимпорт»). Its assets included the trademarks to a number of brands of alcohol (such as Vodka Stolichnaya, Vodka Moskovskaya and their derivatives). 7. On 5 January 1990 the agency was reorganised into the State Foreign Trade Agency “Soyuzplodoimport” (Всесоюзное внешнеэкономическое объединение «Союзплодоимпорт»).", "8. On 20 January 1992 the applicant company was set up in the form of a closed joint-stock company. It was called the “Foreign Trade Stock Company 'Soyuzplodoimport'” (Внешнеэкономическое акционерное общество закрытого типа «Союзплодоимпорт», VAO “Soyuzplodoimport”), and was registered with the relevant state agency, namely the Moscow Registration Chamber. According to its memorandum of association, it was set up by several founders, including the State Foreign Trade Agency “Soyuzplodoimport”, which held 3,880 of its 17,000 shares. The memorandum of association provided that the applicant company was a “successor” to the State Foreign Trade Agency “Soyuzplodoimport”.", "9. In 1998 the applicant company converted into an open joint-stock company. 10. On 24 December 1999 the general shareholders' meeting of the applicant company adopted a new memorandum of association. The company name was changed to OAO “Plodovaya Kompaniya” (ОАО «Плодовая компания»).", "The new memorandum of association contained a declaration that the applicant company was the successor of the State Foreign Trade Agency “Soyuzplodoimport”. 11. In the above period the applicant company notified the trademark registration authority that the trademarks of the State Foreign Trade Agency “Soyuzplodoimport” had changed ownership through succession and consequently obtained trademark certificates in its own name. It subsequently used the trademarks as collateral in a number of commercial transactions with third parties. 12.", "On 31 October 2000 the Deputy Prosecutor General challenged the applicant company's new memorandum of association, particularly the declaration of succession, before the Commercial Court of Moscow. 13. On 21 December 2000 the Commercial Court of Moscow declared the provision on succession null and void. It held that the applicant company had had no legal grounds to claim succession to the State Foreign Trade Agency “Soyuzplodoimport”. The applicant company had been set up as a new company and not converted from an existing one.", "It held that a mere declaration by the applicant company in its founding memorandum of association was insufficient to enable it to become the successor of another company. Likewise, it found that, although the applicant company had de facto acted as a successor before the trademark registration authorities and courts of arbitration, this was irrelevant to the establishment of corporate succession. 14. On 19 February 2001 the Appellate Board of the Commercial Court of Moscow examined the applicant company's appeal. Without entering into the merits it quashed the first-instance judgment and terminated the proceedings on the ground that the prosecutor's office did not have standing to bring proceedings.", "This decision entered into force on the same day. It was not appealed against either by a cassation appeal or by a separate appeal. 15. On 18 April 2001 the Moscow Registration Chamber registered the change of name of the State Foreign Trade Agency “Soyuzplodoimport”. Its new name was the Federal State Unitary Enterprise “Soyuzplodoimport” (Федеральное государственное унитарное предприятие «Внешнеэкономическое объединение Союзплодоимпорт»).", "16. On 13 June 2001 the Deputy Prosecutor General submitted a request for supervisory review of the decision of 19 February 2001. 17. The applicant company was summoned to the hearing before the supervisory instance, but those summons were not served on it because it could not be found at its official address. The representatives of the applicant company learned about the hearing, however, submitted written comments on the merits of the case and attended the hearing.", "18. On 16 October 2001 the Presidium of the Supreme Commercial Court of Russia examined the case in supervisory review proceedings. The applicant company was represented by the company's president, who made oral submissions before the Presidium. 19. The Presidium quashed the decision of 19 February 2001 and reinstated the first-instance judgment of 21 December 2000.", "On the procedural point, it held that the prosecutor's office was entitled by law to represent the State in proceedings before commercial courts where public or State interests were involved. It found that the proceedings at issue concerned State property, and that this provided sufficient grounds for the prosecutor to intervene. As to the merits of the case, the Presidium upheld the finding that the applicant company was not entitled to claim succession to the State Foreign Trade Agency “Soyuzplodoimport” because there had been no decision on the latter's conversion, and the applicant company itself had been created as a new entity and not as a result of any reorganisation of an existing legal person. Accordingly, the provisions on succession made in its memorandums of association were null and void. This decision entered into force on the same day and was not subject to further appeal.", "II. RELEVANT DOMESTIC LAW A. Corporate succession 20. The Civil Code of the Russian Federation provides that a legal person may be reorganised or liquidated upon a decision of its founders or its management body as authorised in its constitutional documents, or by a competent court in the circumstances provided for by law (Articles 57 and 61). In the event of reorganisation in a form of merger, conversion or accession, the assets of the legal person that ceases to exist are transferred pursuant to an act of transfer to a newly created legal person and, in the latter case – to an existing legal person.", "In the event of reorganisation in a form of division or separation, the assets of the reorganised legal person are divided and transferred pursuant to a separation balance sheet (Article 58). In the event of liquidation the legal person ceases to exist without succession (Article 61). B. Supervision review in proceedings before commercial courts 21. The Code of Commercial Procedure (no.", "70-FZ of 5 May 1995, in force at the material time) established that final judgments and decisions of all commercial courts of the Russian Federation were amenable to supervisory review initiated on an application by the President of the Supreme Commercial Court or his deputy or by the Prosecutor General of the Russian Federation or his deputy (Articles 180 and 181). The Code did not list the grounds for lodging an application for supervisory review: it merely specified that it could be lodged “also in connection with a request by a party to the proceedings” (Article 185 § 1). The summoning of parties to the hearing before the Presidium of the Supreme Commercial Court was to be at the discretion of the Presidium (Article 186 § 2). There was no time-limit for lodging an application for supervisory review, and, in principle, such applications could be lodged at any time after a judgment had become final. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 22. The applicant company complained that there had been a violation of its right to the peaceful enjoyment of its possessions, in particular the assets of its alleged predecessor corporation. In particular, it contended that the supervisory review had resulted in their claim to be the holder of the alcohol trademarks being declared void. It relied on Article 1 of Protocol No.", "1, which provides: Article 1 of Protocol No. 1 (protection of property) “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 23. The Government denied that there had been an interference with the applicant's possessions.", "They disputed the applicant's title to the disputed trademarks or to any other assets which it had allegedly acquired from the State Foreign Trade Agency “Soyuzplodoimport”. Furthermore, they pointed out that the judicial decision quashed by the supervisory instance had been a procedural one and did not confer any right or entitlement on the applicant company and did not create any legitimate expectation to acquire them. Accordingly, its reversal could not deprive the applicant company of any possessions within the meaning of Article 1 of Protocol No. 1. 24.", "In contrast, the applicant company maintained that, as a result of the supervisory review proceedings and of the entire dispute resolution process before the commercial courts, it had been deprived of its possessions, notably of all the assets of its alleged predecessor, the State Foreign Trade Agency “Soyuzplodoimport”. 25. The Court notes, firstly, that the subject matter of the parties' dispute before the domestic instances, and of the applicant's claims before the Court, was the existence of the universal legal succession between the State Foreign Trade Agency “Soyuzplodoimport” and the applicant company. The question of ownership of individual assets, such as trademarks, was not as such contested in the impugned proceedings and subsequently does not call for the Court's assessment. 26.", "The Court further notes that the applicant company laid claim to the alleged corporate succession, which presupposes the existence of a bilateral deed between two companies or a unilateral deed from a reorganised company by which assets are reassigned. However, the applicant company has not presented any proof of the intention of the State Foreign Trade Agency “Soyuzplodoimport” to convert itself into another company or to reorganise itself so as to separate from its assets in favour of the applicant company. On the contrary, the Court considers it established that the State Foreign Trade Agency “Soyuzplodoimport” continued to exist in its original corporate form until 2001, when it was re-registered as a Federal State Unitary Enterprise “Soyuzplodoimport”. 27. The Court also finds it pertinent that the applicant company has never succeeded in having its title to the legal succession established in domestic judicial proceedings.", "No court judgment has determined this point in the applicant company's favour. In its decision of 19 February 2001, the appeal instance did not resolve the dispute in substance and took only a procedural decision to exclude the public prosecutor from participation in the proceedings. In this context, the Court reiterates its established case-law that a “claim” can constitute a “possession” within the meaning of Article 1 of Protocol No. 1 only if it is sufficiently established to be enforceable (see Burdov v. Russia, no. 59498/00, § 40, ECHR 2002‑III and Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no.", "301-B, p. 84, § 59). In the circumstances of the instant case, it considers that at no stage of the domestic proceedings was there a judicial decision such as to establish the applicant company's claim to “possessions” within the meaning of Article 1 of Protocol No. 1. 28. Accordingly the decisions of the Russian courts cannot be considered as an interference with the applicant's “possessions” within the meaning of Article 1 of Protocol No.", "1. 29. It follows that there has been no violation of Article 1 of Protocol No. 1 to the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLES 13 AND 14 IN CONJUNCTION WITH ARTICLE 6 § 1 OF THE CONVENTION 30. The applicant company complained under Article 6 § 1 of the Convention and under Articles 13 and 14 in conjunction with Article 6 § 1 that the final decision of the Appellate Board of the Commercial Court of Moscow of 19 February 2001 had been quashed by way of supervisory review, in violation of the principle of legal certainty. It also complained that the proceedings before the Presidium of the Supreme Commercial Court of Russian Federation had been conducted in violation of the principle of equality of arms, in that the State, as a party to proceedings, had exercised its extraordinary power to institute supervisory review whilst the applicant company had no such possibility. Finally, it complained that it had not been summoned to take part in the proceedings. 31.", "In so far as relevant, the Convention Articles relied on by the applicant provide: Article 6 (right to a fair hearing) “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” Article 13 (right to an effective remedy) “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Article 14 (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.” 32. The Government responded that there had been no violation of the applicant's right to a fair trial. They considered that it had been necessary to quash the decision of the appellate instance because it had been taken in breach of the domestic law. They also considered that the principle of legal certainty had not been violated, in that the supervisory review was instituted shortly after the appeal decision and thus constituted the next stage of the proceedings. They referred to Article 187 of the Code of Commercial Procedure, which provided that a case could be reviewed on points of law in supervisory review proceedings.", "Moreover, the applicant had been aware that such a possibility existed under domestic law and therefore it could not rely on the appeal decision as a final judicial act. They further added that the relevant legislation had changed, in particular through the 2002 Code of Commercial Procedure, which introduced time-limits for initiating supervisory review. 33. The applicant company maintained its complaints. It considered that the appellate court's decision had been quashed on supervisory review in violation of the principle of legal certainty.", "34. The Court recalls that Article 6 § 1 extends only to a dispute (“contestation”) over a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the existence of a right but also to its scope and the manner of its exercise; and, finally, the outcome of the proceedings must be directly decisive for the right in question (see Hamer v. France, judgment of 7 August 1996, Reports 1996-III, pp. 1043-44, § 73; and Zhigalev v. Russia, no. 54891/00, §§ 159-62, 6 July 2006).", "As the Court has consistently held, mere tenuous connections or remote consequences are not sufficient to bring Article 6 § 1 into play (see Balmer-Schafroth and Others v. Switzerland, judgment of 26 August 1997, Reports of Judgments and Decisions 1997‑IV, p. 1357, § 32; Athanassoglou and Others v. Switzerland [GC], no. 27644/95, § 43, ECHR 2000‑IV; Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 43, ECHR 2004‑III; and Association de Défence des Intérêts du Sport v. France (dec.), no. 36178/03, 10 April 2007). 35.", "The Court refers to its finding above that the applicant company was defending in commercial proceedings a claim of corporate succession which had no basis in domestic law (see paragraphs 25-27 above). In view of this finding the Court considers that for the purposes of Article 6 of the Convention the applicant did not have a “civil right” recognisable under domestic law. Therefore there was no basis for the rights guaranteed by Article 6 § 1 to arise. 36. It follows that there has been no violation of Article 6 § 1 of the Convention.", "37. Having regard to the above conclusion the Court finds no separate issues under Articles 13 and 14 of the Convention. FOR THESE REASONS, THE COURT 1. Holds unanimously that there has been no violation of Article 1 of Protocol No. 1 to the Convention; 2.", "Holds by six votes to one that there has been no violation of Article 6 of the Convention; 3. Holds unanimously that no separate issues arise under Articles 13 and 14 of the Convention. Done in English, and notified in writing on 7 June 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Mrs Tulkens is annexed to this judgment. C.L.R.S.N.", "PARTLY DISSENTING OPINION OF JUDGE TULKENS The majority of the Chamber found that the applicant failed to establish its right under domestic law and that, therefore, Article 6 did not apply. With all due respect, I do not share this view. 1. It is difficult to see how a dispute concerning the existence of a corporate succession, which was examined and determined on the merits by the commercial courts, did not constitute a “determination of ... civil rights and obligations”. Firstly, at least one party to the proceedings – the State – had a claim that was genuine and serious.", "Secondly, proceedings concerning the succession of companies were regarded as “civil” by the domestic law and the domestic courts. Lastly, a final and binding judicial decision on the merits of the case was taken preventing the applicant from laying any future claims to the assets of a State-owned company, and this decision had very important financial implications for the parties involved. Neither the domestic courts nor the Court itself argued that the applicant did not have a right to litigate on the matter or to act as a defendant in the proceedings at issue. In this respect, to say that the “the applicant did not have a civil right recognisable under domestic law” (§ 35) is simply misleading. Such reasoning can be valid only to justify lack of access to a court to resolve claims that cannot be accepted for judicial examination.", "In cases such as the present one, if the domestic courts actually examined the claim on the merits and determined the rights and obligations of the parties, there would be no justification for excluding the proceedings from the protection of Article 6 on the grounds that the applicant's position did not stand up to judicial scrutiny. To decide otherwise would come close to finding that the applicability of Article 6 depends on whether the applicant has been successful in his or her litigation. In so far as the Zhigalev v. Russia judgment of 6 July 2006 was relied on, this criticism also extends to the summary reasoning of that case (§§ 160-61), which left room for random exclusions from the scope of Article 6. Finally, I think the judgment of the majority goes against the spirit of the Vilho Eskelinen and Others v. Finland judgment of 19 April 2007. Where the domestic law grants access to court for a certain type of claim and regards the dispute as civil, why and on what grounds should our Court decide otherwise?", "2. One line of argument that the Court could have explored more fruitfully, if it felt that there had been no violation of Article 6, would have been to examine the applicability of Article 6 to the part of the proceedings prior to the supervisory review. It could have been argued that the ruling of the Appellate Board of the Commercial Court of Moscow of 19 February 2001 was procedural and did not determine (at least definitely) civil rights and obligations. Indeed, without entering into the merits, it quashed the first-instance judgment and terminated the proceedings on the ground that the prosecutor's office did not have standing to bring proceedings. In such a situation the guarantees of Article 6 would begin to apply from the point when the case was accepted for supervisory review by the Presidium of the Supreme Commercial Court of Russia on 16 October 2001, as this was the instance which ruled finally on the merits of the case.", "Indeed, the Presidium quashed the decision of 19 February 2001 and reinstated the first-instance judgment of 21 December 2000. In sum, the decision of 16 October 2001 by the Presidium of the Supreme Commercial Court did concern the “civil rights and obligations” of the applicant company. However, the decision it attacked, namely that of 19 February 2001, did not create any “legal certainty” under the first paragraph of Article 6. Therefore, the quashing of that decision by way of supervisory review on 16 October 2001 did not interfere with the applicant company's “right to a court” under Article 6 § 1, in contrast to many other Russian cases concerning the functioning of the supervisory review system (see, as a classic authority, the case of Ryabykh v. Russia, no. 52854/99, §§ 51 et seq., ECHR 2003-IX).", "Against this background, there would not have been any reason to conclude that the proceedings against the applicant company were “unfair” within the meaning of Article 6 of the Convention." ]
[ "THIRD SECTION CASE OF PETROV v. SLOVAKIA (Application no. 64195/10) JUDGMENT STRASBOURG 2 December 2014 FINAL 02/03/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Petrov v. Slovakia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Luis López Guerra,Ján Šikuta,Dragoljub Popović,Kristina Pardalos,Johannes Silvis,Valeriu Griţco, 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.", "64195/10) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovak national, Mr Peter Petrov (“the applicant”), on 7 December 2010. 2. The applicant was represented by Ms E. Ľalíková, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3.", "The applicant alleged, in particular, that (i) he had been unlawfully deprived of his liberty; (ii) his application for release had not been granted; and (iii) the corresponding proceedings had been unfair. 4. On 21 February 2013 and 13 February 2014 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1986 and lives in Bratislava. A. Criminal proceedings against the applicant 6. On 5 February 2010 the applicant was accused of fraud. The alleged crime was considered particularly serious.", "7. On 24 and 31 August 2010 the applicant examined the case file in the presence of his lawyer and accepted that plea bargaining negotiations should be started. 8. On 20 September 2010 a plea bargain agreement (dohoda o vine a treste) was concluded in the presence of the injured parties, which contained an admission of guilt by the applicant and details of the sentence to be imposed on him. It was submitted to the Nitra District Court for approval.", "9. At a hearing held on 20 October 2010 the applicant replied in the negative to questions put to him by the judge in respect of the above‑mentioned agreement. The court therefore refused to accept it and returned the case at its preliminary stage. Its decision was delivered to Nitra prison, where the applicant was being detained, on 8 November 2010. 10.", "On 3 November 2011 the Prosecutor General’s Office dismissed a request by the applicant for certain public prosecutors to be excluded from the Nitra Regional Prosecutor’s Office. 11. On 21 January 2011 the public prosecutor gave detailed instructions to the police as to what further investigations were to be carried out into the case. B. Decisions on the applicant’s detention 12.", "On 8 February 2010 the District Court remanded the applicant in custody with effect from 5 February 2010. His detention was considered necessary for the reasons set out in Article 71 § 1 (a) and (c) of the Code of Criminal Procedure, namely that there was a risk of him absconding and committing further offences. 13. On 10 April 2010 the applicant filed a request for release with the Regional Prosecutor’s Office. It was transferred to the District Court on 28 April 2010, but dismissed on 20 May 2010.", "The applicant filed a complaint the same day. 14. The District Court transferred the file to the Nitra Regional Court on 6 August 2010, which dismissed the applicant’s complaint on 18 August 2010. It returned the file to the District Court the following day. On 8 September 2010 the District Court dispatched the Regional Court’s decision, which was deemed served on the applicant on 16 September and his counsel on 23 September 2010.", "15. In the meantime, on 4 August 2010 the District Court extended the applicant’s detention until 5 November 2010. 16. On 25 October 2010 it dismissed the applicant’s second request for release, which he had filed on 19 August 2010 with the Regional Prosecutor’s Office. On 19 November 2010 the Regional Court dismissed his complaint against that decision, which had been lodged on 25 October 2010.", "Its decision was served on him on 26 November 2010. 17. On 20 January 2011 the applicant again petitioned the Regional Prosecutor’s Office for release. He argued that there were no relevant grounds for his continued detention. On 28 January 2011 the public prosecutor transferred his request to the District Court, which, after hearing him, dismissed it on 9 February 2011.", "18. The District Court noted that the applicant had admitted his actions in preliminary proceedings. As he was suspected of committing the offence using a false identity, there was still a specific risk that he might abscond if released and thus hamper the further investigations into the case which had been ordered. The fact that he had a family and a permanent residence could not outweigh this consideration. Furthermore, the offence was punishable by a prison term of ten to fifteen years, and had been committed within a period of probation following an earlier conviction.", "The District Court found his continued detention justified for the purposes of Articles 71 §§ 1 (a) and (c) of the Code of Criminal Procedure. 19. At the hearing the applicant orally lodged a complaint and requested that the court dealing with it hear him in person. He submitted the reasons for his complaint in writing on 23 and 25 February 2011. 20.", "The applicant argued, in particular, that he had no reason to abscond. Prior to his detention he had lived with his partner, who had given birth to their child in the meantime. He had an income, as he was a partner in a limited liability company which was in operation. The argument that he had used a false identity was unsubstantiated and the fear he would continue committing offences unjustified. He requested that his complaint be examined at a public hearing, as he wished to point to specific facts and the reasons he had mentioned in his application for release.", "He further argued that the District Court judge had refused, on the grounds that he knew their content, to examine decisions he had wished to submit when being heard on 9 February 2011. 21. On 3 March 2011 the Regional Court dismissed the applicant’s complaint after having examined it in camera. It confirmed the reasons the District Court had considered his continued detention necessary. Its decision stated, in particular, that there was still a risk of him absconding, as he had used a false identity to commit the offence and was under the threat of severe punishment.", "At the same time, his continued detention was justified by the fear he would continue the criminal activities for which he was prosecuted. The Regional Court considered his arguments about the unlawfulness of his continued detention irrelevant. His family and social situation could not affect the position in view of the nature of the offence, given that it had been committed within a period of probation following an earlier conviction, and he had previously been convicted of criminal offences committed deliberately. The decision stated that no facts had been established, for the purposes of Article 302 § 2 of the Code of Criminal Procedure, to justify hearing him in person. 22.", "On 12 May 2011 the District Court dismissed a fresh application by the applicant for release and extended his detention until 21 July 2011. On 17 May 2011 the Regional Court dismissed his complaint against that decision. 23. He was released from detention on 5 September 2011. C. Proceedings before the Constitutional Court 1.", "Proceedings no. IV. ÚS 374/2010 24. In a complaint lodged on 27 September 2010, the applicant alleged a breach of Article 5 § 4 of the Convention, in that the ordinary courts had not decided his request for release of 10 April 2010 speedily. 25.", "On 7 October 2010 the Constitutional Court declared the complaint admissible to the extent that it concerned delays in the proceedings before the District Court. It noted that the Regional Court had only actually dealt with the case for thirteen days. There was therefore no appearance of a breach of Article 5 § 4 in respect of the proceedings before it. 26. In a judgment of 20 December 2010 the Constitutional Court found a breach of Article 5 § 4 of the Convention in respect of the proceedings before the District Court.", "The judgment stated that it had kept the file from 28 April to 6 August 2010, that is, for more than fourteen weeks. Another twenty days had lapsed before it sent the Regional Court’s decision to the applicant. There was no justification for such a long time being spent on the applicant’s request for release. 27. The Constitutional Court awarded 1,000 euros (EUR) to the applicant as just satisfaction and ordered the District Court to reimburse his costs.", "2. Proceedings no. III. ÚS 265/2011 28. On 29 March 2011 the applicant complained that the Regional Court had breached his rights under Article 5 §§ 1, 3 and 4 of the Convention in the proceedings leading to its decision of 3 March 2011.", "29. Firstly, he alleged that there had been no relevant reason for his further detention. In particular, reference to the offence of which he was suspected and the severity of its punishment did not in itself justify the deprivation of his liberty. He argued that he had not resisted arrest and had cooperated with the investigator; similarly, he had not tried to avoid the earlier criminal proceedings in which he had been given a conditional prison sentence. Furthermore, his partner, whom he had planned to marry, had given birth to a child in the meantime.", "Their daughter had serious health problems. No specific reasons had been put forward to justify the conclusion that there was a risk of him absconding or avoiding the pending criminal proceedings. The applicant considered the argument that further investigations had to be carried out irrelevant, and concluded that the ordinary courts had not indicated any specific fact-based grounds for his continued detention. Secondly, he complained that, despite an explicit request, the Regional Court had not heard him. Lastly, he alleged that he had been detained without any relevant legal grounds from 5 to 8 November 2010.", "30. On 14 June 2011 the Constitutional Court declared the complaint under Article 5 §§ 1 and 4 related to the alleged unlawfulness of the applicant’s detention from 5 to 8 November 2010 admissible. 31. On the same day it rejected the remaining complaints as manifestly ill-founded for the following reasons. Since the Regional Court had also referred to and accepted the reasons for the District Court’s justification of the applicant’s detention, the relative scarceness of the reasons for its decision did not amount to a breach of his rights under Article 5 of the Convention.", "Since the District Court had heard him prior to deciding his request for release, neither the domestic law nor Article 5 § 4 required, in the circumstances, that the Regional Court also hear him in person when deciding his complaint. In particular, in his complaint he had not relied upon any new facts or arguments in respect of his request for release. 32. In its judgment on the merits of 13 September 2011 the Constitutional Court concluded that there had been a breach of Article 5 §§ 1 and 4 of the Convention, in that the applicant had been detained unlawfully during the period 5 to 8 November 2010 and the Regional Court had failed to duly address that issue. The decision acknowledged that following the applicant’s refusal to confirm the plea bargain agreement before a judge and the return of the proceedings at the preliminary stage, a new seven-month detention period had started running in accordance with the relevant law.", "However, the earlier decision to extend his detention had expired on 5 November 2010, and the District Court’s decision of 20 October 2010 had not been sent to Nitra prison, where the applicant was being held, until 8 November 2010. During that time the applicant had therefore been detained without a decision justifying the continued deprivation of his liberty. 33. The Constitutional Court dismissed the applicant’s request for just satisfaction. It did not consider it necessary to order his release, as at the time of its decision his detention was covered by a decision of the ordinary court concerned.", "The Regional Court was ordered to reimburse his costs. II. RELEVANT DOMESTIC LAW AND PRACTICE 34. Article 71 § 1 (a) and (c) of the Code of Criminal Procedure provide that an accused may only be remanded in custody if the established facts indicate that he or she has committed the act which is the subject of the charge against him, the act has the characteristics of a criminal offence, there is reason to suspect the accused of that act, and his or her behaviour or other specific facts justify the conclusion that he or she will: (a) abscond or hide with a view to avoiding the proceedings or punishment, in particular if his or her identity cannot be established immediately, he or she has no permanent place of residence, or there is a risk of severe punishment; or (c) continue his or her criminal activities, complete an attempted offence, or carry out an offence which he or she prepared or threatened to commit. 35.", "Article 302 § 2 of the Code of Criminal Procedure provides that when a court decides on a person’s detention, the public prosecutor, the accused and his or her counsel are entitled to attend. When a court decides a complaint about a decision on a person’s detention, the presiding judge may allow those same persons to participate. 36. In accordance with the Supreme Court’s practice (decision file no. 1 Toš 9/2006 of 8 February 2006), decisions relating to continued detention, modifying the reasons for an individual’s detention, or requests for extension of or release from detention may be taken in camera only where (i) the request at issue indicates no facts requiring the accused person to be heard; or (ii) the accused did not explicitly ask to be heard and, at the same time, failed to indicate new relevant facts which were previously unknown to the court.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 37. The applicant complained that he had been detained without any legal grounds between 5 and 8 November 2010. He relied upon Article 5 §§ 1 and 3 of the Convention. The Court considers it appropriate to address this complaint under Article 5 § 1, which in its relevant part 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: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ...” A. Admissibility 38. The Government considered that the applicant could no longer claim to be a victim of a breach of Article 5 § 1, as he had obtained appropriate redress from the Constitutional Court. In any event, he had not exhausted domestic remedies, as he could have claimed compensation under the State Liability Act 2003 with reference to the conclusion reached by the Constitutional Court. 39. The applicant disagreed.", "40. In the present case, the Constitutional Court concluded that there had been a breach of Article 5 §§ 1 and 4 of the Convention, in that the applicant had been detained without any legal grounds during the period 5 to 8 November 2010. It dismissed the applicant’s request for just satisfaction and considered it unnecessary to order his release, as at the time of its decision his detention was covered by a decision of the ordinary court concerned. The Regional Court was ordered to reimburse his costs (see paragraphs 32-33 above). 41.", "The Court considers that, in the absence of any just satisfaction award, the Constitutional Court’s judgment did not provide the applicant with appropriate redress, in view of the importance of the right to liberty and security as enshrined in Article 5 § 1 (see Kováčik v. Slovakia, no. 50903/06, § 40, 29 November 2011; Kormoš v. Slovakia, no. 46092/06, §§ 73-76, 8 November 2011; and Žúbor v. Slovakia, no. 7711/06, §§ 64-66, 6 December 2011). He can thus still claim to be a “victim” within the meaning of Article 34 of the Convention, and the Government’s objection in this respect must be dismissed.", "42. As to the Government’s argument that the applicant could have sought compensation under the State Liability Act 2003 on the basis of the Constitutional Court’s judgment, the Court notes that that court, after finding a breach of Article 5 § 1, also took a stand on his claim for just satisfaction (see paragraph 33 above). It finds no reason to conclude that there was any realistic prospect in the present applicant’s case that an ordinary court would have arrived at conclusions contrary to those of the Constitutional Court. The Government’s objection relating to the applicant’s failure to exhaust domestic remedies must therefore be dismissed (see Kormoš, cited above, §§ 48-49, with further references). 43.", "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 44.", "The applicant maintained that there had been a breach of Article 5 § 1 of the Convention, as his detention between 5 and 8 November 2010 had been unlawful. 45. The Government admitted that this part of the application was susceptible of raising an issue under the Convention. 46. The Court reiterates that where the “lawfulness” of detention is at 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 thereof.", "Failure to comply with domestic law entails a breach of the Convention (see Mooren v. Germany [GC], no. 11364/03, §§ 72-81, 9 July 2009, with further references). 47. In the present case, the Constitutional Court acknowledged a breach of the applicant’s rights under Article 5 § 1, as there had been no legal grounds for his detention during the period from 5 to 8 November 2010 (see paragraph 32 above). 48.", "It would be justified for the Court to reach a different conclusion only if it was satisfied that the Constitutional Court had misinterpreted or misapplied the Convention provision or the Court’s jurisprudence under that provision or reached a conclusion which was manifestly unreasonable (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 174 in fine, ECHR 2009, and Henryk Urban and Ryszard Urban v. Poland, no. 23614/08, §§ 51-53, 30 November 2010). However, the Government have not argued, and the information available does not indicate, that that was the case as regards the Constitutional Court’s finding of 13 September 2011. Furthermore, the Court notes that, despite its finding, the Constitutional Court did not consider it necessary to grant just satisfaction to the applicant or order his release.", "49. The foregoing considerations are sufficient to enable the Court to conclude that the applicant’s detention between 5 and 8 November 2010 fell short of the requirement of lawfulness. There has accordingly been a violation of Article 5 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 50.", "Relying on Article 5 §§ 1 and 3 of the Convention, the applicant complained, with reference to the proceedings leading to the Regional Court’s decision of 3 March 2011, that there had been no justification for his detention. The Court considers it appropriate to examine this complaint under Article 5 § 3 of the Convention, which reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 51. The Government considered that complaint to be manifestly ill‑founded. 52.", "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. It therefore concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other grounds for declaring it inadmissible have been established. B. Merits 53.", "The applicant maintained that the dismissal of his request for release in the proceedings at issue had been arbitrary. The courts had failed to convincingly explain why his continued detention was necessary. 54. The Government argued that in the proceedings leading to the Regional Court’s decision of 3 March 2011, the ordinary courts involved had given relevant and sufficient reasons for their decisions to dismiss the applicant’s request for release of 20 January 2011. 55.", "The Court reiterates that a person’s 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 Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000 XI). 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. A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention.", "Moreover, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Pyatkov v. Russia, no. 61767/08, §§ 106-107, 13 November, and Piruzyan v. Armenia, no. 33376/07, §§ 91-93, 26 June 2012, with further references). 56. In view of the requirement to exhaust domestic remedies laid down in Article 35 § 1 of the Convention, the Court is entitled to deal with this part of the application to the extent that the applicant had raised his arguments in the complaint the Constitutional Court decided on 14 June 2011 (see paragraph 29 above).", "In particular, in his constitutional complaint the applicant relied on the proceedings leading to the Regional Court’s decision of 3 March 2011 and alleged that there had been no relevant reason for his further detention. 57. The Court notes that in its decision of 9 February 2011 the District Court considered it relevant that the applicant had confessed and was suspected of using a false identity to commit the offence. There was a risk of him absconding and thus jeopardising the criminal investigation which had been ordered. He risked severe punishment, and the offence of which he was accused had been committed while he was on probation for an earlier conviction (see paragraph 18 above).", "58. In his complaint against that decision the applicant argued that (i) he had no reason to abscond, as he had lived with his partner prior to his detention and they had had a child in the meantime; (ii) he had a regular income; (iii) the argument that he had used a false identity was unsubstantiated; and (iv) nothing justified the fear that he would commit further offences (see paragraphs 19-20 above). 59. The Regional Court found no reason to depart from the District Court’s conclusion. Its decision stated, in particular, that there was a risk of the applicant absconding, given that he had used a false identity to commit the offence of which he was accused and the threat of severe punishment.", "His continued detention was also justified by the fear that he would continue committing the offence for which he was prosecuted. Reliance by the applicant on his family and social situation could not affect the position in view of the nature of the offence, given that it had been committed within a period of probation, and he had previously been convicted of criminal offences committed deliberately (see paragraph 21 above). Subsequently, the Constitutional Court found that the Regional Court’s decision was not contrary to the applicant’s rights under Article 5 of the Convention. It considered it relevant, in particular, that the Regional Court had also referred to the reasons for which the District Court had considered the applicant’s detention justified (see paragraph 31 above). 60.", "Thus the domestic courts relied on the risk that the applicant might (i) abscond in view of the serious nature of the charge, and (ii) continue committing the offence for which he was prosecuted. 61. The Court notes that in the decisions at issue there was a general reference to the serious nature of the offence and its punishment. It cannot be considered sufficient justification of the alleged risk of the applicant absconding (see Piruzyan, cited above, § 99). As to the argument that he had allegedly used a false identity when committing the offence, the Court notes that no answer was given in the Regional Court’s decision to the applicant’s argument that such an allegation was unsubstantiated.", "It further notes that no specific reasons can be found in the decisions complained of to justify the fear that he would continue committing the offence for which he was prosecuted. 62. The Court considers that in the proceedings on the applicant’s request for release of 20 January 2011 taken as a whole, the domestic courts failed to give relevant and sufficient reasons for the applicant’s continued detention, which at the time of the Regional Court’s decision had lasted nearly thirteen months. 63. There has therefore been a violation of Article 5 § 3 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 64. The applicant further complained that his rights had been breached in the context of the examination of his applications for release. In particular, he alleged that the domestic authorities had failed to examine his applications for release of 10 April and 19 August 2010 with due diligence, the District Court had proceeded erroneously when extending his detention on 4 August 2010, and the Regional Court had failed to hear him prior to delivering its decision of 3 March 2011. He relied on Article 5 § 4 of the Convention, which reads as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Admissibility 1.", "As regards the application for release of 10 April 2010 65. The Government referred to the Constitutional Court’s judgment of 20 December 2010 and argued that the applicant had lost his standing as a victim within the meaning of Article 34 of the Convention. 66. The applicant maintained that the just satisfaction awarded by the Constitutional Court did not provide appropriate redress in view of the circumstances of the case. 67.", "The Court notes that on 20 December 2010 the Constitutional Court found a breach of Article 5 § 4 of the Convention, in that the District Court had failed to decide the applicant’s request for release of 10 April 2010 speedily. It awarded EUR 1,000 to the applicant as just satisfaction and ordered the District Court to reimburse his costs (see paragraphs 26‑27 above). 68. In view of the above acknowledgment of a breach of the applicant’s rights, the redress provided by the Constitutional Court and having regard to the circumstances of the case and its practice in similar cases, the Court considers that the applicant can no longer claim to be a victim, within the meaning of Article 34 of the Convention, of a breach of his rights under Article 5 § 4 in respect of the duration of the examination of his application for release of 10 April 2010 (see, mutatis mutandis, Wakil v. Slovakia (dec.), no. 50929/08, §§ 13 and 14, and contrast Horváth v. Slovakia, no.", "5515/09, §§ 94-95, 27 November 2012, with further references). 69. It follows that the applicant’s complaint in that regard is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 2. As regards the application for release of 19 August 2010 and the District Court’s decision of 4 August 2010 70.", "The Court notes that the applicant failed to raise his complaints about the absence of a speedy review of his application for release of 19 August 2010 and the alleged shortcomings in the proceedings leading to the District Court’s decision of 4 August 2010 before the Constitutional Court. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. 3. As regards the proceedings leading to the Regional Court’s decision of 3 March 2011 71. The Government considered the complaint that the Regional Court had failed to hear the applicant prior to delivering its decision of 3 March 2011 manifestly ill-founded.", "72. The applicant disagreed. 73. 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 (a) of the Convention.", "No other grounds for declaring it inadmissible have been established. B. Merits 74. The applicant argued that the Regional Court’s failure to hear him prior to its decision of 3 March 2011 was contrary to Article 5 § 4. In particular, in his complaint he had raised arguments the examination of which had required his presence, such as the birth of his child and his financial situation.", "Furthermore, the District Court judge had not considered it necessary to obtain from him the judgments and decisions he had relied on in his application for release, and there was no evidence that he had used a false identity. 75. The Government disagreed, while relying on the reasons for which the Constitutional Court had rejected his complaint in that respect. 76. The Court reiterates that Article 5 § 4 entitles arrested or detained persons to bring proceedings for review by a court of the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of Article 5 § 1, of the deprivation of their liberty.", "Although the requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances, an Article 5 § 4 procedure must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question. The opportunity 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. Where domestic law provides for a system of appeal, the appellate body must also comply with Article 5 § 4 (see, for example, Graužinis v. Lithuania, no. 37975/97, §§ 3-32, 10 October 2000; A. and Others v. the United Kingdom [GC], cited above, § 203; and Idalov v. Russia [GC], no. 5826/03, § 161, 22 May 2012, with further references).", "77. In the present case, the applicant was heard by the District Court prior to the decision on his application for release, but in the proceedings on his complaint against that court’s decision the Regional Court did not consider it necessary to hear him. The domestic law and practice (see paragraphs 35 and 36 above) allowed for such a way of proceeding unless the request at issue involved facts for the establishment of which it was required to hear the detainee. Subsequently, the Constitutional Court noted that in his complaint against the District Court’s decision the applicant had not relied upon any new facts or arguments in respect of his request for release. It concluded that it had not been required, in the circumstances, that the Regional Court also hear him in person when deciding his complaint (see paragraph 31 above).", "78. In assessing the applicant’s complaint, the Court considers it relevant that (i) the District Court heard the applicant in the context of examination of his application for release; (ii) in his complaint against the District Court’s decision the applicant relied on similar arguments as those raised in his application for release; (iii) the time between the District Court’s decision and its review by the Regional Court, namely twenty-two days, was relatively short; (iv) the determination of the point at issue did not involve a modification of the basis for the applicant’s detention as established earlier; and (v) the Regional Court examined the complaint in the absence of both the applicant and the public prosecutor (contrast Nešťák v. Slovakia, no. 65559/01, §§ 81-83, 27 February 2007). 79. In view of the documents before it, and having regard to the above considerations, the Court finds that in the particular circumstances of the present case the Regional Court’s failure to hear the applicant was not contrary to the procedural guarantees inherent to Article 5 § 4 of the Convention.", "There has therefore been no violation of that provision. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 80. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 81.", "The applicant claimed 397,203.61 euros (EUR) in respect of pecuniary damage. That amount corresponded to the value of construction contracts he had been prevented from carrying out because of his detention. The applicant further claimed EUR 100,000 in respect of non-pecuniary damage. 82. The Government argued that there was no causal link between the alleged breaches of the applicant’s Convention rights and the pecuniary damage he claimed to have sustained.", "In any event, the applicant could have sought compensation under the State Liability Act 2003. The claim in respect of non-pecuniary damage was, in the Government’s view, excessive. 83. 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 8,000 in respect of non‑pecuniary damage.", "B. Costs and expenses 84. The applicant also claimed EUR 16,718.21 for the costs and expenses incurred before the domestic authorities and EUR 1,370.44 for those incurred before the Court. 85. The Government considered the sum claim excessive and invited the Court to make an award in accordance with its practice.", "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 2,000 covering costs under all heads. 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 complaints under Article 5 §§ 1, 3 and 4 (as regards the Nitra Regional Court’s failure to hear the applicant prior to its decision of 3 March 2011) admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 5 § 1 of the Convention; 3. Holds that there has been a violation of Article 5 § 3 of the Convention; 4. Holds that there has been no violation of Article 5 § 4 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, the following amounts: (i) EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 2 December 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsJosep CasadevallRegistrarPresident" ]
[ "FOURTH SECTION CASE OF STAŃCZYK v. POLAND (Application no. 50511/99) JUDGMENT (Friendly settlement) STRASBOURG 2 December 2003 This judgment is final but it may be subject to editorial revision. In the case of Stańczyk v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: MrM. Pellonpää, President,MrsV. Strážnická,MrM.", "Fischbach,MrJ. Casadevall,MrR. Maruste,MrL. Garlicki,MrsE. Fura-Sandström, judges, and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 13 November 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 50511/99) 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 a Polish national, Janina Stańczyk (“the applicant”), on 21 November 1998. 2. The Polish Government (“the Government”) were represented by their Agent, Ms S. Jaczewska, of the Ministry of Foreign Affairs. 3.", "The applicant complained, inter alia, under Article 6 § 1 of the Convention about the length of a set of civil proceedings. 4. On 4 March 2003, after obtaining the parties' observations, the application was declared admissible. 5. On 18 September 2003, after an exchange of correspondence, the Registrar suggested to the parties that they should attempt to reach a friendly settlement within the meaning of Article 38 § 1 (b) of the Convention.", "On 26 September 2003 and on 30 September 2003 the Government and the applicant respectively submitted formal declarations accepting a friendly settlement of the case. THE FACTS 6. The applicant was born in 1934 and lives in Warsaw. 7. In 1986 the applicant lodged a motion with the court claiming the inheritance of her late mother's estate.", "On 30 January 1990 the Warsaw District Court issued a decision awarding to her one third of the estate. Consequently, she became the owner of one-sixth of the property, half of the estate having belonged to the applicant's late mother's second husband F.S. 8. On 2 May 1990 F.S. lodged a motion with the court, claiming physical division of the estate, which comprised certain plots of land in the municipality of Izabelin.", "9. Expert reports as to the manner in which the estate could be divided were submitted to the court in April 1990, in July 1991, 20 March and December 1992, but no decision was given by the court. 10. In January 1993 one of the parties to the proceedings, J.G., lodged an objection to the proposal for division submitted in the last expert report. Apparently the court subsequently called a new expert and ordered him to submit a new proposal as to the division.", "11. On 17 September 1993 a hearing was held. The parties unsuccessfully tried to reach a friendly settlement. The court ordered the preparation of a new expert opinion. 12.", "On 7 March 1994 the expert appointed by the court submitted his report. 13. On 21 September 1994 J.G. complained to the court that the proceedings were not progressing and that hearings were held only once or twice a year. 14.", "The next hearing was held on 2 December 1994. The applicant did not agree that the case be decided by establishing co-ownership of the estate, instead of its physical division. 15. On 25 February 1995 a new expert opinion was submitted to court. This report was subsequently submitted to the Izabelin Municipal Office for approval.", "16. On 23 March 1995 the Izabelin Municipal Office informed the court that it had not approved the proposal of the division of the estate as submitted by the expert, since it was incompatible with the general land-use plan of the municipality in that it did not take into account the public road to be constructed on the property concerned. 17. On 25 April 1995 A.K., a new expert appointed by the court, submitted a new proposal for the division of the estate. 18.", "On 24 July 1995 the Office of the Municipality of Izabelin again refused its approval for the division plan submitted by A.K., considering that it was incompatible with the current land-use plan in that the proposed plots were smaller than 1,000 square metres. 19. On 20 September 1995 the expert submitted a supplementary report. 20. On 24 September 1995 a meeting of the parties to the proceedings and the expert with the local planning authority was held.", "The parties were informed that the latest division proposal was incompatible with the current land-use plan, and that a new plan was being prepared. The proposal devised by the expert had been transmitted for consideration by the authority working on the new land-use plan. The new plan was to be adopted by the end of 1996. 21. On 24 May 1996 the Izabelin Municipal Office requested the same expert, A.K., to submit a new division proposal.", "22. On 20 September 1996 A.K. informed the court that after consultation with the parties to the proceedings he did not see any possibility of devising a new plan to take into account the interests and demands of all the parties. 23. On 7 November 1996 the Izabelin Municipal Office informed the court that the new proposal for the division of the property, which had apparently meanwhile been submitted by A.K., was incompatible with the current land-use plan.", "24. On 18 March 1997 the Izabelin Municipal Office informed the Warsaw District Court that a new land use plan was being prepared. 25. On 19 March 1998 the Izabelin Municipal Office informed the court that the land-use plan of 1989 was still valid and legally binding. 26.", "By a decision of 30 March 1998 the Warsaw District Court stayed the division proceedings until the establishment of a new general land-use plan by the local authorities of Izabelin. The court considered that under the current land-use plan the proposals of division submitted so far by the experts could not be adopted, whereas a new plan was being prepared. 27. In December 1998 the municipal authorities informed the public that the outline of the new land-use plan was available for inspection and comments. 28.", "On 2 July 1999 the applicant complained to the local municipality that the new plan had yet not been adopted and that the proceedings remained stayed. She submitted that the property concerned was deteriorating as it was improperly used and poorly-maintained by its owners. On 6 July 1999 the municipality requested the applicant to submit to the local planning authorities a new proposal concerning the division of property. 29. On 20 July 1999 the applicant lodged a motion with the Warsaw District Court for the resumption of the proceedings.", "On 28 June 2000 the Warsaw District Court resumed the proceedings. A hearing was held on 29 November 2000. The parties requested the court to appoint a new expert in order to prepare a new proposal for the division of the property. 30. On 30 January 2001 a further hearing was held.", "31. On 20 March 2001 A.K., the expert, submitted his opinion as to the division of the property. 32. The proceedings are pending. THE LAW 33.", "The applicant complained under Article 6 § 1 of the Convention that the proceedings in her case had exceeded a reasonable time. She further complained under Article 1 of Protocol No.1 to the Convention about a violation of her property rights due to the length of proceedings. 34. On 26 September 2003 the Court received the following declaration from the Government: “I declare that, with a view to securing a friendly settlement of the above-mentioned case, the Government of Poland offer to pay 22,500 Polish zlotys to Janina Stańczyk. This sum is to cover any pecuniary and non-pecuniary damage as well as costs, and it will be payable within three months from the date of delivery of the judgment by the Court pursuant to the Article 39 of the European Convention on Human Rights.", "This payment will constitute the final resolution of the case. The Government further undertake not to request that the case be referred to the Grand Chamber under Article 43 § 1 of the Convention.” 35. On 30 September 2003 the Court received the following declaration signed by the applicant: “I note that the Government of Poland are prepared to pay me the sum of 22,500 Polish zlotys covering pecuniary and non-pecuniary damage and costs with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights. I accept the proposal and waive any further claims against Poland in respect of the facts of this application. I declare that this constitutes a final settlement of the case.", "This declaration is made in the context of a friendly settlement which the Government and I have reached. I further undertake not to request that the case be referred to the Grand Chamber under Article 43 § 1 of the Convention after delivery of the Court's judgment.” 36. 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). 37.", "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 December 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Michael O'BoyleMatti PellonpääRegistrarPresident" ]
[ "FIRST SECTION CASE OF SALMANOV v. RUSSIA (Application no. 3522/04) JUDGMENT STRASBOURG 31 July 2008 FINAL 31/10/2008 This judgment may be subject to editorial revision. In the case of Salmanov 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,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 3 July 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 3522/04) 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 Saipudi Zeindinovich Salmanov (“the applicant”), on 2 December 2003.", "2. The applicant was represented by Mr S. Ibragimov, a lawyer practising in the town of Mytishchi in the Moscow Region. 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. On 19 January 2006 the Court declared the application partly inadmissible and decided to communicate to the Government the complaints concerning an alleged risk of HIV infection, the conditions of the applicant’s transport to and from, and confinement at, the courthouse, the excessive length of his detention on remand and that of the criminal proceedings against him.", "Under the provisions of Article 29 § 3 of the Convention, the Court decided to examine the merits of the application at the same time as its admissibility. It also decided that the application should be given priority under Rule 41 of the Rules of Court. 4. The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government’s objection, the Court dismissed it.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1955 and is serving a sentence of imprisonment in the Sverdlovsk Region. A. The applicant’s arrest and detention 6.", "The applicant was arrested on 20 January 1998. He was charged with a number of criminal offences, including conspiracy to commit murder. 7. On 11 May 1998 the applicant was taken to remand centre no. 77/1, also known as “Matrosskaya Tishina”.", "8. In July 1998 the deputy Prosecutor General extended his detention until 18 January 1999. On 2 October 1998 the Preobrazhenskiy District Court of Moscow upheld this extension order. 9. In September 2000 the criminal case against the applicant was listed for trial.", "On 29 September 2000 the Moscow City Court held that the measure of restraint in respect of defendants, including the applicant, had been lawful and should remain unchanged. 10. The City Court subsequently issued further extension orders on 3 July, 30 September, 18 December 2002, 24 March, 30 June and 30 September 2003, referring to the fact that the applicant and his co-defendants had been charged with particularly serious criminal offences. The Supreme Court of the Russian Federation rejected appeals against these remand orders, endorsing the City Court’s reasoning. 11.", "On 30 December 2003 the City Court extended the defendants’ detention on remand until 1 April 2004, noting the gravity of the charges against them and the possibility that they might abscond or obstruct justice. 12. On 30 March 2004 the City Court extended the defendants’ detention on remand until 1 July 2004, indicating that: “...[the defendants] have been charged with several counts of serious and particularly serious criminal offences committed by an organised gang in conspiracy with unidentified persons, against whom separate criminal proceedings are pending, and with another person, against whom criminal proceedings were disjoined because his whereabouts are not known; if released, [they] may abscond or obstruct justice”. 13. On 1 July 2004 the City Court extended the defendants’ detention, reproducing verbatim the reasoning of its earlier decision.", "14. On 22 July 2004 the Supreme Court upheld the decision of 30 March 2004 and endorsed the City Court’s reasoning. B. Criminal proceedings against the applicant 1. Determination of the trial venue 15.", "On 19 July 1999 the Moscow city prosecutor approved the bill of indictment and the case was submitted for trial to the City Court. The applicant was charged with multiple counts including conspiracy to commit murder. Similar charges were brought against fifteen other co-defendants. 16. On 5 August 1999 the City Court noted that the majority of the defendants had opted to exercise their constitutional right to a trial by jury.", "However, as there were no juries in the City Court, it decided to send an inquiry to the Supreme Court of the Russian Federation as to where the case should be tried. The Supreme Court referred the case to the Moscow Regional Court, where juries were available. 17. On an unspecified date a judge of the Regional Court sent a request to the Constitutional Court of the Russian Federation, inviting it to rule on the compatibility with the Russian Constitution of the Supreme Court’s interpretation of the jurisdictional rules. On 17 February 2000 she suspended the proceedings pending a decision by the Constitutional Court.", "She also held that the defendants were to remain in custody because they had been charged with criminal offences of high public danger, classified as serious or particularly serious. 18. On 13 April 2000 the Constitutional Court held that the decision on the change of venue had been incompatible with the Russian Constitution. 19. In compliance with that ruling, on 14 June 2000 the Regional Court returned the case file to the Supreme Court.", "The Supreme Court decided on 6 September 2000 that the City Court was competent to try the case. 2. Trial 20. On 29 September 2000 the City Court scheduled the first hearing for 13 October 2000 before a panel consisting of a professional judge and two lay judges, but on that date the hearing was adjourned because the presiding judge was sitting in another case. 21.", "In 2001 and 2002 the presiding judge was replaced by other judges of the City Court. Lay judges were replaced several times. 22. Numerous hearings were scheduled between 2001 and early 2003. All of them were adjourned on various grounds, mainly because the prosecutor, the interpreter and some of the defendants’ lawyers had defaulted, and also owing to the presiding judge’s involvement in other proceedings in May and October 2001, and then in May, September and October 2002.", "23. It appears that consideration of the merits began in March 2003. The absence of several lawyers, including the applicant’s counsel, was one of the reasons for adjourning the hearings listed for 4 March and 29 April 2003. 24. The illness of the applicant’s counsel was one of the reasons for adjourning the hearings scheduled for 26 January and 2 February 2004.", "On 10 March 2004 the trial judge ordered the bailiffs to bring the defaulting witnesses and victims to a hearing on 16 March 2004, which was not done in respect of certain witnesses and victims. On a number of occasions between March and July 2004 the judge reiterated his request. 25. On 12 August 2004 the trial court closed the trial and started deliberations. 26.", "On 27 October 2004 the City Court found the applicant guilty of multiple counts including conspiracy to commit murder and sentenced him to ten years’ imprisonment. On 10 November 2004 the judgment was pronounced in public. 27. The applicant and the other defendants lodged an appeal. On 15 November 2005 the Supreme Court upheld the judgment.", "C. Conditions of detention 28. According to the applicant, from 2 October 2004 to 5 June 2005 and from 11 June to 26 June 2005 he shared a cell with a Mr K. On an unspecified date, the latter tested HIV positive. He was informed so six months later and had another blood test, which was also positive. According to the applicant, on 11 June 2005 Mr K. told him that he had tested HIV positive. 29.", "It appears from a report of 20 March 2006, submitted by the Government, that HIV-positive detainees were not segregated from the other detainees in remand centre no. 77/1; the applicant “was informed of the rules for detention of HIV-positive detainees”, including a prohibition of such segregation. D. Conditions of the applicant’s transport to and from, and confinement at, the courthouse 1. The applicant’s account 30. The applicant submitted the following description of the relevant circumstances of his transport and confinement.", "Between 2001 and 2004 the applicant had been transported to the Moscow City Court and back to the remand centre no. 77/1 on no less than one hundred days (normally, three days per week). He had been taken out of his cell at 6 a.m. and placed alone in a cell measuring 70 by 70 centimetres, awaiting departure at 9 or 10 a.m. On the day of a court hearing he had not been given any food before departure; nor had he received any meal at the courthouse or in the remand centre upon his return. Since early 2004 the authorities had started to supply a dry ration for the day which he, however, could not consume because no hot water had been provided at the convoy premises in the City Court. The applicant had been transported in overcrowded vans; the journey from the remand centre to the City Court had normally taken one to three hours.", "At the City Court premises the applicant had been held together with several other detainees in a cell measuring 1.2 by 2 metres. After the hearing he had been taken back to that cell where he had waited until 6 to 8 p.m. without any food or drink or access to a toilet. On the way back the prison van had never gone directly to remand centre no. 77/1, it made a detour to bring detainees to another remand centre where it sometimes stayed for four or five hours. Thus, the return journey had normally taken two to three hours.", "Upon arrival at facility no. 77/1, the applicant had had to wait for one more hour before being taken to his cell at about midnight. 2. The Government’s account 31. The Government contested the applicant’s description of his conditions of confinement and transport.", "According to them, the applicant was taken out of his cell at 6 a.m. and provided with hot breakfast. He was then kept at the assembly section which had eight cells measuring between 12.7 and 17.9 square metres. Each cell had a bench, sanitary facilities, artificial lighting and a window. The applicant remained there for about one hour and a half awaiting departure for the courthouse. He was given a dry ration consisting of two courses for the remainder of the day.", "Between 2001 and 2003 the applicant was transported in vans GAZ-2207(3309) and ZIL-4331. The detainees’ section of the GAZ van measured 3.8 m (length) by 2.35 m (width) by 1.6 m (height). Such a van had one individual compartment and two compartments for twelve persons each. The detainees’ section of the ZIL van measured 4.7 m by 2.4 m by 1.64 m and had two individual compartments and two compartments for seventeen persons each. Both types of vans also had three or four seats for convoy officers.", "Vans were equipped with fixed benches so that each detainee was provided with individual seating. Van walls had insulating lining. Van heaters and lights were powered by the van engine so that the heating and lighting systems were operational when the engine was running. Vans were naturally ventilated through the emergency hatch and additional hatches with controlled airflow. Given the security considerations, from December 2003 onwards the applicant and his co-defendants were carried by direct transfer between the remand centre and the courthouse.", "At the City Court the applicant was kept at the convoy premises which had three compartments with seventeen cells each and a toilet, which detainees could access upon request. Each cell measured 1 m by 1.95 m by 3.1 m. Each cell had seating and was equipped with systems of ventilation, heating and artificial lighting. At the courthouse he was provided with hot water with which to consume the dry ration. He was also allowed to bring food purchased in the prison shop or received from his relatives. 3.", "Examination of the applicant’s complaints 32. In 2003 the applicant complained about unsatisfactory conditions of transport and confinement at the courthouse. 33. It appears from the report of the Moscow Department of the Interior dated 16 December 2003, submitted by the Government, that the applicant was taken to court for criminal proceedings which “were dragging on”. Between July and October 2003 he was transported eight times in the prison van ZIL-4331 together with, at times, fifteen to twenty-seven other detainees; the direct transfer from the courthouse did not normally exceed thirty minutes and ended no later than 8 p.m., except on 30 September 2003.", "From December 2003 onwards the applicant and his co-defendants were taken by direct transfer on account of security considerations. Convoy premises at courthouses were not equipped for catering purposes and “the detainees ate their dry rations when they returned to the remand centre from the courthouse”. 34. By a letter of 17 December 2003 the Moscow Department of the Interior stated that the time taken for transportation had been “objectively justified”. II.", "RELEVANT DOMESTIC LAW AND INTERNATIONAL INSTRUMENTS A. Detention on remand 35. For a summary of the applicable national legislation relating to detention on remand, see the Court’s judgment in the case of Khudoyorov v. Russia (no. 6847/02, §§ 76-93, ECHR 2005). A.", "Catering arrangements for detainees 36. On 4 May 2001 the Ministry of Justice adopted the Rules on food supply for convicts and persons detained in remand centres. According to Annex no. 3 to these Rules, a daily dry ration (bread, tinned beef or fish, sugar, tea and salt) is provided to the following categories of persons: convicts on their way to a prison, a remand centre or colony; persons released from custody on the way to their place of residence; persons during their stay in patient care institutions or convicted juveniles. Those Rules were amended in 2004 and repealed in 2005.", "37. On 4 February 2004 the Ministry of Justice adopted the Rules on supply of dry ration, according to which persons suspected or accused of criminal offences should be supplied with a dry ration (bread, precooked first and second courses, sugar, tea, tableware) during their presence at a courthouse. Detainees should be supplied with hot water with which to consume the ration. C. Transmissible diseases in prison 1. Russian legislation 38.", "Limitation of a citizen’s rights and freedoms because of his or her HIV status may be authorised only by federal law (section 5 of the Law on Prevention of Propagation of HIV infection, 38-FZ of 30 March 1995). Detainees are subject to a compulsory medical examination (section 9 of the Law). A person who has tested HIV-positive must be informed thereof, be informed of the need to take precautions for preventing propagation of the HIV infection and warned that contamination of others or exposing others to a risk of contamination is a criminal offence (section 13 of the Law; Article 122 of the Criminal Code). 39. According to the Rules on Compulsory Testing of Prisoners for HIV infection (adopted by the Russian Government on 28 February 1996), the prison administration must take measures preventing propagation of the HIV infection; medical and other staff must not disclose information relating to the detainee’s HIV status (Rules 11 and 13).", "40. Section 101 § 2 of the Penitentiary Code provided that medical penitentiary establishments should be organised for treatment and detention of drug addicts, alcoholics, HIV and tuberculosis infected prisoners. Federal Law No. 25-FZ of 9 March 2001 repealed that provision in so far as it related to HIV-infected prisoners. 2. International standards 41.", "The relevant extracts from the 11th General Report [CPT/Inf (2001) 16] prepared by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) concerning transmissible diseases read as follows: “31. The spread of transmissible diseases and, in particular, of tuberculosis, hepatitis and HIV/AIDS has become a major public health concern in a number of European countries.... ...[T]he act of depriving a person of his liberty always entails a duty of care... The use of up-to date methods for screening, the regular supply of medication...constitute essential elements of an effective strategy...to provide appropriate care to the prisoners concerned. ...[T]he prisoners concerned should not be segregated from the rest of the prison population unless this is strictly necessary on medical or other grounds. In this connection, the CPT wishes to stress in particular that there is no medical justification for the segregation of prisoners solely on the grounds that they are HIV-positive.", "...[I]t is incumbent on national authorities to ensure that there is a full educational programme about transmissible diseases for both prisoners and prison staff. Such a programme should address methods of transmission and means of protection as well as the application of adequate preventive measures. More particularly, the risks of HIV or hepatitis B/C infection through sexual contacts and intravenous drug use should be highlighted and the role of body fluids as the carriers of HIV and hepatitis viruses explained...” 42. The relevant parts of the Appendix to Recommendation no. R (98) 7 of the Committee of Ministers to Member States concerning the ethical and organisational aspects of health care in prison read as follows: “13.", "Medical confidentiality should be guaranteed and respected... 38. The isolation of a patient with an infectious condition is only justified if such a measure would also be taken outside the prison environment for the same medial reasons. 39. No form of segregation should be envisaged in respect of persons who are HIV antibody positive, subject to the provisions contained in paragraph 40. 40.", "Those who become seriously ill with Aids-related illnesses should be treated within the prison health care department, without necessarily resorting to total isolation. Patients, who need to be protected from the infectious illnesses transmitted by other patients, should be isolated only if such a measure is necessary for their own sake to prevent them acquiring intercurrent infections...” 43. The relevant part of the Appendix to Recommendation no. R (93) 6 of the Committee of Ministers to Member States concerning prison and criminological aspects of the control of transmissible diseases including Aids and related health problems in prison reads as follows: “9. As segregation, isolation and restrictions on occupation, sport and recreation are not considered necessary for seropositive people in the community, the same attitude must be adopted towards seropositive prisoners.” 44.", "Detention of HIV-infected persons was also examined in the following Recommendations of the Committee of Ministers to Member States: no. R (89) 14 on the ethical issues of HIV infection in the health care and social settings; and no. R (98) 7 concerning the ethical and organisational aspects of health care in prison. 45. Similar recommendations were made by the 1993 World Health Organisation in the Guidelines on HIV infection and AIDS in prisons: “27.", "Since segregation, isolation and restrictions on occupational activities, sports and recreation are not considered useful or relevant in the case of HIV-infected people in the community, the same attitude should be adopted towards HIV-infected prisoners. Decisions on isolation for health conditions should be taken by medical staff only, and on the same grounds as for the general public, in accordance with public health standards and regulations. Prisoners’ rights should not be restricted further than is absolutely necessary on medical grounds, and as provided for by public health standards and regulations... 28. Isolation for limited periods may be required on medical grounds for HIV-infected prisoners suffering from pulmonary tuberculosis in an infectious stage. Protective isolation may also be required for prisoners with immunodepression related to AIDS, but should be carried out only with a prisoner’s informed consent.", "Decisions on the need to isolate or segregate prisoners (including those infected with HIV) should only be taken on medical grounds and only by health personnel, and should not be influenced by the prison administration.... 32. Information regarding HIV status may only be disclosed to prison managers if the health personnel consider...that this is warranted to ensure the safety and well-being of prisoners and staff...” THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 46. The applicant complained under Article 3 of the Convention about an alleged exposure to a risk of HIV infection, about the conditions in which he was conveyed between remand centre no. 77/1 in Moscow and the Moscow City Court, and the conditions of his confinement at the courthouse.", "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. Exposure to a risk of HIV infection 47. The applicant initially complained that he had been kept in a cell with an HIV-positive inmate. In his observations of 9 June 2006 he specified that he was challenging the delayed notification of Mr K’s HIV status. Until he had been so informed, the applicant was exposed or feared to be exposed to the risk of contamination because he shared his cell with Mr K. and was not advised of the dangers relating to the HIV and of the means of protection against it.", "The applicant submitted to the Court a written statement from his cellmate, Mr P., who had confirmed the applicant’s position. 48. The Government submitted that the applicant had not been held together with detainees suffering from HIV and had been informed about the rules for their detention. Under Russian law those persons were not segregated from other prisoners. 49.", "The Court observes that, according to the existing international standards (see paragraphs 41 - 45 above), segregation, isolation and restrictions on occupational and recreational activities are considered unnecessary in the case of HIV-infected persons in the community or when they are detained (see also Enhorn v. Sweden, no. 56529/00, § 55, ECHR 2005‑I). When detained, they should not be segregated from the rest of the prison population unless this is strictly necessary on medical or other relevant grounds. Adequate health care should be afforded to HIV-infected detainees, with due regard to the obligation of confidentiality. National authorities should provide all detainees with counselling on risk behaviours and modes of HIV transmission.", "50. The Court will examine the applicant’s complaint on the assumption that he did share a cell with an HIV-positive detainee. The Court need not determine the truthfulness of each and every allegation because his complaint is in any event inadmissible for the following reasons. 51. The Court reiterates that the protection of medical data, in particular the confidentiality of information about a person’s HIV status, is of fundamental importance to a person’s enjoyment of his or her right to respect for private life and that the domestic law must therefore afford appropriate safeguards to prevent any such disclosure which may run counter to the guarantees of Article 8 of the Convention (see Z v. Finland, judgment of 25 February 1997, Reports of Judgments and Decisions 1997‑I, § 95).", "52. On the other hand, the Court recalls that Article 3 of the Convention imposes an obligation on the State to 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). 53.", "In the present case, it has not been claimed that the applicant contracted HIV or that he had been unlawfully exposed to a real risk of infection, for instance, through sexual contacts or intravenous drug use. The mere fact that HIV-positive detainees use the same medical, sanitary, catering and other facilities as those for all other prisoners does not in itself raise an issue under Article 3 of the Convention (see Korobov and Others v. Russia (dec.), no. 67086/01, 2 March 2006). Consequently, although the Court regrets the absence of any detailed submissions on the provision of counselling on risk behaviours and modes of HIV transmission for detainees, it cannot find that the authorities failed in the circumstances of the case to secure the applicant’s health. 54.", "Therefore, the Court considers that the applicant’s complaint does not disclose any appearance of a violation of Article 3 of the Convention. It follows that it is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 2. Conditions of transport to/from, and confinement at, the courthouse 55. The Government submitted that the applicant should have raised his complaints about the conditions of his transport and of his confinement at the courthouse before a prosecutor.", "They concluded that the applicant had not exhausted the domestic remedies in that respect. 56. The Court notes, and this was not disputed by the parties, that the applicant raised both complaints before the Department of the Interior of Moscow, which examined them in December 2003 (see paragraph 33 above). This is confirmed by the Russian authorities’ reports of 16 December 2003 and 15 and 20 March 2006, which were produced by the Government. Hence, the applicant made the Russian authorities sufficiently aware of his complaints and gave them an opportunity to examine the issues raised and, if appropriate, to remedy the situation.", "In any event, the Government omitted to specify what redress could have been afforded to the applicant as a result of a complaint to a prosecutor. The Court therefore finds that this complaint cannot be rejected for failure to exhaust domestic remedies. 57. The Court concludes 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. Submissions by the parties 58. The applicant submitted that during the trial he had been transported on one hundred days between the remand centre and the City Court. Before departure he had been kept in a tiny cell and had no breakfast or other food during the day.", "At the City Court he had been kept in a cell measuring 2.4 square metres together with several other detainees. After the hearing he had been taken back to that cell and remained there until 6 to 8 p.m. without access to a toilet. The journey from the courthouse to the remand centre took several hours so that he reached his cell at about midnight. 59. The Government argued that the applicant’s complaints were unfounded since he had not specified the dates in which the transfer from the courthouse to the remand centre had allegedly taken several hours.", "Such transfer had not normally exceeded thirty minutes. Given the security considerations, from December 2003 onwards the applicant and his co-defendants had been taken by direct transfer. Before leaving for the courthouse the applicant had been given a hot breakfast and a dry ration in compliance with the applicable legislation (see paragraphs 36 and 37 above). He had also been allowed to take with him food supplied by his relatives or bought in the prison shop. At the courthouse, the applicant had been kept in decent conditions in a cell measuring 1.95 square metres.", "2. The Court’s assessment 60. The Court reiterates that to be regarded as degrading or inhuman for the purposes of Article 3 of the Convention treatment must attain a minimum level of severity (see Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001‑VII). 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). 61. The Court observes at the outset that the thrust of the applicant’s complaint is the length of the transferrals between the remand centre and the courthouse, the conditions of his confinement at the convoy premises in the courthouse and hunger on the days of court hearings. The Court cannot accept as evidence the document, submitted by the Government, which indicated the timing of the transport of detainees. That document was undated and omitted to indicate the period of time it concerned.", "The Government provided no other evidence in support of their argument that the transfers had not exceeded thirty minutes. On the other hand, it appears that the difficulties relating to the transport of detainees between the remand centre and the Moscow City Court in 2002 were acknowledged by the national authorities, in particular as regards the excessive length of transfers and overcrowding of prison vans (see paragraph 33 above; see also the letter of 26 November 2003 from the head of the Moscow Directorate for Execution of Punishments, cited in Starokadomskiy v. Russia (dec.), no. 42239/02, 12 January 2006, concerning the applicant’s co-defendant in the domestic proceedings). 62. In that connection, the Court observes that it has found a violation of Article 3 in a case where an applicant was transported together with another detainee in a single-occupancy cubicle which measured one square metre (see Khudoyorov v. Russia, no.", "6847/02, §§ 117-20, ECHR 2005‑... (extracts)). The Court noted that the applicant in that case had to endure these cramped conditions twice a day on two hundred days when court hearings were held. 63. As to the confinement at the courthouse, the Court accepts the Government’s submission that the applicant was kept in a cell measuring 1.95 square metres. In the absence of the Government’s comments, the Court is inclined to accept the applicant’s allegation that he had to share that cell with one or more detainees.", "It does not lose sight of the fact that the applicant was kept there only part of the day (see Fedotov v. Russia, no. 5140/02, § 68, 25 October 2005). However, in view of the significant number of times when the applicant was placed in those cramped conditions, the Court considers that this aspect of the case also raises a concern under Article 3 of the Convention. 64. Furthermore, it appears that the applicant did not receive appropriate nutrition on the days when he was transported to the court (compare Bagel v. Russia, no.", "37810/03, §§ 67-71, 15 November 2007, and Nakhmanovich v. Russia (dec.), no. 55669/00, 28 October 2004). No evidence was submitted that the applicant had received any dry ration instead. In any event, as can be seen from the reports submitted by the Government, detainees could not use dry rations because the convoy premises at the courthouse had no facilities for heating or eating food. Permission to take one’s own food cannot be a substitute for appropriate catering arrangements because it remains the State’s obligation to ensure the well-being of persons deprived of their liberty (see Stepuleac v. Moldova, no.", "8207/06, § 55, 6 November 2007; Kadiķis v. Latvia (no. 2), no. 62393/00, § 55, 4 May 2006; cf. Valašinas v. Lithuania, no. 44558/98, § 109, ECHR 2001‑VIII).", "65. Thus, in the present case the applicant was transported on numerous occasions in unacceptable conditions. On those days he was not provided with adequate nutrition and was confined in cramped conditions at the courthouse. The above treatment occurred during his trial, that is when he most needed his powers of concentration and mental alertness. The Court takes the view that the above considerations, taken cumulatively, are sufficient to warrant the conclusion that the inhuman and degrading treatment to which the applicant was subjected exceeded the minimum level of severity required for the finding that there has been a violation of Article 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 66. The applicant complained under Article 5 § 3 of the Convention that his continued detention on remand had not been properly justified. The relevant part of Article 5 reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 67.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 68.", "The Government submitted that Article 239-1 of the RSFSR Code of Criminal Procedure, regarding the time-limits for detention, did not apply to the applicant because he had been charged with a particularly serious offence. After the new Code of Criminal Procedure had entered into force in July 2002, the applicant’s detention was extended because of the gravity of the charges against him and the risk of his absconding and obstructing justice. The length of the applicant’s detention was accounted for by the slow pace of the trial which was in its turn affected by the case’s complexity, the large number of defendants and the applicant’s and his counsel’s conduct during the trial. 69. The applicant maintained his complaint.", "70. The Court observes that the applicant’s detention started on 20 January 1998, the date of his arrest, and ended on 10 November 2004, the date when the City Court gave judgment in his criminal case. The overall duration thus amounted to six years, nine months and twenty-two days. The Court has competence ratione temporis to examine the period after the entry into force of the Convention in respect of the Russian Federation on 5 May 1998, that is six years, six months and eight days. 71.", "The Court reiterates that the persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but with the lapse of time this no longer suffices and the Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty (see McKay v. the United Kingdom [GC], no. 543/03, § 44, ECHR 2006‑...). Where such grounds were “relevant” and “sufficient”, the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings. 72. It is essentially on the basis of the reasons given in the domestic courts’ decisions and of the well-documented facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (loc.", "cit.). The Court will therefore examine the reasons given by the Russian courts, namely the gravity of the charges against the applicant and that he might flee or obstruct justice. 73. The Court has repeatedly held that, although the gravity of the charges or the severity of the sentence faced is relevant in the assessment of the risk of an accused absconding, re-offending or obstructing justice, it cannot by itself serve to justify long periods of detention on remand (see, among others, Ilijkov v. Bulgaria, no. 33977/96, §§ 80 and 81, 26 July 2001).", "74. The Court observes that the City Court used the same summary formula to extend the detention of several defendants, without describing their personal situation in any detail. The Court does not exclude the possibility that there might be a general risk flowing from the organised nature of the alleged criminal activities of an applicant which can be accepted as the basis for his or her detention for a certain period of time (see Kučera v. Slovakia, no. 48666/99, § 95, ECHR 2007‑... (extracts) and Celejewski v. Poland, no. 17584/04, §§ 37 and 38, 4 May 2006).", "In such cases, involving numerous accused, the need to obtain voluminous evidence from many sources and to determine the facts and degree of alleged responsibility of each of the co-accused may constitute relevant and sufficient grounds for an applicant’s detention during the period necessary to terminate the investigation, to draw up the bill of indictment and to hear evidence from the accused (loc. cit.). However, in the present case the domestic court did not demonstrate the existence of any concrete facts in support of the conclusions that the applicant would obstruct justice. Nor did it point to any aspects of the applicant’s character or behaviour that would justify their conclusion that there was a persistent risk that he would abscond. 75.", "The inordinate length of the applicant’s detention is a matter of grave concern for the Court. At no point in the proceedings did the domestic authorities consider whether his right “to trial within a reasonable time or to release pending trial” had been violated. The Court considers that, in these circumstances, the Russian authorities should have put forward very weighty reasons for keeping the applicant in detention. 76. In the light of the above considerations, the Court finds that the authorities failed in their duty to provide sufficient reasons for the applicant’s detention for more than six years.", "In those circumstances it is not necessary to determine whether the proceedings were conducted with “special diligence”. 77. There has therefore been a violation of Article 5 § 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 78.", "The applicant complained under Article 6 § 1 of the Convention that the length of the criminal proceedings against him had been excessive. 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...” A. Admissibility 79. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. Period to be taken into consideration 80. The Court recalls that the period under consideration in the present case began on 20 January 1998, when the applicant was arrested, and ended on 15 November 2005, when the court of appeal upheld the first-instance judgment. Thus, the overall length of the proceedings was seven years, ten months and twenty-seven days, of which seven years, six months and thirteen days fall within the Court’s competence ratione temporis.", "2. Reasonableness of the length of proceedings 81. The Government argued that the length of the proceedings was accounted for by the complexity of the case, the large number of defendants, their request for a trial by a jury and their lawyers’ repeated failure to attend hearings. Certain witnesses and victims also defaulted and had to be compelled to attend. Several adjournments occurred because the presiding judge was sitting in another case.", "According to the Government, in total over one hundred hearings were adjourned, of which forty-six solely because the defendants’ lawyers failed to attend; thirty-five other hearings were adjourned for the same reason or because witnesses and victims had defaulted or because defendants or their counsel were ill. 82. The applicant submitted that he could not be criticised for having chosen to be tried by a jury. Even after the jurisdictional issue had been determined, nothing happened in the case for more than two years. Although numerous hearings had been scheduled during 2001 and 2002, all of them were adjourned, the real reason being the presiding judge’s involvement in other proceedings. In 2001 and 2002 the presiding judge had been replaced by other judges of the City Court; lay judges had been replaced several times.", "In 2001, at least, the City Court had taken no measures to ensure certain defendants’ or their lawyers’ presence each time when a hearing was scheduled. The applicant and his counsel had attended the hearings and had not contributed to the length of the proceedings. 83. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case and the conduct of the applicant and the relevant authorities (see, among other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).", "The Court has examined the applicant’s complaint, bearing in mind that it essentially concerned the trial and appeal stages of the proceedings (see Dawson v. Ireland (dec.), no. 21826/02, 8 July 2004). 84. The Court accepts that the case revealed a certain degree of complexity; it concerned a large number of defendants who had been charged with several counts of serious criminal offences. While admitting that the task of the trial court was rendered more difficult by these factors, 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 (see Mattila v. Finland, no.", "77138/01, § 15, 23 May 2006). It took more than one year to determine which court was competent to try the case; however, the procedural complexity because of the need to transfer the case between various courts cannot justify the delay either (see S.H.K. v. Bulgaria, no. 37355/97, § 32, 23 October 2003, and Styranowski v. Poland, judgment of 30 October 1998, Reports 1998‑VIII, pp. 3376‑77, § 51).", "85. As to the applicant’s conduct, the Court recalls that an applicant cannot be required to co-operate actively with the judicial authorities, nor can he be criticised for having made full use of the remedies available under the domestic law in the defence of his interests (see, among others, Rokhlina v. Russia, no. 54071/00, § 88, 7 April 2005). It has not been alleged by the Government that the applicant defaulted, went beyond the limits of legitimate defence by lodging frivolous petitions or unsubstantiated requests or otherwise contributed to the length of the proceedings (see Komarova v. Russia, no. 19126/02, § 50, 2 November 2006).", "It appears that the absence or illness of the applicant’s counsel was a cause of delay on only four occasions. On balance, the Court finds that the applicant did not contribute significantly to the length of the proceedings. 86. On the other hand, the Court considers that certain delays were attributable to the domestic authorities. The Court has already noted the one-year delay in resolving the jurisdictional issue.", "After the case had been assigned to the City Court in September 2000 there were unjustified gaps in the proceedings between May and September 2001, April and June 2002, July and September 2002. It was not in dispute between the parties that many hearings had been adjourned, in particular because the presiding judge had been sitting in another case or because other defendants’ lawyers had defaulted. The actual examination of the case started only in March 2003, that is two years and five months after the case had been listed for trial. It also transpires from the case file that on several occasions in 2004 the trial judge ordered the bailiffs to bring the defaulting witnesses, victims and the interpreter. 87.", "Although the State cannot be held responsible for every shortcoming on the part of a legal-aid lawyer and, even less, of a privately-retained lawyer (see Hermi v. Italy [GC], no. 18114/02, § 96, ECHR 2006‑...), that does not absolve the State from the duty to organise its legal system in such a way that its courts can meet the obligation to hear cases within a reasonable time (see Sürmeli v. Germany [GC], no. 75529/01, § 129, 8 June 2006). The Government submitted no explanation as to whether the orders given to the bailiffs had been complied with. No evidence was adduced as to whether any measures available under national law to discipline the defaulting participants in the proceedings had been taken (see Zementova v. Russia, no.", "942/02, § 70, 27 September 2007; Sidorenko v. Russia, no. 4459/03, § 34, 8 March 2007; and Sokolov v. Russia, no. 3734/02, § 40, 22 September 2005). 88. Nor have the Government provided any convincing explanation for temporarily replacing the presiding judge and lay judges in the course of the proceedings, which undeniably contributed to their overall duration.", "The Court considers that a substitution should not be made for the personal convenience of the court, and the reasons for a substitution should be stated on the record. 89. Finally, the Court takes into account that throughout the proceedings the applicant remained in custody, so that particular diligence on the part of the authorities was required. The Court also does not lose sight of its conclusions in relation to the applicant’s complaint about the conditions of his transport and confinement on the days of the court hearings, most of which resulted in adjournment (see paragraph 65 above). 90.", "Making an overall assessment, the Court concludes that in the circumstances of the case the “reasonable time” requirement has not been respected. There has accordingly been a violation of Article 6 § 1 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 91. 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 92. The applicant claimed 80,000 euros (EUR) in respect of non-pecuniary damage. 93. The Government submitted that the applicant’s claims were unfounded. 94.", "The Court considers that the applicant must have suffered frustration and a feeling of injustice as a consequence of the unacceptable conditions of his transport and confinement on the days of court hearings, his exceptionally long detention on remand without sufficient reasons and the slow pace of the criminal proceedings against him. The Court considers that the applicant sustained non-pecuniary damage, which would not be sufficiently compensated by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 9,600 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount. B. Costs and expenses 95.", "The applicant also claimed EUR 4,000 in respect of his representation before the Court by Mr S. Ibragimov who had acted under a contingency fee agreement. 96. The Government argued that the applicant had provided no document, including the agreement he had referred to, proving that the applicant had incurred any costs. 97. The Court notes that the applicant did not apply for legal aid in the proceedings before the Court.", "98. According to the Court’s case-law, an applicant is entitled to reimbursement of his or her costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court observes that the applicant was represented throughout the proceedings before the Court by Mr Ibragimov. However, the applicant did not submit a copy of any agreement showing that he had already incurred the above expenses or had been under a legally enforceable obligation to pay any fee to Mr Ibragimov (see Papastavrou and Others v. Greece (just satisfaction), no. 46372/99, § 24, 18 November 2004; Belevitskiy v. Russia, no.", "72967/01, § 127, 1 March 2007; Flux v. Moldova (no. 3), no. 32558/03, § 38, 12 June 2007; and Shukhardin v. Russia, no. 65734/01, § 133, 28 June 2007). The applicant did not submit any itemised statements, or the rates and number of hours for which counsel had charged.", "The Court therefore rejects the applicant’s claim under this head. C. Default interest 99. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints about the conditions of the applicant’s transport and confinement on the days of court hearings, the length of the applicant’s detention and that of the criminal proceedings admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a breach of Article 3 of the Convention on account of the conditions of the applicant’s transport and confinement on the days of court hearings; 3. Holds that there has been a violation of Article 5 § 3 of the Convention; 4. Holds that there has been a violation of the “reasonable-time” requirement of Article 6 § 1 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 9,600 (nine thousand six hundred 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; 6. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 31 July 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]
[ "CASE OF VAN GEYSEGHEM v. BELGIUM (Application no. 26103/95) JUDGMENT STRASBOURG 21 January 1999 In the case of Van Geyseghem v. Belgium, 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,MrsE. Palm,MrC.L.", "Rozakis,SirNicolas Bratza,MrM. Pellonpää,MrB. Conforti,MrA. Pastor Ridruejo,MrG. Bonello,MrJ.", "Makarczyk,MrP. Kūris,MrR. Türmen,MrsF. Tulkens,MrC. Bîrsan,MrM.", "Fischbach,MrsH.S. Greve,MrR. Maruste,MrsS. Botoucharova,and also of Mr M. de Salvia, Registrar, Having deliberated in private on 25 November 1998 and 14 January 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 Belgian Government (“the Government”) on 9 April 1998 and by Mrs Nicole Van Geyseghem, a Belgian national (“the applicant”), on 10 April 1998, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention.", "It originated in an application (no. 26103/95) against the Kingdom of Belgium lodged by Mrs Van Geyseghem with the European Commission of Human Rights (“the Commission”) under former Article 25 on 25 October 1994. The Government’s application referred to former Articles 44 and 48, and that of the applicant to former Article 48, as amended by Protocol No. 9[2], which Belgium had ratified. The object of the applications was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 §§ 1 and 3 (c) of the Convention.", "2. On 28 April 1998 the applicant designated the lawyer who would represent her (Rule 31 of former Rules of Court B[3]). 3. As President of the Chamber which had originally been constituted (former Article 43 of the Convention and former Rule 21) in order to deal, in particular, with procedural matters that might arise before the entry into force of Protocol No. 11, Mr R. Bernhardt, the President of the Court at the time, acting through the Registrar, consulted the Agent of 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, the Registrar received the applicant’s memorial on 7 July 1998 and the Government’s memorial on 8 July 1998. The Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing. 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 Mrs F. Tulkens, the judge elected in respect of Belgium (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 and Mr C.L. Rozakis, the Vice-Presidents of the Court, and Sir Nicolas Bratza and Mr M. Pellonpää, Presidents of Sections (Article 27 § 3 of the Convention and Rule 24 § 3). The other members appointed to complete the Grand Chamber were Mr B. Conforti, Mr A. Pastor Ridruejo, Mr G. Bonello, Mr J. Makarczyk, Mr P. Kūris, Mr R. Türmen, Mr C. Bîrsan, Mr M. Fischbach, Mrs H.S. Greve, Mr R. Maruste and Mrs S. Botoucharova (Rule 24 § 3 and Rule 100 § 4). 5.", "On 12 November 1998 the Commission produced the file on the proceedings before it, as requested by the Registrar on the President’s instructions. 6. At the Court’s invitation (Rule 99), the Commission delegated one of its members, Mr E. Bieliūnas, to take part in the proceedings before the Grand Chamber. 7. In accordance with the President’s decision, a hearing took place in public in the Human Rights Building, Strasbourg, on 25 November 1998.", "There appeared before the Court: (a)for the GovernmentMrJ. Lathouwers, Deputy Legal Adviser,Head of Division, Ministry of Justice,Agent,MsB. Vanlerberghe, of the Brussels Bar,Counsel; (b)for the applicantMrR. Verstraeten, of the Brussels Bar,Counsel; (c)for the CommissionMrE. Bieliūnas, Delegate.", "The Court heard addresses by Mr Bieliūnas, Mr R. Verstraeten and Ms Vanlerberghe. THE FACTS I.THE CIRCUMSTANCES OF THE CASE 8. Nicole Van Geyseghem, a nursery nurse born in 1942, is a Belgian citizen. At the time of lodging her application, she was living in Hoeilaart (Belgium). 9.", "The applicant and four others were prosecuted for importing drugs from Brazil on three occasions between 22 June 1986 and 21 March 1987, including 2.33 kilograms of cocaine on 20 March 1987, the date on which the applicant was arrested. A.Proceedings in the Brussels Criminal Court 10. On 10 December 1992 the Brussels Criminal Court convicted the applicant in absentia (she had failed to appear even though she had been properly served with a summons) and sentenced her to four years’ imprisonment and a fine of 180,000 Belgian francs (BEF). The court also ordered her immediate arrest on the ground that there was reason to believe that she would attempt to evade enforcement of her sentence. 11.", "On 26 April 1993 Mrs Van Geyseghem applied to the same court to set aside its judgment. 12. She attended the hearing of her application. On 7 May 1993 the Brussels Criminal Court, after adversarial proceedings, sentenced her to three years’ imprisonment and a fine of BEF 60,000. The court held that there was no need to order the applicant’s immediate arrest as there was no cause to fear that she would attempt to evade enforcement of her sentence.", "13. On 21 May 1993 both the applicant and the prosecution appealed. B.Proceedings in the Brussels Court of Appeal 14. Although the summons to appear had been served on her in accordance with the proper procedure, Mrs Van Geyseghem did not attend the appeal hearing and neither did a lawyer on her behalf. On 14 June 1993 the Brussels Court of Appeal, ruling in the applicant’s absence, upheld the judgment of 7 May 1993 in its entirety.", "It also ordered the applicant’s immediate arrest on the ground that there was reason to believe that she would attempt to evade enforcement of her sentence in view of its length and of the fact that she had failed to appear both at the appeal hearing and at the original trial. 15. On 26 August 1993 the applicant applied to set aside the Court of Appeal’s judgment. Her application was served on the prosecution by means of a bailiff’s writ, in which the hearing was set down for 13 September 1993. 16.", "The applicant did not attend the hearing in person. Her counsel, Mr Verstraeten, appeared and, relying on Article 185 § 2 of the Code of Criminal Procedure (see paragraph 20 below), stated that he was representing his client and would be making submissions to the effect that the prosecution had become time-barred between the delivery of the Court of Appeal’s judgment in absentia and the date on which the application to set it aside was to be heard by the Court of Appeal. The court refused Mrs Van Geyseghem’s counsel leave to address it and make submissions on his client’s behalf. At counsel’s request, the following was entered in the record of the hearing of 13 September 1993: “The Court refuses Mr Rafael Verstraeten, of the Brussels Bar, leave to represent the appellant and to make submissions on her behalf to the effect that the prosecution is time-barred.” 17. In a judgment of 4 October 1993 the Court of Appeal declared the application void on the following grounds: “Although the application has been filed in the proper form and within the statutory time, the appellant has failed to attend the hearing on the date set by her and has not adduced any evidence of force majeure preventing her from attending in person.” C.Proceedings in the Court of Cassation 18.", "The applicant lodged an appeal on points of law against the judgment of 4 October 1993. In her pleading she argued that the Court of Appeal’s refusal to grant her counsel leave to make submissions on her behalf had infringed her defence rights and Article 185 § 2 of the Code of Criminal Procedure, which provides that the accused may appear by counsel “where the hearing concerns only an objection [or] a matter unconnected with the merits of the case …”. In written submissions of 16 March 1994 summarising his address, the applicant’s counsel referred to the European Court’s judgment in the Poitrimol v. France case (23 November 1993, Series A no. 277-A). 19.", "The Court of Cassation dismissed her appeal in a judgment of 4 May 1994 in the following terms: “The appellant submits that her counsel attended the hearing and that the Court of Appeal, in refusing him leave to represent her and make submissions on her behalf to the effect that the prosecution was time-barred – that is, to raise ‘an objection unconnected with the merits of the case’ – infringed Articles 185, 188 and 211 of the Code of Criminal Procedure and the general principle of law which requires that the rights of the defence be respected; Where a trial or appeal court is dealing with charges which may attract a custodial sentence as the principal sentence, paragraph 2 of the above-mentioned Article 185 allows an accused to appear by counsel only ‘where the hearing concerns an objection, a matter unconnected with the merits of the case or the civil interests’; Within the meaning of that provision, a claim that an action is time-barred is neither an objection nor a matter unconnected with the merits; The ground of appeal has no basis in law.” II.RELEVANT DOMESTIC LAW 20. The relevant Articles of the Code of Criminal Procedure read as follows: Article 185 “1. The party claiming civil damages and the party liable to pay such damages shall attend the hearing or appear by counsel. 2. The accused shall attend the hearing.", "However, the accused may appear by counsel in the case of minor offences which do not attract a custodial sentence or where the hearing concerns an objection, a matter unconnected with the merits of the case or the civil interests. The Criminal Court may still grant leave for the accused to appear by counsel where he provides evidence that he is unable to attend. 3. In any event, the Criminal Court may order the accused to attend. No appeal shall lie against such a decision.", "The judgment in which the accused is ordered to attend shall be served on the party concerned on an application by the prosecution, together with a summons to attend on the date determined by the Criminal Court. Where the accused fails to attend, the court shall determine the matter in his absence.” Article 186 “If the accused fails to attend the hearing, he shall be tried in his absence.” Article 187 “An accused who is convicted in his absence may lodge an application to set aside the judgment within fifteen days of the date on which it was served on him.” Article 188 “An application to set aside shall automatically be effective as a summons to attend the first hearing following the expiry of fifteen days, or three days where the party lodging the application is in custody. The application shall be void if the party who lodged it fails to attend the hearing. Save as hereinafter provided, no appeal by the party who lodged the application to set aside shall lie against the Criminal Court’s ruling. Where appropriate, the court may make an interim award.", "Such an award shall be enforceable notwithstanding an appeal.” Article 208 “A judgment on appeal delivered in absentia may be challenged by means of an application to set aside made under the same procedure and within the same time-limits as a judgment delivered in absentia by the Criminal Court. The application shall automatically be effective as a summons to attend the first hearing following the expiry of fifteen days, or three days where the party lodging the application is in custody. The application to set aside shall be void if the party who lodged it fails to attend the hearing. No appeal by the party who lodged the application shall lie against the Court of Appeal’s ruling other than an appeal on points of law to the Court of Cassation.” Article 211 “The provisions of the preceding Articles which relate to the formalities of judicial investigations, the nature of evidence, the form, authenticity and signature of final judgments delivered at first instance, orders to pay costs and the penalties applicable under those Articles shall also apply to judgments delivered on appeal.” 21. Where an application to set aside has been declared void on the ground that the applicant failed to attend the hearing, the judgment which records the fact will itself be a judgment given in absentia.", "If the applicant again fails to attend the hearing, a second application by him to set aside will be inadmissible, in accordance with the maxim “opposition sur opposition ne vaut” (an application to set aside a judgment delivered in absentia on an application to set aside an earlier judgment delivered in absentia is ineffective). Were the convicted person able to lodge a further application to set aside the decision of the court which refused in absentia his application to set aside an initial decision also delivered in absentia, he could, by failing to attend and lodging one application after another, indefinitely hinder the enforcement of any conviction and thus paralyse the administration of justice. PROCEEDINGS BEFORE THE COMMISSION 22. Mrs Van Geyseghem applied to the Commission on 25 October 1994. She complained that she had been denied a fair hearing and that her defence rights had been infringed in that, because of her failure to appear, she had been unable to be represented by counsel in the Brussels Court of Appeal when it had heard her application to set aside her conviction in absentia of 14 June 1993.", "She relied on Article 6 §§ 1 and 3 (c) of the Convention. 23. The Commission (Second Chamber) declared the application (no. 26103/95) admissible on 9 April 1997. In its report of 3 December 1997 (former Article 31 of the Convention), it expressed the opinion that there had been a violation of Article 6 (fourteen votes to one).", "The full text of the Commission’s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment[4]. FINAL SUBMISSIONS TO THE COURT 24. In their memorial the Government asked the Court to hold that, in view of the special features of Belgian law, Article 6 of the Convention had not been violated. 25. Counsel for the applicant asked the Court to “(a) hold that Article 6 §§ 1 and 3 (c) of the Convention had been violated; and (b) afford the applicant just satisfaction in accordance with Article [41] of the Convention”.", "THE LAW I.alleged violation of Article 6 §§ 1 and 3 (c) of the convention 26. Mrs Van Geyseghem complained that the Brussels Court of Appeal had refused to grant her counsel leave, in her absence, to defend her at the hearing of her application to set aside a judgment it had given earlier. She alleged a breach of paragraphs 1 and 3 (c) of Article 6 of the Convention, which provide: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal ... 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 … …” The Government contested that submission; the Commission accepted it.", "27. As the requirements of paragraph 3 of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1, the Court will examine the complaint under both provisions taken together (see, among other authorities, the Poitrimol v. France judgment of 23 November 1993, Series A no. 277-A, p. 13, § 29). 28. The Court notes at the outset that the issue in the present case is not whether a trial in the accused’s absence is compatible with Article 6 §§ 1 and 3 (c); the applicant’s complaint was not that the appeal hearing of 13 September 1993 (see paragraphs 15-16 above) was held in her absence – she had not wished to avail herself of her right to attend – but that the Brussels Court of Appeal had decided the case without allowing her counsel to defend her and, in particular, make submissions on her behalf to the effect that the prosecution was time-barred.", "Mr Verstraeten, the lawyer whom she had instructed to defend her, had attended the hearing with the intention of putting her case. He had been prevented from doing so. 29. The Court also notes that since the incident occurred during the hearing of her application to set aside an appellate court’s judgment, Mrs Van Geyseghem had no further opportunity of having arguments of law and fact presented at second instance in respect of the charge against her. At the time of the hearing in the Brussels Court of Appeal on 13 September 1993 the applicant was therefore in a situation comparable to the one considered by the Court in the Poitrimol v. France case (see the judgment cited above, p. 15, § 35) and the Lala and Pelladoah v. the Netherlands cases (see the judgments of 22 September 1994, Series A no.", "297-A and B, p. 13, § 31, and p. 34, § 38, respectively). 30. The applicant pointed out, firstly, that in its judgments in the Lala and Pelladoah cases the Court had held that the accused’s right to be defended by counsel was of crucial importance for the fairness of the criminal justice system and that this interest should at all events prevail. The fact that under Belgian law a person convicted in absentia could apply to have a conviction set aside could not justify reaching a different decision from the one given by the Court in the above cases. The Court’s finding that no such remedy existed at the appeal stage in Netherlands law had not been decisive.", "In any event, even if the possibility of applying to set aside a conviction were to be regarded as essential for determining whether an accused enjoyed the right to be defended, it would not – in the applicant’s view – be decisive in the instant case, since it was precisely in proceedings to set aside that the Brussels Court of Appeal had refused to allow Mr Verstraeten to represent her. Secondly, the applicant continued, the mere fact that an accused did not appear at trial and exercised the right afforded by the Code of Criminal Procedure to apply to set aside a decision given in absentia did not amount to an abuse of process. Nor had the courts held in their decisions in her own case that her conduct amounted to such an abuse. The functioning of the courts was protected from any such attempts at obstruction because Belgian law did not permit a second application to set aside (see paragraph 21 above). Lastly, contrary to the Government’s assertions, the Court of Appeal, which had ruled that the application to set aside was void, could not have considered whether the prosecution was time-barred.", "According to Belgian case-law and legal theory, once an application to set aside had been ruled invalid, such an issue could not be considered. 31. The Government submitted that the differences between Netherlands and Belgian law justified reaching a different decision from the one given by the Court in the Lala and Pelladoah cases cited above. Unlike Netherlands law, which did not generally make it compulsory for an accused to attend his trial and limited the possibilities of applying to set aside decisions delivered in absentia, Belgian law allowed an application to be made to set aside any conviction in absentia and required the accused’s personal attendance, save in cases in which the law allowed representation by counsel. The accused’s attendance facilitated the proper administration of justice, was necessary to protect the interests of victims and witnesses, allowed sentences to be adapted to the individual offender and was essential if the sentence was to have a deterrent effect.", "Giving an accused a right to evade justice would seriously undermine the authority of the courts. In both the aforementioned cases, the Government continued, the Court had weighed the importance of an accused’s personal attendance against that of his being adequately defended and represented by a lawyer. The Belgian system struck a proper balance between the various interests requiring protection. Mrs Van Geyseghem had had four opportunities of submitting her defence. It had depended entirely on her whether she had the advantage of adversarial procedure on appeal; but she had repeatedly and deliberately obstructed the holding of adversarial proceedings and her conduct had amounted to an abuse of process.", "The right to be defended by a lawyer could not be absolute and therefore could not be relied upon if the defendant refused to appear on three occasions, as had happened in the instant case. In any event, a court giving judgment in absentia was under a duty to investigate the case and examine of its own motion all possible defences, including those relating to statutory limitation. That Mr Verstraeten had been unable to represent his client and make submissions to the effect that the prosecution was time-barred had had no effect on the outcome of the proceedings. In conclusion, there had therefore been no violation of Article 6 §§ 1 and 3 (c) of the Convention. 32.", "The Commission considered that the particular points put forward by the Government were not such as to justify reaching a different conclusion from the one adopted by the Court in the Poitrimol, Lala and Pelladoah judgments. 33. The Court points out that in the first of those three cases it held that it was of capital importance that a defendant should appear, both because of his right to a hearing and because of the need to verify the accuracy of his statements and compare them with those of the victim – whose interests needed to be protected – and of the witnesses. The legislature accordingly had to be able to discourage unjustified absences (see the Poitrimol judgment cited above, p. 15, § 35). In the other two cases, it stated however that it was also “of crucial importance for the fairness of the criminal justice system that the accused be adequately defended, both at first instance and on appeal, the more so if, as is the case under Netherlands law, no objection may be filed against a default judgment given on appeal” (see the Lala and Pelladoah judgments cited above, p. 13, § 33, and pp.", "34-35, § 40, respectively). The Court added that the latter interest prevailed and that consequently the fact that a defendant, in spite of having been properly summoned, does not appear, cannot – even in the absence of an excuse – justify depriving him of his right under Article 6 § 3 of the Convention to be defended by counsel (ibid.). It was for the courts to ensure that a trial was fair and, accordingly, that counsel who attended trial for the apparent purpose of defending the accused in his absence was given the opportunity to do so (ibid., p. 14, § 34, and p. 35, § 41). 34. The Court cannot accept the Belgian Government’s argument that the finding that there was no possibility of applying to set aside a conviction in absentia was decisive in the reasoning of the Lala and Pelladoah judgments.", "The clause beginning with the adverbial phrase “the more so” (see paragraph 33 above) was added as a secondary consideration. On the contrary, the Court stated that the interest in being adequately defended prevailed. The right of everyone charged with a criminal offence to be effectively defended by a lawyer is one of the basic features of a fair trial. An accused does not lose this right merely on account of not attending a court hearing. Even if the legislature must be able to discourage unjustified absences, it cannot penalise them by creating exceptions to the right to legal assistance.", "The legitimate requirement that defendants must attend court hearings can be satisfied by means other than deprivation of the right to be defended. The Court notes that Article 185 § 3 of the Code of Criminal Procedure (see paragraph 20 above) provides that in any event the Criminal Court may order an accused to attend and that no appeal lies against such a decision. 35. The principle established in the Lala and Pelladoah cases applies in the instant case. Even if Mrs Van Geyseghem did have several opportunities of defending herself, it was the Brussels Court of Appeal’s duty to allow her counsel – who attended the hearing – to defend her, even in her absence.", "That was particularly true in this case since the defence which Mr Verstraeten intended to put forward concerned a point of law (see paragraph 16 above). Mr Verstraeten intended to plead statutory limitation, an issue which the Court has described as crucial (see the Artico v. Italy judgment of 13 May 1980, Series A no. 37, p. 17, § 34). Even if, as the Government maintained, the Court of Appeal must have examined of its own motion the issue of statutory limitation, the fact remains that counsel’s assistance is indispensable for resolving conflicts and his role is necessary in order for the rights of the defence to be exercised. Furthermore, it does not appear from the judgment of 4 October 1993 (see paragraph 17 above) that any ruling was given on the issue.", "36. In conclusion, there has been a violation of Article 6 § 1 taken together with Article 6 § 3 (c) of the Convention. II.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. Mrs Van Geyseghem claimed 4,332,000 Belgian francs (BEF) in compensation for the pecuniary damage arising from the loss of her position as a nursery nurse and from having to live abroad in order to retain her freedom to come and go and thus avoid the consequences of the violation of the Convention.", "She also claimed BEF 2,000,000 for non-pecuniary damage arising from (a)being unable to defend herself in the courts and justify herself in society’s eyes; (b)suffering social obloquy following her conviction; (c)having to cease her social activities in Belgium; (d)being unable to lead a regular family and private life, given the geographical distance separating her from her family and friends; and (e)being in permanent fear of arrest and extradition to Belgium. 39. The Government submitted that there was no causal link between the alleged violation and the pecuniary damage allegedly sustained. In any event, the expenses incurred as a result of the applicant’s absconding should not be taken into account. The Convention did not confer a right to evade justice.", "40. Like the Delegate of the Commission, the Court considers that it cannot speculate as to the conclusion the Court of Appeal would have reached if it had granted the applicant leave to appear by counsel. Furthermore, no causal link has been established between the violation of the Convention found in this case and the various heads of the alleged pecuniary damage (due, in part, to the applicant’s absconding). The claims under this head must therefore be dismissed. As regards the alleged non-pecuniary damage, the Court considers that it has been sufficiently compensated by the finding of a violation of Article 6.", "B.Additional claim 41. The applicant requested an undertaking from the Belgian State not to enforce the sentence passed on her by the Brussels Court of Appeal. A pardon could discharge the sentence, while maintaining the conviction. 42. The Court points out that the Convention does not give it jurisdiction to require any such undertaking from the Belgian State.", "C.Costs and expenses 43. Mrs Van Geyseghem claimed the following amounts in respect of costs and expenses: (a)BEF 312,781 for the proceedings in the Court of Appeal to set aside its earlier judgment, the proceedings in the Court of Cassation and the proceedings before the Commission; and (b)BEF 100,000 for her legal assistance before the Court. 44. The Government did not express a view. The Delegate of the Commission wished to leave the matter to the Court’s discretion.", "45. If the Court finds that there has been a violation of the Convention, it may award the applicant not only the costs and expenses incurred before the Strasbourg institutions, but also those incurred in the national courts for the prevention or redress of the violation (see, among other authorities, the Hertel v. Switzerland judgment of 25 August 1998, Reports of Judgments and Decisions 1998-VI, p. 2334, § 63). In the instant case the Court finds that the applicant did not incur such costs and expenses in the Court of Appeal. That part of her claim must therefore be dismissed. However, Mrs Van Geyseghem is entitled to seek payment of the costs and expenses of the proceedings in the Court of Cassation in addition to those of the proceedings before the Commission and the Court.", "Under those heads the Court, making its assessment on an equitable basis in the light of the information before it, awards Mrs Van Geyseghem BEF 300,000. D.Default interest 46. According to the information available to the Court, the statutory rate of interest applicable in Belgium at the date of adoption of the present judgment is 7% per annum. FOR THESE REASONS, THE COURT 1.Holds by sixteen votes to one that there has been a breach of Article 6 §§ 1 and 3 (c) of the Convention; 2.Holds unanimously that the present judgment constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered; 3.Holds unanimously that the respondent State is to pay the applicant, within three months, 300,000 (three hundred thousand) Belgian francs for costs and expenses, on which sum simple interest at an annual rate of 7% shall be payable from the expiry of the above-mentioned three months until settlement; 4.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 21 January 1999.", "Luzius Wildhaber President Michele de Salvia 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)joint concurring opinion of Mr Wildhaber, Mrs Palm, Mr Rozakis, Mr Türmen and Mr Bîrsan; (b) concurring opinion of Mr Bonello; (c) dissenting opinion of Mr Pellonpää. L.W. M. de S. joint CONCURRING OPINION OF JUDGEs wildhaber, palm, ROZAKIS, tÜrmen and bÎrsan We voted in favour of a violation of Article 6 § 1 combined with Article 6 § 3 (c) of the Convention in this case because we believe that the Brussels Court of Appeal did not allow the applicant to be represented by a lawyer before that court on a matter where a point of law was at issue and where the presence of a lawyer was more indispensable than the presence of the accused person herself. To our minds, that was the only issue in this case that raised a problem of conformity of the national proceedings with the requirements of Article 6 and we are not therefore prepared to accept the more general approach which transpires from paragraph 34 of the Court’s judgment, where it is implied that Article 6 may allow an accused person to be absent if he or she is duly represented by a lawyer during criminal proceedings. We think that such a conclusion is unwarranted for all those cases where the presence of an accused person is necessary for the good administration of criminal justice.", "Concurring Opinion of Judge Bonello I voted with the majority for a finding of violation of Article 6, but reached that conclusion via a more radical approach. The point of departure of this opinion is that the presence of a defendant during his trial is basically his right, not his obligation[5]. In this case, as in its previous case-law, the Court has presided over a cheerless metamorphosis of a fundamental right into a crushing duty[6]. What the Convention sets forth as the accused’s privilege has been alchemised into a debt due by the defendant to the State. With the baneful consequence that an accused may be denuded of his defence if he chooses to exercise his privilege not to attend his trial or appeal.", "Article 6 § 3 (c) heralds the fundamental right of the accused “to defend himself in person or through legal assistance of his own choosing”. The Convention offers a choice to the person accused: to secure his defence either in person or through legal support. The Belgian system has erased this choice. On appeal, the defendant must defend himself in tandem with his lawyer, or not defend himself at all. That system has hijacked from the defendant the options which the Convention devolves exclusively on him.", "The State acts as the prosecutor of the defendant, and also believes itself to be the sole arbiter of his choice of defence. Article 6 § 3 (c) is meant to bestow on the defendant an alternative between two possible courses, both tending to maximise his best defence (and the promotion of the accused’s “best defence” is an imperative constituent of the right to a fair hearing). He may opt to exercise that right either by appearing in court or by not appearing; in the first alternative, he may elect to conduct his own defence, or engage the services of a professional lawyer. In the second, the Convention allows his defence to be undertaken by a lawyer of his choice. The Belgian Court of Appeal, in a pleading meant essentially to scrutinise a technical dispute (time-bar of the criminal action), refused the guiding hand of a professional lawyer, for the sole reason that the applicant had not attended the hearing.", "It rejected the profitable and the constructive, because of the absence of the unhelpful and the superfluous. I enquire if the interests of a fair hearing would have been better served by allowing the applicant’s lawyer to plead his brief, or, as happened in this case, by dismissing the appeal without any hearing at all. I have but little doubt that, discharging the appeal without any hearing was massively more destructive to the well-being of a fair trial than hearing pleadings in the absence of the accused. I am puzzled and disturbed by an appeal system that, in substance, endures convictions to stand in absentia, but proscribes defence or acquittals in absentia. The weighting against the defendant appears manifestly too overbearing.", "That system allows a lot to the defendant, except a defence. It is not questioned that the presence of the accused at his trial can be advantageous to the administration of justice. The arguments favouring the defendant’s presence have been skilfully expounded in the Government’s memorial, and I am sensitive to most of them[7]. One decisive consideration which the Government’s inventory however disregards is that, even if present, the defendant has an inalienable right to silence. For the purpose of generating those benefits to the administration of justice listed by the Government, a mute defendant is almost as productive as an absent defendant.", "This does not minimise the utility of the accused’s presence at his trial for the proper administration of justice, or challenge that it should be encouraged. What should be discouraged is the transfiguration of a privilege of the defendant into an onerous responsibility, which divests him of his right of defence should he choose not to exercise his fundamental right to attend. I part with the majority where it advocates a case-by-case approach, in which a balancing of interests between the rights of the defendant and those of the administration of justice is called for, according to the particular circumstances of each case. In my view, balancing the discordant interests of the individual and those of society is crucial in the application of various other provisions of the Convention, where the text itself explicitly demands such balancing[8]. In the fundamental right to be present at the trial, Article 6 § 3 (c) posits no such balancing, and any excursion into that equilibrating exercise would be both amiss and inadmissible.", "At best, balancing is subjective and therefore arbitrary. In this case it is also clearly ultra vires. I am generally unhappy with the doctrine of “implied limitations” of fundamental rights, and, in any case, I do not read any convincing “implied limitations” on the exercise of this particular right. The right of the defendant to be absent from his trial corresponds quite closely to his right to silence. If, in the name of the acknowledged benefits to the administration of justice, the accused’s presence at his trial were to be considered a prerequisite to any defence, substantially the same arguments could coerce him into renouncing his right to silence – in deference to those same interests of the administration of justice.", "In practice, I cannot foresee any case where, in a search for equilibrium between society’s interests and this particular fundamental right of the accused (even were any balancing legitimate), the latter should ever succumb to the former. And I see no utility in what are essentially specious distinctions between the accused’s absence in cases at first instance, and on appeal; nor in distinguishing appeals on facts from appeals on law. The Court, I believe, should have professed this forthrightly, pre-empting the possibility of future balancing exercises which may lead to findings in which the defendant’s right to be present at his trial becomes his tombstone. Dissenting Opinion of Judge Pellonpää I voted against finding a violation of Article 6 in the present case. I admit that the Brussels Court of Appeal’s decision of 13 September 1993 to refuse the applicant’s counsel leave to represent her may at first sight appear problematic from the point of view of Article 6 § 3 (c).", "That decision, however, should not be looked at in isolation, without regard to the proceedings as a whole and the purpose and function of the guarantees enumerated in paragraph 3 of Article 6. As stated by the (former) Court in the Artico v. Italy judgment of 13 May 1980, Series A no. 37, p. 15, § 32, the various rights guaranteed in paragraph 3 are “specific applications of the general principle stated in paragraph 1 of the Article”, with the consequence that “[w]hen compliance with paragraph 3 is being reviewed, its basic purpose must not be forgotten nor must it be severed from its roots”. Or, to quote the European Commission of Human Rights, the guarantees of Article 6 § 3 are “not an aim in themselves, and they must accordingly be interpreted in the light of the function which they have in the overall context of the proceedings” (Can v. Austria judgment of 30 September 1985, Series A no. 96, opinion of the Commission, p. 15).", "Sometimes a broad interpretation of paragraph 3 may be called for, if that is required in order to guarantee the fairness of the proceedings as a whole. Sometimes, however, it is not necessary to read into the specific provisions of paragraph 3 more than the words indicate, if a literal interpretation is sufficient from the point of view of the overall fairness of the proceedings. In assessing this overall fairness, one should not lose sight of considerations concerning the general function of criminal law and proceedings and the role of the various participants, including the accused, in such proceedings. The respondent Government advanced a number of reasons (see paragraph 31 of the judgment) which justify a system in which a person accused of serious offences is obliged to appear personally before the court. That not all the reasons are present in a particular case is not necessarily decisive for the assessment of the case under Article 6.", "As a general rule, such a system and the application of it are acceptable as long as the Convention does not guarantee as a human right an accused’s right to be absent from criminal proceedings against him or her. Correspondingly, as was stated in the Poitrimol case, “the legislature must ... be able to discourage unjustified absences” (see the Poitrimol v. France judgment of 23 November 1993, Series A no. 277-A, p. 15, § 35). Where this legitimate policy of discouraging unjustified absences is pursued, the rights of the defence must of course be taken into account. Even so, the position of the accused cannot be a consideration that unconditionally overrides all the other interests involved.", "In my view, this should be taken into account also in the interpretation of the specific guarantees contained in Article 6 § 3. If the proceedings against the applicant are assessed against this background, the first impression is that they were, as a whole, prima facie fair. After having been convicted in absentia on 10 December 1992, the applicant applied to set aside the conviction. This led to new first-instance proceedings conducted in the applicant’s presence and to a reduction of her sentence in the judgment of 7 May 1993. As this remained the final judgment, her sentence to three years’ imprisonment and fines resulted from fully adversarial first-instance proceedings.", "This is one – though not a decisive – difference between the present case and the Poitrimol case cited above and the cases of Lala v. the Netherlands and Pelladoah v. the Netherlands (judgments of 22 September 1994, Series A no. 297-A and B). Furthermore, the applicant had the possibility of appealing and she did appeal. As the applicant did not appear before the Court of Appeal, the court, in her absence, upheld the judgment of 7 May 1993. Unlike the situation in the cases just mentioned, the applicant also had a remedy against this judgment in absentia in that she could ask for it to be set aside.", "This she did. Again she did not appear before the court, nor did she adduce any evidence of reasons preventing her from attending in person. The question is whether in these circumstances the refusal of the Court of Appeal to grant the applicant’s counsel, who appeared before the court, leave to represent her amounts to a violation of Article 6 § 3 (c) read in conjunction with paragraph 1 of that Article. In this respect it is of importance that even at the appeal level the applicant had two possibilities of presenting her case. By being present, as required by Belgian law, on one of the two occasions, she would have been able to enjoy the right to be assisted in accordance with Article 6 § 3 (c).", "She would also have had the possibility of being granted that right if she had adduced evidence of force majeure preventing her from attending in person. The applicant, however, is in effect claiming on the basis of the Convention not just a right to be assisted but rather a right to be absent from criminal proceedings and the corollary right to be defended in such proceedings by a representative. Although in specific circumstances fairness requires that such representation be allowed, as a general rule neither Article 6 § 3 (c) (which refers to “assistance”) nor any other provision of the Convention guarantees such a right. In view of this and of the fact that the Belgian system afforded the applicant ample opportunity to enjoy all the benefits of Article 6, I conclude that the system as applied in her case did not violate that Article. I voted in favour of the conclusion that the judgment constitutes in itself just satisfaction for the claim based on alleged non-pecuniary damage.", "The reason for that vote was that, in accordance with my earlier conclusion, I do not consider that there has been any non-pecuniary damage. I also voted with the majority as regards the award for costs and expenses. Since the majority has found a violation, I consider it proper that the applicant should be compensated for her legal expenses. [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]Notes by the Registry 1.", "Protocol No. 9 came into force on 1 October 1994 and was repealed by Protocol No. 11. [3]2. Rules of Court B, which came into force on 2 October 1994, applied until 31 October 1998 to all cases concerning States bound by Protocol No.", "9. [4]1. 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.", "See the opinion of the Commission in the case of Colozza and Rubinat v. Italy, appended to the judgments of 12 February 1985, Series A no. 89, p. 29, § 118, and the Ekbatani v. Sweden judgment of 26 May 1988, Series A no. 134, p. 12, § 25. [6]2. Notably in the Poitrimol, Lala and Pelladoah judgments referred to by the Court.", "[7]1. Paragraphs 21 to 25. [8]2. For example, Articles 8 § 2, 9 § 2, 10 § 2, 11 § 2." ]
[ "THIRD SECTION CASE OF USTA AND OTHERS v. TURKEY (Application no. 57084/00) JUDGMENT STRASBOURG 21 February 2008 FINAL 07/07/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Usta and Others v. Turkey, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Boštjan M. Zupančič, President,Corneliu Bîrsan,Rıza Türmen,Elisabet Fura-Sandström,Alvina Gyulumyan,David Thór Björgvinsson,Ineta Ziemele, judgesand Santiago Quesada, Section Registrar, Having deliberated in private on 31 January 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "57084/00) 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 three Turkish nationals, Mrs Fatma Usta, Mr Hüseyin Usta and Ms Hacer Bakkal Usta (“the applicants”), on 3 January 2000. 2. The applicants were represented by Mr Ali Yaşar, a lawyer practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. 3.", "The applicants alleged, in particular, that there had been a violation of Article 2 on account of the unlawful killing of their relative, Mr Taşkın Usta, by police officers. 4. On 3 November 2005 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the killing of the applicants’ relative to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE A. The facts as submitted by the parties 5. The applicants were born in 1938, 1938 and 1964 respectively and live in Istanbul. The first two applicants are the parents and the third applicant is the wife of Mr Taşkın Usta, who was shot dead by police officers at a flat in the Kadıköy district of Istanbul on 17 April 1992. 1.", "The killing of Taşkın Usta 6. According to the facts established by the Kadıköy public prosecutor, on 16 April 1992 following the receipt of an anonymous phone call stating that THKP‑C militants were preparing an assault, police officers of the anti‑terror branch of the Istanbul Security Directorate arrived, at around 11.00 p.m., in Çiftehavuzlar Cezmi Or Street, in the Kadıköy district of Istanbul. After securing the surroundings of an apartment building, the police officers knocked on the door of a flat on the 12th floor of the building, in the presence of the building manager and asked the suspects to open the door in order to check their identities. One of the suspects opened the door an inch and closed it immediately stating that he would bring the identity papers. The suspects then proceeded to hang the flag of the illegal organisation from the window of the flat and to shout slogans.", "They also set fire to some furniture in the flat. At that point the police were unaware of the number of suspects. An ambulance was brought to the scene. The suspects were told to surrender themselves and to open the door of the flat. 7.", "However, the occupants of the flat refused to do so and opened fire. At this point, a team headed by Mr R.A., decided to enter the flat by force. At 2.30 a.m. the police tried to open the steel front door using an explosive material called cortex. A clash broke out between the three suspects, including Taşkın Usta and the police officers Mr R.A., Mr A.D., Mr I. S., Mr A.T, Mr A.U., Mr M.B.A, Mr A.Ç and Mr A.T. as a result of which Taşkın Usta and two other suspects died and Mr. I.S. was injured.", "8. The police officers then searched the flat and found nineteen different types and calibres of pistols, two hand grenades, cartridge clips, silencers, wigs, twenty-four percussion bombs, three wirelesses and a number of cartridges. Following the ballistic examination of the guns, it appeared that one of the pistols had previously been extorted from a night guard, K.T., in Eyüp district. 9. The Kadıköy public prosecutor started an investigation into the events surrounding the circumstances in which Taşkın Usta and the two other suspects met their death.", "He took statements from all police officers who were on duty on the day of the incident. 10. On 18 April 1992 an autopsy was carried out on the deceased by forensic experts at the Istanbul Cerrahpaşa Medical Faculty. According to the report, the body of Taşkın Usta bore forty-five bullet entry wounds, thirteen of which were fatal. The report concluded that nine of the shots had been fired at a long range but that a further examination needed to be conducted on the clothes of the deceased in order to determine the shooting range of the others.", "The report also stated that, according to the toxicology report, no foreign substance, such as alcohol or drugs, had been found in Taşkın Usta’s blood sample. The cause of death was determined as a fractured skull and ribs, internal bleeding and cerebral haemorrhage. 11. In a ballistics report dated 28 April 1992, prepared by the criminal police laboratory following the examination of the pistols and cartridge cases collected from the scene, it appeared that the 141 Parabellum type 9 mm calibre cartridges, two Browning type 9 mm calibre cartridges and four Magnum type 44 calibre cartridges had been fired from the pistols of the deceased. 12.", "On 18 May 1992 the Forensic Institute issued a report concerning the shooting ranges subsequent to the examination of the deceased’s clothes. The report concluded that the shots had been fired from a long distance. 13. Between 18 January 1993 and 31 January 1995 a number of public prosecutors took statements from police officers who were on duty on 16 and 17 April 1992. 2.", "Criminal proceedings against the police officers 14. On 18 April 1995 the Kadıköy public prosecutor filed a bill of indictment with the Kadıköy Assize Court against nineteen police officers who took part in the operation. The charges were brought under Articles 450 § 5, 463, 251, 281, 49 § 1, 31 and 33 of the Criminal Code. The defendants were accused of manslaughter without the actual offender being identified. With an additional indictment of 28 March 1996 three other police officers were also charged with the same offence.", "15. At the first hearing held on 15 June 1995, the Kadıköy Assize Court decided to conduct the proceedings in camera given that a fight had broken out in the court room. 16. On 3 June 1996 the Court of Cassation decided to transfer the case to the Kayseri Assize Court for security reasons. The criminal proceedings were conducted before the latter court which heard oral evidence from the accused police officers and witnesses.", "The accused claimed that the operation had been conducted in accordance with the law and that they had been compelled to use weapons since the militants had opened fire on them. 17. On 13 July 2001 Kayseri Assize Court acquitted the police officers of all charges. In its decision, the court, referring to the evidence in the case‑file, (i.e. ballistics reports, incident report, firearms and bombs found in the flat, photographs taken after the incident, witness statements) found that the police officers had done everything in their power to capture the deceased alive and that they had fired their weapons only after the deceased had opened fire and for self-defence.", "It stated, inter alia, that the operation had lasted for more than nine hours and that throughout this time the police officers had repeatedly ordered the deceased to surrender. Relying on the evidence given by the witnesses and considering the mindset of the police officers during the operation, the court concluded that the police officers had had no intention to kill the militants since they had brought an ambulance to the scene of the incident before the operation and had asked them to surrender by megaphone several times. The police officers had opened fire only after the deceased had started firing on them. With reference to the ballistics report issued by the Forensic Institute, the court also found that the deceased had discharged 700 bullets and the police officers had discharged 420 bullets. It therefore opined that both parties had been equally armed during the clash and that they had both fired on each other.", "18. On 19 June 2002, the Court of Cassation quashed the judgment of 13 July 2001 on the grounds that there were procedural defects in the investigation. It noted in particular that the accused S.K. and A.T., whose defence submissions had been obtained by a rogatory judge, had not been asked whether they wished to be absent at the hearing. Furthermore, the first instance court had not given any response to the intervention request in so far as it concerns the accused A.Ç., S.T.", "and Y.K. 19. On 21 October 2003, having remedied the procedural defects in the investigation, the Kayseri Assize Court again acquitted the police officers. The court found that the police team which carried out the operation had repeatedly asked the persons in the flat to surrender. However the deceased had shouted slogans and hung a flag of the organisation from a window.", "Then they had started a fire in the flat and opened fire on the police officers, following which a team led by R.A. had decided to enter the flat considering that the militants would not surrender. The police team had opened the flat door using an explosive. The militants had started firing on the police officers and the clash which followed had resulted in the death of the three militants. The police officers had found a number of documents belonging to the illegal organisation, weapons, ammunition and partly burned banknotes at the scene of the incident. The evidence submitted by the parties led the court to conclude that the police officers had acted in self‑defence.", "The fact that the operation had started at 11 p.m. and ended next day at 8 a.m. and that the militants had repeatedly been asked to surrender indicated that the police officers had had no intention to kill. The court attached importance to the fact that the police officers’ statements were consistent as regards the course of events. 20. On 25 July 2005 the Court of Cassation upheld the above judgment. 3.", "Civil proceedings brought by and against the applicants 21. On 8 July 1992 the Pendik Magistrates’ Court declared the applicants legal heirs of Taşkın Usta. This decision became final on 9 July 1992. 22. On 20 September 1994 the Istanbul State Security Court ordered the confiscation of two cars and a flat registered under Taşkın Usta’s name pursuant to Article 36 of the Criminal Code.", "The applicants were a civil party to the proceedings and their objection to that decision was dismissed by the court on the ground that the impugned property belonged to and was used by the illegal organisation despite the fact that it was registered under the name of Taşkın Usta. 23. On 22 May 1996 the Court of Cassation upheld the first instance court’s judgment. a) Civil proceedings brought by the applicants 24. On 24 December 1997 the applicants filed an action with the Kadıköy Civil Court of First Instance (3rd Chamber) and requested the determination of the title to the confiscated flat and the two cars.", "25. On 24 June 1998 the first-instance court dismissed the applicants’ request holding that the applicants’ objections had already been dismissed by the State Security Court on the ground that the flat in question and the two cars were the property of the illegal organisation and that this decision had become final. On 2 March 1999 the Court of Cassation held a hearing and upheld the judgment of the first‑instance court. b) Civil proceedings brought against the applicants 26. On 31 October 1997 the Ministry of Treasury filed an action with the Kadıköy Civil Court of First Instance (2nd Chamber) and requested the annulment of the title-deed of the confiscated flat.", "27. On 28 October 1998 the first-instance court, considering that the legal consequence of a decision of confiscation was the transfer of property rights, annulled the title-deed of the confiscated flat and ordered it to be registered under the name of the Treasury. In its decision the court noted that the applicants’ representative had failed to attend the hearings and that the decision had been taken in his absence. 28. The applicants appealed against the judgment of the first-instance court.", "In their petition they submitted that the court had given a judgment without giving them the opportunity to prove their case and that it had not taken any decision as regards their request for an adjournment, submitted prior to the adoption of the judgment. 29. On 27 April 1999 the Court of Cassation held a hearing and upheld the judgment of the first-instance court. On 1 July 1999 the Court of Cassation dismissed the applicants’ request for rectification of its decision. This decision was notified to the applicants on 13 July 1999.", "B. The documents submitted by the parties 30. A booklet published by the THKP-C in July 1992 described the events of 16-17 April 1992 and contained transcripts of telephone conversation between G.Ş. and the deceased Sabahat Karataş, who was a board member and the wife of the leader of the illegal organisation. The booklet, which was entitled “Our flag will fly all around the country”, praised socialism and stated that Taşkın Usta and the other two deceased had resisted the fascist forces for eight and a half hours.", "According to the transcripts in the booklet, Sabahat Karataş and Eda Yüksel stated, as relevant, the following: “Sabo (Sabahat Karataş): Hello. They have surrounded the flat. I am together with two comrades. We have been keeping them busy for the last half an hour. We burned all documents in the bathroom.", "... They will start firing soon. We are going to fight. We will join ... the martyrs of 12 July. My comrade wants to talk to you.", "Eda: We will become martyrs for the fighters of Devrimci Sol and the people of Turkey. We are fine, very calm. As our comrades who embraced the death with a smile on 12 July in Kızıldere, we will also meet the death smiling and fighting... Sabo: I was wounded in my arm. A bullet entered and exited. I can still fire.", ".. Eda’s voice: Come with your tanks and cannons, cowards... Sabo: They are trying to open the door with a bomb. We can’t come closer as the telephone is by the door. We are going back. They are entering... Sabo: We are embracing death with guns in our hands and slogans.... Goodbye... Intense gunfire can be heard on telephone...” 31. The survey and assessment report dated 17 April 1992 described the course of events leading to the killing of the three militants and listed the guns, ammunition and the materials found in the flat.", "The report also described the bodies of the deceased found in one of the rooms. It stated that a sketch map of the scene of the incident had been drawn and photos had been taken by the police officers. The sketch map indicated the positioning of the bodies. 32. The post-mortem examination report dated 17 April 1992 contained a detailed account of the examination conducted on the bodies of the deceased.", "It indicated the number and location of the wounds and injuries on the corpses. 33. The incident report dated 18 April 1992 described the state of the flat where the clash took place. 34. The autopsy report dated 18 April 1992, prepared by six specialist doctors from the Cerrahpaşa Medical Faculty, stated that the death of Taşkın Usta had been caused by bullets which shattered his internal organs.", "According to the report, seven 9 mm. bullets had been extracted from the body of Taşkın Usta. 35. The ballistics report, prepared by a specialist from the Regional Criminal Police Laboratory, gave a detailed account of the examination carried out on the weapons and bullets used at the scene of the incident. The report also indicated the type and number of bullets discharged from each pistol.", "36. Between 17 April 1992 and 29 April 1992 the Kadıköy public prosecutor took witness statements from eighteen persons, including the second applicant and the residents of the building, as regards the killing of the THKP-C militants. The witnesses, except the second applicant, stated in general that the terrorists had refused to surrender to the police, started a fire in the flat and had opened fire on the police following which a clash had occurred. The clashes had caused the killing of the three suspects and the wounding of a police officer. 37.", "In a report dated 18 May 1992, the Physics and Ballistics Department attached to the Istanbul Forensic Medicine Institute issued a report concerning the range of the shootings subsequent to the examination of the clothes of the deceased. The report concluded that long range shootings had caused the death of the deceased. 38. The autopsy report dated 20 May 1992 indicated the entry and exit location of the bullets on the body of Taşkın Usta and concluded that death had been caused by bullets which shattered internal organs and broken the ribs and the skull of the deceased. The report gave a detailed account of the external and internal examination conducted on the body.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 39. A description of the relevant domestic law at the material time and international law can be found in Erdoğan and Others v. Turkey (no. 19807/92, §§ 51-58, 25 April 2006). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 40. The applicants complained that the killing of Taşkın Usta had violated Article 2 of the Convention, which reads as follows: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.", "Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. Admissibility 41. The Court notes that the remainder of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. Submissions of the parties 42. The applicants alleged that police officers could have captured Taşkın Usta alive. In their opinion, if he was known to be a terrorist, as alleged by the Government, the police officers should have apprehended him prior to the incident which led to his killing. Alternatively, given that his address was known to the police, they could also have arrested him during the day when he went out of his flat.", "43. The Government submitted that the police officers had acted on receipt of information that there were terrorists in the flat in question and that the operation had been planned in order to minimise the use of lethal force. They noted that the police had used firearms acting in self-defence and in accordance with the requirements of the Law and Regulation on Duties and Powers of the Police. In their view, the death of Taşkın Usta resulted from a use of force which was no more than absolutely necessary. It was also established by the domestic courts that the police officers had started firing only after the deceased had opened fire and in order to protect themselves.", "Furthermore, the authorities had carried out an adequate and effective investigation into the impugned events. 2. The Court’s assessment (a) As to the alleged violation of the right to life of Taşkın Usta i. General principles 44. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted (see Velikova v. Bulgaria, no.", "41488/98, § 68, ECHR 2000-VI). 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 (see Salman v. Turkey [GC], no. 21986/93, § 97, ECHR 2000‑VII). 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 McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no.", "324, pp. 45-46, §§ 146-47). 45. 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 within its internal legal order to safeguard the lives of those within its jurisdiction (see Kiliç v. Turkey, no. 22492/93, § 62, ECHR 2000-III).", "This involves a primary duty on the State to secure the right to life by putting in place an appropriate legal and administrative framework 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. 46. The text of Article 2, read as a whole, demonstrates that paragraph 2 does not primarily define instances where it is permitted to intentionally kill an individual, but describes situations where it is permitted to “use force” which may result, as an unintended outcome in the deprivation of life. The use of force, however, must be no more than “absolutely necessary” for the achievement of any of the purposes set out in subparagraphs (a), (b) or (c). In this respect the use of the term “absolutely necessary” in Article 2 § 2 indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraph 2 of Articles 8-11 of the Convention.", "In particular, the force used must be strictly proportionate to the achievement of the aims set out in the subparagraphs of the Article (see McCann and Others, cited above, p. 46, §§ 148-9). 47. In this connection, the Court reiterates that it 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 facts, 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 facts for that of the domestic courts and as a general rule it is for those courts to assess the evidence before them.", "Though the Court is not bound by the findings of domestic authorities, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those authorities (see, mutatis mutandis, Klaas v. Germany, judgment of 22 September 1993, Series A no. 269, p. 18, §§ 29-30). 48. However, the central importance of the protection afforded under Article 2 is such that the Court is required to subject allegations of breach of this provision to the most careful scrutiny, taking into consideration not only the actions of the agents of the State who actually administered the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination even where domestic proceedings and investigations have already taken place (see Erdoğan and Others, cited above, § 71). ii.", "Establishment of the facts 49. The Court notes that it is undisputed between the parties that Taşkın Usta was shot dead by the police officers in the course of a clash between the latter and the THKP‑C militants. However, the parties disagreed on the account of the events leading to the killing of Taşkın Usta. The applicants alleged that the police officers arrived at the scene of the incident in order to kill Taşkın Usta and his two friends although he could have been apprehended prior to the events. The Government, on the other hand, claimed that Taşkın Usta and his two friends had refused to surrender and had opened fire.", "The Government contended that they had died as a result of an armed clash during which the police officers acted in self‑defence and in compliance with Law no. 2559 on the duties and legal powers of police. 50. The Court observes that a judicial determination of the facts took place in the course of the criminal proceedings brought against the police officers before the Kayseri Assize Court. Even if certain facts remain unclear, the Court considers, in the light of all the material produced before it, that there is a sufficient factual and evidentiary basis on which to assess the case, taking as a starting point the findings of the national court (see Makaratzis v. Greece [GC], no.", "50385/99, § 47, ECHR 2004‑XI; and Perk and Others v. Turkey, no. 50739/99, § 57, 28 March 2006). iii. Application in the present case 51. The Court notes that Taşkın Usta was killed in the course of an anti-terrorist operation conducted by police officers from the anti-terror branch of the Istanbul Security Directorate.", "Having regard to the material in its possession, it does not find it sufficiently established that the police officers acted from the outset with aim of killing Taşkın Usta and his two friends. 52. As regards the legal framework defining the circumstances in which law enforcement officials may use force and firearms, the Court recalls that it has already held that the applicable legislation at the time of the incident, namely Law no. 2559, enacted in 1934, would not appear sufficient to provide the level of protection “by law” of the right to life that is required in present-day democratic societies in Europe (see Erdoğan and Others, cited above, § 77 and Makaratzis, cited above, § 59). In this connection, it is to be noted that by virtue of Article 17 of the Constitution recourse to lethal force can only be justified “in case of absolute necessity authorised by law”.", "Thus, in the Court’s view, the difference between the national standard and the standard of Art 2 of the Convention is not sufficiently great that a violation of Art 2 § 1 could be found on this ground alone (see McCann and Others, cited above, p. 47, §§ 154-155). 53. In carrying out its assessment of the planning and control phase of the operation from the standpoint of Article 2 of the Convention, the Court must have particular regard to the context in which the incident occurred as well as to the way in which the situation developed (see Andronicou and Constantinou v. Cyprus, judgment of 9 October 1997, Reports of Judgments and Decisions 1997‑VI, § 182). 54. In this connection, the Court notes that the police officers arrived at the scene of the incident following an anonymous phone call on 16 April 1992 according to which members of an illegal organisation were preparing an assault in the Kadıköy district of Istanbul (see paragraph 6 above).", "Accordingly, this was an emergency situation which required the security forces to act with great rapidity. 55. Referring to the findings of the Kayseri Assize Court, the Court observes that, in the circumstances of the case, the use of force by the security forces was the direct result of the unlawful violence emanating from the deceased suspects. In this respect, it recalls that the police officers arrived at the scene of the incident, secured the surroundings of the flat and asked the suspects to open the door to carry out an identity check. However, the suspects proceeded to shout slogans through the window, displayed the flag of an illegal organisation and opened fire on the police officers.", "Consequently, the operation in question must be considered to have been effected “in defence ... from unlawful violence” and “in order to effect a lawful arrest” within the meaning of Article 2 § 2 of the Convention. 56. The Court must therefore determine whether the use of force in the instant case was no more than absolutely necessary and strictly proportionate to the achievement of the aforementioned aims. 57. The Court notes that the Kayseri Assize Court found it established, on the basis of the evidence before it, that the first gunshot came from the deceased.", "As the statements of the eye witnesses demonstrate, the police officers repeatedly asked the suspects to surrender and gave the necessary warnings before shooting and they started shooting only after being fired at (see paragraphs 6, 7, 17, 19 and 36 above). 58. The Court notes also that when the police officers were confronted with gunfire from the suspects, they believed that it was necessary to return fire until the suspects ceased firing (see Perk and Others, cited above, § 68). In this connection, the Court finds it significant that, according to the ballistic examination reports, the deceased had discharged 700 bullets and the police officers had discharged 420 bullets and that the police officers’ shots had all been fired at long range (see paragraphs 17 and 37 above). Furthermore, the fact that the operation lasted nine hours and that the police authorities brought an ambulance to the scene of the incident indicate that the operation was conducted with a view to apprehending the suspects and that measures were taken to provide any necessary medical assistance.", "59. The Court further considers that it is not necessary to speculate on the question of the possibility to use non-lethal methods by the security forces in order to arrest the deceased. In this connection, it recalls that in the cases of Andronicou and Constantinou and Perk and Others, where the applicants’ relatives had been killed as a result of use of force by the security forces, it held that it could not with detached reflection substitute its own assessment of the situation for that of the officers who were required to react in the heat of the moment. The Court further considered that to hold otherwise would be to impose an unrealistic burden on the States and their law‑enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and the lives of others (see Andronicou and Constantinou, cited above, § 192; and Perk and Others, cited above, § 72). It sees no reason to reach a different conclusion in this case, where a violent confrontation took place between the parties and the police officers had to act in self-defence when confronted with three armed suspects.", "60. The Court considers therefore that the use of lethal force in the circumstances, however regrettable it may have been, did not exceed what was “absolutely necessary” for the purposes of self-defence and effecting a lawful arrest and did not amount to a breach by the respondent State of their obligations under Article 2 § 2 (a) of the Convention. 61. It follows that there has been no violation of Article 2 of the Convention as regards the killing of Taşkın Usta. (b) As to the alleged inadequacy of the investigation i.", "General principles 62. The Court has already held 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, with the purpose of securing the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. 63. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see Güleç v. Turkey, judgment of 27 July 1998, Reports 1998-IV, §§ 81-82; and Oğur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999-III).", "This means not only a lack of hierarchical or institutional connection but also a practical independence (see, for example, Ergi v. Turkey, judgment of 28 July 1998, Reports 1998-IV, §§ 83-84). 64. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances (see Kaya v. Turkey, judgment of 19 February 1998, Reports 1998‑I, p. 324, § 87) and to the identification and punishment of those responsible (Oğur, cited above, § 88). This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death (see, concerning autopsies, Salman, cited above, § 106, concerning witnesses, Tanrıkulu v. Turkey [GC], no.", "23763/94, § 109, ECHR 1999-IV; concerning forensic evidence, Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard. 65. A requirement of promptness and reasonable expedition is implicit in this context (see Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998‑VI, pp.", "2439-2440, §§ 102-104; Çakıcı v. Turkey [GC], no. 23657/94, §§ 80-87 and 106, ECHR 1999-IV; Tanrıkulu, cited above, § 109; and Mahmut Kaya v. Turkey, no. 22535/93, §§ 106-107, ECHR 2000-III). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Avşar v. Turkey, no.", "25657/94, § 395, ECHR 2001‑VII (extracts)). ii. Application in the present case 66. The Court observes a comprehensive investigation has indeed been carried out by the authorities into the circumstances surrounding the killing of the three suspects. In this connection, it notes that immediately after the impugned incident, an incident report and a survey report describing the course of events and the state of the flat were prepared by the police officers (see paragraph 31 and 33 above).", "A sketch map of the flat which indicated the positioning of the deceased’s bodies was drawn up and photos were also taken (ibid.). The weapons used in the clash and the cartridges retrieved from the scene of the incident were subjected to ballistics examination. The cartridges discharged from every weapon had been identified and the range of the shootings also been determined subsequent to the examination of the clothes of the deceased (see paragraphs 35 and 37 above). Furthermore, six forensic experts carried out a classic and comprehensive autopsy on the body of the deceased (see paragraph 34 above). 67.", "Nevertheless, the investigation at issue cannot be considered to be an effective one given the substantial delays. In this connection, the Court notes that the prosecuting authorities waited for more than eight months to take statements from police officers who took part in the operation and that it took them more than two years to complete this exercise (see paragraph 13 above). The Kayseri Assize Court, which took over the case‑file from the Kadıköy Assize Court, took more than seven years in reaching a final judgment in the proceedings against the accused police officers and another two years elapsed before the Court of Cassation (see paragraphs 16-20 above). 68. In view of the foregoing, the Court considers that the proceedings in question, which lasted more than thirteen years, cannot be described as a prompt response by the authorities in investigating the alleged unnecessary and disproportionate use of force.", "Accordingly, given the delays in the criminal investigation and the overall duration of the proceedings, the Court concludes that there has been a violation of the State’s procedural obligation under Article 2 of the Convention. 69. There has therefore been a violation of Article 2 under its procedural limb. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 70.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 71. The applicants claimed 400,000 euros (EUR) in respect of pecuniary damage. They noted that this sum corresponded to the value of the flat and two cars confiscated by the authorities (see paragraph 22 above). Without specifying any sum, the applicants asked the Court to award them non‑pecuniary damage.", "72. The Government asked the Court to dismiss the applicants’ claims for just satisfaction. 73. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, having regard to its finding of a violation of Article 2 under its procedural limb (see paragraph 69 above) and ruling on an equitable basis, it awards the applicants EUR 10,000 jointly in respect of non-pecuniary damage.", "B. Costs and expenses 74. The applicants asked the Court to make an award for the costs and expenses incurred before the Court. 75. The Government contended that the applicants’ claim was unsubstantiated.", "76. 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 above criteria and the applicants’ failure to submit any quantified claim, the Court makes no award under this head. C. Default interest 77. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the remainder of the application admissible; 2. Holds that there has been no violation of Article 2 of the Convention as regards the killing of Taşkın Usta; 3. Holds that there has been a violation of Article 2 of the Convention under its procedural limb; 4. Holds (a) that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage, to be converted into New Turkish liras at the rate applicable at the date of settlement free of any taxes or charges that may be payable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage point; 5.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 21 February 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaBoštjan M. ZupančičRegistrarPresident" ]
[ "FIRST SECTION CASE OF MARCHENKO v. RUSSIA (Application no. 29510/04) JUDGMENT STRASBOURG 5 October 2006 FINAL 05/01/2007 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 Marchenko v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrsN.", "Vajić,MrA. Kovler,MrsE. Steiner,MrK. Hajiyev,MrD. Spielmann,MrS.E.", "Jebens, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 14 September 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 29510/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vladimir Aleksandrovich Marchenko (“the applicant”), on 9 August 2004. 2. The applicant was represented by Ms O. Mikhaylova, a lawyer practising in Moscow.", "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. The applicant complained, in particular, that the length of the proceedings in his case was excessive and that the proceedings were unfair. 4. On 4 March 2005 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 5. The applicant was born in 1951 and lives in the village of Timiryazevskoye in the Tomsk Region. 6. On 3 December 1997 the applicant sued the Tomsk central district hospital for damages caused by medical malpractice.", "7. On 1 March 1998 judge F. of the Tomsk District Court was assigned to the case. Between March 1998 and 22 April 1999 the Tomsk District Court held four hearings. 8. At the hearing of 22 April 1999 the applicant notified the District Court that his medical papers could have been forged and asked for an investigation into this issue.", "His request was granted. 9. The investigation was completed on 11 August 1999 and on 7 September 1999 the District Court received the expert report and held a hearing. 10. The following hearing was held on 8 December 1999.", "The applicant successfully asked the District Court to order a medical expert examination. The proceedings were stayed until 8 February 2000. 11. Of three hearings listed between 8 February and 22 March 2000, one hearing was adjourned because the applicant defaulted and one was adjourned upon the defendant's request. 12.", "Between July and September 2000 no hearings were listed because judge F. had resigned. Judge A. was assigned to the case. The examination of the case re-commenced. 13. On 19 September 2000 the District Court held a hearing.", "The court again ordered a medical examination and stayed the proceedings. After the proceedings had been resumed, a hearing was listed for 4 July 2001. It was, however, adjourned because the applicant wanted to amend his claims. 14. The following hearing, listed for 4 August 2001, was adjourned due to dismissal of judge A.", "On 9 August 2001 the case was re-assigned to judge I. 15. From 9 August to 6 November 2001 no hearings were held because judge I. was on leave or the defendant did not attend on the day fixed. 16. The hearings listed for 6 and 12 November 2001 were postponed upon the applicant's request.", "17. At the following hearing of 29 November 2001 the applicant successfully challenged judge I. The case was re-assigned to judge K. 18. Of fourteen hearings listed between December 2001 and January 2003, one hearing was adjourned because the defendant did not attend, one was postponed due to the judge's illness, three hearings were adjourned because witnesses defaulted and seven were postponed due to the applicant's illness. 19.", "From 3 February to 7 April 2003 six hearings were held. It appears that each hearing lasted approximately three hours because the applicant did not feel well. 20. Of fourteen hearings fixed between 8 and 28 April 2003 five hearings were adjourned because the applicant was ill or wanted to call additional witnesses and study the case-file. 21.", "From May to 22 July 2003 no hearings were held because the judge was on leave. 22. Between 22 July and 8 August 2003 the District Court held thirteen hearings. The hearings lasted approximately three hours because the applicant provided the District Court with a medical report according to which he could not effectively participate in a hearing if it lasted more than three hours. 23.", "From 8 August 2003 to 20 January 2004 the Tomsk District Court did not fix hearings due to the defendant's requests and the judge's absence. 24. Eighteen hearings were held between 20 January and 19 March 2004. Each hearing lasted approximately three hours because the applicant felt ill and could not effectively participate. 25.", "On 19 March 2004 the Tomsk District Court of the Tomsk Region dismissed the applicant's action against the hospital as unsubstantiated. The applicant and his representative left the courtroom at the beginning of the hearing. 26. On 6 July 2004 the Tomsk Regional Court upheld the judgment on appeal. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE EXCESSIVE LENGTH OF THE PROCEEDINGS 27. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 28. The Court recalls that the proceedings commenced on 3 December 1997. However, the Court will only consider the period of the proceedings which began on 5 May 1998 when the Convention entered into force in respect of Russia. In assessing the reasonableness of the time that elapsed after that date, account must, nevertheless, be taken of the state of proceedings at the time.", "The period in question ended on 6 July 2004 with the final judgment of the Tomsk Regional Court. Thus the proceedings lasted approximately six years and seven months, of which six years and two months fall within the Court's jurisdiction ratione temporis, before two court levels. 29. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. Submissions by the parties 30. The Government argued that the length of the proceedings had been a product of the applicant's conduct.", "The applicant and his representative had successfully asked for the adjournment of sixteen hearings. Thirty-three hearings, listed between 7 and 28 April 2003, 22 July and 7 August 2003 and between 22 February and 19 March 2004, had been interrupted upon his request. The proceedings had also been stayed three times because the applicant had asked for expert examinations. The applicant had challenged the composition of the bench at least seven times. As regards the conduct of the domestic authorities, the Government submitted that there had been no periods of inactivity attributable to them.", "31. The applicant contested the Government's submissions. He argued that it had taken the domestic courts more than six years and seven months to examine his claims. Of that period, for more than six years and three months the proceedings had been pending before the District Court without any progress. It had often taken the District Court up to six months to fix hearings.", "The composition of the District Court had changed four times. Only once it had changed upon the applicant's request. Each time the District Court had had to re-commence the examination of the case. The applicant averred that expert examinations had been necessary. However, they had taken too much time and the District Court had not taken any steps to discipline the experts.", "2. The Court's assessment 32. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 33.", "The parties did not argue that the case was particularly difficult to determine. The Court has no reason to conclude otherwise. In any event, it takes the view that an overall period of more than six years and two months could not, in itself, be explained by the complexity of the case. 34. As to the applicant's conduct, the Court notes that the parties agreed that the applicant had only defaulted once, on 16 February 2000.", "Irrespective of the reasons for his absence, the delay incurred therefrom was negligible. The Court observes that five hearings were postponed because the applicant wanted to amend his claims, to call additional witnesses or to study the case-file. The Court reiterates that the applicant cannot be blamed for taking full advantage of the resources afforded by national law in the defence of his interests (see Sokolov v. Russia, no. 3734/02, § 38, 22 September 2005). 35.", "The Court observes that a delay of approximately ten months was caused by the postponement of at least eight hearings and the fact that the hearings in March, April, July and August 2003 and February and March 2004 lasted approximately three hours due to the applicant's poor health. In this respect, the Court notes that the applicant was represented in the course of the proceedings. Thus, although his efforts to ensure his own presence at the hearings for the best representation of his interests are understandable, the manner in which he exercised his procedural rights undoubtedly contributed to prolonging the proceedings. 36. The Government also indicated that on seven occasions the applicant had challenged the composition of the bench.", "The Court notes that in six cases the challenges were not successful and the delay resulting from one successful challenge on 29 November 2001 (see paragraph 17 above) only amounted to approximately three months. 37. As regards the conduct of authorities, the Court considers that the overall period less the period attributable to the applicant's conduct leaves the authorities accountable for approximately five years. In this respect the Court reiterates that only delays attributable to the State may justify a finding of failure to comply with the “reasonable time” requirement (see Des Fours Walderode v. the Czech Republic (dec.), no. 40057/98, ECHR 2004–V).", "38. The Court observes that the proceedings were stayed three times for preparation of expert opinions. The aggregated delay of approximately fourteen months resulted therefrom. The Court reiterates that the principal responsibility for a delay caused by expert examinations rests ultimately with the State (see Capuano v. Italy, judgment of 25 June 1987, Series A no. 119, § 32, and Antonov v. Russia (dec.), no.", "38020/03, 3 November 2005). However, no steps were taken to avoid delays and the District Court did not inquire into the progress of the experts' work. Accordingly, this period is imputable to the State. 39. Furthermore, the Court observes that a delay of approximately two years was caused by the two dismissals of the judges.", "Each time the dismissal took place, the proceedings re-commenced, which involved fixing of new hearings, re-hearing of the parties and re-examination of evidence. In this respect, the Court notes that Article 6 § 1 of the Convention imposes on Contracting States the duty to organise their judicial system in such a way that their courts can meet the obligation to decide cases within a reasonable time (see, among other authorities, Löffler v. Austria, no. 30546/96, § 57, 3 October 2000). Another aggregated delay of approximately four months was caused by the judge's absence. 40.", "Finally, the Court reiterates that the dispute in the present case concerned compensation for health damage allegedly resulting from medical malpractice. The Court is of the opinion that the nature of the dispute called for particular diligence on the part of the domestic courts. 41. Having regard to the overall length of the proceedings, what was at stake for the applicant and the fact the proceedings were pending for approximately six years and three months before the court of first instance, the Court concludes that the applicant's case was not examined within a “reasonable time”. There has accordingly been a violation of Article 6 § 1 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF UNFAIRNESS OF THE PROCEEDINGS 42. The applicant also complained under Articles 6 § 1 that the courts wrongly interpreted and applied the law and incorrectly assessed evidence in his case. 43. The Court reiterates that it is not a court of appeal from the domestic courts and that, as a general rule, it is for those courts to assess the evidence before them.", "The Court's task under the Convention is to ascertain whether the proceedings as a whole were fair (see, among many authorities, García Ruiz v. Spain [GC], no. 30544/96, §§ 28-29, ECHR 1999-I). On the basis of the materials submitted by the applicant, the Court notes that within the framework of the civil proceedings the applicant was able to introduce all necessary arguments in defence of his interests, and the judicial authorities gave them due consideration. His claims were examined at two levels of jurisdiction and dismissed as unsubstantiated. The decisions of the domestic courts do not appear unreasonable or arbitrary.", "44. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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 Court observes that on 1 July 2005 the applicant's representative was invited to submit by 9 September 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 applicant 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 applicant's case; 3. Holds that there is no call to award the applicant just satisfaction. Done in English, and notified in writing on 5 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]
[ "THIRD SECTION CASE OF ASONOV AND OTHERS v. RUSSIA (Applications nos. 11577/12 and 6 others - see appended list) JUDGMENT STRASBOURG 26 July 2018 This judgment is final but it may be subject to editorial revision. In the case of Asonov and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Alena Poláčková, President,Dmitry Dedov,Jolien Schukking, judges,and Liv Tigerstedt Acting Deputy Section Registrar, Having deliberated in private on 5 July 2018, 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 excessive length of their pre-trial 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 5 § 3 OF THE CONVENTION 6.", "The applicants complained principally that their pre-trial detention had been unreasonably long. They relied on Article 5 § 3 of the Convention, which read as follows: “3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 7. The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no.", "30210/96, § 110, ECHR 2000‑XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006‑X, with further references). 8. In the leading case of Dirdizov v. Russia, no. 41461/10, 27 November 2012, the Court already found a violation in respect of issues similar to those in the present case.", "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 applicants’ pre-trial detention was excessive. 10. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention.", "III. REMAINING COMPLAINTS A. Application no. 11577/12: complaints regarding conditions of detention 11. The Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the applicant in application no.", "11577/12 in respect of his complaint concerning poor conditions of detention under Article 3 of the Convention. They acknowledged the inadequate conditions of detention, offered to pay the applicants 5,000 euros and invited the Court to strike the application out of the list of cases in accordance with Article 37 § 1 (c) of the Convention. The amount would be converted into the currency of the respondent State at the rate applicable on the date of payment, and would be payable within three months from the date of notification of the Court’s decision. In the event of failure to pay that amount within the above-mentioned three-month period, the Government undertook to pay simple interest on it, from the 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 case no.", "11577/12 insofar as it concerned the complaint under Article 3 of the Convention. The applicant was sent the terms of the Government’s unilateral declaration several weeks before the date of this decision. The Court has not received a response from the applicant accepting the terms of the declaration. The Court observes that Article 37 § 1 (c) enables it to strike a case out of its list if: “... for any other reason established by the Court, it is no longer justified to continue the examination of the application.” Thus, it may strike out applications under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the cases to be continued (see, in particular, Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).", "The Court has established clear and extensive case-law concerning complaints relating to the inadequate conditions of detention (see, for example, Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012). Noting the admissions contained in the Government’s declaration as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of application no. 11577/12 in the part covered by the unilateral declaration (Article 37 § 1 (c)). In the light of the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application in that part (Article 37 § 1 in fine).", "Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application may be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008). In view of the above, it is appropriate to strike case no. 11577/12 out of the list as regards the complaints concerning the inadequate conditions of detention. B.", "Applications nos. 11577/12 and 53500/17: other complaints under the well-established case-law 12. In applications nos. 11577/12 and 53500/17 the applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground.", "Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Zubkov and Others v. Russia, nos. 29431/05 and 2 others, §§ 146-149, 7 November 2017, dealing with the lack of speedy review of the detention matters; and Idalov v. Russia (no. 2), no. 41858/08, 13 December 2016, concerning poor conditions of transport.", "IV. 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, Pastukhov and Yelagin v. Russia, no. 55299/07, 19 December 2013), the Court considers it reasonable to award the sums indicated in the appended table.", "15. 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. Takes note of the terms of the respondent Government’s declaration in application no.", "11577/12 covering inadequate conditions of detention and of the arrangements for ensuring compliance with the undertakings referred to therein; 3. Decides to strike application no. 11577/12 in the part covered by the Government’s unilateral declaration out of its list of cases in accordance with Article 37 § 1 (c) of the Convention and declares the remainder of that application, as well as the other applications listed in the appended table, admissible; 4. Holds that these applications disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention; 5. 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); 6.", "Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 26 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtAlena Poláčková Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 5 § 3 of the Convention (excessive length of pre-trial detention) No. Application no.Date of introduction Applicant name Date of birth Representative name and location Period of detention Length of detention Courts which issued detention orders/examined appeals Specific defects Other complaints under well‑established case-law Amount awarded for pecuniary and non‑pecuniary damage and costs and expenses per applicant (in euros)[1] 11577/12 12/01/2012 Yuriy Leonidovich Asonov 24/04/1959 10/12/2010 to 09/12/2011 1 year Leninskiy District Court of Vladivostok / Primorye Regional Court - fragility of the reasons employed by the courts; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; failure to assess the applicant’s personal situation reducing the risks of reoffending, colliding or absconding; failure to examine the possibility of applying other measures of restraint. Art.", "5 (4) - excessive length of judicial review of detention - lengthy examination of the detention order of 10/02/2011 (appeal on 24/02/2011); detention order of 08/06/2011 (appeal on 27/07/2011); detention order of 09/09/2011 (appeal on 19/10/2011) 1,500 30759/17 13/04/2017 Nikolay Vyacheslavovich Savelyev 01/12/1993 Stupin Yevgeniy Viktorovich Moscow 23/01/2017 pending More than 1 year and 4 months and 16 days Zyuzinskiy District Court of Moscow / Moscow City Court - fragility of the reasons employed by the courts; - use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; failure to assess the applicant’s personal situation reducing the risks of reoffending, colliding or absconding; failure to examine the possibility of applying other measures of restraint; failure to conduct the proceedings with due diligence during the period of detention 1,500 33534/17 21/03/2017 Aleksey Yevgenyevich Mishin 03/03/1991 18/09/2014 to 28/12/2017 3 years and 3 months and 11 days Supreme Court of the Tatarstan Republic -failure to assess the applicant’s personal situation reducing the risks of reoffending, colliding or absconding, particularly in view of the length and stage of the criminal proceedings; failure to examine the possibility of applying other measures of restraint, particularly in view of the length and stage of the criminal proceedings; failure to conduct the proceedings with due diligence during the period of detention 3,400 34526/17 24/04/2017 Renat Andreyevich Sabitov 24/06/1983 Sokalskiy Boris Borisovich Moscow 29/04/2015 pending More than 3 years and 1 month and 10 days Tverskoy District Court of Moscow / Moscow Regional Court -failure to assess the applicant’s personal situation reducing the risks of reoffending, colliding or absconding, particularly in view of the length and stage of the criminal proceedings; failure to examine the possibility of applying other measures of restraint, particularly in view of the length and stage of the criminal proceedings; failure to conduct the proceedings with due diligence during the period of detention 3,200 38325/17 10/05/2017 Viktor Gennadyevich Frolov 03/06/1966 25/09/2014 to 30/03/2017 2 years and 6 months and 6 days Sovetskiy District Court of Kazan / Supreme Court of the Tatarstan Republic -failure to assess the applicant’s personal situation reducing the risks of reoffending, colliding or absconding, particularly in view of the length and stage of the criminal proceedings; failure to examine the possibility of applying other measures of restraint, particularly in view of the length and stage of the criminal proceedings; failure to conduct the proceedings with due diligence during the period of detention. 2,700 53500/17 04/07/2017 Aleksandr Ivanovich Isayev 26/01/1963 Kuleba Aleksandr Petrovich St Petersburg 08/10/2015 to 27/09/2017 1 year and 11 months and 20 days Primorskiy District Court of St Petersburg / St Petersburg City Court / Smolninskiy District Court of St Petersburg - collective detention orders; fragility of the reasons employed by the courts; failure to examine the possibility of applying other measures of restraint; - failure to conduct the proceedings with due diligence during the period of detention. Art. 3 - inadequate conditions of detention during transport - transport by a special van from the detention facility to the Investigative Committee on 16/01/2017; detention in that van for 12 hours without any possibility to leave for the building of the Investigative Committee: extremely limited space; inadequate temperature; no access to toilet; no food or drinking water 2,600 58157/17 01/08/2017 Rafik Arturovich Petrosyan 25/01/1986 01/08/2016 pending More than 1 year and 10 months and 7 days Promyshlennyy District Court of the Stavropol Region / Stavropol Regional Court - fragility of the reasons employed by the courts; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; failure to assess the applicant’s personal situation reducing the risks of reoffending, colliding or absconding; failure to examine the possibility of applying other measures of restraint 2,100 [1]. Plus any tax that may be chargeable to the applicants." ]
[ "SECOND SECTION CASE OF YILDIRIR v. TURKEY (Application no. 21482/03) JUDGMENT (Merits) STRASBOURG 24 November 2009 FINAL 24/02/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Yıldırır 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 Sally Dollé, Section Registrar, Having deliberated in private on 3 November 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "21482/03) 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 national, Mr Zekeriye Yıldırır (“the applicant”), on 21 May 2003. 2. The applicant was represented by Mr E. Yücel, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent. 3.", "The applicant alleged, in particular, that the demolition of his house constituted a violation of Article 1 of Protocol No. 1. 4. On 3 June 2006 the President of the Second Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1939 and lives in Ankara. 6. On the basis of a construction permit obtained on 10 August 1976, Mr M.A.", "built a house in Boğazkurt, Ankara. The construction of the house and its annexes was completed in 1978. Mr M.A. planted trees around the house and regularly paid property tax to the authorities. The property in question was subsequently purchased by the applicant in 1996 (see paragraph 11 below).", "7. In the meantime, on 21 January 1981 the Ministry of Public Works and Settlement notified Mr M.A. that his construction permit had expired on 10 August 1980 and that he had not yet applied for a property utilisation permit. In this context, he was requested to provide a report proving that the utilisation of the property did not pose any threat to public health or to the environment. 8.", "On 30 January 1981 the Kızılcahamam district government doctor issued a report stating that the utilisation of the property in question did not pose any threat to public health and that its construction had been completed in compliance with the environmental regulations. 9. On 11 February 1981 that report was submitted to the Ministry. 10. On 10 May 1981 Mr M.A.", "filed an application with the Ankara Provincial Construction Directorate for the renewal of the construction permit. In response, the administration notified him on 21 May 1982 that his application was currently being dealt with. 11. On 18 July 1996 the applicant bought the property from Mr M.A. On the same day, the land registry office issued him a title deed attesting his ownership of the property.", "Furthermore, the village mayor (muhtar) certified in writing that the previous owner had been residing in the property in question since 11 August 1976. 12. On 11 November 1998 the Directorate of Public Works and Settlement of the Ankara Governorship notified the applicant that the construction on his land must be demolished as it had been completed in the absence of the required construction permit. 13. On 20 November 1998 the same directorate notified the following to the applicant: “The construction permit for the property was issued on 10 August 1976 and expired on 10 August 1980.", "An application for the renewal of the construction permit was not filed in time. The required property utilisation permit was not obtained either. The property is located in the absolute protection zone, which is the immediate zone within 300 metres of sources of drinkable water. According to the Law on Hygiene and the Regulation on the Prevention of Water Pollution, construction within 300 metres of sources of drinking water and their basin is prohibited. On 11 November 1998, for these reasons, an order for the cessation of construction was issued regarding the house.", "As the issue of a new construction permit is not legally possible in these circumstances, it is requested that the construction on your land be demolished; otherwise it shall be demolished following the adoption of a decision by the Ankara Administrative Council.” 14. On 5 January 1999 the Ankara Administrative Council issued a demolition order based on the reasons specified in the notification of the Directorate of Public Works and Settlement of the Ankara Governorship. 15. On 26 February 1999 the applicant sought the annulment of the demolition order, stating that the construction had been completed within two years after the required permit had been obtained, so that the issue of a new construction permit was never required. He further maintained that the previous owner had also applied for a property utilisation permit on 11 February 1981, attaching the requested documents to his application, but that the administration had never responded.", "16. In February 1999 the applicant brought an action before the Kızılcahamam Civil Court to have the legal status of his property determined. 17. On 16 February 1999 a committee of experts appointed by the court visited the location and subsequently issued a report stating that the house on the applicant's land had been constructed twenty years earlier. 18.", "On 22 September 1999 the Ankara Administrative Court decided that the demolition order issued by the administrative council had to be annulled, stating as follows: “The administration failed to prove the exact date of the beginning and completion of the construction in question. As it was not definite that the construction of the property still continued after the expiry of the relevant construction permit, it was not possible to decide on the legal status of the construction. In the action brought by the applicant for the determination of the legal status of the property, it was held that the house was constructed twenty years ago. Furthermore, in a notification issued by the Ankara Provincial Directorate it was stated that the applicant had applied for the renewal of the construction permit on 5 May 1981. Finally, the Law on Hygiene and Regulation on the Prevention of Water Pollution provides that constructions that are not in compliance with its provisions shall be discontinued, not demolished.” 19.", "On 29 March 2001, upon the administration's appeal, the Supreme Administrative Court quashed that judgment on the grounds that the applicant's house had been constructed after the relevant permit had expired. 20. On 6 March 2003 the Ankara Administrative Court followed the Supreme Administrative Court's decision and dismissed the applicant's action for the annulment of the demolition order. 21. On 21 April 2003 the Directorate of Public Works and Settlement of the Ankara Governorship notified the applicant that, pursuant to the Ankara Administrative Court's judgment of 6 March 2003, he must have his house demolished within thirty days of his receipt of the notification.", "22. On 26 May 2004 the applicant's house was demolished by the administration. II. RELEVANT DOMESTIC LAW AND PRACTICE 23. Section 10 of the now defunct Zoning Law No.", "6785 (6785 Sayılı İmar Kanunu, “Zoning Law”) provided that the period for beginning construction was one year from the date on which a permit was issued. In the event that construction had not started or had not been completed within four years, a new permit needed to be obtained. 24. Under section 16 of the Zoning Law the construction owner was required to obtain permission from the Municipality in order to use the building. A further approval was needed from the Medical Department, confirming that there was no obstacle to the building being used.", "The administration (governorship) was required to issue a permit to use the building within thirty days of the date of the application. The administration was deemed to have authorised the use of the completed or partly completed building in the event that it failed to reply within that time-limit. 25. The Turkish Civil Code contains the following provisions concerning the registration of immovable property and the rights upon it: Article 1007 § 1 “The State is responsible for any damage resulting from the keeping of land registry records... Cases involving the responsibility of the State are dealt with by the courts where the [property] was registered.” Article 1023 “The rights of third persons who acquire a property or right in rem, relying on the records of the land registry log book and in good faith, shall be protected.” 26. Section 12 of the Administrative Procedure Law (Law no.", "2577) reads as follows: “Any person who sustains damage as a result of an administrative act may directly bring an action for a full remedy or a joint action for annulment and full remedy before the Supreme Administrative Court or Administrative and Tax Courts. They may also first bring an action for annulment and then, upon its conclusion, bring an action for a full remedy for the damage resulting from the notification of the judgment or the execution of an act within the required time-limits...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 27. The applicant complained that he had been deprived of his property in circumstances which were incompatible with the requirements of Article 1 of Protocol No.", "1 to the Convention, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 28. The Government contested that argument. A. Admissibility 29.", "The Government submitted that the applicant had not exhausted all available domestic remedies as he had failed to bring an action for a full remedy (tam yargı davası) in the Ankara Administrative Court against the Ankara Governorship. A full-remedy action could have secured the annulment of the decision to demolish the building or, alternatively, could have provided the applicant with sufficient compensation for the property in question (see paragraph 26 above). 30. The applicant asserted that, in the absence of any favourable court decision, a full-remedy action would be doomed to failure. He therefore claimed that he had availed himself of all remedies in domestic law.", "31. The Court reiterates that under Article 35 § 1 of the Convention, recourse should normally 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 also in practice, failing which they will lack the requisite accessibility and effectiveness (see, inter alia, Vernillo v. France, 20 February 1991, § 27, Series A no. 198, and Johnston and Others v. Ireland, 18 December 1986, § 22, Series A no. 112).", "32. Furthermore, 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 in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government had in fact been used 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). 33.", "On the above understanding, the Court notes that the applicant could have brought an action for a full remedy in the Ankara Administrative Court using the procedure under section 12 of the Administrative Procedure Law. However, it points out that, in a judgment dated 6 March 2003, the same court had already dismissed the applicant's action for the annulment of the decision to demolish his house subsequent to the finding that the construction of the house in question in the area was unlawful (see paragraphs 19 and 20 above). In other words, the Ankara Administrative Court's final judgment paved the way for the demolition of the applicant's house (see paragraph 21 above). 34. In view of the above, the Court does not consider that an action for a full remedy, brought by the applicant in order to claim compensation for the loss sustained as a result of the demolition of his house, would have had any prospect of success in the circumstances of the case.", "In this connection, the Court notes that the Government have not furnished any administrative court decision demonstrating that one can successfully bring an action for a full remedy subsequent to an unfavourable decision in an action for annulment of an allegedly unlawful administrative act. In the light of the foregoing, the Court dismisses the Government's plea of non-exhaustion of domestic remedies. 35. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The parties' submissions (a) The applicant 36. The applicant contended that the national authorities had unlawfully demolished his house without paying him any compensation.", "He noted that the land registry did not contain any annotation classifying the house as an illegal construction or preventing it from being sold. He had thus bought the house from its previous owner in good faith and trusting the official records kept by the land registry office. Contrary to the Government's allegations, the previous owner of the house had obtained the construction permit in 1976 and finished building the house in 1978; he had started paying real estate tax after declaring the building to the Keçiören Municipality. He had therefore not exceeded the four-year time-limit for completing the construction. Furthermore, the committee of experts appointed by the Kızılcahamam First-Instance Court had also found in 1999 that the building in question had been constructed 20 years earlier.", "In view of the foregoing, the applicant claimed that the demolition of his house without payment of any compensation had breached his rights under Article 1 of Protocol No. 1. (b) The Government 37. The Government acknowledged that the demolition of the applicant's house had amounted to an interference with property rights, within the meaning of Article 1 of Protocol No. 1.", "However, in their opinion, this interference had been compatible with legal certainty and had aimed at ensuring compliance with the general rules concerning prohibitions on construction. In this connection, they noted that the construction permit for the building in question had been issued on 10 August 1976, in accordance with the Zoning Law. Yet, the permit had not been renewed although its validity had expired on 10 August 1980. The permit to use the building had not been obtained either. Accordingly, the applicant did not have “possessions” within the meaning of Article 1 of Protocol No.", "1 since their acquisition had never been valid. In any event, it was impossible for the authorities to issue a permit for the applicant's house since it was located in the protected zone of the Kurtboğazı Dam, which supplied drinking water to Ankara. The interference in question had thus met the requirement of lawfulness and had not been arbitrary. It had pursued the legitimate aims of preserving the environment, protecting public health and ensuring compliance with building regulations, with a view to guaranteeing the orderly development of residential areas and the countryside. 2.", "The Court's assessment 38. The summary of the relevant case-law applicable in the present case can be found in the judgment of N.A. and Others v. Turkey (no. 37451/97, §§ 36-37, ECHR 2005‑X). 39.", "The Court notes that it is not in dispute between the parties that the demolition of the applicant's house amounted to a “deprivation” of property within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1. 40. Before embarking upon the question whether the deprivation concerned was justified in the circumstances of the case, the Court notes at the outset that the applicant purchased the house in question from its previous owner in 1996, relying on the records kept at the land registry office. The latter, which is the sole authority for the registration and transfer of immovable property, issued a title deed to him, attesting his ownership of the property (see paragraph 11 above).", "According to domestic law and practice, any limitation concerning such property must be entered in the land registry log book. The rights of those who acquire property relying on the records kept by the land registry office are protected and any damage resulting from the keeping of those records engages the responsibility of the State (see paragraph 25 above). 41. That being so, it does not appear that the applicant knew or ought to have known that the house was an illegal construction under the domestic law since the land registry log book did not contain any annotation concerning the illegality of the construction and limiting its transfer. Indeed, the Government did not dispute that.", "Having thus purchased the house in good faith and obtained a title deed, the applicant paid the appropriate taxes and duties on it. In other words, as holder of a title deed attesting his ownership of the house, the applicant had a “possession” within the meaning of Article 1 of Protocol No. 1, without any restriction, until he was deprived of it by the local authorities. 42. However, the applicant's house was demolished by the local authorities subsequent to the decision of the Ankara Administrative Council and the judgment of the national courts on the grounds that it was an illegal construction which posed a threat to public health and the environment (see paragraphs 14 and 20 above).", "43. In that connection, the Court notes that, although there is no provision in the Convention affording general protection for the environment, it has recognised that in today's society such protection is an increasingly important consideration (see Fredin v. Sweden (no. 1), judgment of 18 February 1991, Series A no. 192, p. 16, § 48). Furthermore, in a number of cases the Court has dealt with similar questions and stressed the importance of the protection of the environment (see, among many other authorities, Taşkın and Others v. Turkey, no.", "46117/99, ECHR 2004‑X; Moreno Gómez v. Spain, no. 4143/02, ECHR 2004‑X; Fadeyeva v. Russia, no. 55723/00, ECHR 2005‑IV). In view of the foregoing, and having regard to the reasons given by the national courts, the Court considers that it is beyond dispute that the applicant was deprived of his property “in the public interest”, namely to protect public health and the environment (see Lazaridi v. Greece, no. 31282/04, § 34, 13 July 2006).", "It follows that this deprivation of property pursued a legitimate aim. 44. It now needs to be ascertained whether the interference in question struck a fair balance between the interests of the applicant and those of society as a whole. The right to compensation under domestic legislation is material to the assessment of whether the contested measure respects the requisite fair balance and, notably, whether it imposes a disproportionate burden on the applicant. In this regard, the Court has previously held that a deprivation of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference, and that a total lack of compensation can be considered justifiable under Article 1 of Protocol No.", "1 only in exceptional circumstances (see N.A. and Others v. Turkey, no. 37451/97, § 41, ECHR 2005‑X; Nastou v. Greece (no. 2), no. 16163/02, § 33, 15 July 2005; Jahn and Others v. Germany [GC], nos.", "46720/99, 72203/01 and 72552/01, § 111, ECHR 2005-VI). 45. In the instant case, the applicant did not have any realistic prospect of success in obtaining compensation for the deprivation of his property, given that the administrative courts upheld the Ankara Administrative Council's demolition order (see paragraphs 33 and 34 above). The lack of any domestic remedy to afford the applicant redress for the loss of his house thus impaired the full enjoyment of his right to property. In this connection, the Court notes that the Government did not cite any exceptional circumstances to justify the total lack of compensation for that deprivation, even though the domestic legislation stipulates that the State is responsible for any damage resulting from the keeping of land registry records (see paragraph 25 above).", "Thus, having recognised the applicant as the legal owner of the house in question by issuing a title deed, the national authorities' responsibility was automatically engaged for the damage suffered by the applicant as a result of the demolition of his house. 46. In view of the above, the Court considers that the failure to award any compensation to the applicant upset, to his detriment, the fair balance which has to be struck between the protection of property and the requirements of the general interest (see N.A. and Others, cited above, § 42). There has accordingly been a violation of Article 1 of Protocol No.", "1 to the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 47. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 48. The applicant claimed 57,977 Turkish liras (TRL) (approximately 27,000 euros (EUR)) in respect of pecuniary damage and TRL 100,000 (approximately EUR 46,500) for non-pecuniary damage for the stress and anxiety suffered by his family.", "He did not submit any quantified claim in respect of costs and expenses. 49. The Government submitted that the amounts claimed by the applicant were speculative and unsubstantiated. 50. In the circumstances of the case, the Court considers that the question of the application of Article 41 is not ready for decision and must be reserved, due regard being had to the possibility of an agreement between the respondent State and the applicant.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 3. Holds that the question of the application of Article 41 of the Convention is not ready for decision; accordingly, (a) reserves the said question; (b) invites the Government and the applicant to submit, within three months from the date on which the judgment becomes final according to 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 24 November 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléFrançoise TulkensRegistrarPresident" ]
[ "THIRD SECTION CASE OF BENDIČ v. SLOVENIA (Application no. 77519/01) 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 Bendič 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. 77519/01) 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 national of Serbia and Montenegro, Mr Vukašin Bendič (“the applicant”), on 20 June 2001. 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 16 September 2003 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. 5. In accordance with Article 36 § 1 of the Convention and Rule 44 of the Rules of Court, the Registrar informed the Government of Serbia and Montenegro of their right to submit written comments. On 14 February 2006 the Government of Serbia and Montenegro informed the Court that they did not wish to exercise their right to intervene in the instant case. THE FACTS 6.", "The applicant was born in 1954 and lives in Velenje. 7. On 22 March 1994 and 11 February 1995 the applicant was injured while working for the Slovenian employer GVV in Russia. He consequently instituted two sets of civil proceedings in the Celje District Court (Okrožno sodišče v Celju) seeking damages for the injuries sustained. In both proceedings an insurance company ZT was acting as an intervening party.", "First set of proceedings 8. On 21 January 1997 the applicant instituted civil proceedings against GVV seeking damages in the amount of 2,050,000 tolars (approximately 8,550 euros) for the injuries sustained on 22 March 1994. Between 23 July 1998 and 26 February 2001 the applicant lodged eight written submissions and/or adduced evidence. Between 24 November 1997 and 3 November 1999 he made three requests that a date be set for a hearing. Of the ten hearings held between 23 April 1998 and 27 February 2001, one was adjourned due to the absence of both parties and one was adjourned due to the absence of the applicant During the proceedings the court appointed a medical expert.", "At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 19 April 2001. 9. On 26 April 2001 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). GVV cross-appealed.", "On 10 October 2002 the court dismissed both appeals. The judgment was served on the applicant on 28 October 2002. 10. On 15 November 2002 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). On 19 February 2004 the court dismissed the applicant’s appeal.", "The judgment was served on the applicant on 22 March 2004. Second set of proceedings 11. On 9 June 1997 the applicant instituted civil proceedings against GVV seeking damages in the amount of 2,056,616 tolars (approximately 8,570 euros) for the injuries sustained on 11 February 1995. Between 12 March 1998 and 25 September 2001 the applicant lodged nine preliminary written submissions and/or adduced evidence. Between 12 November 1997 and 12 November 1999 he made five requests that a date be set for a hearing.", "Of the five hearings held between 11 January 2000 and 23 October 2001 none was adjourned at the request of the applicant. During the proceedings the court appointed a medical expert. The court also sought an additional opinion from the appointed expert At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 14 January 2002. 12.", "On 15 January 2002 the applicant appealed to the Celje Higher Court. On 12 March 2003 the court allowed the applicant’s appeal in part and increased the damages awarded. The judgment was served on the applicant on 5 June 2003. 13. On 12 June 2003 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).", "On 9 December 2004 the court dismissed the applicant’s appeal. The judgment was served on the applicant on 13 January 2005. THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 14. 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...” 15. 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 16. The Government pleaded non-exhaustion of domestic remedies. 17.", "The applicant contested that argument, claiming that the remedies available were not effective. 18. 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. 19. 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. 20.", "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 21. As regards the first set of the proceedings, the period to be taken into consideration began on 21 January 1997, the day the applicant lodged his first claim with the Celje District Court, and ended on 22 March 2004, when the Supreme Court’s judgment was served on the applicant. It thus lasted for about seven years and two months for three levels of jurisdiction. As to the second set of the proceedings, the relevant period began on 9 June 1997, when the applicant lodged his second claim with the Celje District Court, and ended on 13 January 2005, when the Supreme Court’s judgment was served on the applicant. The relevant period has therefore in this case lasted about seven years and seven months for three levels of jurisdiction.", "22. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 23. 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 both sets 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 24. 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. 25. 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. The Government contested that argument. 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 7,500 euros (EUR) in respect of non-pecuniary damage. 28.", "The Government contested the claim. 29. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 3,200 under that head. B.", "Costs and expenses 30. The applicant also claimed approximately EUR 1,570 for the costs and expenses incurred before the Court. 31. The Government argued that the claim was too high. 32.", "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 also notes that the applicant’s lawyers, who also represented the applicant in Lukenda (cited above), lodged nearly 400 applications which, apart from the facts, are essentially the same as this one. 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 applicant the sum of EUR 1,000 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 that there has been a violation of Article 13 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,200 (three thousand two hundred euros) in respect of non-pecuniary damage and EUR 1,000 (one thousand euros) in respect of costs and expenses, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 1 June 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerJohn HediganRegistrarPresident" ]
[ "THIRD SECTION CASE OF VOLOKITIN AND OTHERS v. RUSSIA (Applications nos. 74087/10 and 13 others – see appended list) JUDGMENT STRASBOURG 3 July 2018 FINAL 03/12/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Volokitin and Others 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,Georgios A. Serghides,Jolien Schukking, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 12 June 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in fourteen applications against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by fifteen Russian nationals (“the applicants”).", "The applicants’ names, the names of their representatives and the numbers and dates of their applications are set out in the Appendix. 2. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that position, Mr M. Galperin. 3. The applicants complained about the Russian State’s continued failure to determine the conditions and procedure for implementation of their entitlement to obtain some form of compensation for, or redemption of, their 1982 premium bonds, which had been recognised as internal State debt.", "4. On 27 August 2013, 13 February 2014 and 5 April 2017 the above complaint was communicated to the Government and the remainder of applications nos. 15410/11, 53719/13, 1026/14, 28411/14 and 27904/15 was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 5. On 10 April 2017 the Court requested additional factual information from the applicants in cases nos.", "5359/13 and 53719/13. THE FACTS THE CIRCUMSTANCES OF THE CASE 6. The cases concern the 1982 State internal premium loan bonds (облигации государственного внутреннего выигрышного займа 1982 года - “1982 premium bonds”) which are in the applicants’ possession. The applicants submitted lists of serials numbers or photocopies of their bonds. 7.", "On 30 December 1980 the USSR Cabinet of Ministers decided to issue bonds of an internal premium loan to finance certain State programmes. The bonds had nominal values of 25, 50 and 100 Soviet roubles (SUR). Their period of circulation was set at twenty years, from 1 January 1982 to 1 January 2002, and they were redeemable at any time during the term of the loan with interest at 3% per annum. Soviet citizens could either buy the 1982 premium bonds with their own money or obtain them in exchange for bonds from an earlier 1966 State internal premium loan. The average monthly wage in 1982 was SUR 177.30 across all branches of the economy plus SUR 68.70 in various social benefits (People’s Economy of the USSR 1982, a statistical yearbook by the USSR Central Statistics Directorate, Moscow, 1983).", "8. By the late 1980s the Soviet economy was suffering from a structural imbalance due a rapidly increasing money supply and decreasing availability of consumer goods sold at State-controlled prices. In January 1991 the USSR Government freed 40% of prices and carried out a monetary reform eliminating the largest banknotes in circulation and restricting the withdrawal of money from bank deposit accounts to SUR 500 a month. This led to a two to threefold increase in prices. On 22 March 1991 the USSR President issued Decree no.", "UP-1708, ordering a one-time increase to savings instruments, including the 1982 premium bonds, of 40% to offset the price rise. 9. On 26 December 1991 the USSR was dissolved by Declaration no. 142-N of the Supreme Soviet of the USSR. The declaration invited the heads of newly independent States to reflect on the issues of succession.", "10. On 19 February 1992 the Russian Government issued Resolution no. 97, recognising its succession in respect of the obligations of the former USSR under the 1982 loan: “1. To confirm succession of the [Russian] Government in respect of the obligations of the former USSR vis-à-vis Russian Federation citizens arising out of the bonds of the 1982 State internal premium loan. ... 6.", "To give Russian Federation citizens who are holders of bonds of the 1982 State internal premium loan the right to voluntarily exchange their bonds against State securities, including 1992 Russian internal premium loan bonds, shares in the Savings Bank ... and also to credit the proceeds of sale of the bonds into deposit accounts open in the Savings Bank ... from 1 October 1992 ...” 11. Between 1995 and 2000 a series of Russian laws and regulations were passed which provided for the conversion of Soviet securities, including the 1982 premium bonds, into special Russian promissory notes nominated in “promissory roubles” (DOR) (for details, see Yuriy Lobanov v. Russia, no. 15578/03, §§ 16-21, 2 December 2010). 12. From 2003 to the present day, the application and implementation of those laws and regulations have been continuously suspended, most recently for the period 1 January 2017 to 1 January 2020, by Law no.", "429‑FZ of 19 December 2016 and Resolution no. 1437 dated 22 December 2016. 13. The applicants applied to the Russian financial authorities and the courts, seeking the redemption of their bonds. Their claims were rejected on procedural and substantive grounds.", "Mr Ruzanov’s claim was allowed at first instance but the judgment was later overturned on appeal. On 5 May 2014 Mr Israfilov obtained a decision from the Leninskiy District Court in Makhachkala, requiring the Russian Government to convert his bonds into special promissory notes. 14. Mr Losyakov and Ms Losyakova’s claim was referred by the Supreme Court to the Constitutional Court. By decision no.", "632-O of 3 April 2012, the Constitutional Court declared it inadmissible, finding that it was not competent to rule on the issue of an alleged failure of federal lawmakers to enact laws guaranteeing the protection of savings which had been recognised as Russia’s internal debt. In its view, the federal lawmakers had adequate discretion to legislate on those issues in the interests of everyone, taking into account the specific social and economic conditions prevailing in Russia and the balance between the rights and lawful interests of various categories of citizens, including those who acted as creditors of the State and others in respect of whom the State had public policy obligations. The legislature was entitled to restrict the rights, including property rights, of some people for the protection of rights and lawful interests of others. THE LAW I. JOINDER OF THE APPLICATIONS 15. The Court notes that all the applicants alleged a violation of their property rights.", "Having regard to the similarity of the applicants’ grievances, the Court is of the view that the applications should be joined in accordance with Rule 42 § 1 of the Rules of Court. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 16. The applicants complained about the continued failure of the Russian authorities to discharge their obligations arising out of their 1982 premium bonds, which had been recognised as part of Russia’s internal debt.", "Article 1 of Protocol No. 1 to the Convention 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.” A. Admissibility 17. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Submissions by the parties 18.", "Referring to the Constitutional Court’s decision on Mr Losyakov and Ms Losyakova’s claim (see paragraph 14 above) and the Court’s case-law (Malysh and Others v. Russia, no. 30280/03, § 80, 11 February 2010), the Government submitted that the domestic authorities should have a wide discretion in matters of economic or social strategy and that favouring expenditure on pressing social issues to the detriment of claims of a purely pecuniary nature was a legitimate aim in the public interest. They further claimed that the applicants had not suffered any loss of property because they could have taken advantage of the buy-back or exchange scheme in 1992. According to the Savings Bank, the total value of bonds placed before 1 January 1992 in the Russian territory had been SUR 9 billion, while the buy-back operation in 1992 to 1995 had resulted in the purchase or exchange of bonds with a total value of 12.1 billion “new” Russian roubles (RUR). The excess was accounted for by the inflow of bonds from newly independent States outside Russia.", "As the series and numbers of bonds had not been recorded at the time of initial placement, it was no longer possible to establish when and where they had been purchased and by whom initially. Lastly, the Government submitted that Russia’s obligations to the holders of 1982 premium bonds were maintained. The relevant laws and regulations had been suspended because of the limited resources of the federal budget. Redeeming the bonds at the present time would prevent the State from fulfilling its social commitments to Russian citizens and developing the Russian economy. 19.", "The applicants submitted that the Russian authorities had breached their property rights by continuously suspending the implementation of the relevant laws and regulations. The obligations the Russian authorities had taken upon themselves had to be fulfilled so long as there was no emergency, force majeure or other exceptional circumstances. Had the authorities acted in good faith, they would have converted the 1982 premium bonds into the special promissory notes. That operation would have allowed them to establish the exact quantity of unredeemed bonds and the amount of funds required for their redemption and to find a proper balance between that and other priority expenses. However, no such conversion had ever been carried out and the Russian authorities had adopted a passive approach to implementation of the entitlement of the bondholders.", "The applicants pointed out that the Government had incorrectly calculated the outcome of the buy-back operation. They had not taken into account that the bonds had been redeemed at 1.6 times their nominal value. If the total amount of redeemable bonds had been RUR 14.4 billion (the initial value of SUR 9 billion multiplied by 1.6) and the actual redeemed amount had been RUR 12.1 billion, the remainder of the outstanding bonds was equal to RUR 2.3 billion at the redemption price or RUR 1.44 billion (RUR 2.3 billion divided by 1.6) at the nominal value. The outstanding amount was but a small fraction of Russia’s federal budget of approximately 14 trillion Russian roubles (RUB) or the combined value of the National Wealth and Reserve Funds of 10.9 trillion (2017). As to the Government’s argument about limited resources, the applicants pointed out that since 2000 the Russian State had run a budget surplus thanks to high oil prices.", "However, instead of settling their debt to internal creditors, such as the applicants, the authorities had used money to buy foreign bonds or finance expensive high-level sports events. 2. The Court’s assessment 20. The Court reiterates that it has found a violation of Article 1 of Protocol No. 1 in a number of similar applications against Russia.", "Some of them concerned the absence of implementing regulations for redemption of a different type of Russian bond, known as Urozhay-90 (Harvest-90) bonds (see Malysh and Others, cited above; Tronin v. Russia, no. 24461/02, 18 March 2010; and SPK Dimskiy v. Russia, no. 27191/02, 18 March 2010), while others related to non-fulfilment of the State’s obligations arising out of the same 1982 loan as in the present case (see Yuriy Lobanov, no. 15578/03, 2 December 2010; Andreyeva v. Russia, no. 73659/10, 10 April 2012; and Fomin and Others v. Russia, no.", "34703/04, 26 February 2013). 21. For the purposes of Article 1 of Protocol No. 1 the applicants’ “possessions” consist of their entitlement to obtain some form of compensation for, or redemption of, 1982 premium bonds which are currently in their possession (see Malysh and Others, §§ 67-71, and Yuriy Lobanov, § 45, both cited above). By enacting the Savings Protection Act in 1995, the Russian State took upon itself an obligation to settle the debt arising out of the 1982 premium bonds.", "Since that time bond holders have continuously held a claim against the Russian State which existed both on the date of ratification of Protocol No. 1 by Russia – 5 May 1998 – and on the date of submission of their applications to the Court. Although implementation of the relevant regulatory provisions has been suspended for many years, they have not been revoked or annulled. The Government conceded that bondholders’ claims against the State continued to exist to the present day. 22.", "As to compliance with the lawfulness requirement, the Court has noted that the repeated suspensions of the implementing regulations were decided on in the legislative process. Accordingly, a restriction on the exercise of applicants’ right to the peaceful enjoyment of their possessions was “provided for by law” (see Malysh and Others, §§ 77-78, and Yuriy Lobanov, § 49, both cited above). As regards the existence of a legitimate aim, the Court has noted that in the 1990s the Russian State went through a tumultuous transition from a State-controlled to a market economy. Its economic well-being was later jeopardised by the financial crisis of 1998 and a sharp depreciation of the national currency. Even though Russia has achieved relative prosperity and wealth in subsequent years, the Court has agreed that defining budgetary priorities in terms of favouring expenditure on pressing social issues to the detriment of claims of a purely pecuniary nature was a legitimate aim in the public interest (see Malysh and Others, § 80, and Yuriy Lobanov, § 50, both cited above).", "23. On the question of the striking of a fair balance between the general interest and the applicants’ rights, the rule of law underlying the Convention and the principle of lawfulness in Article 1 of Protocol No. 1 require States not only to respect and apply, in a foreseeable and consistent manner, the laws they have enacted, but also, as a corollary of this duty, to ensure the legal and practical conditions for their implementation. The Court has found that those principles mandated the Russian State to fulfil in good time, in an appropriate and consistent manner, the legislative promises it had made in respect of claims arising out of the 1982 premium bonds. In particular, it was incumbent on the authorities to legislate on the conditions for implementation of the bondholders’ entitlement, with a view to satisfying the undertaking that had been created through the enactment of the Savings Protection Act and follow-up legislation (see Malysh and Others, § 82, and Yuriy Lobanov, § 51, both cited above).", "24. After the enactment of the Savings Protection Act in 1995, the Russian Parliament promptly enacted the legislative acts required for its successful implementation, including the 1996 Promissory Value Act, the 1999 Base Value Act and the 1999 Conversion Procedure Act (see Yuriy Lobanov, cited above, §§ 17-20). Those acts laid down a legislative framework for settlement of bondholders’ entitlement which had been continuously recognised as part of the State’s internal debt. In early 2000, the Russian Government issued a regulation on the conversion procedure (ibid., § 21). However, for reasons that remain unclear to the Court, as no explanation has been put forward by the Government, from 2003 the implementation of the existing legal framework governing redemption of the 1982 premium bonds has remained continuously suspended, year after year (ibid., §§ 22 and 52).", "25. The information available to the Court does not allow it to find that the Russian Government took any measures in that period with a view to satisfying the claims arising out of the bonds. There is no evidence that the annual decisions suspending the implementation of the redemption framework were preceded by an assessment of the amount of budget appropriations necessary to settle the debt arising out of the bonds and its balancing in relation to other priority social expenses. In fact, as the applicants in the present case pointed out, no such assessment could have been possible in the absence of key indicators, such as the quantity and total valuation of the outstanding bonds. That information has not been, and could not have been, obtained because the stamping of the outstanding bonds and entering their details into the Ministry of Finance register, as provided for in the Conversion Procedure Act and Government Regulation no.", "82 (ibid., § 21), has never been completed. While the radical reform of Russia’s political and economic system in the 1990s, as well as the state of the country’s finances, may have once justified stringent financial limitations on rights of a purely pecuniary nature, it is currently the case that the Russian Government have been unable to put forward a satisfactory justification for their continuous failure, over a period of more than fifteen years, to implement an entitlement conferred on the applicants by Russian legislation (see Malysh and Others, § 83, and Yuriy Lobanov, § 52, both cited above). 26. The Court has no competence ratione temporis to examine the options that were available to the bondholders prior to the ratification of the Convention and the Protocol. However, the Court notes that since the enactment of the 1995 Savings Protection Act they have had a legitimate expectation of obtaining some form of compensation for, or redemption of, the bonds.", "The applicants did not remain passive, but rather displayed an active attitude by making requests to the competent authorities and lodging claims with the domestic courts, including the Supreme Court and Constitutional Court (see paragraph 14 above). There was no indication that the applicants were responsible for, or culpably contributed to, the state of affairs which they complained about (compare Malysh and Others, § 84, and Yuriy Lobanov, § 53, both cited above). 27. The Court finds that the applicants in the present cases, holders of 1982 bonds which cannot be redeemed and in respect of which no compensation is available, are in the same position as applicants in previous cases. It further finds, as it did in the above-cited cases, that the Russian authorities, by imposing successive limitations on the implementation of the legislative and regulatory framework establishing the basis for the applicants’ right to redemption of their 1982 premium bonds and by failing for years to put into practice the procedure for implementation of that entitlement, kept the applicants in a state of uncertainty, which was incompatible in itself with the obligation arising under Article 1 of Protocol No.", "1 to secure the peaceful enjoyment of possessions, notably with the duty to act in good time and in an appropriate and consistent manner where an issue of general interest is at stake (see Malysh and Others, § 85, and Yuriy Lobanov, § 54, both cited above). 28. There has therefore been a violation of Article 1 of Protocol No. 1. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 29. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 30. The applicants claimed the amounts listed in the Appendix in respect of pecuniary and non-pecuniary damage. 31.", "The Government submitted that Mr Israfilov, Mr Galayev, Mr Laptev and Mr Zheltov had not filed any claims with the Russian courts for the redemption of their bonds. Accordingly, it had not been established in the domestic proceedings that they had been the lawful owners of the bonds. They further submitted that the suggested method of calculation in respect of pecuniary damage could not be applied because it had been based on the suspended legislation. In any event, the claims were unreasonable. 32.", "The Court notes that Ms Losyakova, Mr Israfilov, Mr Kosachev and Mr Vologin did not submit a claim for just satisfaction when invited to do so. Their prior indications of desirable reparation in the application form cannot replace a properly articulated claim (see Nagmetov v. Russia [GC], no. 35589/08, §§ 59 and 75, 30 March 2017). In the absence of any exceptional circumstances (ibid., §§ 77-82), the Court makes no award to these applicants. 1.", "Pecuniary damage 33. On the matter of pecuniary damage, the Court notes that the 1982 premium bonds were never restricted in circulation and could be sold and bought freely at any time. However, their price at any given time must have been subject to great fluctuations reflecting the tumultuous development of the Russian economy and evolution of the applicable legal framework. A period of stability in the USSR when the bonds were used as a money substitute at nominal value was followed by rampant inflation and a sharp depreciation of the national currency in the newly independent Russia. The legitimate expectation that the enactment of the Savings Protection Act gave the bondholders in 1995 was later frustrated by its continuous suspension after 2003.", "Those developments must have affected the value of the bonds and the amount to be awarded to the applicants for the loss actually sustained (damnum emergens). The situation of applicants who acquired bonds in the Soviet times at full value must accordingly be distinguished from those who bought them in the later period on account of differences in their respective financial exposure. With a view to determining the value of the actual damage the applicants sustained, the Court asked each of them to specify the time and manner of acquisition of the 1982 bonds in their possession, and the purchase price, if any, they had paid. A summary of their replies is given in the Appendix. 34.", "Mr Volokitin, Mr Losyakov, Mr Ruzanov and Mr Zheltov did not reply to the Court’s query. Having regard to Rule 60 § 3 of the Rules of Court and points 5 and 11 of the Practice Direction on just-satisfaction claims, the Court finds that the absence of any reply on their part prevents it from establishing whether or not they have sustained any pecuniary damage and rejects their claims under this head. 35. Ms Alekseyeva, Mr Galayev, Mr Gusev and Mr Karagezov claimed to possess very large amounts of bonds which had been allegedly acquired in the Soviet times. The Court notes that in the command economy of the Soviet Union, wages were determined by the State as the sole employer and their amount deviated little from the mean.", "A Soviet worker earning on average 3,000 Soviet roubles (SUR) a year (see paragraph 7 above) would have needed to save for more than sixty years to amass sufficient money to acquire the amount of bonds Ms Alekseyeva claimed to have (SUR 198,400). Her present claim must moreover be seen in the light of the fact that she has previously managed to redeem SUR 103,000 worth of bonds through a combination of the domestic and Strasbourg proceedings (see Alekseyeva v. Russia, no. 36153/03, 11 December 2008, in which the Court awarded her 194,817 euros (EUR) in respect of a domestic decision that had been quashed in breach of the legal certainly principle). Had she indeed acquired her bonds in the Soviet times as she claimed, the absence of any mention of the additional amount of SUR 198,400 – which she claims in the present case – in her previous application to the Court begs the question whether they had been in her possession already at that time or acquired at a later date. In the absence of a credible explanation, the Court considers her submissions as to the time of acquisition of her bonds unpersuasive and rejects her claim.", "36. The Court also rejects the claims by Mr Galayev and Mr Gusev, whose respective declarations of having earned SUR 1,000,000 in bonds from business activities and obtained SUR 500,000 through the division of parental property between him and his sister were not supported by any documents. It reiterates that an applicant should submit relevant documents to prove, as far as possible, not only the existence but also the amount or value of the damage (see Milosavljev v. Serbia, no. 15112/07, § 67, 12 June 2012, and Vasilevski v. the former Yugoslav Republic of Macedonia, no. 22653/08, § 66, 28 April 2016).", "Admittedly, with the passage of time some documents may have been lost or misplaced, but such unusual wealth should have left at least some written traces which the applicants should have been able to produce to lend credibility to their claims. Lastly, the Court notes that Mr Karagezov produced several lists of serial numbers of bonds. The lists ended with a figure representing the total value of bonds and a name next to it which was different from his name. Since Mr Karagezov did not clarify the matter of bonds’ ownership in his submissions, or, for that matter, include any pecuniary damage in his statement of claim under Article 41 of the Convention, the Court makes no award to him under this head. 37.", "The Court further considers that the amount of bonds held by Ms Prokofyeva, Mr Laptev and Mr Sevastyanov is consistent with the explanation of their origin they have provided. It reiterates that the State’s failure to implement a redemption scheme cannot be interpreted as calling for any particular method of calculation or a determination in abstracto of the current value of the bonds (see Andreyeva, cited above, § 27). Having regard to the assessment of the applicants’ losses carried out in previous similar cases (see Yuriy Lobanov v. Russia (just satisfaction), no. 15578/03, 14 February 2012, and Fomin and Others, cited above, § 35) and limiting the award to what has been actually claimed (the ne ultra petita principle), the Court awards EUR 2,490 to Ms Prokofyeva, EUR 822 to Mr Laptev, and EUR 6,030 to Mr Sevastyanov, plus any tax that may be chargeable, in respect of pecuniary damage. 2.", "Non-pecuniary damage 38. The Court accepts that all the applicants have suffered frustration on account of the Russian State’s failure to establish the procedure for implementation of their entitlement which kept them in a state of uncertainty. 39. Making its assessment on an equitable basis and having regard to the awards in previous similar cases (see Yuriy Lobanov and Fomin and Others, both cited above), the Court awards EUR 1,800 each to Mr Laptev, Ms Prokofyeva and Mr Sevastyanov in respect of non-pecuniary damage, plus any tax that may be chargeable. 40.", "As regards the other applicants in respect of whom the time of acquisition of bonds and the length of period of their possession could not be ascertained, the Court considers that the finding of a violation would constitute sufficient just satisfaction. B. Costs and expenses 41. The applicants also claimed the amounts specified in the Appendix in respect of the costs and expenses incurred before the domestic courts and the Court. 42.", "The Government pointed out that Ms Alekseyeva, Mr Gusev, Mr Ruzanov and Mr Sevastyanov had not produced any documents supporting their claims. 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. In the present case, regard being had to the documents in its possession and the above criteria, the Court awards EUR 100 to Ms Alekseyeva, EUR 1,500 to Mr Gusev, EUR 850 to Mr Ruzanov, EUR 30 to Mr Laptev, EUR 450 to Mr Sevastyanov, and EUR 46 to Mr Karagezov, plus any tax that may be chargeable on them, covering costs under all heads. 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. IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION 45. Article 46 of the Convention provides: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.", "2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” 46. A judgment in which the Court finds a breach of the Convention 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, general measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress as far as possible its effects. It is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order to discharge its obligation under Article 46 of the Convention. However, with a view to helping the respondent State to fulfil that obligation, the Court may seek to indicate the type of general measures that might be taken in order to put an end to the situation it has found to exist (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no.", "47848/08, §§ 158-59, ECHR 2014; Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 148, 17 September 2009; and Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V). 47.", "The Court has found in the present case that the Russian authorities’ failure to fulfil the applicants’ legitimate expectation by offering some form of settlement in exchange for their bonds was in breach of Article 1 of Protocol No. 1 to the Convention. This conclusion echoes the Court’s findings in the series of similar cases listed in paragraph 20 above. The first three of those cases concerned a different type of bonds which had also been recognised as part of the State’s internal debt. Implementation of the federal legislation governing their buyout had been suspended between 2003 and 2009.", "In July 2009 a federal law governing the buyout procedure had been adopted. It was followed, in September 2009, by a Government regulation setting out the procedure for making payments in exchange for bonds (see Tronin, cited above, §§ 29-31). The Court noted, in respect of that type of bonds, that it was open to the applicants to apply to the competent domestic authorities for their redemption (ibid., § 67). The matter was thus resolved and no general measures were required for the execution of the Court’s judgments concerning that type of bonds. 48.", "By contrast, since the Yuriy Lobanov judgment in 2010, there has been no tangible progress in the execution proceedings concerning the 1982 premium bonds at issue in the present case. The Russian Government reported to the Committee of Ministers that they had distributed a Russian translation of the judgment to various authorities and established an interagency commission for “pre-reform” (that is to say, Soviet-time) savings under the aegis of the Ministry of Finance (see DH-DD(2012)31 - Communication from the Russian authorities dated 30 November 2011, and DH-DD(2013)379 - Communication from the Russian authorities dated 25 March 2013). The work of the interagency commission did not result in any draft legislation being proposed or discussed in Parliament. As the Court has found above, an inventory of the outstanding bonds has never been completed and their current amount cannot be known. The obligation to offer some kind of settlement to the holders of 1982 premium bonds continues to exist in domestic law; it has not been extinguished or annulled but merely postponed or suspended by successive laws, most recently for a three-year period starting from 1 January 2017 (see paragraph 12 above).", "The Court therefore concludes that there exists a structural problem stemming from the authorities’ continued failure to implement the entitlement of the bondholders to some form of compensation and to execute its earlier judgments concerning the same issue, which amounts to a practice incompatible with the Convention. 49. Accordingly, the Court considers that, in order to comply with its obligations under Article 46 of the Convention, the respondent State should, without further delay, initiate a genuine discussion with the Committee of Ministers on the issue of what may be required by way of compliance with the present and earlier judgments concerning the 1982 premium bonds. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2.", "Declares the case admissible; 3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants Mr Volokitin, Ms Alekseyeva, Mr Losyakov, Mr Galayev, Mr Gusev, Mr Ruzanov, Mr Zheltov, and Mr Karagezov; 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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 2,490 (two thousand four hundred and ninety euros) to Ms Prokofyeva, EUR 822 (eight hundred and twenty-two euros) to Mr Laptev, and EUR 6,030 (six thousand and thirty euros) to Mr Sevastyanov, plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 1,800 (one thousand eight hundred euros) each to Ms Prokofyeva, Mr Laptev and Mr Sevastyanov, plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 100 (one hundred euros) to Ms Alekseyeva, EUR 1,500 (one thousand five hundred euros) to Mr Gusev, EUR 850 (eight hundred and fifty euros) to Mr Ruzanov, EUR 30 (thirty euros) to Mr Laptev, EUR 450 (four hundred and fifty euros) to Mr Sevastyanov, and EUR 46 (forty-six euros) to Mr Karagezov, plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 3 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıHelena JäderblomDeputy RegistrarPresident APPENDIX No. Application no. Lodged on Applicant’s name Date of birth Place of residence Representative Value of bonds Reply to the question about the origin of bonds Claims Non-pecuniary damage Pecuniary damage Costs and expenses 74087/10 24/11/2010 Vladimir Pimenovich VOLOKITIN 15/08/1947 Novoaltaysk SUR 2,000 (application form of 18/01/2011)SUR 15,400 (submissions of 10/12/2013) No reply.", "EUR 10,000 RUB 877,995.16[EUR 12,540] Not claimed. 15410/11 14/02/2011 Svetlana Fedorovna ALEKSEYEVA 08/02/1959 Novoaltaysk SUR 198,400 Purchased between 1985 and 1990. EUR 10,000 EUR 1,077,154.74 EUR 860.25 72789/12 24/09/2012 Gennadiy Fedorovich LOSYAKOV 03/01/1935 Moscow Region SUR 212,675 No reply. EUR 1,800 EUR 567,842 Not claimed. Nina Fedorovna LOSYAKOVA 31/05/1953 Arzamas No reply.", "Claims not submitted within the time-limit. 5359/13 28/12/2012 Israfil Mukailovich ISRAFILOV 20/06/1961 Makhachkala SUR 5,200 Purchased from the Savings Bank between 1983 and 1985. Claims not submitted within the time-limit. 37098/13 04/05/2013 Yakhya Akhmedovich GALAYEV 03/09/1938 Ekazhevo Represented by Mr A. Ovchinnikov SUR 1,000,000 Former director of a collective farm in 1980-91 and co-owner of a production facility in 1989-93, he received bonds in payment for the goods and acquired them though the sale of property and vehicles. EUR 10,000 EUR 7,374,870 Not claimed.", "39017/13 21/05/2013 Yuriy Olegovich KOSACHEV 21/05/1950 Cheboksary SUR 5,900 No reply. Claims not submitted within the time-limit. 53719/13 15/07/2013 Tamara Georgiyevna PROKOFYEVA 03/11/1948 Volsk Represented by Mr A. Vologin SUR 950 Purchased from the Savings Bank on 25 November 1982. EUR 100,000 EUR 3,072.30 Not claimed. 72539/13 25/10/2013 Vladimir Ivanovich VOLOGIN 22/01/1936 Moscow SUR 2,000 Purchased from the Savings Bank.", "Claims not submitted within the time-limit. 79934/13 01/12/2013 Nikolay Nikolayevich GUSEV 13/04/1968 Moscow Represented by Mr V. Fedoseyev SUR 534,225 Received them in 2005 as a result of division of family property between him and his sister. Later he bought more bonds. EUR 65,700 EUR 1,791,642 EUR 3,163.01 (domestic and Strasbourg legal fees and postal expenses) 1026/14 30/12/2013 Andrey Fedorovich RUZANOV 31/08/1962 Volgograd Region Represented by Ms N. Ichim SUR 149,500 No reply. EUR 5,000 EUR 1,073,320 EUR 2,500 (legal fees) 28411/14 23/09/2013 Aleksandr Valeryevich ZHELTOV 09/08/1973 Volsk Represented by Mr A. Vologin SUR 25(application form)DOR 43,555(claims) No reply.", "EUR 100,000 EUR 163,069 Not claimed. 32615/14 23/04/2014 Andrey Semenovich LAPTEV 03/11/1981 Krasnodar Region SUR 400 Purchased by his grandmother from the Savings Bank and given to him as a present in the autumn of 1982. EUR 1,800 RUB 57,600[EUR 822] EUR 30 (postal expenses) 27904/15 26/05/2015 Vyacheslav Nikolayevich SEVASTYANOV 11/12/1945 Sergiyev Posad SUR 2,300 Acquired in 1991. EUR 2,550 EUR 7,425 EUR 486 (legal fees and postal expenses) 9395/16 03/02/2016 Yevgeniy Grigoryevich KARAGEZOV 30/08/1940 Moscow SUR 66,425 Acquired in 1982-91. In 1983-86 his mean wage was SUR 670.", "In 1987-92 his mean wage was SUR 12,862. At the Court’s discretion. Not claimed. RUB 3,200 [EUR 46] (translation expenses)" ]
[ "FIRST SECTION CASE OF RYABOVand 151 other “Privileged pensioners” cases v. RUSSIA (Applications nos. 4563/07, 19923/08, 29853/08, 35836/08, 37062/08, 37064/08, 37069/08, 37072/08, 37568/08, 37717/08, 38120/08, 38832/08, 39479/08, 39532/08, 39601/08, 40675/08, 40676/08, 40678/08, 41157/08, 41158/08, 41161/08, 41163/08, 41794/08, 41804/08, 41806/08, 41807/08, 41810/08, 41820/08, 41822/08, 41824/08, 41825/08, 41828/08, 41911/08, 41975/08, 41981/08, 42005/08, 42006/08, 44357/08, 44361/08, 44617/08, 45200/08, 45204/08, 45207/08, 45243/08, 45246/08, 45253/08, 45258/08, 45261/08, 45265/08, 45833/08, 45834/08, 46047/08, 46210/08, 46211/08, 46215/08, 46218/08, 46965/08, 46968/08, 47762/08, 47768/08, 47774/08, 47776/08, 47779/08, 47783/08, 47878/08, 48025/08, 48045/08, 48049/08, 48054/08, 48056/08, 48587/08, 48606/08, 48854/08, 48861/08, 48877/08, 48942/08, 48956/08, 49322/08, 49325/08, 49411/08, 49415/08, 49563/08, 51002/08, 52521/08, 52557/08, 52563/08, 52566/08, 53574/08, 53579/08, 53583/08, 53587/08, 53589/08, 53593/08, 53595/08, 53600/08, 53603/08, 53605/08, 53607/08, 53611/08, 53614/08, 53617/08, 53620/08, 53623/08, 53629/08, 53632/08, 54367/08, 54379/08, 54384/08, 54392/08, 54396/08, 54398/08, 54399/08, 54400/08, 54431/08, 54456/08, 54470/08, 54473/08, 54507/08, 54513/08, 54526/08, 54530/08, 54590/08, 54593/08, 54596/08, 54602/08, 54605/08, 54608/08, 56037/08, 56774/08, 56778/08, 56781/08, 56784/08, 56786/08, 56789/08, 56801/08, 56806/08, 56813/08, 56816/08, 56827/08, 56832/08, 56837/08, 58306/08, 58344/08, 59027/08, 59599/08, 59626/08, 59628/08, 59698/08, 59699/08, 59703/08, 60036/08, and 4507/09) JUDGMENT STRASBOURG 17 December 2009 FINAL 17/03/2010 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ryabov and 151 other “Privileged pensioners” cases v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Dean Spielmann,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 26 November 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in 152 applications (nos.", "4563/07, 19923/08, 29853/08, 35836/08, 37062/08, 37064/08, 37069/08, 37072/08, 37568/08, 37717/08, 38120/08, 38832/08, 39479/08, 39532/08, 39601/08, 40675/08, 40676/08, 40678/08, 41157/08, 41158/08, 41161/08, 41163/08, 41794/08, 41804/08, 41806/08, 41807/08, 41810/08, 41820/08, 41822/08, 41824/08, 41825/08, 41828/08, 41911/08, 41975/08, 41981/08, 42005/08, 42006/08, 44357/08, 44361/08, 44617/08, 45200/08, 45204/08, 45207/08, 45243/08, 45246/08, 45253/08, 45258/08, 45261/08, 45265/08, 45833/08, 45834/08, 46047/08, 46210/08, 46211/08, 46215/08, 46218/08, 46965/08, 46968/08, 47762/08, 47768/08, 47774/08, 47776/08, 47779/08, 47783/08, 47878/08, 48025/08, 48045/08, 48049/08, 48054/08, 48056/08, 48587/08, 48606/08, 48854/08, 48861/08, 48877/08, 48942/08, 48956/08, 49322/08, 49325/08, 49411/08, 49415/08, 49563/08, 51002/08, 52521/08, 52557/08, 52563/08, 52566/08, 53574/08, 53579/08, 53583/08, 53587/08, 53589/08, 53593/08, 53595/08, 53600/08, 53603/08, 53605/08, 53607/08, 53611/08, 53614/08, 53617/08, 53620/08, 53623/08, 53629/08, 53632/08, 54367/08, 54379/08, 54384/08, 54392/08, 54396/08, 54398/08, 54399/08, 54400/08, 54431/08, 54456/08, 54470/08, 54473/08, 54507/08, 54513/08, 54526/08, 54530/08, 54590/08, 54593/08, 54596/08, 54602/08, 54605/08, 54608/08, 56037/08, 56774/08, 56778/08, 56781/08, 56784/08, 56786/08, 56789/08, 56801/08, 56806/08, 56813/08, 56816/08, 56827/08, 56832/08, 56837/08, 58306/08, 58344/08, 59027/08, 59599/08, 59626/08, 59628/08, 59698/08, 59699/08, 59703/08, 60036/08, and 4507/09) 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 156 Russian citizens whose names and dates of birth are tabulated in the Annex (“the applicants”). The applications' dates of introduction are also tabulated in the Annex. 2. The applicants were represented, respectively, by Mr M. Antonov, Mr I. Fedotov, Mr V. Glukhov, Ms O. Gurova, Mr G. Migay, Mr. Y. Pakin, and Ms L. Yerokhina, consultants from 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.", "3. On 12 February 2009 the President of the First Section decided to give notice of the applications to the Government. It was also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 3). The Government objected to the joint examination of the admissibility and merits, but the Court rejected this objection. THE FACTS[1] 4.", "The applicants are pensioners who live in the Moscow Region. Before retirement they used to work in hazardous industries. They had a dispute with a pension authority about the scope of their privileged pensions and appealed to the Region's district and town courts. 5. In September 2003–November 2006 the courts held for the applicants and ordered the pension authority to recalculate the pensions.", "The courts based their findings on the Law on Labour Pensions. These judgments became binding and were executed. 6. On the pension authority's request, in October 2007–June 2008 the district and town courts quashed their judgments due to discovery of new circumstances. The courts found, in particular, that the judgments had ignored the interpretation of the Law on Labour Pensions given by the Supreme Court in December 2005 and March 2007.", "7. The applicants' cases were remitted for a rehearing and eventually dismissed. THE LAW I. JOINDER OF THE APPLICATIONS 8. As the applications are similar in terms of both fact and law, the Court decides to join them. II.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 9. The applicants complained under Article 6 of the Convention and Article 1 of Protocol No. 1 that the quashing of the binding judgments was unjustified. 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 10. The Government argued that the applications were inadmissible. The Supreme Court's interpretations of the Law on Labour Pensions revealed fundamental errors in the district and town courts' reasoning, and hence those judgments had had to be quashed.", "The quashing had been legitimate, lawful, and compliant with the principle of legal certainty. The quashing was meant to ensure a uniform and coherent functioning of the State pension scheme and to protect the public purse from undue depletion. 11. The applicants argued that their applications were admissible. The quashing had been unjustified because the district and town courts did take into account the interpretation of 2005, and because the interpretation of 2007 had been given after the judgments.", "In any event, a legislative interpretation of laws might come only from a lawmaker, not from a court. Besides, the pension authority had missed the statutory time-limit for the quashing, and the courts had extended that limit without good reason. 12. The Court notes that the applications 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 13. The Court reiterates that for the sake of legal certainty implicitly required by Article 6, final judgments should generally be left intact. They may be disturbed only to correct fundamental defects (see Ryabykh v. Russia, no.", "52854/99, §§ 51–52, ECHR 2003‑IX). Quashing of judgments because of newly-discovered circumstances is not by itself incompatible with this requirement, but the manner of its application may be (see Pravednaya v. Russia, no. 69529/01, §§ 27–34, 18 November 2004). 14. In the case at hand, the domestic courts justified the quashing with the Supreme Court's two interpretations of the Law on Labour Pensions.", "As to the interpretation of 2005, the Court considers that differing judicial interpretations of a law represent a ground for an ordinary appeal, rather than a discovery warranting a quashing of a binding judgment (see Yerogova v. Russia, no. 77478/01, § 34, 19 June 2008). As to the interpretation of 2007, the Court reiterates that newly-discovered circumstances are circumstances that exist during the trial, remain hidden from the court, and become known after trial. Since the interpretation of 2007 was posterior to the Town Court's judgments, it did not justify the quashing either (see Yerogova, cited above, § 33). 15.", "It follows that the quashing of the applicants' judgments was unjustified, and that there has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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.” A.", "Damage, costs, and expenses 17. In respect of pecuniary damage, the applicants claimed sums ranging from 0 euros (EUR) to EUR 11,344. According to the applicants, these sums represented the difference between the pensions they had been receiving after the quashing and the pensions they would have received if there had been no quashing. The Government argued that this claim was excessive and unreasonable. 18.", "The Court rejects this claim in view of its speculative character (see Tarnopolskaya and Others v. Russia, nos. 11093/07, 14558/07, 19660/07, 30166/07, 46736/07, 52681/07, 52985/07, 10633/08, 10652/08, 12694/08, 15437/08, 16691/08, 19447/07, 19457/08, 20857/08, 20872/08, 22546/08, 25820/08, 25839/08, and 25845/08, § 51, 9 July 2009). 19. In respect of non-pecuniary damage, the applicants claimed sums ranging from EUR 2,000 to EUR 10,000. The Government contested this claim as ill-founded.", "20. In respect of costs and expenses incurred before the Court, the applicants claimed sums ranging from EUR 0 to EUR 1,640. The Government noted that any possible award should cover only proven expenses. 21. The Court reiterates that it is an international judicial authority contingent on the consent of the States signatory to the Convention, and that its principal task is to secure the respect for human rights, rather than compensate applicants' losses minutely and exhaustively.", "Unlike in national jurisdictions, the emphasis of the Court's activity is on passing public judgments that set human-rights standards across Europe. 22. For this reason, in cases involving many similarly situated victims a unified approach may be called for. This approach will ensure that the applicants remain aggregated and that no disparity in the level of the awards will have a divisive effect on the applicants. 23.", "In view of the above, making its assessment on equitable and reasonable bases, the Court awards each applicant EUR 2,000 in respect of non-pecuniary damage, and costs and expenses. B. Default interest 24. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Decides to join the applications; 2. Declares the applications admissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1; 4. Holds (a) that the respondent State is to pay each applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicants, in respect of non-pecuniary damage, and costs and expenses, to be converted into Russian roubles at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above 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 applicants' claims for just satisfaction. Done in English, and notified in writing on 17 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresiden ANNEX Application no. Introduced on Applicant Born in Court Judgment of Quashed on 4563/07 26/12/06 Ryabov Vladimir Pavlovich 1928 Elektrostal Town Court 01/06/06 22/11/07 19923/08 22/03/08 Zavedeyev Vladimir Nikolayevich 1938 Elektrostal Town Court 25/05/06 09/10/07 29853/08 25/05/08 Kochkolda Svetlana Pavlovna 1938 Korolyov Town Court 13/04/05 26/11/07 35836/08 24/06/08 Fedosova Olga Mikhaylovna 1949 Elektrostal Town Court 21/09/06 17/01/08 37062/08 17/06/08 Titova Tamara Nikolayevna 1950 Elektrostal Town Court 11/09/06 24/01/08 37064/08 17/06/08 Motorina Mariya Mikhaylovna 1931 Elektrostal Town Court 16/08/06 14/02/08 37069/08 19/06/08 Andronova Tamara Mikhaylovna 1928 Elektrostal Town Court 23/10/06 04/03/08 37072/08 25/06/08 Vasyunina Lyudmila Leontyevna 1948 Elektrostal Town Court 08/09/06 22/02/08 37568/08 01/07/08 Titov Yevgeniy Nikolayevich 1947 Elektrostal Town Court 11/09/06 24/01/08 37717/08 02/07/08 Knyazev Yuriy Anatolyevich 1952 Elektrostal Town Court 05/10/06 05/03/08 38120/08 16/07/08 Yevseyeva Nina Vasilyevna 1941 Elektrostal Town Court 18/09/06 25/03/08 38832/08 16/07/08 Usova Valentina Mikhaylovna 1945 Elektrostal Town Court 18/09/06 25/03/08 39479/08 19/07/08 Lazarenko Tatyana Mikhaylovna 1953 Elektrostal Town Court 15/09/06 31/03/08 39532/08 02/08/08 Khrisova Antonina Dmitriyevna 1957 Elektrostal Town Court 20/11/06 14/03/08 39601/08 02/08/08 Baranova Lyudmila Ivanovna 1955 Elektrostal Town Court 26/09/06 11/03/08 40675/08 18/07/08 Bovtalo Nikolay Ivanovich 1950 Elektrostal Town Court 20/10/06 23/01/08 40676/08 19/07/08 Shmakov Vladimir Dmitriyevich 1951 Elektrostal Town Court 06/10/06 22/02/08 40678/08 19/07/08 Shmakova Tatyana Aleksandrovna 1952 Elektrostal Town Court 06/10/06 22/02/08 41157/08 23/07/08 Shcherbakov Sergey Germanovich 1952 Elektrostal Town Court 21/09/06 12/02/08 41158/08 02/08/08 Bezikon Alla Vladimirovna 1958 Elektrostal Town Court 20/11/06 14/03/08 41161/08 28/07/08 Gorenshteyn Valentina Alekseyevna 1935 Elektrostal Town Court 23/10/06 04/04/08 41163/08 29/07/08 Yevseyeva Emiliya Fyodorovna 1939 Shchyolkovo Town Court 31/07/06 04/03/08 41794/08 04/07/08 Musorina Galina Ilyinichna 1939 Shchyolkovo Town Court 20/11/06 17/01/08 41804/08 27/06/08 Tishchenko Mikhail Kirillovich 1944 Shchyolkovo Town Court 13/10/06 12/02/08 41806/08 23/04/08 Sergeyenko Yuriy Mikhaylovich 1932 Elektrostal Town Court 25/05/06 27/11/07 41807/08 04/07/08 Levkina Lyubov Sergeyevna 1950 Shchyolkovo Town Court 21/11/06 14/01/08 41810/08 04/07/08 Rusin Vasiliy Pavlovich 1931 Elektrostal Town Court 19/09/06 07/02/08 41820/08 08/07/08 Popova Galina Ivanovna 1953 Noginsk Town Court 18/09/03 14/01/08 41822/08 09/07/08 Odina Olga Ivanovna 1951 Elektrostal Town Court 21/09/06 11/02/08 41824/08 09/07/08 Tikhomirov Viktor Feoktistovich 1946 Elektrostal Town Court 16/10/06 15/01/08 41825/08 09/07/08 Bulatova Galina Vasilyevna 1951 Elektrostal Town Court 21/09/06 24/03/08 Butskikh Amalia Efimovna 1930 Elektrostal Town Court 21/09/06 24/03/08 Chuvatkin Vladimir Yakovlevich 1925 Elektrostal Town Court 21/09/06 24/03/08 41828/08 09/07/08 Borisova Zinaida Nilovna 1925 Elektrostal Town Court 16/08/06 15/01/08 41911/08 09/08/08 Kharitonova Tatyana Valentinovna 1956 Elektrostal Town Court 12/10/06 26/03/08 41975/08 28/06/08 Ionova Svetlana Dmitriyevna 1951 Elektrostal Town Court 27/10/06 28/02/08 Application no. Introduced on Applicant Born in Court Judgment of Quashed on 41981/08 05/07/08 Smirnov Yuriy Aleksandrovich 1930 Elektrostal Town Court 23/10/06 18/03/08 42005/08 26/07/08 Sukonkina Galina Aleksandrovna 1938 Elektrostal Town Court 21/09/06 14/01/08 42006/08 26/07/08 Sukonkin German Alekseyevich 1934 Elektrostal Town Court 21/09/06 04/03/08 44357/08 28/08/08 Gunina Natalya Prokofyevna 1952 Elektrostal Town Court 03/10/06 13/03/08 44361/08 09/08/08 Anokhina Lyubov Ivanovna 1948 Shchyolkovo Town Court 22/09/06 04/03/08 44617/08 08/07/08 Arkhipova Aleksandra Anatolyevna 1937 Elektrostal Town Court 21/08/06 21/03/08 45200/08 22/08/08 Pichugina Yekaterina Pavlovna 1958 Elektrostal Town Court 28/06/06 31/03/08 45204/08 21/08/08 Parshenkova Olga Viktorovna 1959 Elektrostal Town Court 18/09/06 25/03/08 Kuzmina Yevdokiya Pavlovna 1945 Elektrostal Town Court 18/09/06 25/03/08 45207/08 22/08/08 Zelova Praskovya Sergeyevna 1927 Elektrostal Town Court 09/10/06 27/02/08 45243/08 22/08/08 Semencheva Nadezhda Anatolyevna 1954 Elektrostal Town Court 05/10/06 10/04/08 45246/08 21/08/08 Chaykova Galina Grigoriyevna 1947 Elektrostal Town Court 15/09/06 26/03/08 45253/08 05/08/08 Bugreyeva Yelena Stepanovna 1930 Elektrostal Town Court 07/11/06 27/03/08 45258/08 15/08/08 Mikhaylova Tamara Ivanovna 1957 Elektrostal Town Court 03/10/06 13/03/08 45261/08 15/08/08 Inkina Tamara Aleksandrovna 1949 Elektrostal Town Court 11/10/06 31/03/08 45265/08 16/08/08 Rakova Natalya Sergeyevna 1951 Elektrostal Town Court 28/09/06 19/02/08 45833/08 01/08/08 Myachin Sergey Fyodorovich 1953 Elektrostal Town Court 04/10/06 28/03/08 45834/08 17/07/08 Khokhlova Valentina Mikhaylovna 1929 Elektrostal Town Court 16/11/06 26/03/08 46047/08 19/08/08 Starchukova Zinaida Ivanovna 1933 Shchyolkovo Town Court 13/11/06 11/03/08 46210/08 30/08/08 Fakhrtdinov Aleksandr Gayasovich 1945 Voskresensk Town Court 14/04/05 09/04/08 46211/08 03/09/08 Roslyakova Svetlana Aleksandrovna 1939 Voskresensk Town Court 20/06/05 06/03/08 46215/08 30/08/08 Romanov Yevgeniy Petrovich 1954 Elektrostal Town Court 03/10/06 13/03/08 46218/08 30/08/08 Roslyakova Yelena Aleksandrovna 1952 Voskresensk Town Court 04/04/06 11/04/08 46965/08 14/08/08 Antonov Mikhail Alekseevich 1953 Elektrostal Town Court 21/11/06 25/03/08 46968/08 02/09/08 Savinova Valentina Maksimovna 1941 Elektrostal Town Court 27/10/06 25/03/08 47762/08 16/09/08 Dubanova Tatyana Sergeyevna 1948 Elektrostal Town Court 23/10/06 26/03/08 47768/08 22/09/08 Pershin Viktor Ivanovich 1956 Elektrostal Town Court 09/11/06 19/02/08 47774/08 05/09/08 Tyuvayev Nikolay Vasilyevich 1952 Elektrostal Town Court 23/10/06 26/03/08 47776/08 05/09/08 Fedotova Galina Aleksandrovna 1951 Voskresensk Town Court 25/04/05 20/02/08 47779/08 13/09/08 Poloskov Viktor Leonidovich 1925 Elektrostal Town Court 30/10/06 31/03/08 47783/08 06/09/08 Romanova Nadezhda Viktorovna 1929 Voskresensk Town Court 19/05/05 12/03/08 47878/08 14/08/08 Zenina Valentina Nikityevna 1940 Elektrostal Town Court 17/10/06 27/03/08 48025/08 25/08/08 Pavlova Tatyana Anatolyevna 1953 Elektrostal Town Court 21/09/06 21/03/08 48045/08 22/08/08 Krayushkina Lyubov Aleksandrovna 1947 Elektrostal Town Court 27/10/06 28/02/08 48049/08 22/08/08 Perevitskaya Marina Vladislavovna 1953 Elektrostal Town Court 27/10/06 28/02/08 48054/08 23/08/08 Gusarova Maria Efimovna 1933 Elektrostal Town Court 14/08/06 03/03/08 48056/08 22/08/08 Krasilnikova Rimma Nikolayevna 1949 Elektrostal Town Court 27/09/06 20/03/08 48587/08 16/09/08 Shamova Galina Vasilyevna 1951 Elektrostal Town Court 23/10/06 02/04/08 48606/08 16/09/08 Denis Valentina Fedorovna 1948 Elektrostal Town Court 09/11/06 02/04/08 48854/08 07/09/08 Samsonov Valentin Nikolayevich 1946 Elektrostal Town Court 20/11/06 20/03/08 48861/08 07/09/08 Ogurtsova Antonina Ivanovna 1929 Elektrostal Town Court 23/10/06 27/03/08 Application no.", "Introduced on Applicant Born in Court Judgment of Quashed on 48877/08 20/09/08 Kazina Tatyana Konstantinovna 1949 Elektrostal Town Court 21/08/06 21/03/08 48942/08 12/09/08 Bryunina Tatyana Germanovna 1949 Elektrostal Town Court 13/10/06 13/03/08 48956/08 16/09/08 Sapunov Vladimir Ignatyevich 1939 Elektrostal Town Court 20/11/06 28/03/08 49322/08 19/09/08 Saprykin Igor Nikolayevich 1950 Elektrostal Town Court 30/10/06 27/03/08 49325/08 19/09/08 Ivanova Nina Nikolayevna 1951 Elektrostal Town Court 30/10/06 20/03/08 49411/08 22/09/08 Galochkina Irina Lvovna 1959 Elektrostal Town Court 15/09/06 26/03/08 49415/08 22/09/08 Goncharenko Viktor Grigoryevich 1948 Elektrostal Town Court 15/09/06 26/03/08 49563/08 16/09/08 Trimasova Nina Vasilyevna 1934 Elektrostal Town Court 21/09/06 25/03/08 51002/08 02/10/08 Kolosovskaya Lyudmila Vasilyeva 1929 Elektrostal Town Court 25/10/06 07/06/08 52521/08 22/09/08 Lukina Galina Pavlovna 1956 Elektrostal Town Court 15/09/06 26/03/08 52557/08 30/08/08 Feofanov Anatoliy Leonidovich 1947 Voskresensk Town Court 26/04/05 17/03/08 52563/08 27/08/08 Mosina Natalya Nikolayevna 1952 Elektrostal Town Court 23/10/06 26/03/08 52566/08 21/08/08 Kovyrshina Larisa Vasilyevna 1959 Elektrostal Town Court 14/09/06 26/03/08 53574/08 14/08/08 Igonin Oleg Vasilyevich 1946 Elektrostal Town Court 30/10/06 26/03/08 53579/08 03/09/08 Larkova Raisa Zakharovna 1947 Voskresensk Town Court 04/07/05 06/03/08 53583/08 08/09/09 Mitichev Yevgeniy Vasilyevich 1955 Voskresensk Town Court 21/03/06 12/03/08 53587/08 21/08/08 Petrova Lyudmila Vasilyevna 1930 Elektrostal Town Court 21/09/06 21/03/08 53589/08 22/08/08 Yefimova Zoya Fedorovna 1946 Elektrostal Town Court 04/10/06 26/03/08 53593/08 23/07/08 Zavyalova Kseniya Petrovna 1935 Elektrostal Town Court 25/09/06 24/01/08 53595/08 26/07/08 Solomatin Mikhail Pavlovich 1925 Elektrostal Town Court 20/11/06 17/03/08 53600/08 09/07/08 Volchukova Mariya Ivanovna 1932 Elektrostal Town Court 31/07/06 24/01/08 53603/08 18/09/08 Tulyakova Olga Viktorovna 1955 Elektrostal Town Court 18/10/06 26/03/08 53605/08 05/09/08 Rukityanskaya Nina Mikhaylovna 1945 Elektrostal Town Court 27/10/06 27/03/08 53607/08 05/09/08 Rukityanskiy Vladimir Dmitriyevich 1941 Elektrostal Town Court 27/10/06 02/04/08 53611/08 20/08/08 Kukuy Irina Stepanovna 1935 Elektrostal Town Court 09/11/06 02/04/08 53614/08 19/08/08 Starkova Mariya Vasilyevna 1932 Elektrostal Town Court 12/10/06 21/02/08 53617/08 13/08/08 Bogatov Akim Fedorovich 1928 Elektrostal Town Court 12/10/06 27/03/08 53620/08 20/06/08 Alferova Nadezhda Mikhaylovna 1956 Elektrostal Town Court 13/09/06 11/02/08 53623/08 02/09/08 Nazina Yuliya Pavlovna 1929 Elektrostal Town Court 09/11/06 25/03/08 53629/08 13/08/08 Bondar Anatoliy Ivanovich 1929 Elektrostal Town Court 10/11/06 13/03/08 53632/08 24/09/08 Romanova Galina Dmitriyevna 1952 Elektrostal Town Court 27/10/06 25/03/08 54367/08 09/08/08 Khusyainova Rauza Safovna 1950 Shchyolkovo Town Court 21/08/06 04/03/08 54379/08 11/08/08 Dent Yuriy Semenovich 1937 Shchyolkovo Town Court 17/11/06 15/02/08 54384/08 22/07/08 Mokrinskaya Marina Nikolayevna 1959 Elektrostal Town Court 20/10/06 23/01/08 54392/08 18/08/08 Kuznetsova Aleksandra Petrovna unknown Elektrostal Town Court 06/10/06 22/02/08 54396/08 54396/08 Panfilova Olga Georgiyevna 1954 Voskresensk Town Court 12/07/05 28/02/08 54398/08 04/07/08 Subbotina Tatyana Vasilyevna 1950 Shchyolkovo Town Court 13/11/06 09/01/08 54399/08 03/07/08 Andrianova Antonina Aleksandrovna 1937 Elektrostal Town Court 17/10/06 27/03/08 54400/08 03/07/08 Kvasova Olga Yuryevna 1958 Elektrostal Town Court 09/11/06 19/02/08 54431/08 19/09/08 Musinov Viktor Nikolayevich 1947 Elektrostal Town Court 13/10/06 13/03/08 54456/08 05/06/08 Romantsova Mariya Yakovlevna 1939 Elektrostal Town Court 19/09/06 11/03/08 Application no. Introduced on Applicant Born in Court Judgment of Quashed on 54470/08 12/08/08 Khlopova Tatyana Nikolayevna 1950 Elektrostal Town Court 06/10/08 28/02/08 54473/08 22/07/08 Lyalkina Galina Ivanovna 1924 Elektrostal Town Court 17/11/06 28/03/08 54507/08 24/06/08 Obyedkova Tamara Mikhaylovna 1951 Elektrostal Town Court 16/08/06 23/01/08 54513/08 13/08/08 Khakimova Zaynyad 1927 Elektrostal Town Court 28/09/06 21/02/08 54526/08 12/08/08 Zaytseva Valentina Leonidovna 1947 Elektrostal Town Court 12/10/06 19/03/08 54530/08 08/08/08 Chelnokova Lyudmila Yakovlevna 1941 Elektrostal Town Court 05/10/06 10/04/08 54590/08 31/07/08 Shatilov Dmitriy Mikhaylovich 1952 Elektrostal Town Court 09/10/06 02/04/08 54593/08 13/08/08 Yefimenko Vladimir Aleksandrovich 1946 Elektrostal Town Court 15/10/06 26/03/08 54596/08 13/08/08 Fedorova Valentina Nikolayevna 1934 Elektrostal Town Court 18/10/06 27/03/08 54602/08 29/07/08 Solomatina Rimma Mikhaylovna 1930 Elektrostal Town Court 21/11/06 19/03/08 54605/08 29/07/08 Klimov Viktor Yegorovich 1941 Elektrostal Town Court 30/10/06 02/04/08 54608/08 18/07/08 Dubovitskaya Nina Ivanovna 1938 Elektrostal Town Court 29/09/06 28/02/08 56037/08 21/10/08 Musatova Galina Ivanovna 1960 Voskresensk Town Court 12/09/06 22/04/08 56774/08 06/10/08 Pusep Viktor Vasilyevich 1952 Voskresensk Town Court 24/05/05 08/04/08 56778/08 06/09/08 Sidorova Tatyana Petrovna 1954 Elektrostal Town Court 19/10/06 20/03/08 56781/08 30/08/08 Romanova Tatyana Semenovna 1954 Elektrostal Town Court 03/10/06 13/03/08 56784/08 04/09/08 Zotova Tamara Yuryevna 1951 Voskresensk Town Court 10/08/06 04/03/08 56786/08 12/09/08 Chernikov Aleksey Grigoryevich 1955 Voskresensk Town Court 06/03/06 12/03/08 56789/08 09/09/08 Yamshchikova Lidiya Andriyanovna 1946 Elektrostal Town Court 18/10/06 26/03/08 56801/08 03/09/08 Sidorova Nadezhda Petrovna 1927 Elektrostal Town Court 20/11/06 28/03/08 56806/08 05/09/08 Tyuvayeva Nadezhda Vasilyevna 1954 Elektrostal Town Court 23/10/06 28/03/08 56813/08 03/09/08 Chernetskaya Polina Vasilyevna 1928 Elektrostal Town Court 16/08/06 14/03/08 56816/08 14/08/08 Chernomurov Yuriy Nikolayevich 1952 Elektrostal Town Court 13/09/06 18/02/08 56827/08 10/09/08 Tsybenko Liya Borisovna 1957 Elektrostal Town Court 15/11/06 03/04/08 56832/08 02/10/08 Kashtanova Tatyana Vladimirovna 1947 Elektrostal Town Court 25/10/06 07/06/08 56837/08 25/09/08 Yeliseyeva Galina Vasilyevna 1948 Elektrostal Town Court 05/10/06 10/04/08 58306/08 17/10/08 Akatova Lidiya Alekseyevna 1927 Elektrostal Town Court 31/07/06 31/03/08 58344/08 29/04/08 Vaskina Valentina Nikolayevna 1946 Elektrostal Town Court 31/05/06 06/11/07 59027/08 08/10/08 Gurova Olga Ivanovna 1956 Elektrostal Town Court 21/11/06 07/06/08 59599/08 25/09/08 Rogatin Vyacheslav Aleksandrovich 1955 Voskresensk Town Court 11/05/06 03/04/08 59626/08 30/08/08 Moskalenko Vladimir Vasilyevich 1948 Voskresensk Town Court 16/02/06 05/03/08 59628/08 01/09/08 Bulekov Pavel Fyodorovich 1930 Voskresensk Town Court 18/04/06 03/03/08 59698/08 16/08/08 Krylov Yuriy Vladimirovich 1949 Elektrostal Town Court 21/09/06 11/03/08 59699/08 20/09/08 Fomichev Nikolay Petrovich 1929 Voskresensk Town Court 05/08/05 26/03/08 59703/08 08/10/08 Sharova Larisa Vasilyevna 1947 Elektrostal Town Court 20/10/06 27/03/08 60036/08 22/11/08 Ivanova Nadezhda Vladimirovna 1955 Elektrostal Town Court 25/10/06 10/06/08 4507/09 19/11/08 Bakhireva Natalya Dmitriyevna 1956 Elektrostal Town Court 26/10/06 07/06/08 [1].Factual details concerning individual applications are given in the Annex." ]
[ "GRAND CHAMBER CASE OF SATAKUNNAN MARKKINAPÖRSSI OY AND SATAMEDIA OY v. FINLAND (Application no. 931/13) JUDGMENT STRASBOURG 27 June 2017 This judgment is final but it may be subject to editorial revision. In the case of Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland, The European Court of Human Rights, sitting as a Grand Chamber composed of: András Sajó, President,Işıl Karakaş,Angelika Nußberger,Ganna Yudkivska,Luis López Guerra,Mirjana Lazarova Trajkovska,Kristina Pardalos,Vincent A. De Gaetano,Paulo Pinto de Albuquerque,Helen Keller,Aleš Pejchal,Jon Fridrik Kjølbro,Síofra O’Leary,Carlo Ranzoni,Armen Harutyunyan,Pauliine Koskelo,Marko Bošnjak, judges,and Lawrence Early, Jurisconsult, Having deliberated in private on 14 September 2016 and on 5 April 2017, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no.", "931/13) 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 two Finnish limited liability companies, Satakunnan Markkinapörssi Oy and Satamedia Oy (“the applicant companies”) which had their seat in Kokemäki, Finland, on 18 December 2012. 2. The applicant companies were represented by Mr Pekka Vainio, a lawyer practising in Turku. The Finnish Government (“the Government”) were represented by their Agents, first Mr Arto Kosonen and then Ms Krista Oinonen, both from the Ministry for Foreign Affairs. 3.", "The applicant companies alleged, in particular, that their right to freedom of expression under Article 10 of the Convention had been violated and that the length of the domestic proceedings had been excessive, in breach of Article 6 § 1 of the Convention. 4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 21 July 2015 a Chamber of that Section, composed of Guido Raimondi, Päivi Hirvelä, George Nicolaou, Nona Tsotsoria, Krzysztof Wojtyczek, Faris Vehabović, and Yonko Grozev, judges, and also of Fatoş Aracı, Deputy Section Registrar, delivered its judgment. It decided by a majority to declare the complaints concerning violation of the right to freedom of expression and the unreasonable length of the proceedings admissible and the remainder of the application inadmissible, and held, by six votes to one, that there had been no violation of Article 10 and, unanimously, that there had been a violation of Article 6 of the Convention.", "The concurring opinion of Judge Nicolaou and the dissenting opinion of Judge Tsotsoria were annexed to the judgment. On 21 October 2015 the applicant companies requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. On 14 December 2015 the panel of the Grand Chamber granted that request. 5. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court.", "At the final deliberations, Helen Keller, substitute judge, replaced Alena Poláčková, who was unable to take part in the further consideration of the case (Rule 24 § 3). 6. The applicants and the Government each filed written observations (Rule 59 § 1) on the merits. In addition, third-party observations were received from the European Information Society Institute, the Nordplus Law and Media Network, Article 19, the Access to Information Programme and Társaság a Szabadságjogokért, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). 7.", "A hearing took place in public in the Human Rights Building, Strasbourg, on 14 September 2016 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMsK. Oinonen, Director, Ministry for Foreign Affairs,Agent,MsA. Talus, Senior Adviser, Ministry of JusticeMsH. hynynen, Senior Adviser, Finnish Tax Administration,MsS.", "Sistonen, Legal Officer, Ministry for Foreign Affairs,MrA. Kosonen, Director (ret. ), Ministry for Foreign Affairs, Advisers; (b) for the applicant companiesMrP. Vainio, Lawyer,Counsel. The Court heard addresses by Ms K. Oinonen and Mr P. Vainio and the replies given by them to questions put by the judges.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Background to the case 8. Since 1994 the first applicant company, Satakunnan Markkinapörssi Oy collected data from the Finnish tax authorities for the purpose of publishing information about natural persons’ taxable income and assets in the Veropörssi newspaper. Several other publishing and media companies also publish such data which, pursuant to Finnish law, are accessible to the public (see paragraph 39 below for an explanation of the Finnish access to information regime).", "9. In 2002 Veropörssi appeared 17 times, with each issue concentrating on a certain geographical area of the country. The data published comprised the surnames and forenames of approximately 1.2 million natural persons whose annual taxable income exceeded certain thresholds, mainly from 60,000 to 80,000 Finnish marks (approximately 10,000 to 13,500 euros (EUR)), as well as the amount, to the nearest EUR 100, of their earned and unearned income and taxable net assets. When published in the newspaper, the data were set out in the form of an alphabetical list and organised according to municipality and income bracket. 10.", "The first applicant company worked in cooperation with the second applicant company, Satamedia Oy, and both were owned by the same shareholders. In 2003 the first applicant company started to transfer personal data published in Veropörssi, in the form of CD-ROM discs, to the second applicant company which, together with a mobile telephone operator, started a text-messaging service (SMS service). By sending a person’s name to a service number, taxation information could be obtained concerning that person, on the requesting person’s mobile telephone, if information was available in the database or register created by the second applicant company. This database was created using personal data already published in the newspaper and transferred in the form of CD-ROM discs to the second applicant company. From 2006 the second applicant company also published Veropörssi.", "11. It transpires from the case file that in 1997 the Minister of Justice requested that the police instigate a criminal investigation into the publishing activities of the applicant companies. No information is contained in the file as to the outcome of this request or of any subsequent investigation. 12. In September 2000 and November 2001, the applicant companies ordered taxation data from the Finnish National Board of Taxation (verohallitus, skattestyrelsen).", "Following the first order, the Board requested an opinion from the Data Protection Ombudsman, on the basis of which the Board invited the applicant companies to provide further information regarding their request and indicating that the data could not be disclosed if Veropörssi continued to be published in its usual form. The applicant companies subsequently cancelled their data request and paid people to collect taxation data manually at the local tax offices. B. First set of proceedings (2004 – 2009) 1. Decisions of the Data Protection Ombudsman and the Data Protection Board 13.", "On an unspecified date, probably in 2003, the Data Protection Ombudsman (tietosuojavaltuutettu, dataombudsmannen) contacted the applicant companies and advised them that, although accessing and publishing taxation data were not prohibited as such, they had to cease publishing such data in the manner and to the extent that had been the case in 2002, when they had published data concerning the 2001 tax year. The applicant companies refused to abide by this request, which they considered violated their right to freedom of expression. 14. By a letter of 10 April 2003 the Data Protection Ombudsman asked the Data Protection Board (tietosuojalautakunta, datasekretessnämnden) to prohibit the applicant companies from processing the taxation data in the manner and to the extent that had been the case in 2002 and from passing those data to the SMS service. He claimed that under the Personal Data Act the companies had no right to collect, store or pass on personal data and that the derogation provided by that Act concerning journalism did not, in his view, apply to the present case.", "The collecting of taxation information and the passing of such information to third parties were not for journalistic purposes and therefore were not covered by the derogation in the Personal Data Act, but rather constituted the processing of personal data in which the applicant companies had no right to engage. 15. On 7 January 2004 the Data Protection Board dismissed the Data Protection Ombudsman’s request. It found that the derogation laid down in the Personal Data Act concerning journalism applied to the present case. As regards the SMS service, the data used in the service had already been published in Veropörssi and therefore the Act did not apply to it.", "2. Decision of the Helsinki Administrative Court (2005) 16. By letter dated 12 February 2004 the Data Protection Ombudsman appealed to the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen) reiterating his request that the applicant companies be prohibited from processing taxation data in the manner and to the extent that had been the case in 2002 and from passing such data to the SMS service. 17. On 29 September 2005 the Administrative Court rejected the appeal.", "It found that the derogation laid down in the Personal Data Act concerning journalism, which had its origins in Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data was adopted (OJ 1995 L 281, p. 31, hereafter “the Data Protection Directive”), should not be interpreted too strictly, as an overly strict interpretation would favour protection of privacy over freedom of expression. That court considered that Veropörssi had a journalistic purpose and that it was also in the public interest to publish such data. It emphasised, in particular, that the published data were already accessible to the general public. The journalism derogation thus applied in the circumstances of the present case. As regards the SMS service, the Administrative Court agreed with the Data Protection Board that, as the information had already been published in the newspaper, the Act did not apply to it.", "3. Appeal to the Supreme Administrative Court (2005) 18. By letter dated 26 October 2005 the Data Protection Ombudsman lodged an appeal with the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), reiterating the grounds of appeal already presented before the Helsinki Administrative Court. 19. On 8 February 2007 the Supreme Administrative Court decided to request a preliminary ruling from the Court of Justice of the European Communities (which became the Court of Justice of the European Union on 1 December 2009, hereafter the “CJEU”) on the interpretation of Directive 95/46/EC.", "4. Preliminary ruling of the CJEU (2008) 20. On 16 December 2008 the Grand Chamber of the CJEU handed down its judgment (see Case C-73/07 Tietosuojavaltuutettu v. Satakunnan Markkinapörssi Oy and Satamedia Oy, EU:C:2008:727). It found, first of all, that the activities in question constituted “processing of personal data” within the meaning of Article 3(1) of Directive 95/46. According to the CJEU, activities involving the processing of personal data such as those relating to personal data files which contained solely, and in unaltered form, material that had already been published in the media, also fell within the scope of the Directive (see paragraphs 37 and 49 of the judgment).", "The object of the derogation in Article 9 of the Directive for the processing of personal data carried out solely for journalistic purposes was to reconcile the protection of privacy with freedom of expression. In order to take account of the importance of the latter in every democratic society, it was necessary to interpret notions relating to that freedom, such as journalism, broadly. However, in order to achieve a balance between those two fundamental rights, the protection of the fundamental right to privacy required that the derogations and limitations in relation to the protection of data had to apply only in so far as were strictly necessary (see paragraphs 54 and 56 of the judgment). Journalistic activities were not limited to media undertakings and could be undertaken for profit-making purposes (see paragraph 61). Furthermore, when interpreting the journalistic purposes derogation, account must be taken of the evolution and proliferation of methods of communication and the dissemination of information.", "Activities such as those involved in the domestic proceedings, relating to data from documents which were in the public domain under domestic legislation, could be classified as “journalistic activities” if their sole object was the disclosure to the public of information, opinions or ideas, irrespective of the medium which was used to transmit them. Whether or not that was the case, was for the national court to determine (see paragraphs 60-62 of the judgment). 5. Decision of the Supreme Administrative Court (2009) 21. On 23 September 2009 the Supreme Administrative Court, applying the ruling of the CJEU and with reference to the case-law on Article 10 of the Convention, quashed the impugned decisions of the Data Protection Board and the Helsinki Administrative Court and referred the case back to the Data Protection Board for a fresh examination with a view to issuing an order pursuant to section 44(1) of the Personal Data Act.", "The Supreme Administrative Court requested the Board to prohibit the processing of taxation data by the applicant companies in the manner and to the extent carried out in 2002. 22. In its legal assessment, the Supreme Administrative Court gave the following reasoning: “Scope of the matter The present case does not concern the question of the extent to which taxation data and official documents concerning taxation are public under the Act on the Public Disclosure and Confidentiality of Tax Information. Nor does it concern the right to publish taxation data as such but only the processing of personal data. Therefore, there is no issue of possible prior interference with the content of the publications, but rather an assessment of whether the legal conditions set for personal data processing and protection of privacy are fulfilled.", "The reconciliation of protection of privacy with freedom of expression is part of the legal assessment of personal data processing in the matter. ... Reconciliation of the protection of privacy and freedom of expression Interpretation of the exception concerning journalistic purposes in the Data Protection Directive. The Court of Justice of the European Communities emphasised that the purpose of the Data Protection Directive is to ensure that when processing their personal data, the Member States guarantee individuals’ fundamental rights and freedoms, and in particular their right to privacy, while allowing the free movement of such information. The Court further emphasised that these fundamental rights must be reconciled to a certain extent with the fundamental right to freedom of expression, and that this task belongs to the Member States. ...", "It therefore appears from the aforementioned ruling of the Court of Justice of the European Communities that the concept of journalism must, as such, be interpreted broadly within the meaning of Article 9 of the Directive, that, on the other hand, the protection of privacy can be derogated from only in so far as it is strictly necessary, and that this task of reconciliation of the two fundamental rights is the task of the Member States. Ensuring proper balance between the rights and interests at stake, including the fundamental rights guaranteed in the Communities’ legal order, is the task of the domestic authorities and courts (see also case C-101/01 Lindqvist). Interpretation of the exception in the Personal Data Act concerning journalistic purposes. ... It transpires from the preparatory work on the Personal Data Act (HE 96/1998 vp) that the purpose of the adoption of the Personal Data Act was to maintain the existing situation in respect of journalistic files kept by the media, provided it remained within the limits imposed by the Data Protection Directive.", "Therefore, in order to conclude that processing of personal data is conducted for journalistic purposes within the meaning of the Personal Data Act, inter alia, that data must be used solely for journalistic activities and the data must not be made available to persons other than those involved in those journalistic activities. When interpreting section 2(5) of the Personal Data Act, particular regard must be had to the fact that it concerns the reconciliation of two fundamental rights, namely the freedom of expression and the protection of privacy. ... The case-law of the European Court of Human Rights has also adopted a position on reconciling freedom of expression with the protection of privacy. The Court has held, inter alia in its von Hannover judgment of 24 June 2004, that the press plays an essential role in a democratic society.", "Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart, in a manner consistent with its obligations and responsibilities, information and ideas on all matters of public interest. On the other hand, the Court also held in the above-mentioned judgment that increased vigilance as regards the protection of private life was necessary in order to contend with the new communications technologies which make it possible to store and reproduce personal data. According to the Court, when balancing the protection of private life against freedom of expression, the decisive criterion had to be the contribution made by publishing the data to a debate of public interest. If a publication is only meant to satisfy the curiosity of a certain audience, freedom of expression must be interpreted more narrowly. In the present case, it must be assessed to what extent the impugned processing of personal data as carried out in the course of the companies’ activities falls within the scope of the exception concerning journalistic purposes that is provided for in section 2(5) of the Personal Data Act.", "The starting point is whether the aim of their activities was to disclose information, opinions or ideas to the public. In this assessment, account must be taken of whether or to what extent those activities can be seen as contributing to a debate in a democratic society rather than solely satisfying the curiosity of certain individuals. Processing of personal taxation data in the background file of Satakunnan Markkinapörssi Oy and in the Veropörssi newspaper Satakunnan Markkinapörssi Oy collected for the Veropörssi newspaper taxation data from different tax offices in which individuals’ names appear together with information on their taxable income. As mentioned above, the case concerns the processing of personal data to which the general requirements in Chapter 2 of the Personal Data Act are applicable, unless the Act allows for an exception from the application of these provisions. It must first of all be assessed whether the processing of personal data in the company’s background file before the publication of such data in the Veropörssi newspaper falls within the scope of the exception concerning journalistic purposes.", "From the preparatory work on the amendment of the Personal Data File Act (HE 311/1993 vp), which was the Act in force before the Personal Data Act, it transpires in particular that the press considers that the right to freely disclose information also requires journalists to be able, in advance, to freely collect and store information. Restricting the processing of personal data at this stage, that is to say before publication, could in practice mean that a prior decision is taken on what can be published. Such an outcome would be incompatible with the fundamental right guaranteeing freedom of expression. The issue at stake in the present case concerns publicly accessible personal data received from the tax authorities. The collection and processing of such data in the company’s internal files for the purpose of the company’s publishing activities can, on the basis of above-mentioned grounds, be regarded as processing of personal data for journalistic purposes.", "The processing of large quantities of such data from the various municipal taxation records may well be necessary as background information for the purpose of the editing of a publication concerning taxation and from the point of view of free communication and open debate. At this stage of activities the protection of the privacy of the persons concerned can also be sufficiently secured, provided that the data collected and stored in the file are protected against unlawful processing as required by section 32 of the Personal Data Act. Satakunnan Markkinapörssi Oy has published the personal data collected from the tax offices as wide-ranging municipality-based catalogues in the Veropörssi newspaper. As already stated above, in this regard too it is a question of processing personal data within the meaning of section 3(2) of the Personal Data Act. As part of the case file, the Supreme Administrative Court had at its disposal Veropörssi newspaper no.", "14/2004, published by Satakunnan Markkinapörssi Oy and covering the Helsinki metropolitan area. In this respect it must be decided whether a derogation is possible from the requirements relating to the processing of personal data on the basis of section 2(5) of the Act, that is to say whether the impugned processing of personal data by publishing those data in the Veropörssi newspaper came within the scope of the exception provided for journalistic purposes. ... It transpires from the preparatory work on the Personal Data Act (HE 96/1998 vp) that the processing of data in the background file referred to in the Personal Data File Act must relate solely to journalistic activities and that the processed data must not be made available to any persons not engaged in journalistic activities. The purpose of section 2(5) of the Personal Data Act was to maintain the existing situation in respect of journalistic files kept by the media, within the limits allowed by the Data Protection Directive.", "Therefore, the purpose of the Personal Data Act in this respect can be seen as guaranteeing the possibility for free journalistic work prior to the publication of information. The term “processing of personal data for journalistic purposes” cannot be regarded as covering the large–scale publication of the journalistic background file, almost verbatim, as catalogues, albeit split into different parts and sorted by municipality. Since the disclosure of registered data on such a scale is equivalent to the disclosure of the entire background file kept for journalistic purposes by the company, such disclosure does not represent solely an expression of information, opinions or ideas. As stated above, with a view to reconciling the requirements of freedom of expression with the protection of privacy, the collection of data before publication has been made permissible under section 2(5) of the Personal Data Act without any requirement of compliance with general conditions set out in section 8 of the Act. By contrast, the processing of personal data collected in the company’s background file by publishing it and by rendering it available to the general public to the extent that has been done in the present case, and beyond the scope of the minimum requirements set out in section 2(5) of the Act, cannot be regarded as compatible with the purpose of the Personal Data Act.", "Open public-interest debate, the monitoring of the exercise of power in society and the freedom to criticise, which are necessary in a democratic society, do not require the disclosure of the personal data of specific individuals in the manner and to the extent described above. When regard is also had to the foregoing comments on the narrow interpretation of section 2(4) of the Personal Data Act and the fact that a strict literal interpretation of that provision would result in a situation incompatible with the purpose of the Act as regards protection of personal data, the processing of personal data with a view to publishing them in the Veropörssi newspaper, and as far as the contents of this publication itself are concerned, was not conducted for journalistic purposes within the meaning of the Personal Data Act. ... Having regard to sections 2(5) and 32 of the Personal Data Act and Article 9 of the Data Protection Directive, as interpreted by the Court of Justice of the European Communities in its preliminary ruling, the collection of personal data prior to its publication in the Veropörssi newspaper and its processing in the background file of Satakunnan Markkinapörssi Oy cannot as such be regarded as contrary to the regulations concerning the protection of personal data, provided that, inter alia, the data have been protected properly. However, with reference to all the clarifications on how and to what extent the personal data in the background file were further processed in the Veropörssi newspaper, Satakunnan Markkinapörssi Oy did in fact process personal data concerning natural persons in violation of the Personal Data Act. Handover of data in a CD-ROM Satakunnan Markkinapörssi Oy handed over a CD-ROM containing the published data to Satamedia Oy so that the latter could start up an SMS service using that data.", "As mentioned above, that action amounts to the processing of personal data within the meaning of section 3(2) of the Personal Data Act. Having regard to the preliminary ruling of the Court of Justice of the European Communities and its effect on the interpretation of section 2(4) of the Personal Data Act, as well as all that has been said above about the processing of personal data in the Veropörssi newspaper, the handover to Satamedia Oy of personal data collected in the background file of Satakunnan Markkinapörssi Oy, even though they were published in the Veropörssi newspaper, cannot be regarded as processing of personal data for journalistic purposes within the meaning of Personal Data Act. Nor can the processing of personal data in such a manner be regarded as having been effected for journalistic purposes within the meaning of Article 9 of the Data Protection Directive. Therefore, in that regard too, Satakunnan Markkinapörssi Oy processed personal data in violation of the Personal Data Act. Processing of personal data for the realisation of a SMS service by Satamedia Oy As stated above in the “Facts” section, Satamedia Oy handed over the above-mentioned personal data to a third company in order to start up a SMS service, which company operated the SMS service on behalf of Satamedia Oy.", "It was pointed out above that Satakunnan Markkinapörssi Oy had no right under the Personal Data Act to process the personal data at issue by handing it over to Satamedia Oy. Consequently, Satamedia Oy also had no right under the Personal Data Act to process personal data received in this manner. In addition, it follows from the preliminary ruling of the Court of Justice of the European Communities that the exception provided for in the Data Protection Directive, which concerns the processing of personal data for journalistic purposes, requires the disclosure of data to the public. According to section 2(1) of the Act on the Exercise of Freedom of Expression in Mass Media, the term “the public” in that Act refers to a group of freely determined message recipients. Satamedia Oy’s SMS service involves the company processing personal data relating to the taxation of a specific individual on the basis of a request by another individual.", "It therefore does not concern disclosure of data to the general public, as explained above, but replying to a request by an individual concerning the personal data of another individual. Open public-interest debate, the monitoring of the exercise of power in society and the freedom to criticise, which are necessary in a democratic society, do not require the possibility of processing the personal data of specific individuals as has been done in this case. Freedom of expression does not require any derogation from the protection of privacy in such a situation. The Court of Justice of the European Communities further stated in its preliminary ruling that the technical means used for the transfer of information is not relevant when assessing whether there is any question of activities undertaken solely for journalistic purposes. As regards the SMS service operated by Satamedia Oy, it is irrelevant that the data were transferred via mobile phones and text messages.", "Therefore, this is not a case of treating this mode of transmission of data differently from other modes of transmission. The assessment would be the same if the company processed, on the basis of a request by an individual, the personal data of another individual by using some other mode of transmission.” C. Second set of proceedings (2009 – 2012) 23. Pursuant to the above-mentioned judgment of the Supreme Administrative Court, on 26 November 2009 the Data Protection Board prohibited the first applicant company from processing taxation data in the manner and to the extent that had been the case in 2002 and from forwarding that information to an SMS service. It found that the collection of personal data prior to its publication in Veropörssi and its processing in the background file of the first applicant company could not as such be regarded as contrary to the data protection rules, provided, inter alia, that the data had been protected properly. However, considering the manner and the extent to which the personal data in the background file had been published in Veropörssi, the first applicant company had processed personal data concerning natural persons in violation of the Personal Data Act.", "The second applicant company was prohibited from collecting, storing or forwarding to an SMS service any data received from the first applicant company’s database and published in Veropörssi. 24. By letter dated 15 December 2009, after the Data Protection Board had made its decision, the Data Protection Ombudsman asked the applicant companies to indicate what action they were envisaging in response to the Board’s decision. In their reply, the applicant companies asked for the Data Protection Ombudsman’s views on the conditions under which they could continue to publish public taxation data at least to a certain extent. In his reply the Data Protection Ombudsman stated, with reference to the decision of the Data Protection Board of 26 November 2009, that “when data on taxable income were collected in a database and published in large catalogues almost as it stood, the Personal Data Act was applicable...”.", "He reminded them of his duty to report any breach of the Personal Data Act to the police. 25. By letter dated 9 February 2010 the applicant companies appealed against the decision of the Data Protection Board to the Helsinki Administrative Court, which transferred the case to the Turku Administrative Court. They complained that the decision violated the Constitutional prohibition of censorship as well as their right to freedom of expression. According to the applicants, under domestic law, it was not possible to prevent publication of information on the basis of the amount of information to be published or of the means used for its publication.", "Nor was it possible to rely on the “public interest” as a criterion for preventing publication where preventive restriction of freedom of expression was concerned. Accepting that would mean that the authorities would be able to prevent publication if they thought that the publication did not promote discussion of a topic of public interest. 26. On 28 October 2010 the Turku Administrative Court rejected the applicant companies’ appeal. It found that the Supreme Administrative Court had stated in its decision of 2009 that the case concerned neither the public accessibility of taxation data nor the right to publish such information per se.", "As the court was now examining only the 2009 decision rendered by the Data Protection Board, it could not examine the issues which the Supreme Administrative Court had excluded from the scope of its 2009 decision. As the Board’s decision corresponded to the content of the latter decision, there was no reason to change it. 27. By letter dated 29 November 2010 the applicant companies further appealed to the Supreme Administrative Court. 28.", "On 18 June 2012 the Supreme Administrative Court upheld the judgment of the Turku Administrative Court, reiterating that the case concerned neither the right to publish taxation information as such, nor preventive censorship. D. Subsequent developments 29. According to the information submitted by the applicants, the SMS service was shut down after the 2009 decision of the Supreme Administrative Court was served on the applicant companies. The newspaper continued publishing taxation data in autumn 2009 when its content was only one fifth of the previous content. Since then the newspaper has not appeared.", "The Government, on the other hand, submitted that, according to the applicant companies’ website, Veropörssi was still being published on a regional basis in 2010 and 2011. Moreover, an Internet service continued to operate allowing anyone to request a natural person’s tax data concerning the year 2014 by filling in a form on the website in question. The requested tax information would then be delivered to the customer by phone call, text message or e-mail. 30. The editor-in-chief of Veropörssi lodged an application with the Court in 2010, complaining that the impugned decision of the Supreme Administrative Court violated his right to freedom of expression.", "On 19 November 2013 the application was declared inadmissible as being incompatible ratione personae with the provisions of the Convention (see Anttila v. Finland (dec.), no. 16248/10, 19 November 2013). 31. The first applicant company was declared bankrupt on 15 March 2016. The bankruptcy administration did not oppose the continuation of the present proceedings before the Court (see paragraph 94 below).", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitutional provisions 32. Article 10 of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag, Act no. 731/1999), which protects the right to private life, states: “Everyone’s private life, honour and the sanctity of the home are guaranteed.", "More detailed provisions on the protection of personal data are laid down by an Act...” 33. Article 12 of the Constitution, which guarantees the freedom of expression, provides: “Everyone has the freedom of expression. Freedom of expression entails the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act. Provisions on restrictions relating to pictorial programmes that are necessary for the protection of children may be laid down by an Act.” B.", "Personal Data Act 1. Provisions of the Personal Data Act 34. The relevant provisions of the Personal Data Act (henkilötietolaki, personsuppgiftslagen, Act no. 523/1999, as in force at the relevant time) provided: “Chapter 1 – General provisions Section 1 – Objectives The objectives of this Act are to implement, in the processing of personal data, the protection of private life and the other basic rights which safeguard the right to privacy... Section 2 – Scope (1) The provisions of this Act apply to the processing of personal data, unless otherwise provided elsewhere in the law.", "(2) This Act applies to the automatic processing of personal data. It applies also to other processing of personal data where the data constitute or are intended to constitute a personal data file or a part thereof. ... (4) This Act does not apply to personal data files containing, solely and in unaltered form, data that have been published by the media. (5) Unless otherwise provided in section 17, only sections 1-4, 32, 39(3), 40(1) and (3), 42, 44(2), 45-47, 48(2), 50, and 51 of this Act apply, where appropriate, to the processing of personal data for purposes of journalism or artistic or literary expression. Section 3 – Definitions In this Act, (1) personal data means any information on a private individual and any information on his or her personal characteristics or personal circumstances, where these are identifiable as concerning him or her or the members of his or her family or household; (2) processing of personal data means the collection, recording, organisation, use, transfer, disclosure, storage, manipulation, combination, protection, deletion and erasure of personal data, as well as other measures directed at personal data; (3) personal data file means a set of personal data, connected by a common use and processed fully or partially automatically or sorted into a card index, directory or other manually accessible form so that the data pertaining to a given person can be retrieved easily and at reasonable cost; (4) controller means a person, corporation, institution or foundation, or a number of them, for the use of whom a personal data file is set up and who is entitled to determine the use of the file, or who has been designated as a controller by an Act; (5) data subject means the person to whom the personal data pertain; ...", "Section 32 – Data security (1) The controller shall carry out the technical and organisational measures necessary for securing personal data against unauthorised access, against accidental or unlawful destruction, manipulation, disclosure and transfer and against other unlawful processing... ... Section 44 – Orders of the Data Protection Board At the request of the Data Protection Ombudsman, the Data Protection Board may: (1) prohibit processing of personal data which is contrary to the provisions of this Act or the rules and regulations issued on the basis of this Act... ... (3) order that the operations pertaining to the file be ceased, if the unlawful conduct or neglect seriously compromise the protection of the privacy of the data subject or his or her interests or rights, provided that the file is not set up under a statutory scheme; ...” 35. Following the judgment of the CJEU of 2008 in the present case (see Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above), section 2(4) of the Personal Data Act was repealed by an Act enacted on 3 December 2010. 36. Government Bill to Parliament HE 96/1998 vp provides background information regarding the journalistic purposes derogation in section 2(5) of the Personal Data Act.", "The definition of a database for journalistic purposes was derived from the previous Act but was modified in order to transpose the Data Protection Directive. According to the preparatory work, “a database for journalistic purposes means such databases as are intended to be used only in the context of the journalistic activity of the media and which are not accessible to others”. “Media” is taken to mean any kind of mass media, including news and photo agencies when they keep databases containing personal data used in media’s publishing activities or a news agency’s own publishing activities. Information collected for storage in a database for journalistic purposes can be used only in the context of a journalistic activity, and not, for example, for administrative or marketing purposes. It is also required that the circle of users of the database is limited such as to be accessible only to those persons involved in the journalistic activity.", "A database for journalistic purposes can be kept, for example, by a newspaper publisher, an individual journalist or a free-lance journalist. 2. Examples of application of the Personal Data Act 37. In a decision of 23 January 2015, the Helsinki Administrative Court held that public taxation data could be provided to media in mass deliveries in electronic format. However, neither freedom of expression as a fundamental right nor the preparatory work relating to legislation on the publicity of and access to taxation data supported an interpretation of the law to the effect that the applicant in that case – a representative of a media organisation which had requested data relating to 5.2 million persons (all natural persons earning more than 1 euro in Finland) – had the right to receive such data in electronic format for journalistic purposes.", "38. In contrast, in his opinion of 5 July 2013, addressed to a complainant on another matter, the Data Protection Ombudsman held that the media organisation in question (Helsingin Sanomat) had processed data for journalistic purposes within the meaning and scope of the section 2(5) derogation. The latter had not published all of the personal data files collected by it for journalistic purposes, but had published data on a limited group of 10,000 persons considered to be the wealthiest people in Finland. The data published were accompanied by articles and presentations on some of those featured. C. Act on the Public Disclosure and Confidentiality of Tax Information 39.", "Sections 1-3 of the Act on the Public Disclosure and Confidentiality of Tax Information (laki verotustietojen julkisuudesta ja salassapidosta, lagen om offentlighet och sekretess i fråga om beskattningsuppgifter, Act no. 1346/1999) provide the following: “Section 1 – Scope of the Act This Act applies to documents concerning individual taxpayers which are submitted to or prepared by the tax administration (taxation documents) and the information contained therein (taxation information). The provisions concerning the taxpayer in this Act apply to other persons required to report information, and also to joint tax corporations. ... Section 2 – Relation to other provisions The provisions of the Act on the Openness of Government Activities (621/1999) and the Personal Data Act (523/1999) apply to taxation documents and information unless otherwise provided by this or some other Act.", "Section 3 – Public disclosure of and right of access to taxation information Taxation information is public to the extent provided in this Act. Everyone has the right to obtain information on a public taxation document in the possession of the tax administration as provided by the Act on the Openness of Government Activities, unless otherwise provided by this Act.” 40. According to section 5 of the Act, information on a taxpayer’s name, year of birth and municipality of domicile is public, as is the following information: “(1) earned income taxable in State taxation; (2) capital income and property taxable in State taxation; (3) income taxable in municipal taxation; (4) income and taxable net assets, municipal tax and the total amount of taxes and charges imposed; (5) the total amount of withholding tax; (6) the amount to be debited or the amount to be refunded in the final assessment for the tax year. ... The information referred to above in this section may be disclosed at the beginning of the November following the tax year, as valid on completion of the taxation.” 41.", "The preparatory work relating to section 5 of the Act indicates that the special regulation in section 16(3) of the Act on the Openness of Government Activities is applicable to data referred to in this section. It also indicates that the Personal Data Act does not restrict the collection of data for journalistic purposes and that the media can be given data referred to in section 5 for journalistic purposes, provided that there are no restrictions imposed by the rules on confidentiality. D. Act on the Openness of Government Activities 42. Section 1 (1) of the Act on the Openness of Government Activities (laki viranomaisten toiminnan julkisuudesta, lagen om offentlighet i myndigheternas verksamhet, Act no. 621/1999) provides that: “Official documents shall be in the public domain, unless specifically provided otherwise in this Act or another Act.” 43.", "According to section 3 of the Act, “[t]he objectives of the right of access and the duties of the authorities provided in this Act are to promote openness and good practice on information management in government, and to provide private individuals and corporations with an opportunity to monitor the exercise of public authority and the use of public resources, to freely form an opinion, to influence the exercise of public authority, and to protect their rights and interests.” 44. Section 9 of the same Act provides that every person has a right of access to an official document in the public domain. 45. According to section 13(2) of the Act: “When requesting access to a secret document, a personal data filing system controlled by an authority or any other document, access to which can be granted only subject to certain conditions, the person requesting access shall, unless specifically provided otherwise, declare the use to which the information is to be put, as well as give the other details necessary for determining whether the conditions have been met and, where necessary, explain what arrangements have been made for the protection of the information.” 46. According to section 16(1)-(3) of the same Act, “[a]ccess to an official document shall be by explaining its contents orally to the requester, by giving the document to be studied, copied or listened to in the offices of the authority, or by issuing a copy or a printout of the document.", "Access to the public contents of the document shall be granted in the manner requested, unless this would unreasonably inconvenience the activity of the authority owing to the volume of the documents, the inherent difficulty of copying or any other comparable reason. Access to the public information in a computerised register of the decisions of an authority shall be provided by issuing a copy in magnetic media or in some other electronic form, unless there is a special reason to the contrary. Similar access to information in any other official document shall be at the discretion of the authority, unless otherwise provided in an Act. ... Access may be granted to a personal data filing system controlled by an authority in the form of a copy or a printout, or an electronic-format copy of the contents of the system, unless specifically otherwise provided in an Act, if the person requesting access has the right to record and use such data according to the legislation on the protection of personal data. However, access to personal data for purposes of direct marketing, polls or market research shall not be granted unless specifically provided otherwise or unless the data subject has consented to the same.” 47.", "Section 21(1) of the Act provides the following: “When requested to do so, an authority may compile and deliver a set of data formed from signs contained in one or more computerised information management systems and maintained for various purposes, if such delivery is not contrary to the provisions on document secrecy and the protection of personal data owing to the search criteria used, the volume or quality of the data or the intended use of the set of data.” 48. In the travaux préparatoires relating to the Act (Government Bill to Parliament HE 30/1998 vp., p. 48), it is expressly stated that access and dissemination are subject to separate legal regimes, although it is clear that the two are linked in that access to official documents facilitates and supports the activity and the function of the media in society. The fact that a document is in the public domain, in the sense that it is publicly accessible, does not automatically mean that it would be lawful to publish information contained in such a document where such information relates to a person’s private life (see Government Bill to Parliament HE 184/1999 vp., p. 32). Thus, for example, public access to court records does not in itself make it lawful for a person accessing such information to publish or disseminate it further, if such publication or dissemination would interfere with the privacy rights of the persons concerned (see Government Bill to Parliament HE 13/2006 vp., p. 15). E. Instructions issued by the Tax Administration 49.", "According to instructions issued by the Tax Administration (verohallinto, skatteförvaltningen), anyone can view information on natural persons’ taxable income and assets at local tax offices. Prior to 2010 this information was in paper format but it is now accessible digitally on terminals made available for those who request it. Access to this information in digital format was, at the time of the relevant facts, restricted to journalists. The information is made available to the public for viewing, making notes and taking photos only. Printing or copying the information on memory sticks or other media, or copying it digitally and sending it by e-mail is technically blocked and not possible.", "Extracts from the lists are available for a fee of 10 euros each, and data may also be delivered by telephone. The information is not made available on the Internet. 50. Previously, the lists of natural persons were compiled for each municipality separately but now they are compiled on a regional basis. As a result, information on a taxpayer’s municipality no longer features in the publicly accessible data.", "51. Since 2000 the National Board of Taxation can disclose, for a fee, data in digital format for journalistic purposes. Any person requesting data in digital format for journalistic purposes must specify the purpose for which the data is to be used. Such persons must declare that “the information is requested for journalistic purposes” and that “the information will not be published as such in the form of a list”, by ticking a box next to the text of the declaration. The order form has contained these boxes since 2001.", "52. Since 2013 ordering such data has been free of charge but, at the same time, the tax authorities introduced additional retrieval conditions explicitly stating that the ordering of the whole database was not possible. The amount of data accessible free of charge and in digital format is now limited to a maximum of 10,000 persons for the whole country or 5,000 persons for a specific region. If data are selected on the basis of income, the limit for earned income for the whole country or a specific region is at least 70,000 euros and the limit for capital income is 50,000 euros. The order is effected by filling in a digital form available at the Tax Administration’s website (www.vero.fi).", "F. Self-regulation by journalists and publishers 53. Guidelines for Journalists (Journalistin ohjeet, Journalistreglerna) have been established for the purposes of self-regulation. 54. The 1992 Guidelines were in force at the material time and provided the following (point 29): “The principles concerning the right to privacy also apply when publishing information from public documents or other public sources. The public availability of information does not always necessarily imply that it can be freely published.” The same principles are reiterated in the 2005, 2011 and the current 2014 version of the Guidelines (point 30).", "III. RELEVANT EUROPEAN UNION, INTERNATIONAL AND COMPARATIVE LAW MATERIAL A. European Union law 1. Charter of Fundamental Rights of the European Union 55. Article 8, paragraphs 1 and 2, of the Charter provides: “Protection of personal data 1. Everyone has the right to the protection of personal data concerning him or her.", "2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which have been collected concerning him or her, and the right to have them rectified.” 56. Article 11 of the Charter reads as follows: “Freedom of expression and information 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 freedom and pluralism of the media shall be respected.” 57. Article 52, paragraph 3, of the Charter provides that, in so far as the Charter contains rights which correspond to rights guaranteed by the Convention, the meaning and scope of those rights shall be the same as those laid down by the Convention. This provision of the Charter does not prevent EU law from providing more extensive protection.", "58. According to the explanations relating to the Charter, Article 8 is based, inter alia, on Article 8 of the Convention and on the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data (hereafter the “Data Protection Convention”), which has been ratified by all EU Member States. Similarly, Article 11 of the Charter is said to correspond to Article 10 of the Convention. 2. Data Protection Directive 59.", "According to Article 1(1) of the Directive, its objective is to protect the fundamental rights and freedoms of natural persons, and, in particular, their right to privacy with respect to the processing of personal data. In accordance with recital 11 of the Directive, the principles of the protection of the rights and freedoms of individuals, notably the right to privacy, which are contained in the Directive, give substance to and amplify those contained in the aforementioned Data Protection Convention. 60. Personal data are defined in Article 2 (a) as any information relating to an identified or identifiable person. The processing of personal data is defined as “any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction” (see Article 2(b)).", "A “controller” for the purposes of the Directive is a natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data (see Article 2(d)), whereas a “processor” is a natural or legal person, public authority, agency or any other body which processes personal data on behalf of the controller (see Article 2(e)). 61. According to Article 3(1), the Directive applies to the processing of personal data wholly or partly by automatic means, and to the processing otherwise than by automatic means of personal data which form part of a filing system or are intended to form part of a filing system. 62. It is for the member States, within the limits of Chapter II of the Directive, to determine more precisely the conditions under which the processing of personal data is lawful (see Article 5).", "In this regard, the Directive provides, inter alia, that the data subject must have unambiguously given his consent or that the processing must be necessary for the performance of a task carried out in the public interest or that the processing must be necessary for the purposes of the legitimate interests pursued by the controller. Derogations from these provisions are provided in well-defined circumstances (see Article 7). 63. Article 9 of the Directive, entitled ‘Processing of personal data and freedom of expression’, provides: “Member States shall provide for exemptions or derogations from the provisions of this Chapter [II], Chapter IV and Chapter VI for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.” 64. In that connection, recital 37 of the Directive is worded as follows: “Whereas the processing of personal data for purposes of journalism or for purposes of literary or artistic expression, in particular in the audio-visual field, should qualify for exemption from the requirements of certain provisions of this Directive in so far as this is necessary to reconcile the fundamental rights of individuals with freedom of [expression] and notably the right to receive and impart information, as guaranteed in particular in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; whereas member States should therefore lay down exemptions and derogations necessary for the purpose of balance between fundamental rights as regards general measures on the legitimacy of data processing, measures on the transfer of data to third countries and the power of the supervisory authority; whereas this should not, however, lead member States to lay down exemptions from the measures to ensure security of processing; whereas at least the supervisory authority responsible for this sector should also be provided with certain ex-post powers, e.g.", "to publish a regular report or to refer matters to the judicial authorities.” 65. Pursuant to Article 28(1) and (3) of the Directive, each member State shall provide that one or more public authorities are responsible for monitoring the application within its territory of the provisions adopted by the member States pursuant to the Directive. Each authority so established shall be endowed with the power to engage in legal proceedings where the national provisions adopted pursuant to the Directive have been violated or to bring these violations to the attention of judicial authorities. Decisions by the supervisory authority which give rise to complaints may be appealed against through the Courts. 66.", "Articles 22 and 23 of the Data Protection Directive provide, respectively, for the right to a judicial remedy for persons whose rights under national law on processing have been breached and the right to compensation for any person who has suffered damage as a result of an unlawful processing operation or act incompatible with national provisions adopted pursuant to the Directive. 3. Regulation (EU) 2016/679 67. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119/1) entered into force on 24 May 2016. It will repeal Directive 95/46/EC as of 25 May 2018 (see Article 99).", "68. Recitals 4, 6, 9 and 153 of the new Regulation provide as follows: “- The processing of personal data should be designed to serve mankind. The right to the protection of personal data is not an absolute right; it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality. ... (recital 4); ... - Rapid technological developments and globalisation have brought new challenges for the protection of personal data. The scale of the collection and sharing of personal data has increased significantly.", "Technology allows both private companies and public authorities to make use of personal data on an unprecedented scale in order to pursue their activities (recital 6); ... - The objectives and principles of Directive 95/46/EC remain sound, but it has not prevented fragmentation in the implementation of data protection across the Union, legal uncertainty or a widespread public perception that there are significant risks to the protection of natural persons, in particular with regard to online activity... (recital 9); ... - Member States law should reconcile the rules governing freedom of expression and information, including journalistic, academic, artistic and or literary expression with the right to the protection of personal data pursuant to this Regulation. The processing of personal data solely for journalistic purposes... should be subject to derogations or exemptions from certain provisions of this Regulation if necessary to reconcile the right to the protection of personal data with the right to freedom of expression and information, as enshrined in Article 11 of the Charter... In order to take account of the importance of the right to freedom of expression in every democratic society, it is necessary to interpret notions relating to that freedom, such as journalism, broadly (recital 153).” 69. Article 85 of the Regulation, which will replace the journalistic purposes derogation in Article 9 of the Directive, provides as follows: “1. Member States shall by law reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information, including processing for journalistic purposes and the purposes of academic, artistic or literary expression.", "2. For processing carried out for journalistic purposes or the purpose of academic artistic or literary expression, member States shall provide for exemptions or derogations from Chapter II (principles), Chapter III (rights of the data subject), Chapter IV (controller and processor), Chapter V (transfer of personal data to third countries or international organisations), Chapter VI (independent supervisory authorities), Chapter VII (cooperation and consistency) and Chapter IX (specific data processing situations) if they are necessary to reconcile the right to the protection of personal data with the freedom of expression and information.” 4. CJEU case-law on data protection and freedom of expression 70. The CJEU has repeatedly held that the provisions of the Data Protection Directive, inasmuch as they govern the processing of personal data liable to infringe fundamental freedoms, in particular the right to respect for private life, must necessarily be interpreted in the light of the fundamental rights guaranteed by the Convention and the Charter (see variously Österreichischer Rundfunk and Others, C‑465/00, C‑138/01 and C‑139/01, EU:C:2003:294, judgment of 20 May 2003, paragraph 68; Google Spain and Google, C‑131/12, EU:C:2014:317, judgment of 13 May 2014, paragraph 68; and Ryneš, C‑212/13, EU:C:2014:2428, judgment of 11 December 2014, paragraph 29). 71.", "Given the relevance of Directive 95/46 to the balancing of the fundamental rights to privacy and freedom of expression at issue before the Finnish competent authorities and domestic courts in the instant case, the data protection case-law of the CJEU is set out in some detail. 72. At issue in Österreichischer Rundfunk, cited above, was national legislation which required a State control body, the Court of Audit, to collect and communicate, for purposes of publication, data on the income of persons employed by the bodies subject to its control, where that income exceeds a certain threshold. The purpose of the collection and publication of the information was to exert pressure on public bodies to keep salaries within reasonable limits. The CJEU held that, while the mere recording by an employer of data by name relating to the remuneration paid to his employees cannot as such constitute an interference with private life, the communication of that data to third parties, in the present case a public authority, infringes the right of the persons concerned to respect for private life, whatever the subsequent use of the information thus communicated, and constitutes an interference within the meaning of Article 8 of the Convention.", "Citing Amann v. Switzerland [GC], no. 27798/95, § 70, ECHR 2000‑II, it also held that to establish the existence of such an interference, it did not matter whether the information communicated was of a sensitive character or whether the persons concerned had been inconvenienced in any way (paragraphs 74-75). Finally, the CJEU held that the interference resulting from the application of the Austrian legislation may be justified under Article 8(2) of the Convention only in so far as the wide disclosure not merely of the amounts of the annual income above a certain threshold of persons employed by the bodies subject to control by the Court of Audit but also of the names of the recipients of that income was both necessary for and appropriate to the aim of keeping salaries within reasonable limits, that being a matter for the national courts to examine (paragraph 90). It emphasised, as regards the proportionality of the interference and the seriousness of the latter, that it was not impossible that the persons affected might suffer harm as a result of the negative effects of the publicity attached to their income from employment (paragraph 89). 73.", "In Lindqvist (judgment of 6 November 2003, C-101/01, EU:C:2003:596) the CJEU held that the act of referring, on an Internet page, to various persons and identifying them by name or by other means, for instance by giving their telephone number or information regarding their working conditions and hobbies, constituted the processing of personal data wholly or partly by automatic means within the meaning of Article 3(1) of the Data Protection Directive. Noting that the directive seeks to ensure not only the free flow of such data between Member States but also the safeguarding of the fundamental rights of individuals and that those objectives may be inconsistent with one another, the CJEU held that the mechanisms allowing those different rights and interests to be balanced are contained, first, in the Directive itself, and, second, result from the adoption, by the Member States, of national provisions implementing that directive and their application by the national authorities (paragraphs 79-82). The provisions of the Directive do not, in themselves, bring about a restriction which conflicts with the general principles of freedom of expression or other freedoms and rights which are applicable within the EU and are enshrined inter alia in Article 10 of the Convention. It is, according to the CJEU, for the national authorities and courts responsible for applying the national legislation implementing the Directive to ensure a fair balance between the rights and interests in question, including the fundamental rights protected by the EU legal order (paragraphs 83-90). 74.", "In Volker und Markus Schecke GbR (judgment of 9 November 2010, C-92/09 and C-93/09, EU:C:2010:662), the CJEU held that the obligation imposed by EU regulations to publish on a website data relating to the beneficiaries of aid from EU agricultural and rural development funds, including their names and the income received, constituted an unjustified interference with the fundamental right to the protection of personal data. Referring to Amann, cited above, and Rotaru v. Romania [GC], no. 28341/95, ECHR 2000‑V, it pointed out that the professional nature of the activities to which the data referred did not imply the absence of a right to privacy. The fact that the beneficiaries of aid had been informed that the data might be made public was not sufficient to establish that they had given their consent to its publication. As regards the proportionality of the interference with privacy rights, the CJEU held that it did not appear that the EU institutions had properly balanced the public interest objective in the transparent use of public funds against the rights which natural persons are recognised as having under Articles 7 and 8 of the Charter.", "Regard being had to the fact that derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary, and that it was possible to envisage measures which would have affected less adversely that fundamental right of natural persons and which would still have contributed effectively to the objectives of the European Union rules in question, the CJEU held that the EU regulations in question exceeded the limits which compliance with the principle of proportionality imposes and struck them down. 75. In Google Spain, cited above, the CJEU held that the operations carried out by the operator of an internet search engine must be classified as ‘processing’ within the meaning of the Data Protection Directive regardless of the fact that the data have already been published on the internet and are not altered by the search engine. Inasmuch as the activity of a search engine is liable to affect significantly fundamental rights to privacy and to the protection of personal data, the operator of the search engine must ensure that the activity meets the requirements of the Directive in order that the guarantees laid down by the Directive may have full effect and that effective and complete protection of data subjects, in particular of their right to privacy, may actually be achieved. As regards the derogation in Article 9 of the Directive, while the CJEU did not exclude that processing by the publisher of a web page may, in some circumstances, be carried out ‘solely for journalistic purposes’ and thus benefit from that derogation, the same did not appear to be the case as regards processing carried out by the operator of a search engine.", "The CJEU also held that the processing of personal data may be incompatible with the Directive not only because the data are inaccurate but, in particular, also because “they are inadequate, irrelevant or excessive in relation to the purposes of the processing, that they are not kept up to date, or that they are kept for longer than is necessary unless they are required to be kept for historical, statistical or scientific purposes” (paragraph 92). 76. In Schrems (judgment of 6 October 2015 (Grand Chamber), C‑362/14, EU:C:2015:650, paragraphs 41-42), the CJEU held that national supervisory authorities must, in particular, ensure a fair balance between, on the one hand, observance of the fundamental right to privacy and, on the other hand, the interests requiring free movement of personal data. According to the CJEU, legislation not providing for any possibility for an individual to pursue legal remedies in order to have access to personal data relating to him, or to obtain the rectification or erasure of such data, does not respect the essence of the fundamental right to effective judicial protection, as enshrined in Article 47 of the Charter (paragraph 95). 77.", "More recently, in Tele2 Sverige (judgment of 21 December 2016, C‑203/15, EU:C:2016:970), where it had to interpret an EU regulation concerning the processing of personal data and the protection of privacy in the electronic communications sector, whose provisions particularise and complement Directive 95/46 (paragraph 82), the CJEU held, at paragraph 93: “Accordingly, the importance both of the right to privacy, guaranteed in Article 7 of the Charter, and of the right to protection of personal data, guaranteed in Article 8 of the Charter, as derived from the Court’s case-law [...], must be taken into consideration in interpreting Article 15(1) of Directive 2002/58. The same is true of the right to freedom of expression in the light of the particular importance accorded to that freedom in any democratic society. That fundamental right, guaranteed in Article 11 of the Charter, constitutes one of the essential foundations of a pluralist, democratic society, and is one of the values on which, under Article 2 TEU, the Union is founded [...].” 78. In Connolly v. Commission (judgment of 6 March 2001, C-274/99 P, EU:C:2001:127), a case involving the right to freedom of expression of an EU official and the limitations placed thereon, the CJEU held, at paragraphs 37-42: “[F]undamental rights form an integral part of the general principles of law, whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories.", "The ECHR has special significance in that respect [...]. As the Court of Human Rights has held, ‘Freedom of expression constitutes one of the essential foundations of [a democratic society], one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 [of the ECHR], 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 (Eur. Court H. R. Handyside v United Kingdom judgment of 7 December 1976, Series A no. 24, § 49; Müller and Others judgment of 24 May 1988, Series A no.", "133, § 33; and Vogt v. Germany judgment of 26 September 1995, Series A no. 323, § 52). [...] Those limitations [set out in Article 10(2) of the Convention] must, however, be interpreted restrictively. According to the Court of Human Rights, the adjective ‘necessary’ involves, for the purposes of Article 10(2), a ‘pressing social need’ and, although ‘[t]he contracting States have a certain margin of appreciation in assessing whether such a need exists, the interference must be ‘proportionate to the legitimate aim pursued and ‘the reasons adduced by the national authorities to justify it must be ‘relevant and sufficient (see, in particular, Vogt v. Germany, § 52; and Wille v. Liechtenstein judgment of 28 October 1999, no. 28396/95, § 61 to § 63).", "Furthermore, any prior restriction requires particular consideration (see Wingrove v. United Kingdom judgment of 25 November 1996, Reports of Judgments and Decisions 1996-V, p. 1957, § 58 and § 60). Furthermore, the restrictions must be prescribed by legislative provisions which are worded with sufficient precision to enable interested parties to regulate their conduct, taking, if need be, appropriate advice (Eur. Court H. R. Sunday Times v. United Kingdom judgment of 26 April 1979, Series A no. 30, § 49).” 79. In Philip Morris (judgment of 4 May 2016, C-547/14, EU:C:2016:325, paragraph 147), the CJEU confirmed the correlation between Article 10 of the Convention and Article 11 of the Charter: “Article 11 of the Charter affirms the freedom of expression and information.", "That freedom is also protected under Article 10 [ECHR], which applies, in particular, as is clear from the case-law of the European Court of Human Rights, to the dissemination by a business of commercial information, including in the form of advertising. Given that the freedom of expression and information laid down in Article 11 of the Charter has — as is clear from Article 52(3) thereof and the Explanations Relating to the Charter as regards Article 11 — the same meaning and scope as the freedom guaranteed by the Convention, it must be held that that freedom covers the use by a business, on the packaging and labelling of tobacco products, of indications such as those covered by Article 13(1) of Directive 2014/40.” B. Relevant international instruments and comparative law material 1. Council of Europe documents 80. Within the framework of the Council of Europe, the Data Protection Convention formulates a number of core principles for the collection and processing of personal data.", "The purpose of the Convention is, according to Article 1, to secure respect for every individual’s rights and fundamental freedoms, and in particular his right to privacy, with regard to the automatic processing of personal data relating to him. The Convention includes the following basic principles: [...] “Article 5 – Quality of data Personal data undergoing automatic processing shall be: a) obtained and processed fairly and lawfully; b) stored for specified and legitimate purposes and not used in a way incompatible with those purposes; c) adequate, relevant and not excessive in relation to the purposes for which they are stored; d) accurate and, where necessary, kept up to date; e) preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored. Article 7 – Data security Appropriate security measures shall be taken for the protection of personal data stored in automated data files against accidental or unauthorised destruction or accidental loss as well as against unauthorised access, alteration or dissemination. Article 8 – Additional safeguards for the data subject Any person shall be enabled: a) to establish the existence of an automated personal data file, its main purposes, as well as the identity and habitual residence or principal place of business of the controller of the file; b) to obtain at reasonable intervals and without excessive delay or expense confirmation of whether personal data relating to him are stored in the automated data file as well as communication to him of such data in an intelligible form; c) to obtain, as the case may be, rectification or erasure of such data if these have been processed contrary to the provisions of domestic law giving effect to the basic principles set out in Articles 5 and 6 of this Convention; d) to have a remedy if a request for confirmation or, as the case may be, communication, rectification or erasure as referred to in paragraphs b and c of this Article is not complied with. Article 9 – Exceptions and restrictions No exception to the provisions of Articles 5, 6 and 8 of this Convention shall be allowed except within the limits defined in this Article.", "Derogation from the provisions of Articles 5, 6 and 8 of this Convention shall be allowed when such derogation is provided for by the law of the Party and constitutes a necessary measure in a democratic society in the interests of: a) protecting State security, public safety, the monetary interests of the State or the suppression of criminal offences; b) protecting the data subject or the rights and freedoms of others. Restrictions on the exercise of the rights specified in Article 8, paragraphs b, c and d, may be provided by law with respect to automated personal data files used for statistics or for scientific research purposes when there is obviously no risk of an infringement of the privacy of the data subjects.” The Data Protection Convention is currently being updated. 2. Comparative law material 81. From the information available to the Court, it would appear that, apart from Finland, only Iceland, Italy, France, Monaco, Sweden and Switzerland provide for some form of public accessibility of individual taxation information.", "82. In contrast, of the 40 Council of Europe States surveyed, 34 provide, in principle, for the secrecy of personal taxation information. Such data can only be disclosed either with the consent of the person concerned or where disclosure is provided for by law. Exceptions to the secrecy rule exist also for certain types of taxation data (tax debts and exemptions, public registers for business activity) and for data concerning the tax affairs of public officials. THE LAW I.", "THE GOVERNMENT’S PRELIMINARY OBJECTIONS 83. The Government raised two preliminary objections relating to the applicant companies’ alleged failure to lodge their complaints within the six-month time-limit and to their lack of victim status. A. Six-month time-limit 84. Before the Grand Chamber, the Government reiterated the preliminary objection raised before the Chamber to the effect that the complaints under Articles 6 § 1 and 10 of the Convention had not been lodged within the six-month time-limit regarding the first set of proceedings as required by Article 35 § 1 of the Convention (see paragraphs 13-22 above).", "Since the subject-matter of the two sets of proceedings was not the same, the present case had in effect involved two separate sets: the first concerning the question whether the applicant companies had processed personal taxation data unlawfully and the second the issuance of orders regarding the processing of personal data. Consequently, in the view of the Government, as regards the first set of proceedings, the application should be declared inadmissible under Article 35 §§ 1 and 4 of the Convention. 85. The applicant companies argued that the initial aim of the Data Protection Ombudsman had been to obtain an order preventing the applicant companies from publishing Veropörssi. Since this was not accomplished until the second round, the proceedings could not be divided into two separate sets each one with independent and separable domestic remedies.", "Whereas the Supreme Administrative Court had referred the case back to the Data Protection Board in September 2009, it could instead have issued an order directly without such a referral. The applicant companies thus argued that their complaints under Articles 6 § 1 and 10 of the Convention had been lodged within the six-month time-limit. 86. As noted by the Chamber, the first round of proceedings ended on 23 September 2009 when the Supreme Administrative Court quashed the lower court decisions and referred the case back to the Data Protection Board. As the case had been referred back to the Data Protection Board, there was no final decision, but the proceedings continued into a second round.", "The domestic proceedings became final only on 18 June 2012 when the Supreme Administrative Court delivered its second and final decision in the case (see paragraph 28 above). 87. Like the Chamber, the Grand Chamber considers that, as there was only one final decision, there was only one set of proceedings for the purposes of the six-month time limit for the lodging of applications in Article 35 § 1, although the case was examined twice before the different levels of jurisdiction. 88. In the circumstances, the Government’s first preliminary objection must be dismissed and the complaints under Articles 6 § 1 and 10 of the Convention must be considered as having been introduced within the time-limit.", "B. Lack of victim status 89. In the course of the public hearing before the Grand Chamber, the Government raised, for the first time, an additional preliminary objection based on the fact that the first applicant company had been declared bankrupt on 15 March 2016, after the case had been referred to the Grand Chamber, with the result that it lacked victim status for the purposes of Article 34 of the Convention. 90. The Court observes that the Government’s objection is based on the premise that the first applicant company and its assets had, since that date, been managed by the bankruptcy estate and that this change in its legal status had deprived that company of its victim status.", "91. It should be noted that it was only in September 2016 that the Government brought this matter to the Court’s attention. The applicant companies, for their part, informed the Court only a day before the hearing of the bankruptcy proceedings and of their representative’s capacity to represent them at the public hearing held on 14 September 2016. 92. The Court would point out that, according to Rule 55 of the Rules of Court, “[a]ny plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application ...”.", "However, the decision on the admissibility of the application was adopted on 21 July 2015, at which time the fact on which the Government’s objection relies had not yet occurred. Therefore, the Government were not in a position to comply with the time-limit established in Rule 55. 93. The Court sees no need to determine whether the Government are now estopped from making the above objection on account of their delay in raising it (see paragraphs 89-91 above) since it finds in any event that it concerns a matter which goes to the Court’s jurisdiction and which it is not prevented from examining of its own motion (see, for instance, R.P. and Others v. the United Kingdom, no.", "38245/08, § 47, 9 October 2012; and Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 70, ECHR 2016 (extracts)). 94. The administrator of the bankruptcy estate did not object to the company continuing to pursue their complaints before the Court, as indicated in a letter sent to the Court on the eve of the public hearing. Bearing in mind that the first applicant company still exists, pursuant to Finnish law, as a separate legal person, although governed by the bankruptcy administration, the Court considers that it can still claim to be a victim of the alleged violations of Articles 6 § 1 and 10 of the Convention.", "95. Consequently, the Government’s second preliminary objection is also dismissed. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 96. The applicant companies complained that their right to freedom of expression protected by paragraph 1 of Article 10 of the Convention had been interfered with in a manner which was not justified under its second paragraph.", "The collection of taxation information was not illegal as such and the information collected and published was in the public domain. Individual privacy rights were not violated. 97. Article 10 of the Convention reads as follows: “1. Everyone has the right to freedom of expression.", "This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. The Chamber judgment 98.", "The Chamber considered that there had been an interference with the applicant companies’ right to impart information, but that that interference had been “prescribed by law” and had pursued the legitimate aim of protecting the reputation or rights of others. As to the necessity of said interference in a democratic society, the Chamber noted that the taxation data in question were already a matter of public record in Finland and, as such, was a matter of public interest. This information had been received directly from the tax authorities and there was no evidence, according to the Chamber, or indeed any allegation, of factual errors, misrepresentation or bad faith on the part of the applicant companies. The only problematic issue for the national authorities and courts had been the manner and the extent to which the information could be published. 99.", "The Chamber noted that, after having received the preliminary ruling from the CJEU, the Supreme Administrative Court had found that the publication of the whole database containing personal data collected for journalistic purposes could not be regarded as a journalistic activity. It had considered that the public interest did not require publication of personal data to the extent seen in the present case. The same applied also to the SMS service. The Chamber observed that, in its analysis, the Supreme Administrative Court had attached importance both to the applicant companies’ right to freedom of expression and to the right to respect for the private life of those tax payers whose taxation information had been published. It had balanced these interests in its reasoning, interpreting the applicant companies’ freedom of expression strictly, in line with the CJEU ruling on the need for a strict interpretation of the journalistic purposes derogation, in order to protect the right to privacy.", "The Chamber found this reasoning acceptable. According to the Chamber, the Court would, under such circumstances, require strong reasons to substitute its own view for that of the domestic courts. 100. As regards the sanctions imposed by the domestic authorities, the Chamber noted that the applicant companies had not been prohibited generally from publishing the information in question but only to a certain extent. Their decision to shut down the business was thus not a direct consequence of the actions taken by the domestic courts and authorities but an economic decision made by the applicant companies themselves.", "B. The parties’ submissions to the Grand Chamber 1. The applicant companies 101. The applicant companies maintained that the domestic decisions had prevented them from imparting information and had as a consequence impeded them “entirely” from carrying out their publishing activities. The said interference had taken the form of a prior ban.", "On 1 November every year, when the tax records of the previous year became public, numerous newspapers and other media published personal tax data in paper and electronic formats. This was no different from what the applicant companies had engaged in, apart from the quantity of the published data. The majority of the persons whose data were accessible in this way were not known to the public and were of varying backgrounds and professions. No particular judicial attention had ever been paid to the identity of the persons whose names and amounts of taxable income had been published. Nor had the activities of other media ever been subject to the Data Protection Ombudsman’s scrutiny.", "102. The applicant companies argued that this interference with their right to freedom of expression had not been “prescribed by law”. The publishing of taxation data had, in particular, been accepted by the Finnish legislator. The preparatory work relating to the Act on the Public Disclosure and Confidentiality of Tax Information noted that such publishing had taken place for years and also served certain societal purposes. A thorough discussion had taken place during the preparation of the said Act, assessing the pros and cons of publishing taxation data, and the legislator had finally decided to maintain public access to such data.", "The Personal Data Act was not intended to restrict publishing activities. The relevant preparatory work stated that the legal status of the data in question was to remain unchanged. The journalistic purposes derogation was to apply to databases that were designed to support publishing so as to prevent even indirect prior restrictions on freedom of expression. Possible violations of privacy were to be examined and dealt with ex post facto. On this basis the applicant companies argued that the interference had not been “prescribed by law” within the meaning of Article 10 § 2 of the Convention.", "103. The applicant companies also claimed that the interference had not been “necessary in a democratic society”. There had never been any issue as regards the accuracy of the information, only its quantity. The balancing criteria applied by the Court functioned best where the privacy of one or two persons was concerned. In such situations the data relating to a particular individual took prominence.", "When hundreds of thousands of names were published, all in the same manner, the information concerning a specific person “blended in”. The publication of such data could hardly violate anyone’s privacy. For such situations, a different type of balancing criteria ought to be applied in order to better take into account the nature of the mass data published, namely a criterion for protecting the privacy of a large population. Moreover, when other media had published taxation data on, for example, 150,000 individuals, it had never been requested that this information be viewed in the light of the Court’s balancing criteria. It was only when the applicant companies had published 1.2 million names that such criteria became applicable.", "104. The issue of public interest had been examined when the Act on the Public Disclosure and Confidentiality of Tax Information was enacted. According to the applicant companies, public access to tax data enabled the public to observe the results of tax policies and how differences in income and wealth developed, for example, between different regions, occupations and sexes. It also enabled supervision by the Finnish tax administration as people reported their suspicions of tax evasion directly to the tax administration. In 2015 alone, the tax administration had received 15,000 such reports.", "The applicant companies thus argued that a balance between the public and publishable tax records, on the one hand, and the protection of privacy, on the other hand, had already been struck by the Finnish legislator. Therefore, no margin of appreciation, or at least a very narrow one, was left to the domestic authorities. There was thus no need for any re-balancing. Contrary to Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999-I, the taxation information in the present case had been obtained lawfully by the applicant companies from public tax records, in the same manner as any other member of the public.", "The effect on a person’s privacy could not in any significant way be different depending on whether the information had been received from the applicant companies, other media or through a phone-in service operated by the tax administration itself. Since the information had been so readily available, its publication could not violate anyone’s privacy. 105. Referring to the definition of journalistic activities set out in the draft EU General Data Protection Regulation, the applicant companies argued that their publishing activities should be considered as journalism. The reasoning of the Supreme Administrative Court was in contradiction with this definition, which fact was bound to endanger the very idea of freedom of expression.", "Given the terms of the Supreme Administrative Court’s judgment, one had to ask how much information needed to be published to transgress the limit between publishable and non-publishable information. The quantity and the manner in which taxation information could be lawfully published had, according to the applicant companies, never been defined. The national court had failed to take into account the balancing criteria in the Court’s case-law, and had only had regard to the public interest criterion. There should in any event be no upper limit on the quantity of information publishable. 2.", "The Government 106. The Government agreed, in essence, with the Chamber’s finding of no violation, but contended that there had been no interference with the applicant companies’ right to impart information. The applicant companies could still collect and publish public taxation data in so far as they complied with the requirements of data protection legislation. 107. In the event that the Court were to find that an interference had occurred, the Government agreed with the Chamber’s finding that the interference was prescribed by law and pursued the legitimate aim of protecting the reputation or rights of others.", "As to the further question whether any interference had been necessary in a democratic society, the Government shared the Chamber’s view that the general subject-matter, namely taxation data relating to natural persons’ taxable income, was a matter of public interest. Taxation data were publicly available in Finland but had to be accessed and used in conformity with the Personal Data Act and the Act on the Openness of Government Activities. Public access to such information did not imply that that information could always be published. Respect for personal data and privacy under Article 8 of the Convention required the disclosure of such information to be subject to certain controls. 108.", "The Government emphasised that the applicant companies had requested the data in question from the National Board of Taxation in 2000 and 2001. On the basis of an opinion received by the Board from the Data Protection Ombudsman, the Board had requested the applicant companies to provide further information regarding their request, and indicated that the data could not be disclosed if the publishing methods of Veropörssi continued unchanged. The applicant companies had then cancelled their request while explaining that they would provide information to the Data Protection Ombudsman and the National Board of Taxation the following year, which they never did. Instead, they employed people to collect taxation data manually at the local tax offices. 109.", "The Government pointed out that, according to the Guidelines for Journalists which were in force at the material time, the right to privacy also applied when publishing public documents or other information originating from public sources. The Guidelines made clear that the public availability of information did not necessarily imply that it could be freely published. 110. The Government noted that, as the domestic courts had made clear, the manner and extent of the publication were of importance. The data published in Veropörssi had encompassed data relating to 1.2 million persons, almost one third of all taxpayers in Finland.", "Other Finnish media published taxation data concerning 50,000 to 100,000 individuals annually, which was considerably less than the applicant companies. The latter published, without any analysis, data on persons with low or medium income who were not public figures and held no important positions in society. Their publishing activities could not therefore be viewed as data journalism aimed at drawing conclusions from such data and drawing attention to issues of public interest for public debate. Such publishing did not contribute to public debate in a manner that outweighed the public interest in protecting the processing of personal data to the described extent; it mainly satisfied readers’ curiosity. The applicant companies had not been prevented from publishing taxation data as such or participating in any public debate on an issue of general importance.", "111. Should the public interest in ensuring the transparency of the taxation data require the possibility of their disclosure by, for instance, publishing the data by the media, the Government took the view that that aim could have been accomplished without processing personal data to the extent prohibited by the Personal Data Act and the Data Protection Directive. The present case differed from Fressoz and Roire v. France, cited above, in which the publishing of data concerned a single person having a key role in a public debate on a socially important issue. Contrary to the applicant companies’ allegations, the present case was not abstract and hypothetical. Private persons had been affected by their activities: between 2000 and 2010 the Data Protection Ombudsman had received a number of complaints requesting his intervention.", "There was thus a pressing social need to protect private life under Article 8 of the Convention. 112. Concerning the interpretation of the Data Protection Directive, the CJEU had noted in its preliminary ruling in the present case that it was necessary to interpret the notion of journalism broadly and that derogations and limitations in relation to data protection had to apply only insofar as was strictly necessary. The applicant companies were never prevented from publishing taxation information in general. They could have, had they so wished, adjusted their activities so as to comply with the Personal Data Act.", "113. Referring to the margin of appreciation, the Government emphasised, as did the Chamber, that the Court would need strong reasons to substitute its own view for that of the domestic courts. The domestic courts had been acting within the margin of appreciation afforded to them and had struck a fair balance between the competing interests at stake. The interference complained of was “necessary in a democratic society” and there had been no violation of Article 10 of the Convention. C. Third-party observations 1.", "The European Information Society Institute 114. The European Information Society Institute noted that data journalism involved the making of already existing information more useful to the public. Processing and analysing of available data on a particular topic was also an important journalistic activity in and of itself. To remove the protection of Article 10 when journalists published databases would jeopardise the protection that ought to be afforded to a wide range of activities in which journalists engaged to impart information to the public. If the use of new technologies could not find protection under Article 10, the right to impart information as well as the right to receive it would be seriously impaired.", "115. The traditional criteria for defining the limits on the quantity of information that could be published and processed by private actors were not well suited to balancing the tensions created by data journalism. The balancing factors previously used by the Court were not useful in cases like the present one. When data journalists made available information that was in the public interest, their actions should be supported in a democratic society – not silenced. The European Information Society Institute therefore suggested that the Court might revisit its method of applying the existing case-law in cases where journalists processed information in order to impart information to the public.", "It should extend the Article 10 protection to innovative forms of journalism and recognise that the standard for determining how Article 10 protected journalists engaged in the processing of data could have important consequences. 2. NORDPLUS Law and Media Network 116. NORDPLUS Law and Media Network noted that it was important for the Court to develop principles related to freedom of expression in the light of present day conditions and to consider how the established principles applied in the digital media context. Many UN, EU and OECD guidelines referred to media neutrality and technological neutrality when addressing the digital media environment.", "The present case provided a key opportunity to review the existing definition of “journalist”. The EU guidelines pointed out that there was a need to go beyond the notion of traditional journalists and widen its scope for the benefit of those whose freedom of expression should be protected. An extended scope could also have an impact on the balancing test and its possible reassessment. The Court should further elaborate on whether the concept of “chilling effect” should be viewed differently in the new media environment. 117.", "Access to information was one of the cornerstones of participation in democratic debate and a precondition for the media in the performance of their role of public watchdog. Many countries had different traditions when it came to making information public. In Finland, transparency was a highly important societal value. NORDPLUS Law and Media Network concluded that the Court’s case-law needed further clarification in order to reduce the uncertainty that existed in the field of freedom of expression and the right to privacy in the digital media environment. 3.", "ARTICLE 19, the Access to Information Programme and Társaság a Szabadságjogokért 118. ARTICLE 19, the Access to Information Programme and Társaság a Szabadságjogokért noted that the CJEU had in 2008 adopted a wide definition of journalism in its case Satakunnan Markkinapörssi. The Committee of Ministers of the Council of Europe had also defined a journalist broadly as “any natural or legal person who [was] regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication”. In Ireland, the High Court had extended the journalistic privilege to bloggers, and the UN Special Rapporteur on Freedom of Expression had noted in his 2015 report that persons other than professional journalists carried out a “vital public watchdog role”. The Court should therefore not set the standard of protection under Article 10 any lower than mentioned above.", "119. Disclosure of public personal data could contribute to the good of society by creating transparency and accountability around the actions of those who wielded power within society or, conversely, were engaged in unlawful conduct. Publication of such information did not merely satisfy the curiosity of readers but contributed substantially to the pursuit of public interest journalism. These arguments became even stronger if the personal data had previously been published by the State or had otherwise been deemed public under national legislation. The fact that such information was made public implied that there was a public interest regarding access to such information.", "The public interest in publishing such information outweighed privacy considerations and, once publication had taken place, the information could no longer be regarded as inherently private. D. The Court’s assessment 1. Preliminary remarks on the scope and context of the Court’s assessment 120. The Court notes at the outset that the present case is unusual to the extent that the taxation data at issue were publicly accessible in Finland. Furthermore, as emphasised by the applicant companies, they were not alone amongst media outlets in Finland in collecting, processing and publishing taxation data such as the data which appeared in Veropörssi.", "Their publication differed from that of those other media outlets by virtue of the manner and the extent of the data published. 121. In addition, as also indicated in paragraph 81 above, only a very small number of Council of Europe member States provide for public access to taxation data, a fact which raises issues regarding the margin of appreciation which Finland enjoys when providing and regulating public access to such data and reconciling that access with the requirements of data protection rules and the right to freedom of expression of the press. 122. Given this context and the fact that at the heart of the present case lies the question whether the correct balance was struck between that right and the right to privacy as embodied in domestic data protection and access to information legislation, it is necessary, at the outset, to outline some of the general principles deriving from the Court’s case-law on Article 10 and press freedom, on the one hand, and the right to privacy under Article 8 of the Convention in the particular context of data protection on the other.", "123. Bearing in mind the need to protect the values underlying the Convention and considering that the rights under Articles 10 and 8 of the Convention deserve equal respect, it is important to remember that the balance to be struck by national authorities between those two rights must seek to retain the essence of both (see also Delfi AS v. Estonia [GC], no. 64569/09, § 110, ECHR 2015). (a) Article 10 and press freedom 124. The Court has consistently held that 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 enshrined in Article 10, freedom of expression is subject to exceptions which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 101, ECHR 2012; Couderc and Hachette Filipacchi Associés v. France [GC], no.", "40454/07, § 88, ECHR 2015 (extracts); and Bédat v. Switzerland [GC], no. 56925/08, § 48, ECHR 2016). 125. Although the press must not overstep certain bounds, regarding in particular protection of the reputation and rights of others, its task is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. The task of imparting information necessarily includes, however, “duties and responsibilities”, as well as limits which the press must impose on itself spontaneously (see Couderc and Hachette Filipacchi Associés, cited above, § 89; and Von Hannover (no.", "2), cited above, § 102). 126. The vital role of the media in facilitating and fostering the public’s right to receive and impart information and ideas has been repeatedly recognised by the Court. Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role as “public watchdog” (see, recently, Magyar Helsinki Bizottság v. Hungary [GC], no.", "18030/11, § 165, 8 November 2016, ECHR 2016; and further authorities). 127. Furthermore, the Court has consistently held that it is not for it, any more than it is for the national courts, to substitute its own views for those of the press as to what techniques of reporting should be adopted in a particular case (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298; and Stoll v. Switzerland [GC], no. 69698/01, § 146, ECHR 2007‑V).", "128. Finally, it is well-established that the gathering of information is an essential preparatory step in journalism and an inherent, protected part of press freedom (see, most recently, Magyar Helsinki Bizottság, cited above, § 130, with further references). (b) Article 8, the right to privacy and data protection 129. As regards whether, in the circumstances of the present case, the right to privacy under Article 8 of the Convention is engaged given the publicly accessible nature of the taxation data processed and published by the applicant companies, the Court has constantly reiterated that the concept of “private life” is a broad term not susceptible to exhaustive definition (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008; and Vukota-Bojić v. Switzerland, no.", "61838/10, § 52, 18 October 2016). 130. Leaving aside the numerous cases in which the Court has held that the right to privacy in Article 8 covers the physical and psychological integrity of a person, private life has also been held to include activities of a professional or business nature (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251 B) or the right to live privately, away from unwanted attention (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 95, ECHR 2003 IX (extracts)).", "131. Indeed, the Court has also held that there is a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” for the purposes of Article 8 of the Convention (see Couderc and Hachette Filipacchi Associés, cited above, § 83; and P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 2001-IX).", "132. The vast majority of cases in which the Court has had to examine the balancing by domestic authorities of press freedom under Article 10 and the right to privacy under Article 8 of the Convention have related to alleged infringements of the right to privacy of a named individual or individuals as a result of the publication of particular material (see, for example, Flinkkilä and Others v. Finland, no. 25576/04, 6 April 2010; and Ristamäki and Korvola v. Finland, no. 66456/09, 29 October 2013). 133.", "In the particular context of data protection, the Court has, on a number of occasions, referred to the Data Protection Convention (see paragraph 80 above), which itself underpins the Data Protection Directive applied by the domestic courts in the present case. That Convention defines personal data in Article 2 as “any information relating to an identified or identifiable individual”. In Amann, cited above, § 65, the Court provided an interpretation of the notion of “private life” in the context of storage of personal data when discussing the applicability of Article 8: “The Court reiterates that the storing of data relating to the ‘private life’ of an individual falls within the application of Article 8 § 1 (see the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 22, § 48). It points out in this connection that the term ‘private life’ must not be interpreted restrictively.", "In particular, respect for private life comprises the right to establish and develop relationships with other human beings; furthermore, there is no reason of principle to justify excluding activities of a professional or business nature from the notion of ‘private life’ (see the Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B, pp. 33-34, § 29; and the Halford judgment cited above, pp. 1015-16, § 42). That broad interpretation corresponds with that of the Council of Europe’s Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which came into force on 1 October 1985 and whose purpose is ‘to secure in the territory of each Party for every individual ... respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him’ (Article 1), such personal data being defined as ‘any information relating to an identified or identifiable individual’ (Article 2).” 134.", "The fact that information is already in the public domain will not necessarily remove the protection of Article 8 of the Convention. Thus, in Von Hannover v. Germany (no. 59320/00, §§ 74-75 and 77, ECHR 2004 VI), concerning the publication of photographs which had been taken in public places of a known person who did not have any official function, the Court found that the interest in publication of that information had to be weighed against privacy considerations, even though the person’s public appearance could be assimilated to “public information”. 135. Similarly, in Magyar Helsinki Bizottság, cited above, §§ 176-178, central to the Court’s dismissal of privacy concerns was not the public nature of the information to which the applicant sought access, which is a factor to be considered in any balancing exercise, but rather the fact that the domestic authorities made no assessment whatsoever of the potential public-interest character of the information sought by the applicant in that case.", "Those authorities were rather concerned with the status of public defenders in relation to which the information was sought from the perspective of the Hungarian Data Act, which itself allowed for only very limited exceptions to the general rule of non-disclosure of personal data. Moreover, the respondent government in that case failed to demonstrate that the disclosure of the requested information could have affected the right to privacy of those concerned (ibid., § 194). 136. It follows from well-established case-law that where there has been compilation of data on a particular individual, processing or use of personal data or publication of the material concerned in a manner or degree beyond that normally foreseeable, private life considerations arise (see Uzun v. Germany, no. 35623/05, §§ 44-46, ECHR 2010 (extracts); see also Rotaru v. Romania, cited above, §§ 43-44; P.G.", "and J.H. v. the United Kingdom, cited above, § 57; Amann, cited above, §§ 65-67; and M.N. and Others v. San Marino, no. 28005/12, §§ 52-53, 7 July 2015). 137.", "The protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life, as guaranteed by Article 8 of the Convention. The domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of this Article (see S. and Marper, cited above, § 103). Article 8 of the Convention thus provides for the right to a form of informational self-determination, allowing individuals to rely on their right to privacy as regards data which, albeit neutral, are collected, processed and disseminated collectively and in such a form or manner that their Article 8 rights may be engaged. 138. In the light of the foregoing considerations and the Court’s existing case-law on Article 8 of the Convention, it appears that the data collected, processed and published by the applicant companies in Veropörssi, providing details of the taxable earned and unearned income as well as taxable net assets, clearly concerned the private life of those individuals, notwithstanding the fact that, pursuant to Finnish law, that data could be accessed, in accordance with certain rules, by the public.", "2. Existence of an interference 139. The Court notes that, by virtue of the decisions of the domestic data protection authorities and courts, the first applicant company was prohibited from processing taxation data in the manner and to the extent that had been the case in 2002 and from forwarding that information to an SMS service. Those courts found that the collection of personal data and their processing in the background file of the first applicant company could not as such be regarded as contrary to the data protection rules, provided, inter alia, that the data had been protected properly. However, considering the manner and the extent to which the personal data in the background file had subsequently been published in Veropörssi, the first applicant company, which was found not to be able to rely on the journalistic purposes derogation, had processed personal data concerning natural persons in violation of the Personal Data Act.", "The second applicant company was prohibited from collecting, storing or forwarding to an SMS service any data received from the first applicant company’s database and published in Veropörssi (see paragraph 23 above). 140. The Court finds that the Data Protection Board’s decision, as upheld by the national courts, entailed an interference with the applicant companies’ right to impart information as guaranteed by Article 10 of the Convention. 141. In the light of paragraph 2 of Article 10, such an interference with the applicant companies’ right to freedom of expression must be “prescribed by law”, have one or more legitimate aims and be “necessary in a democratic society”.", "3. Lawfulness 142. The expression “prescribed by law” in the second paragraph of Article 10 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see, amongst many authorities, Delfi AS, cited above, § 120, with further references). 143. As regards the requirement of foreseeability, the Court has repeatedly held that a norm cannot be regarded as a “law” within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable a person to regulate his or her conduct.", "That person 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. Whilst certainty is 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 further Delfi AS, cited above, § 121; and Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no.", "38433/09, § 141, ECHR 2012). 144. The role of adjudication vested in the national courts is precisely to dissipate such interpretational doubts as may remain. The Court’s power to review compliance with domestic law is thus limited, as it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, amongst other authorities, Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 110, ECHR 2015, with further references).", "Moreover, the level of precision required of domestic legislation – which cannot 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 (see Delfi AS, cited above, § 122; and Kudrevičius, cited above, § 110). 145. The Court has found that persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation, can on this account be expected to take special care in assessing the risks that such activity entails (see Delfi AS, cited above, § 122, with further references; and, in the context of banking data, G.S.B. v. Switzerland, no. 28601/11, § 69, 22 December 2015).", "146. In the present case, the applicant companies and the Government (see paragraphs 102 and 107 above respectively) differed as to whether the interference with the applicant company’s freedom of expression was “prescribed by law”. 147. As regards the existence of a clear legal basis for the impugned interference, the Court finds no reason to call into question the view taken by the Supreme Administrative Court in the instant case that the impugned interference had a legal basis in sections 2(5), 32 and 44(1) of the Personal Data Act (see paragraph 22 above). 148.", "As regards the foreseeability of the domestic legislation and its interpretation and application by the domestic courts, in the absence of a provision in the domestic legislation explicitly regulating the quantity of data which could be published and in view of the fact that several media outlets in Finland were also engaged in publication of similar taxation data to some extent, the question arises whether the applicant companies could be considered to have foreseen that their specific publishing activities would fall foul of the existing legislation, bearing in mind in this connection the existence of the journalistic purposes derogation. 149. For the Court, the terms of the relevant data protection legislation and the nature and scope of the journalistic derogation on which the applicant companies sought to rely were sufficiently foreseeable and those provisions were applied in a sufficiently foreseeable manner following the interpretative guidance provided to the Finnish court by the CJEU. The Personal Data Act transposed the Data Protection Directive into Finnish law. According to the Act, the processing of personal data meant the collection, recording, organisation, use, transfer, disclosure, storage, manipulation, combination, protection, deletion and erasure of personal data, as well as other measures directed at personal data (see paragraph 34 above).", "It seems reasonably clear from this wording and from the relevant preparatory work (see paragraph 36 above) that there was a possibility that the national competent authorities would one day arrive at the conclusion, as they did in this case, that a database established for journalistic purposes could not be disseminated as such. The quantity and form of the data published could not exceed the scope of the derogation and the derogation, by its nature, had to be restrictively interpreted, as the CJEU clearly indicated. 150. Even if the applicant companies’ case was the first of its kind under the Personal Data Act, that would not render the domestic courts’ interpretation and application of the journalistic derogation arbitrary or unpredictable (see Kudrevičius, cited above, § 115; and, mutatis mutandis, in relation to Article 7 of the Convention, Huhtamäki v. Finland, no. 54468/09, § 51, 6 March 2012, with further references), nor would the fact that the Supreme Administrative Court sought guidance from the CJEU on the interpretation of the derogation in Article 9 of the Data Protection Directive.", "Indeed, as regards the latter, the Court has regularly emphasised the importance, for the protection of fundamental rights in the EU, of the judicial dialogue conducted between the domestic courts of EU Member States and the CJEU in the form of references from the former for preliminary rulings by the latter (see Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 164, ECHR 2005‑VI; and Avotiņš v. Latvia [GC], no. 17502/07, §§ 105 and 109, ECHR 2016). 151. Moreover, the applicant companies were media professionals and, as such, they should have been aware of the possibility that the mass collection of data and its wholesale dissemination – pertaining to about one third of Finnish taxpayers or 1.2 million people, a number 10 to 20 times greater than that covered by any other media organisation at the time – might not be considered as processing “solely” for journalistic purposes under the relevant provisions of Finnish and EU law.", "152. In the instant case, following their requests for data from the National Board of Taxation in 2000 and 2001, the applicant companies were requested by the Data Protection Ombudsman to provide further information regarding those requests and were told that the data could not be disclosed if Veropörssi continued to be published in its usual form. Instead of complying with the request for more information of the Ombudsman, the applicant companies circumvented the usual route for journalists to access the taxation data sought and organised for the latter to be collected manually at the local tax offices (see paragraph 12 above). It is not for the Court to speculate on the reasons why they acted in this way but the fact that they did suggests some anticipation, on their part, of difficulties in relying on the journalistic purposes derogation and the relevant national legislation on access to taxation data. 153.", "Furthermore, the 1992 version of the Guidelines for Journalists – reproduced in 2005, 2011 and 2014 – indicated clearly that the principles concerning the protection of an individual also applied to the use of information contained in public documents or other public sources and that the mere fact that information was accessible to the public did not always mean that it was freely publishable. These guidelines, which were intended to ensure self-regulation by Finnish journalists and publishers, must have been familiar to the applicant companies. 154. In light of the above considerations, the Court concludes that the impugned interference with the applicant companies’ right to freedom of expression was “prescribed by law”. 4.", "Legitimate aim 155. The parties did not in substance dispute that the interference with the applicant companies’ freedom of expression could be regarded as pursuing the legitimate aim of protecting “the reputation and rights of others”. 156. However, the applicant companies argued that while the need to protect against violations of privacy might be a relevant consideration, it was one which the Finnish legislator had already taken into account, assessed and accepted when adopting the Personal Data Act. In their view, the alleged need to protect privacy in the instant case was abstract and hypothetical.", "Any threat to privacy had been practically non-existent and, in any event, the case was not at all about the privacy of isolated individuals. 157. The Court notes that, contrary to the suggestions of the applicant companies, it emerges clearly from the case file that the Data Protection Ombudsman acted on the basis of concrete complaints from individuals claiming that the publication of taxation data in Veropörssi infringed their right to privacy. As is clear from the figures indicated in paragraph 9 above, a very large group of natural persons who were taxpayers in Finland had been directly targeted by the applicant companies’ publishing practice. It is arguable that all Finnish taxpayers were affected, directly or indirectly, by the applicant companies’ publication since their taxable income could be estimated by readers by virtue of their inclusion in or exclusion from the lists published in Veropörssi.", "158. Leaving aside the question whether it would have been necessary to identify individual complainants at national level, the applicant companies’ argument fails to appreciate the nature and scope of the duties of the domestic data protection authorities pursuant to, inter alia, section 44 of the Personal Data Act and the corresponding provisions of the Data Protection Directive. As regards the latter, it is noteworthy that the CJEU has held that the guarantee of the independence of national supervisory authorities was established in order to strengthen the protection of individuals and bodies affected by the decisions of those authorities. In order to guarantee that protection, the national supervisory authorities must, in particular, ensure a fair balance between, on the one hand, observance of the fundamental right to privacy and, on the other hand, the interests requiring free movement of personal data (see the CJEU judgment in the Schrems case, cited in paragraph 76 above). The protection of privacy was thus at the heart of the data protection legislation for which these authorities were mandated to ensure respect.", "159. In the light of the above considerations and taking into account the aims of the Data Protection Convention, reflected in Directive 95/46 and, more recently, in Regulation 2016/79 (see paragraphs 59 and 67 above), it is clear that the interference with the applicant companies’ right to freedom of expression pursued the legitimate aim of protecting “the reputation or rights of others”, within the meaning of Article 10 § 2 of the Convention. 5. Necessary in a democratic society 160. The core question in the instant case, as indicated previously, is whether the interference with the applicant companies’ right to freedom of expression was “necessary in a democratic society” and whether, in answering this question, the domestic courts struck a fair balance between that right and the right to respect for private life.", "161. Having outlined above – see paragraphs 120-138 ‒ some general principles relating to the rights to freedom of expression and respect for private life, as well as why Article 8 of the Convention is clearly engaged in circumstances such as these, the Court considers it useful to reiterate the criteria for balancing these two rights in the circumstances of a case such as the present one. (a) General principles concerning the margin of appreciation and balancing of rights 162. The choice of the means calculated to secure compliance with Article 8 of the Convention is in principle a matter that falls within the Contracting States’ margin of appreciation, whether the obligations on the State are positive or negative (see Couderc and Hachette Filipacchi Associés, cited above, § 90; and Von Hannover (no. 2), cited above, § 104, with further references).", "Likewise, under Article 10 of the Convention, the Contracting States have a certain margin of appreciation in assessing whether and to what extent an interference with the freedom of expression protected by this provision is necessary (ibid.). 163. In cases which require the right to respect for private life to be balanced against the right to freedom of expression, the Court reiterates that the outcome of the application should not, in principle, vary according to whether it has been lodged with the Court under Article 8 of the Convention by the person who was the subject of the news report, or under Article 10 by the publisher. Indeed, as indicated previously, these rights deserve equal respect (see paragraph 123 above). Accordingly, the margin of appreciation should in principle be the same in both situations.", "164. According to the Court’s established case-law, the test of necessity in a democratic society requires the Court to determine whether the interference complained of corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 62, Series A no. 30). The margin of appreciation left to the national authorities in assessing whether such a need exists and what measures should be adopted to deal with it is not, however, unlimited but goes hand in hand with European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10.", "As indicated above, when exercising its supervisory function, the Court’s task is not to take the place of the national courts but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (see, in particular, the summary of the relevant principles in Perinçek v. Switzerland [GC], no. 27510/08, § 198, ECHR 2015 (extracts); and, in particular, Von Hannover (no. 2), cited above, § 105). Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Couderc and Hachette Filipacchi Associés, cited above, § 92; and Von Hannover (no. 2), cited above, § 107).", "165. The Court has already had occasion to lay down the relevant principles which must guide its assessment – and, more importantly, that of domestic courts – of necessity. It has thus identified a number of criteria in the context of balancing the competing rights. The relevant criteria have thus far been defined as: contribution to a debate of public interest, the degree of notoriety of the person affected, the subject of the news report, the prior conduct of the person concerned, the content, form and consequences of the publication, and, where it arises, the circumstances in which photographs were taken. Where it examines an application lodged under Article 10, the Court will also examine the way in which the information was obtained and its veracity, and the gravity of the penalty imposed on the journalists or publishers (see Couderc and Hachette Filipacchi Associés, cited above, § 93; Von Hannover (no.", "2), cited above, §§ 109-13; and Axel Springer AG v. Germany [GC], no. 39954/08, §§ 90-95, 7 February 2012). 166. The Court considers that the criteria thus defined may be transposed to the present case, albeit certain criteria may have more or less relevance given the particular circumstances of the present case which, as explained previously (see paragraphs 8-9 above), concerned the mass collection, processing and publication of data which were publicly accessible in accordance with certain rules and which related to a large number of natural persons in the respondent State. (b) Application of the relevant general principles to the present case (i) Contribution of the impugned publication to a debate of public interest 167.", "There is, as the Court has consistently held, little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV; and Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports of Judgments and Decisions 1996‑V). The margin of appreciation of States is thus reduced where a debate on a matter of public interest is concerned (see Couderc and Hachette Filipacchi Associés, cited above, § 96, with further references). 168.", "In ascertaining whether a publication disclosing elements of private life also concerned a question of public interest, the Court has taken into account the importance of the question for the public and the nature of the information disclosed (see Couderc and Hachette Filipacchi Associés, cited above, § 98; and Von Hannover no. 2, cited above, § 109). 169. The public has a right to be informed, and this is an essential right in a democratic society which, in certain special circumstances, can even extend to aspects of the private life of public figures. However, articles aimed solely at satisfying the curiosity of a particular readership regarding the details of a person’s private life, however well-known that person might be, cannot be deemed to contribute to a debate of public interest (see Von Hannover, cited above, § 65; MGN Limited v. the United Kingdom, no.", "39401/04, § 143, 18 January 2011; and Alkaya v. Turkey, no. 42811/06, § 35, 9 October 2012). 170. In order to ascertain whether a publication concerning an individual’s private life is not intended purely to satisfy the curiosity of a certain readership, but also relates to a subject of general importance, it is necessary to assess the publication as a whole and have regard to the context in which it appears (see Couderc and Hachette Filipacchi Associés, cited above, § 102; Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 87, 1 March 2007; Björk Eiðsdóttir v. Iceland, no.", "46443/09, § 67, 10 July 2012; and Erla Hlynsdόttir v. Iceland, no. 43380/10, § 64, 10 July 2012). 171. Public interest ordinarily relates to matters which affect the public to such an extent that it may legitimately take an interest in them, which attract its attention or which concern it to a significant degree, especially in that they affect the well-being of citizens or the life of the community. This is also the case with regard to matters which are capable of giving rise to considerable controversy, which concern an important social issue, or which involve a problem that the public would have an interest in being informed about.", "The public interest cannot be reduced to the public’s thirst for information about the private life of others, or to an audience’s wish for sensationalism or even voyeurism (see Couderc and Hachette Filipacchi Associés, cited above, §§ 101 and 103, and the further references cited therein). 172. It is unquestionable that permitting public access to official documents, including taxation data, is designed to secure the availability of information for the purpose of enabling a debate on matters of public interest. Such access, albeit subject to clear statutory rules and restrictions, has a constitutional basis in Finnish law and has been widely guaranteed for many decades (see paragraphs 37-39 above). 173.", "Underpinning the Finnish legislative policy of rendering taxation data publicly accessible was the need to ensure that the public could monitor the activities of government authorities. While the applicant companies referred to the fact that access to taxation data also enabled supervision by citizens of one another and the reporting of tax evasion, the Court has not, on the basis of the relevant preparatory works and the material available to it, been able to confirm that this was the objective of the Finnish access regime (see paragraph 43 above) or that, over time, this supervisory purpose developed. 174. Nevertheless, public access to taxation data, subject to clear rules and procedures, and the general transparency of the Finnish taxation system does not mean that the impugned publication itself contributed to a debate of public interest. Taking the publication as a whole and in context and analysing it in the light of the above-mentioned case-law (see paragraphs 162-166 above), the Court, like the Supreme Administrative Court, is not persuaded that publication of taxation data in the manner and to the extent done by the applicant companies contributed to such a debate or indeed that its principal purpose was to do so.", "175. The journalistic purposes derogation in section 2(5) of the Personal Data Act is intended to allow journalists to access, collect and process data in order to ensure that they are able to perform their journalistic activities, themselves recognised as essential in a democratic society. This point was clearly made by the Supreme Administrative Court in its decision of 2009 (see paragraph 22 above), where it stated that restricting the processing of taxation data by journalists at the pre-publication or disclosure stage would have been impermissible as in practice it could have meant that a decision was being taken on what material could be published. However, the existence of a public interest in providing access to, and allowing the collection of, large amounts of taxation data did not necessarily or automatically mean that there was also a public interest in disseminating en masse such raw data in unaltered form without any analytical input. It had been made clear in the preparatory work on the domestic legislation (see paragraph 36 above) that databases established for journalistic purposes were not intended to be made available to persons not engaged in journalistic activities, thus underlining that the journalistic privilege in question related to the processing of data for internal purposes.", "This distinction between the processing of data for journalistic purposes and the dissemination of the raw data to which the journalists were given privileged access is clearly made by the Supreme Administrative Court in its first decision of 2009. 176. Furthermore, reliance on the derogation depended on the processing of the data being carried out “solely” for journalistic purposes. Yet, as the Supreme Administrative Court found, the publication of the taxation data in Veropörssi almost verbatim, as catalogues, albeit split into different parts and sorted by municipality, amounted to the disclosure of the entire background file kept for journalistic purposes and there could be no question, in such circumstances, of an attempt solely to express information, opinions or ideas. While the applicant companies argued that the public disclosure of tax records enabled the public to observe results of tax policy – how differences between income and wealth develop, for example, between regions, professions and on the basis of gender – they did not explain how their readers would be able to engage in this type of analysis on the basis of the raw data, published en masse, in Veropörssi.", "177. Finally, while the information might have enabled curious members of the public to categorise named individuals, who are not public figures, according to their economic status, this could be regarded as a manifestation of the public’s thirst for information about the private life of others and, as such, a form of sensationalism, even voyeurism (see Couderc and Hachette Filipacchi Associés, cited above, § 101). 178. In the light of these considerations, the Court cannot but agree with the Supreme Administrative Court that the sole object of the impugned publication was not, as required by domestic and EU law, the disclosure to the public of information, opinions and ideas, a conclusion borne out by the layout of the publication, its form, content and the extent of the data disclosed. Furthermore, it does not find that the impugned publication could be regarded as contributing to a debate of public interest or assimilated to the kind of speech, namely political speech, which traditionally enjoys a privileged position in its case-law, thus calling for strict Convention scrutiny and allowing little scope under Article 10 § 2 of the Convention for restrictions (see, in this regard, Sürek v. Turkey (no.", "1), cited above, § 61; and Wingrove, cited above, § 58). (ii) Subject of the impugned publication and how well-known were the persons concerned 179. The data published in Veropörssi comprised the surnames and names of natural persons whose annual taxable income exceeded certain thresholds (see paragraph 9 above). The data also comprised the amount, to the nearest EUR 100, of their earned and unearned income as well as details relating to their taxable net assets. When published in the newspaper, the data were set out in the form of an alphabetical list and were organised according to municipality and income bracket.", "180. In the present case, 1.2 million natural persons were the subject of the Veropörssi publication. They were all taxpayers but only some, indeed very few, were individuals with a high net income, public figures or well-known personalities within the meaning of the Court’s case-law. The majority of the persons whose data were listed in the newspaper belonged to low income groups. It was estimated that the data covered one third of the Finnish population and the majority of all full-time workers.", "Unlike other Finnish publications, the information published by the applicant companies did not pertain specifically to any particular category of persons such as politicians, public officials, public figures or others who belonged to the public sphere by dint of their activities or high earnings (see, in that regard, Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, § 37, 26 February 2002; and News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 54, ECHR 2000‑I) or their position (see Verlagsgruppe News GmbH v. Austria (no. 2), no. 10520/02, § 36, 14 December 2006).", "As the Court has previously stated, such persons inevitably and knowingly lay themselves open to close scrutiny by both journalists and the public at large (see, inter alia, Lingens v. Austria, 8 July 1986, § 42, Series A no. 103 and Couderc and Hachette Filipacchi Associés, cited above, §§ 120-121). 181. The applicant companies rely on the relative anonymity of the natural persons whose names and data featured in the newspaper and were accessible via the SMS service, as well as the sheer amount of data published, to downplay any interference with their privacy rights, suggesting that the more they published the less they interfered with privacy given what they described as a “blending in” factor (see paragraph 103 above). However, even assuming that such a factor could operate to attenuate or diminish the degree of interference resulting from the impugned publication, it fails to take into account the personal nature of the data and the fact that it was provided to the competent tax authorities for one purpose but accessed by the applicant companies for another.", "It also ignores the fact that the manner and extent of the publication meant that, in one way or another, the resulting publication extended to the entire adult population, uncovered as beneficiaries of a certain income if included in the list but also of not being in receipt of such an income if excluded because of the threshold salaries involved (see also paragraph 157 above). It is the mass collection, processing and dissemination of data which data protection legislation such as that at issue before the domestic courts is intended to address. (iii) Manner of obtaining the information and its veracity 182. The accuracy of the information published was never in dispute in the present case. The published information was collected in the local tax offices and was accurate.", "183. As to the manner in which the information was obtained, it is important to remember that, in the area of press freedom the Court has held that, by reason of the duties and responsibilities inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of public interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see Magyar Helsinki Bizottság, cited above, § 159, with further references). 184. The Court reiterates that, in the present case, the applicant companies cancelled their request for data from the National Board of Taxation and instead hired people to collect taxation data manually at the local tax offices (see paragraph 12 above). They thereby circumvented both the legal limitations (the obligation to substantiate that the data would be collected for a journalistic purpose and not be published as a list) and the practical limitations (by employing people to collect the information manually in order to gain unlimited access to the personal taxation data with a view to its subsequent dissemination) imposed by the relevant domestic legislation.", "The data were then published in raw form, as catalogues or lists. 185. While the Court cannot but agree with the Chamber judgment that the data were not obtained by illicit means, it is clear that the applicant companies had a policy of circumventing the normal channels open to journalists to access taxation data and, accordingly, the checks and balances established by the domestic authorities to regulate access and dissemination. (iv) Content, form and consequences of the publication and related considerations 186. The Court has held, as indicated previously (see paragraph 127 above), that the approach to covering a given subject is a matter of journalistic freedom.", "It is for neither the Court nor the domestic courts, to substitute their own views for those of the press in this area (see Jersild, cited above, § 31; and Couderc and Hachette Filipacchi Associés, cited above, § 139). Article 10 of the Convention also leaves it to journalists to decide what details ought to be published in order to ensure an article’s credibility (see Fressoz and Roire, cited above, § 54; and ibid.). In addition, journalists enjoy the freedom to choose, from the news items that come to their attention, which they will deal with and how. This freedom, however, is not devoid of responsibilities (ibid.). The choices that they make in this regard must be based on their profession’s ethical rules and codes of conduct (see Couderc and Hachette Filipacchi Associés, cited above, § 138).", "187. Where the impugned information was already publicly available, the Court has had regard to this factor in its assessment of whether the impugned restriction on freedom of speech was “necessary” for the purposes of Article 10 § 2. In some cases it has been a decisive consideration leading the Court to find a violation of the Article 10 guarantee (see Weber v. Switzerland, 22 May 1990, §§ 48-52, Series A no. 177; Observer and Guardian v. the United Kingdom, 26 November 1991, §§ 66-71, Series A no. 216; The Sunday Times v. the United Kingdom (no.", "2), 26 November 1991, §§ 52-56, Series A no. 217; and Vereniging Weekblad Bluf! v. the Netherlands, 9 February 1995, §§ 41-46, Series A no. 306-A) while in others, notably regarding the freedom of the press to report on public court proceedings, the fact that the information was in the public domain was found to be outweighed by the need to protect the right to respect for private life under Article 8 of the Convention (see Egeland and Hanseid v. Norway, no. 34438/04, §§ 62-63, 16 April 2009; and Shabanov and Tren v. Russia, no.", "5433/02, §§ 44-50, 14 December 2006). 188. It is noteworthy that the CJEU has made clear – not least in Satakunnan Markkinapörssi Oy, cited above, § 48; and Google Spain, cited above, § 30 – that the public character of data processed does not exclude such data from the scope of the Data Protection Directive and the guarantees the latter lays down for the protection of privacy (see paragraphs 20 and 75 above). 189. Whilst the taxation data in question were publicly accessible in Finland, they could only be consulted at the local tax offices and consultation was subject to clear conditions.", "The copying of that information on memory sticks was prohibited. Journalists could receive taxation data in digital format, but retrieval conditions also existed and only a certain amount of data could be retrieved. Journalists had to specify that the information was requested for journalistic purposes and that it would not be published in the form of a list (see paragraphs 49-51 above). Therefore, while the information relating to individuals was publicly accessible, specific rules and safeguards governed its accessibility. 190.", "The fact that the data in question were accessible to the public under the domestic law did not necessarily mean that they could be published to an unlimited extent (see paragraphs 48 and 54 above). Publishing the data in a newspaper, and further disseminating that data via an SMS service, rendered it accessible in a manner and to an extent not intended by the legislator. 191. As indicated previously, the gathering of information is an essential preparatory step in journalism and an inherent, protected part of press freedom (see paragraph 128 above). It is noteworthy that, in the instant case, the Supreme Administrative Court did not seek to interfere with the collection by the applicant companies of raw data, an activity which goes to the heart of press freedom, but rather with the dissemination of data in the manner and to the extent outlined above.", "192. It is also necessary, at this point, to reiterate that Finland is one of very few Council of Europe Member States which provides for this degree of public access to taxation data. When assessing the margin of appreciation in a case such as this, as well as the proportionality of the impugned interference and the Finnish regime pursuant to which it was adopted, the Court must also assess the legislative choices which lay behind it and, in that context, the quality of the parliamentary and judicial review of the necessity of that legislation and the measures adopted on that basis which interfere with freedom of expression (see, in this regard, Animal Defenders International v. the United Kingdom [GC], no. 48876/08, §§ 108 and 110, ECHR 2013 (extracts)). 193.", "As both parties have demonstrated, parliamentary review of Finnish legislation relating to access to information and taxation data in particular, as well as that relating to data protection, has been both exacting and pertinent. That scrutiny and debate at domestic level was furthermore reflected in the data protection context at EU level, when it came to the adoption of the Data Protection Directive and, subsequently, of Regulation 2016/79. 194. The Court observes that the Finnish legislator had decided, in adopting the Act on the Public Disclosure and Confidentiality of Tax Information, to maintain the public accessibility of the taxation data in question. Although a balancing exercise between the private and public interests involved had thus been conducted when this issue was decided by the Finnish Parliament, it does not follow that the treatment of such taxation data would no longer be subject to any data protection considerations as the applicant companies contend.", "Section 2(5) of the Personal Data Act was adopted to reconcile the rights to privacy and freedom of expression and to accommodate the role of the press but reliance on this journalistic derogation was, as the Supreme Administrative Court indicated, dependent on the fulfilment of certain conditions. The Public Disclosure and Confidentiality of Tax Information also clearly stated that such information “is public to the extent provided in this Act” (see paragraph 39 above). 195. The Court emphasises that the safeguards in national law were built in precisely because of the public accessibility of personal taxation data, the nature and purpose of data protection legislation and the accompanying journalistic derogation. Under these circumstances, and in line with the approach set out in Animal Defenders International (cited above, § 108), the authorities of the respondent State enjoyed a wide margin of appreciation in deciding how to strike a fair balance between the respective rights under Articles 8 and 10 of the Convention in this case.", "Furthermore, while the margin of appreciation of any State must be limited and its exercise is subject to external supervision by the Court, the latter may also take into consideration, when assessing the overall balance struck, the fact that that State, somewhat exceptionally, as a matter of constitutional choice and, in the interests of transparency, has chosen to make taxation data accessible to the public. 196. In the instant case, the domestic courts, when weighing these rights, sought to strike a balance between freedom of expression and the right to privacy embodied in data protection legislation. Applying the derogation in section 2(5) of the Personal Data Act and the public interest test to the impugned interference, they and, in particular, the Supreme Administrative Court, analysed the relevant Convention and CJEU case-law and carefully applied the case-law of the Court to the facts of the instant case. (v) Gravity of the sanction imposed on the journalists or publishers 197.", "As indicated in the Chamber judgment, the applicant companies were not prohibited from publishing taxation data or from continuing to publish Veropörssi, albeit they had to do so in a manner consistent with Finnish and EU rules on data protection and access to information. The fact that, in practice, the limitations imposed on the quantity of the information to be published may have rendered some of their business activities less profitable is not, as such, a sanction within the meaning of the case-law of the Court. (vi) Conclusion 198. In the light of the aforementioned considerations, the Court considers that, in assessing the circumstances submitted for their appreciation, the competent domestic authorities and, in particular, the Supreme Administrative Court gave due consideration to the principles and criteria as laid down by the Court’s case-law for balancing the right to respect for private life and the right to freedom of expression. In so doing, the Supreme Administrative Court attached particular weight to its finding that the publication of the taxation data in the manner and to the extent described did not contribute to a debate of public interest and that the applicants could not in substance claim that it had been done solely for a journalistic purpose within the meaning of domestic and EU law.", "The Court discerns no strong reasons which would require it to substitute its view for that of the domestic courts and to set aside the balancing done by them (see Von Hannover (no. 2), cited above, § 107; and Perinçek, cited above, § 198). It is satisfied that the reasons relied upon were both relevant and sufficient to show that the interference complained of was “necessary in a democratic society” and that the authorities of the respondent State acted within their margin of appreciation in striking a fair balance between the competing interests at stake. 199. The Court therefore concludes that there has been no violation of Article 10 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 200. The applicant companies complained under Article 6 § 1 of the Convention about the length of the proceedings before the domestic courts. The relevant parts of Article 6 § 1 of the Convention read 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 201.", "The Chamber noted that the impugned proceedings before the domestic authorities and courts had lasted over six years and six months at two levels of jurisdiction, of which both levels twice. There had not been any particularly long period of inactivity on the part of the authorities and domestic courts. Even though the case had been of some complexity, it could not be said that this in itself had justified the entire length of the proceedings. According to the Chamber, the excessive total length of the proceedings could be attributed essentially to the fact that the case had been examined twice by each level of jurisdiction. B.", "The parties’ submissions 1. The applicant companies 202. The applicant companies submitted that the legal proceedings in the present case had lasted eight years at three levels of jurisdiction, each jurisdiction examining the case twice. It would have been within the power of the Supreme Administrative Court to issue the order of prohibition in its first decision in 2009, without referring the case back to the Data Protection Board. This could have been done in the name of procedural economy and with due regard for the applicant companies’ right to a fair trial within a reasonable time.", "The length of the proceedings had thus violated the applicant companies’ right guaranteed by Article 6 § 1 of the Convention. 2. The Government 203. The Government disagreed with the Chamber’s findings. They considered that, excluding the time taken for the preliminary reference to the CJEU, the first set of proceedings had lasted three years and three and a half months and the second some two years and three months.", "The total length had therefore been five years and seven months, from which six months should be deducted as it related to the preparation at national level of that preliminary reference. The overall length was thus five years and seven days. 204. The Government noted that none of the procedural stages had lasted very long. The case had involved two separate sets of proceedings as the subject-matter of the two sets of proceedings was not the same, in spite of the fact that the proceedings related to the same parties and the same facts.", "The first set of proceedings had concerned the issue of whether the applicant companies had processed personal data in conflict with the provisions of the Personal Data Act. The Supreme Administrative Court had quashed the appealed decision and referred the matter back to the Data Protection Board, which had to conduct a new administrative consideration of the matter and to make a new administrative decision. The second set of proceedings had concerned the question of whether the Data Protection Board’s new decision of 26 November 2009 had corresponded to the previous Supreme Administrative Court’s decision. 205. The Government noted that the matter was exceptionally complex from a legal point of view.", "In addition to the normal preparation of the case, it also included the drafting of the request to the CJEU for a preliminary ruling, the related interlocutory decision and two hearings. The present case was the first of its kind where the freedom to impart taxation information and data protection concerns were dealt with by the national authorities. No prior domestic case-law existed on this subject. 206. Furthermore, the applicant companies’ conduct had prolonged the second set of proceedings by one and a half months, a delay which could not be attributed to the Government.", "207. The Government concluded that in view of the particular circumstances of the case, the proceedings had been conducted within a reasonable time within the meaning of Article 6 § 1 of the Convention. C. The Court’s assessment 208. The Court notes that the period to be taken into consideration began on 12 February 2004 when the Data Protection Board’s first decision was appealed against, and ended on 18 June 2012 when the Supreme Administrative Court gave a final decision in the case. The case was pending before the CJEU for a preliminary ruling for one year and ten months which time, according to the Court’s case-law, is to be excluded from the length attributable to the domestic authorities (see Pafitis and Others v. Greece, 26 February 1998, § 95, Reports 1998‑I; and Koua Poirrez v. France, no.", "40892/98, § 61, ECHR 2003‑X). Deducting this period from the overall duration, the impugned proceedings before the domestic authorities and courts lasted over six years and six months, twice at two different levels of jurisdiction. 209. The reasonableness of the length of proceedings must be assessed, in accordance with well-established case-law, in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; and Lupeni Greek Catholic Parish and Others v. Romania [GC], no.", "76943/11, § 143, ECHR 2016 (extracts)). 210. The Court agrees with the Government that the proceedings were not characterised by any particularly long period of inactivity on the part of the domestic authorities and courts. The proceedings were pending before the domestic authorities and courts for approximately one and a half years for each stage, which cannot be considered excessive as such. 211.", "The total length of the proceedings is nonetheless excessive, which seems to have been caused by the fact that the case was examined twice by each level of jurisdiction. The Court considers that even if one were to accept the Government’s argument that the applicant companies’ conduct had prolonged the second set of proceedings by one-and-a-half months and that this period ought to be deducted from the overall length, the total length of the proceedings would still be excessive. 212. The Court is of the view that the case was indeed legally complex, a fact demonstrated by a paucity of jurisprudence at Finnish level, the need to refer questions relating to the interpretation of EU law to the CJEU and the very fact that the case was referred to the Grand Chamber of this Court. However, it cannot be said that the legal complexity of the case in itself justified the entire length of the proceedings.", "Some of this complexity was, in addition, caused by the fact that the case was referred back to the Data Protection Board for a new examination. 213. As regards what was at stake for the applicant companies, it is uncontested that the impugned national decisions had consequences for both the extent to which and the form in which the applicant companies could publish the taxation data and therefore continue their publishing activities unchanged. 214. Having examined all the material submitted to it, the Court considers that, even taking into account the complexity of the case from a legal point of view, the length of the proceedings as a whole was excessive and failed to meet the reasonable time requirement.", "215. There has therefore been a breach of Article 6 § 1 of the Convention on account of the length of the proceedings. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 216. 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 217. The applicant companies claimed EUR 900,000 in respect of pecuniary damage, corresponding to a net loss of income for three years. They did not specify their claim for pecuniary damage further with reference to the two Articles of the Convention which they alleged had been violated. 218. The Government agreed with the Chamber that no causal link had been established between the damage claimed and the alleged violation of Article 6 § 1 of the Convention.", "Nor had any causal link been established between the damage claimed and the alleged violation of Article 10 of the Convention. According to the Government, no compensation should thus be awarded under this head. Were the Court to consider that pecuniary damage was due, the application of Article 41 of the Convention should be reserved. 219. The Court does not discern, on the basis of the material submitted to it, any causal link between the violation found under Article 6 of the Convention and the pecuniary damage alleged by the applicant companies.", "The Court therefore rejects this claim. As to the non-pecuniary damage, the Court notes that the applicant companies have made no claim under that head. B. Costs and expenses 220. The applicant companies claimed EUR 58,050 in respect of costs and expenses incurred both before the domestic courts and the Court.", "221. The Government noted that the Chamber had awarded the applicant companies EUR 9,500 (inclusive of value-added tax) to cover the costs claimed at both levels. In the Government’s view this sum was reasonable and should not be increased. 222. 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, no documentary evidence supporting the claim for legal fees before the Grand Chamber has been submitted to the Court, as required by Rule 60 § 2 of the Rules of Court. The additional claim for costs and expenses incurred in the proceedings before the Grand Chamber must thus be rejected. Regard being had to the documentary proof provided by the applicant companies in support of their claim at the Chamber level and the above criteria, the Court considers it reasonable to award the sum of EUR 9,500 (inclusive of value-added tax) covering costs incurred before the domestic courts and the Chamber. C. Default interest 223. 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 objections; 2. Holds, by fifteen votes to two, that there has been no violation of Article 10 of the Convention; 3. Holds, by fifteen votes to two, that there has been a violation of Article 6 § 1 of the Convention; 4. Holds, by fourteen votes to three, (a) that the respondent State is to pay the applicant companies, within three months, EUR 9,500 (nine thousand five hundred euros), inclusive of 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses, by fifteen votes to two, the remainder of the applicant companies’ claim for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 27 June 2017. Lawrence EarlyAndrás SajóJurisconsultPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) partly dissenting opinion of Judges Nussberger and López-Guerra; (b) dissenting opinion of Judges Sajó and Karakaş. A.S.T.L.E. PARTLY DISSENTING OPINION OF JUDGES NUSSBERGER AND LÓPEZ-GUERRA 1.", "The thrust of this important case is balancing data protection rights and freedom of expression. We fully agree with the majority’s position. 2. Nevertheless, we have to mark our dissent concerning a secondary question. We cannot agree that there has been a violation of Article 6 § 1 of the Convention on account of the length of proceedings.", "3. It is true that the proceedings as a whole lasted for over six years and six months at two levels of jurisdiction (see paragraph 208 of the judgment), but it is important to note that four separate courts dealt with the case, each time allowing for a fresh consideration of the legal issues. First it was the Helsinki Administrative Court which decided on the Data Protection Ombudsman’s appeal against the Data Protection Board’s decision not to prohibit the applicant companies from processing the taxation data in the manner and to the extent that had been the case in 2002 and from passing those data to the SMS service. The Supreme Administrative Court had then to decide as second and last instance. After the preliminary ruling of the European Court of Justice the case was referred back to the Board, i.e.", "to the administrative level, in order to issue the respective prohibition. It was then the applicant companies who – knowing that the legal question had already been decided by two courts – appealed against the Board’s decision. The Turku Administrative Court, and thus a different court, rejected the applicants’ appeal. The applicants still did not accept this judgment and once more brought the case to the Supreme Administrative Court, obviously without any prospect of success. 4.", "The two sets of proceedings were therefore differently configured. The first set of proceedings was based on the Ombudsman’s appeal against the Board’s refusal to prohibit the applicants’ activity, while the second was based on the applicants’ appeal against the opposite decision. At first the controversy concerned the authorities’ inactivity, but then the second set of proceedings concerned the authorities’ activity. 5. It is important to note that the second set of proceedings was initiated by the applicants only.", "They used a legal remedy at their disposal which is perfectly legitimate. According to the Court’s long-standing case-law, however, while applicants cannot be blamed for making full use of the remedies available to them under domestic law, this has to be considered as an objective fact which cannot be attributed to the respondent State and which must be taken into account for the purpose of determining whether or not the reasonable time referred to in Article 6 § 1 has been exceeded (see Erkner and Hofauer v. Austria, no. 9616/81, § 68, 23 April 1987; Girardi v. Austria, no. 50064/99, § 56, 11 December 2003; Sociedade de Construções Martins & Vieira, Lda. and Others v. Portugal, no.", "56637/10 and 5 others, § 48, 30 October 2014; O’Neill and Lauchlan v. the United Kingdom, nos. 41516/10 and 75702/13, § 92, 28 June 2016). 6. It is true that the Supreme Court could have decided by itself. That would have made it impossible for the applicants to appeal once more; it would have reduced the scope of their legal remedies.", "It is somehow contradictory for the applicants to complain about having been offered a possibility to appeal and then using it. This procedural strategy was the applicants’ free choice. It was not imposed on them. 7. Furthermore, regard must be had to the legal complexity of the case, highlighted not least by the fact that the proceedings before the European Court of Human Rights have also taken almost five years.", "8. Last but not least, there was no particularly long period of inactivity on the part of the authorities and the domestic courts. 9. Therefore, in our view, according to the Court’s well-established criteria in length of proceedings cases, there is no basis for finding a violation of Article 6 § 1 of the Convention in the present case. DISSENTING OPINION OF JUDGES SAJÓ AND KARAKAŞ 1.", "This Court has long held that the media – which plays a pre-eminent role as a “public watchdog” – is entitled to robust protections of its right to freedom of expression. However, today’s judgment sees fit to weaken these protections by implausibly declaring that a newspaper publishing a dataset of publicly available information is not engaged in “journalistic activity”, and defending the particularly severe measure of censorship of that newspaper, which has now gone bankrupt. 2. We do not believe that domestic courts should be in the business of passing judgment on what counts as “journalistic activity”. We find unconvincing the Court’s assessment that taxpayer information – the subject of several laws in Finland – is not a matter of genuine “public interest”.", "We do not believe that the margin of appreciation has been correctly applied in this case, nor that the conflicting rights of the applicants’ freedom of expression and Finnish taxpayers’ individual privacy have been correctly balanced. 3. We therefore respectfully dissent from the Court’s opinion. A. Journalistic activity and contribution to a legitimate public interest 4.", "It is not in dispute that there has been an interference with the applicants’ freedom of expression (§ 140 of the judgment). We part company with the majority, however, over the lawfulness of that interference. 5. Under Finnish law, information on the taxable income and assets of taxpayers is public. [1] In 2002 the applicant companies published a certain amount of such information.", "In April 2003 the Data Protection Ombudsman, invoking taxpayers’ privacy interests, requested that the Data Protection Board restrain the applicant companies from publishing the taxation data. The request was dismissed on the grounds that the applicant companies were engaged in journalism and so were entitled to a derogation from restrictions provided by law on data processing. [2] In February 2007 the Supreme Administrative Court, examining the case, sought a preliminary ruling from the Court of Justice of the European Union (CJEU) on the interpretation of the EU Data Protection Directive[3], which also governed the impugned data processing. In December 2008 the CJEU ruled that activities related to data processing from documents in the public domain could be classified as “journalistic activities” if their object was to disclose to the public information, opinions or ideas, irrespective of the medium used to transmit them. In September 2009 the Supreme Administrative Court concluded that the publication of the whole database could not be regarded as journalistic activity, and directed the Data Protection Board to forbid the applicant companies from publishing such data.", "6. Under the Personal Data Act, personal data may be processed without individual consent only under a strictly limited set of conditions, including the performance of contracts, the protection of an individual’s vital interests, or where the Data Protection Board has permitted processing in light of “an important public interest”, as well as a select few others (section 8). A would-be data processor is not subject to these limitations, however, provided they are engaged in “journalism or artistic or literary expression” (section 2(5)). Similarly, the EU Data Protection Directive limits the purposes for which data may be processed, while mandating that “Member States shall provide for exemptions” to these limitations “for the processing of personal data carried out solely for journalistic purposes” (Article 9). The question, therefore, of whether applicants are performing a “journalistic activity” is of central importance, as in the affirmative, the means employed to obtain and the use made of such data are irrelevant.", "7. This Court, purporting to rely on the opinion of the Finnish Supreme Administrative Court, claims that “the publication of the taxation data in Veropörssi almost verbatim [...] amounted to the disclosure of the entire background file kept for journalistic purposes and there could be no question, in such circumstances, of an attempt to solely to express information, opinions or ideas” (§ 176 of the judgment, emphasis added). Illogical on the face of it – can we straight-facedly claim that the publication of data is not an attempt to “express information”? – this conclusion is also inconsistent with our case-law, which has never held that a registered journalistic enterprise that publishes data in its newspaper is not engaging in “journalistic activity”. It is also inconsistent with the Court’s own description of the applicants as “media professionals” (§ 151 of the judgment).", "8. Today’s judgment makes much of the fact that the applicants published “raw [tax] data in unaltered form without any analytical input” (§ 175 of the judgment), but our Court has never required a journalist to engage in “analytical input” in order to be considered to be performing their duties in imparting information to the public. Nor, as our case-law has long insisted, is it the place of this Court – or the national courts, for that matter –to substitute its own views for those of the press as to what technique of reporting should be adopted (see Axel Springer AG v. Germany [GC], no. 39954/08, § 81, 7 February 2012; Jersild v. Denmark, § 31, 23 September 1994, Series A no. 298).", "Provided that they are acting in good faith (see Section D below) and on an accurate factual basis in accordance with the ethics of journalism, Article 10 leaves it for journalists to decide whether or not to divulge information on issues of general interest (see Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999‑I). Journalism is first and foremost the collection and presentation of facts and not “analytical” input. [4] Fact takes precedence over opinion. 9.", "The Court attempts to further dilute the importance of the applicants’ speech claims by arguing that the “impugned publication” cannot be regarded as either contributing to a debate of public interest or as a form of political speech, which enjoys a privileged position in the case-law of this Court (see § 178 of the judgment). We find this reasoning strained, for the obvious reason that Finnish legislative policy has seen fit to render taxation data publicly accessible. This is all the more salient given, as the majority notes, that in so doing Finland is part of a small minority of Convention States, thus placing all the greater weight on the public interest in publicity and transparency concerning taxation data (see §§ 81, 120-121 of the judgment). 10. The majority claims that “the existence of a public interest in providing access to, and allowing the collection of, large amounts of taxation data did not necessarily or automatically mean that there was also a public interest in disseminating en masse such raw data” (see § 175 of the judgment).", "[5] Is this to say that what is available to the public is nevertheless unsuitable for publication? Dissemination of information is one of the usual purposes of maintaining a publicly accessible data collection. [6] Further, the Court has decided that the publication of a “certain” quantity of data does not enjoy the protection of the law, although the law nowhere specifies any threshold of this sort. The very fact that Finnish law made such data publicly available proves that its dissemination was not only lawful but also a matter of serious public interest in the Finnish context. In fact, the Act on the Public Disclosure and Confidentiality of Tax Information, which makes such data public, stipulates that its provisions should take precedence over the Act on the Openness of Government Activities and the Personal Data Act (section 2; see also § 15 of the applicants’ 23 April 2014 submissions and § 26 of their 17 March 2016 submissions).", "11. The majority attempts, further, to claim that because the data was published “en masse” and in “raw” form, its sheer size would render the public unable to engage in the business of observing and monitoring Government activities (see § 176 of the judgment). The Court adds that the information might enable curious members of society to satisfy a sensationalist or even voyeuristic thirst for information on the private lives of others (see § 177 of the judgment). Therefore, the Court concludes, the “sole object” of the publication could not have been the disclosure to the public of important information (see § 178 of the judgment). 12.", "However, the Court fails to consider that a larger quantity of data does contribute to public interest since it promotes fiscal transparency (which is why the law was passed in the first place). Furthermore, whether or not the data can be used for voyeuristic purposes does not undermine (let alone preclude) the public interest of the published information. The publication of more information cannot automatically mean that the information is of lesser value, has less public interest, is voyeuristic, or is prone to sensationalism (see, by converse implication, Von Hannover v. Germany, no. 59320/00, § 65, ECHR 2004‑VI). The impugned publication is not one concerning intimate aspects of private life which is typically the object of voyeurism, a term never defined by the majority.", "[7] B. The lawfulness of the ban on publication 13. Since we cannot agree with the Court that the impugned publication was not “journalistic”, we must conclude that the Data Protection Board’s order to retrospectively prohibit the applicants from publishing tax data in the manner sought was unforeseeable and therefore not prescribed by law (§§ 13, 34 of the judgment). 14. The Act on the Public Disclosure and Confidentiality of Tax Information provides that taxation data, including a taxpayer’s name, year of birth and municipality of domicile is public (section 5).", "It specifies, further, that the Personal Data Act does not restrict the collection of data for journalistic purposes (section 16(3)). As already mentioned, under the Personal Data Act, journalists are subject to a less stringent set of restrictions when processing personal data than is the rest of the population. [8] In the case of tax data, the obligation to protect must be understood in the context of a statutory framework that makes these data public. 15. In the light of those Acts, the request by the Data Protection Ombudsman in 2003 and the resulting judgment of the Supreme Administrative Court in 2007 (!)", "to cease publication was unforeseeable and arbitrary. Notably, the order objected, not to the publication of the data per se, but to the length and format in which those data were published, a criterion the applicants could not reasonably have foreseen. More importantly, given the journalistic exemption contained in both the Public Disclosure Act and the Data Protection Act, it was eminently reasonable that the applicants would have believed their publication to be protected. The confusion witnessed at multiple levels of judicial reviewing bodies over whether the journalistic exemption applies in the case also supports that point (see, inter alia, §§ 15, 17, 19, 20, 23 of the judgment). 16.", "The Court has repeatedly held, as the majority notes, that a norm cannot be regarded as a “law” within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to allow a person to regulate his or her conduct (§ 143 of the judgment). In the present case, the notion that the applicants, two media companies, would have foreseen that they would not be protected by the journalistic exemption is highly implausible (see § 143 of the judgment) in view of the text of the applicable law and also taking into consideration the understanding of journalism by this Court. Furthermore, two prior applications of the Personal Data Act had held, respectively, that public taxation data could be provided to media in mass deliveries in electronic format, and that a media organisation that had published data on a group of 10,000 people considered to be the wealthiest people in Finland had processed data for journalistic purposes (see § 38 of the judgment). [9] 17. In the light of the foregoing considerations, we must conclude that the interference was not foreseeable, and therefore not one prescribed by law.", "C. Margin of appreciation 18. As to the margin of appreciation to be afforded in the present case, we believe that the authorities of the respondent State did not act within that margin in striking a fair balance between the competing interests at stake. 19. To begin with, this case presumes that the Finnish Parliament acted within its margin of appreciation when providing such a degree of public access to taxation data (regardless of the fact that Finland is one of the very few members of the Council of Europe that does so). This Court has previously attached great importance to the quality of parliamentary review of the necessity of legislation restricting rights (see Animal Defenders International v. the United Kingdom [GC], no.", "48876/08, §§ 108 and 110, ECHR 2013 (extracts)). [10] In this case, the majority considers the parliamentary review conducted by the Finnish Parliament to be “exacting and pertinent” (§ 193 of the judgment). However, it is contradictory to grant a wide margin of appreciation to the Finnish authorities to pass a law because of its democratic legitimacy while also granting that margin of appreciation to domestic courts to limit the scope of what has been democratically debated and passed. Where a balance between competing interests has already been struck by the legislature, this Court would contradict its own position expressed in the Animal Defenders doctrine by encouraging the disregard of national democratic choices, especially if the sole reason for granting the margin of appreciation in the first place was the quality of parliamentary review. [11] 20.", "The judgment is, to that extent, ambiguous. It is not clear whether it affords courts a wide margin of appreciation to review legislation and strike a new balance between the rights involved (thus limiting its own scope of review), or whether it affords a small margin of appreciation to Parliament to narrowly construe a law so as to favour a privacy right that was not favoured in the plain text. It even appears to say that restrictions on Article 10 (allegedly based on the Personal Data Act) should have a wide margin of appreciation, but restrictions on Article 8 (based on the Act on Public Disclosure and Confidentiality of Tax Information Act) do not. The language is tentative at best, and no reason is given for the Court’s preference other than its desire to side with a national court against legislation. Today’s judgment clearly illustrates, once again, that there is no objective principle to apply the doctrine of margin of appreciation,[12] especially after its application in Animal Defenders.", "While the Court claims to be granting a wide margin of appreciation to the authorities of the respondent State to strike a balance between the rights involved, it wishes also to allow domestic Courts not only to judicially repeal what has been democratically passed, but also to redefine the meanings of “journalistic activity” and “journalistic purpose”. 21. Journalistic activity and journalistic purpose cannot be matters to be decided by domestic courts, regardless of the fact that these are context-bound concepts. It then follows that domestic authorities cannot be granted a margin of appreciation to make such a decision. A similar approach is being taken with regard to the concept of “responsible journalism”, which has been used, albeit not explicitly, to allow a less strict analysis of the balancing performed by the State and the proportionality of the measure adopted (see, respectively, Pentikäinen v. Finland [GC], no.", "11882/10, § 90, ECHR 2015; and more recently, Erdtmann v. Germany (dec.), no. 56328/10, § 20, 5 January 2016). “Responsible journalism” has recently been used as one of the factors to grant a wider margin of appreciation, resulting in undermining the freedom of the press (see Rusu v. Romania, no. 25721/04, § 24, 8 March 2016, where Pentikäinen was reinterpreted and extensively applied; Bédat v. Switzerland [GC], no. 56925/08, §§ 49-54, ECHR 2016; Salihu and Others v. Sweden (dec.), no.", "33628/15, §§ 53-56, 10 May 2016; Kunitsyna v. Russia, no. 9406/05, § 45, 13 December 2016; and Travaglio v. Italy (dec.), no. 64746/14, § 36, 24 January 2017). Allowing States to determine the boundaries of these concepts is to implicitly endorse a position, which is emerging in some member States, that journalistic activity that critical of the State is not journalistic but plainly illegal as a form of terrorism or a threat to national security. Article 10 does not endow national courts with such fundamental authority, and neither should this Court.", "22. Having regard to the foregoing considerations and to the fact that this case involves speech of public interest expounded by a publication with journalistic purposes, the respondent State should have no wide margin of appreciation in restricting it. D. Balancing competing rights 23. One might hold instinctive reservations against Finland’s fiscal transparency laws and request that this Court review the compatibility of such legislation with Article 8 where an affected individual submits a proper application against it. However, this is not what the Court was called to do in the present case, and it cannot do so by distorting this Court’s case-law to restrict freedom of expression.", "Any concerns about domestic laws that permit absolute fiscal transparency must therefore be left out of the balancing exercise. 24. It is for the Court to decide whether to apply a balancing approach or to apply the test of necessity. Hitherto this Court has applied either one or the other – never both, contrary to today’s judgment. While, according to prevailing case-law, balancing between two Convention rights requires the Court to defer to national choices, both the conflicting rights must still be given proper consideration (i.e.", "the Court must exercise its own scrutiny where one right is simply declared decisive without proper reasons). However, in the present case, when performing the balancing test, the domestic courts failed to take proper account of both rights at stake, and this Court did not even consider the matter, even though it is required to do so by its case-law. In cases where the balancing exercise carried out by the domestic court excluded any of the requisite considerations, the Court must find a violation. This Court’s case-law requires proper consideration of the following factors, among others. 25.", "First of all, the interference concerns the press and journalism. While journalism is not exempt from certain duties and responsibilities, its restriction triggers stricter scrutiny. There is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate of questions of public interest. The most careful scrutiny on the part of the Court is called for when measures taken or sanctions imposed by the national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern (see, for example, Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports 1996‑V; Bladet Tromsø and Stensaas [GC], no. 21980/93, § 64, ECHR 1999‒III; and Jersild, cited above, § 35).", "In the present case, the applicants published information that directly concerned matters of public interest. Issues relating to employment, pay, and fiscal transparency have already been affirmed by this Court to be of matters of public interest (see Fressoz and Roire, cited above, §§ 51 and 53). 26. Secondly, the information published by the applicants was not intended to (nor did it actually) cause any harm. [13] In weighing Article 8 against Article 10, the Court must also take into account “the seriousness of the intrusion into private life and the consequences of publication of the photograph for the person concerned” (see Gurgenidze v. Georgia, no.", "71678/01, § 41, 17 October 2006). At the same time, the interference imposed a great burden and actual harm upon the applicants, ultimately forcing them into bankruptcy. The harm to the general public, in contradistinction to the harm to the applicants, was speculative and diffuse. Given the public nature of the data and the aforementioned dimensions of the published dataset, any harm directly resulting from the applicants’ publication was relatively inconsequential as regards the public at large. The absence of any individual challenge to the law only further corroborates the absence of individualised harm at stake.", "On the other hand, it is a major burden upon journalists to prescribe requirements on the amount of data they can collect and publish, and on the form in which they must publish it, etc. 27. Thirdly, the information published by the applicants was deemed public and was subject to no confidentiality requirements. Domestic law empowers everyone with the right to access taxpayer information[14], and Article 12 of the Finnish Constitution further guarantees a right to disseminate and receive information without prior prevention by anyone. This Court has repeatedly guaranteed that “not only do the media have the task of imparting such information and ideas; the public also has a right to receive them” (see News Verlags GmbH & Co. KG v. Austria, no.", "31457/96, § 56, ECHR 2000‑I; Dupuis and Others v. France, no. 1914/02, § 35, 7 June 2007; Campos Dâmaso v. Portugal, no. 17107/05, § 31, 24 April 2008; and Axel Springer AG, cited above, §§ 79-80). When applying the balancing test in respect of Article 10, the lack or total absence of confidentiality and/or personal intimacy attached to information published by journalists must be imperative factors. In Fressoz and Roire, cited above, the Court expressly considered “whether there was any need to prevent the disclosure of information that was already available to the public and might already have been known to a large number of people” (§ 53).", "[15] Preventing disclosure of public information was considered unwarranted. 28. Fourthly, the applicant companies acted in good faith in publishing the taxpayer data. The standard of journalistic responsibility is subject to the proviso that journalists act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism (see Pentikäinen, cited above, § 90; Bladet Tromsø and Stensaas, cited above, § 65; Fressoz and Roire, cited above, § 54; Kasabova v. Bulgaria, no. 22385/03, 19 April 2011, §§ 61 and 63-68; and Times Newspapers Ltd v. the United Kingdom (nos.", "1 and 2), nos. 3002/03 and 23676/03, § 42, ECHR 2009). Unusual means of obtaining information do not constitute bad faith under this Court’s case‑law (see Stoll v. Switzerland [GC], no. 69698/01, § 103, ECHR 2007‑V; and Fressoz and Roire, cited above, § 54[16]). In accordance with the responsibility which this Court has imposed on journalists, the applicants acted in a manner that did provide reliable and precise information to the public and there was no intention to mislead (see Stoll, cited above, § 152; and Couderc and Hachette Filipacchi Associés v. France [GC], no.", "40454/07, § 131, ECHR 2015 (extracts)). It was specifically recognised by the Chamber, and not contradicted by the Grand Chamber, that the applicants did not make factual errors, mislead, or act in bad faith (§ 67 of the Chamber judgment and § 98 of the GC judgment). [17] 29. Finally, the taxpayers of Finland had little or nothing in the way of expectations as regards privacy concerning the information published. It is an unequivocal requirement under this Court’s case-law that there be a “legitimate expectation of protection of and respect for his or her private life” in order for freedom of expression to “cede to the requirements of Article 8” (see Von Hannover v. Germany (no.", "2) [GC], nos. 40660/08 and 60641/08, § 97, ECHR 2012). Moreover, it is mandatory that “the information at stake is of a private and intimate nature and there is no public interest in its dissemination” (see Couderc and Hachette Filipacchi Associés, cited above, § 89; and Mosley v. the United Kingdom, no. 48009/08, § 131, 10 May 2011). The information published in the present case was already accessible to everyone and was not of an “intimate” nature.", "[18] Thus, to extend to the present case rules specifically designed in Von Hannover and Couderc and Hachette Filipacchi Associés to cover cases concerning the dissemination of “intimate” information that has caused individualised harm is a gross misapplication of the Court’s principles. 30. This Court’s task is to determine whether the interference by the domestic authorities was based on proper and credible grounds. Having outlined the balancing factors that should have been included in the assessment, this judgment fails to demonstrate why a balancing test (even if it were applicable) requires the applicants (or other publishers) to cede to the requirements of Article 8 for publication of data concerning 1.2 million individuals but not for 150,000 individuals (see § 103 of the judgment). E. Conclusion 31.", "Consecrated in Article 10, of course, is the right to “impart information and ideas without interference by public authority”. Today’s judgment subjects that right to a limitation by the respondent State that is unforeseeable and disproportionate to any legitimate aim. 32. Granting domestic authorities broad discretion to define “journalistic activity” for the purposes of Article 10 can lead to systematic efforts to curtail political speech. Note that the courts of Finland were duty bound to interpret the term journalism broadly (see Case C‑3/07 Tietosuojavaltuutettu v. Satakunnan Markkinapörssi Oy and Satamedia Oy, judgment of 16 December 2008, Grand Chamber of CJEU).", "In the present case, the applicants, who were media professionals, were denied journalistic protection by this Court, which applied a wide margin of appreciation in handling the position of the domestic court on the basis of several criteria that must be considered arbitrary: the amount of information published, the format used for its publication, and the alleged lack of a “public interest” involved in the dissemination of taxpayer data. [19] To accept these as valid criteria for restricting journalistic expression would mean that authorities would, in the name of the “general interest”, be able to censor publications that they deemed not to promote discussion of a topic of public interest. Under the terms of Articles 8 to 11 of the Convention, there are several legitimate aims liable to justify interference in an individual’s manifestation of his or her freedom of expression. This enumeration of legitimate aims is strictly exhaustive and necessarily restrictive (see Leyla Şahin v. Turkey [GC], no. 44774/98, § 154, ECHR 2005‑XI).", "The aforementioned “general interest” is not included among these aims. Moreover, under the pretext of using a lenient balancing test, the Court omitted to conduct a proper review of the existence or absence of a public interest in the publication, which was deemed as voyeuristic without explanation. 33. Here, under the guise of ill-defined and diffuse privacy interests, considerations of a general interest in taxpayers’ privacy are being used, firstly, to limit a law that made such information public, and secondly, to curtail the right of journalists to impart information to the public. What is worse, this restriction was not examined under the level of stricter scrutiny required by Article 10 (2).", "We lament the consequent curtailment of the right of journalists to communicate accurate information of important public significance, and we therefore dissent. [1] Act on the Public Disclosure and Confidentiality of Tax Information, section 5. [2] The Personal Data Act governs the protection of individual privacy as concerns personal data. It provides, inter alia, that data processing must be conducted only under a specified list of conditions. However, section 2(5) of the Act exempts those engaged in “journalistic activity” from the majority of these conditions when processing personal data.", "[3] Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. [4] In Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 109, 8 November 2016, this Court held that “[t]he collection of information was an essential part of journalism and there was an obligation on the part of the State not to impede the flow of information”. See also the Council of Europe’s ‘Recommendation No. R (2000)7 on the right of journalists not to disclose their sources of information’ adopted 8 March 2000, where the term \"journalist\" was defined as “any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication”; and ‘Recommendation CM/Rec (2011)7 of the Committee of Ministers to member States on the new notion of media’ adopted 6 July 2011, which embraced a new broad notion of media: “… encompasses all actors involved in the production and dissemination, to potentially large numbers of people, of content (for example information, analysis, comment, opinion, education, culture, art and entertainment in text, audio, visual, audiovisual or other form) and applications which are designed to facilitate interactive mass communication … while retaining … editorial control or oversight of the contents”.", "[5] In Dammann v. Switzerland, no. 77551/01, § 52, 25 April 2006, the Court held that the gathering of information was an essential preparatory step in journalism and an inherent, protected part of press freedom (see also Shapovalov v. Ukraine, no. 45835/05, § 68, 31 July 2012). [6] In some member States, data generated by secret services is sometimes accessible to historians or affected persons (“objects of surveillance”) but their divulgation to the public is subject to limitation. This can be justified as an exception (often abused in the case of communist secret service archives), but no such circumstance is present in this case.", "[7] Voyeurism is defined as “The practice of gaining sexual pleasure from watching others when they are naked or engaged in sexual activity” or alternatively “enjoyment from seeing the pain or distress of others.” (Oxford Dictionary, Oxford University Press, 2017). It was used in this sense in Von Hannover (§ 65) and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 99 and 101, ECHR 2015, in which cases the Court relates it generally to sexual curiosity. It goes without saying that none of the above elements is present here unless one assumes that tax data are the source of sexual pleasure. [8] These restrictions include the obligation to protect data (section 32) and sectoral codes of conduct, orders of the Data Protection Board, and potential liability in damages and certain penal provisions as long as the data has not already been published (sections 39(3), 40(1) and (3), respectively).", "[9] The judgment talks about voyeurism. Is it really the case that the personal wealth of the richest people is a matter of public interest, but is not in the case of the less well-off? Are the privacy rights of the rich less important than those of Everyman? Furthermore, the large quantity of data disclosed by the applicants actually provides the public with more accurate insights into a whole range of issues of public interest. For example, what percentage of income is paid as tax by wealthier individuals in comparison to those with more modest incomes; or to what extent is income and wealth affected by one’s gender, occupation, or municipality?", "(see Applicants’ submissions dated 17 March 2016, § 53). [10] See, further on this road: National Union of Rail, Maritime and Transport Workers v. the United Kingdom, no. 31045/10, 8 April 2014, which brings into the ambit of Article 11 the wide margin of appreciation that originally applied to socio-economic policies. This is quite ironic. Under Articles 10 and 11, public interest cannot be a ground for restriction unless it is a question of public order, etc.", "However, once a measure qualifies as part of socio-economic policy it suddenly provides a virtual “carte blanche” in the form of a wide margin of appreciation. [11] One of us was also a dissenting judge in Animal Defenders. According to the dissenting opinion in question the idea that the democratic process of legislation could be enabled to lower the standard of review in matters of human rights was unacceptable. Here we refer to Animal Defenders only to show the internal contradictions of the majority reasoning. [12] See Lech Garlicki, “Cultural Values in Supranational Adjudication: is there a ‘cultural margin of appreciation’ in Strasbourg?”, in Klaus Stern, Michael Sachs, and Helmut Siekmann, Der grundrechtsgeprägte Verfassungsstaat: Festschrift für Klaus Stern zum 80.", "Geburtstag (2012); and George Letsas, “Two Concepts of the Margin of Appreciation”, in A Theory of Interpretation of the European Convention on Human Rights, Oxford University Press (2007), pp. 80-98. [13]. In Fressoz and Roire v. France, cited above, § 48, the Grand Chamber expressly noted that in the Government’s view the publication of personal tax assessments belonging to one person “had been published solely with a view to damaging [him]”. Nevertheless, this Court still found in favour of the applicants, who were journalists, and held that their conviction for re-publishing tax information that was already public was a violation of Article 10.", "In a situation where only “local taxpayers may consult a list of the people liable for tax in their municipality, with details of each taxpayer's taxable income and tax liability” and where “that information cannot be disseminated”. Nevertheless, the Fressoz Court considered it is “thus accessible to a large number of people who may in turn pass it on to others. Although publication of the tax assessments in the present case was prohibited, the information they contained was not confidential” (§ 53.) The departure is striking. [14] See “Act on the public disclosure and confidentiality of tax information”, No.", "1346/1999, §§ 5 – 9 and “Act on the Openness of Government Activities”, No. 621/1999, §§ 2, 6, 7, 9, 13(1), 17(1), and 20 (among others). [15] See also Weber v. Switzerland, 22 May 1990, Series A no. 177, p. 23, § 51; and the Vereniging Weekblad Bluf! v. the Netherlands, 9 February 1995, Series A no.", "306-A, p. 15, § 41. [16] The Court held, “[i]n essence, that Article [10] leaves it for journalists to decide whether or not it is necessary to reproduce such documents to ensure credibility. It protects journalists' right to divulge information on issues of general interest provided that they are acting in good faith and on an accurate factual basis and provide ‘reliable and precise’ information in accordance with the ethics of journalism.” [17] The Court observed: “the accuracy of the published information was not in dispute even before the domestic courts. There is no evidence, or indeed any allegation, of factual errors, misrepresentation or bad faith on the part of the applicant companies” (see also, in this connection, Flinkkilä and Others v. Finland, no. 25576/04, § 81, 6 April 2010).", "[18] It is not the first time that the Court has extended restrictions developed for specific situations. Here the judgment has misapplied a rule developed for data of an intimate nature without showing the similarity of otherwise different situations. Quoting magic formula from leading cases mechanically (or even in a distorted fashion as was done with regard to “responsible journalism” in Pentikäinen v. Finland) does not make the application any more convincing. We do not think that the extension is correct, but we might be mistaken. However, we are certainly not mistaken in asserting that we have nothing to contest as no reasons were given.", "The extension of a principle is always invidious on the simple grounds of lack of justification. Authority cannot replace reason. [19] It is noteworthy that not even the Government denied the existence of a public interest in the publication: it only stated that it was overridden by the privacy interest: “it is obvious that the publishing activities in the aforementioned manner and extent did not contribute to public debate in a way that would override the public interest of protecting the processing of personal data of the persons concerned” (address of the Government of Finland at the Grand Chamber hearing of 14 September 2016, § 53)." ]
[ "FOURTH SECTION CASE OF FINANCIAL TIMES LTD AND OTHERS v. THE UNITED KINGDOM (Application no. 821/03) JUDGMENT STRASBOURG 15 December 2009 FINAL 15/03/2010 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Financial Times Ltd and Others v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Lech Garlicki, President,Nicolas Bratza,Giovanni Bonello,Ljiljana Mijović,David Thór Björgvinsson,Ledi Bianku,Mihai Poalelungi, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 24 November 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "821/03) 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 four newspapers and a news agency: Financial Times Ltd (“FT”); Independent News & Media Ltd; Guardian Newspapers Ltd; Times Newspapers Ltd; and Reuters Group plc (together, “the applicants”) on 20 December 2002. 2. The applicants were represented by Clifford Chance, a law firm in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. Grainger, of the Foreign and Commonwealth Office. 3.", "The applicants alleged that the decision of the High Court on 19 December 2001 to order them to deliver up a leaked document to Interbrew violated their right to freedom of expression and their right to respect for their home and correspondence. They also alleged that there was an inequality of arms during the court proceedings which constituted a breach of their right to a fair hearing and of the procedural requirements implicit in the right to respect for their home and their correspondence and the right to freedom of expression. 4. On 18 October 2005 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 facts of the case, as submitted by the applicants, may be summarised as follows. A. The background 6.", "On 30 October 2001 the board of Interbrew, a Belgian brewing company, asked its investment bank advisers, Goldman Sachs (“GS”) and Lazard, to carry out work on a potential association between Interbrew and South African Breweries plc (“SAB”), a competitor in the brewing industry, with a view to a possible takeover bid for SAB by Interbrew. 7. On 18 November 2001 GS produced a document in relation to the possible takeover. The document was confidential and contained data which were likely to affect both Interbrew and SAB's share prices. It formed the basis of a presentation which, on 20 November 2001, was submitted to Interbrew's internal mergers and acquisitions department.", "8. On an unknown date a person (“X”) whose identity is unknown, even by the applicants, came into possession of a copy of the presentation submitted to Interbrew. On 27 November 2001 X sent copies of a document (“the leaked document”) to various news media organisations, including the FT, The Guardian, The Times and Reuters, from an address in Belgium. On Interbrew's evidence the leaked document was very similar if not identical to the Interbrew presentation, except for the following: (a) the substitution of an offer price for SAB shares of between 500 and 650 pence in place of the price of between 400 and 550 pence, which had apparently been in the original presentation; and (b) the insertion of a timetable for making the offer. B.", "The press coverage 9. On 27 November 2001 Mr Jones, a journalist at the FT, received a copy of the leaked document from X. At 5p.m. that day, he telephoned Mr Van Praag of GS and told him that he had received the leaked document and that he intended to publish it. Mr Van Praag reported the conversation to Mr Powell, the Chief Executive Officer of Interbrew.", "Mr Powell telephoned Mr Jones and told him, on the record, that Interbrew had carried out research into SAB but that it was not in the advanced stage of preparing an offer. At about 10p.m., the FT published an article on its website stating that Interbrew had been plotting a bid for SAB, that documents seen by the FT indicated that an approach could be made on 3 December 2001 and referring to the conversation between Mr Jones and Mr Powell. The article did not state the proposed offer price but gave accurate codenames used for the advisers in the presentation and quoted from the document on the likely positive market reaction and with reference to potential rival bids. The FT published an article in the same terms in its newspaper the next morning. 10.", "At about 5.30p.m. on 27 November 2001 The Times received a copy of the leaked document from X. In its second edition, which reached the news stands at about 5a.m. on 28 November 2001, it published an article referring to the “confidential” document which it had seen, a supposed approach to SAB “this weekend”, a plot to bid GBP 4.6 billion for SAB and an offer expected to be pitched at up to 590 pence per share. 11.", "At 12.51a.m. on 28 November 2001 Reuters reported the FT's story and the rise in the share price of SAB on the Johannesburg Stock Exchange on its wire service. Reuters received a copy of the leaked document from X on the afternoon of 28 November 2001 and, at 2.44p.m., published a further article referring to its receipt of the leaked document. 12. At about 8.30a.m.", "on 28 November 2001 GS and Lazards contacted the Takeover Panel, which asked Interbrew to make a statement. In response, at about 12.15p.m., Interbrew issued a press release confirming that it had undertaken a preliminary analysis of SAB as part of its routine annual review of the leading brewers of the world; that the analysis was at a very preliminary stage which might or might not lead to an offer at some time in the future; but that no approach had been made. 13. On 28 November 2001 The Guardian received a copy of the leaked document from X. On 29 November 2001 it published an article referring to the “secret document” prepared by GS and Lazards, which it stated had been “couriered” to a “large chunk” of the business press, and mentioning the leaking of previous bids by Interbrew.", "14. The Independent did not receive a copy of the leaked document directly from X. However, it did take steps to obtain a copy from another source that it knew but undertook not to reveal it. On 29 November it published two articles about the leaked document, one of which stated that the offer price and timetable appeared bogus. 15.", "On 29 November 2001 Interbrew, in agreement with the Takeover Panel, published a second statement to the press, alleging that the leaked document contained fabrications. This statement was reported by each of the applicants, who continued to publish articles on the topics of doctored copies and a possible bid. 16. The impact of this press coverage on the market in shares of Interbrew and SAB appears to have been significant. Interbrew's share price at market on 27 November 2001 was EUR 29.40.", "By midday the next day it was EUR 27.20. It was EUR 28.25 after the press release and at market close. The SAB share price at market close on 27 November 2001 was 442.74 pence and at market close on 28 November 2001 was 478 pence. The volume of SAB's shares traded on 27 November 2001 was less than 2 million. On 28 November 2001 it was more than 44 million.", "17. On 30 November 2001 Interbrew instructed Kroll, the security and risk consultants, to assist in identifying X. Kroll did not identify X. On 6 December 2001 Interbrew made a criminal complaint to the Examining Magistrate of the Brussels Court of First Instance, together with a claim for civil damages, against a person or persons unknown. C. The Norwich Pharmacal proceedings 18. On 10 December 2001 Interbrew launched proceedings against the applicants in the High Court following advice from Kroll that access to the original documents might vitally assist the investigation.", "Given that the applicants were not aware of the identity of X, Interbrew lodged a claim for: “1. delivery up of documents: 1.1 containing or relating to an analysis of [SAB] prepared by [GS] and/or [Lazards]; and 1.2 evidencing or containing discussions with any journalistic source in respect of the subject matter of 1.1; 2. disclosure of such documents; 3. an order that the Defendants do disclose the name and address of: 3.1 any journalistic source who had provided them with the documents referred to in 1.1; 3.2 any journalistic source with whom they have had the discussions referred to at 1.2 ...” 19. At the same time Interbrew, without notice to the applicants, applied for, and was granted, a temporary injunction from the High Court in the following terms: “1. The Defendants must not alter, deface, dispose of or otherwise deal with the documents referred to in Schedule 3 at paragraph 1 thereof 2. The Defendants must not alter, deface, dispose of or otherwise deal with the documents referred to in Schedule 3 at paragraph 2 thereof 3.", "The Defendants must within 24 hours of service of this Order deliver up the two categories of documents referred to at Schedule 3 ... to the custody of solicitors appointed on their behalf to be held until further Order herein ... 4. The Defendants must within 48 hours of service of this Order serve on the Claimant's Solicitors a list of 4.1 the Documents within their control 4.2 those of the Documents which were formerly in their control but are no longer in their control, explaining what has happened to them and confirm the facts set out in this paragraph by means of a signed witness statement containing a Statement of Truth also within 48 hours of service of this Order PROVIDED THAT this Order shall not require the Defendants to provide any information which would disclose the source of information contained in a publication for which the Defendants are responsible. ... SCHEDULE 3 The Documents 1. Documents including draft documents and copy documents (whether received by the Defendants as copy documents or copies by the Defendants) provided to the Defendants by any third party subsequent to 23 November 2001 containing or relating to an analysis of [SAB] prepared by [GS] and/or [Lazards].", "2. Documents evidencing or containing discussions with any journalistic source subsequent to 23 November 2001 relating to an analysis of SAB prepared by [GS] and/or [Lazards], together with the envelopes or packaging in which they were delivered to the Defendants and any additional documents contained therein.” 20. On 11 December 2001, Interbrew sought an order in different terms from the one granted on 10 December 2001. Instead of the original paragraph 4 of the order, Interbrew sought an order requiring the applicants to serve, within 48 hours, a witness statement setting out the names and addresses of every person who had provided them with the Schedule 3(1) documents and every person with whom they had had discussions evidenced or contained in the Schedule 3(2) documents and, if these identities were not known, the circumstances in which they received the documents, to the best of their knowledge. On 12 December 2001, the judge ordered that paragraphs 3 and 4 of the order of 10 December 2001 be discharged in their entirety.", "21. An expedited hearing on Interbrew's application for an injunction took place on 14 and 17 December 2001 before the High Court. Interbrew invoked the Norwich Pharmacal principle (see paragraph 29 below) whereby if a person through no fault of his own becomes involved in the wrongdoing of others so as to facilitate that wrongdoing, he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoer. 22. On 19 December 2001 the High Court (Interbrew v. Financial Times et al.", "[2001] EWHC Ch 480) ordered delivery up of the documents under the Norwich Pharmacal principle in the following terms: “1. The Defendants must not alter, deface, dispose of or otherwise deal with the documents referred to in Schedule 3. 2. The Defendants must within 24 hours of service of this Order deliver up the documents and other materials referred to at Schedule 3 ... to the Claimant's solicitor ...” 23. The judge found (at paragraph 34) that: “What [X] has done is deliberately to admix with that confidential information false information (a lethal concoction) to create a false market in the shares of the Claimant and SAB, a serious criminal offence.", "There must be a real risk of repetition, if [X] is not identified. Beyond the substantial private interest of the Claimant, there is a substantial public interest in identifying [X] and taking all necessary steps to prevent any repetition. As it seems to me, the circumstances of this case are exceptional: vital public as well as individual interests are at stake in securing the integrity of the share market. There is an overriding need for the disclosure sought in the interests of justice and for the prevention of crime”. 24.", "The judge continued (at paragraph 37): “As it seems to me the Claimant has sufficiently explored other avenues before having recourse to this application for relief against the press ... There have been internal investigations conducted at the Advisers' and the Claimant's businesses; the Claimant is conducting inquiries further afield. The Claimant is using investigators of the highest international calibre. The Defendants complain that full details of all the Claimant's inquiries are not given in the Claimant's evidence and that this is necessary in order to establish how thorough they have been, but there is no substance in this complaint. The evidence establishes to my satisfaction that full and proper investigations have been made and are continuing.", "To require disclosure of more details of these investigations is unnecessary even as such a course may prejudice the ongoing inquiries ... The evidence before me (and most particularly a report by Kroll) establishes that the Claimant needs the information which production of the Documents ought to provide to further and give impetus to these investigations ... I am satisfied that the order is required if progress is to be made whilst the trail is still warm and if an identification is to be made within the time frame necessary to safeguard the interests of the Claimant and the public.” 25. The applicants were granted leave to appeal by the Court of Appeal on 20 December 2001 and were required to file their written arguments with the court by 28 December 2001. By judgment of 8 March 2002 the Court of Appeal dismissed the applicants' appeal (Interbrew v. Financial Times et al.", "[2002] EWCA Civ 274). In the leading judgment of Sedley LJ, the Court of Appeal held that in order to justify the exercise of Norwich Pharmacal powers to compel production of documents or disclosure of information, Interbrew had to establish that each defendant had facilitated a civil wrong committed by an unknown person against whom they aimed to seek redress. The only civil wrong on which Interbrew could rely was that of a breach of confidence on the part of the source. While such a breach of confidence had been made out, what had not been made out was a “bigger and better cause of action in respect of the 'lethal cocktail' of fact and falsehood, since the element of falsehood can neither form part of the protected confidence nor stand on its own as a discrete tort” (at paragraph 28). 26.", "Sedley LJ went on to consider the approach adopted by the High Court as follows (at paragraphs 40-41): “Everything proceeded below on the assumption that crimes of forgery and market manipulation were proved. But both, or at least the former, depend upon the falsity of the pages in the document showing bid price and timetable. False they were if one goes on such evidence as was before the court. But by definition their falsity is alleged against an absent and silent accused. We have no way of knowing, any more than – as [counsel for the applicants] stressed – the five defendants do, whether the source, if cornered, would demonstrate that he had simply assembled authentic documents from different places within Interbrew, GS and Lazards.", "I have to say that I find this aspect of the Norwich Pharmacal procedure troubling. A commercial enterprise which may very well have its own reasons for denying the authenticity of a document gets a clear run against a media defendant which can only, save in rare cases, take a neutral stand on the question. The court of first instance needs to be extremely circumspect before accepting evidence, especially when, as here, it is second- or third-hand, that goes to the heart of the case and cannot be controverted ...” 27. However, Sedley LJ concluded: “49. ...", "I have come to the conclusion, though not without misgiving, that the order for disclosure was rightly made against all the defendants. Nothing which has been put before us suggests that the court will be significantly better placed at an eventual trial than it is now to decide the key issues; and there is at least some force in Interbrew's complaint that its hands are tied vis-à-vis South African Breweries, and possibly other targets too, unless and until it can prevent a recurrence of this spoiling operation. 50. ... Interbrew's prima facie entitlement to delivery up of the documents is established because – and solely because – it may enable them to ascertain the identity of the proper defendant to a breach of confidence action relating to the relatively anodyne, though not the explosive, parts of the document. From the sweep of Interbrew's original case and the “lethal cocktail” on which Lightman J founded his conclusions, the basis of the application now shrinks to this little measure.", "But though little, it is far from insignificant for Interbrew ... 51. With it, one turns to s.10 of the 1981 Act. The section begins by barring any order for disclosure in circumstances such as these, since its very object is to discover the source of information which the defendants have published. Interbrew, however, can invoke one of the listed purposes for lifting the bar: that disclosure is necessary in the interests of justice. That it may also go to the prevention of crime cannot be ruled out as irrelevant, but it is peripheral because it is not a purpose for which Interbrew themselves are entitled to disclosure.", "Then is the public interest in the doing of justice sufficient in the particular circumstances of this case to make disclosure necessary? Reading that question through the lens of the Convention and its jurisprudence, as we are now required to do, the following elements separate themselves out. 52. First, what is the nature and weight of the public interest in the confidentiality of sources? The right of free expression enshrined in art.", "10 is undifferentiated, but as the European Court of Human Rights said in Goodwin, 'freedom of expression constitutes one of the essential foundations of a democratic society', and '[p]rotection of journalistic sources is one of the basic conditions for press freedom' (paras. 39, 40). Much judicial authority in this country says the same. The news media, in consequence, enjoy in s.10 of the 1981 Act a high initial level of protection, not in their own but in the public interest. 53.", "The entitlement to reverse the balance is prescribed by law, as art. 10(2) requires. A required ground for doing so, founded on the no less important public interest in an effective system of justice, is present. Is it then necessary to reverse the balance? The following elements seem to me to matter here: ... • Any invasion of the protection must meet a pressing social need – not merely an individual one.", "This meets the need to counterpose one public interest to another. Here the need, in terms of s.10, is to enable Interbrew to restrain by court action any further breach of confidence by the source and possibly to recover damages for losses already sustained. In terms of art. 10(2) it is to protect the rights of Interbrew. • There must be no less invasive alternative.", "While I would not adopt the judge's approach of simply refusing to second-guess the view of the aggrieved parties' solicitors, I would infer from the evidence that as much has been done as can at present be done by the use of reputable private detectives to trace the source. I can see that to demand particulars of the admittedly general assertions about this could jeopardise the exercise. ... 54. It seems to me that once the legitimacy of Interbrew's intended resort to law is accepted, the relatively modest leak of which they are entitled to complain does not diminish the prospective seriousness for them of its repetition. For the media, on the other hand, the public interest in their freedom to publish is constant, and with it the public interest in the confidentiality of their sources.", "While I do not think that the character of the material is irrelevant as a matter of law, I agree with Laws LJ in Ashworth at least to this extent, that it cannot be for the court to decide how interesting or important it thinks the material is. That is for journalists and their editors. But it may follow that the more the press decide to make of a story, the greater will be the affected party's legitimate interest in finding and suppressing its source. 55. What in my judgment matters critically, at least in the present situation, is the source's evident purpose.", "It was on any view a maleficent one, calculated to do harm whether for profit or for spite, and whether to the investing public or Interbrew or both. It is legitimate in reaching this view to have regard not only to what Interbrew assert is the genuine document but also to the interpolated pages; for whether they are forged or authentic, integral or added, they were calculated to maximise the mischief. To this factual extent the 'lethal cocktail' is material, despite its legal irrelevance to the earlier stages of the inquiry. The public interest in protecting the source of such a leak is in my judgment not sufficient to withstand the countervailing public interest in letting Interbrew seek justice in the courts against the source.” 28. On 9 July 2002 the House of Lords refused the applicants leave to appeal, following which Interbrew required the applicants to comply with the court order for delivery up of the documents.", "The applicants have refused to comply. While Interbrew has instituted enforcement proceedings against The Guardian, it has not pursued these proceedings. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Duty of assistance and disclosure 29.", "The exercise of the power to require the delivery up of otherwise confidential information derives from the jurisdiction established by the decision of the House of Lords in Norwich Pharmacal v. Customs & Excise Commissioners [1974] AC 133 at page 175: “[The authorities] seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.” 30. That power is subject to section 10 of the Contempt of Court Act 1981 (“the 1981 Act”) which provides that: “No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.” 31.", "Prior to the proceedings in the present case, the Court of Appeal had held in Ashworth Hospital Authority v. MGN Ltd [2001] 1 All ER 991 that the phrase “the interests of justice” in section 10 of the 1981 Act was wide enough to include the exercise of legal rights and the ability to seek protection from legal wrongs, whether or not by court action. This interpretation was later confirmed by the House of Lords in Ashworth Hospital Authority v. MGN Ltd [2002] 1 WLR 2003. 32. In Ashworth, the High Court granted an order compelling the Mirror newspaper to reveal a source to Ashworth Hospital. The Mirror subsequently disclosed its source as Robin Ackroyd, an investigative journalist.", "Ashworth brought new proceedings to seek an order for disclosure against Mr Ackroyd and applied for summary judgment on the grounds that the case was indistinguishable from that of the Mirror in the previous Ashworth case. Mr Ackroyd submitted that the facts were materially different. The High Court granted the order requested but it was overturned on appeal to the Court of Appeal which held in Mersey Care NHS Trust v. Robin Ackroyd [2003] EWCA Civ 663 at paragraph 70 that: “Protection of journalistic sources is one of the basic conditions for press freedom in a democratic society. An order for source disclosure cannot be compatible with Article 10 of the European Convention unless it is justified by an overriding requirement in the public interest. Although there is a clear public interest in preserving the confidentiality of medical records, that alone cannot, in my view, be automatically regarded as an overriding requirement without examining the facts of a particular case.", "It would be an exceptional case indeed if a journalist were ordered to disclose the identity of his source without the facts of his case being fully examined. I do not say that literally every journalist against whom an order for source disclosure is sought should be entitled to a trial. But the nature of the subject matter argues in favour of a trial in most cases ...” B. Civil proceedings in England and Wales 33. The Civil Procedure Rules (“CPR”) govern procedure in civil proceedings in England and Wales.", "Relevant excerpts of the CPR provide as follows: “Rule 18.1 (1) The court may at any time order a party to – (a) clarify any matter which is in dispute in the proceedings; or (b) give additional information in relation to any such matter, whether or not the matter is contained or referred to in a statement of case. (2) Paragraph (1) is subject to any rule of law to the contrary. ... Rule 32.2 (1) The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved – (a) at trial, by their oral evidence given in public; and (b) at any other hearing, by their evidence in writing. (2) This is subject – (a) to any provision to the contrary contained in these Rules or elsewhere; or (b) to any order of the court. ... Rule 32.6 (1) Subject to paragraph (2), the general rule is that evidence at hearings other than the trial is to be by witness statement unless the court, a practice direction or any other enactment requires otherwise.", "(2) At hearings other than the trial, a party may, rely on the matters set out in – (a) his statement of case; or (b) his application notice, if the statement of case or application notice is verified by a statement of truth. Rule 32.7 (1) Where, at a hearing other than the trial, evidence is given in writing, any party may apply to the court for permission to cross-examine the person giving the evidence ...” C. The Press Complaints Commission Code of Conduct 34. The Press Complaints Commission has adopted a code of conduct which is regularly reviewed and amended as required. The 2003 Code of Conduct reads, insofar as relevant, as follows: “1. Accuracy Newspapers and periodicals must take care not to publish inaccurate, misleading or distorted material including pictures.", "Whenever it is recognised that a significant inaccuracy, misleading statement or distorted report has been published, it must be corrected promptly and with due prominence. An apology must be published whenever appropriate. Newspapers, whilst free to be partisan, must distinguish clearly between comment, conjecture and fact. A newspaper or periodical must report fairly and accurately the outcome of an action for defamation to which it has been a party. ... 15.", "Confidential sources Journalists have a moral obligation to protect confidential sources of information.” 35. There have been no significant changes to the above provisions since 2003. III. RELEVANT COUNCIL OF EUROPE MATERIAL 36. On 8 March 2000, the Committee of Ministers of the Council of Europe adopted a Recommendation (No.", "R (2000) 7) on the right of journalists not to disclose their sources of information. The Recommendation provides, at Principle 3, as follows: “a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in Article 10, paragraph 2 of the Convention. In determining whether a legitimate interest in a disclosure falling within the scope of Article 10, paragraph 2 of the Convention outweighs the public interest in not disclosing information identifying a source, competent authorities of member states shall pay particular regard to the importance of the right of non-disclosure and the pre-eminence given to it in the case-law of the European Court of Human Rights, and may only order a disclosure if, subject to paragraph b, there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature. b.", "The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that: i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure, and ii. the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure, bearing in mind that: - an overriding requirement of the need for disclosure is proved, - the circumstances are of a sufficiently vital and serious nature, - the necessity of the disclosure is identified as responding to a pressing social need, and - member states enjoy a certain margin of appreciation in assessing this need, but this margin goes hand in hand with the supervision by the European Court of Human Rights. c. The above requirements should be applied at all stages of any proceedings where the right of non-disclosure might be invoked.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 37. The applicants complained that the decision of the High Court on 19 December 2001 to order them to disclose the leaked document to Interbrew violated their right to freedom of expression as provided in Article 10 of the Convention, which reads, insofar as relevant, 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 prevention of disorder or crime, ... for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence ...” 38. The applicants also alleged that the inequality of arms during the Norwich Pharmacal proceedings constituted a breach of the procedural aspect of their right to freedom of expression. 1.", "The Government's preliminary objection 39. The Government submitted that the applicants' complaint regarding the lack of procedural guarantees in the Norwich Pharmacal proceedings was inadmissible due to the applicants' failure to exhaust domestic remedies within the meaning of Article 35 § 1. In the view of the Government, the applicants did not take advantage of procedural protection available to them under domestic law. The Government argued that it was open to the domestic court to make a range of orders against Interbrew for disclosure of documents, cross-examination and production of information but this would generally only be done on the application of either party. In the present case, there was no evidence that the applicants had made any formal applications of this nature.", "The Government further relied upon the fact that the applicants did not request a full trial of Interbrew's claim for delivery up of the leaked document. The Government concluded that the applicants did not argue before the domestic courts that the procedure adopted was unfair but instead chose to argue that Interbrew could not prove its case. Accordingly, the applicants had not raised the substance of their complaint in the domestic proceedings. 2. The applicants' response 40.", "The applicants disputed the Government's assessment of the domestic proceedings. They highlighted the urgent nature of the proceedings and contended that the Government's submissions did not reflect the haste with which the applicants were required to defend Interbrew's application. 41. The applicants emphasised that they had argued before the domestic courts that no findings of fact should be made on the basis of one-sided evidence in an interim application. They contested the Government's suggestion that they did not ask the judge to order a full trial of Interbrew's claim, although they accepted that a formal application was probably not made and contended that this was because the judge had made it clear that he would not grant such an order.", "The applicants also accepted that no formal application was made for further information, but argued that an oral application in the course of argument sufficed when time was short. They explained that they had orally requested further details of Interbrew's investigations but that the judge ruled this to be unnecessary on the basis that it might prejudice ongoing enquiries. As to their failure to seek permission to cross-examine witnesses, the applicants pointed out that the relevant witness statements were lodged either late on 16 December 2001 or early on 17 December 2001, in the closing stages of the urgent application, and in any event recounted only hearsay evidence rather than dealing with the underlying facts of the leak and the investigation. Evidence, in the form of a letter from Kroll, concerning the progress of the investigation was merely appended to the witness statement of Interbrew's solicitors which meant that the applicants were not able, under the CPR, to directly cross‑examine the Kroll witness himself. They therefore contended that they had aired the substance of their procedural complaint in the domestic proceedings.", "3. The Court's assessment 42. The Court reiterates that in assessing whether domestic remedies have been exhausted, account should be taken not only of the formal remedies available in the legal system concerned but also of the particular circumstances of the case in question (see Akdivar and Others v. Turkey, 16 September 1996, § 69, Reports of Judgments and Decisions 1996‑IV). There should be a degree of flexibility in the application of the rule and it is not necessary to demonstrate that the arguments were advanced in exactly the same terms before domestic courts as before this Court, provided that the substance of the complaint has been aired in domestic proceedings in accordance with any formal requirements (see Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999‑I).", "43. The Court notes that until 10 December 2001, when an injunction was granted against them without notice, the applicants were completely unaware that Interbrew was planning to take legal action to compel them to deliver up the leaked document. The applicants thereafter found themselves in the position of having to resist, at very short notice, an interim application for delivery up of documents within 24 hours, where the application by its nature would be determinative of the whole case. The Court observes that the timetable for the proceedings before the High Court was tight and that the deadline for lodging written arguments before the Court of Appeal was short. 44.", "The Court considers that the applicants argued in substance before both the High Court and the Court of Appeal that the court should not make findings of fact in summary proceedings and that their ability to contest the delivery up order was hindered by the fact that they were required to take it on trust that the leaked document had been falsified by X and that adequate efforts had been made to investigate the leak but had proved unsuccessful. In these circumstances the Court finds that, having regard to the haste with which the proceedings took place, the applicants have satisfied the requirements of Article 35 § 1. 45. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It must therefore be declared admissible.", "B. Merits 1. The parties' observations a. The applicants 46. The applicants argued that as a consequence of the order of the domestic court, their journalistic sources might be identified.", "They contended that this violated their right to freedom of expression. The applicants alleged in particular that (i) the “interests of justice” test in section 10 of the 1981 Act did not construe sufficiently narrowly the exceptions permitted by Article 10 § 2; (ii) it was wrong in principle to make an order for delivery up of documents which had the certain effect of interfering with freedom of expression when, as in this case, the seriousness of the harm done to, and the wrong suffered by, the claimant could not be determined; (iii) it was wrong in principle to make an order for delivery up of documents where the pursuit of evidence by other means had not been exhausted and/or evidence as to the adequacy of investigations was not satisfactory; and (iv) the domestic courts were wrong to treat the purposes of X as being relevant and justiciable. 47. The applicants pointed to the chilling effect that disclosure of journalistic sources had on the freedom of expression of the press in a democracy. In this regard, there was no difference between an order for disclosure of a source's identity and an order for disclosure of documents which might identify a source.", "The applicants argued that the courts had failed to properly balance Interbrew's interest in finding X against the vital public interest in protecting the applicants' journalistic source. They concluded that in the present case, the order for delivery up was not “necessary in a democratic society”. 48. The applicants also contended that the procedure employed for requiring them to deliver up the leaked documents contained insufficient procedural safeguards to constitute a fair hearing. In particular, the applicants alleged that they did not enjoy equality of arms in the legal proceedings because the court made important findings of fact upon which it later relied in carrying out the balancing test required under Article 10 § 2 without evidence being properly tested in court.", "The applicants refer in particular to the following: (i) the High Court accepted the assertion by Interbrew that the leaked document had been falsified, an assertion which the applicants were not able to challenge because they did not have access to all of Interbrew's documentation; (ii) the courts took Interbrew's claim that it had conducted an adequate investigation into the leak and that the investigation had proved insufficient at face value, again in circumstances in which the applicants were unable to challenge the assertion or cross-examine relevant witnesses; and (iii) the courts found X's purpose to have been harmful without full evidence being heard. 49. The applicants pointed to the fact that all of the evidence adduced by Interbrew was in the form of witness statements – four by Interbrew's solicitors and one by Interbrew's Executive Vice-President and Advisor to the Chairman – containing second-hand or third-hand hearsay evidence. The statements referred to information or belief, rather than knowledge. The applicants alleged that inconsistencies and omissions in the witness statements could not be properly explored in court.", "The applicants concluded that the absence of procedural safeguards meant that the court did not determine the necessity and proportionality of the disclosure order in a properly adversarial procedure. 50. The applicants finally highlighted that failure to comply with the delivery up order could lead to penal sanctions being imposed upon them for contempt of court. They argued that in the circumstances, a greater level of equality of arms than would be required in ordinary civil proceedings ought to apply. b.", "The Government 51. The Government contested the applicants' submissions, observing that Article 10 did not require the protection of journalistic sources in all circumstances but allowed for that protection to be circumscribed where the conditions set out in Article 10 § 2 were met. 52. The Government argued that section 10 of the 1981 Act, as applied in the applicants' case, was compatible with Article 10 of the Convention. They further argued that the domestic courts were entitled to make the findings they did on the basis of the evidence and to take those findings into account in making the delivery up order.", "As to the harm suffered by Interbrew, the Government pointed to the drop in its share price and the rise in SAB's share price. The Government also considered that the court was justified in reaching its conclusion as to X's purpose given, inter alia, the anonymity, the lack of any attempt by X to justify the leak and the absence of any evidence to contradict Interbrew's assertion that the leaked documents had been manipulated. Finally, the Government argued that the applicants' contention regarding the adequacy of Interbrew's investigation into the leak was an attempt to appeal against the Court of Appeal's judgment, which had rationally concluded that as much as possible had been done to track down the source of the leak. 53. The Government pointed out that the order did not require the applicants to identify X directly.", "They highlighted the public interest in finding the perpetrator of what might have been serious criminal conduct and the risk of future harm to Interbrew. They concluded that the order was both necessary and proportionate and that the Court should respect the domestic court's margin of appreciation in this regard. 54. The Government accepted that the applicants were entitled to enjoy equality of arms in Norwich Pharmacal proceedings. However, they argued that contracting States have greater latitude in civil cases and that in such cases, it is important to assess the overall fairness of the proceedings.", "The Government contended that the proceedings were fair given that, inter alia, the questions as to whether the domestic courts were justified in concluding that X's purpose was to harm Interbrew and whether the leaked document contained untrue material were immaterial to whether the applicants had a fair trial; and the applicants were not being asked to name X. 55. The Government further argued that the applicants had available to them further procedural remedies which they chose not to use. In the circumstances, the Government concluded that the applicants had received a fair trial. 2.", "The Court's assessment 56. The Court notes that the disclosure order of 19 December 2001 has not been enforced against the applicants. In the Court's view, this does not remove the harm in the present case since, however unlikely such a course of action currently appears, the order remains capable of being enforced (see Steel and Morris v. the United Kingdom, no. 68416/01, § 97, ECHR 2005‑II). The Government do not argue to the contrary.", "It follows that the order of 19 December 2001 constituted an interference with the applicants' right to freedom of expression. It is therefore necessary to examine whether the interference was justified under Article 10 § 2. a. “Prescribed by law” 57. The Court observes that the order was authorised by the common law principle in Norwich Pharmacal and by the operation of section 10 of the 1981 Act, as interpreted in subsequent case-law. The interference was therefore “prescribed by law” within the meaning of Article 10 § 2 (see Goodwin v. the United Kingdom, 27 March 1996, § 31-33, Reports of Judgments and Decisions 1996‑II).", "This was not contested by the parties. b. Legitimate aim 58. The purpose of the interference was variously suggested to be to protect the rights of others, to prevent the disclosure of information received in confidence and to prevent crime. The Court observes that investigation and prosecution of crime are generally matters conducted by the State.", "In the present case, the Norwich Pharmacal proceedings were brought by a private party. The Court further observes that in his judgment Sedley LJ emphasised that Interbrew's prima facie entitlement to delivery up of the documents had been established solely because it might enable them to ascertain the identity of the proper defendant to a breach of confidence action, thereby preventing future leaks of its confidential information, and to take action against X to recover damages for losses already sustained (see paragraph 27 above). In the circumstances, the Court considers that the interference in this case was intended to protect the rights of others and to prevent the disclosure of information received in confidence, both of which are legitimate aims. c. “Necessary in a democratic society” i. General principles 59.", "The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and that, in that context, the safeguards guaranteed to the press are particularly important. Furthermore, protection of journalistic sources is one of the basic conditions for press freedom. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result, the vital “public watchdog” role of the press may be undermined and the ability of the press to provide accurate and reliable reporting may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect that an order for disclosure of a source has on the exercise of that freedom, such a measure cannot be compatible with Article 10 unless it is justified by an overriding requirement in the public interest (see Goodwin, cited above, § 39).", "60. The Court recalls that as a matter of general principle, the “necessity” of any restriction on freedom of expression must be convincingly established. It is for the national authorities to assess in the first place whether there is a “pressing social need” for the restriction and, in making their assessment, they enjoy a certain margin of appreciation. In the present context, however, the national margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press. This interest will weigh heavily in the balance in determining whether the restriction was proportionate to the legitimate aim pursued.", "The Court reiterates that limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court (Goodwin, cited above, § 40). 61. The Court's task, in exercising its supervisory function, is not to take the place of the national authorities but rather to review the case as a whole, in the light of Article 10, and consider whether the decision taken by the national authorities fell within their margin of appreciation. The Court must therefore look at the interference and determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” (Handyside v. the United Kingdom, 7 December 1976, § 50, Series A no. 24 and Goodwin, cited above, § 40).", "62. The Court reiterates that under the terms of Article 10 § 2, the exercise of freedom of expression carries with it duties and responsibilities which also apply to the press. Article 10 protects a journalist's right – and duty – to impart information on matters of public interest provided that he is acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999‑I and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999‑III).", "63. In the case of disclosure orders, the Court notes that they have a detrimental impact not only on the source in question, whose identity may be revealed, but also on the newspaper against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by the disclosure, and on the members of the public, who have an interest in receiving information imparted through anonymous sources and who are also potential sources themselves (see, mutatis mutandis, Voskuil v. the Netherlands, no. 64752/01, § 71, 22 November 2007). While it may be true that the public perception of the principle of non-disclosure of sources would suffer no real damage where it was overridden in circumstances where a source was clearly acting in bad faith with a harmful purpose and disclosed intentionally falsified information, courts should be slow to assume, in the absence of compelling evidence, that these factors are present in any particular case. In any event, given the multiple interests in play, the Court emphasises that the conduct of the source can never be decisive in determining whether a disclosure order ought to be made but will merely operate as one, albeit important, factor to be taken into consideration in carrying out the balancing exercise required under Article 10 § 2. ii.", "Application of the principles to the present case 64. The Court recalls that, in the Goodwin case, it was concerned with the grant of an order for the production of the applicant journalist's notes of a telephone conversation identifying the source of the disclosure of information in a secret draft corporate plan of the claimant company which had disappeared, as well as of any copies of the plan in his or his employer's possession. The order had been made by the domestic courts primarily on the grounds of the threat of severe damage to the company's business, and consequently to the livelihood of its employees, which would arise from disclosure of the information in their corporate plan while refinancing negotiations were continuing. The Court noted that a vital component of the threat of damage to the company had already been neutralised by an injunction to prevent dissemination of the confidential information by the press. While accepting that the disclosure order served the further purpose of bringing proceedings against the source to recover possession of the missing document and to prevent further dissemination of the contents of the plan, as well as of unmasking a disloyal employee or collaborator, the Court observed that, in order to establish the necessity of disclosure for the purposes of Article 10, it was not sufficient for a party seeking disclosure to show merely that it would be unable without disclosure to exercise the legal right or avert the threatened legal wrong on which it based its claim.", "The considerations to be taken into account by the Convention institutions in their review under Article 10 tipped the balance in favour of the interest of a democratic society in securing a free press. On the facts of that case, the Court stated (at § 45) that it could not find that the company's interests “......in eliminating, by proceedings against the source, the residual threat of damage through dissemination of the confidential information otherwise than by the press, in obtaining compensation and in unmasking a disloyal employee or collaborator were, even if considered cumulatively, sufficient to outweigh the vital public interest in the protection of the applicant journalist's source”. 65. In the Court of Appeal in the present case, Sedley LJ found that the “relatively modest leak” of which Interbrew was entitled to complain did not diminish the seriousness for Interbrew of its repetition. He concluded that the public interest in protecting the source of such a leak was not sufficient to withstand the countervailing public interest in allowing Interbrew to seek justice against the source (see paragraph 27 above).", "What was said to matter critically in arriving at this conclusion was the evident purpose of X, which was “on any view a maleficent one, calculated to do harm whether for profit or for spite ...”. 66. The Court notes that in Goodwin, it did not consider allegations as to the source's “improper motives” to be relevant to its finding that there was a violation of Article 10 in that case, notwithstanding the High Court's conclusion that the source's purpose, in the Goodwin case, in disclosing the leaked information was to “secure the damaging publication of information which he must have known to be sensitive and confidential” (see Goodwin, §§ 15 and 38, where it was argued by the Government that the source had acted mala fide and should therefore not benefit from protection under journalists' privilege of non-disclosure of sources). While the Court considers that there may be circumstances in which the source's harmful purpose would in itself constitute a relevant and sufficient reason to make a disclosure order, the legal proceedings against the applicants did not allow X's purpose to be ascertained with the necessary degree of certainty. The Court would therefore not place significant weight on X's alleged purpose in the present case.", "67. As regards the allegations that the leaked document had been doctored, the Court recalls the duties and responsibilities of journalists to contribute to public debate with accurate and reliable reporting. In assessing whether a disclosure order is justified in cases where the leaked information and subsequent publication are inaccurate, the steps taken by journalists to verify the accuracy of the information may be one of the factors taken into consideration by the courts, although the special nature of the principle of protection of sources means that such steps can never be decisive but must be considered in the context of the case as a whole (see paragraph 63, above). In any event, the domestic courts reached no conclusion as to whether the leaked document was doctored, the Court of Appeal observing that it had no way of knowing, any more than the applicants, whether X, if cornered, would demonstrate that he had simply assembled authentic documents from different places within Interbrew, GS and Lazards. The Court likewise considers that it has not been established with the necessary degree of certainty that the leaked document was not authentic.", "The authenticity of the leaked document cannot therefore be seen as an important factor in the present case. 68. It remains to be examined whether, in the particular circumstances of the present case, the interests of Interbrew in identifying and bringing proceedings against X with a view to preventing further dissemination of confidential information and to recovering damages for any loss already sustained are sufficient to override the public interest in the protection of journalistic sources. 69. In this respect, the Court observes at the outset that where an unauthorised leak has occurred, a general risk of future unauthorised leaks will be present in all cases where the leak remains undetected (see Goodwin, §§ 17-18 and 41).", "In the present case, the Court notes that Interbrew received notice, prior to publication of the initial FT article, that a copy of the leaked document had been obtained and that there was an intention to publish the information it contained. In contrast to the stance taken by the company in the Goodwin case, Interbrew did not seek an injunction to prevent publication of the allegedly confidential and sensitive commercial information. Moreover, the aim of preventing further leaks will only justify an order for disclosure of a source in exceptional circumstances where no reasonable and less invasive alternative means of averting the risk posed are available and where the risk threatened is sufficiently serious and defined to render such an order necessary within the meaning of Article 10 § 2. It is true that in the present case the Court of Appeal found that there were no less invasive alternative means of discovering the source, since Kroll, the security and risk consultants instructed by Interbrew to assist in identifying X, had failed to do so. However, as is apparent from the judgments of the domestic courts, full details of the inquiries made were not given in Interbrew's evidence and the Court of Appeal's conclusion that as much as could at that time be done to trace the source had been done by Kroll was based on inferences from the evidence before the court.", "70. While, unlike the applicant in the Goodwin case, the applicants in the present case were not required to disclose documents which would directly result in the identification of the source but only to disclose documents which might, upon examination, lead to such identification, the Court does not consider this distinction to be crucial. In this regard, the Court emphasises that a chilling effect will arise wherever journalists are seen to assist in the identification of anonymous sources. In the present case, it was sufficient that information or assistance was required under the disclosure order for the purpose of identifying X (see Roemen and Schmit v. Luxembourg, no. 51772/99, § 47, ECHR 2003‑IV).", "71. The Court, accordingly, finds that, as in the Goodwin case, Interbrew's interests in eliminating, by proceedings against X, the threat of damage through future dissemination of confidential information and in obtaining damages for past breaches of confidence were, even if considered cumulatively, insufficient to outweigh the public interest in the protection of journalists' sources. 72. As to the applicants' complaint that there was an inequality of arms during the Norwich Pharmacal proceedings which constituted a breach of the procedural aspect of their right to freedom of expression, the Court considers that, having regard to its above findings, it is not necessary to examine this complaint separately. 73.", "In conclusion, the Court finds that there has been a violation of Article 10 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 74. The applicants further complained of the fact that there was, in their view, an inequality of arms during the legal proceedings. They relied on Article 6 § 1 of the Convention, which provides, insofar as relevant, as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 75.", "The Court observes that these complaints raise the same issues and relate to the same facts as those examined in the context of the applicants' complaints under Article 10. The complaint should therefore be declared admissible. However, the Court concludes that there is no need to examine separately the complaints under Article 6 § 1 having regard to its conclusion under Article 10. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 76.", "The applicants complained of a violation of their right to respect for their home and correspondence as a result of the court order requiring them to deliver up the leaked documents to Interbrew. They relied on Article 8 of the Convention, which provides, insofar as relevant, as follows: “1. Everyone has the right to respect for 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 ... for the prevention of disorder or crime ... or for the protection of the rights and freedoms of others.” 77.", "The applicants also alleged that the inequality of arms during the Norwich Pharmacal proceedings constituted a breach of the procedural limb of their right to respect for their home and correspondence. 78. The Court observes that these complaints raise the same issues and relate to the same facts as those examined in the context of the applicants' complaints under Article 10. The complaint should therefore be declared admissible. However, the Court concludes that there is no need to examine separately the complaints under Article 8 having regard to its conclusion under Article 10.", "IV. 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.” 1. The applicants' claims 80. The applicants claimed reimbursement of costs and expenses incurred in the proceedings before the domestic courts and before this Court, together with sums paid to defray the costs of Interbrew in the same proceedings.", "The applicants calculated the total value of their claim to be GBP 766,912.62, composed as follows. a. The Financial Times 81. The FT claimed a total of GBP 141,853.12 in costs and expenses. This sum included: (a) GBP 72,855 in respect of professional fees; (b) GBP 42,211.88 in respect of counsel's fees; (c) GBP 2,966.01 in respect of disbursements; (d) GBP 2,943.38 for work by Clifford Chance in connection with the proceedings before the Court; and (e) GBP 20,876.85 in respect of costs ordered to be paid to Interbrew.", "82. The above sums were inclusive of VAT. b. The Independent 83. The Independent claimed a total of GBP 105,120.73 in costs and expenses.", "This sum included: (a) GBP 81,738.88 in respect of professional and counsel's fees and disbursements; (b) GBP 2,505 for work by Clifford Chance in connection with the proceedings before the Court; and (c) GBP 20,876.85 in respect of costs ordered to be paid to Interbrew. 84. The above sums were exclusive of VAT, with the exception of the sums paid to Interbrew which were inclusive of any VAT applicable. c. The Guardian 85. The Guardian claimed a total of GBP 194,820 in costs and expenses.", "This sum included: (a) GBP 151,837.68 in respect of professional fees; (b) GBP 17,425 in respect of counsel's fees; (c) GBP 2,175.47 in respect of disbursements; (d) GBP 2,505 for work by Clifford Chance in connection with the proceedings before the Court; and (e) GBP 20,876.85 in respect of costs ordered to be paid to Interbrew. 86. The above sums were exclusive of VAT, with the exception of the sums paid to Interbrew which were inclusive of any VAT applicable. d. The Times 87. The Times claimed a total of GBP 58,349.02 in costs and expenses.", "This sum included: (a) GBP 20,075.01 in respect of counsel's fees in the domestic proceedings; (b) GBP 400 in respect of disbursements; (c) GBP 16,997.16 for work by solicitors and counsel in connection with the proceedings before the Court; and (d) GBP 20,876.85 in respect of costs ordered to be paid to Interbrew. 88. The above sums were exclusive of VAT, with the exception of the sums paid to Interbrew which were inclusive of any VAT applicable. e. Reuters 89. Reuters claimed a total of GBP 266,769.75 in costs and expenses.", "This sum included: (a) GBP 128,878.76 in respect of professional and counsel's fees in the domestic proceedings; (b) GBP 44,277.68 for work by solicitors and counsel in connection with the proceedings before the Court; (c) GBP 72,736.46 in respect of costs incurred in connection with the investigation by the Financial Services Authority; and (d) GBP 20,876.85 in respect of costs ordered to be paid to Interbrew. 90. With the exception of the sums paid to Interbrew, which were inclusive of any VAT applicable, it is not clear whether the above sums were exclusive or inclusive of VAT. 2. The Government's submissions 91.", "The Government considered the sums claimed to be excessive. They pointed to the large and unexplained discrepancies between the sums claimed by each of the five applicants. They further submitted that the work carried out by numerous lawyers on behalf of the applicants resulted in unnecessary duplication. 92. The Government also pointed to the inclusion in the applicants' claim of sums incurred in respect of a separate investigation by the Financial Services Authority (“FSA”).", "They highlighted that the FSA was concerned, in pursuance of its regulatory functions, with the determination of whether an offence had been committed under the Financial Services Act 1986. This was a separate matter from the legal proceedings which formed the basis of the applicants' claim before this Court. Such expenditure was therefore, in the Government's view, irrecoverable. The Government highlighted the failure of the applicants, with the exception of Reuters, to specify how much of their costs and expenses were incurred as a result of the FSA investigation. On the basis that 27 per cent of the sum claimed by Reuters related to the FSA investigation, the Government invited the Court to make a corresponding reduction to the sums claimed by the other applicants, with the possible exception of The Times.", "93. The Government also complained that the applicants had failed to provide adequate details of the breakdown of work carried out and had further failed to explain invoices which related to periods long after domestic proceedings had finished. It was apparent that some items included in the invoices submitted were in respect of work which was unrelated to the legal proceedings. The Government therefore invited the Court to make a further reduction to the sums claimed. 94.", "Finally, the Government disputed the level of costs claimed for the application to this Court. They pointed out that the two applicants which had separately listed all costs incurred in the present application had incurred GBP 64,787.32 between them, which the Government considered to be excessive. 3. The Court's assessment 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 were reasonable as to quantum (see, for example, Roche v. the United Kingdom [GC], no.", "32555/96, § 182, ECHR 2005‑X). 96. In the present case, the Court considers that the sums claimed by the applicants are unreasonably high and that a significant reduction is accordingly required. First, the Court agrees with the Government that sums related to the FSA investigation are not recoverable in the present proceedings. Second, in respect of the number of hours billed and the general rates charged by solicitors and counsel in the applicants' case, the Court finds these to be excessive.", "In Reuters' case, for example, the Court notes that a significant amount of work was charged at GBP 475 per hour. The Court further observes that there are significant and unexplained discrepancies between the sums claimed by each of the five applicants. Finally, the Court considers that there has been unreasonable duplication of work in the instruction of numerous solicitors, both domestically and in the proceedings before the Court. However, the Court also observes that the sums claimed by the applicants include a total of GBP 104,384.25 paid in respect of Interbrew's costs in the domestic legal proceedings. 97.", "Regard being had to the information in its possession, the Court therefore considers it reasonable to award to the applicants the sum of EUR 160,000 in total, inclusive of any tax that may be chargeable to the applicants, covering costs under all heads. B. Default interest 98. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 10 of the Convention; 3. Holds that there is no need to examine the complaint under Article 6 § 1 of the Convention; 4. Holds that there is no need to examine the complaint under Article 8 of the Convention; 5. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 160,000 (one hundred and sixty thousand euros) in total, inclusive of any tax that may be chargeable to the applicants, to be converted into pounds sterling at the rate applicable at the date of settlement, 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; 6.", "Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 15 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyLech GarlickiRegistrarPresident" ]
[ "SECOND SECTION CASE OF SERTKAYA v. TURKEY (Application no. 37315/10) JUDGMENT STRASBOURG 27 February 2018 This judgment is final but it may be subject to editorial revision. In the case of Sertkaya v. Turkey, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Ledi Bianku, President,Nebojša Vučinić,Jon Fridrik Kjølbro, judges,and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 6 February 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 37315/10) 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 Abbas Sertkaya (“the applicant”), on 12 April 2010.", "2. The applicant was represented by Mr İ. Akmeşe, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3. On 27 March 2013 the application was communicated to the Government.", "4. On 12 October 2016 the Vice-President of the Second Section invited the Government to submit further observations, if they wish, in the light of the judgment in Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, ECHR 2016) 5. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1974 and lives in Muş. 7. On 30 October 2001 the applicant was arrested and taken into custody on suspicion of membership of an illegal organisation, namely the PKK (the Kurdistan Workers’ Party).", "8. On 1 November 2001 the applicant’s statement was taken by the police in the absence of a lawyer. During his interrogation, he confessed being a member of the PKK and gave a detailed account of his acts within the illegal organisation. 9. On 3 November 2001 the applicant was heard by the public prosecutor and the investigating judge at the Istanbul State Security Court, again in the absence of a lawyer.", "In his statements before both the public prosecutor and the investigating judge, the applicant denied the accusations. On the same day, upon the order of the investigating judge, the applicant was placed in pre-trial detention. 10. On 6 November 2001 the Public Prosecutor at the Istanbul State Security Court filed an indictment with that court, charging the applicant under Article 168 of the former Criminal Code, with membership of an illegal armed organisation. 11.", "The state security courts were later abolished by Law no. 5190 of 16 June 2004, and the case was transferred to the Istanbul Assize Court. 12. On 6 October 2006 the Istanbul Assize Court, relying on, inter alia, the applicant’s statements to the police, convicted him of membership of an illegal organisation under Article 314 § 2 of the new Criminal Code and sentenced him to seven years and six months’ imprisonment. 13.", "On 15 December 2009 the Court of Cassation upheld the judgment of the first‑instance court. II. RELEVANT DOMESTIC LAW 14. A description of the relevant domestic law concerning the right of access to a lawyer may be found in Salduz v. Turkey ([GC] no. 36391/02, §§ 27‑31, ECHR 2008).", "15. On 15 July 2003 Law no. 4928 repealed Section 31 of Law no. 3842, whereby the restriction on an accused’s right of access to a lawyer in proceedings before the State Security Courts was lifted THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION A.", "Lack of legal assistance available to the applicant during the preliminary investigation 16. The applicant complained under Articles 6 § 3 (b) and (c) of the Convention that his defence rights had been violated as he had been denied access to a lawyer during the preliminary investigation stage and that his statements to the police, allegedly taken under duress, had been used in convicting him by the trial court. 17. The Court decides to examine the complaint under Article 6 §§ 1 and 3 (c) of the Convention, the relevant parts of which provide: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... 3.", "Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...” 1. Admissibility 18. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits 19. The applicant complained that he had been deprived of legal assistance pursuant to section 31 of Law no. 3842, as he was accused of committing an offence that fell within the jurisdiction of the State Security Courts and that his statements taken by the police in the absence of a lawyer had been used for his conviction. 20.", "Referring to the Court’s judgment in the case of Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008), and Dayanan v. Turkey (no. 7377/03, § 32, 13 October 2009), the Government submitted that they were aware of the Court’s case-law under Article 6 § 3 (c) of the Convention. 21. The Court notes that the applicant’s access to a lawyer was restricted by virtue of Law No.", "3842 and was as such a systemic restriction applicable at the time of the applicant’s arrest (see Salduz, cited above, § 56). The Court does not consider it necessary to examine whether the systematic nature of the restriction on the applicant’s right of access to a lawyer was, in itself, sufficient to find a violation of Article 6 §§ 1 and 3 (c) of the Convention, as, in any event, the Government have not offered any compelling reasons for the restriction or demonstrated that the absence of legal assistance at the initial stage of the investigation did not irretrievably prejudice the applicant’s defence rights (see Salduz, cited above, § 58, and Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, § 274, ECHR 2016). In that respect, the Court notes that in convicting him, the first-instance court relied on the applicant’s statements to the police. Moreover, it did not examine the admissibility of evidence at the trial.", "Likewise, the Court of Cassation dealt with this issue in a formalistic manner and failed to remedy this shortcoming (see Bayram Koç v. Turkey, no. 38907/09, § 23, 5 September 2017). 22. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention. B.", "Length of criminal proceedings against the applicant 23. The applicant further complained that the length of the criminal proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. 24. The Government noted that, pursuant to Law no. 6384, a Compensation Commission has been established to deal with applications concerning the length of proceedings and the non-execution of judgments.", "They maintained that the applicant had not exhausted the domestic remedies as he had not made an application to that Compensation Commission. This argument had also been recognised by the Court in its decision in the case of Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013). 25. The Court notes that in its decision in the case of Ümmühan Kaplan (no.", "24240/07, 20 March 2012) it stressed that it could pursue the examination of such complaints under the normal procedure in cases which had already been communicated to the Government prior to the entry into force of the new remedy. 26. However, taking account of the Government’s preliminary objection with regard to the applicants’ failure to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Turgut and Others (cited above). It therefore concludes that the complaint in regard to the excessive length of the criminal proceedings must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies (see Rifat Demir v. Turkey, no.", "24267/07, § 35, 4 June 2013, and Yiğitdoğan v. Turkey (no. 2), no. 72174/10, § 59, 3 June 2014). II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 27.", "The applicant complained under Article 13 of the Convention that there had been no effective remedy in relation to his complaints under Article 6 of the Convention. 28. The Court notes at the outset that the applicant complained that there had been no effective remedy in domestic law to challenge the length of criminal proceedings against him. 29. The Government argued that the complaint was inadmissible in the light of the establishment of the above-mentioned Compensation Commission.", "30. The Court notes that in its Turgut and Others decision (cited above) it held that the Compensation Commission established by Law no. 6384 provides an effective remedy within the meaning of Article 13 of the Convention with regard to complaints about the length of proceedings under Article 6 § 1. 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. 31.", "Lastly, the applicant argued that there was no effective remedy in relation to his complaint of lack of legal assistance available to him during the preliminary investigation. 32. The Court considers that this complaint may be declared admissible. However, having regard to its reasoning which led it to conclude Article 6 §§ 1 and 3 (c) was breached in the present case, the Court deems it unnecessary to examine this complaint separately on the merits (see Güveç v. Turkey, no. 70337/01, §§ 134-135, ECHR 2009 (extracts).", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 33. The applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage. He also claimed 4,672 Turkish Liras (TRY) (approximately EUR 1,750) in respect of lawyers’ fees and TRY 800 (approximately EUR 300) for other costs and expenses incurred before the Court, such as travel expenses, stationery, translation, postage. In support of his claim the applicant submitted the Turkish Bar Association’s scale of fees.", "The remaining expenses were not supported with any documents. 34. The Government contested the applicant’s just satisfaction claims as well as his claims for legal fees, submitting that they were excessive and unsubstantiated. 35. The Court observes that it has found a violation of Article 6 §§ 1 and 3 (c) of the Convention in the present case.", "It cannot speculate as to the outcome of the proceedings against the applicant if there had been no breach of the Convention (see Ibrahim and Others, cited above, § 315). 36. The Court notes that Article 311 of the Code of Criminal Procedure allows the possibility to reopen proceedings. It considers that the most appropriate form of redress would be the retrial of the applicant in accordance with the requirements of Article 6 of the Convention, should he so request (see Salduz, cited above, § 72, and Abdulgafur Batmaz v. Turkey, no. 44023/09, § 58, in fine, 24 May 2016).", "It further considers that in these circumstances the finding of a violation constitutes in itself sufficient just satisfaction (see Bayram Koç, cited above, § 29). 37. 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 its case-law, the Court considers it reasonable to award the sum of EUR 850 for costs incurred in the proceedings before the Court (see Bayram Koç, cited above, § 30-32). FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the complaints concerning Articles 6 §§ 1 and 3 (c) of the Convention 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 that there is no need to examine the complaint under Article 13 of the Convention in relation to the applicant’s complaint concerning denial of access to a lawyer during the preliminary investigation; 4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant; 5. Holds (a) that the respondent State is to pay the applicant, within three months the following amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 850 (eight hundred fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 27 February 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıLedi BiankuDeputy RegistrarPresident" ]
[ "FIFTH SECTION CASE OF KOROBOV v. UKRAINE (Application no. 39598/03) JUDGMENT STRASBOURG 21 July 2011 FINAL 21/10/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Korobov v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Dean Spielmann, President,Elisabet Fura,Boštjan M. Zupančič,Isabelle Berro-Lefèvre,Ann Power,Ganna Yudkivska,Angelika Nußberger, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 14 June 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "39598/03) 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 Igor Viktorovich Korobov (“the applicant”), on 2 November 2003. 2. The applicant was represented by Mr V.I. Dovzhenko, a lawyer practising in Mariupol, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice of Ukraine.", "3. The applicant alleged, in particular, that he had been ill-treated by police officers and that the investigation into these events had not been effective. He also alleged that the principle of equality of arms had been breached during the consideration of his criminal case by the Supreme Court of Ukraine because his cassation appeal had been examined in the presence of the prosecutor but in the absence of his lawyer and himself. 4. On 15 October 2008 the President of the Fifth Section decided to give notice of the application to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1968 and lives in Mariupol. A. Criminal proceedings against the applicant; his arrest and alleged ill-treatment by police officers 6.", "According to the applicant, on 25 December 1999 he lent 3,400 United States dollars (USD) to S. The latter had repaid part of his debt and had agreed to meet the applicant on 18 April 2000 to pay back the remainder, which according to the applicant was USD 2,030. 7. On 11 April 2000 criminal proceedings were instituted against the applicant following a complaint by S. that the applicant had extorted money from him. 8. On 18 April 2000 at around 3 to 4 p.m. and during the applicant’s meeting with S., the applicant was arrested by police officers of the Mariupol Department for the Prevention of Organised Crime (співробітники Маріупольського ВБОЗ УБОЗ УМВС України) and taken to a police station.", "Two passers-by, B. and Bo., provided written statements on the same day to the Head of the Mariupol Department for the Prevention of Organised Crime to the effect that the applicant had been talking to S. and F. (S.’s sister) on the street when the policemen arrived and asked him to follow them. The applicant had tried to run away and to throw something from his pocket. The policemen had tried to stop the applicant but he had resisted, sworn at and threatened the policemen. He was handcuffed, put “with difficulties” into B.’s car and taken to the police station. The sum of USD 1,500 and some personal belongings had been confiscated from the applicant.", "In the report drawn up in relation to the applicant’s arrest, it was stated that the applicant was arrested at 9 p.m. on suspicion of committing a crime, because he could otherwise have absconded. 9. According to the applicant, from 3 to 9 p.m. on 18 April, and on 26 April 2000, he had been beaten in the police station and had been tortured with the use of an electric current. 10. On 21 April 2000 the prosecutor of Mariupol authorised the applicant’s pre-trial detention because he “had committed a serious crime and was likely to abscond and pervert the course of justice”.", "The applicant, who was questioned on the same day, submitted that he had been ill-treated by the policemen. Following these submissions, the investigating officer ordered a forensic medical examination of the applicant (see paragraph 19). 11. By August 2000 the pre-trial investigation regarding the charges against the applicant had been completed and the case was transferred to court. According to the applicant, during the examination of his case by the court, twenty-one court hearings were postponed because of the victim’s failure to appear.", "12. On 15 April 2002 the Prymorskiy District Court at Mariupol sentenced the applicant to three years’ imprisonment for physically threatening behaviour made with the aim of securing the repayment of debt, and released him on two years’ probation. In particular, it was found that the applicant had threatened S. and that on 2 February 2000 the applicant, together with unknown accomplices, had beaten S., as confirmed by a medical examination of S. 13. The applicant submitted extracts from the records of court hearings in his criminal case. On one undated separate page, it is mentioned that police officer R. testified in court that the applicant had suffered a kidney contusion and two broken ribs.", "Witnesses Sh. and Shi. testified that they had witnessed the applicant’s arrest and that he had been handcuffed and put into a van, but that nobody had beaten him. 14. On 23 May 2003 the Donetsk Court of Appeal upheld the applicant’s conviction of 15 April 2002.", "15. On 13 January 2004 the Supreme Court of Ukraine rejected the applicant’s application for leave to appeal in cassation. According to the applicant, he had not been informed about the date of the hearing. Neither the applicant nor his lawyer had been present at the hearing, whilst the prosecutor had been present and had been heard by the judges. The applicant had received a copy of that decision only on 14 April 2004.", "B. Investigation into the complaints about the applicant’s ill‑treatment 16. On 19 April 2000 the applicant was taken to the Mariupol Town Emergency Hospital (Маріупольська міська лікарня швидкої медичної допомоги). Upon examination it was noted that the applicant had suffered blows to his back and the left side of his chest, and also had a kidney contusion and haematuria (red blood cells in his urine). 17.", "On 24 April 2000 the applicant’s mother requested that a prosecutor institute criminal proceedings against the policemen who had subjected her son to ill-treatment. 18. On the same date the applicant was placed in the Mariupol Pre-Trial Detention Centre No. 7 (Слідчий ізолятор № 7 м. Маріуполя, hereinafter “the SIZO”). Upon his arrival he complained of headache and difficulties in urination and breathing.", "He was examined by the SIZO doctor who noted that the applicant had haematuria and an extensive haematoma on his chest. 19. On 5 May 2000 a forensic medical examination found that the applicant had suffered minor bodily injuries, comprising numerous bruises on his chest, on the right side of his back and on the hips. The examiner found that these bruises could have been inflicted on 18 April 2000 by blows from fists and feet or by the applicant falling down. As for the two broken ribs, the expert noted that on an X-ray of 19 April 2000 it was visible that the applicant had a consolidated fracture of two ribs.", "Therefore, this injury was not taken into consideration as it had been inflicted earlier than 18 April 2000. 20. On 27 May 2000 the Head of the Mariupol Department for the Prevention of Organised Crime requested that the Mariupol Town Emergency Hospital submit certain X-ray images of the applicant’s ribs to him. According to the applicant, these X-rays were subsequently lost by the police. 21.", "On 10 May 2000, following a complaint lodged by the applicant’s mother, the Donetsk Regional Prosecutor’s Office (прокуратура Донецької області – “the Regional Prosecutor’s Office”) refused to institute criminal proceedings against the policemen. It stated that during his arrest on 18 April 2000 the applicant had disobeyed police orders, had sworn and had tried to run away, and that the policemen had therefore been forced to use martial arts on the applicant. S., who was questioned during the investigation, testified that on 18 April 2000 he had had a fight with the applicant, that the policemen had then come and used force against the applicant, and that the applicant had fallen on a fence but “finally was brought to the police station”. 22. On 19 and 20 May 2000 the applicant was examined by a SIZO physician.", "The applicant complained of pain in his back, heart pain, headache, and haematuria. His diagnosis was the same as upon his arrival at the SIZO and he was prescribed an anti-inflammatory drug. 23. On 10 October and 15 November 2000 the applicant was again examined by a SIZO physician and diagnosed with acute post-traumatic pyelonephritis on his left side. 24.", "On 17 November 2000 the applicant was released from the SIZO. On 24 November 2000 he was hospitalised at the Azov Central Basin Hospital (Азовська центральна басейнова лікарня на водному транспорті м. Маріуполя). He was diagnosed with post-traumatic kidney deformations, possible chronic nephritis and haematuria. In the extract from the applicant’s medical file provided by this hospital it is also mentioned that in April 2000 the applicant had suffered two broken ribs. 25.", "The applicant stayed in hospital until the end of December 2000. On 21 December 2000 the applicant was transferred to the Nephrological Ward of the Donetsk Regional Clinical Territorial Medical Unit (нефрологічне відділення Донецького обласного клінічного територіального медичного об’єднання). 26. The applicant complained of, amongst other things, ill-treatment by the policemen and his unlawful conviction to a Member of Parliament, V. V. redirected the complaint to the General Prosecutor’s Office (Генеральна Прокуратура України). On 11 March 2001 the General Prosecutor’s Office informed the applicant that his complaint had been transferred to the Prymorskyy District Court at Mariupol, which had exclusive competence to deal with such complaints.", "27. On 14 March 2001 the Prymorskyy District Court sent the applicant’s complaints to the Regional Prosecutor’s Office because the applicant had requested that criminal proceedings be brought against certain people and the Regional Prosecutor’s Office had failed to address this request. Moreover, the court found that the examination of the applicant’s complaints did not fall within its competence. 28. On 6 April 2001 the Donetsk Regional Court, following a complaint lodged by the applicant, quashed the above-mentioned decision of the Regional Prosecutor’s Office of 10 May 2000.", "The court pointed out the need to investigate the applicant’s complaints of ill-treatment by the policemen in the police station, to question a number of witnesses (B., Bo., S.’s sister and a policeman, indicated by the applicant) and to conduct an additional expert medical examination of the applicant. Moreover, the court noted that it had not been established during the investigation exactly how the applicant had resisted the policemen and who in particular had used martial arts techniques against him. 29. On the same date the General Prosecutor’s Office again redirected the applicant’s complaints, originally received from V. and the Secretariat of the Ombudsman of Ukraine (Секретаріат Уповноваженого Верховної Ради України з прав людини), to the Prymorskyy District Court for consideration. 30.", "On 27 April 2001 the Prymorskyy District Court returned the applicant’s complaints to the General Prosecutor’s Office for the same reasons as mentioned above. 31. However, on 18 May 2001 the General Prosecutor’s Office sent the applicant’s complaints back to the court, indicating that their examination fell within the exclusive competence of the court. 32. On 23 May 2001 the Regional Prosecutor’s Office refused to institute criminal proceedings against the policemen owing to the lack of evidence that a crime had been committed.", "Police officers R., M., P. and Va. testified that during his arrest the applicant had behaved very aggressively and had insulted F. The applicant had been struck on the face three times by S. and had fallen to the ground. In order to arrest the applicant, the policemen had used martial arts techniques, as the applicant had been struggling and kicking and did not want to get into the car. S. and F. also confirmed the above findings. No force had been used against the applicant in the police station. The prosecutor also noted that, according to the forensic medical examination of 5 May 2000, the applicant had broken his ribs before 18 April 2000 and had been suffering from kidney disease since 1994.", "33. On 29 October 2001 the Voroshylovskyy District Court at Donetsk quashed the decision of 23 May 2001 and remitted the case materials to the Regional Prosecutor’s Office for additional investigation. The court indicated that the Regional Prosecutor’s Office had failed to comply with the instructions given by the Donetsk Regional Court on 6 April 2001. In particular, witnesses B. and Bo. had not been questioned and an additional forensic medical examination had not been conducted.", "34. From 7 to 26 December 2001 the applicant underwent further treatment at the Azov Central Basin Hospital. He was diagnosed with a recurrent and persistent haematuria. 35. On 12 July 2002 a forensic medical examination found that at the material time the applicant presented with light bodily injuries: bruises all over the right side of his chest and back, on the right hip and on the left shoulder, small scratches on his wrists and puffiness in the area of the sixth and seventh ribs.", "The report stated that such injuries could have been inflicted during the applicant’s arrest in the circumstances indicated by the policemen or in the circumstances described by the applicant. It was also stated that the laboratory findings had failed to confirm the kidney contusion. However, the back contusion could have caused temporary (five to seven days) haematuria. In particular, the applicant had suffered a contusion on the lower part of his back, which could have led to a short‑term (five to seven days) kidney concussion. In the absence of the X‑ray images of the applicant’s ribs, it was also impossible to establish whether the applicant had suffered broken ribs.", "36. On 2 August 2002 the Regional Prosecutor’s Office rejected the applicant’s criminal complaint against the policemen on account of a lack of corpus delicti. The prosecutor referred to the findings of the forensic medical examinations of 5 May 2000 and 12 July 2002. As to the two broken ribs, it was mentioned that on an unidentified date the applicant had been X-rayed at Mariupol Town Emergency Hospital and diagnosed with an old fracture of two ribs. Since the applicant had refused to explain the origin of this fracture, it was concluded that it had occurred before 18 April 2000.", "During the pre-trial investigation, S. had testified that he had hit the applicant three times on his head and body because the applicant had insulted his sister. The applicant had fallen on a metal fence. Later, the applicant had resisted the policemen, who had then used martial arts techniques and had handcuffed him. The applicant had broken free from the police but had fallen down. He had then been put into the car.", "The policemen, M., R. and P. confirmed these submissions. R. also testified that S. had hit the applicant whilst the policemen had been holding the applicant by the hands. While being put in the car, the applicant had also hit the car door. 37. On 29 January 2003 the Voroshylovskyy District Court quashed the above decision and remitted the case materials to the Regional Prosecutor’s Office for further investigation.", "The court referred to the previous court findings of 6 April 2001 and 29 October 2001 and underlined the investigator’s repeated failure to question witnesses B. and Bo. The court also pointed out the contradictions in the policemen’s statements as regards the circumstances of the use of force against the applicant and the blows inflicted by S. In particular, the court indicated the absence of any injuries on the applicant’s head, whereas S. had submitted that he had hit the applicant on the head three times. 38. On 24 March 2003 the Regional Prosecutor’s Office again refused to institute criminal proceedings against the policemen and S., repeating the same arguments as in its previous decisions. In addition, S. and F. submitted that when police officer R. had showed the applicant his police card, the applicant had knocked it out of his hands, rushed to S. and gripped his throat, whereupon S. had hit the applicant several times.", "Therefore, the use of force by the police and S. had been justified. 39. On 23 June 2003 the Voroshylovskyy District Court quashed the above decision and remitted the case materials to the Regional Prosecutor’s Office for further investigation. The court reiterated its findings from the decision of 29 January 2003 and indicated that the prosecutor had failed to verify whether the applicant’s injuries could have been inflicted on him in the circumstances indicated by the applicant – that is to say, in the police station. 40.", "Between 20 May 2004 and 27 July 2005 the Regional Prosecutor’s Office refused to institute criminal proceedings against the policemen on three further occasions, until on the last-mentioned date criminal proceedings for abuse of authority were finally instituted against the policemen of the Mariupol Department for the Prevention of Organised Crime. 41. However, on 20 December 2005 the proceedings against the officers were terminated on account of the lack of evidence of a crime. 42. On 15 March 2006 the above decision was quashed by the Regional Prosecutor’s Office.", "The Regional Prosecutor’s Office determined that the applicant should be given victim status, should be questioned and that it should be decided whether a further forensic medical examination was necessary. 43. On 10 July 2006 the applicant was given victim status and questioned on the next day. 44. On 19 July 2006 the senior investigation officer of the Mariupol Prosecutor’s Office terminated the proceedings in the case for the absence of evidence of a crime.", "45. On 19 October 2006 the Zhovtnevyy District Court quashed the above decision and remitted the case for additional investigation. The court expressly noted that police officer P. should be questioned, that the applicant’s lawyer should be allowed to participate in the case and that the inconsistencies in the witnesses’ testimonies should be clarified. 46. On 6 December 2006 the Mariupol Prosecutor’s Office (прокуратура м. Маріуполя) again terminated the proceedings in the case for the absence of evidence of a crime.", "47. On 15 January 2007 the prosecutor of Mariupol quashed the above decision and remitted the case for additional investigation. 48. Following the prosecutor’s remittal, some additional investigatory actions were held. Officer P. was questioned again.", "He testified that he had seen the applicant lying on the floor in police officer R.’s office. R. had not allowed P. to enter the office, so he had not seen exactly what was happening in there. Face-to-face confrontations had taken place between Sh. and V. and the police officers (Sh. and V. are the applicant’s alleged acquaintances who had testified during the investigation of the criminal case against the applicant that they had witnessed the applicant’s apprehension by the police but that they had not seen that any force had been used on him).", "As a result it was concluded that “V.’s testimonies had been rebutted”. It had been impossible to check similar testimonies made by Shi., another witness of the applicant’s arrest, because her whereabouts were unknown. The applicant’s mother and the applicant’s neighbour Zh., who had allegedly been questioned earlier in the investigation, stated that the applicant had had no injuries before 17 April 2000. 49. On 9 April 2007 the Mariupol Prosecutor’s Office terminated the proceedings in the case for the absence of evidence of a crime.", "The prosecutor referred to previous decisions in the case, the testimonies of the applicant, police officers and witnesses, and to the conclusions of the forensic medical examinations of 5 May 2000 and 12 July 2002. It was determined that during his arrest the applicant had resisted the police officers. The police officers testified that the applicant had hit them and had tried to escape so they had used force on him and had “literally dragged him to a minibus”. Since the applicant had also offended F., her brother S. had several times hit the applicant, causing him to fall on the metal fence. 50.", "On 6 May 2008 the Zhovtnevyy District Court at Mariupol upheld the above decision. The court noted the contradictory evidence given by those who had been involved or witnessed the events in question, but concluded that the applicant’s injuries had been inflicted on him by S. and by the police officers when he had resisted his arrest. 51. On 2 June 2008 the Donetsk Regional Court of Appeal referred to the findings of the Zhovtnevyy District Court and upheld its decision. 52.", "On 17 December 2008 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation. C. Other proceedings 53. On 30 August 2004 the Zhovtnevyy District Court found in part for the applicant and awarded him 8,170.80 hryvnias (UAH) in respect of pecuniary damage, UAH 1,000 for non-pecuniary damage and UAH 1,260 in costs and expenses to be paid by the State. The above damage had resulted from the seizure of his personal belongings such as keys and money during his arrest on 18 April 2000. 54.", "On 2 November 2005 the Zhovtnevyy District Court again found in part for the applicant and awarded him UAH 2,676.03 in respect of pecuniary and non-pecuniary damage, together with costs and expenses, in connection with the unlawful seizure of two cameras in the course of the criminal proceedings against the applicant. 55. According to the applicant, these decisions were enforced in full. II. RELEVANT DOMESTIC LAW Code of Criminal Procedure 1960 56.", "In accordance with the relevant provisions of the Code in force at the material time (Articles 383 and 394), cassation appeals against decisions of a court of appeal taken in appeal proceedings were to be examined by the court of cassation composed of three judges with the participation of a prosecutor. The court was empowered to either assign the case for examination or dismiss the cassation appeal. 57. In accordance with amendments of 12 January 2006 the provision relating to the obligatory attendance of the prosecutor at preliminary hearings in the court of cassation was revoked. THE LAW I.", "ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 58. The applicant complained under Articles 3 and 13 of the Convention of ill-treatment by the police officers, of the failure of the domestic authorities to investigate his complaints, and of the absence of effective domestic remedies in this connection. 59. The applicant relied upon Articles 3 and 13 of the Convention, which read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 60. 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. Alleged ill-treatment by the police 61.", "The Government indicated that the applicant’s allegations of ill-treatment on 18 and 26 April 2000 had been carefully checked, both during the pre-trial investigation and in separate proceedings instituted upon the applicant’s complaints. Following forensic medical examinations it had been established that the applicant had received light bodily injuries because he had resisted the police officers, with the result that they had had to use some force in order to arrest him. Moreover, before the applicant’s arrest he had been hit by S. and had fallen on the metal fence. These conclusions had been verified and upheld by the national courts. Therefore, the Government stated that the applicant had not been ill-treated in the police station.", "62. The applicant stated that the Government’s conclusions that he had been injured while resisting the police officers and because S. had hit him had been based on inconsistent evidence. He also stated his belief that the bodily injuries received by him had been much more severe than the ones recorded by the experts, because the experts had not examined him but rather had studied medical documents as a consequence of some evidence – such as the X-rays of the applicant’s ribs – having been lost by the police officers. 63. As the Court has stated 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 or the victim’s behaviour (see, among other authorities, Labita v. Italy [GC], no 26772/95, § 119, ECHR 2000-IV). 64. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, when allegations are made under Article 3 of the Convention, the Court must apply a particularly thorough scrutiny – even if certain domestic proceedings and investigations have already taken place (see, mutatis mutandis, Ribitsch v. Austria, judgment of 4 December 1995, § 32, Series A no.", "336, and Avşar v. Turkey, no. 25657/94, § 283, ECHR 2001‑VII (extracts)). 65. The Court further reiterates that in assessing evidence, it 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. 66. Turning to the facts of the present case, the Court notes that the applicant alleges having been beaten and tortured with the use of an electric current on 18 and 26 April 2000. Although there is no medical evidence in support of the applicant’s initial statements about the use of electric current, and that two of his ribs were broken on 18 April 2000, the parties agree, and it is confirmed by available evidence (see paragraphs 16-19 and 35), that the applicant sustained a number of injuries. The Court considers that these injuries were sufficiently serious as to fall within the ambit of Article 3 of the Convention.", "It remains to be considered whether the State authorities should be held responsible under Article 3 for having inflicted those injuries. 67. The Court notes that the parties’ explanations as to the origin of the applicant’s injuries differ. Their versions of events are exclusively based on the contradictory statements of those involved in the incident (the police officers, S. and F.) and of witnesses (passers-by B. and Bo., and the applicant’s alleged acquaintances Sh., V. and Shi.). In addition, according to the forensic medical expert report of 12 July 2002, the applicant’s injuries could have been received in the circumstances indicated by the policemen, and could also have come about in the circumstances described by the applicant.", "The medical evidence about the applicant’s kidney problems is also contradictory (see paragraphs 34-35). The national court on 6 May 2008 noted the inconsistencies in the available evidence and that the investigation had failed to clarify the situation. 68. The Court reiterates that where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of the cause of the injury, failing which a clear issue arises under Article 3 of the Convention (see Tomasi v. France, judgment of 27 August 1992, §§ 108-111, Series A no. 241‑A, p. 4-41, and Ribitsch, cited above, § 34, p. 26).", "Moreover, when the national authorities failed to conduct a medical examination before placing the applicant in detention, the Government cannot rely on that failure in their defence and claim that the injuries in question pre-dated the applicant’s detention in police custody (see Türkan v. Turkey, no. 33086/04, § 43, 18 September 2008). 69. In this regard, the Court notes that evidence obtained during forensic examinations plays a crucial role during investigations conducted against detainees and in cases where the latter raise allegations of ill-treatment. Against this background, one of the Court’s tasks is to determine whether the national authorities ensured the effective functioning of the system of medical examination of persons in police custody (see, mutatis mutandis, Salmanoğlu and Polattaş v. Turkey, no.", "15828/03, § 79, 17 March 2009). 70. In the present case no medical check was done immediately after the applicant’s arrest, which could have confirmed that all of the applicant’s injuries had been inflicted at the moment of his arrest (see, Türkan v. Turkey, cited above, §§ 41-42). A medical examination, together with the right of access to a lawyer and the right to inform a third party of the detention, constitute fundamental safeguards against the ill-treatment of detained persons which should apply as from the very outset of deprivation of liberty, regardless of how it may be described under the legal system concerned (apprehension, arrest, etc.) (see the 2nd General Report of the European Committee for Prevention of Torture, CPT/Inf/E (2002) 1 - Rev.", "2006, § 36). This would not only ensure the applicant’s rights but would also enable the respondent Government to discharge their burden of providing a plausible explanation for those injuries. 71. The Court further notes that the applicant had numerous bruises on his chest, back and hips. He further suffered from various post-traumatic effects such as headache, difficulties in urination and breathing.", "Although the forensic medical examination of 12 July 2002 noted that the laboratory findings had failed to confirm the kidney contusion, other medical conclusions indicate that the applicant had a recurrent haematuria at least until the end of 2000 (see paragraphs 22-25, 34) and not for 5-7 days as indicated in the medical report of 12 July 2002. 72. In the Court’s view the Government did not give a convincing explanation about the particular circumstances of the applicant’s arrest which necessitated the use of the “martial art techniques” with such consequences for the applicant. Finally, officer P. testified that he had seen the applicant lying on the floor in the police office. This raises a question as to whether the applicant had been beaten there as he claims or whether he was in a bad condition as a consequence of his arrest, which would have required a medical check and assistance which were not provided.", "73. All of the above is sufficient for the Court to assume that the applicant’s injuries were not inflicted exclusively at the moment of his arrest. Moreover, the character of the inflicted injuries in the Court’s view is serious enough to conclude that they cannot be characterised as an inhuman treatment. In particular, the Court reiterates that certain acts which were classified in the past as “inhuman and degrading treatment” as opposed to “torture” could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (see Selmouni v. France [GC], no.", "25803/94, § 101, ECHR 1999‑V). The Court considers that the injuries suffered by the applicant were sufficiently serious to amount to torture within the meaning of Article 3 of the Convention. 74. The Court concludes that there has been a violation of the substantive limb of Article 3 of the Convention. 2.", "Adequacy of the investigation 75. The Government submitted that the authorities conducting the investigation had used all possible means to establish the truth in the applicant’s case. The Government contended that the investigation into the applicant’s complaints had been effective and that the fact that the applicant had not succeeded in having recourse to a particular remedy did not mean that the overall investigation had been ineffective. 76. The applicant reiterated his previous submissions to the effect that the investigation following his complaints had been lengthy and ineffective.", "77. The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated by State authorities in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention, requires by implication that there should be an effective official investigation. As with an investigation subject to Article 2 of the Convention, such an investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII, p. 3290, and Labita, cited above, § 131). 78.", "The investigation into arguable allegations of ill-treatment must also be thorough. This means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill‑founded conclusions in order to close their investigation or as the basis of their decisions (see Assenov and Others, cited above, §§ 103 et seq.). They must take all reasonable steps available to them to obtain evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 104 et seq., ECHR 1999-IV, and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000).", "79. The Court notes that the investigation into the applicant’s complaints lasted for more than eight years. During this period, the national authorities refused on seven occasions to institute criminal proceedings into the applicant’s complaints. All of these refusals were quashed by higher prosecutors or courts which remitted the case back, pointing out the discrepancies in the investigation until in 2005, more than five years after the incident, the criminal proceedings against the police officers were finally instituted. 80.", "The Court further notes that after being instituted, the criminal proceedings were subsequently terminated on three occasions. Those decisions were subsequently quashed, but still in 2008 the national courts upheld the last decision to terminate the criminal proceedings without clarifying the persistent inconsistencies in the available evidence. 81. The Court observes that the impossibility to clarify the existing inconsistencies (the applicant and some witnesses insisted on one version of events, while the police officers and other witnesses gave different testimonies) was caused by the failure of the investigation authorities to question all witnesses and all those involved in the incident at the earliest available opportunity after the complaint about the applicant’s ill-treatment had been lodged. In particular, it does not appear from the first decision of 10 May 2000 not to institute criminal proceedings against the policemen that anybody other than the applicant and S. was questioned.", "The police officers involved in the incident were questioned only one year after the events in question. Some key witnesses were questioned much later and the confrontations between them and the police officers were held even later or not at all. Similarly, the applicant’s allegations that he had been ill-treated in the police office were not checked for a long time. In the early period of investigation the authorities focused only on the evidence in support of the policemen’s version of events i.e. that the applicant had received his injuries at the moment of his arrest.", "82. The Court notes that, throughout the investigation, these flaws were indicated by the national authorities, in particular, by the courts. However, it does not appear that such flaws were adequately corrected. Moreover, it could be concluded from the available materials that with the passage of time it became more difficult to collect the necessary evidence in order to rectify the shortcomings of the investigation, as, for example, some witnesses moved out of town. There is also a danger that eight years after the events in question it would be quite difficult for the witnesses to recall these events correctly.", "83. In such circumstances, given the length of the investigation into the applicant’s complaints, the failure to conduct important investigatory steps during the early stages of investigation and the persistent inability of the national authorities to correct the revealed flaws, the Court concludes that in the present case there is a violation of the procedural limb of Article 3 of the Convention. 84. The Court further considers that no separate issue arises under Article 13 of the Convention (see Timur v. Turkey, no. 29100/03, §§ 35‑40, 26 June 2007).", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 85. The applicant complained that the Supreme Court of Ukraine had examined his case in his and his lawyer’s absence. He relied on Article 6 § 1 of the Convention, 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 86. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 87. The Government indicated that the law in force at the material time had not provided for the participation of the convicted person and his lawyer in the relevant court hearing.", "The Government were of the opinion that the leave to appeal proceedings in the present case had been similar to those of the civil case of Stepenska v. Ukraine (dec.), no. 24079/02, 12 June 2006, where the Court had found that the absence of an oral hearing before the panel had been justified. The Government further noted that proceedings involving only questions of law, as opposed to questions of fact, might comply with the requirements of Article 6 even though the appellant had not been given the opportunity to be heard in person by the appeal or cassation court, provided that he had been heard by a first-instance court. In the present case the applicant had been present at court hearings in both the first-instance and appeal courts. Therefore, the examination of the applicant’s appeal by the Supreme Court had complied with the requirements of Article 6 § 1 of the Convention.", "88. The applicant reiterated his previous allegations that the principle of equality of arms had been breached in his case. 89. The Court reiterates that the proceedings concerning leave to appeal and proceedings solely involving questions of law, as opposed to questions of fact, may comply with the requirements of Article 6, even though the appellant was not given an opportunity of being heard in person by the appeal court or court of cassation, provided that a public hearing was held at first instance and that the higher courts did not have the task of establishing the facts of the case, but only of interpreting the legal rules involved (see, for example, Hermi v. Italy [GC], no. 18114/02, § 61, ECHR 2006‑XII with further references).", "90. The Court, however, notes that although in the present case the proceedings in question concerned leave to appeal in cassation and were limited to the points of law, the prosecutor’s presence during the preliminary hearing in the Supreme Court was required by law and he had made oral submissions before the panel, taking thus an active role in the proceedings, while the applicant was deprived of this possibility. 91. In such circumstances, the Court considers that the principle of equality of arms has been breached. 92.", "The Court has previously found a violation in a similar case against Ukraine (see Zhuk v. Ukraine, no. 45783/05, §§ 29-35, 21 October 2010) and does not see any reason to depart from its findings in the present case. Accordingly, there has also been a violation of Article 6 § 1 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 93.", "The applicant also lodged complaints under Articles 5 and 6 of the Convention related to his arrest and detention and to the criminal proceedings against him. He further complained under Article 1 of Protocol No. 1 to the Convention that his personal belongings (three guns) had been taken away from him by the police and had not been returned. 94. The Court, having carefully considered the applicant’s submissions in the light of all the material in its possession, finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.", "95. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 96. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 97. The applicant claimed 250,000 euros (EUR) in respect of pecuniary damage, comprised of an alleged loss of salary caused by the applicant’s claimed inability to continue working as a sailor because of the injuries inflicted on him, and EUR 150,000 in respect of non-pecuniary damage. 98. The Government noted that the applicant’s salary claims were of a hypothetical nature and his claims in respect of non-pecuniary damage were exorbitant. 99.", "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 20,000 in respect of non-pecuniary damage. B. Costs and expenses 100. The applicant also claimed EUR 1,386 for costs and expenses incurred at the national level and before the Court, including: UAH 5,600[1] paid to his lawyer for legal services in relation to the proceedings concerning the applicant’s complaints of ill-treatment; UAH 7,200[2] for legal representation before the Court; and EUR 130 of postal expenses.", "101. The Government submitted that the applicant’s claim for costs and expenses incurred in the domestic proceedings should be rejected. The Government also noted that the applicant had submitted only a summary of legal services performed by his lawyer, signed by the lawyer and by the applicant, but had not submitted a copy of the contract he had entered into with his lawyer and copies of relevant invoices. The applicant had also not submitted all of the bills to substantiate his postal expenses. 102.", "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. C. Default interest 103. The Court considers it appropriate that default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaints under Articles 3 and 13 of the Convention and the complaint under Article 6 § 1 of the Convention concerning the hearing of the applicant’s criminal case in the Supreme Court of Ukraine admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention under its substantive limb; 3. Holds that there has been a violation of Article 3 of the Convention under its procedural limb; 4. Holds that there is no need to examine the complaint under Article 13 of the Convention; 5. Holds that there has been a violation of 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, EUR 20,000 (twenty thousand euros) in respect of non-pecuniary damage and EUR 1,000 (one thousand euros) in costs and expenses, plus any tax that may be chargeable to the applicant, to be converted into Ukrainian hryvnas 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; 7. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 21 July 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekDean SpielmannRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Zupančič, Berro-Lefèvre and Yudkivska is annexed to this judgment. D.S.C.W.", "JOINT CONCURRING OPINION OF JUDGES ZUPANČIČ, BERRO-LEFÈVRE AND YUDKIVSKA 1. We agree with the outcome in this case but would beg to differ on one question, which concerns the distinction between torture stricto sensu on the one hand and the concept of inhuman and degrading treatment on the other. We shall also explain why it is uncertain, in this particular case, whether the sequelae suffered by the applicant, including his recurrent haematuria, were or were not the consequences of the respondent State’s actions. 2. It is to be noted from the outset that the present case differs from the situation “where an individual, when taken into police custody, is in good health, but is found to be injured at the time of release”, which makes it “incumbent on the State to provide a plausible explanation of how those injuries were caused”[3].", "The Court used to make a distinction between cases where an applicant was brought to the police in good health and cases where it was not so clear because applicants were apprehended, for instance, after fights with victims or third persons[4]. 3. The applicant in the present case was arrested on the street immediately after he had had a fight with a certain Mr S. It is of particular importance that the applicant never contested the fact that he had been beaten by S., had fallen on a metal fence and had thus received injuries. These circumstances count seriously against him, as well as his attempt to escape. Therefore we cannot state indubitably that the applicant was still in good health when taken into police custody.", "4. However, we share the majority’s view that having failed to conduct a medical examination of the applicant before placing him in detention, and thus to confirm that he received injuries at the time of arrest and not after it, the authorities failed “to discharge their burden of providing a plausible explanation for those injuries” (paragraph 70). Indeed, as stressed by the CPT, a medical examination immediately after the arrest constitutes one of the fundamental safeguards against ill-treatment which is of crucial importance particularly for countries like Ukraine, where ill-treatment in custody remains an endemic problem. 5. Nevertheless, we cannot subscribe to the conclusion in paragraph 73 of the judgment that the treatment at issue went beyond inhuman treatment and amounted to torture for the purposes of Article 3 of the Convention.", "6. As can be seen from the judgment, the injuries sustained by the applicant included haematuria, an extensive haematoma on the chest, numerous bruises all over the right side of the chest and back and on the right hip and left shoulder, and small scratches on his wrists. Without any attempt to underestimate or downsize the applicant’s sufferings, we nonetheless oppose an inflation of the category “torture” which is reserved, following Ireland v. the United Kingdom, for “deliberate inhuman treatment causing very serious and cruel suffering”, to which “a special stigma” is attached[5]. 7. It must be understood that in Selmouni v. France the Court adopted a very concise and sophisticated definition of torture, using the very wording of Article 1 of the United Nations Convention Against Torture (hereinafter the “UN Convention”).", "[6] Until Selmouni v. France the European Court of Human Rights did not have its own definition of torture, neither did it distinguish strictly between torture for the purposes of Article 3 of the Convention and other forms of inhuman or degrading treatment or punishment. 8. Article 3 of the European Convention on Human Rights with its marginal heading “Prohibition of torture” spells it out as follows: “No one shall be subjected to torture or inhuman or degrading treatment or punishment”. The text of the European Convention on Human Rights, therefore, does not distinguish between torture and inhuman or degrading treatment or punishment. As pointed out above, the distinction between the two concepts was established in Selmouni by reference to Article 1 of the UN Convention.", "Article 1 requires that the suffering or pain, whether physical or mental, in order to be torture must be severe. 9. The UN Convention definition also requires that the infliction of such severe pain or suffering be perpetrated with direct intent and moreover with a special intent (dolus specialis) in order to obtain from the victim or a third person information or a confession or to punish him or her for an act that he or she or a third person has committed or is suspected of having committed or with intent to intimidate or coerce him or her or a third person or for any reason whatsoever based on discrimination of any kind. In addition, such acts of torture must be inflicted by or at the instigation of or with the connivance of a public official or any other person acting in such an official capacity. In this respect, we speak of delictum proprium, that is to say torture can only be committed, to put it simply, by an agent of the State.", "10. On the other hand, Article 1 of the UN Convention in fine provides that pain or suffering arising only from or inherent in or incidental to normal lawful sanctions, does not qualify as torture. If the person is resisting arrest and thereby makes the use of physical force inevitable for the purposes of that arrest, injuries sustained during this altercation will not qualify as torture, even though they would in every other respect, except in so far as dolus specialis is concerned, correspond to the above definition. The issue in Rehbock v. Slovenia,[7] for example, was whether the physical resistance of a body-builder did or did not necessitate the use of physical force, i.e., whether or not it was incidental to the lawful sanction constituted by his arrest. 11.", "The issue in the present case, where we differ with the majority, concerns, as we have pointed out above, the distinction between torture as here defined and explained, on the one hand, and inhuman or degrading treatment or punishment, on the other. Given the reception of the definition of the UN Convention’s Article 1 in Selmouni v. France, it must be taken into consideration that the European Court of Human Rights not only chose to be bound by the definition of torture but is eo ipso bound by the distinction between torture stricto sensu on the one hand and inhuman or degrading treatment or punishment on the other. 12. It is in this respect, therefore, interesting to note that the UN Convention practically does not refer, in the body of its text, to “other cruel, inhuman or degrading treatment or punishment”. 13.", "The term “cruel, inhuman or degrading treatment or punishment” appears only in Article 16 of the UN Convention, i.e., in its second paragraph, where the international instrument refers to the proviso according to which the UN Convention should be without prejudice to the provisions of any other international instrument or national law which prohibit “cruel, inhuman or degrading treatment or punishment” or which relate to extradition or expulsion. 14. In the logic of the UN Convention, therefore, “cruel, inhuman or degrading treatment or punishment” is everything which is less than torture stricto sensu. 15. Here we observe that the criteria in Article 1 of the UN Convention referring to dolus specialis and delictum proprium are discrete (yes or no, aut-aut), which means that the preconditions for characterising the conduct of the State agent are either present or not.", "16. The only non-discrete element of the crime of torture, which lends itself to continuity, is the pain or suffering, which must be severe. It would logically follow, therefore, that “cruel, inhuman or degrading treatment or punishment” is everything that does not qualify as torture by virtue of the required severity of pain and suffering, be it physical or mental. If the pain or suffering, physical or mental, is less than severe, in other words, we speak – all other preconditions being equal – of inhuman or degrading treatment. 17.", "In the present case, not only is it doubtful that the sequelae actually derived from ill-treatment by public officials, but also the severity of the pain and suffering has, in our opinion, not been properly established. [1] Around 544 euros [2] Around 700 euros [3]. See, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V [4]. See Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, or Kobets v. Ukraine, no.", "16437/04, 14 February 2008 [5]. Ireland v. the United Kingdom, 18 January 1978, § 167, Series A no. 25 [6]. UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85, available at: http://www.unhcr.org/refworld/docid/3ae6b3a94.html Part I, Article 1: 1.", "For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. [7].", "Rehbock v. Slovenia, no. 29462/95, ECHR 2000‑XII" ]
[ "FIRST SECTION CASE OF TARASOV v. RUSSIA (Application no. 13910/04) JUDGMENT STRASBOURG 28 September 2006 FINAL 12/02/2007 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 Tarasov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL.", "Loucaides,MrsF. Tulkens,MrsN. Vajić,MrA. Kovler,MrD. Spielmann,MrS.E.", "Jebens, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 7 September 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 13910/04) 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 Andrey Anatolyevich Tarasov (“the applicant”), on 6 March 2004. 2. The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.", "3. On 22 February 2005 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 1961 and lives in the town of Dubna in the Moscow Region.", "A. Proceedings for provision of housing 5. On 17 June 2002 the Dubna Town Court allowed the applicant's claim against the Dubna Town Administration for provision of housing. The Town Court ordered that the administration: “...provide Mr Tarasov, whose family comprises three members, with a separate well-equipped flat having a living surface of no less than 61 square metres on the basis of a special tenancy agreement...”. 6.", "The judgment was upheld on appeal on 12 August 2002 by the Moscow Regional Court. 7. Enforcement proceedings were opened. However, the judgment could not be enforced because the town administration possessed no available housing or financial resources to purchase a flat. 8.", "On 24 February 2005 the Dubna Town Administration signed a contract with the applicant. According to the contract, the administration was to provide the applicant with a flat in 2005. 9. On 25 February 2005, upon the applicant's request, the Dubna Town Court discontinued the enforcement proceedings. 10.", "In August 2005 the Dubna Town Administration bought a three-room flat for the applicant. It appears that in September 2005 the applicant moved into the flat. B. Proceedings concerning the method of enforcement of the judgment of 17 June 2002 11. In February 2003 the applicant requested a court to amend the method of enforcement of the judgment of 17 June 2002 and to order that the Dubna Town Administration should pay him the value of a flat.", "12. On 26 February 2003 the Dubna Town Court dismissed the applicant's claim. That judgment was quashed on appeal on 2 April 2003 and the case was remitted for a fresh examination. 13. On 26 June and 18 September 2003 the Dubna Town Court allowed the claim.", "Both judgements were quashed on appeal and the matter was remitted for re-examination. 14. On 10 March 2004 the Town Court dismissed the applicant's claim. The judgment became final on 22 June 2004. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 15. The applicant complained under Articles 1, 8, 13, 17 and 53 of the Convention that the judgment of 17 June 2002, as upheld on appeal on 12 August 2002, was not timeously enforced. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 (see Burdov v. Russia, no.", "59498/00, § 26, ECHR 2002‑III). The relevant parts of these provisions read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time... by [a]... tribunal...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...” A. Admissibility 16. 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 17. The Government submitted that the judgment of 17 June 2002, as upheld on appeal on 12 august 2002, remained unenforced until February 2005 because the Dubna Town Administration did not have financial resources to purchase a flat for the applicant.", "18. The applicant maintained his claims. 19. The Court observes that on 17 June 2002 the applicant obtained a judgment in his favour by which he and his family members were to be granted a flat. The judgment became enforceable on 12 August 2002.", "It was enforced in August 2005 when the Dubna Town Administration bought the flat for the applicant. Thus, it remained unenforced for approximately three years. 20. The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the ones in the present case (see Malinovskiy v. Russia, no.", "41302/02, § 35 et seq., ECHR 2005; Teteriny v. Russia, no. 11931/03, § 41 et seq., 9 June 2005; Gizzatova v. Russia, no. 5124/03, § 19 et seq., 13 January 2005; Burdov, cited above, § 34 et seq., ECHR 2002‑III). 21. Having examined the material submitted to it, 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.", "The Court notes that the judgment was not enforced because the debtor did not possess available housing and did not have financial recourses to purchase a flat. However, the Court reiterates that it is not open to a State authority to cite the lack of funds or other resources, such as housing, as an excuse for not honouring a judgment debt (see Malinovskiy v. Russia, no. 41302/02, § 35, 16 June 2005; Plotnikovy v. Russia, no. 43883/02, § 23, 24 February 2005). Admittedly, a delay in the execution of a judgment may be justified in particular circumstances, but the delay may not be such as to impair the essence of the right protected under Article 6 § 1.", "The applicant should not be prevented from benefiting from the success of the litigation on the ground of alleged financial difficulties experienced by the State (see Burdov v. Russia, no. 59498/00, § 35, ECHR 2002‑III). 22. The Court finds that by failing for years to comply with the enforceable judgment in the applicant's favour the domestic authorities impaired the essence of his right to a court and prevented him from receiving a flat he could reasonably have expected to receive. 23.", "There has accordingly been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 24. The applicant furthermore complained under Articles 6 and 8 of the Convention that the proceedings concerning the method of enforcement of the judgment of 17 June 2002 had been unfair and excessively long and that for more than three years he had not been able to live in a flat awarded by the judgment of 17 June 2002.", "However, having regard to all the material in its possession, and in so far as these complaints fall within the Court's competence ratione materiae, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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 23,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. 27. The Government contested the claim as excessive and unsubstantiated. 28.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 2,400 under that head, plus any tax that may be chargeable. B. Costs and expenses 29.", "The applicant also claimed EUR 11,100 for the costs and expenses incurred before the domestic courts and in the Strasbourg proceedings. Those included EUR 10,800 in respect of legal fees paid to a lawyer and EUR 300 for postal expenses. 30. The Government did not comment. 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 rejects the claim for legal expenses as the applicant was not represented by a lawyer in the domestic or Strasbourg proceedings. As regards the remainder of the applicant's claims, the Court accepts that the applicant incurred postal expenses. It however considers the amount claimed to be excessive. Having regard to the elements at its disposal, the Court awards the applicant EUR 30 for the costs related to the proceedings before the Court, plus any tax that may be chargeable.", "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 complaint concerning non-enforcement of the judgment of 17 June 2002, as upheld on appeal on 12 August 2002, admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No.", "1 on account of prolonged non-enforcement of the judgment of 17 June 2002, as upheld on appeal on 12 August 2002; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of the settlement: (i) EUR 2,400 (two thousand and four hundred euros) in respect of non-pecuniary damage; (ii) EUR 30 (thirty 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 the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 28 September 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]
[ "FIFTH SECTION CASE OF BALAJEVS v. LATVIA (Application no. 8347/07) JUDGMENT STRASBOURG 28 April 2016 FINAL 28/07/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Balajevs v. Latvia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President,Khanlar Hajiyev,Erik Møse,Faris Vehabović,Yonko Grozev,Carlo Ranzoni,Mārtiņš Mits, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 29 March 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "8347/07) 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 Murads Balajevs (“the applicant”), on 21 March 2007. 2. The applicant, who had been granted legal aid, was represented by Mr A. Zvejsalnieks, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Ms K. Līce. 3.", "The applicant alleged that he had been ill-treated by three detainee escort officers on the premises of Riga Regional Court (Rīgas apgabaltiesa) on 8 May 2006 and that there had been no effective investigation of that incident. 4. On 5 November 2014 the aforementioned complaints were communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1966 and is currently in detention in Daugavpils. A. Alleged ill-treatment of the applicant 6. On 8 May 2006 the applicant was transferred from the Central Prison (Centrālcietums) to Riga Regional Court, where he was placed in a holding cell. 7.", "At 11.25 a.m. the applicant asked the detainee escort officers from the State Police to call an ambulance. He had pain around the waist area and was nauseous. The ambulance arrived at 11.35 a.m. It was established that the applicant was suffering from kidney stones and renal colic. He was given painkillers.", "8. The Government submitted that the pain in the area of the applicant’s waist had later returned, and that at approximately 1 p.m. he had once again asked his escort officers to call an ambulance, shouting and cursing whilst so doing. One of the escort officers, M.P., had entered the cell in order to calm him down. The applicant had attempted to hit M.P. In order to prevent the attack, M.P.", "had forced the applicant onto the floor, using physical force and a restraint technique in accordance with section 13(1)5) and 6) of the Law on Police (likums “Par Policiju”). 9. The applicant submitted that at approximately 1.30 p.m. he had asked the officers to call an ambulance. They had refused to do so. As he had been in pain, he had continued to ask for medical assistance.", "At some point, one of the officers had entered the holding cell and had kicked him in the chest, as a result of which the applicant had fallen to the floor. Whilst the applicant was trying to stand up, he had received several more kicks. The applicant’s screaming was heard by two other escort officers, who had rushed to the cell. One of the officers had forced him onto the floor and had kicked him several times in the back in order to keep him quiet. Then the officers had left.", "10. At 1.48 p.m. the escort officers called the ambulance for the second time. The ambulance arrived at 2.04 p.m. The applicant informed the ambulance staff that the officers had hit him on his left side. He also told them that following an injury in 2005 he had suffered a right kidney rupture.", "In the ambulance log it was noted that he had no visible injuries. The applicant was taken to the prison hospital in Olaine, where he was diagnosed with a fracture to the third lumbar vertebra and contusion of the left kidney. 11. On the same day the escort officers M.P. and A.P.", "submitted reports to their superior regarding the incident. 12. On 19 May 2006 the applicant was discharged from the hospital. B. The applicant’s state of health 13.", "The Government referred to an extract from the applicant’s medical file at the prison hospital in Olaine. It stated that on 6 May 2006 (two days prior to the incident at issue) the applicant underwent an X-ray examination which revealed a fracture to his lumbar vertebrae. His condition was described as “similar” following an X-ray on 9 May 2006 (sic) (the day after the incident at issue). 14. According to a letter from the prison in Olaine the applicant was treated at the prison hospital in Olaine between 8 and 19 May 2006.", "He was diagnosed with a transverse process fracture and a left kidney contusion. There were no injuries such as bruises or scratches on the applicant’s body. The prison was unable to provide information as regards the applicant’s medical care prior to 8 May 2006. C. Investigation into alleged ill-treatment 1. The applicant’s complaint 15.", "On 17 May 2006 the applicant’s complaint of 10 May 2006 regarding the incident was received by the Internal Security Office of the State Police (Valsts policijas Iekšējās drošības birojs). The applicant alleged that he had been beaten by the escort officers. 2. Criminal investigation (a) First round of investigation (i) The Internal Security Office of the State Police 16. On 2 June 2006 the Internal Security Office of the State Police commenced criminal proceedings for the offence of exceeding official authority.", "17. On 30 June 2006 the Internal Security Office of the State Police requested an expert medical report in respect of the applicant’s injuries. On 10 July 2006 an expert from the State Forensic Centre (Valsts tiesu medicīnas ekspertīzes centrs) examined the applicant’s medical records. The expert noted his medical history, including the fact that he had been treated for polycystic kidney disease and a urinary tract infection between 1 and 10 March 2006. She requested the applicant’s X-ray from the prison hospital in Olaine.", "On 19 September 2006 the expert concluded that the applicant had sustained a fracture of the third lumbar vertebra which was classified as a moderately severe injury. The injury could have been caused by a blunt solid object on 8 May 2006. However, the possibility that the injury had been caused by the applicant’s falling against a solid object could not be excluded. 18. In the meantime, a senior inspector questioned the applicant on 5 July 2006.", "During the interview he had been unable to identify, from numerous photographs, the officers who had allegedly used excessive force against him. 19. On 22 and 23 August 2006 the senior inspector questioned detainee escort officers M.P., R.T. and A.P., who denied that excessive force had been used against the applicant. 20. The applicant referred to the evidence of S.Š., who stated that the applicant and two other individuals had been placed in the same cell as him.", "After the applicant’s condition deteriorated, the officers had placed him in another cell opposite their cell. S.Š. could see what was happening in the corridor by looking through the peephole in the door. He had seen two or three officers entering the applicant’s cell and then kicking “something”. He had heard the applicant groan.", "21. On 26 October 2006 the senior inspector closed the investigation. 22. She found that at approximately 1.30 p.m. on 8 May 2006 the applicant had been swearing and banging on the door of the holding cell while asking the escort officers to call an ambulance for the second time. One of the officers, M.P., had entered the cell in order to calm him down and the applicant had attempted to hit him.", "In order to prevent the attack, M.P. had forced the applicant onto the floor, using physical force and a restraint technique in accordance with section 13(1)5) and 6) of the Law on Police. 23. The senior inspector also noted that the applicant had at first been placed in the holding cell together with the witness S.Š. and two other individuals.", "According to S.Š. the applicant had been taken to another cell and S.Š. had heard the applicant groan. Thereafter the ambulance had arrived. 24.", "While the expert report of 19 September 2006 indicated that the applicant had been diagnosed with a moderately severe injury in the form of a fracture of a lumbar vertebra, the possibility could not be excluded that this injury had been caused by the applicant’s falling against a hard object, which corresponded to the escort officers’ account of the incident. 25. The senior inspector concluded that the constituent elements of an offence under section 317(2) of the Criminal Law (Krimināllikums) (exceeding official authority) were lacking in the officers’ actions. (ii) Prosecution service 26. The applicant lodged an appeal against the aforementioned decision with two levels of the prosecution service.", "On 22 December 2006 a prosecutor upheld the impugned decision. 27. On 29 January 2007 the deputy chief prosecutor quashed that decision. She found that the investigation had been superficial and that the decision concerned had lacked “sufficient justification”. 28.", "There was no evidence that the applicant had fallen against a hard object. According to witness statements, he had fallen to the floor. It was therefore necessary to inspect the holding cell in which force had been used against the applicant and to verify the statements of both the applicant and of M.P. and A.P. at the scene to establish how the applicant had fallen and whether there had been any object against which he could have fallen.", "It was also necessary to obtain an expert report to find out whether or not the applicant could have sustained the injury prior to 8 May 2006. 29. The deputy chief prosecutor referred the case back to the Internal Security Office of the State Police. (b) Second round of investigation (i) The Internal Security Office of the State Police 30. On 28 February 2007 the Internal Security Office of the State Police ordered a further expert report.", "31. Between 21 and 26 March 2007 the senior inspector questioned A.P. and M.P. and verified the applicant’s evidence at the scene. A.P.", "and M.P. stated that they could not recall in which holding cell the applicant had been placed. Neither could they recall or demonstrate how force had been used against him. 32. On 26 March 2007 the senior inspector closed the investigation.", "33. She noted that the ambulance had arrived for the second time at 2.06 p.m. on 8 May 2006. The applicant had complained of a pain in the area of his left kidney, alleging that the officers had kicked him there. During the investigation, however, he had alleged that the officers had kicked him on the right side of his body. Furthermore, he had stated that the officers had kicked him in the chest, as well as hitting him with a truncheon.", "At the same time, he had had no visible injuries. 34. According to the expert report dated 12 March 2007, the applicant could have remained mobile even after sustaining a lumbar vertebral fracture, and the possibility could not be excluded that the applicant had sustained this injury prior to 8 May 2006. 35. It could not therefore be established when the applicant had sustained the injuries.", "The senior inspector concluded that the constituent elements of an offence under section 317(2) of the Criminal Law (exceeding official authority) were lacking in the officers’ actions. (ii) Prosecution service 36. The applicant lodged an appeal against the aforementioned decision with two levels of the prosecution service. On 11 May 2007 the prosecutor upheld that decision. 37.", "On 12 June 2007 the chief prosecutor quashed the impugned decision. He found that the investigation had not been thorough and that the decision had been made without assessing all the evidence in the case. 38. The senior inspector had not verified the evidence of A.P. and M.P.", "at the scene. Their questioning had been merely formal. The escort officers had previously stated that they had used force against the applicant. It was therefore necessary to establish whether or not the applicant had sustained injuries as a result thereof. In addition, the evidence of S.Š.", "had not been considered. According to S.Š. there had been two other individuals in the holding cell but these individuals had not been questioned. 39. The chief prosecutor referred the case back to the Internal Security Office of the State Police for the second time.", "(c) Third round of investigation (i) The Internal Security Office of the State Police 40. On 28 June 2007 the senior inspector visited the scene together with M.P. and A.P. to verify their evidence. The latter could no longer recall in which cells the various detainees, including the applicant, had been held, nor were they able to show how force had been used against him.", "They maintained their previous statements. 41. The senior inspector obtained an additional statement from S.Š. and questioned fourteen detainees who had been escorted by the officers on the day in question. Some of them had heard noise and shouted requests for a beating to be stopped.", "The whereabouts of other four detainees could not be established. The applicant referred to the evidence of M.R., who stated that S.Š. had been placed in the same cell as him. M.R. had not seen the incident but had heard some noise and a man shouting.", "He did not know the applicant. 42. On 24 April 2009 the senior inspector closed the investigation. 43. She noted that the applicant had given different accounts as to how force had been used against him.", "There were several other discrepancies. The applicant had stated that an officer had beaten him in his cell, whereas S.Š. had stated that three to four officers had beaten him in the corridor. Another detainee, V.J., had given evidence that the applicant had told him that he had been kicked once on the leg. 44.", "Furthermore, the applicant’s allegation that he had been kicked in the chest and hit on the head with a truncheon was not corroborated by the expert report, which had not recorded injuries to those areas of his body. 45. As regards the lumbar vertebral fracture, according to the expert report, this injury could have been caused by the applicant’s falling against a hard object. This corresponded to the accounts given by M.P. and A.P.", "46. The senior inspector concluded that the applicant had not sustained the injuries as a result of unlawful conduct by the escort officers. It could not be established that the use of force had been unjustified. (ii) Prosecution service 47. On 29 May 2009 the prosecutor, in response to a complaint from the applicant, upheld the aforementioned decision.", "48. He noted that force had been used against the applicant in compliance with section 13(1)6) of the Law on Police. It was impossible to determine when the applicant’s injuries had been caused. The constituent elements of an offence under section 317(2) of the Criminal Law (exceeding official authority) were lacking in the officers’ actions. 49.", "Lastly, the prosecutor found that the senior inspector had taken all the investigative steps requested by the prosecution service. The duration of the investigation had been lengthy because many of the individuals who had been escorted on the day in question had been released and their whereabouts were unknown. 50. An appeal lay to a higher prosecutor against the aforementioned decision. According to information from the prosecution service dated 11 and 19 February 2015, furnished by the Government, the applicant did not appeal.", "51. On 20 November 2013 the applicant wrote to the prosecution service asking for a final decision in the criminal proceedings. On 28 November 2013 the prosecution service replied that an appeal against the prosecutor’s decision should have been lodged within ten days. Although the applicant had been notified of the decision, he had not appealed against it within the statutory time-limit. The prosecution service could therefore not exercise its powers in respect of the criminal proceedings.", "3. Internal inquiry 52. In the meantime, on 16 June 2006 the State Police instigated an internal inquiry into the events of 8 May 2006. 53. The applicant alleged that he had been kicked on various parts of his body, including his head, chest and spine, as well as in the kidney area.", "He said he had also been hit with a truncheon. 54. Between 26 and 29 June 2006 the escort officers gave their explanations (paskaidrojumi). M.P. and A.P.", "stated that M.P. had used force against the applicant as the latter had attempted to hit him. A.P. had helped to restrain the applicant. 55.", "On 30 June 2006 the State Police found that without carrying out procedural acts it was impossible to establish the circumstances in which the applicant had sustained the injuries and whether the force used against him by M.P. or A.P. had been in compliance with section 13 of the Law on Police. II. RELEVANT DOMESTIC LAW A.", "Civil Law 56. Section 1635 stipulates that any infringement of rights or unlawful activity gives the person who has suffered damage, including non-pecuniary damage, the right to claim compensation from the wrongdoer, to the extent that the latter may be held liable for that act. Under section 1779 everyone has a duty to compensate for losses caused by their actions or failure to act (see A.K. v. Latvia, no. 33011/08, § 54, 24 June 2014).", "B. Criminal Procedure Law 57. Section 37 circumscribes the authority of a prosecutor supervising an investigation (see Holodenko v. Latvia, no. 17215/07, § 43, 2 July 2013). 58.", "Under section 337 a complaint about an investigator’s decision may be submitted to a supervising prosecutor, and a complaint about a prosecutor’s decision may be lodged with a higher prosecutor (see ibid., § 44). C. Criminal Law 59. Section 317, criminalising the exceeding of official authority, has been noted in the case of Bērziņš v. Latvia (no. 25147/07, § 58, 25 February 2014). D. Law on Police 60.", "Under section 13(1)5) and 6) a police employee has the right to use physical force and special combat techniques in order to restrain detained persons if they disobey or resist police employees, and in order to prevent non-compliance with the lawful requests of police employees made in the performance of their official duty for the preservation of public order. The use of physical force and special combat techniques must be assessed taking into account the nature of a particular situation and the characteristics of the individual concerned. 61. Section 13(2), governing the use of physical force and restraint measures, has been noted in Bērziņš (cited above, § 61). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 62. The applicant complained under Article 3 of the Convention that he had been ill-treated by three detainee escort officers on the premises of Riga Regional Court on 8 May 2006. Referring to Article 1 and Articles 3 and 13 of the Convention he also complained about the investigation into these events. He stated that the investigation had not been thorough, diligent and impartial, and that it had been unreasonably long. 63.", "The Court considers that these complaints fall to be examined under Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. The parties’ submissions (a) The Government 64. The Government argued that the applicant had not exhausted the domestic remedies. 65. Firstly, under sections 1635 and 1779 of the Civil Law, the applicant had had the right to seek compensation for the damage caused by the State Police.", "Referring to the cases of Blumberga v. Latvia (no. 70930/01, § 68, 14 October 2008) and Y v. Latvia (no. 61183/08, § 71, 21 October 2014), the Government argued that the outcome of criminal proceedings did not determine the success of compensation proceedings. They noted the examples of domestic case-law provided to the Court in the case of Y v. Latvia (cited above). 66.", "Secondly, the applicant had failed to appeal against the decision of 29 May 2009 upholding the termination of the criminal investigation into the events of 8 May 2006. Under section 337 of the Criminal Procedure Law the applicant could have lodged an appeal against the decision with two further levels of the prosecution service. Referring to the cases of Leja v. Latvia (no. 71072/01, § 68, 14 June 2011) and Lobanovs v. Latvia ((dec.), no. 16987/02, §§ 40-43, 28 September 2010) the Government submitted that an appeal to a higher-ranking prosecutor was an effective remedy.", "(b) The applicant 67. Firstly, the applicant submitted that compensation proceedings on the basis of sections 1635 and 1779 of the Civil Law could be effective only if, within the framework of the criminal proceedings, the domestic authorities had established that an offence against him had been committed. 68. Secondly, he pointed out that he had appealed against all the decisions rendered in the criminal proceedings. 2.", "The Court’s assessment (a) General principles 69. The Court reiterates that States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged, first of all, to use the remedies provided by the national legal system. The Court is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, fall within the domain of domestic jurisdictions (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 70, 25 March 2014, with further case-law references). 70.", "The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness. There is no obligation to have recourse to remedies which are inadequate or ineffective. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success. However, the existence of mere doubt about the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see ibid., §§ 71, 73 and 74).", "71. In cases of wilful ill-treatment by State agents in breach of Article 3, the Court has found that two measures are necessary to provide sufficient redress. Firstly, the State authorities must have conducted a thorough and effective investigation capable of leading to the identification and punishment of those responsible. Secondly, an award of compensation to the applicant is required where appropriate or, at least, the possibility of seeking and obtaining compensation for the damage which the applicant sustained as a result of the ill-treatment (see Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010, and Razzakov v. Russia, no.", "57519/09, § 50, 5 February 2015). 72. In cases of wilful ill-treatment by State agents, a breach of Article 3 cannot be remedied by the mere award of compensation to the victim because, if the authorities could confine their reaction to incidents of wilful ill-treatment by State agents to the mere payment of compensation while at the same time not doing enough to prosecute and punish those responsible, it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity, and the general legal prohibition of torture and inhuman and degrading treatment, despite its fundamental importance, would be ineffective in practice (see Gäfgen, cited above, § 119; Vladimir Romanov v. Russia, no. 41461/02, § 78, 24 July 2008; and Razzakov, cited above, § 50). (b) Application in the present case 73.", "Turning to the Government’s argument about the effectiveness of the compensation proceedings, the Court notes that a purely compensatory remedy cannot be regarded as sufficient to meet a Contracting State’s obligations under Article 3 of the Convention, as such a remedy is aimed at awarding damages rather than identifying and punishing those responsible (see Sapožkovs v. Latvia, no. 8550/03, § 55, 11 February 2014, and Holodenko v. Latvia, no. 17215/07, § 57 in fine, 2 July 2013). 74. As regards appealing against the decision of 29 May 2009 upholding the termination of the criminal investigation, the Court notes that the parties are in dispute as to whether or not the applicant did in fact appeal.", "However, even assuming that the applicant did not lodge an appeal, the Court observes that the applicant’s earlier appeals had resulted in two further rounds of investigation. The question of whether or not the applicant was required to pursue a third round of appeals is closely related to the substance of the complaints, and will be assessed together with the State’s positive obligation to take effective measures to protect against ill-treatment, in particular the obligation to carry out an effective investigation (see Holodenko, cited above, § 58). 75. 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 76. The applicant maintained that there had been a violation of Article 3 of the Convention.", "77. He argued that he had suffered the injuries as a result of ill-treatment by his escort officers. His allegations were supported by the evidence of S.Š. and M.R. (see paragraphs 20 and 41 above).", "There was no evidence to the effect that he had sustained the injuries in any other circumstances or that he had sustained them prior to 8 May 2006. 78. Furthermore, there was no evidence that the applicant had been in a position to seriously threaten the officers. Shouting or the use of “strong language” could not have justified the use of force against him. 79.", "The applicant did not provide any comment regarding the question of an effective investigation of his allegations. (b) The Government 80. The Government argued that the use of force by M.P. against the applicant had been legitimate and had not attained the minimum level of severity for Article 3 of the Convention to apply. 81.", "They pointed out that a form of constraint applied by police officers may be justified where the person being controlled offers physical resistance or presents a risk of a violent behaviour (referring to Y v. Latvia, cited above, § 54). In the present case the applicant had behaved aggressively and had attempted to hit M.P., who had entered the applicant’s cell in order to calm him down. Recourse to physical force by M.P. had therefore been strictly necessary to subdue the applicant. 82.", "Furthermore, the applicant’s allegations that the escort officers had kicked him on his head, chest, spine, in the kidney area or on other parts of the body, or that they had hit him with a truncheon, were not supported by the medical evidence. Also, according to the results of X-ray examinations on 6 and 9 May 2006 (see paragraph 13 above) the applicant had sustained the injuries prior to the incident at issue. Given his medical history, in particular the injury in 2005 and treatment in March 2006 (see paragraphs 10 and 17 above) the applicant was suffering from a chronic illness, similar to the applicant in the case of Lobanovs (cited above). 83. In their initial observations, the Government did not comment on the Court’s question regarding the investigation by the domestic authorities into the incident of 8 May 2006.", "In their additional observations, they stated that the applicant had not provided any reasonable argument as regards the alleged ineffectiveness of the domestic investigation, and that they did not find it necessary to provide detailed observations in this regard. 2. The Court’s assessment (a) The substantive aspect (i) General principles 84. The Court reiterates that Article 3 enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment (see Labita v. Italy [GC], no.", "26772/95, § 119, ECHR 2000‑IV). 85. 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 an infringement of the right set forth in Article 3 (see ibid., § 120, and Bouyid v. Belgium [GC], no.", "23380/09, § 101, ECHR 2015). 86. 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.", "On this latter point the Court has explained that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the victim. In the absence of such explanation, the Court can draw inferences which may be unfavourable for the Government. That is justified by the fact that persons in custody are in a vulnerable position and the authorities are under a duty to protect them (see Bouyid, cited above, §§ 82 and 83, with further case-law references). (ii) Application in the present case 87.", "Turning to the present case, the Court observes that it was common ground between the parties that the escort officers had used some force against the applicant. The parties disagreed, however, as to whether or not the force applied by the escort officers had been necessary and whether or not the applicant’s injuries had been caused by their actions. 88. The Court notes at the outset that at the time of the events at issue the applicant was under control of the escort officers. It further observes that his allegation of ill-treatment was corroborated by some medical evidence.", "It is apparent from the case file that he was found to have a number of injuries subsequent to the alleged incident, in particular a fracture to the third lumbar vertebra and a left kidney contusion (see paragraphs 10, 14 and 17 above). In addition, the Court notes that shortly after the incident at issue the applicant had informed the ambulance staff that the escort officers had kicked him (see paragraphs 10 and 33 above). S.Š. had seen two or three officers entering the applicant’s cell and then kicking “something”, and he had heard the applicant groan (see paragraphs 20 and 23 above). Also some of the other detainees had heard noise and shouted requests for a beating to be stopped (see paragraph 41 above).", "89. Given these circumstances, it is incumbent on the respondent Government to provide a satisfactory and convincing explanation by submitting evidence of how the diagnosed injuries were caused, failing which a clear issue arises under Article 3 of the Convention. 90. In this regard, the Court is not persuaded by the Government’s argument that the applicant had undergone an X-ray examination that revealed the injury to the lumbar vertebra in the prison hospital in Olaine two days prior to the events at issue, that is to say, on 6 May 2006 (see paragraphs 13 and 82 above). According to the letter from the prison in Olaine, he was treated at the prison hospital in Olaine from 8 May 2006 (see paragraph 14 above), having been admitted to that hospital on 8 May and not on 6 May 2006 (see paragraph 10 above).", "91. With regard to the injury to the lumbar vertebra, the Court notes that the Government have presented other materials ‒ such as the expert medical report and the conclusions of the domestic investigation ‒ to corroborate their argument that the applicant could have sustained this injury before the alleged incident. The Court observes, however, that the expert medical report admitted that the applicant could also have sustained this injury on the day of the incident, that is, 8 May 2006 (see paragraph 17 above). 92. Furthermore, the Government have not presented any evidence to explain the applicant’s initial diagnosis of a left kidney contusion (see paragraphs 10 and 14 above).", "The domestic investigation was silent on this initial diagnosis, including on the question of whether or not it had been accurate (see Danilov v. Ukraine, no. 2585/06, § 64, 13 March 2014). 93. Similarly, the domestic investigation failed to clarify how force had been used against the applicant (see paragraph 103 below), even though the officers themselves had stated that they had used force against him (see paragraphs 38 and 54 above). 94.", "In these circumstances, the Court considers that the respondent Government have failed to discharge their burden of proof and to submit any evidence or plausible explanation refuting the applicant’s account of events. Therefore, the Court considers that the applicant’s injuries diagnosed shortly after the incident at issue (see paragraph 10 above) were sustained as a result of the use of force by the escort officers against him on 8 May 2006. 95. The Court furthermore considers that it has not been shown that the recourse to physical force against the applicant was made strictly necessary by his own conduct. In particular, it refers to its findings below that in the course of the investigation the domestic authorities failed to assess the proportionality of the force used (see paragraphs 106-108 below).", "Therefore, the Court cannot but conclude that the use of force was unnecessary and excessive (see Rizvanov v. Azerbaijan, no. 31805/06, § 50, 17 April 2012). The Court considers that the injuries sustained by the applicant must have caused him physical pain and suffering, as well as considerable mental suffering, diminishing his human dignity. 96. In these circumstances, the Court considers the ill-treatment complained of as inhuman and degrading within the meaning of Article 3 of the Convention.", "97. Accordingly, there has been a violation of Article 3 of the Convention under its substantive limb. (b) The procedural aspect (i) General principles 98. The Court reiterates that where an individual raises an arguable claim that he has been ill-treated by the State authorities in breach of Article 3, that provision ‒ read in conjunction with the State’s general duty under Article 1 of the Convention ‒ requires by implication that there should be an effective official investigation (see Labita, cited above, § 131, and Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII). 99.", "An obligation to investigate “is not an obligation as to result, but as to means”: not every investigation should necessarily come to a conclusion which coincides with the applicant’s account of events. However, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Mikheyev v. Russia, no. 77617/01, § 107, 26 January 2006). 100. Any investigation into allegations of ill-treatment must be thorough.", "This means that the authorities must make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 325, ECHR 2014 (extracts), and Assenov and Others, cited above, § 103). 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 applicable standard (see Bouyid, cited above, § 120). 101. The investigation must also be effective in the sense that it should be capable of leading to a determination of whether the force used by the police was or was not justified in the circumstances (see Fanziyeva v. Russia, no.", "41675/08, § 70, 18 June 2015). (ii) Application in the present case 102. The Court considers that the applicant’s complaint lodged with the domestic authorities and supported by medical evidence, that the escort officers had beaten him constituted an arguable claim of ill-treatment which required the authorities to conduct an effective investigation. While the Court notes that they did carry out an inquiry into his allegations, it does not consider, however, that the inquiry was sufficiently thorough and effective to meet the requirements of Article 3 of the Convention. 103.", "In particular, the Court observes that the prosecution service acknowledged that the first round of investigation had been incomplete. It accordingly instructed the Internal Security Office of the State Police to verify the evidence of the applicant and the escort officers, M.P. and A.P., at the scene to establish the circumstances in which the applicant had fallen (see paragraph 28 above). However, in the course of the second round of investigation the Internal Security Office of the State Police failed to verify the evidence of the escort officers at the scene (see paragraph 38 above). The Court notes that when the senior inspector questioned M.P.", "and A.P. more than nine months after the investigation had been opened, they were unable to recall in which holding cell the applicant had been placed or to demonstrate how force had been used against him (see paragraph 31 above). Neither could they give such evidence when the senior inspector verified their statements at the scene in the course of the subsequent inquiry, more than a year after the investigation had been opened (see paragraph 40 above). 104. As a result of the aforementioned delays in obtaining further evidence from the escort officers as regards the use of force against the applicant, the ability to establish exactly what had happened to him was significantly undermined, particularly the ability to assess the credibility of the version of the events given by the escort officers (see paragraph 24 above) and the witness, S.Š.", "(see paragraph 20 above). This shortcoming compromised the availability and quality of the evidence considered and was therefore prejudicial to the effective conduct of the investigation for the purposes of Article 3 of the Convention. 105. Furthermore, in the course of the investigation neither the Internal Security Office of the State Police nor the prosecution service inquired into the diagnosis of a left kidney contusion made at the prison hospital in Olaine subsequent to the incident at issue (see paragraph 10 above). Similarly, there is no evidence before the Court to suggest that they attempted to obtain statements from the ambulance staff who had seen the applicant prior to and after the incident on the premises of Riga Regional Court and therefore might have had useful information about the applicant’s state of health and the holding cell where he had been placed.", "In addition, the Court notes that the expert medical report was based only on the applicant’s medical records (see paragraph 17 above). The expert did not examine the applicant in person (see, for example, Djundiks v. Latvia, no. 14920/05, § 63, 15 April 2014, and Holodenko, cited above, § 77). 106. But most importantly, although the Internal Security Office of the State Police and the prosecution service found that force had been used against the applicant (see paragraphs 22, 24, 28, 38, 46 and 48 above), they failed to assess its proportionality (see Bērziņš v. Latvia no.", "25147/07, § 115, 25 February 2014; see also Sapožkovs, cited above, §§ 76 in fine and 77). In this connection, the Court reiterates that Article 3 does not prohibit the use of force in certain well-defined circumstances. However, such force may be used only if it is indispensable and it must not be excessive (see, among many others, Rehbock v. Slovenia, no. 29462/95, §§ 68-78, ECHR 2000‑XII, and Ivan Vasilev v. Bulgaria, no. 48130/99, § 63, 12 April 2007).", "Recourse to physical force which has not been rendered strictly necessary by the person’s own conduct diminishes human dignity and is an infringement of the rights set forth in Article 3 of the Convention (see Bouyid, cited above, § 101). 107. In that regard, the Court notes that the Internal Security Office of the State Police found that the officer M.P. had forced the applicant onto the floor (see paragraph 22 above). Furthermore it considered that the applicant could have sustained the lumbar vertebral fracture by falling against a hard object, which in its view corresponded to the escort officers’ version of the events (see paragraphs 24 and 45 above).", "At the same time, both the Internal Security Office of the State Police and the prosecution service failed to examine whether the measures applied against the applicant had been indispensable and not excessive. Such assessment was even more important given the applicant’s medical condition at the time, in particular the fact that he had been in pain and was suffering from kidney stones and a renal colic (see paragraphs 7 and 8 above). Furthermore, he had been given painkillers a couple of hours prior to the use of force (see paragraph 7 above). 108. The Court notes that, in closing the investigation, the Internal Security Office of the State Police pointed out several discrepancies between the applicant’s statements and other evidence (see paragraphs 43 and 44 above).", "The Court is not satisfied that those discrepancies were such that a more thorough assessment of the case was not required, including assessment of the proportionality of the force used against the applicant, in particular given the fact that subsequent to the incident at issue the applicant had been diagnosed with a fracture to the third lumbar vertebra and a left kidney contusion and the escort officers had stated that they had used force on him. 109. Finally, in response to the Government’s objection that the applicant had failed to appeal to a higher prosecutor against the prosecutor’s decision of 29 May 2009 (see paragraphs 47-49 and 66 above), the Court observes that the initial decision refusing to institute criminal proceedings was twice reviewed by the prosecution service. In his decision of 29 May 2009 the prosecutor noted that it was impossible to establish when the injuries on the applicant had been caused (see paragraph 48 above), and that the Internal Security Office of the State Police had taken all investigative steps requested by the prosecution service (see paragraph 49 above). 110.", "Given the aforementioned wording of the decision of 29 May 2009, the Court is of the opinion that a third round of appeals within the hierarchy of the prosecution service would have had no prospect of success. The applicant could therefore not be asked to try that remedy (see Sorokins and Sorokina v. Latvia, no. 45476/04, § 81, 28 May 2013, and Holodenko, cited above, § 81). This conclusion is strengthened by the fact that investigation becomes more problematic with the passage of time (see Holodenko, cited above, § 81). In this regard, the Court notes that the escort officers could no longer recall the holding cell in which the applicant had been placed nor could they demonstrate how force had been used against him.", "The Court therefore dismisses the Government’s objection. 111. The foregoing considerations are sufficient to enable the Court to conclude that the investigation into the alleged ill-treatment was not effective. There has accordingly been a violation of the procedural aspect of Article 3 of the Convention. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 112. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 113. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage. 114.", "The Government contested this claim. 115. The Court, deciding on an equitable basis, awards the applicant EUR 5,000 in respect of non‑pecuniary damage. B. Default interest 116.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Joins to the merits the Government’s objection regarding the non‑exhaustion of domestic remedies available under the Criminal Procedure Law and, after having examined the merits, dismisses this objection; 2. Declares the complaints concerning Article 3 of the Convention admissible; 3. Holds that there has been a violation of the substantive aspect of Article 3 of the Convention; 4.", "Holds that there has been a violation of the procedural aspect of Article 3 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), 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; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 28 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekAngelika NußbergerRegistrarPresident" ]
[ "THIRD SECTION CASE OF ZANDBERGS v. LATVIA (Application no. 71092/01) JUDGMENT STRASBOURG 20 December 2011 FINAL 20/03/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Zandbergs 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 Santiago Quesada, Section Registrar, Having deliberated in private on 29 November 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "71092/01) 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 Latvian national, Mr Kaspars Zandbergs (“the applicant”), on 18 May 2001. 2. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine. 3. On 1 March 2005 the application was communicated to the Government.", "It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1971 and currently lives in Riga. A.", "The applicant’s initial arrest, flight to the United States and extradition 5. On 23 November 1993 the applicant was arrested by the police and taken into custody on suspicion of having organised and paid the murder of his former business partner; the murder actually took place several days before his arrest. According to the prosecution, the applicant had paid two accomplices to strangle the victim in his car. Then, together with two other accomplices, he had driven the car with the victim’s body to another district, faked a road accident and set the car ablaze. Interrogated as a suspect, the applicant pleaded not guilty.", "6. Three days after the applicant’s arrest, on 26 November 1993, another set of criminal proceedings was initiated against the applicant on the fact of a large-scale contraband of sugar in the Riga Free Port. On the same date, the preventive measure taken with regard to the applicant in the first criminal proceedings (concerning murder) was altered; he was released upon a written undertaking not to change his place of residence. However, three days later, on 29 November 1993, the competent prosecutor ordered the applicant’s detention on remand in the contraband case. 7.", "On 6 December 1993 the preventive measure in the murder case was revoked by the prosecutor because of the lack of evidence against the applicant. On the same date the applicant was charged with committing an aggravated contraband. On 10 February 1994 the preventive measure in the criminal proceedings concerning the contraband was also altered into a written undertaking not to change his place of residence. In March 1994 the applicant was officially indicted on a charge of aggravated contraband and forgery. 8.", "In January 1994 one of two persons having allegedly strangled the applicant’s business partner was found dead. On 1 June 1994, the other, V.Ķ., was arrested and detained on remand. Later, in September of the same year, he was released upon a written undertaking not to change his place of residence. 9. On 17 July 1994, in spite of his undertaking not to leave his residence, the applicant left Latvia for the United States of America.", "10. On 5 September 1994 the Supreme Court committed the applicant to trial in the contraband case. On 21 September 1994, the prosecutor charged him with aggravated murder and ordered his detention on remand. 11. On 3 October 1994 the Supreme Court, examining the contraband case as a court of first instance according to the law then in force, opened the hearing on the merits of this case.", "As the applicant failed to appear, the preventive measure against him was changed into a detention on remand, he was placed on the wanted list, and the proceedings against him were suspended. In January 1995 the prosecutor sanctioned a search operation in order to locate the applicant’s whereabouts. 12. In January and February 1995 some investigative measures were taken in the murder case; namely, V.Ķ. was interrogated.", "The prosecutor also terminated criminal proceedings against one of the applicant’s accomplices who had allegedly helped him to dispose of the victim’s body; he was subsequently charged with concealment of a crime and intentional destruction of property. 13. On 11 February 1995 the pre-trial investigation of the whole case was suspended. Two days later the Prosecutor’s Office ordered the applicant’s search via the Interpol information channels. On 28 February 1995 the competent prosecutor ordered the applicant to be detained on remand.", "14. On 28 June 1995 the Criminal Police informed the prosecutor that the applicant’s whereabouts were unknown. Consequently, on 3 July 1995 the case against him was disjoined from the rest of the murder case into a separate case file. Shortly thereafter, V.Ķ. and the other presumed accomplice disappeared and were placed on the wanted list.", "15. On 1 September 1997 the prosecutor charged the applicant with a complicity in murder. On 2 September, the prosecutor applied to the Latgale District Court of Riga for a detention order in respect of the applicant, given the fact that under the relevant amendments to the Code of Criminal Procedure a detention on remand could not anymore be applied by a prosecutor. On 3 September 1997 the order was granted, without specifying its temporal limit. 16.", "On 12 December 1997 the Prosecutor General’s Office ordered the responsible prosecutor to redefine the charges against the applicant into an aggravated murder and unauthorised possession of a gas pistol with ammunition. On 16 February 1998 the prosecutor resumed the investigation in respect of the applicant’s three presumed accomplices, who had been located in the meantime. On the same day, the proceedings against them were partly discontinued as time-barred. 17. On an unspecified date, the Latvian authorities learned of the applicant’s stay in the United States.", "Accordingly, on 24 February 1998 the Prosecutor General’s Office asked the U.S. Department of Justice for assistance in legal matters, namely, to locate and to extradite the applicant in accordance with the Latvian-American Extradition Treaty of 1923. On 26 September 1998 the United States authorities took the applicant into custody pending extradition proceedings. 18. On 22 October 1999 the competent U.S. Magistrate Judge granted an order allowing the applicant’s extradition to Latvia on the charge of aggravated murder. The applicant appealed requesting a stay of the extradition order.", "19. On 16 December 1999 the Interpol Office of the Latvian Ministry of Interior informed the Prosecutor General’s Office that the applicant was currently held in custody in California, and that the U.S. authorities had consented to his extradition to Latvia on the charge of aggravated murder. On 17 December 1999 the acting Secretary of State of the United States signed a written document approving the applicant’s deportation order. On 20 December 1999 the U.S. Marshals Service convoyed the applicant to the Frankfurt Airport (Germany), where he was handed over to the Latvian authorities.", "On the same date he was brought to Riga and placed in the Central Prison. On the next day, on 21 December, the Prosecutor General’s Office was notified of this fact. 20. On the very day of the applicant’s extradition, on 20 December 1999 the Central District Court of California stayed the extradition order of 22 October 1999. B.", "Pre-trial investigation 21. On 22 December 1999 the competent prosecutor decided to resume the pre-trial investigation regarding the applicant. On the same date, the detention order of the Latgale District Court of 3 September 1997 was notified to the applicant, who attested it with his signature. 22. On 27 December 1999 the applicant’s lawyer appealed against this detention order, stating that the latter had been taken in the applicant’s absence, that the judge who had taken it had no time to acquaint himself with the criminal case file, and that the detention was authorised for an indefinite period of time.", "By a final decision of 18 January 2000 the Riga Regional Court rejected the appeal, declaring that the applicable domestic law allowed for such order when the accused person was absconding from justice, and that in this case, precisely, the applicant was hiding. 23. On 10 February 2000 the Latgale District Court, acting upon the prosecutor’s request, extended the applicant’s detention on remand until 30 April 2000, with the following reasoning: “Taking into account the gravity of the crime committed, as well as the fact that K. Zandbergs could abscond from investigation and trial, and hinder the establishment of truth in the case...” 24. The applicant appealed, stating that the time he had spent in custody in the United States had to be counted as a part of the overall time of his pre-trial detention and that, consequently, this detention had exceeded the maximum time-limit set by the Code of Criminal Procedure. On 6 March 2000 the Riga Regional Court rejected the appeal, refusing to subscribe to the applicant’s interpretation.", "According to the court, the time of his detention on remand should be counted from the 20 December 1999 when he was surrendered to the jurisdiction of the Republic of Latvia. 25. On 14 February 2000 the charges against the applicant were amended. As the U.S. authorities had extradited the applicant on the condition that he would stand trial for murder, the charges regarding intentional destruction of property and illegal possession of a gas pistol were dropped. 26.", "By an order of the Latgale District Court of 25 April 2000, reasoned in terms identical to the one of 10 February 2000, the applicant’s detention on remand was extended until 31 July 2000. The applicant’s appeal was dismissed on 19 May 2000, repeating in substance the reasoning of the previous appeal decision. 27. On 4 May 2000 the Ziemeļu District Court of Riga dismissed the charges against the applicant in the contraband case, as there was no consent from the authorities of the extraditing State (i.e., the United States) to try him for the respective offences. 28.", "On 27 June 2000 the applicant’s detention on remand was extended until 31 September 2000, with an almost identical motivation as before; however, the Latgale District Court added that the applicant had no registered domicile in Latvia. On 11 July 2000, the applicant’s appeal was dismissed. On 16 August 2000 the criminal cases against the applicant, V.Ķ. and the two other presumed accomplices were joined again in a single case-file. However, shortly thereafter the case against these two latter persons was disjoined from the common case file.", "29. On 18 September and 21 December 2000, the applicant’s detention on remand was extended, respectively, until 31 December 2000 and 28 February 2001. On 17 October 2000 and 9 January 2001 respectively, the Riga Regional Court rejected the applicant’s appeals. The reasoning of all these orders and decisions was the same as before. 30.", "On 18 December 2000 the applicant was officially charged with organising an aggravated murder. On 21 December 2000 the prosecutor notified all the accused persons that the pre-trial investigation was completed and that they would now be able to acquaint themselves with the case file. On the same date, the applicant and V.Ķ. received the file, which consisted of 20 volumes. On 19 January 2001 they both finished reading it; the applicant then requested the prosecutor to terminate the proceedings against him.", "On 5 February 2001, this request was rejected. 31. On 23 February 2001 the final bill of indictment was notified to the applicant. On 27 February 2001, the case file was sent to the Riga Criminal Court. C. Trial and conviction 32.", "On 28 February 2001 the competent judge of the Riga Regional Court, without hearing the parties, took a decision to commit the applicant and the co-accused for trial and fixed a hearing for the period of time running between 30 April and 6 May 2002. The judge also decided that the applicant’s detention on remand “sh[ould] remain unchanged”. No term for that detention was specified. The applicant did not appeal against this decision. 33.", "On 5 and 7 March 2001 the applicant submitted two requests to the Riga Regional Court to decide on the lawfulness of his detention on remand, alleging that the consent from the United States to prosecute him had not been properly obtained. He also asked the court to order an additional pre-trial investigation and to alter the preventive measure applied to him. On 14 March 2001 the court rejected all these requests. 34. On 19 March 2001 the applicant requested a separate hearing on the question whether the time he had spent in custody in the United States had to be counted as a part of his pre-trial detention for the purpose of the current proceedings against him and therefore, whether the maximum time-limit of a detention set by the Code of Criminal Procedure had been exceeded.", "On 26 March 2001 the court rejected this request. 35. On 3 April 2001 the applicant asked the Regional Court to alter the preventive measure and to liberate him. On 30 April 2001, the court held a special hearing whereby both the applicant’s defence counsel and the prosecutor were heard. The court finally decided to reject the applicant’s request and to keep him in detention for basically the same reasons as before, i.e., the gravity of the crime for which he was accused, the risk of absconding and the lack of a fixed domicile.", "The court added that there was a risk that the applicant could commit new crimes, without developing this point. 36. The applicant appealed. On 21 May 2001 the Criminal Chamber of the Supreme Court found the appeal admissible and scheduled the hearing on this procedural issue to take place on 28 May 2001. On the latter date, it held a hearing and dismissed the applicant’s appeal, upholding the Regional Court’s decision.", "The Chamber noted, inter alia, that in 1994 the applicant had already breached the preventive measure applied to him and had fled to America. 37. On 31 August and 17 September 2001 respectively, the applicant applied to the Governor of the Matīsa Prison, requesting permission to make copies of two prosecutors’ replies to his complaints in order to submit them to the Court. His requests were refused by the Deputy Governor of that prison. It appears that the applicant did not appeal against the refusals.", "38. On 30 April 2002 the Riga Regional Court commenced the hearings on the merits of the case. However, as the applicant’s co-accused V.Ķ. failed to appear, the hearing was postponed until 2 May 2002. The court also ordered the police to ensure V.Ķ.’s appearance.", "However, on 2 May 2002, the police informed the court that the latter had fled to Russia. The court then decided to put him on the wanted list and to adjourn the proceedings sine die. 39. On 3 and 20 May 2002 the applicant asked the court to alter the preventive measure applied to him. On 14 and 23 May respectively, this request was dismissed.", "40. On 29 May 2002 the applicant asked the case against V.Ķ. to be disjoined from his into a separate file, in order to be able to proceed more speedily. On 26 June 2002 the court rejected this request and affirmed that the applicant would stay in pre-trial detention. 41.", "On 1 November 2002 a new wording of Article 77 (7) of the Code of Criminal Procedure entered into force. According to this new provision, a detention in remand should not exceed one year and six months upon committal to trial, and an extension thereto could only be granted by the Senate of the Supreme Court on an exceptional basis. Consequently, on 10 October 2002 the competent judge of the Riga Regional Court requested the Senate to grant such an extension because the applicant “[had] committed the serious offence”. On 1 November 2002 the Senate, without summoning the applicant and his defence counsel, decided to extend the applicant’s detention until 30 April 2003. The only reason mentioned by the Senate was that the applicant was accused of committing a serious and violent crime.", "42. On 25 November 2002 the applicant applied to the Riga Regional Court requesting either to obtain an appropriate permission from the United States to try and sentence him for a criminal offence or discontinue the criminal proceedings. On 6 December 2002 the Riga Regional Court informed the applicant that his requests will be examined at the hearing on the merits of the case. On 23 December 2002 the applicant repeatedly requested the Riga Regional Court to take an express decision on this issue, but to no avail. On 7 January 2003 the court informed the applicant that all his requests should have been decided at the preparatory hearing, according to the relevant Article of the Code of Criminal Procedure.", "However, as they had been submitted after the preparatory hearing, they were not subject to any other review at this stage of proceedings. 43. On 3 March 2003 the Riga Regional Court commenced the hearing on the merits of the case. The applicant immediately tried to discharge the prosecutor, accusing him of committing a criminal offence and of forging evidence. The court rejected the applicant’s requests.", "On 11 March 2003, it resumed the hearing. The applicant tried to have the whole panel of three judges discharged because of their alleged impartiality in addressing the issue of the prosecutor. The court, again, dismissed the applicant’s requests. It also ordered the police to ensure the presence of some summoned witnesses who had failed to appear. On the next day, the witnesses failed to appear again.", "The court, again, ordered the police to bring them under constraint. 44. At the hearings of 14 and 17 March 2003 the applicant attempted again to have both the prosecutor and the judges dismissed, but in vain. The court also ordered the police to ensure the appearance of one remaining witness who had failed to appear. 45.", "At the same hearings, referring to Article 487 of the Code of Criminal Procedure, the applicant also requested the court either to obtain an appropriate permission from the United States to try him or to terminate the proceedings. His request was dismissed. 46. On 4 April 2003 the Riga Regional Court found the applicant guilty of organising the murder and sentenced him to nine years of imprisonment. The time he had spent in pre-trial detention or custody both in Latvia and in the United States was counted as a part of the sentence.", "As to V.Ķ., he was acquitted of murder, but found guilty of wilful destruction of property and sentenced to five years of imprisonment. 47. The applicant appealed the judgment. He stated, inter alia, that he had been convicted in breach of Article 487 of the Code of Criminal Procedure as the consent from the extraditing state to try and sentence him had not been obtained. On the other hand, he did not repeat his grievances in respect of the alleged partiality of the trial court in his appeal.", "48. On 26 June 2003 the Criminal Chamber of the Supreme Court found the applicant’s appeal admissible. On 15 October 2003 it held its first hearing, whereby the applicant requested a series of investigative measures in order to verify several pieces of evidence. His requests were granted, and the hearing was adjourned. On 3 November and 23 December 2003 and on 21 January, 3 March and 25 May 2004 the applicant filed additional observations to supplement his appeal.", "Moreover, on 15 December 2003 the American lawyer who had represented the applicant in the extradition proceedings in the United States sent a letter to “the Latvian High Court Criminal Division” (sic), stating that the applicant had been deported from the United States while the extradition proceedings had been pending. 49. On 16 January 2004 the applicant filed a complaint with the Prosecutor General’s Office complaining about undue delays in the appeal proceedings. The complaint was transmitted to the Criminal Chamber of the Supreme Court. On 12 February 2004 the President of the Criminal Chamber found that the proceedings were postponed lawfully.", "The applicant sent an essentially identical complaint to the Ministry of Justice, which also forwarded it to the Criminal Chamber. In reply, the latter informed the applicant that a hearing in his case was fixed for 2 June 2004. 50. By a judgment of 3 June 2004 the Criminal Chamber of the Supreme Court dismissed the applicant’s appeal. It upheld the evaluation of the evidence by the first instance court in full.", "It also noted that the consent from the extraditing state to try him for the criminal offence had been lawfully obtained; in this respect the Chamber referred to a document signed by the US acting Secretary of State on 17 December 1999 approving the applicant’s deportation order. 51. The applicant filed a cassation appeal, reiterating his argument based on Article 487 of the Code of Criminal Procedure. On 3 September 2004 the Senate of the Supreme Court declared the cassation appeal inadmissible for lack of arguable points of law. It considered inter alia that the document signed by the acting Secretary of State of the United States on 17 December 1999 had never been quashed and therefore the consent of the extraditing state to try the applicant had been lawfully obtained.", "52. In 2007, having served his sentence, the applicant was released from prison. II. RELEVANT DOMESTIC LAW 53. The relevant provisions of domestic law are summarised in Svipsta v. Latvia (no.", "66820/01, §§ 52-66, ECHR 2006‑III). 54. In addition, other relevant provisions of the former Code of Criminal Procedure in force at the material time read as follows: Article 23-5 “A person who is extradited from a foreign state shall not, without a consent of the extraditing state, be charged with committing an offence and subsequently tried or surrendered to a third state for an offence he has committed prior to the extradition and in respect of which he has not been extradited. ... (3rd paragraph added on 9 December 1999) The time period spent in detention in a foreign state shall not be counted as a part of the overall length of detention on remand, but it shall be included in the imprisonment term to be served.” Article 487 (added on 20 June 2002) “A person may only be indicted and tried for the criminal offence for which he had been extradited. These conditions do not apply to the cases where: 1) a consent from the extraditing state to indict and to try the person for other offences committed before the extradition has been received; 2) the offence was committed after the person had been surrendered to Latvia; 3) the person has not left Latvia within 45 days after his liberation, although he had had such possibility; 4) the person had left Latvia after the extradition and had returned therein.", "...” III. RELEVANT INTERNATIONAL LAW 55. Article IV of the Treaty of Extradition of 16 October 1923 between Latvia and the United States, in force until 2009, read as follows: “No person shall be tried for any crime or offense other than that for which he was surrendered.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 56. The applicant complained that the order of the Latgale District Court of Riga of 3 September 1997, which was taken in his absence and which constituted the initial legal basis for his detention on remand was illegal and could not serve as a pretext to detain him.", "This complaint falls, in substance, in the scope of Article 5 § 1 of the Convention, the relevant parts of which read 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: ... (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; ...” 57. The Government raised a preliminary objection according to which this complaint is inadmissible for non-compliance with the six-month rule prescribed by Article 35 § 1 of the Convention. The applicant did not comment on this particular issue. 58.", "The Court observes that the order of the Latgale District Court was taken on 3 September 1997, in the absence of the applicant who was hiding in the United States. Upon his extradition to Latvia, this order was notified to him on 22 December 1999. The applicant’s lawyer appealed against the order, and on 18 January 2000 the Riga Regional Court rejected his appeal. As regards the lawfulness of that particular court order, the aforementioned decision shall be considered as the final domestic decision for the purpose of the six-months time limit laid down by Article 35 § 1 of the Convention. This application, introduced on 18 May 2001, is therefore belated.", "59. It follows that this complaint is inadmissible for non-compliance with the six-month rule set out in Article 35 § 1 of the Convention, and must be rejected pursuant to Article 35 § 4. II. ALLEGED VIOLATIONS OF ARTICLE 5 § 3 OF THE CONVENTION 60. The applicant complained that his detention on remand from 22 December 1999 to 4 April 2003 was unreasonably long.", "He also complained about the refusal of the Latvian courts to consider the time he had spent in custody in the United States as a part of his detention on remand in Latvia. He invoked Article 5 § 3 of the Convention, which reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. The non-inclusion of the time spent by the applicant in custody in the United States in the total term of his pre-trial detention Admissibility 61. As to the complaint regarding the time spent in custody in the United States, the Government stated that the applicant had not observed the six-month time limit.", "They reiterate that on 6 March 2000 the Riga Regional Court rejected the applicant’s appeal against the refusal of the Latgale District Court to count this time as a part of the overall time of his pre-trial detention. According to the Government, the six-month time limit started to run on this date; the applicant introduced his application only on 18 May 2001; therefore, the applicant’s complaint is submitted out of time. The applicant disagreed. 62. The Court notes at the outset that the decision of 6 March 2000 was not the last to be taken on this particular issue.", "Namely, on 19 March 2001, the applicant again requested a separate hearing on the question whether the time he had spent in custody in the United States had to be counted as a part of his pre-trial detention in Latvia. This request was rejected by the court on 26 March 2001. The applicant appealed, and his appeal was examined and rejected by the Criminal Chamber of the Supreme Court on 28 May 2001, that is to say after the submission of the applicant’s complaint to the Court. The Court therefore cannot but dismiss the Government’s objection. 63.", "However, as to the substantive aspect of this complaint, the Court notes that no provision of the Code of Criminal Procedure applicable at the material time provided for the inclusion of the time served abroad in the pre-trial detention or custody in the overall length of detention on remand. On the contrary, the new paragraph 3 of Article 23-5 of this code, added on 9 December 1999 – that is to say before the applicant’s extradition to Latvia – expressly excluded such possibility. The Court further considers that, in principle, neither Article 5 § 3 nor any other provision of the Convention creates a general obligation for a State party to take into account the length of a pre-trial detention suffered in a third State. 64. It follows that this complaint is partly manifestly ill-founded and partly incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a), and must be declared inadmissible in accordance with Article 35 § 4.", "B. Length of the applicant’s pre-trial detention 1. Admissibility 65. The Government raised a preliminary objection based on the alleged non-exhaustion of domestic remedies by the applicant. In this respect, they stated, first, that the applicant had failed to file an appeal against the court decision committing him for trial, according to Article 237, paragraph 3, of the Code of Criminal Procedure.", "Second, they considered that the applicant could have filed a claim for damages according to the general rule of Article 92 of the Latvian Constitution. 66. The applicant did not comment on this particular issue. 67. The Court reiterates that it has, on numerous occasions, examined and rejected a strictly identical objection from the Latvian Government, finding that none of the remedies invoked by the latter was effective for the purpose of Article 35 § 1 of the Convention (see, e.g., Kornakovs v. Latvia, no.", "61005/00, § 84, 15 June 2006, Moisejevs v. Latvia, no. 64846/01, § 87, 15 June 2006, Vogins v. Latvia, no. 3992/02, § 32, 1 February 2007, Čistiakov v. Latvia, no. 67275/01, § 46-51, 8 February 2007, and Birznieks v. Latvia, no. 65025/01, § 88, 31 May 2011).", "The Court cannot but reach the same conclusion in the present case. It therefore dismisses the Government’s objections for the same reasons as stated in the abovementioned judgments. 68. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. 2. Merits 69. The Government considers that the grounds justifying the applicant’s continued detention were both relevant and sufficient, and therefore complied with Article 5 § 3 of the Convention. They especially insist that, since the applicant had already absconded from trial, the national authorities had a strong and reasonable basis to hold a view that the applicant might abscond again or hinder the establishment of truth in the case.", "The applicant disagrees. 70. The Court notes that the applicant’s pre-trial detention, for the purpose of Article 5 § 3, lasted from 20 December 1999, when he was surrendered to the Latvian authorities, brought to Riga and placed in prison, until 4 April 2003, when he was found guilty and sentenced by the Riga Regional Court. Therefore, the applicant spent 3 years, 3 months and 15 days in detention on remand. The Court considers such a length to be, in itself, sufficient to raise a serious issue under Article 5 § 3 of the Convention.", "71. The Court reiterates at the outset that in a number of Latvian cases that concerned the corresponding period of time it found a violation of Article 5 § 3 of the Convention because of the extremely basic and summary motivation of court orders and decisions extending the applicant’s pre-trial detention (see the judgments cited above, namely Svipsta, §§ 108-113, Estrikh, §§ 122-127, Vogins, § 41, Birznieks, § 109, as well as Lavents v. Latvia, no. 58442/00, § 72-76, 28 November 2002, and Freimanis and Līdums v. Latvia, nos. 73443/01 and 74860/01, §§ 92-97, 9 February 2006, and Gasiņš v. Latvia, no. 69458/01, § 64, 19 April 2011).", "Moreover, the Court expressly noted 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” (Estrikh, cited above, § 127). 72. As in all the numerous Latvian cases cited above, in the present case the Court points out the extremely short and uniform motivation of all the court orders and decisions extending the applicant’s pre-trial detention or rejecting his appeals against these extensions. In fact, exactly like in most of those cases, the Latvian courts have simply recounted the grounds for detention provided by law, and did not provide detailed explanation as to how those grounds were relevant to the applicant’s individual case. The Court admits, however, that in the specific circumstances of the case particular weight could be legitimately given to the fact that the applicant had already absconded from justice and tried to hide abroad.", "Therefore the Court does not exclude that this fact, together with the seriousness of the alleged crime and the fact that the applicant had no fixed residence in Latvia, could provide a valid ground for keeping him in detention (see, mutatis mutandis, Shannon v. Latvia, no. 32214/03, §§ 64-68, 24 November 2009). On the other hand, even such special circumstances did not exonerate the State authorities from their obligation of diligence in trying the applicant within a reasonable time, as Article 5 § 3 provides. In the present case, in order to comply with this provision, the Latvian authorities should have provided some additional compelling reasons justifying the applicant’s detention for such a long period of time. This was not done; on the contrary, over three years and three months, the courts continued to simply recount the grounds for detention as they are provided by law.", "In the Court’s view this was certainly not sufficient for the purposes of Article 5 § 3 (Gasiņš¸ cited above, § 64, and Birznieks, cited above, § 109). 73. In the light of the above, the Court concludes that there has been a violation of Article 5 § 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 74.", "The applicant complained that the judicial review of his pre-trial detention did not comply with the requirements 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. Admissibility 75. 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 76. The Government maintains that all the requirements of Article 5 § 4 were observed on the applicant’s case. The applicant disagrees. 77. The Court notes, once again, that the applicant’s pre-trial detention lasted from 20 December 1999 until 4 April 2003, when he was found guilty and sentenced by the Riga Regional Court.", "In the meantime, on 28 February 2001 the competent judge of the Riga Regional Court took a decision to commit the applicant for trial. In this respect, the Court reiterates that it has already found, on previous occasions, that the system of appeals that existed in the Latvian legal system at the material time was, as such, manifestly insufficient to satisfy the requirements of Article 5 § 4 (Svipsta, cited above, §§ 141-143). The Court sees no reason to find otherwise in the present case. 78. Therefore the Court concludes that there has been a violation of Article 5 § 4 of the Convention in respect of the period between 28 February 2001 and 4 April 2003, and that it is no need to examine whether this Article was breached in respect of the preceding period of time, between 20 December 1999 and 27 February 2001 (Birznieks, cited above, 115-116).", "IV. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION 79. The applicant alleges two violations of Article 6 § 1 of the Convention. First, he alleges that his right to a fair trial was breached in that the Latvian authorities did not properly obtain a consent from the United States authorities to put him on trial for murder. Second, he complains about the length of proceedings that, according to him, were unreasonably long.", "Insofar as it is pertinent in the present case, Article 6 § 1 reads as follows: “In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time...” A. The alleged lack of consent from the U.S. authorities Admissibility 80. The Government considers that the consent from the U.S. authorities had been properly obtained. They point out that on 17 December 1999 the acting Secretary of State of the United States issued a written document approving the applicant’s deportation to Latvia on the charge of aggravated murder. The applicant argues that this approval was not sufficient.", "81. The Court notes at the outset that according to Article IV of the Treaty of Extradition between Latvia and the United States, in force at the material time, “[n]o person sh[ould] be tried for any crime or offense other than that for which he was surrendered.” Article 487 of the Code of Criminal Procedure, added on 20 June 2002, contained a similar provision. In line with these provisions, on 14 February and on 4 May 2000 respectively, the Latvian authorities decided to drop the charges against the applicant regarding intentional destruction of property, illegal possession of a gas pistol and contraband, because there was no consent from the authorities of the extraditing State (i.e., the United States) to try him for these offenses. 82. As to the murder charges, the Court points out that on 17 December 1999 the acting Secretary of State of the United States expressly approved the applicant’s deportation to Latvia on the charge of aggravated murder.", "The Court observes that all three levels of Latvian jurisdiction examined this issue and found this approval to be sufficient to put the applicant on trial. The Court itself does not find this conclusion unreasonable; in this respect, it reiterates that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of national legislation (see, among many other authorities, Perez v. France [GC], no. 47287/99, § 82, ECHR 2004‑I). 83. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "B. The length of proceedings 1. Admissibility 84. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. 2. Merits 85. The Government are of the opinion that the length of proceedings in the present case was not unreasonable. The applicant maintains that his right to be tried in a reasonable time was violated.", "86. The Court first notes that the period to be taken into consideration began only on 27 June 1997, when the Convention entered into force in respect to Latvia. 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. In the present case the proceedings started on 23 November 1993, when the applicant was arrested as a suspect of murder. This means that on the date of 27 June 1997, the proceedings have already lasted three years and seven months.", "However, in the particular circumstances of this case, the Court considers that it must take into account the fact that in July 1994 the applicant broke the terms of the preventive measure applied to him and fled abroad. Subsequently, until his extradition on 20 December 1999 he was outside Latvia’s jurisdiction. The decision of the applicant to abscond and the extradition proceedings in the United States cannot be imputed to Latvian authorities. Therefore, taking into account the particular circumstances of the present case, the Court considers that the period in respect of which it should examine the compliance with the reasonable time requirement started on 20 December 1999 and ended on 3 September 2004, when the Senate of the Supreme Court declared his cassation appeal inadmissible for lack of arguable points of law. It thus lasted slightly more than four years and eight months for pre-trial investigation and three levels of jurisdiction.", "87. 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). Taking into account all the relevant factual and legal elements of the present case, namely the complexity of the case, the applicant’s conduct and the overall speed with which the authorities handled the case after the applicant’s return, the Court considers that the reasonable time requirement has not been breached. 88.", "There has accordingly been no violation of Article 6 § 1 of the Convention. V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 89. Lastly, the applicant alleged violations under several other articles of the Convention. 90. 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 the remainder of the application does not disclose any appearance of a violation of any of the above Articles of the Convention.", "It follows that these complaints are inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 91. 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 92. The applicant claimed 195,000 euros (EUR) in respect of pecuniary damage corresponding, according to him, to his clothing and food expenses during his detention on remand and imprisonment.", "He also claimed an equal sum, i.e., EUR 195,000, in respect of non-pecuniary damage. 93. The Government argued that there is no causal link between the alleged violations and the amount of pecuniary damage claimed by the applicant. As to the non-pecuniary damage, the Government asserted that finding of a violation of the Convention would amount to a sufficient just satisfaction. 94.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, ruling in equity, it awards the applicant EUR 3,000 in respect of non-pecuniary damage. B. Costs and expenses 95. The applicant also claimed 20,000 United States dollars (USD) for the legal costs and expenses incurred during the extradition proceedings in the U.S., and 6,000 Latvian lati (LVL) for the costs and expenses incurred before the Latvian courts.", "96. The Government invites the Court to reject these claims. 97. First and foremost, the Court reiterates that costs and expenses are only recoverable in so far as they relate to the violation found (see, among many other authorities, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI; Beyeler v. Italy (just satisfaction) [GC], no.", "33202/96, § 27, 28 May 2002; and Svipsta, cited above, § 170). In the present case, it sees no connection whatsoever between, on the one hand, the violations of the applicant’s Convention rights by Latvian authorities and, on the other hand, expenses incurred in extradition proceedings one State which is not a party to the Convention. 98. As to the costs claimed in respect of proceedings before the Latvian courts, the Court reiterates that to be entitled to an award for costs and expenses under Article 41 of the Convention, the injured party must have actually and necessarily incurred them. In particular, Rule 60 § 2 of the Rules of Court states that itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part.", "99. In the present case the Court observes that the applicant’s claim for reimbursement of costs and expenses manifestly fails to satisfy these requirements, since the applicant has only submitted a very general calculation of the sum, which does not make it possible to ascertain the precise nature of the services rendered and whether they were objectively necessary in the proceedings before the domestic courts. The Court therefore rejects the applicant’s claims under this head. C. Default interest 100. 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 5 § 3 of the Convention concerning the length of the applicant’s pre-trial detention, the complaint under Article 5 § 4 and the complaint under Article 6 § 1 concerning the length of criminal proceedings 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 in respect of the period between 28 February 2001 and 4 April 2003, and that there is no need to examine whether this Article was breached in respect of the period between 20 December 1999 and 27 February 2001; 4. Holds that there has been no violation of Article 6 § 1 of the Convention; 5.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Latvian lati at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 20 December 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident" ]
[ "SECOND SECTION CASE OF VIERU v. THE REPUBLIC OF MOLDOVA (Application no. 25763/10) JUDGMENT STRASBOURG 18 June 2019 This judgment is final but it may be subject to editorial revision. In the case of Vieru v. the Republic of Moldova, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Egidijus Kūris, President,Valeriu Griţco,Darian Pavli, judges,and Hasan Bakırcı, Deputy 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. 25763/10) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mr Igor Vieru (“the applicant”), on 21 April 2010.", "2. The applicant was represented by Mr R. Zadoinov, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent ad interim at the time, Ms Ruxanda Revencu. 3. The applicant alleged, in particular, that his rights guaranteed under Article 6 § 1 of the Convention had been breached as a result of the abusive quashing of a final judicial decision issued in his favour.", "4. On 30 May 2016 notice of the complaint concerning Article 6 § 1 of the Convention was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1971 and lives in Chişinău.", "6. In 2007 criminal proceedings were initiated in respect of the applicant on charges of unlawful appropriation of property. On 25 April 2008 the prosecutor discontinued the proceedings in respect of the applicant for lack of evidence. A civil party, G., appealed against that decision. 7.", "On 26 June 2009 the Centru District investigating judge dismissed G.’s appeal and upheld the prosecutor’s decision of 25 April 2008. That decision was final. 8. G. lodged an extraordinary appeal with the Supreme Court of Justice. On 26 January 2010 the Supreme Court of Justice allowed G.’s extraordinary appeal, quashed the decision of the investigating judge and remitted the case for a fresh examination to the investigating judge.", "The court argued that the investigation had not thoroughly examined G.’s complaints. II. RELEVANT DOMESTIC LAW 9. The relevant domestic law was summarised in Beșliu v. the Republic of Moldova (no. 28178/10, §§ 9-10, 9 July 2013).", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 10. The applicant complained that the annulment of the final judgment of 26 June 2009 had constituted a violation of his right to a fair trial. He relied on Article 6 § 1 of the Convention, the relevant part of which provides: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal...” A. Admissibility 11. 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 12. The Government maintained that the quashing of the final judgment had been carried out in order to ensure the guarantees of a fair trial to the victim.", "13. The Court reiterates that legal certainty presupposes respect for the principle of res judicata, that is the principle of the finality of judgments. This principle underlines that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Higher courts’ power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination. The review should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination.", "A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character (Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003‑IX, and Roşca v. the Republic of Moldova, no 6267/02, § 25, 22 March 2005). 14. The Court has held that decisions to revise final judgments must be in accordance with the relevant statutory criteria; and the misuse of such a procedure may well be contrary to the Convention. The Court’s task is to determine whether this procedure was applied in a manner which was compatible with Article 6 of the Convention, and thus ensured respect for the principle of legal certainty.", "In doing so, the Court must bear in mind that it is in the first place the responsibility of national courts to interpret provisions of national law (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999-I). 15. Turning to the circumstances of the present case, the Court notes that the applicant had a final judgment in his favour dated 26 June 2009. That judgment was quashed by the Supreme Court when it allowed an extraordinary appeal lodged by the victim.", "The Court notes that the reason relied upon to justify the quashing of the judgment of 27 June 2009 was its alleged unlawfulness. Nevertheless, no explanation was given by the Supreme Court judges, who limited themselves to giving a new assessment of the findings of the first-instance court judge. In such circumstances, the Court considers that the review procedure in question was in fact an “appeal in disguise”, the purpose of which was to obtain a fresh examination of the case, rather than a genuine review procedure such as that provided for by the relevant provisions of the Code of Criminal Procedure. 16. The Court notes that the applicant in the present case was a party to the same proceedings as the applicant in Beșliu v. the Republic of Moldova (no.", "28178/10, 9 July 2013), where it found a violation of Article 6 § 1 on account of a misuse of review proceedings. In the present case, the Court finds no reasons to depart from its findings in the above-cited case. 17. In the light of the above, the Court considers that the State authorities failed to strike a fair balance between the interests of the applicant and the need to ensure the effectiveness of the criminal justice system. 18.", "There has, accordingly, been a violation of Article 6 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 19. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 20.", "The applicant claimed 6,000 euros (EUR) in respect of non‑pecuniary damage. 21. The Government contested the amount claimed by the applicant and argued that it was excessive. 22. Having regard to the violation found above, the Court considers that an award of compensation for non-pecuniary damage is justified in this case.", "Making its assessment on an equitable basis, the Court awards the applicant EUR 2,000. B. Costs and expenses 23. The applicant also claimed EUR 1,787.50 for the costs and expenses incurred before the Court. 24.", "The Government argued that the amount claimed was excessive. 25. Regard being had to the documents in its possession, the Court considers it reasonable to award the entire amount claimed for costs and expenses. C. Default interest 26. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,787.50 (one thousand seven hundred and eighty-seven euros and fifty cents), 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 claim for just satisfaction.", "Done in English, and notified in writing on 18 June 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan Bakırcı Egidijus KūrisDeputy RegistrarPresident" ]
[ "SECOND SECTION CASE OF MUCA v. ALBANIA (Application no. 57456/11) JUDGMENT STRASBOURG 22 May 2018 FINAL 22/08/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Muca v. Albania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Robert Spano, President,Paul Lemmens,Ledi Bianku,Işıl Karakaş,Nebojša Vučinić,Jon Fridrik Kjølbro,Stéphanie Mourou-Vikström, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 17 April 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "57456/11) 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 an Albanian national, Mr Blerim Muca (“the applicant”), on 25 August 2011. 2. The applicant was represented by Mr V. Muzina, a lawyer practising in Durrës. The Albanian Government (“the Government”) were represented by their then Agent, Ms L. Mandia of the State Advocate’s Office. 3.", "On 25 August 2011 the applicant sent an application to the Court, alleging that there had been a violation of Article 6 § 1 of the Convention. It reached the Court on 31 August 2011. 4. On 21 November 2011 the applicant sent another application to the Court similar to the one already submitted in August 2011. It reached the Court on 24 November 2011.", "5. On 26 June 2012 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1970 and lives in Tirana.", "7. On an unspecified date criminal proceedings were brought against the applicant and two other co-accused on account of premeditated murder. The applicant was subsequently arrested by the authorities. 8. On 21 July 1998 the applicant addressed a letter (kërkesë) to the Kavaja District Court (“the District Court”) and the Kavaja district prosecutor (“the district prosecutor”), stating that he had engaged A., a lawyer, to represent him before the district prosecutor during the investigation and during the trial proceedings.", "It appears that the applicant wrote this letter while he was in detention. 9. On 1 November 1999 the District Court found the applicant not guilty and ordered his release. He had attended the trial and had been defended by A., his chosen lawyer. The two other co-accused were convicted and sentenced.", "10. On an unspecified date the two other co-accused and the prosecutor appealed against the District Court’s decision of 1 November 1999. 11. On an unspecified date the applicant left Albania. It appears that the applicant was not informed of the appeals of the two other co-accused and the prosecutor, but apparently A. was so informed.", "12. On 28 February 2000 the Durrës Court of Appeal (“the Court of Appeal”) quashed the District Court’s decision and remitted the case for re‑examination. The applicant was represented by A. in his absence. 13. On 21 April 2000 the Supreme Court rejected the applicant’s appeal lodged by A. against the Durrës Court of Appeal decision of 28 February 2000.", "14. On 26 December 2000, during the retrial proceedings, the District Court convicted the applicant in absentia of premeditated murder and sentenced him to twenty-three years’ imprisonment. The applicant was represented by lawyer A. (see paragraph 9), the decision stating that A. had been appointed by the court. The two other co-accused appealed.", "15. On 10 September 2001 and 14 December 2001 the Court of Appeal and the Supreme Court, respectively, upheld the decision of 26 December 2000. The applicant had been represented in those proceedings by a new, court-appointed lawyer. 16. On 14 April 2004 the applicant’s mother hired another lawyer, K., to make an application for review.", "It appears from the Supreme Court’s decision of 9 July 2010 (see paragraph 18 below) and the Constitutional Court’s decision of 25 February 2011 (see paragraph 21 below) that an application for review was rejected by the Supreme Court. There is no copy of the said Supreme Court decision in the case file. 17. On 8 July 2005 the applicant was informed of his conviction in absentia by his family members. He lodged an application for leave to appeal out of time against the decision of 26 December 2000, arguing that he had never been informed of his conviction in absentia as he had been living abroad.", "The applicant was represented by K. as his counsel. 18. On 4 November 2005, 29 September 2006 and 9 July 2010 respectively, the District Court and the Court of Appeal dismissed, and the Supreme Court rejected, his application. The domestic courts held that the applicant should have known of the proceedings as he had been represented by a lawyer of his own choosing, A., who had been informed of the prosecutor’s appeal, and as his mother had appointed a lawyer to make an application for review. They also held that the case had already been examined at all instances and that their decisions were still in effect.", "19. Judge A.H., who had been a member of the District Court’s bench that had delivered the judgment of 26 December 2000, also sat in the District Court’s bench of 4 November 2005 that dismissed the applicant’s application. Judges V.C. and Sh.M., who had been members of the Court of Appeal’s bench that on 10 September 2001 had upheld the decision of 26 December 2000, also sat in the Court of Appeal’s bench that dismissed his appeal on 29 September 2006. 20.", "On an unspecified date the applicant, represented by his lawyer, lodged a constitutional complaint in respect of the alleged unfairness of the proceedings in absentia and the lack of impartiality of the District Court and the Court of Appeal. 21. On 16 March 2011 the applicant’s lawyer was informed of the Constitutional Court’s decision of 25 February 2011 to dismiss the applicant’s constitutional appeal. The Constitutional Court, noting that A. and the applicant’s mother had had knowledge of the trial proceedings, stated that there had been no exceptional circumstances which had prevented the applicant from attending the proceedings in person. It did not examine the applicant’s claim about the impartiality of the District Court and the Court of Appeal II.", "RELEVANT DOMESTIC LAW AND PRACTICE 22. The relevant domestic law and practice at the material time are described in detail in the judgments of Shkalla v. Albania (no. 26866/05, §§ 28-35, 10 May 2011) and Izet Haxhia v. Albania (no. 34783/06, §§ 19‑42, 5 November 2013). THE LAW I.", "ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION 23. The applicant complained of the unfairness of the proceedings in absentia and of the lack of impartiality of the judges who took part in the examination of his case after having been involved in the first round of proceedings. He relied on Article 6 § 1 of the Convention, which reads, in its relevant parts, as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...” 24. The Government denied that there had been any violation of this provision.", "A. Admissibility 25. The Government argued that the application had been submitted outside the six-month time-limit provided for in the Convention, the applicant having lodged the application on 24 November 2011. 26. The applicant maintained that the application had been introduced within the six-month time-limit. 27.", "The Court notes that the applicant sent the application form on 25 August 2011 and it reached the Court by post on 31 August 2011. On the basis of the material before it, the Court sees no reason to find that the application was sent out of time. The second application form sent on 21 November 2011 was an additional document which does not affect the initial application. The Court therefore rejects the Government’s objection. 28.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "Proceedings in absentia 29. The applicant submitted that he had left Albania after the District Court had acquitted him by its decision of 1 November 1999. He had not been aware of the proceedings against him. The authorities had therefore tried and convicted him in absentia. He further stated that his mother’s knowledge of those proceedings had not made the proceedings fair as long as he had not been aware of them.", "He also disputed the fact that his family members had lodged an application for review (see paragraphs 16, 18 and 21 above). The domestic courts had not taken into consideration the Constitutional Court’s decision no. 30 of 17 June 2010 (see Izet Haxhia, cited above, § 35). 30. The Government accepted that the applicant had been tried and convicted in absentia.", "However, they argued that the domestic proceedings had not been unfair. The applicant had been represented by a lawyer of his own choosing. He had been present in the proceedings before the District Court, which had declared him not guilty on 1 November 1999. His lawyer, A., had been informed of the appeal lodged against that decision. A. had also been present in the proceedings before the Court of Appeal, which on 28 February 2000 had remitted the case for re-examination.", "A. had also appealed against the Court of Appeal’s decision of 28 February 2000 to the Supreme Court. 31. The Government also submitted that the applicant’s family members had had knowledge of the proceedings. They had regularly been present at the court proceedings or had duly engaged lawyers to represent the applicant. Indeed, his mother had hired a lawyer to make the application for review of the final decision on behalf of the applicant.", "Furthermore, the engagement of the same lawyer – K. – had shown that the applicant’s will had been the same as his mother’s. 32. In their additional submissions the Government submitted that the applicant had consented to being tried in absentia as he had been aware of the trial against him. The District Court’s decision of 1 November 1999 had not been final and had therefore been amenable to appeal. The applicant’s application for leave to appeal out of time had been dismissed on the grounds that nothing had prevented him from participating in the proceedings.", "33. The Court notes that the general principles as regards proceedings in absentia have been set out in Sejdovic v. Italy ([GC], no. 56581/00, §§ 81‑95, ECHR 2006‑II). The Court further notes that although proceedings that take place in the accused’s absence are not of themselves incompatible with Article 6 of the Convention, a denial of justice nevertheless undoubtedly occurs where a person convicted in absentia is unable subsequently to obtain from the court which has heard his case a fresh determination of the merits of the charge, in respect of both law and fact, where it has not been established that he or she has waived his or her right to appear and to defend him or herself (see Sejdovic, cited above, § 82, and Hokkeling v. the Netherlands, no. 30749/12, § 58, 14 February 2017).", "34. Turning to the present case, the Court notes that the applicant had been present and had been assisted by a lawyer of his own choosing at the first-instance proceedings (contrast Shkalla, cited above, in which the applicant had not been informed of the proceedings at all), at the end of which the trial court declared him not guilty and ordered his release. Upon release, the applicant went abroad. However, following the appeals of the other co-accused and the prosecutor, the applicant was convicted in absentia. The Court notes in this regard that even though his chosen lawyer continued to represent him on appeal, it cannot be inferred that the lawyer was acting on the applicant’s explicit instructions.", "In fact, in the retrial proceedings, the same lawyer continued to represent the applicant after having been appointed by the court (compare and contrast Medenica v. Switzerland, no. 20491/92, ECHR 2001‑VI). Another court‑appointed lawyer represented the applicant in the subsequent retrial proceedings. The Government did not submit any proof to the contrary. 35.", "Lastly, the Court notes from the documents in the case file that it cannot be said that the appointment of a lawyer by family members in order to make an application for review met with the applicant’s approval or had his consent. It cannot be inferred from the fact that the applicant was defended by counsel appointed by his mother that he had prior effective knowledge of the appeal and retrial proceedings. 36. For all the above considerations, the Court finds that it has not been shown that the applicant had sufficient knowledge of the appeal proceedings or that he had sufficient knowledge of the retrial proceedings against him. Further, there is no indication in the case file that the authorities undertook any effort to notify him.", "Nor has it been shown that he explicitly or implicitly authorised his family members’ subsequent actions or the appointed lawyer’s actions or unequivocally waived his right to appear in court by deliberately evading justice. The Court further notes that the applicant unsuccessfully lodged an application for leave to appeal out of time (see Shkalla, cited above § 75, and Izet Haxhia, cited above, § 63), therefore that remedy turned out to be ineffective. 37. In the light of the foregoing, the Court finds that the applicant did not have the opportunity to obtain a fresh determination of the merits of the charges against him by a court which would have allowed him to put forward his case in proceedings compliant with the fairness guarantees of Article 6. 38.", "There has therefore been a violation of Article 6 of the Convention. 2. Impartiality of the District Court and the Court of Appeal 39. The applicant also complained, under Article 6 § 1, of the lack of impartiality of the benches of the District Court in the proceedings of 4 November 2005 and of the Court of Appeal in the proceedings of 29 September 2006. 40.", "The Court reiterates that the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test where regard must be had to the personal conviction and behaviour of a particular judge, that is to say whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see Micallef v. Malta [GC], no. 17056/06, § 93, ECHR 2009). 41. Turning to the present case, the Court notes that the benches of the District Court of 26 December 2000 and of the Court of Appeal of 10 September 2001 examined the applicant’s case on the merits and convicted him in absentia. The Court further notes that some members of those benches (Judges A.H., V.C.", "and Sh.M.) also sat on the benches of the District Court in the proceedings of 4 November 2005 and of the Court of Appeal in the proceedings of 29 September 2006, which examined the applicant’s application for leave to appeal out of time. 42. As to the subjective test, the Court notes that the applicant did not dispute the personal impartiality of Judges A. H., V.C. and Sh.M.", "43. Under the objective test, it must be determined whether, quite apart from the judges’ personal conduct, there are ascertainable facts which may raise doubts as to their impartiality. The Court notes that the bench of the District Court in the proceedings of 4 November 2005 and of the Court of Appeal in the proceedings of 29 September 2006 did not examine the case on the merits of the conviction. They also did not reach any conclusion as to the applicant’s guilt (see Fey v. Austria, 24 February 1993, § 34, Series A no. 255‑A).", "44. In the light of the foregoing, even assuming that Article 6 applies to the leave to appeal proceedings, the Court does not find that such fears as the applicant may have had as to the impartiality of the District Court’s bench of 4 November 2005 and the Court of Appeal’s bench of 29 September 2006 can be held to have been objectively justified. Accordingly, it follows that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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 15,000 euros (EUR) in respect of pecuniary damage and EUR 50,000 in respect of non-pecuniary damage. 47. The Government submitted that the applicant’s claims were ill‑founded.", "48. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 49. With regard to the claims in respect of non-pecuniary damage, the Court reiterates its findings in Shkalla (cited above, §§ 77-79), and Izet Haxhia (cited above, § 70) that when an applicant has been convicted in breach of her or his rights as guaranteed by Article 6 of the Convention, the most appropriate form of redress would be to ensure that the applicant is put as far as possible in the position in which she or he would have been had this provision been respected. The most appropriate form of redress would, in principle, be a new trial or the reopening of the proceedings if requested.", "The Court, therefore, concludes that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. B. Costs and expenses 50. The applicant also claimed EUR 20,000 for the costs and expenses incurred. He did not submit supporting documents.", "51. The Government rejected the applicant’s claims. 52. According to Rule 60 of the Rules of Court, 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, no. 32907/07, § 72, 29 September 2009).", "In the absence of any supporting documents submitted by the applicant, the Court rejects the claim in respect of costs and expenses. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint concerning the unfairness of the proceedings in absentia admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant; 4.", "Dismisses the applicant’s claim for just satisfaction. Done in English, and notified in writing on 22 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithRobert SpanoRegistrarPresident" ]
[ "THIRD SECTION CASE OF YÜKSEL ERDOĞAN AND OTHERS v. TURKEY (Application no. 57049/00) 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 Yüksel Erdoğan and Others v. Turkey, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrB.M. Zupančič, President,MrJ.", "Hedigan,MrR. Türmen,MrsA. Gyulumyan,MrE. Myjer,MrsI. Ziemele,MrsI.", "Berro-Lefèvre, judges,and Mr S. Quesada, 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. 57049/00) 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 nine Turkish nationals, Mr Yüksel Erdoğan, Mrs Meliha Erdoğan, Mr Sinan Erdoğan, Mrs Bahar Sağlam, Mr Şinasi Yalçın, Mr Hüsnü Yalçın, Mr Ali Yalçın, Mr Ramazan Erdoğan and Mrs Raşidiye Erdoğan (“the applicants”), on 25 February 2000. 2. The applicants were represented by Mr B. Aşçı, Mr M. Narin and Mrs A.N.", "Çelik, Mr M. Köylüoğlu, Mr C. Yücel and Mr H.İ. Türkyılmaz, lawyers practising in Istanbul. The Turkish Government did not designate an Agent for the purposes of the proceedings before the Court. 3. The applicants alleged under Article 2 of the Convention that their relatives, Fuat Erdoğan, Elmas Yalçın and İsmet Erdoğan, had been unlawfully killed by the security forces and that the authorities had failed to conduct an effective investigation into the circumstances of the case.", "They further maintained under Article 6 of the Convention that the criminal proceedings brought against the police officers had not been concluded within a “reasonable time”. 4. On 11 March 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 5.", "On 2 May 2005 the Registry requested the applicants' representatives to submit a power of attorney signed by two of the applicants, namely Mr Ramazan Erdoğan and Mrs Raşidiye Erdoğan by 13 May 2005. 6. On 16 May 2005 one of the applicants' representatives requested an extension of one month of the time allowed for submission of the power of attorney on the ground that these applicants lived in another city. On 7 June 2005 the Registry informed the applicants' representatives that the President of the Chamber had agreed to grant the extension requested. The applicants' representatives were also warned that the case might be struck out of the list for lack of interest.", "In a letter dated 29 September 2006 the applicants' representatives were once again warned that the case might be struck out of the list for lack of interest. 7. No response was received by the Court to the letters of 16 May and 29 September 2006. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8.", "The applicants' dates of birth and their relationship to the three persons who were killed are described as follows: Yüksel Erdoğan (1943) and Meliha Erdoğan (1942) are the parents and Sinan Erdoğan (1962) and Bahar Sağlam (1970) are the siblings of the late İsmet Erdoğan. Şinasi Yalçın (1970), Hüsnü Yalçın (1952) and Ali Yalçın (1954) are the brothers of the late Elmas Yalçın. Ramazan Erdoğan and Raşidiye Erdoğan are the parents of the late Fuat Erdoğan. A. The killing of İsmet Erdoğan, Elmas Yalçın and Fuat Erdoğan and the subsequent investigation into the circumstances of their death 9.", "On 28 September 1994 Fuat Erdoğan, Elmas Yalçın and İsmet Erdoğan were killed in the Arzum café in Beşiktaş, a central district in Istanbul, by police officers from the Anti-Terror Branch of the Istanbul Security Directorate. According to a report (ihbar tutanağı) drafted by two police officers on the same date at 3.45 pm, the Security Directorate received an anonymous phone call on the Security Directorate's internal telephone number 139. The caller informed the police that he had seen two men and a woman in Beşiktaş and that one of the men had given a weapon to the woman. He also told the police officer that these three persons were in the Arzum café. 10.", "On the same day, an arrest report (olaylı yakalama ve zaptetme tutanağı) was drawn up by eight police officers from the Anti-Terror Branch of the Istanbul Security Directorate. According to this report, after having received the anonymous phone call, the police officers arrived at the Arzum café. They told the suspects, who were on the second floor of the café, that they were police officers and requested them to submit their identity cards. The suspects started shouting and opened fire. The officers then ordered the suspects to surrender and responded to their firing in order to protect themselves.", "When they realised that there was no more gunfire coming from the suspects they stopped the fire. They then saw that the three suspects were dead and informed the public prosecutor. The identity cards found on the deceased bore different names to those of the applicants' relatives. Furthermore, two firearms, three chargers, six cartridges of 7,65 mm calibre, five empty cartridges of 7,65 mm calibre, twenty empty cartridges of 9 mm calibre and five bullets were found next to two of the corpses. The police officers also found some documents on one of the male corpses.", "11. On the same day, at 8.10 pm, the Istanbul public prosecutor drew up a report, according to which he arrived at the scene of the incident after having received a phone call from the central police station at 5.10 pm. He maintained in the report that a medical doctor from the Forensic Medicine Institute had been invited to examine the corpses. The medical doctor arrived at the scene of the incident at 7.10 pm and examined the corpses, which were then sent to the morgue of the Forensic Medicine Institute. According to the report, the police officers from the Technical Office of the Istanbul Security Directorate took the fingerprints of the deceased in order to determine their identity.", "The public prosecutor further ordered that the bullets, cartridges and the two firearms that had been found next to the corpses be handed over to the police officers from the Technical Office of the Istanbul Security Directorate. However, they were given to A.B., one of the police officers who had been involved in the police operation in question. 12. On the same day, two police officers took statements from N.A., C.A. and S.A., three persons who ran the Arzum café.", "N.A. confirmed the arrival of the deceased at the café, but that when the police officers arrived 15 to 20 minutes later, she had not been inside the café. She contended that she had heard the police officers ordering the suspects to surrender and then heard the shooting. N.A. further contended that she had subsequently learned that the suspects had been terrorists and killed in the café during the armed clash.", "N.A. finally stated that she did not know the deceased. 13. C.A. and S.A. contended that when the police officers arrived they ordered the suspects to surrender.", "They maintained that they had left the café when the police officers asked them and their clients to leave. While they were leaving they heard gunfire. They contended that they had subsequently learned that the deceased had been terrorists and had died as a result of the armed clash. 14. On 29 September 1994 autopsies were carried out on the deceased.", "The autopsy reports were drafted on 20 October 1994. 15. According to the report concerning Fuat Erdoğan, he had received two bullets to his head and three bullets to other parts of his body. Two bullet entry wounds were observed on the right and left temples. The other three bullets entered in the body from the upper parts of the left and right femur and below the left scapula.", "The bullet exit wounds were observed next to the xiphoid[1], above the scrotum and next to the pubic bone. The cause of his death was stated as fracture of the skull, internal bleeding and cerebral haemorrhage. The experts further noted that a paraffin test, which was to be conducted to detect gunpowder in the hands of the deceased, could not be carried out as there was ink on both of his hands due to the taking of fingerprints by police officers at the scene of the incident. 16. The report concerning İsmet Erdoğan revealed that he had received two bullets to his body.", "The bullet entry wounds were seen on the right of the parietal bone and on the scapular line on the back. One bullet exit wound was observed on the left ear. The report concluded that his death resulted from fracture of the skull, cerebral haemorrhage and damage to the cerebral tissue. 17. According to the report regarding Elmas Yalçın, she had received one bullet to her head and one to her abdomen.", "The bullet entry wounds were seen on the right of the parietal bone and the right of the abdomen. The bullet exit wounds were observed in the middle of her lower lip and on the right gluteus. The cause of her death was also determined as fracture of the skull, cerebral haemorrhage and damage to the cerebral tissue. The experts further noted that there was ink on both of her hands due to the taking of fingerprints by police officers at the scene of the incident. 18.", "According to the autopsy reports, all of the shots were fired at long range. 19. By a letter dated 30 September 1994 the director of the anti-terror branch sent a Browning firearm, an Unique firearm, two chargers, twenty empty cartridges of 9 mm calibre, five empty cartridges of 7,65 mm calibre, six cartridges, four bullets of 9 mm calibre and one bullet of 7,65 mm calibre to the Istanbul Regional Criminal Police Laboratory for a ballistic examination. The director stated in his letter that these items had been found near the corpses and belonged to the deceased. 20.", "On 5 October 1994 a ballistic examination of the two firearms, bullets and cartridges found at the scene of the incident was conducted by two experts from the Istanbul Regional Criminal Police Laboratory. According to the report drawn up by these experts, five empty cartridges and a bullet of 7,65 mm calibre were discharged from the two firearms that had been found in the vicinity of the corpses and the remaining twenty cartridges and four bullets of 9 mm calibre were discharged from the police officers' firearms. On the same day, the deputy director of the Criminal Police Laboratory informed the anti-terror branch that the firearms examined had not been previously used in committing any other offence. 21. On 6 October 1994 N.A., S.A. and C.A.", "made statements before the Istanbul public prosecutor. N.A. maintained that she had not been in the café at the time of the incident and that when she had been contacted on the phone, she had been told that there had been a clash between terrorists and police officers. When she arrived at the Arzum café the clash was already over and the suspects were dead. When the public prosecutor stressed that there had been a contradiction between her statements given before him and those given to the police, N.A.", "stated that she had not been in the café when the suspects arrived. She contended that while she was leaving the café, she heard some police officers giving orders to surrender. 22. S.A. and C.A. told the public prosecutor that N.A.", "had not been in the café when the suspects had arrived. They contended that they had been told to leave the café by plainclothes police officers. They then heard the police orders to surrender and went to the neighbouring shop. They stated that they had heard gunfire and had subsequently learned that the three suspects were dead. 23.", "On 18 October 1994 three experts from the Forensic Medicine Institute conducted an examination of the clothes of the deceased. The experts concluded that the shots were not fired at short range. They further considered that it was not possible to determine the exact range of the shootings. 24. On 1 November 1994 the director of the anti-terror branch of the Istanbul Security Directorate sent the tapes and the transcripts of two television programmes concerning the incident, during which journalists interviewed N.A., the owner of the Arzum café and an unidentified witness.", "N.A. maintained that she had been outside the café when the police officers arrived at the café, 10 or 15 minutes after the arrival of the deceased. She further contended that she had been told that the police officers had ordered the clients to surrender and that, as the latter had not accepted to surrender, the police officers had opened fire. The other eyewitness stated that the police officers had entered the café and asked the deceased to surrender. He further maintained that the suspects had opened fire first and that the police officers had responded by opening fire, which resulted in a clash.", "The eyewitness however contended that he had not been in the café at the time of the incident, but outside with other police officers. 25. On 4 November 1994 the Istanbul public prosecutor obtained statements from two police officers, R.A. and H.K. The officers maintained that there had been gunfire coming from the suspects and that they had responded to the fire in order to frighten the suspects and make them stop the firing. 26.", "On 21 November 1994 the public prosecutor obtained statements from Ş.K and A.B. who contended that the police officers had opened fire in order to frighten the suspects and that they had not had the intention to kill them. A.B. further maintained that police officers wearing bullet-proof vests had entered the café while he and some other police officers had been outside, as they had taken security measures around the café. B.", "Criminal proceedings against the police officers 27. On 22 November 1994 the Istanbul public prosecutor filed a bill of indictment with the Istanbul Assize Court against four police officers, Ş.K., M.K., R.A. and H.K., from the Anti-Terror Branch of the Istanbul Security Directorate. He issued a non-prosecution decision regarding B.A., another suspected police officer, since he had died. The charges were brought under Articles 450 § 5, 463, 281, 31, 33, 50 and 49 §§ 1 and 3 of the Criminal Code. The defendants were accused of manslaughter - without the actual offender being identified - during an armed clash between the deceased suspects and the security forces.", "28. On 29 November 1994 the Istanbul Assize Court held the first hearing. 1. Hearing of 9 February 1995 29. On 9 February 1995 one of the applicants, Yüksel Erdoğan, and Elmas Yalçın's father, Mustafa Yalçın intervened as a civil party (müdahil) to the criminal proceedings brought against the officers.", "On the same day, the first-instance court ordered the ballistic examination of the empty cartridges and decided that the defendants would not be detained on remand throughout the proceedings in accordance with Article 15 § 1 of the Prevention of Terrorism Act. The court further ordered that the firearms which had been given to A.B. be sent to the custody office (adliye emanet memurluğu) of the Istanbul Courts. 2. Hearings of 5 May and 6 July 1995 30.", "On 5 May 1995 the accused police officers made statements before the Istanbul Assize Court. They all maintained that when they had arrived at the Arzum café they had taken the two persons who ran the café outside. They then entered the café and told the suspects that they were police officers. The suspects however opened fire. The defendants further contended that there had been gunfire emanating from the suspects and that in order to frighten the latter and protect themselves, they responded to the gunfire.", "One of the defendants, Ş.K. maintained that he had not opened fire. The defendants all contended that they had not been wearing bullet-proof vests when they had entered the café. On the same day, two witnesses E.M. and N.Ç., police officers from the anti-terror Branch of the Istanbul Security Directorate, also made statements before the court. They contended that they had been outside the café.", "Therefore, they did not witness the clash but heard the accused police officers ordering the suspects to surrender. 31. During the hearing, the intervening parties' lawyers requested the court to ask the defendants certain questions concerning the trajectory of the bullets and the range of the shootings. The Istanbul Assize Court dismissed these requests holding that it was not necessary to have responses to these questions. 32.", "On the same day, the first-instance court ordered that the defendants' firearms be handed over for a ballistic examination. It further ordered that the bullets which had been found at the scene of the incident be subject to an examination with a view to determining which of these bullets and cartridges were discharged from the defendants' weapons. 33. At the end of the hearing of 6 July 1995 the first-instance court once again ordered that the defendants' firearms be sent for a ballistic examination. 3.", "Hearings of 30 October and 13 December 1995 and the subsequent developments 34. On 30 October 1995 the Istanbul Assize Court further heard four witnesses, A.B., police officer from the Anti-Terror Branch, N.A., C.A. and S.A., three persons who ran the Arzum café. A.B. maintained that he had not been inside the coffee shop and had not witnessed the incident, yet, he had heard the officers warning the suspects.", "He contended that as soon as the police officers entered the café, he had heard one gun shot and that he did not know whether it was the police officers or the suspects who had fired first. He further contended that he had signed the arrest report and that he could not remember the exact location of the firearms at the scene of the incident. A.B. finally maintained that he did not remember who had given the warnings to the deceased. N.A., the owner of the Arzum café, testified that she had not been in the café on the day of the incident and that she had been informed about the incident by her sister S.A. She further contended that the windows in the café had not been struck by the bullets.", "When the first-instance court reiterated her statement before the police and emphasised that there was a contradiction between the two statements, she maintained that she had taken tranquillizers before her statements had been taken by the police and that she had signed these statements without having read them. S.A. and C.A contended that they had been told by the police officers to go outside and that they had not witnessed the incident. C.A. maintained that she had heard the officers' warnings but as she had been in another shop she had not heard anything else. She contended that she did not remember how much time after hearing the officers the gunshots had started.", "S.A. witnessed that she had heard the officers' ordering the suspects to surrender. S.A. further contended that 2 to 3 seconds after hearing the officers speak, she heard gun shots which had lasted 2 to 3 minutes. She maintained that the glass of a cupboard, which had been on the ground floor, had been broken during the incident and that it could not have been broken by a bullet coming from the suspects unless the bullet ricocheted from the wall. S.A. finally stated that she did not have any information as to the position of the corpses on the second floor of the café as the police officers had not authorised her to go upstairs. 35.", "On the same day, the first-instance court once again ordered that the firearms of the defendants be handed over for ballistic examination following receipt of a letter from the Istanbul Security Directorate refusing to give these firearms on the ground that the defendants would not be secure without their weapons. 36. During the same hearing, the intervening parties requested the court to order the defendants' detention on remand since they failed to attend the hearings without a justification. The public prosecutor opined that the defendants should be requested to state their reasons for not attending the hearings. The defendants' lawyer requested that the defendants be exempted from attending the hearings.", "The Istanbul Assize Court accepted the latter's request on the ground that the defendants and the witnesses had already been heard. The court further held that an on-site inspection be conducted after receiving the ballistic examination report from the Forensic Medicine Institute. 37. On an unspecified date, the Istanbul Security Directorate sent to the Istanbul Assize Court six firearms which had been used by the accused police officers at the incident on 28 September 1994. 38.", "On 13 December 1995 the first-instance court decided to send the defendants' firearms as well as the bullets and the empty cartridges found at the scene of the incident and one bullet extracted from İsmet Erdoğan's body to the Forensic Medicine Institute for a ballistic examination with a view to determining which of these bullets and cartridges had been discharged from the defendants' weapons. 39. On 8 January 1996 experts from the Forensic Medicine Institute conducted an examination of the defendants' firearms, two 9 mm calibre bullets that were found at the scene of the incident and one 9 mm calibre bullet that had been extracted from İsmet Erdoğan's body. The experts concluded that neither of the 9 mm calibre bullets had been discharged from the police officers' firearms. 4.", "Hearing of 22 April 1996 and the subsequent developments 40. On 22 April 1996, the ballistic report was read out before the court. The intervening parties opined that the barrels or the firing pins of the firearms could have been changed and requested that the first-instance court ask for information as to whether there had been any such change. The intervening parties further requested that the empty cartridges also be sent to the Forensic Medicine Institute for examination and that a determination be made as to whether the three 9 mm calibre bullets matched the empty cartridges. They finally asked the court to hold an on-site inspection in the Arzum café as they had been informed that the café would be renovated.", "The public prosecutor agreed with the intervening parties. 41. On the same day, the Istanbul Assize Court decided that the defendants' firearms as well as the firearms, bullets and cartridges, found near the deceased and extracted from one of the corpses be sent for a new examination. Forensic experts were requested to give information in order to determine whether the three 9 mm calibre bullets matched the empty cartridges and whether the latter had been discharged from one of the firearms belonging to the police officers or the deceased. The court further decided to request the Istanbul Security Directorate to provide information as to whether the barrels or the firing pins of the firearms had been changed after 28 September 1994.", "It finally decided to hold an on-site inspection in the Arzum café on 18 June 1996. 42. On 31 May and 20 June 1996 the Istanbul Assize Court received two letters from the Istanbul Security Directorate. The letter of 31 May 1996 stated that the Directorate did not have any information as to whether the parts of the firearms had been changed whereas the second letter stated that the firearms' parts had not been changed. 43.", "On 18 June 1996 the judges of the Istanbul Assize Court, an expert, the four accused police officers and their representative as well as the intervening parties' representatives went to the Arzum café for an on-site inspection. However, as the Arzum café had been renovated in the meantime, the court could not conduct the inspection at the scene of the incident in the absence of the witnesses who had run the café at the time of the incident. The first-instance court therefore decided to hold an on-site inspection in the presence of the witnesses. 5. Hearing of 11 July 1996 and the subsequent developments 44.", "On 11 July 1996 the Istanbul Assize Court decided to request more information from the Security Directorate as the letters of 31 May and 20 June 1996 were contradictory. It further ordered that a ballistic examination be conducted. The court finally decided to conduct an on-site inspection with the attendance of all defendants, witnesses and intervening parties on 11 October 1996. 45. On 24 July 1996 the deputy director of the Istanbul Security Directorate sent a letter to the Istanbul Assize Court, maintaining that any change in the firearms could only be determined by a criminal laboratory examination and that such a change constituted a criminal offence.", "46. On 28 August 1996 experts from the Forensic Medicine Institute conducted a new ballistic examination. The ballistic report confirmed the findings of the Istanbul Regional Criminal Police Laboratory's report of 5 October 1994. It further revealed that twenty 9 mm calibre cartridges out of twenty-two, which had been submitted to the experts, were discharged from the firearms numbered MP5-3793, T-1192 and 245 PV 30170. The first firearm belonged to H.K., the second belonged to B.A., and the third weapon belonged to Ş.K.", "According to the report four 9 mm calibre bullets also matched with B.A. 's firearm numbered T-1192. As regards the 9 mm calibre bullet which had been extracted from İsmet Erdoğan's body and the two other 9 mm calibre bullets found close to the Fuat Erdoğan's corpse, the forensic experts reached a different conclusion than their previous findings. They opined that the first bullet was discharged from the firearm numbered T-1192 and the other two bullets were discharged from the firearms numbered T-1192 and 245 PV 30170. These firearms belonged respectively to B.A.", "and Ş.K. 47. On 3 September 1996 three of the accused police officers, Ş.K., R.A. and H.K. were served with an order of the Istanbul Assize Court, requesting them to attend the on-site inspection on 11 October 1996. The fourth accused officer, M.K., could not be served on the order as he had been appointed to a post in Erzurum.", "48. On 11 October 1996 the judges of the Istanbul Assize Court, an expert, one of the intervening parties, Ali Yalçın, his representative, N.A., S.A. and two police officers who had been heard as witnesses, E.M. and N.Ç. conducted an on-site inspection. During the inspection, N.A. and S.A. contended that the stairs going to the second floor of the café remained unchanged.", "S.A. further showed the judges the table where the deceased had been sitting and the location of the bullet traces on the walls of the second floor on the day of the incident. The police officers maintained that they had been outside the café at the time of the incident and did not have any information as to how the killing occurred. N.Ç. further maintained that the deceased had not been given the warnings by a megaphone and that he did not remember the position of the corpses on the second floor. 49.", "Following the on-site inspection, on 22 October 1996, the expert who had been present at the inspection drafted a report and produced a sketch map showing the location of the café, the bullet traces, and the position of the corpses at the time of the incident. 6. Hearings of 23 October and 23 December 1996, 20 February and 5 May 1997 50. On 23 October 1996 two of the applicants, Ali Yalçın and Hüsnü Yalçın, also joined the proceedings as a civil party. 51.", "On 23 December 1996 the intervening parties requested the first‑instance court to broaden the scope of the investigation, claiming that the sketch map was erroneous and that technical expertise was needed regarding the trajectory of the bullets in the deceased's bodies. 52. On 20 February 1997 one of the applicants, Şinasi Yalçın, joined the criminal proceedings as a civil party. On the same day, the first-instance court held that it was not necessary to correct the sketch maps and requested the intervening parties to submit their observations on the merits of the case during the next hearing. 53.", "On 5 May 1997 the intervening parties once again requested the first‑instance court to broaden the scope of the investigation. They requested, in particular, that the transcripts of police radio communications of 28 September 1994 be drafted and information be requested from the General Security Directorate as to whether the operation conducted on 29 September 1994 had been one of the “secret” operations that had been told to be conducted by Mehmet Ağar, the Minister of the Interior at the material time. They further requested that the officers who had drafted the autopsy reports be heard as witnesses and that the Türk Telekom be requested to submit information as to whether there had been any call made to the Istanbul Security Directorate as was mentioned in the report drafted at 3.45 pm on 29 September 1994. The intervening parties further requested the first-instance court to hear a pathologist as a witness in order to determine the exact shooting ranges and to order the relevant authorities to submit information as to whether the firearms allegedly found next to the corpses had been the special teams' weapons. The first-instance court requested the public prosecutor to submit his observations on the intervening parties' requests and, therefore, decided to postpone the hearing.", "7. Hearings of 10 July and 20 October 1997 54. During the hearing which was held on 10 July 1997 Şinasi Yalçın requested that the accused police officers be ordered to attend the hearings as he wished to question them. He further requested that the police officers be detained on remand as the trajectories of the bullets in the deceased's bodies clearly demonstrated that they had been executed. Another intervening party, Yüksel Erdoğan, requested the court to hold a new on-site inspection in order to determine whether the trajectories of the bullets matched the accused police officers' account of the events.", "Ş.K. 's lawyer requested that a new ballistic examination be conducted, claiming that Ş.K. had not opened fire. Finally, the Istanbul public prosecutor requested the first-instance court to hear the police officers who had drafted the report at 3.45 pm on 29 September 1994 as witnesses. One of the intervening parties' lawyers submitted the documents concerning other criminal proceedings brought against the accused police officers with the charge of homicide and the judgments of the European Court of Human Rights in cases which concerned actions of the accused police officers.", "The Istanbul Assize Court postponed the hearing in order to examine the parties' and the public prosecutor's requests. 55. On 20 October 1997 the Istanbul Assize Court dismissed the requests by the intervening parties, accused police officers and the public prosecutor, holding that the evidence in the case-file was sufficient to allow it to establish the facts of the case. The court requested the parties and the public prosecutor to submit their observations on the merits of the case and, as a result, postponed the hearing. 8.", "Hearing of 21 December 1998 and the Forensic Medicine Institute's report of 15 January 1999 56. On 21 December 1998, upon the requests of the intervening parties and the public prosecutor, the Istanbul Assize Court decided to request the Forensic Medicine Institute to conduct an examination of all firearms, bullets and cartridges in order to resolve the contradictions between the previous ballistic reports and determine whether the bullet entries on the corpses could have been formed as a result of a shooting from downstairs to the second floor and whether the deceased were targeted by the defendants. The court further requested information concerning the range of the shootings. 57. On 15 January 1999 experts from the Forensic Medicine Institute drew up three separate reports concerning the deceased.", "The relevant paragraphs, which are common to all three reports, read as follows: “...It is a medically recognised fact that the entry and exit holes in corpses cannot be indicative of the place and the level of the exact place where the shots were fired from since persons are mobile and can change place and position. Therefore, it cannot be medically determined whether the bullets were fired from the ground floor or the stairs or the second floor. Likewise, it cannot be determined whether the deceased were targeted by the accused. ...It has been unanimously concluded that all of the shots were fired at long range and that the exact range of the shootings cannot be determined.” 9. Hearings between 24 March 1999 and 5 December 2001 and the Forensic Institute's report of 19 September 2001 58.", "On different dates, the Istanbul Assize Court requested the Forensic Medicine Institute to conduct a new ballistic examination on all the firearms, bullets and cartridges in order to resolve the contradictions between its reports of 8 January and 28 August 1996 with a view to determining whether any bullets had been discharged from Ş.K. 's firearm. The first-instance court, however, had to postpone the hearings between 24 March 1999 and 27 March 2001 as the firearm of deceased police officer B.A. was not submitted for the ballistic examination. 59.", "On 27 March 2001 the first-instance court sent the firearms, bullets and cartridges to the Forensic Medicine Institute. 60. On 19 September 2001 experts from the Forensic Medicine Institute drafted a ballistic report. The conclusions of the experts read as follows: “As was determined in the report of 28 August 1996: 1- Three of the 7,65 mm calibre bullets were discharged from the Browning make firearm numbered 241716. Two of the 7,65 mm calibre bullets were discharged from the Unique firearm numbered 855392.", "2- Out of the twenty 9 mm empty cartridges: a) Nine of them were discharged from the firearm numbered MP5-3793, eight of them were discharged from the Ceska firearm numbered T‑1192 and three of them were discharged from the Browning firearm numbered 245 PV 30170. b) Furthermore, two 9 mm empty cartridges were not discharged from the firearms submitted. They were discharged from two different 9 mm calibre automatic or semi‑automatic firearms. 3- Out of the three 9 mm bullets: a) the one which was sent in an envelope marked “İbrahim Korkmaz” was discharged from the Ceska 9 mm calibre firearm numbered T-1192; b) one of the two bullets which were sent in an envelope marked ... “Fuat Erdoğan” was discharged from the Ceska 9 mm calibre firearm numbered T-1192 and the other was discharged from the Browning firearm numbered 245 PV 30170. 4- Three 9 mm calibre bullets may belong to the 9 mm empty cartridges sent. However, it cannot be determined with certainty whether they matched or not.", "...” 10. The Istanbul Assize Court's judgment of 7 February 2002 61. On 7 February 2002 the Istanbul Assize Court rendered its judgment in the case and acquitted the accused police officers of the charges brought against them. The first-instance court noted that the deceased İsmet Erdoğan, Fuat Erdoğan and Elmas Yalçın had been members of the DHKP‑C, an illegal organisation, who had used forged identity cards on the day of the incident and that there had been detention orders and search warrants in their respect. It further noted that an armed clash had broken out between the deceased and the police officers and that five bullets had been discharged from the two firearms (numbered 241716 and 855392) found near the corpses after the incident.", "All three deceased had weapons that were used during the armed clash. In the light of the findings of the Forensic Medicine Institute's report of 19 September 2001, the assize court found it established that the accused police officers, including Ş.K., had used their firearms during the clash. In view of the conclusion of the Forensic Medicine Institute's report of 15 January 1999, the assize court further established that the police officers had fired shots at long range. It noted the experts' conclusion that the position of the police officers and the deceased could not be established. The court considered that it should be accepted that the police officers had approached the stairs leading up to the second floor and had fired in response to the shots coming from the deceased on the second floor.", "The court further noted that there was no evidence in the case file which proved that the police officers had killed the deceased although the latter had not resisted, or that the parts of their firearms had been changed. The Istanbul Assize Court further found it established, in the light of the witnesses' statements, that the accused police officers had given the necessary warnings and that, on being fired at, had retaliated by shooting back. The court concluded that the police officers had acted within the scope of their duties and in order to protect their own lives. It found that the accused had remained within the limits of legitimate self‑defence in accordance with Article 16 of Law no. 2559 on the duties and legal powers of police.", "11. The Court of Cassation's decision of 7 July 2003 62. On 7 July 2003 the Court of Cassation upheld the judgment of the Istanbul Assize Court. It found it established that the accused police officers had remained within the limits of legitimate self-defence in accordance with Article 16 (a) and (g) of Law no. 2559.", "II. RELEVANT INTERNATIONAL AND DOMESTIC LAW 63. A description of the relevant domestic law at the material time and the international law can be found in Erdoğan and Others v. Turkey (no. 19807/92, §§ 51-58, 25 April 2006). THE LAW I.", "AS REGARDS THE APPLICANTS RAMAZAN ERDOĞAN AND RAŞİDİYE ERDOĞAN 64. The Court notes that the applicants' representatives did not submit a power of attorney signed by Ramazan and Raşidiye Erdoğan while introducing the application on 25 February 2000. On 16 May and 7 June 2005 the Registry requested the applicants' representatives to submit such an authorisation which was essential to establish the validity of the application insofar as brought by these two applicants. On 7 June 2005 and 29 September 2006 the applicants' representatives were also warned that Ramazan and Raşidiye Erdoğan's application might be struck out of the list. No response was received to the letters of 7 June 2005 and 29 September 2006 (see paragraphs 5, 6 and 7 above).", "65. In these circumstances, taking into account the lack of diligence of the applicants' representatives and the absence of a serious indication that the applicants themselves wished to lodge or pursue the application, the Court concludes that it is no longer justified to continue the examination of the application brought on behalf of Ramazan Erdoğan and Raşidiye Erdoğan within the meaning of Article 37 § 1 (c) of the Convention. Furthermore, the Court finds no reasons of a general character, as defined in Article 37 § 1 in fine, which would require the examination of this part of the application by virtue of that Article. 66. The Court therefore decides to strike the application, insofar as it has been brought on behalf of Ramazan Erdoğan and Raşidiye Erdoğan in respect of the killing of Fuat Erdoğan, out of its list of cases under Article 37 § 1 (a) of the Convention.", "II. ALLEGED VIOLATIONS OF ARTICLES 2 AND 6 OF THE CONVENTION BY YÜKSEL ERDOĞAN, MELİHA ERDOĞAN, SİNAN ERDOĞAN, BAHAR SAĞLAM, ŞİNASİ YALÇIN, HÜSNÜ YALÇIN AND ALİ YALÇIN 67. The applicants complained, under Article 2 of the Convention, that the use of force employed by the security forces against İsmet Erdoğan and Elmas Yalçın was disproportionate and resulted in their unlawful killing. They further complained, under the same head, that the investigation and the subsequent criminal proceedings brought against the four police officers were fundamentally flawed and, as a result, were not capable of being effective, in violation of the procedural obligations under Article 2 of the Convention. They further complained, under Article 6 of the Convention, that the proceedings in question were not concluded within a reasonable time.", "68. The Court considers that these complaints should be examined from the standpoint of Article 2 of the Convention alone, 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.” A. Admissibility 1. Submissions of the parties 69. The Government argued that Meliha Erdoğan, Sinan Erdoğan and Bahar Sağlam had failed to exhaust the domestic remedies available to them within the meaning of Article 35 § 1 of the Convention as they had not joined the proceedings against the accused police officers as civil parties. Alternatively, they alleged that the application was submitted out of time as the applicants' relatives had been killed on 29 September 1994 whereas the application was introduced only on 25 February 2000. They argued that if the applicants considered the domestic remedies ineffective, they should have submitted their application to the Court within six months from 29 September 1994, the date on which the alleged violation took place.", "70. The applicants contended that Meliha Erdoğan, Sinan Erdoğan and Bahar Sağlam had not been required to intervene in the criminal proceedings as the other applicants had already joined the proceedings concerning the killing of İsmet Erdoğan and Elmas Yalçın. They further maintained that they had lodged their application with the Court when they had become aware of the ineffectiveness of the criminal proceedings brought against the police officers and that, therefore, they had complied with the six-month rule. 2. The Court's assessment 71.", "As regards the Government's argument that Meliha Erdoğan, Sinan Erdoğan and Bahar Sağlam had failed to exhaust the domestic remedies, the Court reiterates at the outset 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 (see Hugh Jordan v. the United Kingdom (dec.), no. 24746/94, 4 April 2000). 72. Nevertheless, 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. The Court 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 İlhan v. Turkey [GC], no. 22277/93, § 59, ECHR 2000‑VII). 73.", "Moreover, 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 investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see McKerr v. the United Kingdom, no.", "28883/95, § 111, ECHR 2001‑III). 74. The Court further recalls that in its decision of Erdoğan and Others v. Turkey ((dec.), no. 19807/92, 16 January 1996), where the facts of the case and the Government's arguments were similar to those in the present case, the Commission considered that two applicants, who had not intervened in the criminal proceedings brought against police officers who had been charged with killing the applicants' relatives, were absolved from the need to join to these proceedings since the other applicants had intervened in the proceedings and were able to raise all the issues concerning their killing. 75.", "In the present case, the Court observes that Meliha Erdoğan, Sinan Erdoğan and Bahar Sağlam, the family members of the late İsmet Erdoğan, did not join to the criminal proceedings as a civil party. Nor did they lodge a criminal complaint with the prosecuting authorities. However, in the light of the aforementioned principle that the prosecuting authorities are under the obligation to act on their own motion without waiting for a next of kin to lodge a complaint where an individual has been killed as a result of the use of force by members of the security forces and having regard to the fact that Yüksel Erdoğan, who was the father of İsmet Erdoğan, joined the proceedings in question and raised all the issues concerning his son's killing, the Court considers that Meliha Erdoğan, Sinan Erdoğan and Bahar Sağlam were not required to become intervening parties in the criminal proceedings in question. 76. As to the Government's alternative argument that the applicants failed to comply with the six-month's rule, the Court reiterates that where an applicant avails himself of, or relies on, an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it is appropriate to take as the start of the six month period the date when he or she first became aware or ought to have become aware of those circumstances (see Acar and Others and Akay and Others v. Turkey (dec.), nos.", "38417/97 and 36088/97, 27 November 2001; and Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001). 77. In the present case, the Court considers that the criminal proceedings relating to the killing of the applicants' relatives afforded in principle a remedy which the applicants were required to exhaust (see Acar and Others and Akay and Others, cited above). It notes in this connection that a criminal investigation was opened into the killing of the applicants' relatives immediately after the incident and that, on 22 November 1994, criminal proceedings were instituted against the four police officers.", "However, these proceedings resulted in the acquittal of all the defendants on 7 July 2003, some eight years and nine months after the date of the killings. The Court considers, in view of the seriousness of the charges, that the substantial delays involved deprived the remedy of its effectiveness. The Court finds that the applicants acted reasonably in awaiting developments in the criminal proceedings before lodging their complaint with the Court and that the application was brought within six months of the date when the applicants became aware or ought to have become aware that the remedy would not be effective (see Acar and Others and Akay and Others, cited above). 78. Consequently, the application cannot be rejected for non-exhaustion of domestic remedies or for non-compliance with the six-month rule.", "79. 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. Submissions of the parties 80. The applicants submitted first that no real attempt had been made to capture their relatives alive. In this connection, they contended that the police officers had known the identity of the victims when they arrived at the café and that there was a premeditated plan to kill them rather than to effect their lawful arrest. They further maintained that there were several indications of this aim, such as the facts that the police officers had been wearing bullet-proof vests and that the bullets followed a downward trajectory within the victims' bodies.", "They further contended that the security forces' claim that there had been an armed clash was unsubstantiated as neither of the police officers had been injured. The applicants maintained that their relatives had been killed as a result of use of force which was not absolutely necessary. 81. As to the investigation conducted in the present case, the applicants argued that there were serious flaws both at the preliminary investigation stage and after the proceedings brought against the police officers. They maintained, in that respect, that the public prosecutor had not been present after the incident when the police officers who had participated in the police operation collected the evidence and that, therefore, there was no independent evidence.", "Furthermore, no photographs of the scene of the incident had been taken. Nor were the premises filmed. The applicants complained that the on-site inspection was conducted twenty-five months after the killing of their relatives. They further contended that the first‑instance court rejected their requests to broaden the scope of the investigation and to put certain questions to the accused police officers. The applicants finally maintained that the proceedings against the police officers lasted an unreasonably long time and that the accused had not been suspended from duty, even though criminal proceedings had been brought against them.", "82. The Government submitted, in reply, that the death of the applicants' relatives resulted from a use of force which was no more than absolutely necessary. They maintained that it was established by the domestic courts that the police officers had started firing only after the deceased had opened fire and in order to protect themselves. They contended that, as was stated in the Istanbul Assize Court's judgment of 7 February 2002, the deaths had resulted from self-defence and in accordance with Article 16 of Law no. 2559 on the duties and legal powers of police.", "83. The Government further maintained that the investigation conducted into the killing of the applicants' relatives and the subsequent criminal proceedings brought against the police officers had been effective. They submitted, in this respect, that the authorities had conducted autopsies, ballistic examinations and an on-site inspection and that the trial court had taken into consideration all the evidence, in particular, the ballistic reports, before rendering its judgment. The Government finally made submissions as regards the length of the criminal proceedings brought against the accused police officers and maintained that the proceedings had been completed within a reasonable time in view of the complexity of the case. 2.", "The Court's assessment a. As to the alleged violation of the right to life of İsmet Erdoğan and Elmas Yalçın i. General principles 84. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted (see Velikova v. Bulgaria, no. 41488/98, § 68, ECHR 2000-VI).", "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 (see Salman v. Turkey [GC], no. 21986/93, § 97, ECHR 2000‑VII). 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 McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp.", "45-46, §§ 146-47). 85. 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 within its internal legal order to safeguard the lives of those within its jurisdiction (see Kiliç v. Turkey, no. 22492/93, § 62, ECHR 2000-III). This involves a primary duty on the State to secure the right to life by putting in place an appropriate legal and administrative framework 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.", "86. The text of Article 2, read as a whole, demonstrates that paragraph 2 does not primarily define instances where it is permitted to intentionally kill an individual, but describes situations where it is permitted to “use force” which may result, as an unintended outcome in the deprivation of life. The use of force, however, must be no more than “absolutely necessary” for the achievement of any of the purposes set out in subparagraphs (a), (b) or (c). In this respect the use of the term “absolutely necessary” in Article 2 § 2 indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraph 2 of Articles 8-11 of the Convention. In particular, the force used must be strictly proportionate to the achievement of the aims set out in the subparagraphs of the Article (see McCann and Others, cited above, p. 46, §§ 148-9).", "87. In this connection, the Court reiterates that it 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 facts, 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 facts for that of the domestic courts and as a general rule it is for those courts to assess the evidence before them. Though the Court is not bound by the findings of domestic authorities, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those authorities (see, mutatis mutandis, Klaas v. Germany, judgment of 22 September 1993, Series A no.", "269, p. 18, §§ 29-30). 88. However, the central importance of the protection afforded under Article 2 is such that the Court is required to subject allegations of breach of this provision to the most careful scrutiny, taking into consideration not only the actions of the agents of the State who actually administered the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination even where domestic proceedings and investigations have already taken place (see Erdoğan and Others, cited above, § 71). ii. Establishment of the facts 89.", "In the present case, the Court notes firstly that it is undisputed between the parties that the applicants' relatives were shot and killed by the security forces. The Court is however confronted with fundamentally divergent accounts of how İsmet Erdoğan and Elmas Yalçın were killed. The applicants alleged that the police officers arrived at the café with the aim of killing their relatives and that the alleged identity control had been a pretext. The Government, on the other hand, claimed that the applicants' relatives had refused to submit their identity cards and had opened fire. The Government contended that they had died during an armed clash during which the police officers acted within the scope of Law no.", "2559 on the duties and legal powers of police. 90. The Court observes that a judicial determination of the facts took place in the criminal proceedings brought against four police officers before the Istanbul Assize Court. Even if certain facts remain unclear, the Court considers, in the light of all the material produced before it, that there is a sufficient factual and evidentiary basis on which to assess the case, taking as a starting point the findings of the national court (see Makaratzis v. Greece [GC], no. 50385/99, § 47, ECHR 2004‑XI; and Perk and Others v. Turkey, no.", "50739/99, § 57, 28 March 2006). iii. Application of the general principles in the circumstances of the present case 91. The Court observes, on the basis of the material before it, that İsmet Erdoğan and Elmas Yalçın were killed in the course of a police operation by officers from the anti-terror branch of the Istanbul Security Directorate. In this connection, as to the applicants' allegation that there was a premeditated plan to kill their relatives, the Court does not find it sufficiently established, in view of the material provided, that there was such a plan.", "92. As regards the legal framework defining the circumstances in which law enforcement officials may use force and firearms, the Court recalls that it has already held that the applicable legislation at the time of the incident, Law no. 2559, enacted in 1934, would not appear sufficient to provide the level of protection “by law” of the right to life that is required in present-day democratic societies in Europe (see Erdoğan and Others, cited above, § 77) but that the difference between the relevant national standard and the standard provided by the expression “absolutely necessary” in Article 2 § 2 of the Convention is not sufficiently great that a violation of Article 2 § 1 could be found on this ground alone (see Perk and Others, cited above, § 60). 93. In carrying out its assessment of the planning and control phase of the operation from the standpoint of Article 2 of the Convention, the Court must have particular regard to the context in which the incident occurred as well as to the way in which the situation developed (see Andronicou and Constantinou v. Cyprus, judgment of 9 October 1997, Reports of Judgments and Decisions 1997‑VI, § 182).", "94. The Court observes in this connection that the police officers arrived at the scene of the incident following a phone call received by the police on 29 September 1994 according to which the suspects were carrying at least one firearm in a public place in a central area in Istanbul (see paragraph 9 above). Therefore, this was an emergency situation which demanded that the security forces act with great rapidity. 95. Similar to the Istanbul Assize Court, the Court also observes that in the circumstances of the case, the use of force by the security forces was the direct result of the unlawful violence emanating from the deceased suspects.", "In this connection, the Court observes that the police officers entered the café, told the civilians to leave the premises and, before going upstairs to where the deceased were, gave the necessary warnings. Consequently, the operation in question should be considered to be effected “in defence of any person from unlawful violence” and “in order to effect a lawful arrest” within the meaning of Article 2 § 2 of the Convention. 96. The Court should therefore determine whether the use of force in the instant case was no more than absolutely necessary and strictly proportionate to the achievement of the aforementioned aims. 97.", "It is important, in the eyes of the Court, that the Istanbul Assize Court found it established, on the basis of the evidence before it, that the first gunshot came from the deceased. As the statements of the witnesses before the Istanbul public prosecutor and the Istanbul Assize Court demonstrate, the police officers, who entered the café, did order the deceased to surrender and gave the necessary warnings before shooting and they started shooting only after being fired at (see paragraphs 22, 26, 34 and 48 above). 98. The Court accepts, in the circumstances of the case, that when the police officers entered the café and were confronted with the shootings coming from the suspects, they believed that it was necessary to continue firing until the suspects stopped firing back (see Perk and Others, cited above, § 68). In this connection, the Court notes that, according to the ballistic examination reports, five of the bullets found at the scene of the incident had been discharged from the firearms found near to the suspects' corpses and that the police officers' shots had all been fired at long range (see paragraphs 18 and 57 above).", "99. The Court further considers that it is not necessary to speculate on the question of the possibility to use non-lethal methods by the security forces in order to arrest the deceased. In this connection, the Court recalls that in the cases of Andronicou and Constantinou and Perk and Others, where the applicants' relatives had been killed as a result of use of force by the security forces, it held that it could not with detached reflection substitute its own assessment of the situation for that of the officers who were required to react in the heat of the moment. The Court further considered that to hold otherwise would be to impose an unrealistic burden on the States and their law‑enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and the lives of others (see Andronicou and Constantinou, cited above, § 192; and Perk and Others, cited above, § 72). The Court sees no reason to reach a different conclusion in this case, where the police officers had to act rapidly when confronted with armed suspects in a public place.", "100. The Court considers therefore that the use of lethal force in the circumstances, however regrettable it may have been, did not exceed what was “absolutely necessary” for the purposes of self-defence and effecting a lawful arrest and did not amount to a breach by the respondent State of their obligations under Article 2 § 2 (a) of the Convention. 101. It follows that there has been no violation of Article 2 of the Convention in respect of the killing of İsmet Erdoğan and Elmas Yalçın. b.", "As to the alleged inadequacy of the investigation i. General principles 102. The Court has already held 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, with the purpose of securing the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see paragraph 73 above). 103. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see Güleç v. Turkey, judgment of 27 July 1998, Reports 1998-IV, §§ 81-82; and Oğur v. Turkey [GC], no.", "21594/93, §§ 91-92, ECHR 1999-III). This means not only a lack of hierarchical or institutional connection but also a practical independence (see, for example, Ergi v. Turkey, judgment of 28 July 1998, Reports 1998-IV, §§ 83-84). 104. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances (see Kaya v. Turkey, judgment of 19 February 1998, Reports 1998‑I, p. 324, § 87) and to the identification and punishment of those responsible (Oğur, cited above, § 88). This is not an obligation of result, but of means.", "The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death (see, concerning autopsies, Salman, cited above, § 106, concerning witnesses, Tanrıkulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV; concerning forensic evidence, Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard. 105.", "A requirement of promptness and reasonable expedition is implicit in this context (see Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998‑VI, pp. 2439-2440, §§ 102-104; Çakıcı v. Turkey [GC], no. 23657/94, §§ 80-87 and 106, ECHR 1999-IV; Tanrıkulu, cited above, § 109; and Mahmut Kaya v. Turkey, no. 22535/93, §§ 106-107, ECHR 2000-III). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation.", "However, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Avşar v. Turkey, no. 25657/94, § 395, ECHR 2001‑VII (extracts)). ii. Application of the general principles in the circumstances of the present case 106. In the instant case, an investigation into the incident was indeed carried out by the Istanbul public prosecutor.", "However, there were important shortcomings in the conduct of the investigation. 107. Among these deficiencies, the Court is particularly struck by the fact that the public prosecutor who inspected the scene of the incident on 29 September 1994 failed to secure evidence which was essential in determining whether the deceased had ever handled the firearms which were found at the scene of the incident. It was in his presence that police officers took fingerprints of the deceased, which subsequently prevented the forensic experts from conducting an examination of the deceased's hands in this respect. Moreover, the firearms allegedly used by the deceased were never subjected to a fingerprint analysis in order to establish whether or not these weapons had ever been handled by the deceased.", "108. Furthermore, the investigating authorities did not take photographs at the scene of the incident; nor did they make sketches of the interior or exterior of the premises or prepare a plan showing the position of each member of the security forces in the café at the time of the shootings. A sketch map of the scene of the incident was drawn up as late as 22 October 1996 by an expert following the Istanbul Assize Court's on-site inspection of the café, which had already been renovated after the incident. Moreover, one of the police officers who had participated in the operation, A.B., also participated in the first examination of the scene of the incident with the public prosecutor and was actually given the bullets, cartridges and the two firearms which had been found next to the deceased by the police officers who killed the deceased. 109.", "The Court is of the opinion that the above elements disclose a significant defect in the reliability and thoroughness of this part of the investigation. It has therefore examined whether this was remedied by the investigation conducted by the assize court during the criminal proceedings. 110. The Court recalls 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 McKerr, cited above, § 134). Nonetheless, it cannot be excluded, for example, that defects in an investigation may fundamentally undermine the ability of a court to determine responsibility for a death (see Salman, cited above, §§ 106-109 concerning inadequate autopsy procedures, and Kılıç v. Turkey, no.", "22492/93, §§ 79-83, ECHR 2000-III where there was no evidence presented to the trial court linking the suspect to the killing). 111. In the present case, the Court considers that, the shortcomings described in paragraph 126 above were fundamental; that is to say, they had the effect of undermining the Istanbul Assize Court's ability to establish the accountability for the killing of İsmet Erdoğan and Elmas Yalçın. 112. The Court nevertheless observes other deficiencies in the proceedings before the Istanbul Assize Court.", "Firstly, in the course of the proceedings before this court only six witnesses made statements. Three of these six persons were police officers from the Anti‑Terror Branch, who had participated in the police operation in question. One of them was the owner of the coffee shop who had not been in her café during the incident. It appears from the case-file that the court, like the public prosecutor, took no other step in order to identify possible witnesses, such as the owners of the neighbouring shops. 113.", "Secondly, the Istanbul Assize Court failed to conduct an on-site inspection earlier than 11 October 1996. On the latter date, when the court finally carried out the inspection, the accused police officers did not attend, thus casting doubt on the reliability of the conclusions drawn from the inspection since only the police officers were present in the interior of the café at the time of the killings. Furthermore, the assize court failed to clarify the vital issue of the possibility of the use of non-lethal methods during the operation. 114. Finally, there have been substantial delays in the proceedings.", "The court postponed the hearings for almost six months as the Istanbul Security Directorate failed to send the accused police officers' weapons to the Istanbul Assize Court despite the latter's persistent requests. It also postponed the trial between 24 March 1999 and 27 March 2001 as the firearm of the deceased police officer was not submitted to the court. The Court notes that the failure of the authorities to submit the police officers' firearms to the first-instance court cannot be attributed to the applicants. In the circumstances of the case, the Court considers that the proceedings in question, which lasted eight years and nine months, cannot be described as a prompt response by the authorities in investigating the alleged unnecessary and disproportionate use of force. 115.", "Having regard, therefore, to the duration and serious shortcomings of the criminal investigation and trial proceedings in this case, the Court concludes that there has been a breach of the State's procedural obligation under Article 2 of the Convention. 116. It follows that there has been a violation of Article 2 in this respect. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 117.", "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.” 118. The applicants did not submit any claim for just satisfaction under Article 41 of the Convention taken together with Rule 60 of the Rules of Court. In these circumstances, the Court considers that there is no reason to award any sum under Article 41 of the Convention (see Ciucci v. Italy, no. 68345/01, § 33, 1 June 2006). FOR THESE REASONS, THE COURT 1.", "Decides unanimously to strike the case out of the list insofar as it was brought on behalf of Ramazan Erdoğan and Raşidiye Erdoğan in respect of the killing of Fuat Erdoğan; 2. Declares unanimously the application admissible insofar as it was brought by Yüksel Erdoğan, Meliha Erdoğan, Sinan Erdoğan, Bahar Sağlam, Şinasi Yalçın, Hüsnü Yalçın and Ali Yalçın; 3. Holds by 6 votes to 1 that there has been no violation of Article 2 of the Convention as regards the death of İsmet Erdoğan and Elmas Yalçın; 4. Holds unanimously that there has been a violation of Article 2 of the Convention as regards the investigations carried out by the national authorities. Done in English, and notified in writing on 15 February 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Santiago QuesadaBoštjan M. ZupančičRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the statement of dissent of Mrs I. Berro-Lefèvre is annexed to this judgment. B.M.Z.S.Q. STATEMENT OF DISSENT BY JUDGE BERRO-LEFÈVRE I am unable to follow the finding of the majority that there has been no violation of Article 2 of the Convention in its substantive aspect as I consider that there was a lack of appropriate care in the control and organisation of the arrest operation. [1] A bone which is part of the sternum, located at the bottom of the sternum, close to the abdomen." ]
[ "FIRST SECTION CASE OF MAČINKOVIĆ v. CROATIA (Application no. 29759/04) JUDGMENT STRASBOURG 7 December 2006 FINAL 07/03/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mačinković v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrsN.", "Vajić,MrA. Kovler,MrsE. Steiner,MrK. Hajiyev,MrD. Spielmann,MrS.E.", "Jebens, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 16 November 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 29759/04) 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 Marijan Mačinković (“the applicant”), on 12 July 2004. 2. The applicant was represented by Ms L. Kušan, a lawyer practising in Ivanić-Grad.", "The Croatian Government (“the Government”) were represented by their Agent, Ms Štefica Stažnik. 3. On 5 September 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 I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1945 and lives in Kloštar Ivanić. 5. On 1 September 1999 the Ivanić Grad Municipal Court (Općinski sud u Ivanić Gradu) adopted a judgment ordering a certain F.P. to pay some money to the applicant.", "On 18 May 2000 the applicant sought enforcement of the above judgment. 6. The Zagreb Municipal Court (Općinski sud u Zagrebu) issued an enforcement order on 6 July 2000. 7. On 20 November 2000 a court bailiff attempted to draft a seizure list of F.P.’s possessions, but he refused to cooperate.", "8. On 19 December 2000 the applicant informed the court that F.P. owned a motor vehicle and proposed to seize it. On 17 April 2001 the court invited the applicant to advance the costs of the bailiff’s intervention, which the applicant did on 25 April 2001. On 12 April 2002 the court scheduled another on-site intervention for 3 June 2002, which was unsuccessful because F.P.", "once again refused to cooperate. 9. Pursuant to the applicant’s further motion, on 26 September 2002 the court decided that another on-site intervention would be scheduled after the applicant advanced the costs. 10. The applicant asked the court to size F.P.’s passport on 20 February 2003.", "Following that demand, on 1 July 2003 the court asked the Ministry of the Interior whether F.P. was the owner of a certain motor vehicle. The Ministry replied in negative on 22 July 2003. 11. The applicant then on 8 September 2003 asked for another bailiff’s intervention.", "12. However, on 24 May 2004 the case-file was transferred to the newly-established Zaprešić Municipal Court. 13. Since F.P.’s wife presented the evidence that F.P. had paid part of the sum due to the applicant during the bailiff’s intervention on 25 October 2004, the intervention was adjourned with consent of the applicant’s legal representative.", "14. However, F.P. did not comply with the rest of his obligation and therefore, on 24 December 2004 the applicant asked for another bailiff’s intervention. The intervention took place on 8 March 2005 and a seizure list was drafted. 15.", "On 29 September 2005 the applicant asked the court to schedule a public auction. The auction was scheduled for 22 November 2005. 16. The enforcement proceedings still appear to be pending before the first-instance court. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 17. Section 63 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: “(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ... (2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits... (3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment.” 18. Under the case-law of the Constitutional Court, constitutional complaints lodged under section 63 in the context of enforcement proceedings were to be declared inadmissible.", "In its decision no. U -IA/1165/2003 of 12 September 2003 the Constitutional Court interpreted section 63 as follows: “The Constitutional Court shall institute proceedings pursuant to a constitutional complaint lodged under section 63 of the Constitutional Act [on the Constitutional Court] for the length of proceedings only in cases where the court has not decided within a reasonable time on the merits of the rights and obligations of the complainant, that is, where it has failed to deliver a decision on the merits within a reasonable time. In the present case the constitutional complaint has been lodged for non-enforcement of a final decision by which the party’s rights and obligations had already been decided. Taking into consideration the above cited provisions of the Constitutional Act [on the Constitutional Court] ..., the Constitutional Court is of the opinion that in this case the conditions for applicability of section 63 were not met.” In its decision no. U-IIIA/781/2003 of 14 May 2004 the Constitutional Court provided further interpretation of section 63: “Taking into consideration the above cited provisions of the Constitutional Act [on the Constitutional Court] and the fact that the constitutional complaint was not lodged for a failure to deliver a decision within a reasonable time but rather because the enforcement was not carried out, the Constitutional Court is of the opinion that in this case the conditions for applicability of section 63 were not met.” 19.", "In decision no. U-IIIA/1128/2004 of 2 February 2005 the Constitutional Court changed its practice, accepting a complainant’s constitutional complaint and awarding him compensation as well as ordering the competent court to conclude the enforcement proceedings within six months from its decision. In doing so, the Constitutional Court expressly relied on the Court’s case-law on the matter. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 20.", "The applicant complained that the length of the enforcement proceedings had been incompatible with the “reasonable time” requirement, 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...” 21. The Government contested that argument. 22. The period to be taken into consideration began on 8 May 2000 and has not yet ended. It has thus lasted about six years and six months.", "A. Admissibility 23. The Government invited the Court to reject the applicant’s complaint for non-exhaustion of domestic remedies, claiming that in 2002 Section 63 of the Constitutional Act on the Constitutional Court introduced an effective domestic remedy in respect of the length of proceedings. On 2 February 2005 the Constitutional Court adopted a decision whereby it applied the reasonable time requirements in respect of the pending enforcement proceedings. 24. The applicant contested these arguments.", "25. The Court reiterates that under Article 35 § 1 of the Convention it may only deal with a matter after all domestic remedies have been exhausted. The purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-IV). The obligation to exhaust domestic remedies requires that an applicant make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances.", "26. The Court further recalls that as of 22 March 2002 a constitutional complaint under section 63 of the Constitutional Court Act is considered an effective remedy in respect of the length of proceedings still pending in Croatia (see Slaviček v. Croatia (dec.), no. 20862/02, ECHR 2002-VII). However, at that time it was not clear whether the new remedy would at all apply to the length of enforcement proceedings (see Pibernik v. Croatia (dec.), no. 75139/01, 4 September 2003).", "The subsequent developments in the Constitutional Court’s case-law showed that only as of 2 February 2005 did a constitutional complaint become an effective remedy for the length of enforcement proceedings (see Karadžić v.Croatia, no. 35030/04, § 38, 15 December 2005). 27. The Court reiterates that the issue whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged with the Court (see Baumann v. France, no. 33592/96, § 47, ECHR 2001-V (extracts)).", "This rule is subject to exceptions which may be justified by the specific circumstances of each case (see Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002-VIII). 28. Turning to the present case, the Court observes that the applicant lodged his application with the Court on 12 July 2004. It was not until more than a year and a half later that the Constitutional Court held for the first time that there had been a violation of the right of access to a court in a similar case.", "Accordingly, the applicant could not have been expected to file such a complaint, which at that time did not offer him any reasonable prospect of success. 29. As to a possible departure from the general rule of non-exhaustion, the Court does not find any special circumstances which would justify making an exception to that rule in the present case (see Omerović v. Croatia, no. 36071/03, 1 June 2006) 30. In these circumstances, the Court considers that the applicant’s complaint cannot be rejected for failure to exhaust domestic remedies.", "31. The Court further notes that the application 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 32. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 33. The Government submitted that the proceedings were complex and not of a significant importance to the applicant.", "They stressed that F.P. had paid almost half of his whole debt to the applicant. As to the conduct of the applicant the Government argued that the applicant had contributed to the length of proceedings because he had agreed that the intervention scheduled for 25 October 2004 be postponed. As to the conduct of the domestic authorities the Government submit that the domestic courts in the enforcement proceedings were bound by the contents of the applicant’s application and that it was on the applicant to choose the best means of enforcement. 34.", "The applicant contested these arguments. 35. The Court reiterates that it is for the Contracting States to organise their legal systems in such a way that their courts can guarantee to everyone the right to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time (see, among other authorities, Horvat v. Croatia, no. 51585/99, § 59, ECHR 2001-VIII). 36.", "The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Estima Joge v. Portugal, judgment of 21 April 1998, Reports of judgments and decisions 1998-II, and Vodopyanovy v. Ukraine, no. 22214/02, 17 January 2006 and Omerović v. Croatia, no. 36071/03, 1 June 2006). 37. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.", "Having regard to its case-law on the subject, the Court considers that in the instant case the length of the enforcement proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 38. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 39. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. 40. The Government submitted that the amount claimed was excessive and that there was no correlation between the sum claimed and the applicant’s financial expectations. 41.", "As to the non-pecuniary damage sought, the Court, ruling on an equitable basis and taking into account that the case has been pending for about six and half years, awards the applicant 3,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount. B. Costs and expenses 42. The applicant also claimed EUR 1,830 for the costs and expenses incurred before the Court. 43.", "The Government did not express an opinion on the matter. 44. 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 in the proceedings before the Court. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amount which should be converted into Croatian kunas at the rate applicable at the date of settlement: (i) EUR 3,000 (three thousand euros) in respect of non-pecuniary damage; (ii) EUR 1,500 (one thousand and five hundred euros) in respect of costs and expenses; and (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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 7 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos Rozakis RegistrarPresident" ]
[ "SECOND SECTION CASE OF LOVRIĆ v. CROATIA (Application no. 38458/15) JUDGMENT STRASBOURG 4 April 2017 FINAL 04/07/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Lovrić v. Croatia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Işıl Karakaş, President,Julia Laffranque,Nebojša Vučinić,Valeriu Griţco,Ksenija Turković,Jon Fridrik Kjølbro,Stéphanie Mourou-Vikström, judges,and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 28 February 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "38458/15) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Zvonimir Lovrić (“the applicant”), on 29 July 2015. 2. The applicant was represented first by Mr A. Fiuri and subsequently by Mr I. Bošković, both advocates practising in Požega. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.", "The applicant alleged that he had been unable to challenge before judicial authorities the decision (resolution) to exclude him from an association of which he was a member. 4. On 8 October 2015 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant lives in Čaglin. 6. The applicant was a member of a hunting association, V., based in Čaglin (hereafter “the association”). 7. On 17 June 2012 the association’s executive board initiated internal proceedings against the applicant before its disciplinary commission.", "The executive board sought the applicant’s suspension until the next session of the association’s general meeting (skupština) for reporting a member of the association to the police, falsely accusing him of the criminal offence of intimidation. The executive board argued that by doing so the applicant had committed a serious breach of his duties as a member, a disciplinary offence stipulated in the association’s internal regulations. 8. By a decision of 25 August 2012 the disciplinary commission dismissed the disciplinary action against the applicant. No appeals were lodged against that decision.", "9. The executive board nevertheless referred the matter to the general meeting for re-examination, convening an extraordinary session. 10. On 2 September 2012 the general meeting adopted, by twenty votes to seven, a resolution expelling the applicant from the association. He was informed that he could appeal against that decision and that any appeal would be examined at the general meeting’s (regular) annual session.", "11. The applicant appealed, but the general meeting’s resolution was upheld by twenty-one votes to three following the adoption of another resolution at the annual session held on 20 February 2013. 12. The general meeting did not give any reasons for expelling the applicant in either of its resolutions. 13.", "On 11 January 2014 the applicant brought a civil action against the hunting association in the Požega County Court (Županijski sud u Požegi), whereby he asked the court to declare unlawful the general meeting’s resolution of 20 February 2013 and to reinstate him as a member. He relied on section 26(1) of the Associations Act (see paragraph 22 below) and argued that the decision to expel him had been adopted in breach of the procedure provided for in the association’s statute and its internal regulations on disciplinary proceedings. In particular, he submitted that, in the absence of appeals against the disciplinary commission’s decision of 25 August 2012 (see paragraph 8 above), the general meeting could not have overridden that decision because under the association’s statute that commission was the only body authorised to decide on the expulsion of a member. 14. By a decision of 4 March 2014 the County Court declared the applicant’s action inadmissible, on the grounds that the matter was outside the jurisdiction of the courts.", "The relevant part of that decision reads as follows: “Section 26(1) of the Associations Act suggests that legal protection by way of civil action in the county court could be sought only if the General Meeting or the other relevant body of the association had failed to examine a member’s report regarding irregularities in the implementation of the statute [of the association], or had failed to correct such irregularities. Such a civil action would therefore be aimed at securing the implementation of the statute of the association, and thus would not provide for legal protection in the sense that a specific decision ... of the association could be declared unlawful. Under section 50 of the defendant association’s Statute [Statut] the disciplinary tribunal imposes disciplinary measures against members who have breached their duties stipulated in the statute. According to section 7(2) of the defendant association’s Rules on Disciplinary Proceedings and Disciplinary Liability of Members, a request for review may be lodged with the General Meeting [to contest] the Disciplinary Tribunal’s decision to expel [a member]. The time-limit for the General Meeting to adopt a resolution on the request is not stipulated.", "The General Meeting’s resolution is final. ... since the plaintiff in his action does not seek [legal] protection envisaged in section 26(1) of the Associations Act, but asks [the court] to declare unlawful the defendant’s resolution to expel him, on which [issue] it is for the General Meeting to make a final decision ... this case does not fall within the jurisdiction of the courts ...” 15. The applicant then appealed against that decision to the Supreme Court (Vrhovni sud Republike Hrvatske). 16. By a decision of 2 April 2014 the Supreme Court dismissed the applicant’s appeal and upheld the first-instance decision, reasoning as follows: “The first-instance court was correct in declaring the action inadmissible, because the case does not fall within the jurisdiction of the courts ...", "In particular, pursuant to section 26(1) of the Associations Act ... the conduct of associations is supervised by their members, and if a member finds irregularities in the implementation of the statute he or she is entitled to report it to the relevant body of the association designated in the statute or to the General Meeting if there is no relevant body designated in the statute. Furthermore, if the written report is not examined at the General Meeting or by the relevant body of the association designated in the statute within thirty days of its submission, or if irregularities are not corrected, the member may bring a civil action in the county court within whose area of jurisdiction the registered office of the association is situated, with a view to protecting his or her rights as stipulated in the statute. The said provision ... governs jurisdiction of the courts regarding the right of the members of an association to supervise its conduct. That right does not entail the power to contest the lawfulness of a decision adopted in disciplinary proceedings against the plaintiff as a member, as correctly explained in the impugned [first-instance] decision. In this connection it should be taken into account that the case concerns membership of a ... voluntary organisation [where] members may under the internal rules regulate the protection of [their] membership rights.", "Therefore, the decision to expel a member does not fall within the jurisdiction of the courts under section 26(1) of the Associations Act. The defendant association is not an entity vested with public authority, and the decisions it adopts are not administrative acts, which means that the plaintiff’s action could not even be examined by the Administrative Court under the [relevant provisions] of the Administrative Disputes Act. That is also the opinion of the Constitutional Court, as expressed in the case U-III-140/2006. It follows that the county court was correct in deciding that courts have no jurisdiction to decide on the plaintiff’s action ...” 17. On 12 June 2014 the applicant lodged a constitutional complaint against the Supreme Court’s decision.", "He alleged violations of his right to a fair procedure guaranteed by Article 29 paragraph 1 of the Croatian Constitution (see paragraph 19 below), and also explicitly relied on Article 6 § 1 of the Convention. 18. By a decision of 18 December 2014 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant’s constitutional complaint inadmissible and served its decision on his representative on 30 January 2015. It found that the case did not raise any constitutional issues. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. The Constitution 19. The relevant Articles of the Croatian Constitution (Ustav Republike Hrvatske, Official Gazette no. 56/90 with subsequent amendments) read as follows: Article 16 “(1) Rights and freedoms may be restricted only by law in order to protect the rights and freedoms of others, the legal order, public morals or health. (2) Every restriction of rights and freedoms should be proportional to the nature of the necessity for the restriction in each individual case.” Article 29(1) “Everyone shall be entitled to have his rights and obligations, or suspicion or accusation of a criminal offence decided upon fairly and within a reasonable time by an independent and impartial court established by law.” Article 43 “Everyone shall be guaranteed the right to associate freely for the protection of their interests or promotion of social, economic, political, national, cultural and other convictions or goals.", "For this purpose, anyone may freely form trade unions and other associations, join them or leave them, in accordance with the law. The right to associate freely is limited by the prohibition of any violent threat to the democratic constitutional order and the independence, unity, and territorial integrity of the Republic of Croatia.” Article 134 “International agreements in force which have been concluded and ratified in accordance with the Constitution and made public shall be part of the internal legal order of the Republic of Croatia and shall have precedence over the [domestic] statutes. ...” B. Relevant legislation 1. Associations Act 20.", "The Associations Act of 2002 (Zakon o udrugama, Official Gazette no. 11/02), which was in force between 1 January 2002 and 30 September 2014, was the legislation governing associations at the material time. 21. Section 3 provided that rules governing civil-law partnerships (ortaštvo) applied mutatis mutandis to unregistered associations, that is, to associations without the status of a legal entity. Civil-law partnerships were regulated first by the Obligations Act of 1978, and subsequently by the Obligations Act of 2006.", "22. Section 26(1) of the Associations Act provided as follows: V. SUPERVISION Competence to perform supervision Section 26(1) “The conduct of associations is supervised by their members. Any member who finds irregularities in the implementation of the statute [of the association] is entitled to report it to the relevant body of the association designated in the statute, or to the General Meeting if no relevant body has been designated in the statute. If the written report is not examined at the General Meeting or by the relevant body of the association designated in the statute within thirty days of its submission, or if irregularities are not corrected, the member may bring a civil action in the county court within whose area of jurisdiction the registered office of the association is situated, with a view to protecting his or her rights as stipulated in the statute.” 23. Provisions identical to those in sections 3 and 26(1) of the Associations Act of 2002 are contained in sections 1(3) and 42(2) and (3) of the Associations Act of 2014 (Zakon o udrugama, Official Gazette no.", "74/14) , which entered into force on 1 October 2014. 2. Civil Procedure Act 24. The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/77 with subsequent amendments, and Official Gazette of the Republic of Croatia no.", "53/91 with subsequent amendments), which has been in force since 1 July 1977, read as follows: Section 1 “This Act provides for rules of procedure on the basis of which the courts hear and decide disputes concerning fundamental rights and obligations of man and of the citizen, personal and family matters as well as employment, commercial, property and other civil-law disputes, unless for some of these disputes the law provides that the courts shall resolve them by [applying] rules of some other procedure.” 5.a. Reopening of proceedings following a final judgment of the European Court of Human Rights in Strasbourg finding a violation of a fundamental human right or freedom Section 428a “(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional protocols thereto, ratified by the Republic of Croatia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, file a petition with the court in the Republic of Croatia which adjudicated at first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to have the decision [in question] set aside. (2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings. (3) In the reopened proceedings the courts are required to observe the legal views expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.” 3. Administrative Disputes Act 25.", "The relevant part of the Administrative Disputes Act of 1977 (Zakon o upravnim sporovima, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/77, and Official Gazette of the Republic of Croatia no. 53/91, with subsequent amendments), which was in force between 1 July 1977 and 31 December 2011, provided as follows: Section 66 “A request for the protection of a constitutionally guaranteed right or freedom ... if such a right or freedom has been violated by a final individual act [that is, decision], and no other judicial protection is secured, shall be decided by the [Administrative Court], by applying mutatis mutandis the provisions of this Act.” 26. Such a remedy of last resort – to be used, in the absence of any other judicial protection, against decisions of public authorities capable of violating constitutionally guaranteed rights or freedoms – is no longer provided for in the Administrative Disputes Act of 2011 (Zakon o upravnim sporovima, Official Gazette no. 20/10 with subsequent amendments), which entered into force on 1 January 2012.", "C. Relevant practice 1. Practice submitted by the Government (a) Case-law of the Constitutional Court 27. In decision no. U-III-3907/2005 of 11 January 2005 the Constitutional Court held as follows: “In the present case the relevant provision is section 26(1) of the Associations Act ... The case file of the Rijeka County Court shows that the complainant sought the setting aside of individual decisions of the relevant bodies of the hunting society S.P., whereby [he] had been found guilty of a breach of discipline and the disciplinary measure of exclusion from the association had been imposed.", "In the reasons of the contested decision the Supreme Court stated as follows: ‘It follows from section 26(1) of the Associations Act that the protection of rights by bringing a civil action in a county court may be sought only if the relevant body, or the association’s General Meeting ‘does not examine’ the report of the member about irregularities in the implementation of the statute [of the association], and if such irregularities are not corrected. Therefore, this action ensures the implementation of the statute [of the association], and not the protection which would entail the right to have a particular decision of the relevant body of the association set aside.’ The Constitutional Court considers well-founded the Supreme Court’s view that, because the complainant with his action does not seek from the Rijeka County Court the protection prescribed by section 26(1) of the Associations Act, but [seeks] the setting aside of the impugned decisions of the Disciplinary Commission of the hunting society S.P. to exclude [him] from membership (of which the defendant’s General Meeting is to make a final decision), examination of the plaintiff’s claim in the present case is not within the jurisdiction of the ordinary courts.” 28. The relevant part of the Constitutional Court’s decision no. U-III-217/2001 of 25 April 2007 reads: “The complainant brought an action in the Administrative Court against the decision to exclude him from a hunting society, on the grounds of lack of jurisdiction of the body that made the decision, erroneous application of procedural rules and failure to establish facts.", "The Administrative Court treated the applicant’s action as a request under section 66 of the Administrative Disputes Act [hereinafter “ADA”], [because] the contested decision of the hunting society is not an administrative act [such act being the only act] against which, under section 6 of ADA, administrative-dispute [proceedings] may be instituted. The Administrative Court, in the reasons for its decision to declare the request under section 66 of ADA inadmissible, expressed the view that in the present case there had been no violation of the right to freedom of association ... since the Constitution does not guarantee to anyone membership of any particular association, nor does the Constitution prescribe conditions under which citizens may enjoy that freedom. Rather, those conditions are provided for in [the relevant] legislation, in the present case, in the Hunting Act. In the light of the foregoing, the Constitutional Court is of the opinion that the Administrative Court has not violated Article 19 paragraph 2 of the Constitution, namely, that it has not denied the complainant his constitutional right to judicial review of the lawfulness of administrative acts. This opinion of the Constitutional Court follows from the fact that the entity which issued the act whose lawfulness the complainant had contested before the Administrative Court is not a legal entity vested with public authority, and that therefore the act issued by [such] entity ... is not an administrative act by its legal nature.", "In line with the above, the Administrative Court, in accordance with section 66 of ADA, conducted the proceedings providing judicial protection against a final decision against which no other judicial protection is secured, in which proceedings it found, and gave reasons for its view, that in the present case there had been no violation of the constitutional right to freedom of association.” 29. In decision no. U-III-1630/2006 of 17 June 2009 the Constitutional Court expressed the following view: “In the case of membership of an association of citizens, such as a hunting society, one cannot speak of deciding upon rights and obligations within the meaning of Article 29 paragraph 1 of the Constitution. [Rather, such cases concern] internal rules of an association which is entitled to prescribe the rights, obligations and responsibilities of its members by itself, through its own acts, as well as the requirements for joining or being excluded from it. Section 26(1) of the Associations Act recognises judicial protection only if the [governing] bodies of the association do not fulfil their obligations ...", "Since this is not so in this particular case, the Constitutional Court finds that Article 29 paragraph 1 of the Constitution is not relevant.” 30. The relevant part of the Constitutional Court’s decision no. U-III-3829/2010 of 12 May 2011 reads as follows: “In the opinion of the Administrative Court a request for the protection of a constitutionally guaranteed right or freedom cannot be lodged against a final decision adopted in proceedings for exclusion from a political party, trade union or other association or organisation, because such final decision does not interfere with constitutionally guaranteed rights or freedoms within the meaning of section 66 of the Administrative Disputes Act. As regards the complainant’s reference to the Constitutional Court’s decision no. U-III-1283/2000 of 12 February 2003, the Constitutional Court notes that a decision on membership of an association of citizens, such as a hunting society, is not a decision on rights and obligations within the meaning of Article 29 paragraph 1 of the Constitution.", "[Rather, such cases concern] the internal rules of an association which is entitled to prescribe the rights, obligations and responsibilities of its members by itself, through its own acts, as well as the requirements for joining or being excluded from it.” 31. In decision no. U-III-5688/2014 of 5 November 2014 the Constitutional Court held: “In the present case the Varaždin County Court found that the courts had no jurisdiction and declared inadmissible the complainant’s [civil] action [whereby he sought to] have the decision of the defendant, hunting society F., whereby [he] had been excluded from membership of that society, declared null and void. Making a decision on such claim does not fall within the jurisdiction of the municipal courts since it is not a dispute under section 1 of the Civil Procedure Act for which section 34 of [the same] Act prescribes jurisdiction of that type of court. Neither is it a dispute that would fall within the jurisdiction of a county court within the meaning of section 26(1) of the Associations Act because that legislation grants the members of an association the right to supervise the association’s bodies in issuing general rules, and not the right to protect the rights violated by [the association’s] decisions.", "Moreover, an association within the meaning of section 1 of the Associations Act is not an entity vested with public authority, and decisions it issues are not administrative acts, so adjudication on the complainant’s claim ... does not fall within the jurisdiction of the administrative courts.” (b) Case-law of the Supreme Court 32. In decision no. Gž-9/15 of 12 May 2015 the Supreme Court held as follows: “[Given that] pursuant to [section 26] of the Associations Act, judicial protection could be sought by a member of a society (association) only to correct irregularities in the implementation of the statute [of the association], which was not corrected in the manner described in that provision, the courts have no jurisdiction to decide on the validity or lawfulness of a decision of an association imposing a sanction of exclusion from membership. In particular, membership of an association does not give a member rights that would, in terms of section 1 of the Civil Procedure Act, enjoy judicial protection against the sanction of exclusion from membership.” 2. Other relevant practice (a) Case-law of the Constitutional Court 33.", "The relevant part of the Constitutional Court’s decision no. U-III-730/99 of 15 November 2000 reads: “Likewise, the complainant’s constitutional right to freedom of association was not violated by the contested decisions, because that right, in the opinion of the Constitutional Court, does not exclude the possibility of determining liability of members of a certain association in accordance with relevant [internal] regulations, and consequently, the possibility of expelling a member from the association after he or she was found liable for breaching these regulations.” (b) Case-law of the Supreme Court 34. In decision no. Gž 20/06-2 of 7 February 2007 the Supreme Court held: “This court agrees with the assessment of the Virovitica County Court that it had no jurisdiction in this matter. The appellant’s reliance on section 26 of the Associations Act is ill-founded because that provision defines jurisdiction of the courts in relation to the right of members to supervise the conduct of [their] association.", "That right of supervision does not entail [the right] to contest the validity of the defendant [association]’s decision adopted in the disciplinary proceedings against the plaintiff as a member of the association. It was therefore correct for the Virovitica County Court to decline its subject-matter jurisdiction. ... [However], the assessment of the Virovitica County Court that deciding on membership and membership rights, as well as resolving disputes arising from membership of a voluntary association, does not fall within the jurisdiction of the courts, not even under section 66 and ... of the Administrative Disputes Act, is incorrect. Section 66 of the Administrative Disputes Act provides that a request for the protection of a constitutionally guaranteed right or freedom, if such a right or freedom has been violated by a final individual act [that is, decision], and no other judicial protection is secured, will be decided by the [Administrative Court] by applying mutatis mutandis the provisions of that Act. Under Article 29 paragraph 1 of the Croatian Constitution and Article 6 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, everyone is entitled to have an independent and impartial court established by law decide on his rights and obligations of a civil nature.", "Having regard to the cited provisions and given that the final decision of the defendant [association] on the plaintiff’s expulsion is a final individual act which may violate a constitutional right and the freedom of association of citizens, the plaintiff who considers that his rights as a citizen and a member of the association were violated by the decisions of the disciplinary tribunal of the defendant [association], is entitled to judicial protection[, in particular] before the Administrative Court. Therefore, the Administrative Court has jurisdiction under section 66 of the Administrative Disputes Act to decide on such request because otherwise the plaintiff would be deprived of his civil and constitutional right to judicial protection in relation to his right to membership of an association, which is a right of a civil nature, in respect of which he is guaranteed judicial protection. Since it is therefore the Administrative Court that has jurisdiction in this case, the first-instance court, by declaring the plaintiff’s action inadmissible, wrongly applied [the relevant provision] of the Civil Procedure Act ... and committed a serious breach of rules of civil procedure.” 35. The relevant part of the Supreme Court’s decision no. Gž 1/04-2 of 21 February 2007 reads as follows: “The plaintiffs, with a view to contesting the lawfulness of the decision of the defendant [association] terminating [their] membership of [that association], sought protection of their rights before the Čakovec County Court relying on section 26(1) of the Associations Act.", "Under that provision the conduct of associations is supervised by their members ... In interpreting the cited provision the Čakovec County Court correctly declined its jurisdiction in the matter by holding that section 26 of the Associations Act regulates the issue of jurisdiction of the courts in relation to the right of the members to supervise the conduct of [their] association. That right of supervision certainly does not entail [the right] to contest the validity of the defendant [association]’s decision adopted in the disciplinary proceedings against the plaintiffs as members of the association. It was therefore correct for the Čakovec County Court to decline its subject-matter jurisdiction. The lack of subject-matter jurisdiction of the Čakovec County Court under section 26(1) of the Associations Act ... does not, however, imply an absolute lack of jurisdiction of the courts in the matter, and that the said action should be declared inadmissible.", "As previously mentioned, the plaintiffs in these proceedings seek protection of their membership rights in relation to the decision of the disciplinary tribunal of the defendant [association] terminating their membership of the defendant [association]. The right to membership of an association is of a civil nature and as such, in accordance with Article 29 paragraph 1 of the Croatian Constitution and Article 6 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, enjoys judicial protection. Specifically, according to the cited provisions of the Croatian Constitution and the European Convention on Human Rights, everyone is entitled to have an independent and impartial court established by law decide on his rights and obligations of a civil nature. Under section 66 of the Administrative Disputes Act a request for the protection of a constitutionally guaranteed right or freedom ... if such a right or freedom has been violated by a final individual act [that is, decision], and no other judicial protection is secured, will be decided by the [Administrative Court], by applying mutatis mutandis the provisions of that Act. Having regard to the cited provisions of section 66 of the Administrative Disputes Act and given the fact that the decision of the disciplinary tribunal of the defendant [association] is an individual act, the plaintiffs who consider that their rights as citizens and members of the association were violated by the decisions of the disciplinary tribunal of the defendant [association], are entitled to judicial protection before the Administrative Court.", "Since, therefore, by declaring the plaintiffs’ action inadmissible, a serious breach of rules of civil procedure had been committed ... the contested decision had to be reversed and the case transferred to the Administrative Court, as the court having jurisdiction.” 36. In decision no. Gž 19/07-2 of 17 April 2008 the Supreme Court expressed the following view: “The subject of the dispute is the plaintiffs’ claim to have the decision[s] of the defendant [association] adopted by its General Meeting [on] 10 December 2000 ... and 9 July 2001 declared null and void. The plaintiffs further asked the court to declare that they were fully fledged members of the defendant association, and to order the defendant to enable [them] to regularly exercise [their] membership rights established by the statute and other [internal regulations] of the defendant. ...", "The question of the admissibility or inadmissibility of the selected avenue of legal protection should be assessed primarily with regard to section 26(1) of the Associations Act, which also applies to the defendant [association] and which, as special legislation, has priority in application compared with the [relevant] provisions of the Civil Procedure Act on declaratory actions. ... The admissibility requirements for such action are: - the plaintiffs, as members of the association, found irregularities in the implementation of [its] statute, - the plaintiffs reported this in writing to the relevant body of the association designated in the statute, or to the General Meeting, - the report was not examined at the session of the relevant body designated in the statute within thirty days of its submission, or it was examined, but the irregularities were not corrected. Since the same provision provides, in fine, for the right of action of a member of an association, it is obvious that the aim of instituting proceedings is to remedy the irregularities in the implementation of the statute. If the above requirements are met, a member has the right to bring a civil action in the [relevant] county court ‘with a view to protecting his or her rights as stipulated in the statute’.", "Therefore there has to be an irregularity in the implementation of the statute, which was not remedied in the described manner, and this irregularity must have violated a right of the member (who is bringing the action) stipulated in the statute. The way to remedy irregularities in the implementation of the statute [of an association] which have violated a member’s right stipulated in the statute depends on the type of irregularity in question, but any [type of] action envisaged in the Civil Procedure Act cannot be ruled out in advance. One cannot exclude the right of a member to bring a declaratory action with a view to establishing that a certain decision of a [governing] body of an association is null and void or [to bring] a constitutive action seeking to have a decision set aside, because it is possible that the irregularity in the implementation of the statute which violated the member’s right is remedied by the mere finding that the [contested] decision is null and void or by setting it aside, without further ado (action) by the association’s bodies. For these reasons ... the decision of the first-instance court [to declare the action inadmissible] has to be quashed and the case remitted to that court for fresh proceedings. ...", "Finally, it is to be noted that, if [the court] in the fresh proceedings finds that the defendant [association]’s decisions violated the plaintiffs’ rights as citizens and members of the association in the disciplinary proceedings, then the courts, in particular the Administrative Court, would have jurisdiction on the basis of section 66 of the Administrative Disputes Act.” III. RELEVANT COUNCIL OF EUROPE INSTRUMENTS A. Recommendation of the Committee of Ministers on the legal status of non-governmental organisations in Europe 37. The relevant part of Recommendation CM/Rec(2007)14 of the Committee of Ministers to member States on the legal status of non-governmental organisations in Europe, adopted by the Committee of Ministers on 10 October 2007 at the 1006th meeting of the Ministers’ Deputies, reads as follows: C. Membership “23. Members of NGOs should be protected from expulsion contrary to their statutes.” 38.", "The relevant part of the explanatory report to the above recommendation reads as follows: “59. As with admission, the expulsion of someone from a membership-based NGO is generally a matter for the organisation itself. However, the rules governing membership in its statute must always be observed and national law should thus ensure that someone facing expulsion or who has been expelled has available an effective means on insisting on such observance; see Applic. No. 10550/83, Cheall v. United Kingdom, 42 DR 178 (1985).", "Moreover the rules governing expulsion should not be wholly unreasonable or arbitrary; in particular there should be a fair hearing before any decision is taken. 119. The best means of ensuring ethical, responsible conduct by NGOs is to promote self-regulation in this sector at the national and international level. ... Nonetheless states have a legitimate interest in regulating NGOs so as to guarantee respect for the rights of third parties (whether donors, employees, members or the public) and to ensure the proper use of public resources and respect for the law.", "120. In most instances the interests of third parties can be adequately protected by enabling them to bring the relevant matter before the courts; there should generally be no need for a public body to take any other action on their behalf.” B. Fundamental Principles on the Status of Non-governmental Organisations in Europe 39. The aforementioned recommendation by the Committee of Ministers is based on the Fundamental Principles on the Status of Non-governmental Organisations in Europe, adopted by participants at multilateral meetings held in Strasbourg from 19 to 20 November 2001, 20 to 22 March 2002 and 5 July 2002. The relevant part of that document reads as follows: Membership “22.", "Members of an NGO should be protected from expulsion contrary to its statutes. ... Supervision “66. NGOs may be regulated in order to secure the rights of others, including members and other NGOs, but they should enjoy the benefit of the presumption that any activity is lawful in the absence of contrary evidence.” 40. The relevant part of the explanatory report to the Fundamental Principles on the Status of Non-governmental Organisations in Europe reads as follows: Supervision “71.", "States nevertheless have a legitimate interest in regulating NGOs so as to guarantee respect for the rights of third parties, and this may include action to safeguard the reputation and economic interests of other NGOs in particular. State intervention may also be needed to protect members against abuse of an NGO’s dominant position, particularly against exclusion in breach of the organisation’s rules, imposition of certain unfavourable conditions, or even adoption of wholly unreasonable or arbitrary rules. However, in most instances, the appropriate form of protection would be the possibility for members to bring the matter before the courts; there should generally be no need for a public body to take action on the members’ behalf.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 41. The applicant complained that he had not had access to court to contest the decision (resolution) whereby he was expelled from the association of which he was a member.", "He relied on Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 42. The Government contested that argument. A. Admissibility 1. The submissions of the parties (a) The Government 43. The Government argued that Article 6 § 1 of the Convention was inapplicable to the present case because the proceedings complained of had not involved a dispute over the applicant’s civil “rights and obligations”, which were recognised, at least on arguable grounds, under domestic law.", "44. In particular, the Government averred that the applicant’s expulsion from the hunting association, V., could only have violated his membership rights arising from the association’s statute. It could not have violated any of his rights recognised by the Constitution, primary or secondary (subordinate) legislation, or an individual decision issued by public authorities. The Government concluded that those membership rights were not rights that were “recognised under domestic law”, and that Article 6 of the Convention was therefore inapplicable. 45.", "Moreover, in the Government’s view, the applicant could not even claim that those rights, based on the statute of the association, were recognised, at least on “arguable grounds”, under domestic law. The decision to declare the applicant’s civil action inadmissible had been in line with the established case-law of the domestic courts, according to which a decision to expel a member from an association was not a decision concerning rights and obligations within the meaning of Article 29 paragraph 1 of the Croatian Constitution (see paragraphs 29-30 above). Nor did it constitute an interference with his or her freedom of association, as that freedom did not encompass the right to be a member of a particular association (see paragraphs 27 and 30 above). 46. In the alternative, the Government argued that the proceedings complained of did not concern a dispute over the applicant’s rights.", "They explained that the alleged violation of the applicant’s membership rights could not have been remedied in the proceedings instituted before the judicial authorities under section 26(1) of the Associations Act. The function of such proceedings was to supervise the conduct of the governing bodies of an association, namely to assess whether a given action had been in accordance with the association’s statute. The courts could not make a decision on membership rights potentially violated by such action, nor could they substitute the decision of the relevant governing bodies with their own decision. For the Government, that meant that the proceedings envisaged in section 26(1) of the Associations Act had not been directly decisive for the applicant’s right to be reinstated as a member of the association, and thus had not entailed a dispute over his rights, which was necessary for Article 6 § 1 of the Convention to apply. 47.", "For the same reason, the Government submitted, the applicant’s rights as a member of the association, stemming from its statute, were not “civil”, within the meaning of Article 6 § 1 of the Convention. In any event, and to the extent that the applicant was arguing that his freedom of association had been violated by his expulsion, the Government referred to the Court’s case-law according to which freedom of association was not a civil right but a political one, to which Article 6 § 1 of the Convention was inapplicable (see Pierre-Bloch v. France, 21 October 1997, § 50, Reports of Judgments and Decisions 1997‑VI; Papon v. France (dec.), no. 344/04, 11 October 2005; and Refah (Prosperity) Party and Others v. Turkey (dec.), nos. 41340/98, 41342/98, 41343/98 and 41344/98, 3 October 2000). 48.", "For those reasons the Government urged the Court to declare the application inadmissible. (b) The applicant 49. The applicant replied that an association’s statute was the law for the association and its members, and that therefore the rights arising from the statute were rights recognised under domestic law. Furthermore, the proceedings he complained about had not exclusively concerned violations of the statute; they had also concerned a violation of his freedom of association, which must be respected also by associations themselves. 50.", "The applicant also submitted that he had been a hunter for a long time and that, because he had been expelled from the association, he had lost the right to hunt on land leased by it. The only way for him to continue exercising that right was to become a member of another hunting association, which would have certainly caused him damage because that association’s hunting land was far from his place of residence. 2. The Court’s assessment 51. The Court reiterates that Article 6 § 1 of the Convention secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal.", "The right of access, namely the right to institute proceedings before a court in civil matters, constitutes one aspect of this “right to a court” (see, among many other authorities, Osman v. the United Kingdom, 28 October 1998, § 147, Reports 1998‑VIII, and Golder v. the United Kingdom, 21 February 1975, §§ 28-36, Series A no. 18). This right extends only to disputes (“contestation” in the French text) over “civil rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether such rights are protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, 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 many other authorities, Baka v. Hungary [GC], no. 20261/12, § 100, ECHR 2016).", "However, 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 (ibid., § 101). 52. As to the existence of “rights and obligations”, the Court firstly observes that section 26(1) of the Associations Act (see paragraph 22 above) entitled members of an association to bring a civil action “with a view to protecting [their] rights as stipulated in the statute [of the association]”. Thus Croatian law not only mentioned but also afforded judicial protection to the members’ rights stemming from the statute of the association to which they belonged. In the present case the applicant, relying precisely on that provision, argued that the decision to expel him had been adopted in breach of the procedure provided for in the association’s statute because, in the absence of appeals against the disciplinary commission’s decision in his favour, the general meeting could not have overridden that decision (see paragraph 13 above).", "The Court therefore finds it difficult to accept the Government’s contention that those rights were not recognised under domestic law (see paragraphs 44-45 above). 53. That element, together with the fact that the present case concerns the rights of an existing member of an association rather than admission of a potential member, distinguishes it from the Rutkowski case where the Court found that the applicant had not had the right under the domestic law to become a member of a hunting association, and that Article 6 of the Convention had therefore been inapplicable (see Rutkowski v. Poland (dec.), no. 30867/96, 16 April 2002). 54.", "Secondly, the Court notes that under Croatian law hunting associations are voluntary associations (see the Supreme Court’s decision of 2 April 2014 cited in paragraph 16 above) and that there are no elements to suggest that they could be regarded as public law associations to which Article 11 of the Convention guaranteeing freedom of association would not be applicable (see Herrmann v. Germany, no. 9300/07, § 76, 20 January 2011). Freedom of association is recognised both under the Croatian Constitution and the Convention, which by virtue of Article 134 of the Constitution forms an integral part of the Croatian legal system (see paragraph 19 above). The case-law of the former European Commission of Human Rights suggests that expulsion from an association in breach of its rules, decided pursuant to arbitrary rules or entailing exceptional hardship for the member concerned, could constitute a violation of his or her freedom of association (see Cheall v. the United Kingdom, no. 10550/83, Commission decision of 13 May 1985, Decisions and Reports 42, pp.", "178 and 186). 55. Freedom of association has both civil and political aspects. The present case does not concern the applicant’s membership of a political party, that is, the political aspect of that freedom, in which case Article 6 § 1 would not be applicable (see, for example, Refah (Prosperity) Party and Others, cited above). Rather, it concerns his membership of a hunting association with a private-law character, that is, the civil aspect of that freedom to which Article 6 § 1 indubitably applies (see APEH Üldözötteinek Szövetsége and Others v. Hungary, no.", "32367/96, §§ 30-36, ECHR 2000‑X). The Court also reiterates in this connection that, where a State confers rights which can be enforced by means of a judicial remedy (see paragraph 52 above), these can, in principle, be regarded as civil rights within the meaning of Article 6 § 1 (see Oršuš and Others v. Croatia [GC], no. 15766/03, § 105, ECHR 2010). 56. For these reasons, the Court has held in a similar case that the right to be a member of an association is a right of a civil nature, concomitant to the freedom of association, and that Article 6 § 1 therefore applied to proceedings concerning expulsion from an association (see Sakellaropoulos v. Greece (dec.), no.", "38110/08, 6 January 2011). 57. Lastly, the Court finds it evident that the proceedings the applicant complained of in the present case concerned a genuine and serious dispute over his freedom of association, in particular over his right to remain a member of the association in question, and that the outcome of those proceedings was directly decisive for the right and the freedom in question. 58. It follows that the Government’s objection as to the applicability of Article 6 § 1 of the Convention must be dismissed.", "59. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The submissions of the parties (a) The applicant 60. The applicant argued that respect for the autonomy of associations could not be taken as a good reason for refusing judicial protection in cases of obvious infringements of membership rights guaranteed by the law or by the statute of the association. He noted that commercial companies, as membership-based organisations (društva), could also by their constitutive instrument or instrument of incorporation autonomously regulate their internal affairs to a great extent. However, unlike members of (not-for-profit) associations, members of commercial companies were not denied judicial protection of their rights arising from such a legal act, which was of a contractual nature.", "61. In support of his argument, the applicant referred to the views expressed by a professor of company law, who had emphasised the necessity of legal protection of association members from unlawful interference with their membership rights by the association’s governing bodies. The applicant added that such interference could often, as in his case, constitute chicanery motivated by personal animosities. In the applicant’s view the necessity of legal protection followed from the nature of joining an association, which was akin to entering into a contract. Therefore, the issue of whether an association was abiding by its own statute had to be subject to judicial review before the relevant courts.", "62. Lastly, the applicant submitted that the arguments adduced by the domestic courts and the Government to justify declaring his civil action inadmissible reflected the State’s policy of denying judicial protection in cases of that type, which was motivated by the fear that such disputes would overburden the domestic courts. (b) The Government 63. The Government submitted that if the Court were to consider that Article 6 § 1 of the Convention was applicable in the applicant’s case, they would concede that he had been deprived of access to court but argue that that restriction had been based on the law, namely the Associations Act and the consistent case-law of the Constitutional Court and the Supreme Court (see paragraphs 27-32 above). They would also argue that it had pursued a legitimate aim and been proportionate.", "64. In particular, the legitimate aim of the restriction had been respect for the autonomy of associations. Associations were established on a voluntary basis, were free to choose the means for achieving their goals and were entitled to formulate their internal rules, including criteria for membership, grounds for exclusion of members and mechanisms for protection of members’ rights within the association. By joining an association, its members subjected themselves to its rules. The State had tried to secure maximum freedom of association by avoiding the overregulation of associations and had abstained from interfering with associations’ internal affairs.", "It had thus regulated only the registration of associations and their activities in general, while limiting its power to interfere with their affairs to inspection and administrative supervision, leaving matters of internal oversight to the members. 65. The Government argued that if each or even only certain decisions of an association could be disputed before the ordinary courts, this would paralyse the operation of associations, significantly reduce their autonomy and render meaningless the power of internal oversight left to the members. It would thus constitute excessive interference of judicial authorities with the internal affairs of associations. Judicial review of associations’ decisions was therefore limited to exceptional circumstances provided in section 26(1) of the Associations Act (see paragraph 22 above), namely, when the following three conditions were satisfied: - there were irregularities in the implementation of the statute of the association, and - a member had already undertaken certain steps within the association before addressing the court, and - those irregularities had infringed his or her rights arising from the association’s statute.", "66. As to the proportionality of the restriction, the Government argued that by declaring the applicant’s action inadmissible, the domestic courts had not imposed an excessive burden on him. They further noted that the applicant himself had not stated what kind of prejudice he had suffered as a result of his exclusion from the association, apart from being forced to join another hunting association far from his place of residence in order to continue hunting (see paragraph 50 above). 67. In reply to the applicant’s argument comparing membership rights in associations and commercial companies (see paragraphs 60-61 above), the Government stated that, despite the opinions of legal scholars on which the applicant had relied, those were significantly different types of organisations in many aspects (their goals and purposes, their role in society and their position in the legal order).", "Those differences justified minimum regulatory interference with the internal affairs of associations, as well as greater judicial protection of members of commercial companies. 68. For those reasons the Government urged the Court to find that there had been no violation of the applicant’s right of access to court in the present case. 2. The Court’s assessment 69.", "The Court reiterates that the right of access to a court is not absolute and may be subject to limitations that do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim pursued (see, among many other authorities, Baka, cited above, § 120). 70. Turning to the present case, the Court notes that the executive board of the association initiated internal disciplinary proceedings against the applicant before the disciplinary commission for having reported another member of the association to the police. They considered this a serious breach of his duties as a member (see paragraph 7 above).", "Once the disciplinary commission dismissed the disciplinary action against the applicant, the executive board referred the matter to the general meeting, which twice (first at an extraordinary meeting and then at its annual session) voted to expel the applicant. No reasons were given for such a decision at either session (see paragraphs 8-12 above). The applicant’s attempt to contest before judicial authorities the resolution to expel him as being in breach of the association’s statute failed because the courts declined jurisdiction in the matter (see paragraphs 13-14 and 16 above). Their reasoning seems to suggest that in their view the relevant legislation, namely section 26(1) of the Associations Act, did not provide a legal basis for such action and that the decision to expel a member concerned the association’s internal affairs, which could not be reviewed by the courts (see paragraphs 14 and 16 above). 71.", "The Court accepts that the restrictions on the applicant’s right of access to court pursued the legitimate aim stated by the Government, namely respect for the autonomy of associations. In this connection, the Court further reiterates that the organisational autonomy of associations constitutes an important aspect of their freedom of association protected by Article 11 of the Convention (see, mutatis mutandis, cases concerning autonomy of religious communities, Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, §§ 136-38, ECHR 2013 (extracts), and Hasan and Chaush v. Bulgaria [GC], no. 30985/96, §§ 65 and 82-83, ECHR 2000‑XI) and that it can serve as a legitimate aim for restricting the right of access to court (see, mutatis, mutandis, Müller v. Germany (dec.), no. 12986/04, 6 December 2011).", "In particular, associations must be able to wield some power of discipline, even to the point of expulsion, without fear of outside interference. 72. However, as Article 11 § 2 of the Convention suggests, freedom of association and, consequently, the organisational autonomy of associations, is not absolute. This means that State interference with the internal affairs of associations cannot be completely excluded. In particular, an association must be held to some minimum standard in expelling a member (see the Council of Europe instruments cited in paragraphs 37-40 above).", "As already noted above (see paragraph 54-56), expulsion from an association could constitute a violation of the freedom of association of the member concerned (for example, if it is in breach of its rules or arbitrary see Cheall, cited above; see also Sakellaropoulos, cited above). 73. The Court accepts that in such cases the scope of judicial review may be restricted, even to a significant extent, in order to respect the organisational autonomy of associations. However, in the present case the applicant, who contested his expulsion from the association for being in breach of its statute, was completely denied access to court. It is difficult to discern whether that was as a result of imprecise or incomplete legislation, its interpretation by the domestic courts, or both.", "What is important is that the applicant should have had access to court but was deprived of it. 74. There has accordingly been a violation of Article 6 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 75.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 76. The Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences. If national law does not allow – or allows only partial – reparation to be made, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, §§ 32-33, ECHR 2000-XI). In this connection the Court notes that under section 428a of the Civil Procedure Act (see paragraph 24 above), an applicant may seek the reopening of the civil proceedings in respect of which the Court has found a violation of the Convention.", "77. Given the nature of the applicant’s complaint and the Court’s reasons for finding a violation of Article 6 § 1 of the Convention, the Court considers that in the present case the most appropriate form of redress would be to reopen the proceedings complained of in due course (see Vrbica v. Croatia, no. 32540/05, § 84, 1 April 2010). As the domestic law allows such reparation to be made, and given that the applicant’s representative did not submit a claim for just satisfaction, the Court considers that there is no call to award him any sum on that account (ibid., § 85). FOR THESE REASONS, THE COURT 1.", "Declares, by a majority, the application admissible; 2. Holds, by six votes to one, that there has been a violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 4 April 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan Bakırcı Işıl KarakaşDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Kjølbro is annexed to this judgment. A.I.K.H.B.", "DISSENTING OPINION OF JUDGE KJØLBRO 1. Although I have some sympathy for the Court’s finding of a violation of Article 6 § 1 of the Convention for lack of access to a court, I regretfully cannot follow the reasoning of my colleagues who, in my mind, are interpreting Article 6 § 1 in such a way that they are creating a right that is not recognised under domestic law. 2. The present case raises the question whether the applicant’s dispute with the hunting association over his expulsion as a member concerned a right that, at least on arguable grounds, was recognised under domestic law (see paragraph 51 of the judgment). In this context, it is important to repeat and underline that 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 Lupeni Greek Catholic Parish and Others v. Romania [GC], no.", "76943/11, § 88, ECHR 2016 (extracts), and Baka v. Hungary [GC], no. 20261/12, § 101, ECHR 2016). 3. In bringing his case before the domestic courts, the applicant sought to have the decision of the general meeting to expel him as a member of the hunting association declared unlawful and to be reinstated as a member of the association (see paragraph 13 of the judgment). In other words, he was challenging his expulsion as a member of the association.", "4. The domestic courts, first the County Court and subsequently the Supreme Court, ruled against the applicant, finding that the case did not fall within the jurisdiction of the courts. In doing so, they were interpreting and applying domestic legislation. They explicitly ruled that the applicant could not challenge the general meeting’s final decision to expel him as a member on the basis of section 26(1) of the Associations Act. Neither could he challenge the lawfulness of the decision on the basis of the provisions of the Administrative Disputes Act, which in this case would be section 66 of the Act (see paragraphs 14 and 16 of the judgment).", "5. In other words, the domestic courts clearly stated that the applicant could not, on the basis of domestic law, challenge the lawfulness of the decision adopted by the general meeting to expel him as a member of the association. This interpretation of domestic law, more specifically of section 26(1) of the Associations Act (and also of section 66 of the Administrative Disputes Act), seems to be fully in accordance with settled case-law of the Constitutional Court and the Supreme Court at the time when the applicant was expelled in 2012, and the Court does not seem to suggest otherwise in its judgment. 6. In my view, the domestic courts’ interpretation of domestic law is to be understood as a substantive limitation concerning the right invoked by the applicant before the domestic courts, and not merely as a procedural limitation on the right to institute court proceedings concerning a right recognised in domestic legislation (see, for example, Roche v. the United Kingdom [GC], no.", "32555/96, §§ 118-119, ECHR 2005‑X, and Markovic and Others v. Italy [GC], no. 1398/03, § 94, ECHR 2006‑XIV). In other words, according to domestic law as interpreted by domestic courts, a decision of a general meeting of a hunting association to expel a member cannot be challenged before the domestic courts. 7. The arguments of the Court for finding Article 6 § 1 of the Convention applicable (see paragraphs 52-56 of the judgment) are, in my view, not sufficient to reach the conclusion that there was a dispute over a right that was recognised, at least on arguable grounds, under domestic law.", "8. First, the Court relies on the wording of section 26(1) of the Associations Act according to which members of an association are entitled to bring disputes before courts “with a view to protecting [their] rights as stipulated in the statute [of the association]” (see paragraph 52 of the judgment). However, as already mentioned, the domestic courts had consistently interpreted section 26(1) of the Associations Act as not granting a member of a hunting association a right to challenge the lawfulness of a decision of the general meeting to expel the person as a member of that association. In deciding whether the dispute concerned a right that was recognised under domestic legislation, the Court should not rely on the wording of section 26(1) of the Associations Act alone, but should rely on the provision as interpreted by the domestic courts. 9.", "Secondly, the Court refers to the fact that freedom of association is recognised under the Croatian Constitution (see paragraph 54 of the judgment) thereby arguing that the dispute concerned a dispute over a right recognised under domestic law. However, the fact that freedom of association is recognised under domestic law is not the same as saying that domestic law grants a right to challenge a decision of a private association to expel a member from the association, a question which the domestic courts have consistently answered in the negative. 10. Thirdly, the Court refers to freedom of association having a civil aspect (and not only a political aspect), and that membership of a hunting association falls under the civil limb of Article 6 § 1 of the Convention (see paragraph 55 of the judgment). However, the judgment cited in support of the Court’s reasoning (APEH Üldözötteinek Szövetsége and Others v. Hungary, no.", "32367/96, §§ 30-36, ECHR 2000‑X) is clearly distinguishable from the present case, as that case concerned a complaint about lack of registration of an association, a right that was clearly recognised under domestic law in Hungary. 11. Finally, the Court refers to Sakellaropoulos v. Greece (dec.), no. 38110/08, 6 January 2011 (see paragraph 56 of the judgment). In my view, that judgment is also distinguishable from the present case as it concerned a civil dispute over the right to membership of an association, a right that was recognised under domestic law.", "12. Therefore, by finding Article 6 § 1 of the Convention applicable to the applicant’s dispute with the hunting association, the Court is, in my view, creating a right that is not recognised under domestic law, that is a right to challenge the lawfulness of a final decision of the general meeting to expel him as a member of a hunting association. For that reason, I voted against finding Article 6 § 1 of the Convention applicable under its civil limb, and as a consequence I also voted against finding a violation of that provision. 13. I would like to draw attention to another aspect of the case.", "The Court has found a violation of Article 6 § 1 of the Convention on the ground that the applicant was denied access to a court, that is he was unable to have his dispute with the hunting association decided by domestic courts. The question therefore arises what the applicant, according to the Court’s finding in this judgment, was entitled to challenge before the domestic courts. In my view, it cannot be the expulsion decision as such, since domestic law – as interpreted by domestic courts – clearly does not give a member a right to contest the lawfulness of a decision to expel him or her as a member of the association. In other words, what the applicant has a right to challenge before domestic courts as a consequence of the Court’s interpretation of Article 6 § 1 of the Convention must be whether the procedure followed in adopting the expulsion order was in conformity with the hunting association’s statute. 14.", "In my view, granting the applicant such limited access to the courts, where the courts’ jurisdiction does not include the lawfulness of the expulsion decision as such, will not do the applicant much good, as the domestic courts in the applicant’s case, that is the County Court and the Supreme Court, have already emphasised the fact that the general meeting’s decision was final (see paragraphs 14 and 16 of the judgment). This reasoning seems to indicate that the body competent to adopt a final decision on the exclusion of the applicant as a member of the hunting association was the general meeting. In other words, even if the procedure followed – as alleged by the applicant – was not in accordance with the statute of the hunting association (see paragraph 13 of the judgment), the exclusion was finally decided by the competent body, that is the general meeting of the association. Therefore, should the applicant seek a reopening of the domestic proceedings or institute new civil proceedings as a consequence of the Court’s judgment, he will not, irrespective of the Court’s finding of a violation of Article 6 § 1 of the Convention in the present case, be entitled to challenge the lawfulness of the expulsion decision as such. 15.", "As already mentioned, I have some sympathy for the Court’s finding of a violation of Article 6 § 1 of the Convention, as there do not seem to be any strong arguments for not granting a member of an association a right to challenge the lawfulness of a final decision to expel him or her as a member of that association, even before an authority with some kind of limited jurisdiction; but if no such right exists under domestic legislation, not even on arguable grounds, I fail to see how Article 6 § 1 of the Convention can be applicable. That being said, expelling a member from a private association without procedural guarantees, including judicial scrutiny, may raise an issue under Article 11 of the Convention, a provision that has not been invoked by the applicant nor assessed by the Court in its judgment." ]
[ "SECOND SECTION CASE OF VAJNAI v. HUNGARY (Application no. 33629/06) JUDGMENT STRASBOURG 8 July 2008 FINAL 08/10/2008 In the case of Vajnai v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Vladimiro Zagrebelsky,Danutė Jočienė,András Sajó,Nona Tsotsoria,Işıl Karakaş, judges,and Sally Dollé, Section Registrar, Having deliberated in private on 17 June 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 33629/06) 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 Attila Vajnai (“the applicant”), on 15 May 2006. 2.", "The applicant was represented by Mr G. Magyar, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by their Agent, Mr L. Höltzl of the Ministry of Justice and Law Enforcement. 3. The applicant alleged that his conviction for having worn the symbol of the international workers’ movement constituted an unjustified interference with his right to freedom of expression, in breach of Article 10 of the Convention. 4.", "On 24 September 2007 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1963 and lives in Budapest.", "The facts of the case, as submitted by the parties, may be summarised as follows. 6. On 21 February 2003 the applicant, at the material time Vice-President of the Workers’ Party (Munkáspárt) – a registered left-wing political party – was a speaker at a lawful demonstration in the centre of Budapest. The demonstration took place at the former location of a statue of Karl Marx, which had been removed by the authorities. On his jacket, the applicant wore a five-pointed red star (hereinafter “the red star”), 5 cm in diameter, as a symbol of the international workers’ movement.", "In application of Article 269/B § 1 of the Criminal Code, a police patrol which was present called on the applicant to remove the star, which he did. 7. Subsequently, criminal proceedings were instituted against the applicant for having worn a totalitarian symbol in public. He was questioned as a suspect on 10 March 2003. 8.", "On 11 March 2004 the Pest Central District Court convicted the applicant of the offence of using a totalitarian symbol. It refrained from imposing a sanction for a probationary period of one year. 9. The applicant appealed to the Budapest Regional Court (Fővárosi Bíróság). 10.", "On 24 June 2004 that court decided to stay the proceedings and to refer the case to the Court of Justice of the European Union (CJEU) for a preliminary ruling under Article 234 of the Treaty establishing the European Community. The reference – received at the CJEU on 28 July 2004 – concerned the interpretation of the principle of non-discrimination as a fundamental principle of Community law. 11. In its order for reference, the Regional Court observed that in several member States of the European Union, such as the Italian Republic, the symbol of left-wing parties is the red star or the hammer and sickle. Therefore, the question arose whether a provision in one member State of the European Union prohibiting the use of the symbols of the international labour movement on pain of criminal prosecution was discriminatory, when such a display in another member State did not give rise to any sanction.", "12. On 6 October 2005 the CJEU declared that it had no jurisdiction to answer the question referred by the Regional Court. The relevant part of the reasoning reads as follows: “11. By its question, the national court asks, essentially, whether the principle of non-discrimination, Article 6 EU, Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ L 180, p. 22) or Articles 10, 11 and 12 of the Charter of Fundamental Rights of the European Union, proclaimed on 7 December 2000 in Nice (OJ C 364, p. 1), preclude a national provision, such as Article 269/B of the Hungarian Criminal Code, which imposes sanctions on the use in public of the symbol in question in the main proceedings. ... 13.", "By contrast, the Court has no such jurisdiction with regard to national provisions outside the scope of Community law and when the subject matter of the dispute is not connected in any way with any of the situations contemplated by the treaties (see Kremzow, paragraphs 15 and 16). 14. It is clear that Mr Vajnai’s situation is not connected in any way with any of the situations contemplated by the provisions of the treaties and the Hungarian provisions applied in the main proceedings are outside the scope of Community law. 15. In those circumstances, it must be held, on the basis of Article 92 § 1 of the Rules of Procedure, that the Court clearly has no jurisdiction to answer the question referred by the Fővárosi Bíróság.” 13.", "On 16 November 2005 the Budapest Regional Court upheld the applicant’s conviction. II. RELEVANT DOMESTIC LAW 14. The Constitution of Hungary provides, in its relevant part, as follows: Article 2 “1. The Republic of Hungary is an independent and democratic State under the rule of law ... 3.", "No one’s activity shall aim at the violent acquisition or exercise of power or at its exclusive possession ...” Article 61 “1. In the Republic of Hungary everyone has the right to freely express his opinion, and, furthermore, to have access to and distribute information of public interest.” 15. The Criminal Code, as in force at the material time, provided, in so far as relevant, as follows: Measures (Az intézkedések)Probation (Próbára bocsátás)Article 72 “1. In case of a misdemeanour (vétség) or a felony (bűntett) punishable by imprisonment of up to a maximum of three years, the court may postpone the imposition of a sentence for a probationary period if it can be presumed with good reason that the aim of the punishment may be just as well attained in this manner.” Article 73 “2. The probation shall be terminated and a punishment shall be imposed if ... the person on probation is convicted of an offence committed during the probationary period ...” Crimes against the StateArticle 139 – Violent change of the constitutional order “1.", "A person who commits an action whose direct objective is to change the constitutional order of the Republic of Hungary by means of violence or by threatening violence – in particular, using armed force – commits a felony ...” Crimes against public orderArticle 269 – Incitement against a community “A person who incites, before a wider public, to hatred against (a) the Hungarian nation, or (b) a national, ethnic, racial or religious community or certain groups of the population ... commits a felony ...” Article 269/B – The use of totalitarian symbols “1. A person who (a) disseminates, (b) uses in public, or (c) exhibits a swastika, an SS-badge, an arrow-cross, a symbol of the sickle and hammer or a red star, or a symbol depicting any of them, commits a misdemeanour – unless a more serious crime is committed – and shall be sentenced to a criminal fine (pénzbüntetés). 2. The conduct proscribed under paragraph 1 is not punishable, if it is done for the purposes of education, science, art or in order to provide information about history or contemporary events. 3.", "Paragraphs 1 and 2 do not apply to the insignia of States which are in force.” 16. The Code of Criminal Procedure provides as follows: Article 406 “1. Review proceedings may be instituted in favour of the defendant if: ... (b) a human rights institution set up by an international treaty has established that the conduct of the proceedings or the final decision of the court has violated a provision of an international treaty promulgated by an act, provided that the Republic of Hungary has acknowledged the jurisdiction of the international human rights organisation and that the violation can be remedied through review.” 17. Decision no. 14/2000 (V.", "12.) of the Constitutional Court, dealing with the constitutionality of Article 269/B of the Criminal Code, contains the following passages: “... [N]ot only do such totalitarian symbols represent the totalitarian regimes known to and suffered by the general public, but it has from the very beginning been reflected in the legislation of the Republic of Hungary that the unlawful acts committed by such regimes should be addressed together ... The Constitutional Court has expressly confirmed in its decisions ... that no constitutional concern may be raised against the equal assessment and joint regulation of such totalitarian regimes ... In the decades before the democratic transformation, only the dissemination of Fascist and arrow-cross symbols had been prosecuted ... At the same time, resulting reasonably from the nature of the political regime, the use of symbols representing communist ideas had not been punished; on the contrary, they were protected by criminal law. In this respect, the Act does, indeed, eliminate the former unjustified distinction made in respect of totalitarian symbols ...", "The Convention (of the European Court of Human Rights) affords States a wide margin of appreciation in assessing what can be seen as an interference which is ‘necessary in a democratic society’ (Barfod, 1989; markt intern, 1989; Chorherr, 1993; Casado Coca, 1994; Jacubowski, 1994). ... In several of its early decisions, the Constitutional Court included the historical situation as a relevant factor in the scope of constitutional review ... In its decisions so far, the Constitutional Court has consistently assessed the historical circumstances (most often, the end of the [previous] regime) by acknowledging that such circumstances may necessitate some restriction on fundamental rights, but it has never accepted any derogation from the requirements of constitutionality on the basis of the mere fact that the political regime has been changed ... The Constitutional Court points out that even the practice of the European Court of Human Rights takes into account the specific historical past and present of the respondent State when it assesses the legitimate aim and necessity of restricting freedom of expression.", "In the case of Rekvényi v. Hungary concerning the restriction of the political activities and the freedom of political debate of police officers, the Court passed its judgment on 20 May 1999 stating that ‘the objective that the critical position of the police in society should not be compromised as a result of weakening the political neutrality of its members is an objective that can be accepted in line with democratic principles. This objective has special historical significance in Hungary due to the former totalitarian system of the country where the State relied greatly on the direct commitment of the police forces to the ruling party’ ... In the practice of the Constitutional Court, conduct endangering public order and offending the dignity of communities may be subject to criminal-law protection if it is not directed against an expressly defined particular person; theoretically, there is no other – less severe – tool available to achieve the desired objective than criminal sanction ... To be a democracy under the rule of law is closely related to maintaining and operating the constitutional order ... The Constitution is not neutral as regards values; [on the contrary,] it has its own set of values. Expressing opinions inconsistent with constitutional values is not protected by Article 61 of the Constitution ...", "The Constitution belongs to a democratic State under the rule of law and, therefore, the constitution-making power has considered democracy, pluralism and human dignity constitutional values worth protecting; at the same time, it makes unconstitutional any activity directed at the forcible acquisition or exercise of public power, or at the exclusive possession thereof (Article 2 § 3). Article 269/B orders the punishment of distributing, using in front of a large public gathering and exhibiting in public symbols that were used by political dictatorial regimes; such regimes committed unlawful acts en masse and violated fundamental human rights. All of these symbols represent the despotism of the State, symbolise negative political ideas realised throughout the history of Hungary in the twentieth century, and are expressly prohibited by Article 2 § 3 of the Constitution, which imposes upon everyone the obligation to resist such activities ... Using the symbols in the way prohibited by Article 269/B of the Criminal Code can cause a reasonable feeling of menace or fear based on the concrete experience of people – including their various communities – who suffered injury in the past, as such symbols represent the risk of having such inhuman acts repeated in connection with the totalitarian ideas concerned. In the opinion of the Constitutional Court, if – in addition to the subject thus protected by criminal law – the protection of other constitutional values cannot be achieved by other means, criminal-law protection itself is not considered to be disproportionate, provided that it is necessary to have protection against the use of such symbols.", "Whether or not it is necessary to have such protection in a democratic society depends on the nature of the restriction, its social and historical context, and its impact on the persons affected. Based on the above, in the present case, the statute under review serves the purpose of protecting other constitutional values in addition to the protected subject defined in criminal law. Such values are the democratic nature of the State under the rule of law mentioned in Article 2 § 1 of the Constitution, the prohibition defined in Article 2 § 3, as well as the requirement specified in Article 70/A of the Constitution, stating that all people shall be treated by the law as persons of equal dignity ... Allowing an unrestricted, open and public use of the symbols concerned would, in the present historical situation, seriously offend all persons committed to democracy who respect the human dignity of persons and thus condemn the ideologies of hatred and aggression, and would offend in particular those who were persecuted by Nazism and communism. In Hungary, the memories of both ideologies represented by the prohibited symbols, as well as the sins committed under these symbols, are still alive in the public mind and in the communities of those who have survived persecution; these things are not forgotten.", "The individuals who suffered severely and their relatives live among us. The use of such symbols recalls the recent past, together with the threats of that time, the inhuman sufferings, the deportations and the deadly ideologies. In the opinion of the Constitutional Court, it is indeed a measure with a view to the protection of democratic society – and therefore not unconstitutional – if, in the present historical situation, the State prohibits certain conduct contrary to democracy, connected to the use of the particular symbols of totalitarian regimes, their dissemination, their use in front of a large public gathering, and a public exhibition ... The constitutional assessment and evaluation of criminally sanctioning separate violations of the values protected by the law – namely, public order and the dignity of communities committed to the values of democracy – could possibly result in a different conclusion; however, since the use of totalitarian symbols violates both values jointly and simultaneously, there is a cumulative and synergic effect reinforced by the present-day impact of recent historical events. The Constitutional Court holds that the historical experience of Hungary and the danger to the constitutional values threatening Hungarian society reflected in the potential publicly to demonstrate activities based on the ideologies of former regimes, convincingly, objectively and reasonably justify the prohibition of such activities and the use of the criminal law to combat them.", "The restriction on freedom of expression found in Article 269/B § 1 of the Criminal Code, in the light of the historical background, is considered to be a response to a pressing social need. According to the Constitutional Court, in the present historical situation, there is no effective legal tool other than the tools of criminal law and penal sanction (ultima ratio) against the use of the symbols specified in Article 269/B § 1; the subjects committing the crime and, in particular, the three specific types of conduct in committing the crime, require restriction for the protection of the aims represented by the constitutional values. In another country with a similar historical experience, the Criminal Code also deems it an offence, endangering the democratic State under the rule of law, to use the symbols (flags, badges, uniforms, slogans and forms of greeting) of unconstitutional organisations [Strafgesetzbuch (StGB) vom 15. Mai 1871 (RGBl. S. 127) in der Fassung der Bekanntmachung vom 13.", "November 1998 (BGBl. I, 3322) § 86a.] ... It is not prohibited by the law to produce, acquire, keep, import, export or even use such symbols provided it is not done in front of a large public gathering. There are only three specific types of conduct mentioned in the law as being contrary to the values of the democratic State under the rule of law (distribution, use in front of a large public gathering and public exhibition), because of the tendency of such conduct not only to ‘insult or cause amazement or anxiety’ to the public, but also to create express fear or menace by reflecting an identification with the detested ideologies and an intention to propagate openly such ideologies.", "Such conduct can offend the whole of democratic society, especially the human dignity of major groups and communities which suffered from the most severe crimes committed in the name of both ideologies represented by the prohibited symbols. ... On the basis of the above, in the opinion of the Constitutional Court, the restriction specified in Article 269/B § 1 of the Criminal Code is not disproportionate to the weight of the protected objectives, while the scope and the sanction of the restriction is qualified as the least severe potential tool. Therefore, the restriction of the fundamental right defined in the given provision of the Criminal Code is in compliance with the requirement of proportionality ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 18. The applicant complained that the fact that he had been prosecuted for having worn a red star infringed his right to freedom of expression guaranteed 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 ... 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 prevention of disorder ... [or] ... for the protection of the ... rights of others ...” 19. The Government contested that argument. A. Admissibility 20.", "The Government asserted that the application was incompatible ratione materiae with the provisions of the Convention, in the light of Article 17 which provides: “Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.” 21. The Government referred to the case-law of the Convention institutions, including the Court’s decision in Garaudy v. France ((dec.), no. 65831/01, ECHR 2003-IX). They pointed out that, where the right to freedom of expression had been relied on by applicants to justify the publication of texts that infringed the very spirit of the Convention and the essential values of democracy, the European Commission of Human Rights had had recourse to Article 17 of the Convention, either directly or indirectly, in rejecting their arguments and declaring their applications inadmissible (examples included J. Glimmerveen and J. Hagenbeek v. the Netherlands, nos. 8348/78 and 8406/78 (joined), Commission decision of 11 October 1979, Decisions and Reports (DR) 18, p. 187, and Pierre Marais v. France, no.", "31159/96, Commission decision of 24 June 1996, DR 86-A, p. 184.) In the Government’s view, the Court subsequently confirmed that approach (see Lehideux and Isorni v. France, 23 September 1998, §§ 47 and 53, Reports of Judgments and Decisions 1998-VII). Moreover, they pointed out that, in a case concerning Article 11 (see W.P. and Others v. Poland (dec.), no.", "42264/98, ECHR 2004-VII), the Court had observed that “the general purpose of Article 17 is to prevent totalitarian groups from exploiting in their own interests the principles enunciated by the Convention”. Similar conclusions were reached in the cases of Norwood v. the United Kingdom ((dec.), no. 23131/03, ECHR 2004-XI), and Witzsch v. Germany ((dec.), no. 7485/03, 13 December 2005). 22.", "Since in the Government’s view the red star symbolises totalitarian ideas and practices directed against the Convention’s underlying values, they asserted that to wear it – being conduct disdainful of the victims of the communist regime – meant the justification of a policy aimed at the destruction of the rights and freedoms under the Convention. Although the cases cited above concerned the expression of racist and anti-Semitic ideas pertaining to the Nazi totalitarian ideology, the Government submitted that all ideologies of a totalitarian nature (including bolshevism symbolised by the red star) should be treated on an equal footing, and their expression should thus be removed from the protection of Article 10. 23. The applicant did not comment on this point. 24.", "The Court considers that the present application is to be distinguished from those relied on by the Government. It observes, particularly in Garaudy and Lehideux and Isorni (both cited above), that the justification of Nazi-like politics was at stake. Consequently, the finding of an abuse under Article 17 lay in the fact that Article 10 had been relied on by groups with totalitarian motives. 25. In the instant case, however, it has not been argued by the Government that the applicant expressed contempt for the victims of a totalitarian regime (contrast Witzsch, cited above) or belonged to a group with totalitarian ambitions.", "Nor do the elements contained in the case file support such a conclusion. The applicant was, at the material time, an official of a registered left-wing political party and wore the contested red star at one of its lawful demonstrations. In these circumstances, the Court cannot conclude that its display was intended to justify or propagate totalitarian oppression serving “totalitarian groups”. It was merely the symbol of lawful left-wing political movements. Unlike in the above-cited cases, the expression which was sanctioned in the instant case was unrelated to racist propaganda.", "26. It follows that, for the Court, the application does not constitute an abuse of the right of petition for the purposes of Article 17 of the Convention. Therefore, it is not incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention. The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. Whether there has been an interference 27. The applicant emphasised that the domestic courts had convicted him of the offence of using a totalitarian symbol. While it is true that for a probationary period of one year the Hungarian courts had refrained from imposing a criminal sanction, in his view it was beyond doubt that there had been an interference with his freedom of expression, since his criminal liability had been established.", "28. The Government submitted that, even supposing that the applicant’s conviction had constituted an interference with his freedom of expression, that interference had been justified under Article 10 § 2 of the Convention. 29. The Court considers that the criminal sanction in question constituted an interference with the applicant’s rights enshrined in Article 10 § 1 of the Convention. Moreover, it reiterates that such an interference will infringe the Convention if it does not meet the requirements of Article 10 § 2.", "It should therefore be determined whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in that paragraph and whether it was “necessary in a democratic society” in order to achieve those aims. 2. “Prescribed by law” 30. The Government reiterated the Constitutional Court’s position according to which the restriction on the use of totalitarian symbols was prescribed by law, an Act of Parliament, which was sufficiently clear and met the requirements of foreseeability. 31.", "The Court notes that this issue has not been in dispute between the parties. It is therefore satisfied that the interference was indeed prescribed by law. 3. Legitimate aim (a) The applicant’s arguments 32. The applicant stressed that almost two decades had elapsed since Hungary’s transition from a totalitarian regime to a democratic society.", "Hungary had become a member of the Council of Europe, the North Atlantic Treaty Organisation, the Organisation for Economic Cooperation and Development and the European Union. The country was a stable democracy, in which five multi-party general elections had been held since 1990. The left-wing party to which the applicant belonged had never been accused of attempting to overthrow the Government. It had participated in all these elections but had never passed the threshold required for gaining a seat in Parliament. The Government have not claimed that the applicant, his party or its ideology would threaten the democratic political regime of the country.", "In these circumstances, the legitimate aim for instituting criminal proceedings against the applicant for having displayed a red star at a political event remained unclear. (b) The Government’s arguments 33. The Government submitted that the contested provision had been inserted into the Criminal Code because twentieth-century dictatorships had caused much suffering to the Hungarian people. The display of symbols related to dictatorships created uneasy feelings, fear or indignation in many citizens, and sometimes even violated the rights of the deceased. To wear the symbols of a one-party dictatorship in public was, in the Government’s view, tantamount to the very antithesis of the rule of law, and must be seen as a demonstration against pluralist democracy.", "In line with the Constitutional Court’s position in the matter, the Government contended that the measure in question pursued the legitimate aims of the prevention of disorder and the protection of the rights of others. (c) The Court’s assessment 34. The Court considers that the interference in question can be seen as having pursued the legitimate aims of the prevention of disorder and the protection of the rights of others. 4. “Necessary in a democratic society” (a) The applicant’s arguments 35.", "The applicant argued that there was a profound difference between Fascist and communist ideologies and that, in any event, the red star could not be exclusively associated with the “communist dictatorship”. In the international workers’ movement, the red star – sometimes understood as representing the five fingers of a worker’s hand or the five continents – had been regarded since the nineteenth century as a symbol of the fight for social justice, the liberation of workers and freedom of the people, and, generally, of socialism in a broad sense. 36. Moreover, in 1945 Hungary and other countries of the former Eastern bloc had been liberated from Nazi rule by Soviet soldiers wearing the red star. For many people in these countries, the red star was associated with the idea of anti-Fascism and freedom from right-wing totalitarianism.", "It had been adopted by the progressive intelligentsia seeking to achieve the reconstruction and modernisation of Hungary from the beginning of the twentieth century. 37. The applicant conceded that, before the transition to democracy in central and eastern Europe, serious crimes had been committed by the security forces of totalitarian regimes, whose official symbols included the red star. These violations of human rights could not, however, discredit the ideology of communism as such, let alone challenge the political values symbolised by the red star. 38.", "The applicant drew attention to the fact that, unlike Fascist propaganda (see, inter alia, Article 4 of the 1947 Paris Treaty of Peace with Hungary – volume 41, p. 135), the promotion of communism had not been outlawed by instruments of international law. The red star was understood to represent various left-wing ideas and movements, and could be freely displayed in most European states. In fact, Hungary was the only Contracting State in which its public display was a criminal offence. 39. Finally, the applicant stressed that the Government had not demonstrated the existence of a “pressing social need” requiring a general ban on the public display of this symbol.", "In his view, it was unlikely that the stability of Hungary’s pluralistic democracy could be undermined by his using a political logo in order to express an ideological affiliation and political identity. On the contrary, the general ban on using the red star as a political symbol undermined pluralism by preventing him and other left-wing politicians from freely expressing their political views. (b) The Government’s arguments 40. The Government submitted that in Hungary the red star was not only the symbol of the international workers’ movement, as alleged by the applicant. Recent history in Hungary had altered its meaning to symbolise a totalitarian regime characterised by ideologies and practices which had justified mass violations of human rights and the violent seizure of power.", "To wear this symbol in public amounted to identification with, and the intention to propagate, the ideologies of a totalitarian nature which characterised communist dictatorships. 41. The Government drew attention to the Constitutional Court’s findings that the restriction at issue, having regard to the historical experience of Hungarian society, had been a response to a “pressing social need” in pursuit of the legitimate aims of the prevention of disorder and the protection of the rights of others. That court had been satisfied that these aims could not have been achieved by less severe means than those of the criminal law. Moreover, it had found that the restriction had been proportionate to the aims pursued since it had been limited in scope, extending only to some well-defined forms of the public use of such symbols, which entailed identification with, and the intention to propagate, the totalitarian ideologies represented by them.", "It had been satisfied that the use of such symbols for scientific, artistic, educational or informational purposes was not prohibited. 42. The Government also submitted that the offence in question was qualified not as a felony (bűntett) but only as a misdemeanour (vétség), punishable with a criminal fine (pénzbüntetés) which was the least severe sanction in Hungarian criminal law. Moreover, the applicant had been put on probation, which was not a punishment (büntetés) but a “measure” (intézkedés). (c) The Court’s assessment (i) General principles 43.", "The test of “necessity in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 of the Convention (see, among many other authorities, Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003-V, and Association Ekin v. France, no. 39288/98, § 56, ECHR 2001-VIII).", "44. The Court’s task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation (see Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I). 45. In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient”, and whether the measure taken was “proportionate to the legitimate aims pursued” (see Chauvy and Others v. France, no.", "64915/01, § 70, ECHR 2004-VI). In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 (see, among many other authorities, Zana v. Turkey, 25 November 1997, § 51, Reports 1997-VII). 46. The Court further reiterates that freedom of expression, as secured in Article 10 § 1 of the Convention, 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 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 which offend, shock or disturb; such are the demands of pluralism, tolerance and broad-mindedness, without which there is no “democratic society” (see, among many other authorities, Oberschlick v. Austria (no.", "1), 23 May 1991, § 57, Series A no. 204, and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII). Although freedom of expression may be subject to exceptions, they “must be narrowly interpreted” and “the necessity for any restrictions must be convincingly established” (see, for instance, Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216).", "47. Furthermore, the Court stresses that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on the debate of questions of public interest (see Feldek v. Slovakia, no. 29032/95, § 74, ECHR 2001-VIII, and Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV).", "In the instant case, the applicant’s decision to wear a red star in public must be regarded as his way of expressing his political views. The display of vestimentary symbols falls within the ambit of Article 10. (ii) Application of these principles to the present case 48. At the outset, the Court reiterates the case of Rekvényi v. Hungary ([GC], no. 25390/94, §§ 44-50, ECHR 1999-III), which concerned, as a matter of freedom of expression, a restriction on certain political rights of Hungarian police officers.", "In that case, those restrictions were found to be compatible with Article 10 of the Convention, essentially on the grounds that they concerned members of the armed forces who – in the specific circumstances of transition to democracy – were to play a crucial rule in sustaining pluralism, but could equally undermine it if they lost their neutrality. The Court held that the interference in question fell within the national authorities’ margin of appreciation, especially in the light of the Hungarian historical experience underlying the restriction at issue. 49. However, the Court finds that the circumstances of the present application are to be distinguished from that case in at least two respects. Firstly, Mr Vajnai was a politician not participating in the exercise of powers conferred by public law, while Mr Rekvényi had been a police officer.", "Secondly, almost two decades have elapsed since Hungary’s transition to pluralism and the country has proved to be a stable democracy (see, in this connection, Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 49, ECHR 2004-VIII, and Rainys and Gasparavičius v. Lithuania, nos. 70665/01 and 74345/01, § 36, 7 April 2005). Hungary has become a member State of the European Union, after its full integration into the value system of the Council of Europe and the Convention. Moreover, there is no evidence to suggest that there is a real and present danger of any political movement or party restoring the communist dictatorship.", "The Government have not shown the existence of such a threat prior to the enactment of the ban in question. 50. The Court further notes the Constitutional Court’s argument relied on by the Government concerning the broad scope of the margin of appreciation which States enjoy in this field. However, it must be emphasised that none of the cases cited by the Constitutional Court (Barfod v. Denmark, 22 February 1989, Series A no. 149; markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, Series A no.", "165; Chorherr v. Austria, 25 August 1993, Series A no. 266‑B; Casado Coca v. Spain, 24 February 1994, Series A no. 285‑A; and Jacubowski v. Germany, 23 June 1994, Series A no. 291‑A) dealt with the particular question of the extent of State discretion in restricting the freedom of expression of politicians. 51.", "In the Court’s view, when freedom of expression is exercised as political speech – as in the present case – limitations are justified only in so far as there exists a clear, pressing and specific social need. Consequently, utmost care must be observed in applying any restrictions, especially when the case involves symbols which have multiple meanings. In such situations, the Court perceives a risk that a blanket ban on such symbols may also restrict their use in contexts in which no restriction would be justified. 52. The Court is mindful of the fact that the well-known mass violations of human rights committed under communism discredited the symbolic value of the red star.", "However, in the Court’s view, it cannot be understood as representing exclusively communist totalitarian rule, as the Government have implicitly conceded (see paragraph 40 above). It is clear that this star also still symbolises the international workers’ movement, struggling for a fairer society, as well certain lawful political parties active in different member States. 53. Moreover, the Court notes that the Government have not shown that wearing the red star exclusively means an identification with totalitarian ideas, especially when seen in the light of the fact that the applicant did so at a lawfully organised, peaceful demonstration in his capacity as the vice-president of a registered left-wing political party, with no known intention of participating in Hungarian political life in defiance of the rule of law. In this connection, the Court emphasises that it is only by a careful examination of the context in which the offending words appear that one can draw a meaningful distinction between shocking and offensive language which is protected by Article 10 of the Convention and that which forfeits its right to tolerance in a democratic society.", "54. The Court therefore considers that the ban in question is too broad in view of the multiple meanings of the red star. The ban can encompass activities and ideas which clearly belong to those protected by Article 10, and there is no satisfactory way to sever the different meanings of the incriminated symbol. Indeed, the relevant Hungarian law does not attempt to do so. Moreover, even if such distinctions had existed, uncertainties might have arisen entailing a chilling effect on freedom of expression and self-censorship.", "55. As regards the aim of preventing disorder, the Court observes that the Government have not referred to any instance where an actual or even remote danger of disorder triggered by the public display of the red star had arisen in Hungary. In the Court’s view, the containment of a mere speculative danger, as a preventive measure for the protection of democracy, cannot be seen as a “pressing social need”. In any event, apart from the ban in question, there are a number of offences sanctioned by Hungarian law which aim to suppress public disturbances even if they were to be provoked by the use of the red star (see paragraph 15 above). 56.", "As to the link between the prohibition of the red star and its offensive, underlying, totalitarian ideology, the Court stresses that the potential propagation of that ideology, obnoxious as it may be, cannot be the sole reason to limit it by way of a criminal sanction. A symbol which may have several meanings in the context of the present case, where it was displayed by a leader of a registered political party with no known totalitarian ambitions, cannot be equated with dangerous propaganda. However, Article 269/B of the Hungarian Criminal Code does not require proof that the actual display amounted to totalitarian propaganda. Instead, the mere display is irrefutably considered to do so unless it serves scientific, artistic, informational or educational purposes (see paragraph 41 above in fine). For the Court, this indiscriminate feature of the prohibition corroborates the finding that it is unacceptably broad.", "57. The Court is of course aware that the systematic terror applied to consolidate communist rule in several countries, including Hungary, remains a serious scar in the mind and heart of Europe. It accepts that the display of a symbol which was ubiquitous during the reign of those regimes may create uneasiness among past victims and their relatives, who may rightly find such displays disrespectful. It nevertheless considers that such sentiments, however understandable, cannot alone set the limits of freedom of expression. Given the well-known assurances which the Republic of Hungary provided legally, morally and materially to the victims of communism, such emotions cannot be regarded as rational fears.", "In the Court’s view, a legal system which applies restrictions on human rights in order to satisfy the dictates of public feeling – real or imaginary – cannot be regarded as meeting the pressing social needs recognised in a democratic society, since that society must remain reasonable in its judgement. To hold otherwise would mean that freedom of speech and opinion is subjected to the heckler’s veto. 58. The foregoing considerations are sufficient to enable the Court to conclude that the applicant’s conviction for the mere fact that he had worn a red star cannot be considered to have responded to a “pressing social need”. Furthermore, the measure with which his conduct was sanctioned, although relatively light, belongs to the criminal-law sphere, entailing the most serious consequences.", "The Court does not consider that the sanction was proportionate to the legitimate aim pursued. It follows that the interference with the applicant’s freedom of expression cannot be justified under Article 10 § 2 of the Convention. There has accordingly been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 59.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 60. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage for the loss of reputation resulting from the judgment against him. 61. The Government were of the view that the finding of a violation would, in itself, provide sufficient just satisfaction for the applicant, given the possibility under domestic law to request the revision of a final criminal judgment after such a finding.", "62. The Court considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage which the applicant may have suffered. B. Costs and expenses 63. The applicant also claimed EUR 2,000, plus 20% value-added tax, for the legal fees incurred before the Court.", "This figure corresponded to 10 hours’ legal work, charged at an hourly rate of EUR 200, including 3 hours of client consultations, 2 hours to study the file, 2 hours for the legal analysis and 3 hours for drafting submissions. 64. The Government contested this claim. 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 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 entire amount claimed. 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 10 of the Convention; 3. Holds that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage which the applicant may have suffered; 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 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into Hungarian forints at the rate applicable at the date of 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; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 8 July 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Sally Dollé Françoise Tulkens Registrar President" ]
[ "CASE OF CIVET v. FRANCE (Application no. 29340/95) JUDGMENT STRASBOURG 28 September 1999 CIVET JUDGMENT OF 28 SEPTEMBER 19991 In the case of Civet v. France, 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 Proto-col No. 11[1], and the relevant provisions of the Rules of Court2, as a Grand Chamber composed of the following judges: MrL. Wildhaber, President,MrsE. Palm,SirNicolas Bratza,MrL.", "Ferrari Bravo,MrL. Caflisch,MrJ.-P. Costa,MrW. Fuhrmann,MrK. Jungwiert,MrM. Fischbach,MrB.", "Zupančič,MrJ. Hedigan,MrsW. Thomassen,MrsM. Tsatsa-Nikolovska,MrT. Panţîru,MrA.B.", "Baka,MrE. Levits,MrK. Traja,and also of Mr M. de Salvia, Registrar, Having deliberated in private on 21 April and 8 September 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 French Government (“the Government”) on 19 June 1998, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention. It originated in an application (no.", "29340/95) against the French Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 by a French national, Mr Daniel Civet, on 17 March 1995. The Government’s application referred to former Article 48. The object 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 Article 5 § 3 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 he wished to take part in the proceedings and designated the lawyer who would represent him (former Rule 30).", "3. As President of the Chamber which had originally been constituted (former Article 43 of the Convention and former Rule 21) in order to deal, in particular, with procedural matters that might arise before the entry into force of Protocol No. 11, Mr R. Bernhardt, the President of the Court at the time, acting through the Registrar, consulted the Agent of 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, the Registrar received the Government’s memorial on 5 January 1999. The applicant did not produce a memorial.", "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 J.-P. Costa, the judge elected in respect of France (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 Sir Nicolas Bratza, President of Section (Article 27 § 3 of the Convention and Rule 24 § 3). The other members appointed to complete the Grand Chamber were Mr L. Ferrari Bravo, Mr L. Caflisch, Mr W. Fuhrmann, Mr K. Jungwiert, Mr M. Fischbach, Mr M. Zupančič, Mrs N. Vajić, Mr J. Hedigan, Mrs W. Thomassen, Mrs M. Tsatsa-Nikolovska, Mr T. Panţîru, Mr E. Levits and Mr K. Traja (Rule 24 § 3 and Rule 100 § 4).", "Subsequently Mr A.B. Baka, subsitute judge, replaced Mrs Vajić, who was unable to take part in the further consideration of the case (Rule 24 § 5 (b)). 5. At the Court’s invitation (Rule 99), the Commission delegated one of its members, Mr J.-C. Geus, to take part in the proceedings before the Grand Chamber. 6.", "In accordance with the President’s decision, a hearing took place in public in the Human Rights Building, Strasbourg, on 21 April 1999. There appeared before the Court: (a)for the GovernmentMrB. Nedelec, magistrat, on secondment to the Human Rights Section,Legal Affairs Department,Ministry of Foreign Affairs,Agent,MrA. Buchet, Head of the Human Rights Office, European and International Affairs Department, Ministry of Justice,Counsel; (b)for the applicantMrL. Vivier, of the Agen Bar,Counsel; (c)for the CommissionMrJ.-C. Geus,Delegate.", "The Court heard addresses by Mr Geus, Mr Vivier and Mr Nedelec. THE FACTS 7. Mr Civet, a French national, was born in 1947 and is currently in custody at Aiton Prison. I. the circumstances of the case A. The investigation 8.", "On 6 October 1993 one of the applicant’s daughters, Mrs Isabelle Di Malta (née Civet), who was born in 1970, went to the police station with her mother, Mrs Liliane Civet, to complain that her father had raped her on several occasions. She stated that Mr Civet had sexually abused her a number of times at the family home, while her mother was out, between 1984 and 1987. 9. On 7 October 1993 another daughter of the applicant, Miss Aline Civet, born in 1972, also reported her father to the police for raping her a number of times at the family home, while her mother was out, when she was 16 years old. 10.", "On the same day Mr Civet was placed under judicial investigation on charges of rape of a minor by a legitimate ascendant (ascendant légitime). The applicant was immediately charged and remanded in custody by an investigating judge of the Saint-Etienne tribunal de grande instance. 11. The applicant went on hunger strike for the first time, for twelve days until 6 April 1994. 12.", "On 13 July 1994 the investigating judge informed the parties that the investigation appeared to be complete and that the case file would be sent to the public prosecutor for his views on whether a prosecution should be brought. However, the investigation continued after that date as the judge had granted an application by Mr Civet for supplementary investigative measures. 13. On 8 February 1995 the investigating judge informed the parties again that the investigation appeared to be complete, but granted a further application by the applicant for supplementary investigative measures. 14.", "On 10 May 1995 the investigating judge informed the parties for the third time that the investigation appeared to be complete. The case file was sent to the public prosecutor on 31 May 1995 for his views on whether a prosecution should be brought. 15. On 2 October 1995 the investigating judge made an order for the documents to be forwarded to the public prosecutor at the Lyons Court of Appeal, in order to conclude the investigation. 16.", "In a judgment of 24 November 1995 the Indictment Division of the Lyons Court of Appeal committed the applicant for trial at the Assize Court on several counts of rape of a minor by a legitimate ascendant. An appeal on points of law by the applicant was dismissed on 21 March 1996. B. The applicant’s applications for release 17. On 3 June 1994 the investigating judge dismissed an application for release submitted on 31 May 1994.", "In a judgment of 24 June 1994 the Indictment Division of the Lyons Court of Appeal upheld the order dismissing his application. 18. The applicant appealed to the Court of Cassation on points of law, but his appeal was dismissed on 4 October 1994 on the ground that he had failed to lodge his grounds of appeal within the statutory time. 19. On 5 August 1994 the investigating judge dismissed a further application for release, submitted on 2 August 1994, on the following grounds: “[The applicant’s] two daughters have made grave allegations against him of sex offences classified as ‘serious crimes’ (de nature criminelle).", "Offences of this kind, committed against girls under the age of 15 by a legitimate ascendant, seriously prejudice public order. There is a risk that the victims and their mother will be intimidated. The applicant has numerous previous convictions.” 20. The Indictment Division of the Lyons Court of Appeal upheld that order in a judgment of 23 August 1994. 21.", "On 9 September 1994 the investigating judge refused a further application for release, submitted on 6 September 1994, stating: “The charges are serious. These offences classified as ‘serious crimes’ are, by definition, seriously prejudicial to public order in that they inflict lasting damage on the physical, mental and psychological well-being of children. The applicant is known for his intemperance and violence and has numerous previous convictions.” 22. The applicant appealed. In a judgment of 4 October 1994 the Indictment Division of the Lyons Court of Appeal upheld the order of 9 September 1994.", "23. In an order of 4 October 1994 the investigating judge extended the pre-trial detention for one year on the same grounds as those set out in the order of 9 September 1994. 24. On 17 August 1995 the investigating judge dismissed an application for release submitted by the applicant on 14 August 1995. The applicant appealed.", "25. In a judgment of 1 September 1995 the Indictment Division of the Lyons Court of Appeal upheld the order on the grounds that, despite the applicant's denials, “there is serious and strong evidence that he committed the rapes with which he has been charged. Given his attitude to the charges, there is a risk that, if released, he would be tempted to pressurise the victims, and indeed his wife, into retracting their statements. These violent crimes, even if not widely publicised, have caused serious prejudice to public order as far as the protection of children’s physical and psychological well-being is concerned. This prejudice, temporarily contained by remanding the applicant in custody, would recur if he were to be released, particularly as the investigation is almost complete.", "[The applicant], who is unemployed and has several previous convictions (for theft, handling stolen goods, misappropriation, driving while under the influence of alcohol and a hit-and-run offence), is described as a violent individual who presents a danger both to himself and others, particularly when under the influence of alcohol, and thus cannot provide sufficient guarantees that he will appear for trial. It therefore appears necessary to keep the accused in detention on remand in order to prevent him from reoffending, to protect public order from the consequences of these offences and to ensure that he remains at the disposal of the judicial authorities ...” 26. In an order of 29 September 1995 the investigating judge dismissed a further application for release, submitted on 25 September 1995. Mr Civet appealed. 27.", "In a judgment of 20 October 1995 the Indictment Division of the Lyons Court of Appeal upheld the order for the same reasons as those contained in its judgment of 1 September 1995. C. The applicant’s trial 28. On 27 June 1996 the Assize Court for the département of the Loire convicted the applicant of the offences charged and sentenced him to ten years’ imprisonment. II. relevant domestic law AND PRACTICE A.", "The Code of Criminal Procedure 29. The relevant provisions of the Code of Criminal Procedure on pre-trial detention applicable at the material time are the following: Article 144 “In cases involving serious crimes (matière criminelle) and other major offences (matière correctionnelle), where the possible sentence is equal to or exceeds one year’s imprisonment in the case of an offence discovered during or immediately after its commission (délit flagrant), or two years’ imprisonment in other cases, and if the constraints of judicial supervision are inadequate in regard to the functions set out in Article 137, detention pending trial may be ordered or continued (1) where detention of the accused pending trial is the sole means of preserving evidence or material clues or of preventing either pressure being brought to bear on witnesses or victims, or collusion between accused and accomplices; (2) where such detention is necessary to protect the accused, to put an end to the offence or to prevent its repetition, to ensure that the accused remains at the disposal of the judicial authorities or to preserve public order from the disturbance caused by the offence. Detention pending trial may also be ordered, in the circumstances set out in Article 141-2, where the accused deliberately fails to comply with the obligations imposed by judicial supervision.” Article 145 “Whatever the classification of the offence, an order for detention pending trial must set out the legal and factual reasons for the decision with reference to the provisions of Article 144 alone; the accused shall be informed orally of the order and be given a full copy of it, receipt being acknowledged by signature in the case file …” Article 145-1 “In cases involving lesser criminal offences (matière correctionnelle) pre-trial detention may not exceed four months. However, at the end of this period, the investigating judge may extend the detention by an order giving reasons as indicated in the first paragraph of Article 145. No extension may be ordered for a period exceeding four months.", "Where the accused has not previously been sentenced for a serious crime (crime) or other major offence (délit) to a non-suspended term of imprisonment exceeding one year and where the sentence that may be passed on him does not exceed five years, the extension of detention provided for in the preceding paragraph may be ordered only once and for a period not exceeding two months. In other cases the accused may not be kept in detention for longer than one year. However, in exceptional circumstances the investigating judge may decide at the end of that period to extend the detention, for a period not exceeding four months, by a reasoned order made in accordance with the provisions of the first and fourth paragraphs of Article 145, his lawyer having been summoned in accordance with the provisions of the second paragraph of Article 114. That order is renewable by means of the same procedure. Nevertheless the accused may not be kept in detention for more than two years where the sentence to which he is liable does not exceed five years.", "The orders referred to in the first and second paragraphs of this Article shall be made after the public prosecutor and, if applicable, the accused or his lawyer have submitted their observations.” Article 145-2 “In cases involving serious crimes (matière criminelle) an accused cannot be held in detention for more than one year. However, the investigating judge may, at the end of that period, decide to prolong detention for a period not exceeding one year in a decision made in accordance with the provisions of the first and fourth paragraphs of Article 145, his lawyer having been summoned in accordance with the provisions of the second paragraph of Article 114. That decision is renewable by means of the same procedure. The provisions of this Article shall apply until the disposal order is made.” Article 147 “Whatever the classification of the offence, the accused may be released, subject or not to judicial supervision, by means of an order made by the investigating judge of his own motion after the public prosecutor has submitted his observations, provided that the accused undertakes to attend for procedural purposes whenever required to do so during the investigation and to keep the investigating judge informed of all his movements. The public prosecutor may also apply at any time for the accused to be released.", "The investigating judge shall rule within five days of such an application.” Article 148 “Whatever the classification of the offence, the accused or his lawyer may at any time lodge with the investigating judge an application for release, subject to his giving the undertakings referred to in the preceding Article. The investigating judge shall communicate the file immediately to the public prosecutor for his submissions. The investigating judge shall take a decision, in an order setting out the legal and factual reasons for the decision with reference to the provisions of Article 144, not later than five days following communication of the file to the public prosecutor. However, where a decision has still to be taken on a previous application for release or on an appeal against an earlier order refusing release, the five-day period shall not start to run until the date of the decision of the investigating judge or indictment division. Where release is granted, it may be made subject to judicial supervision.", "If the investigating judge fails to give a decision within the period laid down in the third paragraph, the person concerned may apply directly to the indictment division, which after receiving the Principal Public Prosecutor’s reasoned submissions in writing, shall give a decision within twenty days of the application to it, failing which the accused shall automatically be released unless an order has been made for particulars of his application to be verified. The public prosecutor is likewise entitled to apply to the indictment division in the same eventuality.” Article 148-1 “An application for release may also be made by any accused for any reason and at any stage in the proceedings …” Article 148-2 “Any judicial authority which has to rule, pursuant to Articles 141-1 and 148-1, on an application for a judicial supervision order to be discharged in whole or in part or for release shall give its decision after hearing the prosecution and the accused or his lawyer; an accused who is not in detention and his lawyer shall be given notice by registered letter at least forty-eight hours before the date of the hearing. The judicial authority to which the application has been made, depending on whether it is an authority of first or second instance, shall give its decision within ten or twenty days of receipt of the application. However, where on the date of receipt of the application a decision has still to be taken on a previous application for release or on an appeal against an earlier decision to refuse release, the ten- or twenty-day period shall not start to run until the date of the decision of the relevant judicial authority; if no decision has been given by the end of that period, the judicial supervision or detention pending trial shall be terminated and the accused, unless detained for another reason, shall automatically be released. The judicial authority’s decision shall be enforceable immediately notwithstanding any appeal; where the accused remains in detention, the indictment division shall give its decision within twenty days of the appeal, failing which the accused, unless detained for another reason, shall automatically be released.” Article 148-4 “When four months have elapsed since his last appearance before the investigating judge or a judge delegated by the investigating judge, an accused or his lawyer may, provided no disposal order has been made, apply for release directly to the indictment division, which shall decide as laid down in the last paragraph of Article 148.” Article 567 “In the event of a breach of the law, judgments of indictment divisions and judgments of the criminal courts against which no ordinary appeal lies can be set aside on an appeal on points of law to the Court of Cassation lodged by the public prosecutor or by the party adversely affected, according to the distinctions made hereafter.", "Such an appeal shall be lodged with the Criminal Division of the Court of Cassation.” Article 567-2 “The Criminal Division, when hearing an appeal on a point of law against a judgment of the indictment division concerning pre-trial detention, shall rule within three months of the file’s being received at the Court of Cassation, failing which the accused shall automatically be released. The appellant or his lawyer shall, on pain of having his application dismissed, file his pleading setting out the grounds of appeal within one month of the file’s being received, save where exceptionally the President of the Criminal Division has decided to grant an extension of eight days. After the expiry of this time-limit, no new grounds may be raised by him and no further pleadings may be filed. As soon as the pleading has been filed, the President of the Criminal Division shall set the case down for hearing.” Article 591 “Judgments of indictment divisions and judgments of trial and appeal courts against which no ordinary appeal lies and which comply with the formal requirements laid down by statute can be quashed only on grounds of a breach of the law.” Article 592 “Such judgments shall be declared null and void if they are not delivered by the prescribed number of judges or have been delivered by judges who have not attended all the hearings in the case. Where several hearings have been held in one and the same case, the judges who have taken part in the decision shall be presumed to have attended all of them.", "Such judgments shall also be declared null and void if they have been delivered without submissions having been heard from the public prosecutor. Subject to the exceptions laid down by law, judgments which have not been delivered, or in respect of which the proceedings have not been conducted in open court, shall also be declared null and void.” Article 593 “Judgments of indictment divisions and judgments against which no ordinary appeal lies shall be declared null and void if they contain no reasons or if the reasons are insufficient and do not enable the Court of Cassation to exercise its power of review and to ascertain that the law has been complied with in the operative provisions. The same rule shall apply in the event of a failure or refusal to rule either on one or more applications by the parties or on one or more applications by the public prosecutor.” B. The Judicial Code 30. The relevant provisions of the Judicial Code are the following: Article L. 131-5 “The Court of Cassation shall be able to quash a judgment without remitting it to the Court of Appeal if quashing it does not entail a rehearing of the merits.", "It may also, when quashing a judgment without remitting it to the Court of Appeal, dispose of the case where the facts, as found and assessed by the tribunals of fact in the exercise of their exclusive jurisdiction, allow it to apply the appropriate rule of law. …” C. Case-law 31. The Court of Cassation has acknowledged that the assessment of the facts of a case by indictment divisions is a matter falling within their exclusive jurisdiction, but verifies that they have addressed “essential” (péremptoires) grounds, including those based on Article 5 § 3 of the Convention (Court of Cassation, Criminal Division (“Cass. Crim.”), 20 October 1987, Bull. Crim.", "no. 356; 12 April 1995, appeal no. 95-80,328; see also Cass. Crim., 2 September 1997, appeal no. 97-83,234).", "The Criminal Division of the Court of Cassation reviews the reasoning of indictment divisions in order to satisfy itself that it complies with statutory requirements, and ascertains that the reasons given by the tribunals of fact for their decisions regarding the length of pre-trial detention are adequate and consistent (see Cass. Crim., 20 June and 16 July 1996, appeals nos. 96‑81,557 and 96-82,086 respectively; see also Cass. Crim., 2 September 1998, appeal no. 98-83,322).", "Where an indictment division omits to address in its judgment a pleading by an appellant to the effect that there has been a violation of Article 5 § 3 of the Convention, the Court of Cassation will find that the judgment has no legal basis and quash it (see Cass. Crim., 12 December 1995, appeal no. 95-84,949; and 14 May 1996, appeal no. 96‑81,045; see also Cass. Crim., 18 May 1998, appeal no.", "98-81,085). In exercising its power of review, the Court of Cassation has delivered judgments in the following terms, in particular: “The courts must address ‘essential’ grounds raised in pleadings submitted to them; all judgments must contain reasons justifying the decision reached, and giving inadequate reasons is tantamount to giving no reasons. It appears from the judgment appealed against and the documents exhibited in the proceedings that [C.W. ], a Belgian national extradited from Spain, was charged by the investigating judge on 18 May 1991 with several counts of fraud and with infringing the Act of 24 January 1984 on money-lending and on the same day was ordered to be detained pending trial. An order was made on 16 September 1991 extending pre-trial detention for four months from 18 September 1991.", "On 19 November 1991 the investigating judge ordered him to be released subject to judicial supervision and on payment, before release, of security in the amount of 4,500,000 francs. 100,000 francs of that amount was intended to ensure that he appeared for subsequent proceedings and up to a ceiling of 4,400,000 francs to guarantee payment of ‘compensation for the damage caused by the offence, the expenses incurred by the State and fines’; that order was not complied with, since the defendant paid only 2,563,000 francs of the required security; on 15 May 1992 the investigating judge dismissed an application by [W.] for the judicial supervision order to be discharged in part and extended the pre-trial detention for four months from 18 May 1992, ‘subject to activation of the order for his release that was made on condition that a security in the amount of 4,500,000 francs was paid in advance’; in an order of 16 September 1992, against which the defendant appealed, the pre-trial detention was extended for a further period of four months with effect from 18 September 1992. In upholding that order [extending the pre-trial detention, following non-payment of the sum set by way of security], the Indictment Division, after referring to the offences with which [C.W.] had been charged and to the fact that the order of 19 November 1991 releasing him subject to judicial supervision had become final, stated: ‘The discussion initiated by [W.]’s lawyer of the criteria for pre-trial detention has no place here; it is of no relevance now that the defendant’s release has been ordered subject to judicial supervision and that his detention is being extended as a result of his own acts and therefore does not violate the rules laid down by the Convention for the Protection of Human Rights and Fundamental Freedoms.’ The Indictment Division added: ‘As a subsidiary consideration, his failure to comply with the conditions accepted by him suggests that were he to be released today, he would not appear for trial.’ However, in reaching that decision and not addressing the pleading submitted to it, in which reliance was placed on a violation of Article 5 § 3 of the above-mentioned Convention, according to which everyone arrested or detained is entitled to trial within a reasonable time or to release pending trial, and in failing to set out the considerations of law and of fact which, under Article 144 of the Code of Criminal Procedure, justified extending pre-trial detention, the rules on which (as laid down by Article 145-1 of that Code) do not provide for any exception, the Indictment Division infringed the aforementioned provisions and principle and deprived its decision of a legal basis. The decision must therefore be quashed.", "For these reasons, the Court quashes and sets aside …” (Cass. Crim., 20 January 1993, Bull. crim. no. 32) “… [D.Z.]", "submitted before the Indictment Division that he had been continuously detained, since being charged, for four years and six months, during which the only measures taken by the investigating judge had been: at the end of 1994, to arrange a confrontation with the witnesses who had implicated him; between November 1994 and January 1996, to instruct experts to identify the victims who had died in 1992; and, during 1996, to take further witness statements. The length of his detention had thus been justified neither by the complexity of the case nor by his own conduct. In upholding the order appealed against, the Indictment Division stated that despite [D.Z. ]’s denials, there was strong evidence that he had committed the offences with which he was charged; that detaining him was the sole means of ensuring until the trial that no pressure was brought to bear on witnesses and that the accused, who had no regular employment and no fixed address, appeared for trial; and that the investigating judge’s refusal of the application for release therefore had to be upheld, notwithstanding the length of time already spent in detention, which had been justified by the difficulties encountered by the judge in carrying out his task and especially in identifying the deceased. But by confining itself to referring, in order to justify the length of detention, to an investigative measure carried out by an expert and omitting to address the main arguments in the pleading submitted to it, the Indictment Division infringed the principles alluded to above.", "The decision must therefore be quashed. For these reasons, the Court quashes and sets aside …” (Cass. Crim., 22 July 1997) “ … Regard being had to Article 593 of the Code of Criminal Procedure, read together with Article 5 § 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, The courts are required to address the main arguments in the pleadings submitted to them. In dismissing [J.E. ]’s application for release, the Court of Appeal in its judgment went no further than stating that the charges of aggravated rape of which he stood accused had caused exceptional and continuing prejudice to public order and that keeping him in detention was the only means of preventing him from bringing pressure to bear on the victim or evading justice by taking refuge outside French territory, since judicial supervision was inadequate for that purpose.", "However, in reaching that decision without addressing the defendant’s pleading in which reliance was placed on a violation of Article 5 § 3 of the European Convention on Human Rights, which provides that everyone arrested or detained is entitled to trial within a reasonable time or to release pending trial, the Indictment Division deprived its decision of a legal basis. The judgment must therefore be quashed. For these reasons, and without its being necessary to examine the other grounds of appeal, the Court quashes and sets aside …” (Cass. Crim., 18 May 1998, appeal no. 98-81,085) 32.", "The Criminal Division of the Court of Cassation also quashes judgments for non-compliance with statutory formalities laid down on pain of nullity (Cass. Crim., 25 April, 21 August and 15 November 1995, appeals nos. 95-80,682, 95-83,124 and 95-84,543 respectively) and errors of law in the interpretation and application of the Code of Criminal Procedure (Cass. Crim., 11 January, 15 February, 27 February and 10 May 1995, appeals nos. 94-85,155, 94-85,570, 94-85,957 and 95-80,975 respectively).", "33. Lastly, having regard to the provisions inserted into the Code of Criminal Procedure by Law no. 96-1235 of 31 December 1996, which came into force on 31 March 1997, the Court of Cassation now quashes judgments of indictment divisions which do not make clear why judicial supervision would be inadequate in a particular case or do not give any special reasons why the investigation should be continued (Cass. Crim., 6 and 19 August 1997, appeals nos. 97-82,955 and 97-38,014 respectively) or any indications of when the investigation is likely to be completed (Cass.", "Crim., 19 August 1997, cited above). PROCEEDINGS BEFORE THE COMMISSION 34. Mr Civet applied to the Commission on 17 March 1995. He alleged a violation of Article 5 § 3 of the Convention. 35.", "The Commission declared the application (no. 29340/95) admissible on 7 April 1997. In its report of 16 April 1998 (former Article 31 of the Convention), it expressed the opinion that there had been a violation of Article 5 § 3 (twelve votes to three). The full text of the Commission’s opinion is reproduced as an annex to this judgment[3]. FINAL SUBMISSIONS TO THE COURT 36.", "In their memorial the Government asked the Court to state that an appeal on points of law to the Court of Cassation was a remedy which should have been used and, in the alternative, to state that the length of the pre-trial detention had not breached Article 5 § 3 of the Convention. 37. For his part, the applicant asked the Court to find that there had been a violation of Article 5 § 3 of the Convention and to grant him just satisfaction under Article 41. THE LAW THE GOVERNMENT’S PRELIMINARY OBJECTION 38. The Government’s main submission, as it had been before the Commission, was that Mr Civet had not exhausted domestic remedies as he had failed to submit the ground of appeal based on Article 5 § 3 of the Convention for examination by the Court of Cassation.", "The Government contended that an appeal on points of law to the Court of Cassation was a remedy which should be used in relation to pre-trial detention. They stressed that the Court of Cassation reviews the reasoning of indictment divisions, satisfies itself that their reasoning complies with statutory requirements, and ascertains that the reasons given by the trial and appeal courts for their decisions regarding the length of pre-trial detention are adequate and consistent. 39. The applicant replied that an appeal on points of law was not an effective remedy in relation to the length of pre-trial detention as the Court of Cassation refused to examine grounds of appeal based on Article 5 § 3 of the Convention, characterising such grounds as “factual”. 40.", "The Commission took the view that Mr Civet had satisfied the requirements of former Article 26 (now Article 35) of the Convention. It considered that the Court of Cassation examined only questions of law and that a ground of appeal based on the excessive length of the proceedings in relation to Article 5 § 3 of the Convention was therefore inadmissible in the Court of Cassation as being a ground of “pure fact” or of “mixed fact and law”. 41. The Court reiterates that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, for example, the Hentrich v. France judgment of 22 September 1994, Series A no. 296-A, p. 18, § 33, and the Remli v. France judgment of 23 April 1996, Reports of Judgments and Decisions 1996-II, p. 571, § 33).", "Thus the complaint to be submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. Nevertheless, the only remedies that must be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, in particular, the Vernillo v. France judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27, and the Dalia v. France judgment of 19 February 1998, Reports 1998-I, pp.", "87-88, § 38). The Court also reiterates that an appeal to the Court of Cassation is one of the remedies that should in principle be exhausted in order to comply with Article 35 (see the Remli judgment cited above, p. 572, § 42). In that connection, the Court has already had the opportunity to emphasise the crucial role of proceedings in cassation, which form a special stage of criminal proceedings whose consequences may prove decisive for the accused (see the Omar and Guérin v. France judgments of 29 July 1998, Reports 1998-V, p. 1841, § 41, and p. 1869, § 44, respectively). 42. In the instant case the Court notes that the applicant did not appeal against the judgments of the Indictment Division of the Lyons Court of Appeal, with two exceptions: firstly, he appealed against its judgment of 24 June 1994, an appeal that was declared inadmissible on the ground that he had failed to lodge his grounds of appeal within the statutory time (see paragraph 18 above); and, secondly, he appealed against the judgment whereby he was indicted and committed for trial at the Assize Court (see paragraph 16 above).", "The applicant therefore never raised the ground of appeal based on Article 5 § 3 of the Convention in an appeal to the Court of Cassation. 43. The Court further notes that the Court of Cassation is indeed bound by the Indictment Division’s unappealable findings of fact (see paragraph 31 above). That position is justified by the nature of an appeal on points of law to the Court of Cassation, a remedy whose purpose is different from that of an ordinary appeal. As the possibilities of appealing to the Court of Cassation are limited by Article 591 of the Code of Criminal Procedure to breaches of the law (see paragraph 29 above), the Court of Cassation, unlike a court of appeal, does not have jurisdiction to reassess matters of pure fact.", "However, in the Court’s opinion, this does not mean that the “facts” and the “law” can be conceived of as two radically separate fields and that reasoning which effectively denies that the two are interwoven and are complementary is acceptable. Notwithstanding that its jurisdiction is limited to examining grounds of “law”, the Court of Cassation nonetheless has the task of checking that the facts found by the tribunals of fact support the conclusions reached by them on the basis of those findings. Thus, over and above examining whether a judgment referred to it complies with the formal requirements, the Court of Cassation ascertains that, regard being had to the facts of the case, the Indictment Division has given adequate reasons for its decision to prolong pre-trial detention (see paragraphs 31 to 33 above). If it has not, its decision will be quashed. The Court therefore considers that the Court of Cassation is in a position to assess, on the basis of its examination of the proceedings, whether the judicial authorities have complied with the “reasonable time” requirement of Article 5 § 3 of the Convention (see paragraph 31 above).", "44. In sum, Mr Civet, in failing to appeal to the Court of Cassation, did not provide the French courts with the opportunity which is in principle intended to be afforded to Contracting States by Article 35, namely the opportunity of preventing or putting right the violations alleged against them (see, among other authorities, the Guzzardi v. Italy judgment of 6 November 1980, Series A no. 39, p. 27, § 72, and the Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 19, § 36). The objection that domestic remedies have not been exhausted is therefore well-founded.", "FOR THESE REASONS, THE COURT Holds by twelve votes to five that, by reason of the failure to exhaust domestic remedies, it is unable to take cognisance of the merits of the case. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 28 September 1999. Luzius WildhaberPresident Michele de SalviaRegistrar In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Mrs Palm, Sir Nicolas Bratza, Mr Fischbach, Mr Zupančič and Mr Hedigan is annexed to this judgment. L.W. M.d.S.", "CIVET v. FRANCE JUDGMENT1 JOINT DISSENTING OPINION OF JUDGES PALM, Sir Nicolas BRATZA, FISCHBACH, ZUPANČIČ AND HEDIGAN (Translation) The Court has held that the application is inadmissible by reason of Mr Civet’s failure to exhaust domestic remedies in that he did not lodge an appeal on points of law during his pre-trial detention. We wish to indicate our disagreement with the reasoning adopted and the result reached by the majority of the judges. The Court held that the Government’s argument should prevail, in view of the scope of the Court of Cassation’s review. For the avoidance of any misunderstanding, we consider it useful, as a preliminary, to state the points on which we are in agreement with the majority of the judges. In the first place, it is not our intention to dispute that “an appeal to the Court of Cassation is one of the remedies that should in principle be exhausted in order to comply with Article [35]” (see the Remli v. France judgment of 23 April 1996, Reports of Judgments and Decisions 1996-II, p. 572, § 42).", "The fact remains that the only remedies that must be exhausted are those that are effective and capable of redressing the alleged violation and that “it falls to the respondent State to establish that these various conditions are satisfied” (see, in particular, the Vernillo v. France judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27). Where the Government do not succeed in supporting their argument concerning the sufficiency and effectiveness of the remedy, the European Court is entitled to consider that the appeal on points of law does not meet the requirement of effectiveness (see the Dalia v. France judgment of 19 February 1998, Reports 1998-I, pp. 87-88, § 38).", "The Court has already had occasion to attach only limited significance to an appeal on points of law in another context. In the cases of Letellier and Navarra v. France it held that there had been no violation of Article 5 § 4 – despite overall lengths of time, including proceedings in appeals on points of law, which gave the Court “certain doubts” – on the ground that the review requirement of Article 5 § 4 was satisfied by the right to make fresh applications for release to the investigating judge at any time (see the judgments of 26 June 1991, Series A no. 207, p. 22, § 56, and 23 November 1993, Series A no. 273-B, pp. 28-29, § 29, respectively).", "There are thus exceptions to the principle that an appeal on points of law must be lodged, and some of them have already been pointed out by our Court. In the second place, we do not wish to call in question or minimise the importance of the Court of Cassation’s case-law. As the Code of Criminal Procedure makes it compulsory to give reasons for decisions to order or extend pre-trial detention, the Court of Cassation reviews whether that statutory requirement has been satisfied. There is no doubt that in the context of that review it would be artificial to distinguish between “fact” and “law”, the more so as the Court of Cassation verifies that the reasoning, in accordance with the law, is based on the particular facts of the case and does not, for example, consist of stereotyped reasons (the Commission’s decision does not mention this detail, but does not put it in doubt). In its judgments the Court of Cassation also refers to the concept of “unappealable assessment by the tribunals of fact”.", "What is the import of this expression? It refers to the Court of Cassation’s role as a tribunal of law and not of fact. As it is not a final court of appeal on the facts, the Court of Cassation does not have the task of re-examining factual matters. It may nonetheless review the way in which the tribunals of fact have applied rules of law to their unappealable findings and assessments of “fact”. The cases cited by our Court in its judgment say precisely that.", "We therefore return to the essential point: what, exactly, was the issue that the Court had to decide? The question was whether an appeal on points of law is capable of remedying the alleged prejudice where an applicant complains only of the length of his or her pre-trial detention (which is a “key” issue in relation to Article 5 § 3). In its judgment the Court answers the question by linking that complaint to the reasoning of indictment-division judgments. The question of length is thus said never to arise per se, in isolation, but always in relation to the reasoning adopted by the indictment division under the control of the Court of Cassation. “Length” and “reasoning” are said to be inseparable; hence the effectiveness of an appeal on points of law.", "Accordingly, we think it necessary to look at the problem in a different way, by means of hypotheses reflecting real situations. 1. An applicant disputes one or more findings of “fact” referred to by the tribunals of fact as justifying placing or keeping him or her in detention: Will the applicant be able to challenge them in an appeal on points of law? The answer is no. That is confirmed by the foregoing reference to the case-law; the Court of Cassation has no jurisdiction where what is at issue is the unappealable assessment of the circumstances of the case.", "This, then, is one instance in which it is unnecessary to bring an appeal on points of law. 2. An applicant considers that notwithstanding the reasons put forward (or likely to be put forward) by the indictment division, the length of his or her pre-trial detention is unjustified per se: Will that applicant be able to challenge it effectively in an appeal on points of law? The answer will depend on a number of variables: (a) yes, if the applicant complains that the reasons cannot justify keeping him or her in detention (because they are stereotyped, or are not sufficiently supported by the facts of the case or are inconsistent with each other or do not address essential grounds); (b) no, if the applicant disputes the assessments of fact underlying the reasons (which he or she may consider false, tendentious, etc. ); (c) no, if the applicant does no more than say that, regardless of the facts noted by the indictment division and the inferences it has drawn from them, he or she denies having committed offences and seeks to benefit from the presumption of innocence; (d) no, if the length of the detention is itself in issue, that is to say if, irrespective of the merits of the reasons put forward by the tribunals of fact, the length of pre-trial detention is excessive per se.", "In all the instances in which the answer is “no”, the applicant can only make fresh applications to the investigating judge and then, if need be, apply to the indictment division, in the hope of changing their minds; an appeal on points of law is therefore not an effective remedy. We should like to lay particular emphasis on the assessment of whether the length of detention is reasonable or not, a recurring and crucial problem for our Court. The French Government did not produce any judgment (a) in which the Court of Cassation of its own motion condemned pre-trial detention on the ground that it had lasted too long notwithstanding the contrary opinion and detailed reasons of the indictment division; or (b) a fortiori, in which it was established that the Court of Cassation, having noted of its own motion an excessive length of detention, could release the detainee on that sole ground (and not by reason of a breach of a statutory provision whose infringement automatically entails the release of the person concerned). It will also be noted that in the cases in which the Convention institutions considered that there had been a breach of Article 5 § 3 of the Convention on account of excessive length of pre-trial detention an appeal on points of law had previously been lodged with the Court of Cassation, which had not criticised the length of detention or even attempted to do so (see, in particular, the following judgments: Letellier and Navarra, both cited above; Kemmache v. France (nos. 1 and 2), 27 November 1991, Series A no.", "218; Muller v. France, 17 March 1997, Reports 1997-II). More significantly still, our Court’s judgment is at odds with the case-law of the Criminal Division of the Court of Cassation itself, in particular its judgments of 18 February and 6 March 1986 (Bull. crim., nos. 66 and 94 respectively) and 12 December 1988 (Bull. crim., nos.", "418 and 419), which were cited by the Commission. Those judgments characterise the ground based on Article 5 § 3 of the Convention either as a “ground of pure fact” or as “a ground of mixed fact and law”, so that in every instance it was declared inadmissible. In particular, in its judgment of 6 March 1986 the Court of Cassation dealt with the ground based on a violation of Article 5 § 3 in the following terms, which are quite unequivocal: “Lastly, the Indictment Division addressed the issue of the complexity and length of the proceedings. While it only referred expressly to Article 6 of the European Convention for the Protection of Human Rights, it is to be inferred from its decision to refuse the application for release that it considered that the length of the detention itself did not exceed a reasonable time. The Court of Cassation has no jurisdiction to review that assessment of fact.” (emphasis added) Other judgments have followed, confirming that the issue of whether the length of pre-trial detention is reasonable or not is an issue of fact which lies outside the Court of Cassation’s jurisdiction (in particular, judgments of 28 November 1991, periodical Droit pénal 1991, commentary 274; and 3 May 1993, Bull.", "crim., no. 160). The European Court had an earlier opportunity to be persuaded of the reality of that case-law when considering the Muller case (cited above). In that case the Court of Cassation had held, more than four years after pre-trial detention had begun: “In order to answer the submission that there had been a violation of Article 5 § 3 of the Convention on the ground that pre-trial detention had exceeded a reasonable time, the court below stated: ‘In the instant case, in view of its complexity and the number of offences with which the accused is charged, this “reasonable time” has not been exceeded’. The Court of Cassation has no jurisdiction to review that assessment of fact.” (emphasis added) (judgment of 23 March 1993, quoted in the Muller judgment cited above, p. 384, § 28) Lastly, confirmation that a ground based on excessive length itself (which can in reality be assessed separately from the question of the reasoning adopted) is inadmissible may be found in another case decided by the Criminal Division of the Court of Cassation in which periods of time were concerned.", "A number of new provisions were added to the Code of Criminal Procedure by Law no. 96-1235 of 31 December 1996; these included Article 144-1, which expressly refers to the concept of “reasonable time”, and Article 145-3, which provides that orders whereby investigating judges either direct that pre-trial detention should be extended or refuse an application for release must also contain, among other things, “the information in the particular case which justifies ... the forecast of how long it will take to complete the proceedings”. Here, then, as with the issue which concerns us now, there is a question of “time” which has to be assessed, giving rise to a decision for which the law requires that special reasons must be given. Does that make it a question of law that can be reviewed by the Court of Cassation? The answer is no; the assessment of that time is “a question of pure fact which the Court of Cassation has no jurisdiction to review” (Cass.", "Crim., 28 April 1998, appeal no. 98-80,754, Recueil Dalloz-Sirey 1998, Information in brief, p. 172). We are thus persuaded that the assessment of a period of time, whether one laid down in the Convention or in domestic law, lies outside the jurisdiction of the Court of Cassation. This was noted by the Commission, which took care to examine the issue of admissibility in plenary session, and it was only after its decision on admissibility had been taken– unanimously – that it referred the case to a Chamber for consideration of the merits. It therefore seems to us that the position taken by the majority of the judges cannot be reconciled with these numerous instances in which an appeal on points of law does not allow the alleged prejudice to be remedied.", "In particular, the extracts from three decisions of the Court of Cassation in the judgment (see “Relevant domestic law and practice”) represent settled case-law only on the obligation on indictment divisions to address “essential” grounds, notably those based on Article 5 § 3; but that does not entail any review by the Court of Cassation of either the period of time itself or the unappealable assessment by the tribunals of fact. The present case is undoubtedly one of those instances in which an appeal on points of law is ineffective: the applicant protested his innocence, challenged the findings of “fact” referred to by the tribunals of fact to justify placing and then keeping him in detention, sought to benefit from the presumption of innocence and complained of the length of the detention per se; in short, no grounds on which an appeal on points of law could be effective. [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]. 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." ]
[ "THIRD SECTION CASE OF DIMOVIĆ v. SERBIA (Application no. 24463/11) JUDGMENT STRASBOURG 28 June 2016 FINAL 28/09/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dimović v. Serbia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Helena Jäderblom,Johannes Silvis,Branko Lubarda,Pere Pastor Vilanova,Alena Poláčková,Georgios A. Serghides, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 7 June 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "24463/11) against the Republic of Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Serbian nationals, Mr Ivica Dimović and Mr Jožef Dimović (“the applicants”), on 5 March 2011. 2. The applicants were represented by Mr V. Juhas Đurić, a lawyer practising in Subotica. The Serbian Government (“the Government”) were represented by their Agent, Ms V. Rodić. 3.", "The applicants alleged a violation of the rights of the defence with respect to witnesses. 4. On 5 January 2015 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicants were born in 1980 and 1964, respectively, and live in Hajdukovo. 6. On 12 February 2007 the applicants and their friend S.K. were indicted for allegedly having stolen a wine press (presu za grožđe). 7.", "On 25 January 2008 the Subotica Municipal Court acquitted all three defendants of these charges. In so doing, it explained that while there was evidence that they had been in possession of a press, there was nothing to suggest that they had obtained it through any criminal activity. The applicants themselves maintained that they had found the press abandoned, while S.K. denied the charge and thereafter exercised his right to remain silent. No material evidence was introduced during the trial and, apart from the statement by the alleged victim ‒ who maintained that the press worked and had been kept in a locked yard ‒ the statements of two witnesses supported the applicants’ defence.", "8. On 8 April 2008 the prosecution lodged an appeal against this judgment, emphasising, in particular, that the first-instance court had failed to take into account a statement given to the police by S.K. on 26 January 2006 (albeit in the absence of the applicants and their counsel, who had not been invited to attend). 9. On 12 May 2008 the Subotica District Court quashed the impugned judgment and ordered a retrial.", "The court explained that the statement referred to by the prosecution was particularly important because on this occasion S.K. had confessed ‒ in the presence of his counsel ‒ that he had stolen the press together with the applicants. S.K. had subsequently revoked this confession claiming that it had been given under the influence of alcohol and then refused to answer any further questions, and all of these circumstances needed to be reconsidered by the Municipal Court, even though the prosecution itself had initially failed to request that S.K.’s statement of 26 January 2006 be admitted as evidence. The court found this failure by the Municipal Court to be “unclear and inexplicable”.", "10. On 12 October 2008 S.K. died and on 29 December 2008 the Municipal Court discontinued the proceedings against him. 11. On 19 February 2009 the Municipal Court, having held a hearing and read out S.K.’s statement of 26 January 2006 before the parties, found the applicants guilty.", "The first applicant was sentenced to an effective prison term of six months while the second applicant was sentenced to six months’ imprisonment, suspended for a period of two years. In its reasoning the court primarily relied on S.K.’s statement of 26 January 2006. No evidence different from that admitted during the first trial was introduced during the retrial. 12. On 29 July 2009 the District Court upheld this judgment on appeal, and on 7 October 2010 the Supreme Court rejected the applicants’ further appeal on points of law (zahtev za ispitivanje zakonitosti pravosnažne presude).", "13. In the meantime, on 11 September 2009, the applicants lodged a constitutional appeal with the Constitutional Court, alleging that their conviction had been based on the testimony of a person whom they had never had a chance to cross-examine and who had, in any event, revoked it subsequently. 14. On 14 October 2010 the Constitutional Court rejected the applicants’ appeal as manifestly ill-founded, adding that ‒ as a consequence of the death of S.K. ‒ the lower courts had had no choice but to accept his prior statement given to the police and, clearly, could no longer accommodate the applicants’ objection regarding his cross-examination.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 15. Article 226 § 9 of the Code of Criminal Procedure (Zakonik o krivičnom postupku, published in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – no. 70/01, amendments published in OG FRY no. 68/02 and in the Official Gazette of the Republic of Serbia nos.", "58/04, 85/05, 115/05, 49/07 and 122/08), provides that a statement given by a suspect in a police station in the presence of his lawyer may be used as evidence in a subsequent criminal trial against him. While this provision further requires that the public prosecutor be invited to attend this interrogation, there is no additional obligation to invite any co-defendants or their counsel. 16. Article 337 § 1 (1) of the Code of Criminal Procedure provides, inter alia, that statements given by “co-indicted persons” (od strane saoptuženih) may be read out in court, and hence admitted as evidence, if the person concerned has died in the meantime. 17.", "Any such statements given in a non-judicial context (van krivičnog postupka), as well as those given to a court of law prior to a remittal, may not be taken into account (see Komentar Zakonika o krivičnom postupku, Prof. dr Tihomir Vasiljević and Prof. dr Momčilo Grubač, IDP Justinijan, Belgrade, 2005, p. 555, paragraph 1; see, also, the Federal Court’s ruling Kzs. 2/79 of 19 January 1979). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF THE CONVENTION 18. The applicants complain, under Article 6 §§ 1 and 3 (d) of the Convention, about the overall fairness of the aforementioned criminal proceedings, in particular their convictions, which had been based on the testimony of a person whom they had never had a chance to cross-examine and who had, in any event, revoked his statement subsequently.", "The relevant part of Article 6 reads as follows: “1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal... 3. Everyone charged with a criminal offence has the following minimum rights: ... (d) to examine or have examined witnesses against him ... A. Admissibility 1. Abuse of the right of individual application 19. The Government asked the Court to declare the application inadmissible as an abuse of the right of individual application.", "In particular, they first pointed out that the “conduct of the applicants’ defence counsel should be taken into account in particular for, on the one hand, he claimed costs for all three accused in the criminal proceedings, which were awarded to him on the account of the budget. On the other hand, he tries on the basis of the present application ... to benefit from the fact of the death of one of the accused”. They further maintained that the applicants’ representative had misinformed the Court by stating that their convictions had been based solely on S.K.’s statement. 20. The applicants disagreed.", "They maintained that it had been their legal representative’s duty to pursue their interests both before the domestic courts and before this Court, irrespective of the fact of their co-defendant’s death. 21. The Court has consistently held that any conduct of an applicant that is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and impedes the proper functioning of the Court or the proper conduct of the proceedings before it constitutes an abuse of the right of application (see Miroļubovs and Others v. Latvia, no. 798/05, §§ 62 and 65, 15 September 2009). However, the rejection of an application on grounds of abuse of the right of application is an exceptional measure (see Miroļubovs and Others, cited above, § 62) and has so far been applied only in a limited number of cases.", "In particular, the Court has rejected applications as abusive under Article 35 § 3 of the Convention if they were knowingly based on untrue facts or misleading information (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014; Pirtskhalaishvili v. Georgia (dec.), no. 44328/05, 29 April 2010; Khvichia v. Georgia (dec.), no. 26446/06, 23 June 2009); Keretchashvili v. Georgia (dec.), no. 5667/02, 2 May 2006 and Řehák v. Czech Republic (dec.), no.", "67208/01, 18 May 2004), or if they manifestly lacked any real purpose (see Jovanović v. Serbia (dec.), no. 40348/08, 7 March 2014), or if they contained offensive language (see, for example, Řehák, cited above) or if the principle of confidentiality of friendly-settlement proceedings had been breached (see, for example, Popov v. Moldova (no. 1), no. 74153/01, § 48, 18 January 2005). 22.", "Turning to the present case, the Court observes that the impugned conduct of the applicants and their representative cannot be considered as being contrary to the purpose of the right of individual application. The Court agrees with the applicants that their representative’s decision to lodge their application before the Court amounted to nothing more than the fulfilment of his duties in the very exercise of the applicants’ right of individual application. The death of the co-defendant in the applicants’ criminal case before domestic courts cannot be regarded as a factor contributing to their abuse of the right of individual application but rather as an issue which gave rise to their bringing the application before the Court in the first place. 23. As to the Government’s argument that the applicants had misled the Court by stating that their convictions had been based solely on S.K.’s statement, the Court finds that this is the applicants’ legal argument as to the alleged violation of their right to a fair trial.", "It is for the Court to assess that argument on the merits after examining all the available material, including the impugned decisions of the domestic courts which were duly disclosed by the applicants. 24. For these reasons, the Court rejects the Government’s objection as to abuse of the right to individual application. 2. Six-month rule and non-exhaustion of domestic remedies 25.", "The Government contended that the applicants had failed to exhaust the available domestic remedies and that their complaints had been lodged out of time. In particular, the Government argued that a constitutional appeal was not an effective legal remedy in the applicants’ case. They should, therefore, have lodged their application with the Court within a period of six months after the Municipal Court had admitted S.K.’s statement as evidence on 19 February 2009. In the alternative, the Government claimed that the complaint lodged by the applicants before the Constitutional Court was not substantially the same as the complaint raised before the Court. According to the Government, they had actually complained in respect of the decision of the Subotica District Court of 12 May 2008, whereby the applicants’ acquittal had been quashed and the retrial had been ordered.", "They, had not, therefore, seized the Constitutional Court in an appropriate manner, thus failing to exhaust the available domestic remedies. 26. The applicants disagreed. 27. The Court has already held that a constitutional appeal should, in principle, be considered as an effective domestic remedy within the meaning of Article 35 § 1 of the Convention in respect of all applications introduced against Serbia after 7 August 2008 (see Vučković and Others v. Serbia (preliminary objection) [GC], nos.", "17153/11 and 29 others, § 84, 25 March 2014 and Vinčić and Others v. Serbia, nos. 44698/06 and others, § 51, 1 December 2009). It sees no reason to depart from this practice under the circumstances of the present case. This being so, the six-month period should be reckoned from the moment when the applicants received the decision of the Constitutional Court on 21 February 2011 ‒ fourteen days prior to the lodging of the application. 28.", "The Court further finds that it is apparent from the copies of the applicants’ constitutional appeal and the decision of the Constitutional Court that, contrary to the Government’s argument, the applicants explicitly raised a complaint which is identical to the complaint raised before this Court. In substance, they complained about the fairness of the proceedings conducted upon the order for retrial because of the admittance of S.K.’s statement as evidence. 29. For these reasons, the Court rejects the Government’s two-pronged objection regarding the non-exhaustion of domestic remedies and the six-month rule. 30.", "The Court further 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’ arguments 31. The applicants maintained that they had not had a fair trial, as they had not been given the opportunity to question S.K. after his statement had been admitted as evidence during the retrial. They further argued that their conviction had been based solely on S.K.’s statement, stressing that the statement had not been given before the court and that it had been revoked in the later stages of criminal proceedings. 32.", "The Government disagreed. They argued that the domestic courts had not based their decision solely on the S.K.’s statement but had also taken into consideration the statements of various other witnesses. They further maintained that, although the relevant statement by S.K. had not been given before the courts but to the police, it had been recorded in a proper form. The Government also invited the Court to take into consideration the fact that, at a later stage of the proceedings, S.K.", "had given statements before the court. 2. The Court’s assessment (a) General principles 33. The Court reiterates at the outset that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court’s task under the Convention is not to give a ruling as to whether witness statements were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among many other authorities, Gäfgen v. Germany [GC], no.", "22978/05, § 162, ECHR 2010). 34. The Court further notes 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, it is the Court’s primary concern under Article 6 § 1 to evaluate the overall fairness of the criminal proceedings (see Taxquet v. Belgium [GC], no. 926/05, § 84, ECHR 2010).", "35. 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 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, for example, Solakov v. the former Yugoslav Republic of Macedonia, no. 47023/99, § 57, ECHR 2001‑X). 36.", "According to the principles developed in the Court’s case-law, it is necessary to examine in three steps the compatibility with Article 6 §§ 1 and 3 (d) of the Convention of proceedings in which statements made by a witness who had not been present and questioned at the trial were used as evidence (see Schatschaschwili v. Germany [GC], no. 9154/10, § 107, ECHR 2015 and Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 119, ECHR 2011; see also the summary of the law in Seton v. the United Kingdom, no. 55287/10, §§ 58 and 59, 31 March 2016, not yet final). 37.", "Firstly, the Court needs to examine whether there was a good reason for admitting the evidence of an absent witness, keeping in mind that witnesses should as a general rule give evidence during the trial and that all reasonable efforts should be made to secure their attendance (Schatschaschwili, cited above, §§ 110-111 and 117-118). The Court normally accepts as self-evident that the death of a witness constitutes a good reason for allowing their previously-given statements to be admitted as evidence without the defence being given an opportunity to cross-examine this witness in person (see, for example, Al-Khawaja and Tahery, cited above, §§ 103, 121 and 153; Ferrantelli and Santangelo v. Italy, 7 August 1996, § 52, Reports 1996‑III and Mika v. Sweden (dec.), no. 31243/06, § 37, 27 January 2009). This acceptance is not unconditional, however. In all of these cases, the death of a witness occurred shortly after the statement had been given at a pre-trial stage of proceedings or, in any event, prior to the conclusion of the first-instance trial.", "The analysis of these cases clearly shows that the inability of the defence to examine such witnesses could not have been reasonably attributed to a lack of diligence on the part of domestic courts. 38. Secondly, it is necessary to determine whether the evidence of the absent witness was the sole or decisive basis for the defendant’s conviction (see Schatschaschwili, cited above, § 107 and Al-Khawaja and Tahery, cited above, §§ 119 and 126-47). According to the “sole or decisive rule”, if the conviction of a defendant is solely or mainly based on evidence provided by witnesses whom the accused is unable to question at any stage of the proceedings, his defence rights are unduly restricted. In this context, the word “decisive” should be narrowly understood as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case (see Schatschaschwili, cited above, § 123 and Al‑Khawaja and Tahery, cited above, § 131).", "Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supportive evidence: the stronger the other incriminating evidence, the less likely that the evidence of the absent witness will be treated as decisive. However, as Article 6 § 3 of the Convention should be interpreted in the context of an overall examination of the fairness of the proceedings, the sole or decisive rule should not be applied in an inflexible manner. In particular, 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. However, because the admission of such evidence carries a significant weight in the assessment of the overall fairness of the proceedings, the Court must subject these proceedings to the most searching scrutiny. 39.", "This is the role of the third step in which the Court needs to establish whether there were sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps caused to the defence as a result of the admission of the untested evidence and to ensure that the trial, judged as a whole, was fair (see Khawaja and Tahery, cited above, § 147). These counterbalancing factors include measures that permit a fair and proper assessment of the reliability of the untested evidence. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance to the case. The extent of the counterbalancing factors necessary in order for a trial to be considered fair will depend on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors will have to carry in order for the proceedings as a whole to be considered fair.", "40. As the Grand Chamber clarified in its Schatschaschwili judgment, the three steps are interrelated and, taken together, serve to establish whether the criminal proceedings at issue have, as a whole, been fair (see Schatschaschwili, cited above, § 118). The absence of good reason for the non-attendance of a witness cannot, of itself, be conclusive of the lack of fairness of a trial, although it remains a very important factor to be weighed in the balance when assessing the overall fairness, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3(d). Furthermore, given that its concern is to ascertain whether the proceedings as a whole were fair, the Court should not only review the existence of sufficient counterbalancing factors in cases where the evidence of the absent witness was the sole or the decisive basis for the applicant’s conviction, but also in cases where it found it unclear whether the evidence in question was sole or decisive but nevertheless was satisfied that it carried significant weight and its admission might have handicapped the defence. (b) Application of these principles to the present case (i) Whether there was a good reason for the non-attendance of S.K.", "at the trial 41. The Court first observes that S.K. died before the retrial. However, S.K. was available for questioning during the entire proceedings at the first trial.", "The domestic court had therefore had ample opportunity to introduce the statement he had given on 26 January 2006 as evidence, should they have wished to do so, which would have given an opportunity to the defence to challenge it in person. However, the prosecution neither requested that the court admit this statement as evidence, nor did the court do so of its own motion during the first trial. As a consequence, the statement was not admitted as evidence until the retrial, by which time S.K. had already died and could not be cross-examined by the defence. 42.", "The Court also notes that the District Court, in its decision of 12 May 2008 whereby the retrial was ordered, described the failure of the Municipal Court to admit S.K.’s statement as evidence as “unclear and inexplicable”. The Court concludes that the inability of the defence to examine the impugned evidence by personally confronting the witness as required by Article 6 §§ 1 and 3(d) of the Convention was due primarily to the lack of diligence on the part of domestic courts. For these reasons, the Court holds that there was no good reason for not admitting S.K.’s statement as evidence until after his death. (ii) Whether the evidence of the absent witness was the sole or a decisive basis for the applicants’ conviction 43. As regards the question of whether or not the statements of an absent witness which were admitted in evidence constituted the sole or a decisive basis for the defendant’s conviction, the Court notes that S.K.’s statement, as the sole new evidence introduced during the retrial, was sufficiently important to make a difference between the applicants’ acquittal and their conviction, which can clearly be seen from the comparison of the Municipal Court judgments of 25 January 2008 and 19 February 2009 (see, mutatis mutandis, Mild and Virtanen v. Finland, nos.", "39481/98 and 40227/98, § 47, 26 July 2005). The Court further notes that the only other evidence to some extent complementary to the prosecution’s version of events was a statement given by the alleged victim regarding whether the wine press was abandoned and in working condition, while all the other witness statements contradicted it (see paragraph 7 above). The Court finally notes that no material evidence was introduced at the trial. That being so, the Court is satisfied that the S.K.’s statement was a decisive basis for the applicants’ conviction. (iii) Whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured 44.", "The Court must further determine, in a third step, whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured as a result of the admission of the decisive evidence of the absent witness. The Court first notes that in the national courts’ judgments there is no indication that they approached the statement given by S.K. with any specific caution or that the fact that he was an absent witness prompted the national courts to attach less weight to his statement (compare, for instance, Al-Khawaja and Tahery, cited above, § 157). 45. The Court further observes that the national courts did not have before them any additional incriminating evidence supporting the statement by S.K., with the exception of the previously given statement by the alleged victim.", "Most importantly, the Court notes that the national authorities did not make any serious attempt to collect further evidence in order to establish crucial facts for the determination of the applicants’ criminal responsibility, specifically whether the wine press was abandoned and whether it was in working condition. 46. The Court also observes that the applicants had the opportunity to give their own version of the events during the trial and to challenge the credibility of the S.K.’s statement. However, the domestic courts did nothing to investigate the claims made by S.K. himself during the first trial and repeated by the applicants’ defence lawyer during the retrial that the statement, if indeed made by S.K., must have been given while he was under the influence of alcohol.", "47. In view of the above, the Court holds that no sufficient counterbalancing factors were in place to compensate for the handicaps under which the defence laboured due to the admission of the untested witness statement as evidence which served as a decisive basis for the applicants’ conviction. (iv) Conclusion 48. In assessing the overall fairness of the trial, the Court notes that the applicants’ conviction was decisively based on the untested evidence and that insufficient counterbalancing factors were in place to compensate for the handicaps under which the defence laboured. The Court also attaches significant weight to the fact that the lack of diligence on the part of the domestic authorities was a primary reason for the admission of the S.K.’s statement as evidence only after his death and, consequently, the inability of the defence to cross-examine him at the hearing.", "It therefore finds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 49. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 50.", "The applicant Ivica Dimović claimed 3,500 euros (EUR) in respect of non-pecuniary damage, explaining that as a consequence of the violation of his rights he had been convicted of a criminal offence and had had to spend six months in prison. The applicant Jožef Dimović claimed EUR 2,500 in respect of non-pecuniary damage. 51. The Government submitted that, should the Court find a violation of the applicants’ rights, “the mere establishment of the violation would be enough just satisfaction in this case.” 52. The Court considers that the applicants must have suffered distress and anxiety on account of the violations found.", "Ruling on an equitable basis, it awards the applicant Ivica Dimović EUR 3,000 and the applicant Jožef Dimović EUR 2,000 in respect of non-pecuniary damage. B. Costs and expenses 53. The applicants also jointly claimed EUR 4,182.30 for the costs and expenses incurred before the domestic courts and EUR 1,100 for those incurred before the Court. 54.", "The Government maintained that the applicants’ joint request is excessive. 55. 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 5,282.30 covering costs under all heads. C. Default interest 56.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention, taken together; 3. Holds (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the applicant Ivica Dimović; (ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the applicant Jožef Dimović; (iii) EUR 5,282.30 (five thousand two hundred and eighty-two euros thirty 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.", "Done in English, and notified in writing on 28 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsLuis López GuerraRegistrarPresident" ]
[ "SECOND SECTION CASE OF A.M. v. ITALY (Application no. 37019/97) JUDGMENT STRASBOURG 14 December 1999 FINAL 14/03/2000 In the case of A.M. v. Italy, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrM. Fischbach,MrB. Conforti,MrG.", "Bonello,MrsV. Strážnická,MrP. Lorenzen,MrsM. Tsatsa-Nikolovska, judges, AndMr E. Fribergh, Section Registrar, Having deliberated in private on 2 December 1999, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "37019/97) against the Italian Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mr A.M. (“the applicant”), on 19 June 1997. The applicant was represented by Mr A. D’Avirro, a lawyer practising in Florence, and the Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza. 2. Relying on Article 6 §§ 1 and 3 (d) of the Convention, the applicant complained that he had been denied a fair trial as the defendant in criminal proceedings. On 16 April 1998 the Commission (First Chamber) decided to give notice of the application to the Government and to invite them to submit observations in writing on its admissibility and merits.", "The Government lodged their observations on 17 July 1998 and the applicant replied on 7 October 1998. 3. Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998, and in accordance with Article 5 § 2 thereof, the application was examined by the Court. 4.", "In accordance with Rule 52 § 1 of the Rules of Court, the President of the Court, Mr L. Wildhaber, assigned the case to the Second Section. The Chamber constituted within that Section included ex officio Mr B. Conforti, the judge elected in respect of Italy (Article 27 § 2 of the Convention and Rule 26 § 1 (a)), and Mr C.L. Rozakis, President of the Section (Rule 26 § 1 (a)). The other members designated by the latter to complete the Chamber were Mr M. Fischbach, Mr G. Bonello, Mrs V. Strážnická, Mr P. Lorenzen and Mrs M. Tsatsa-Nikolovska (Rule 26 § 1 (b)). 5.", "On 23 February 1999 the Chamber declared the application admissible[1] and invited the parties to lodge supplementary observations regarding the merits of the application. The Government filed their supplementary observations on 16 April 1999 and the applicant replied on 24 May 1999. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant, an Italian national, was born in 1942 and lives in Florence.", "7. On an unspecified date, G., a minor, complained to the County Department of Public Safety in Seattle (United States) that while on holiday in Italy he had been indecently assaulted by the applicant, a caretaker in the halls of residence where he had been staying. Consequently, the Florence public prosecutor’s office brought criminal proceedings against the applicant for sexual assault on a minor and gross indecency in a public place. 8. On 16 March 1991 the Florence public prosecutor sent international rogatory letters to the Criminal Division of the King County District Court in Seattle pursuant to the Treaty for Mutual Assistance in Criminal Proceedings between the Government of the Italian Republic and the Government of the United States of America (“the Mutual Assistance Treaty”), which had been ratified by Law no.", "224 of 1984. The aim of the rogatory letters was for questions to be put to G., his father (Mr D.) and Miss F., the doctor in whom G. had first confided. The public prosecutor set out in detail the questions which he considered should be put to the witnesses and the manner in which the record of interview should be drafted. He added that no lawyer should be present during the interview. 9.", "On 6 November 1991 Mr D. was questioned by a Seattle police officer. No lawyer was present at the interview. In essence, he confirmed that his son had said that he had been fondled by the applicant. On 26 May 1992 the Italian Consulate-General in San Francisco (United States) received the record of the interview from the American authorities with two documents containing written statements by G.’s mother (Mrs D.) and Mrs N., a child psychotherapist who was treating G. for the behavioural disorders he presented. In their statements, Mrs N. recited the events that G. had related to her and the traumatic effects they had had, while Mrs D. confirmed her husband’s version of events.", "The documents were then translated into Italian and sent to the Florence public prosecutor. 10. The applicant was committed for trial before the Florence Criminal Court. 11. On 25 October 1993 the Florence public prosecutor applied to the President of the Criminal Court for permission to summons G., Mr and Mrs D. and Mrs N. to appear at a public hearing on 23 November 1993 for questioning.", "The case file does not reveal whether that application was granted or whether the witnesses concerned were served with summonses to attend. Whatever the position, none of them appeared at the trial before the Criminal Court and the examination requested by the public prosecutor did not take place. 12. On 23 November 1993 two police officers from Florence were questioned. They indicated that they had received G.’s complaint from the American authorities and gave a description of the hall of residence where the applicant had been working at the material time.", "13. At the request of the public prosecutor and despite opposition by the applicant, the Criminal Court ordered that the documents received from the United States, in particular the record of the interview with Mr D. and the statements of Mrs D. and Mrs N., should be read out. That decision was taken pursuant to Article 512 bis of the Code of Criminal Procedure (CCP), which provides: “On application by a party and having regard to the other evidence, the judge may order that the records of the statements made by a foreign national living outside the Italian territory be read out if either that person has not been summonsed to appear or, having been so summonsed, has failed to appear.” The applicant and the defence witnesses gave evidence that same day. 14. In a judgment of 19 January 1994, which was deposited with the registry on 19 March 1994, the court imposed a two-year suspended sentence on the applicant.", "That decision was taken on the basis of the complaint lodged by G. with the Department of Public Safety in Seattle and the statements made by Mr and Mrs D. and Mrs N., which the court found to be credible and consistent. 15. On 26 April 1994 the applicant appealed to the Florence Court of Appeal. He argued, inter alia, that the acts performed pursuant to the rogatory letters were invalid. In that connection, he noted that G. had never been interviewed and that evidence had been taken from Mrs D. and Mrs N. – whom the Florence public prosecutor had not sought to interview – without authority.", "Furthermore, they had not been questioned but had merely made written statements. As regards Mr D.’s interview, the American police officer who had conducted it had been acting without authority, given that the international rogatory letters had been sent to the District Court in Seattle. Moreover, no lawyer had been present when the interviews and statements were obtained and the persons concerned had not been asked to take the oath, which showed that the documents did not constitute “testimony”, but merely “preliminary investigative acts”. As such, they should not have been used by the Florence Criminal Court as evidence of the accused’s guilt. Lastly, the applicant contended that Article 512 bis CCP was not applicable in the instant case as that provision referred only to statements made in Italy.", "16. In a judgment of 17 May 1996, which was deposited with the registry on 23 May 1996, the Court of Appeal upheld the judgment of the Criminal Court. It observed that by virtue of the locus regit actum principle, acts performed under rogatory letters had to be regulated by the law of the foreign State to which the Italian authorities had referred, provided that the foreign law was not incompatible with Italian public order and in particular “defence rights”. In the instant case, the procedure followed by the Seattle authorities could not be regarded as having infringed those rights as Article 512 bis CCP allowed statements made in Italy or elsewhere by foreign nationals resident outside the national territory to be read out. As regards the fact that G. had not been questioned, the Court of Appeal considered that it was quite understandable that the American police should have wished to prevent the minor, who had been affected psychologically by the violence he had endured, from suffering any further trauma.", "17. On 29 June 1996 the applicant appealed to the Court of Cassation. Referring to the arguments he had raised before the Court of Appeal, he repeated his case that the documents obtained through rogatory letters should not have been used to decide his guilt. He also maintained that Article 431 § 1 (d) CCP, which requires that a record of acts performed outside the Italian territory by rogatory letters be lodged on the judge’s file (fascicolo per il dibattimento), was unconstitutional. He considered in particular that that provision was incompatible with Articles 3 and 24 of the Italian Constitution, which respectively guarantee the equality of all citizens before the law and the right to defend oneself at every stage of the proceedings.", "In that connection, he stressed that he had been given no opportunity to question Mr D., Mrs D. or Mrs N., whose statements had formed the basis of his conviction. 18. In a judgment of 17 January 1997, which was deposited with the registry on 2 April 1997, the Court of Cassation cited the provisions of Article 512 bis CCP, which it held to be applicable in the instant case, and declared the issue of constitutionality raised by the applicant irrelevant. Finding that the reasons given by the Florence Court of Appeal on all the issues in dispute had been cogent and correct, it dismissed the applicant’s appeal. II.", "RELEVANT DOMESTIC LAW 19. Under the terms of Article 1 of the Mutual Assistance Treaty, the signatory States undertake to afford each other mutual assistance in criminal investigations and proceedings. Such assistance includes in particular the hearing of witnesses in the territory of the State to which the request is addressed. In that connection, Article 14 of the Mutual Assistance Treaty provides notably: “A person from whom evidence is sought shall, if necessary, be compelled to appear and testify to the same extent as would be required in criminal investigations or proceedings in the Requested State. Upon request, the Requested State shall specify the date and place of the taking of testimony.", "The Requested State shall permit the presence [at the hearing] of an accused, counsel for the accused, and persons charged with the enforcement of the criminal laws to which the request relates. The executing authority shall provide persons permitted to be present [at the hearing] the opportunity to question the person whose testimony is sought in accordance with the laws of the Requested State. The executing authority shall provide persons permitted to be present [at the hearing] the opportunity to propose additional questions and other investigative measures. Testimonial privileges under the laws of the Requesting State shall not apply in the execution of a request, but such questions of privilege shall be preserved for the Requesting State.” THE LAW I. Alleged VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION 20.", "The applicant complained that the criminal proceedings against him had been unfair and that he had not been given an opportunity to examine or have examined Mr and Mrs D. and Mrs N. He relied on Article 6 §§ 1 and 3 (d) of the Convention, the relevant parts of which provide: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... 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 ...” 21. The applicant contested the domestic courts’ construction of Article 512 bis CCP as meaning that that provision was also applicable to statements made outside Italian territory. He further argued that the acts performed pursuant to the rogatory letters were invalid, alleged that the only items of evidence on which his conviction had been based were the statements of Mr and Mrs D. and Mrs N. and maintained that the fact that they had been read out at his trial before the Criminal Court had denied him any opportunity to examine his accusers.", "As to the possibility of seeking examination of the witnesses under the Mutual Assistance Treaty, the applicant contended that the rogatory letters had been issued without his knowledge and that, as a result, he had been unable to exercise the rights and liberties afforded by Article 14 of that Treaty. 22. The Government explained that under the Italian legal system all evidence must in principle be given at an adversarial hearing before the court having jurisdiction. However, in order to enable that court to establish the facts of the case, it was possible in some circumstances and subject to compliance with the conditions laid down by law, to use evidence acquired during preliminary investigations as a basis for the decision, in particular where such evidence could not be “repeated” at trial. Under Article 512 bis CCP the court could order that statements made by a foreign national be read out provided they did not constitute the only evidence against the accused.", "In the instant case, the applicant – who had raised a number of objections aimed at having the statements made in the United States declared inadmissible in evidence (inutilizzabili) – had not requested the examination of Mr and Mrs D. and Mrs N. in the presence of his lawyers, as permitted by Italian law and the provisions of the Mutual Assistance Treaty. Furthermore, the Government pointed out that the use of depositions taken during the initial investigative phase was not in itself contrary to the Convention and that the rights relied upon by a witness in order to avoid appearing before the court should not result in the proceedings being halted. They accordingly considered that the applicant had had a “fair trial”, especially as his conviction had been based on other items of evidence gathered by the national authorities. 23. As 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, the Court will examine the complaints under Article 6 §§ 1 and 3 (d) taken together (see, among many other authorities, the Van Mechelen and Others v. the Netherlands judgment of 23 April 1997, Reports of Judgments and Decisions 1997-III, p. 711, § 49).", "24. The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among other authorities, the Van Mechelen and Others judgment cited above, p. 711, § 50, and the Doorson v. the Netherlands judgment of 26 March 1996, Reports 1996-II, p. 470, § 67). 25. In addition, all the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument.", "There are exceptions to this principle, but they must not infringe the rights of the defence; as a general rule, paragraphs 1 and 3 (d) of Article 6 require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage (see the Van Mechelen and Others judgment cited above, p. 711, § 51, and the Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 238, p. 21, § 49). In particular, the rights of the defence are restricted to an extent that is incompatible with the requirements of Article 6 if the conviction is based solely, or in a decisive manner, on the depositions of a witness whom the accused has had no opportunity to examine or to have examined either during the investigation or at trial (see the Van Mechelen and Others judgment cited above, p. 712, § 55; the Saïdi v. France judgment of 20 September 1993, Series A no. 261-C, pp. 56-57, §§ 43-44; and the Unterpertinger v. Austria judgment of 24 November 1986, Series A no.", "110, pp. 14-15, §§ 31-33). 26. The Court notes that in convicting the applicant in the instant case the domestic courts relied solely on the statements made in the United States before trial and that the applicant was at no stage in the proceedings confronted with his accusers. 27.", "As to the fact that the applicant could have requested the examination of the witnesses under the Mutual Assistance Treaty, it should be noted that in his international rogatory letters of 16 March 1991, the Florence public prosecutor informed the American authorities that no lawyer was to be allowed to attend the requested examinations. In addition, the Government have not produced any court decision showing how the Treaty is applied. Accordingly, the Court considers that it has not been established that the procedure offered the accessibility and effectiveness required by Article 14 of the Mutual Assistance Treaty. 28. Under these circumstances, the applicant cannot be regarded as having had a proper and adequate opportunity to challenge the witness statements that formed the basis of his conviction.", "He therefore did not have a fair trial and there has been a violation of Article 6 § 1 taken together with Article 6 § 3 (d). 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 said that he had lost his job as a caretaker as a result of his conviction. His health had also deteriorated. As a result, he alleged pecuniary damage resulting from the violation of the Convention of 1,022,000,000 Italian lire (ITL). He also sought ITL 300,000,000 for non-pecuniary damage. 31.", "In the Government’s submission, the applicant had not duly established any pecuniary damage. As to non-pecuniary damage, a judgment finding a violation of Article 6 would constitute sufficient just satisfaction. 32. Whilst the Court cannot speculate as to the outcome of the proceedings concerned had there been no violation of the Convention, it considers that the applicant suffered a loss of real opportunity (see Pélissier and Sassi v. France [GC], no. 25444/94, § 80, ECHR 1999-II).", "It also finds that the applicant suffered actual non-pecuniary damage. Having regard to the circumstances of the case and ruling on an equitable basis as required by Article 41 of the Convention, it decides to award him the sum of ITL 50,000,000. B. Costs and expenses 33. The applicant also sought reimbursement of ITL 4,000,000 for sundry costs incurred in the proceedings before the domestic courts and ITL 837,900 for costs incurred before the Commission and the Court.", "34. The Government left the matter to the Court’s discretion. 35. The Court observes that on several occasions during the domestic proceedings the applicant had submitted that he was entitled to examine the prosecution witnesses. It therefore considers that the costs incurred before the domestic courts were incurred in order to remedy the violation that has been found and that those costs must be reimbursed (see, for a case decided differently on the facts, Serre v. France, no.", "29718/96, § 29, 29 September 1999, unreported). It is also appropriate to award him the sum claimed for the proceedings before the Commission and the Court. Consequently, the Court decides to award the applicant the amount claimed (ITL 4,837,900). C. Default interest 36. According to the information available to the Court, the statutory rate of interest applicable in Italy at the date of adoption of the present judgment is 2.5% per annum.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1.Holds that there has been a violation of Article 6 § 1 taken together with Article 6 § 3 (d) of the Convention; 2.Holds (a)that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, 50,000,000 (fifty million) Italian lire for damage, and 4,837,900 (four million eight hundred and thirty-seven thousand nine hundred) Italian lire for costs and expenses; (b)that simple interest at an annual rate of 2.5% shall be payable from the expiry of the above-mentioned three months until settlement; 3.Dismisses the remainder of the claim for just satisfaction. Done in French, and notified in writing on 14 December 1999, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Erik Fribergh Christos RozakisRegistrarPresident [1]1. Note by the Registry. The Court’s decision is obtainable from the Registry." ]
[ "FIRST SECTION CASE OF AKRAM KARIMOV v. RUSSIA (Application no. 62892/12) JUDGMENT This version was rectified on 28 May 2014 under Rule 81 of the Rules of Court. STRASBOURG 28 May 2014 FINAL 13/10/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Akram Karimov 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 6 May 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 62892/12) 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 national of Uzbekistan, Mr Akram Akhmadovich Karimov (“the applicant”), on 2 October 2012. 2. The applicant was represented by Ms N. Yermolayeva and Ms E. Ryabinina, lawyers 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 alleged, in particular, that in the event of his administrative removal to Uzbekistan he risked being subjected to torture and ill-treatment, that his detention pending extradition and administrative removal had been unlawful, and that no effective judicial review was available to him in respect of the latter complaint. 4. On 4 October 2012 the President of the First Section decided to indicate to the Government, under Rule 39 of the Rules of Court, that the applicant should not be deported or removed to Uzbekistan for the duration of the proceedings before the Court. The President also decided to grant the case priority under Rule 41 of the Rules of Court.", "5. On 31 January 2013 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1967 and lives in Moscow.", "A. The applicant’s background and his arrival in Russia 7. The applicant has a wife and three children who live in Uzbekistan. He is a practising Muslim. Since 1996 he had regularly gone to Russia for seasonal jobs.", "In 2010 the applicant again went to Russia and remained in the Moscow region until his arrest on 17 March 2012. B. Criminal proceedings against the applicant in Uzbekistan 8. On 14 June 2011 the investigator at the Bukhara Regional Department of National Security, Uzbekistan, charged the applicant, in absentia, with incitement to national, racial, ethnic or religious hatred, and producing and disseminating documents containing threats to national security and public order (Articles 156 § 3 (d) and 244-1 § 3 (a) of the Uzbek Criminal Code). The decision stated, in particular, that Mr A., an Uzbek national, had formed an organised criminal group in 1996-1997 which a view to disseminating ideas based on Muslim religious extremism.", "According to the decision, the applicant had been involved in the group while working as the head of a bakery and being responsible for providing other members of the group with work and housing. 9. On the same date the applicant was placed on the list of wanted persons. 10. On 15 June 2011 the Bukhara Criminal Court ordered the applicant’s placement in detention.", "On the same date the Deputy Prosecutor of the Bukhara Region issued an international search warrant in respect of the applicant. C. The applicant’s arrest and detention in Russia with a view to his extradition to Uzbekistan 11. On 17 March 2012 the applicant was arrested by police in Moscow. The record of arrest, drawn up on the same date and signed by the applicant, stated that he had been arrested in accordance with Articles 91 and 92 of the Code of Criminal Procedure as a person wanted by the Uzbek authorities on suspicion of criminal offences under Articles 156 § 3 (d) and 244 § 3 (a) of the Uzbek Criminal Code. 12.", "On 18 March 2012 the applicant was questioned and stated as follows. In Uzbekistan he had worked as a builder. As it had become difficult to find a job there, in July 1996 he went to Russia for the first time to look for a job. For three months he lived in the Moscow Region unofficially, and he then returned to Uzbekistan. Between 1996 and 2010 he went to Russia every year for several months, during which he worked unofficially on construction sites in the Moscow Region.", "He never applied for authorisation in respect of his temporary stays in Russia. In October 2010 he went again to Russia. He went to the village of Poyarkovo, in the Moscow Region, where he found lodgings in a mobile home with three other builders. In October-November 2010 he worked at a construction site in the town of Himki. During 2011 he had occasional jobs in Poyarkovo, including some building work for its residents, and cleaning the streets.", "On 17 March 2012 the applicant went to the Kazanskiy railway station in Moscow as he wanted to return to Uzbekistan. He bought a ticket to Kazan, where he planned to buy tickets for the remainder of the journey. However, before he could board the train he was approached by three men in civilian clothes who told him they were police officers and presented their badges. They informed him that he was on a wanted list in Uzbekistan and asked him to go with them to the police station located near the railway station, which he did. According to the applicant, when he spoke on the telephone with his wife in spring 2011, she had said that police officers had asked her about his whereabouts, but they had not explained why they were looking for him.", "In Uzbekistan he had not been persecuted for political reasons or convicted of any criminal offences, and he did not apply for asylum in Russia. The applicant stated that he did not know in relation to what imputed offence he had been placed on the wanted list. 13. On 19 March 2012 the Russian Ministry of the Interior received from the Uzbek Ministry of the Interior a request for the applicant to be detained pending receipt of its extradition request. 14.", "Also on 19 March 2012, the prosecutor of the Meshchanskiy District of Moscow ordered the applicant’s detention on the ground of Article 61 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention”). In that decision the prosecutor referred to the following elements: the applicant had been arrested in Russia on suspicion of a number of criminal offences on the basis of an international search warrant issued by the Uzbek authorities; the Bukhara Criminal Court had issued an arrest warrant in respect of him; the offences imputed to the applicant were punishable in Russia by more than one year of imprisonment; and the applicant had gone into hiding. The decision did not specify a term for the applicant’s detention. The applicant was immediately placed in SIZO no. 4 in Moscow.", "He was not provided with a copy of the prosecutor’s decision. 15. On 23 March 2012 the Moscow Region Federal Migration Service (“FMS”) informed the prosecutor of Moscow that the applicant had not applied for asylum in Russia. 16. On 27 March 2012 the Moscow FMS informed the prosecutor of the Meshchanskiy District of Moscow that the applicant had applied neither for Russian citizenship nor asylum.", "He had had residence registration in Khimki between 20 June 2008 and 13 April 2009, but he had not been registered in the Moscow Region since then. 17. On 29 March 2012 the Moscow Region FMS informed the prosecutor of Moscow that the applicant was not a Russian citizen and nor had he applied for asylum, and that he had had residence registration in Khimki between 20 June 2008 and 13 April 2009, but had not been registered in the Moscow Region since then. 18. On 12 April 2012 the applicant’s counsel appealed against the detention order of 19 March 2012.", "She argued, in particular, that it was unlawful as the detention had been ordered by a prosecutor and not by a court, and that Article 466 § 2 of the Code of Criminal Proceedings was inapplicable to the applicant at that stage of the proceedings. 19. On 19 April 2012 the FMS informed the Prosecutor General that the applicant had had residence registration in Khimki between 20 June 2008 and 13 April 2009. He had neither acquired Russian citizenship nor applied for asylum. 20.", "On 24 April 2012 the General Prosecutor’s Office of the Russian Federation received a request for the applicant’s extradition from the Deputy Prosecutor General of Uzbekistan. The request contained assurances that the applicant would not be persecuted on grounds of his political convictions, ethnic origin, religion or nationality; that he would be provided with legal assistance; and that the criminal proceedings against him would be conducted in full compliance with the laws of Uzbekistan. Furthermore, the applicant would not be extradited to a third State or be subject to criminal proceedings unrelated to the offences in respect of which his extradition was sought. 21. Also on 25 April 2012, the prosecutor of the Meshchanskiy District of Moscow ordered the applicant’s detention during the extradition proceedings.", "He referred to the extradition request received from the Uzbek authorities and relied on Article 466 § 2 of Code of Criminal Procedure. The decision did not specify a term for the applicant’s detention. 22. On 26 April 2012 the applicant’s counsel submitted an additional statement of appeal against the detention order of 19 March 2012. She complained, in particular, that Uzbekistan had not ratified the Protocol of 28 March 1997 to the Minsk Convention and, therefore, in relations between Russia and Uzbekistan the old version of the Minsk Convention should be applied, without the amendments made by the Protocol.", "Therefore, the applicant should have been released on 17 April 2012, a month after his arrest, as provided by Article 62 § 1 of the Minsk Convention. 23. On the same date, the Preobrazhenskiy District Court of Moscow postponed the hearing on the appeal lodged by the applicant’s counsel to 3 May 2012 in order to allow time for the applicant to receive a copy of the prosecutor’s decision of 19 March 2012. 24. On 27 April 2012 the applicant received a copy of the said decision.", "25. On 3 May 2012 the Preobrazhenskiy District Court of Moscow dismissed the applicant’s counsel’s appeal against the detention order of 19 March 2012. The court found that the applicant had been arrested in accordance with Articles 91 and 92 of the Code of Criminal Procedure and that on 19 March 2012 he had been detained pending receipt of the extradition request on the basis of Article 466 § 2 of the Code of Criminal Procedure. 26. On 12 May 2012 the applicant’s lawyer appealed against the decision of 3 May 2012 to the Moscow City Court.", "She maintained, inter alia, that the Preobrazhenskiy District Court of Moscow had failed to address the arguments she had raised in the appeal statement. 27. On 15 May 2012 the Meshchanskiy District Court of Moscow extended the applicant’s detention until 17 September 2012, referring to Articles 109 and 466 of the Code of Criminal Procedure, Articles 56, 58 and 60 of the Minsk Convention, and the 1957 European Convention on Extradition. The court found the prosecutor’s request for the extension of the applicant’s detention well-founded as his extradition had been requested in relation to charges concerning offences punishable under both Russian and Uzbek law; the applicant was a national of Uzbekistan with no permanent place of residence in Russia; and he had tried to abscond from the Uzbek authorities. The court also noted that the extradition check in respect of the applicant had not been completed.", "28. On 16 May 2012 the applicant’s counsel appealed against that decision. 29. On 30 May 2012 the Moscow City Court upheld the decision of 15 May 2012. 30.", "On 23 July 2012 the Moscow City Court upheld the decision of 3 May 2012. It also found that the Preobrazhenskiy District Court of Moscow duly addressed the arguments raised by the applicant’s counsel on appeal. 31. On 17 September 2012 the prosecutor of the Meshchanskiy District of Moscow, referring to Articles 61 and 62 of the Minsk Convention, ordered the applicant’s release because the six-month maximum period of detention permitted by domestic law had expired. 32.", "Also on 17 September 2012, the General Prosecutor’s office refused to extradite the applicant to Uzbekistan, finding that the offences punishable under Article 244-1 of the Criminal Code of Uzbekistan were not regarded as criminal offences under Russian criminal law. In so far as he was charged with offences punishable under Article 156 § 3 (d) of the Criminal Code of Uzbekistan, there was no corpus delicti in the applicant’s actions for the purposes of Article 282 of the Russian Criminal Code (incitement to hatred and hostility, and degrading treatment). D. The applicant’s administrative arrest in Russia and the proceedings on administrative removal 33. On 17 September 2012 police officers escorted the applicant from the SIZO to the Krasnoselskiy District police station, where the prosecutor’s release order of 17 September 2012 was handed to him. However, the applicant was immediately re-arrested on suspicion of a breach of the residence rules under Article 18.8 of the Code of Administrative Offences, and administrative removal proceedings were initiated in respect of him.", "34. In the records of the administrative offence and the administrative arrest, signed by the applicant, both dated 17 September 2012, he stated that he did not agree with the arrest. 35. By a telegram of 18 September 2012 the Prosecutor of the Russian Federation informed the prosecutor of Moscow that on 17 September 2012 the Uzbek authorities’ request for the extradition of the applicant had been refused. The telegram further stated that it was necessary to take a decision regarding the applicant’s further detention and to verify the legality of his presence on the territory of the Russian Federation.", "36. On 18 September 2012 the Meshchanskiy District Court of Moscow refused to accept the case for examination because the case file contained no information about the outcome of either the extradition proceedings or the refugee-status proceedings 37. On 19 September 2012 the case file on the applicant’s administrative offence was submitted to the Meshchanskiy District Court of Moscow. 38. In written pleadings filed with the Meshchanskiy District Court of Moscow the applicant’s counsel argued that the applicant’s removal to Uzbekistan would be unlawful.", "She stated, in particular, that the applicant, as a person accused of participation in a banned religious activity, faced torture and other forms of ill-treatment if expelled to Uzbekistan. The applicant’s counsel also referred to the Court’s case-law concerning expulsion to Uzbekistan and recent reports by international NGOs, according to which detainees charged with banned religious activities were subjected to systematic torture and other forms of ill-treatment in Uzbekistan. She further stated that the applicant had applied for refugee status in Russia and the proceedings were still pending; in accordance with the Refugee Act of 1993 and the 1951 Geneva Convention on the Status of Refugees, the applicant could not be removed from Russia until the end of those proceedings. 39. On 19 September 2012 the Meshchanskiy District Court of Moscow found the applicant guilty of a breach of the residence rules, imposed a fine in the amount of 2,000 roubles (RUB) (approximately 50 euros) and ordered his administrative removal from the Russian Federation.", "It found, in particular, that the applicant had arrived in Russia on 20 October 2010 with a view to finding a job. However, he had made no attempt to regularise his stay in Russia by applying either for a temporary residence permit or for a work permit. Furthermore, he had not left Russia upon the expiry of the maximum ninety-day period for which foreign nationals who did not require a visa were authorised to stay in Russia. The applicant admitted at the hearing that he had been residing in Russia unlawfully, but stated that for a long period of time he had been unable to regularise his situation because his employer had had possession of his documents. However, he had received his passport at the end of 2011 and had still not taken any steps to regularise his residence.", "The court further stated that when imposing the penalty it had taken into account the applicant’s situation, including his lack of a stable income and residence in Russia, the length of his stay in Russia without a permit, and the fact that he had been aware that a permit was required. 40. The court found that the applicant’s allegations regarding a risk of ill-treatment in the event of his removal to Uzbekistan were “based on assumptions” and were “not corroborated by the case-file materials”. It also dismissed the applicant’s counsel’s argument that the applicant could not be subject to administrative removal because he had a pending application for refugee status. The court stated in this connection that on 28 August 2012 the Moscow FMS had dismissed his application and, as of the date of the hearing, the applicant had not appealed against that decision.", "The court further held that, taking into account the applicant’s financial situation and also the need to ensure his removal from the territory of the Russian Federation, the applicant was to be placed in custody until the “resolution of the matter relating to his administrative removal”. Following that decision the applicant was placed in a detention centre for foreigners in Moscow. 41. On 28 September 2012 the applicant’s counsel appealed against the decision of 19 September 2012 to the Moscow City Court. She reiterated the arguments she had advanced before the first-instance court and complained that the first-instance court had not made an adequate assessment of the risk of ill-treatment to which the applicant might be subjected if he was removed to Uzbekistan.", "She pointed out that the Meshchanskiy District Court of Moscow had refused to examine the reports by international NGOs relating to the human rights situation in Uzbekistan and had ignored the Court’s position on the matter. 42. On 2 October 2012 the applicant requested the Court to apply Rule 39 of the Rules of Court. 43. On 4 October 2012 the Court granted the applicant’s request for the application of interim measures under Rule 39 of the Rules of Court and indicated to the Government that the applicant should not be expelled to Uzbekistan for the duration of the proceedings before the Court.", "44. On 8 October 2012 the Prosecutor General instructed the prosecutor of Moscow to comply with the Court’s indications regarding interim measures under Rule 39 of the Rules of Court. 45. On 9 October 2012 the prosecutor of Moscow instructed the prosecutor of the Meshchanskiy District of Moscow to apply to the Meshchanskiy District Court of Moscow for the suspension of the applicant’s removal to Uzbekistan in view of the application by the Court of Rule 39 of the Rules of Court. 46.", "On 10 October 2012 the prosecutor of the Meshchanskiy District of Moscow requested the Meshchanskiy District Court of Moscow to suspend the applicant’s removal to Uzbekistan following the application by the Court of Rule 39 of the Rules of Court. 47. On the same date, the Moscow FMS informed the Moscow City Court that the applicant was not registered in the migration register and nor had he been issued with a work permit. 48. Also on 10 October 2012, the Moscow City Court upheld the decision of 19 September 2012, finding it lawful and justified.", "It held that the first-instance court had been right in finding that the applicant’s actions had constituted an administrative offence. The appeal court further dismissed the argument that the applicant could not be subject to administrative detention in view of his application for asylum as (i) he had applied for asylum only after being arrested; and (ii) the reasons he had put forward for his reluctance to return to Uzbekistan did not constitute well-founded fears of persecution on grounds of his religion, nationality, ethnic origin, belonging to a particular social group, or political convictions. 49. On 25 October 2012 the Meshchanskiy District Court of Moscow ordered the suspension of the execution of the decision of 19 September 2012 pending the examination of the application by the prosecutor of the Meshchanskiy District of Moscow. 50.", "On 13 December 2012 the Moscow City Court returned the application by the prosecutor of the Meshchanskiy District of Moscow without examination on the ground that under Article 30.12 of the Code on Administrative Offences the prosecutor was not authorised to apply for the suspension of a final judicial decision. 51. On 15 December 2012 the applicant’s counsel sent an application to the Meshchanskiy District Court of Moscow pursuant to Article 31.8 of the Code of Administrative offences. She sought clarification regarding the execution of the decision of 19 September 2012 in the light of the application by the Court of Rule 39 of the Rules of Court. The Meshchanskiy District Court of Moscow received the application on 28 December 2012.", "In the absence of a response, the applicant’s counsel resubmitted the application on 19 March 2013. 52. On 8 April 2013 the Meshchanskiy District Court of Moscow wrote to the applicant’s counsel informing him that the court found that there were no grounds to consider her application under Article 31.8 of Code on Administrative Offences. Therefore, it was to be examined as a general application. The court advised the applicant’s counsel to contact the competent executive authorities with her queries concerning the execution of the decision of 19 September 2012.", "The letter was sent on 18 April 2013. E. Application for refugee status in Russia 53. On 20 April 2012 the applicant applied for refugee status in Russia. 54. On 28 August 2012 the Moscow FMS refused to grant him refugee status.", "The FMS noted that although the applicant had substantiated his application by an alleged risk of persecution on religious grounds, he stated that he had left Uzbekistan for economic reasons. However, he feared that if he returned there the Uzbek law-enforcement agencies would extract from him under torture a confession to crimes he had not committed. It further analysed at length the applicable Uzbek laws on the prohibition of torture and freedom of religion, as well as information on the co-existence of various religions in Uzbekistan. The FMS noted that the applicant had not left Uzbekistan on any of the grounds listed in section 1 § 1 (1) of the Refugees Act. Moreover, it appeared that his wish to not return to Uzbekistan was based not on a fear of being persecuted on grounds of religion, nationality, ethnic origin, belonging to a particular social group, or political convictions, but rather on his fear of being subjected to punishment for the offences he was charged with in Uzbekistan.", "Therefore, he did not meet the criteria set out in section 1 § 1 (1) of the Refugees Act. 55. On 26 September 2012 the applicant appealed against that decision to the FMS. 56. On 10 November 2012 the FMS dismissed the applicant’s appeal against the decision of 28 August 2012.", "It endorsed the reasoning of that decision and added that although, according to the applicant, since 2002 he had regularly come to Russia for seasonal jobs, he had only had a work permit for the period between 30 May 2008 and 28 September 2010. 57. On 17 January 2013 the applicant appealed against that decision to the Basmanniy District Court of Moscow. He argued that as criminal proceedings had been instituted against him in Uzbekistan, his fears of persecution on religious grounds were well-grounded. 58.", "On 1 April 2013 the Basmanniy District Court of Moscow dismissed the applicant’s appeal. The court noted that although the human rights situation in Uzbekistan was “ambiguous”, it was a party to numerous international treaties on the protection of human rights and regularly submitted reports to the UN on its compliance with such treaties. The court further stated that a decision concerning refugee status should be taken not on the basis of the general situation in the country, but on the basis of the applicant’s specific circumstances. The FMS had thus been right to dismiss the application as the applicant had failed to provide any evidence that in the event of his return to Uzbekistan there was a real risk of his being subjected to ill-treatment. 59.", "On 13 May 2013 the applicant appealed against that decision to the Moscow City Court. The appeal hearing was scheduled for 30 July 2013. 60. The Court has not been informed of the outcome of the appeal proceedings. II.", "RELEVANT DOMESTIC LAW AND INTERNATIONAL TREATIES A. Extradition proceedings 1. The Code of Criminal Procedure 61. Chapter 54 of the Code of Criminal Procedure of 2002 governs the procedure to be followed in the event of extradition. 62.", "An extradition decision made by the Prosecutor General may be challenged before a court (Article 463 § 1). In that case the extradition order must not be enforced until a final judgment is delivered (Article 462 § 6). 63. 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 must 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).", "64. 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). 65. 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 brought 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)); and 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)). 66. 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 completed, the penalty is lifted on any valid ground, or the sentence has been served (Article 465 § 1). 2. Decision of the Russian Supreme Court 67.", "In its ruling no. 11 of 14 June 2012, the Plenary Session of the Russian Supreme Court stated, with reference to Article 3 of the Convention, that extradition should be refused if there were compelling reasons to believe that the person might be subjected to torture or 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 were to examine whether there was reason 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, competent institutions of the United Nations, and by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. 68. In the same ruling the Supreme Court drew the court’s attention to the fact that Article 62 of the Minsk Convention provided that the term of detention prior to receipt of an extradition request should not exceed one month. It further stated that if the requesting State was a party to the Protocol of 28 March 1997 to the Minsk Convention, a term of detention prior to receipt of the extradition request should not exceed forty days. B.", "Detention pending extradition, and judicial review of detention 1. The Russian Constitution 69. 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.” 70. 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 CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention”) 71.", "Extradition proceedings are governed by the Minsk Convention, to which both Russia and Uzbekistan are parties, as amended by the Protocol of 28 March 1997 ratified by Russia on 9 November 2001. Uzbekistan has signed the Protocol but not ratified it. The relevant provisions of the Minsk Convention read: Article 8. Carrying out of requests for assistance “1. When responding to a request [поручение] for legal assistance, the requested agency shall apply the laws of its country.", "Upon the demand of the requesting agency it may apply the procedural rules of the requesting Contracting Party, unless they contradict the legislation of the requested Contracting Party.” Article 58. “1. An extradition request must contain: (a) the name of the requesting authority; (b) a description of the factual circumstances of the action and the text of the law of the requesting Contracting Party on the basis of which the action constitutes an offence; (c) the surname, name and patronymic of the person subject to extradition, his/her nationality, place of abode or residence, a description of his/her appearance if possible, and other information about his/her personality; (d) the extent of the damage caused by the offence. 2. A certified copy of the decision to place the person in detention must be attached to the extradition request.” Article 60.", "Search and arrest for [the purpose of] extradition “Upon receipt of an extradition request the requested Contracting Party shall immediately take measures to search for and arrest the person whose extradition is sought, except in cases where extradition is not possible.” Article 61. Detention or arrest before receipt of an extradition request “1. The person whose extradition is sought may be placed in detention before the receipt of an extradition request if there is a related petition. The petition must contain reference to a detention order or a judgment [приговор] that has entered into legal effect, and indicate that an extradition request will follow. A petition for detention before the receipt of an extradition request may be transmitted by post, telegraph, telex or telefax.", "2. The person may be arrested without the petition provided for in paragraph 1 of the present Article if there are grounds prescribed by law to suspect that the person has committed a crime which may give rise to extradition in the territory of the other Contracting Party. 3. The other Contracting Party must be immediately informed where detention or arrest is applied out before the receipt of an extradition request.” Article 62. Release of the person arrested or detained “1.", "A person placed in detention pursuant to Article 61 § 1 and Article 61-1 must be released upon receipt of notification from the requesting Contracting Party [that] it is necessary to release the person or, if the requesting Contracting Party fails to submit an extradition request with all the requisite supporting documents provided for in Article 58, within forty days of the date of detention. 2. A person arrested under Article 61 § 2 must be released if the petition for detention in accordance with Article 61 § 1 is not received within the time-limit provided for by the legislation governing detention matters.” 72. Article 62 § 1 in its original version, unamended by the Protocol of 28 March 1997, reads as follows: “A person remanded in custody pursuant to Article 61 § 1 must be released if an extradition request is not received within one month of the date of [his or her] detention”. 3.", "The Code of Criminal Procedure 73. Article 1 § 3 of the Code of Criminal Procedure provides that the 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 Code of Criminal Procedure, the former are to be applied. 74. The term “court” is defined by the Code of Criminal Procedure 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 Code of Criminal Procedure as “an official empowered to administer justice” (Article 5 § 54). 75. Article 91 § 2 provides that a person suspected of having committed an offence may be detained, in particular, if he or she has tried to abscond. Under Article 92 § 1 a record of arrest must be drawn up within three hours of the arrest. Article 94 § 2 provides that a suspect may be detained for up to forty-eight hours without a court order authorising his or her detention.", "76. Chapter 13 of the Code of Criminal Procedure (“Preventive Measures”) governs the use of preventive measures (меры пресечения) while criminal proceedings are pending. Such measures include placement in detention. Detention may be ordered by a court following an application by an investigator or a prosecutor if the 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 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 discontinued or changed. A decision to cancel or change a preventive measure may be taken by an investigator, a prosecutor or a court (Article 110).", "77. 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). 78.", "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 Court (a) Decision of the Constitutional Court no. 101-O of 4 April 2006 79. On 4 April 2006 the Constitutional Court examined an application by a Mr N., who had submitted that the lack of any limitation in time on the detention of a person awaiting extradition was incompatible with the constitutional guarantee against arbitrary detention. 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 should apply its domestic law, that is, the procedure laid down in the Russian Code of Criminal Procedure. Such procedure comprised, in particular, Article 466 § 1 of the Code and the norms in Chapter 13 (“Measures of restraint”), which, by virtue of their general character and position in Part I of the Code (“General provisions”), applied to all stages and forms of criminal proceedings, including proceedings for the examination of extradition requests. Accordingly, Article 466 of the Code of Criminal Procedure did not allow the authorities to apply a custodial measure without complying with the procedure established in the Code of Criminal Procedure and the time-limits fixed in that Code. (b) Decision no. 158-O of 11 July 2006 concerning the Prosecutor General’s request for clarification 80.", "The Prosecutor General asked the Constitutional Court for an official clarification of decision no. 101-O of 4 April 2006 (see above), for the purpose, in particular, of elucidating the procedure for extending a person’s detention with a view to extradition. 81. The Constitutional Court refused the request on the ground that it was not competent to indicate which specific provisions of the criminal law governed the procedure and time-limits for holding a person in detention with a view to extradition. That was a matter for the courts of general jurisdiction.", "(c) Decision no. 333-O-P of 1 March 2007 82. The Constitutional Court 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 an arrest had been lawful and justified.", "83. The Constitutional Court held that Article 466 § 1 of the Code of Criminal Procedure, read in conjunction with the Minsk Convention, could not be construed as permitting the detention of an individual for more than forty-eight hours on the basis of a request for his or her extradition without a decision by a Russian court. A custodial measure could be applied only in accordance with the procedure established in the Russian Code of Criminal Procedure and within the time-limits fixed in that Code. (d) Decision no. 383-O-O of 19 March 2009 84.", "By this decision the Constitutional Court dismissed as inadmissible a request for a constitutional review of Article 466 § 2 of the Code of Criminal Procedure, finding as follows: “[the provision] does not establish time-limits for detention and does not establish the reasons 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] ...” 5. Relevant case-law of the Supreme Court (a) Directive Decision no. 1 of 10 February 2009 85. By Directive Decision No.", "1, adopted by the Plenary Session of the Supreme Court of the Russian Federation on 10 February 2009, several instructions were issued to the courts on the application of Article 125 of the Code of Criminal Procedure. The Plenary reiterated that any party to criminal proceedings, or other person whose rights or freedoms were affected by the actions or inaction of the investigating or prosecuting authorities in criminal proceedings could use Article 125 of the Code of Criminal Procedure to challenge a refusal to institute criminal proceedings or a decision to terminate them. The Plenary stated that whilst the bulk of decisions amenable to judicial review under Article 125 also included decisions to institute criminal proceedings or refusals to admit a defence counsel or to grant victim status, and a person could not rely on Article 125 to challenge a court’s decision to apply bail or house arrest or to place a person in detention. It was further stressed that in declaring a specific action or failure to act of a law enforcement authority unlawful or unjustified, a judge was not entitled to quash the impugned decision or to order the official responsible to revoke it but could only ask him or her to rectify the shortcomings indicated. Should the authority concerned fail to comply with the court’s instructions, an interested party could complain to a court about the authority’s failure to act and the court could issue a special ruling (частное определение) drawing the authority’s attention to the situation.", "Lastly, the decision stated that a prosecutor’s decision to place a person under house arrest or in detention with a view to extradition could be appealed against to a court under Article 125 of the Code of Criminal Procedure. (b) Directive Decision no. 22 of 29 October 2009 86. On 29 October 2009 the Plenary Session of the Russian Supreme Court adopted Directive Decision No. 22, which stated that, pursuant to Article 466 § 1 of the Code of Criminal Procedure, only a court could order the detention of a person in respect of whom an extradition check was pending if the authorities of the State requesting extradition had not submitted a court decision ordering his or her placement in detention.", "The judicial authorisation of detention in that situation was to be carried out in accordance with Article 108 of the Code of Criminal Procedure and following an application by a prosecutor for that person to be placed in detention. In deciding to place the person in custody the court was to examine if there existed sufficient factual and legal grounds for applying that preventive measure. If the extradition request was accompanied by a detention order of a foreign court, the prosecutor was competent to place the person in detention without the authorisation of a Russian court (Article 466 § 2 of the Code of Criminal Procedure) for a period not exceeding two months, and the prosecutor’s decision could be challenged in the courts under Article 125 of the Code of Criminal Procedure. When extending the person’s detention with a view to extradition, the court was to apply Article 109 of the Code of Criminal Procedure. (c) Ruling no.", "11 of 14 June 2012 87. In 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 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 Code of Criminal Procedure. 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 State was a party to the Minsk Convention, the person whose extradition was sought should be immediately released. C. Expulsion proceedings 1. Foreigners Act 88. Section 5 § 1 of Law no. 115-FZ of 25 July 2002 on the Legal Status of Foreign Nationals in the Russian Federation (“the Foreigners Act”) provides that a foreign national who does not require a visa for a temporary stay in Russia may stay in Russia for not more than ninety days, unless otherwise provided for by the Act.", "89. Under Section 5 § 2 of the Act, a foreign national must leave Russia after the expiry of the authorised period, except if by the date of expiry he has already obtained authorisation for an extension or renewal, or if his application for an extension and the relevant documents have been accepted for processing. 90. Section 5 § 3 of the Act provides that the authorised period for a foreign national’s temporary stay in Russia may be either extended or shortened should the terms or circumstances on the basis of which the temporary stay was authorised change or cease to exist. Under Section 5 § 4 the competent executive authority takes the decision on the extension or shortening of the authorised period.", "91. Under Section 34 § 5, foreign nationals subject to administrative removal who have been placed in custody pursuant to a court order are detained in special facilities until the execution of the decision on administrative removal. 2. Code of Administrative Offences 92. Under Article 3.2 § 1 (7), administrative removal constitutes an administrative penalty.", "In Article 3.10 § 1 of the Code of Administrative Offences, administrative removal is defined 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 Article 3.10 § 5, for the purposes of execution of the decision on administrative removal a judge may order the detention of the foreign national or the stateless person in a special facility. 93. Article 18.8 provides that a foreign national who infringes the residence regulations of the Russian Federation, including by living in the territory without a valid residence permit, or by non-compliance with the established procedure for residence registration, will be liable to an administrative fine of RUB 2,000 to 5,000 and possible administrative removal.", "Under Article 28.3 § 2 (1), a report on the offence described in Article 18.8 is drawn up by a police officer. Article 28.8 § 2 requires the report to be transmitted immediately to a judge. Article 23.1 § 3 provides that the determination of any administrative charge that may result in removal from the Russian Federation must be made by a judge of a court of general jurisdiction. Article 30.1 § 1 guarantees the right to appeal against a decision on an administrative offence to a court or to a higher court. 94.", "Under Article 27.5 § 2, a person subject to administrative proceedings for a breach of the rules on residence within the Russian territory can be held in administrative detention for a term not exceeding forty-eight hours. 95. Under Article 31.1 a decision on an administrative offence takes effect on expiry of the term for bringing an appeal. Unappealable decisions take effect immediately. 96.", "Article 31.3 § 3 provides that a decision on an administrative offence is to be sent within three days of its entry into effect to the authority competent to execute it. Under Article 31.4 § 1 a decision on an administrative offence is executed by a competent authority or a competent official in accordance with the procedure provided for in the Code of Administrative Offences and the applicable laws. Under Article 31.4 § 3, should the procedure for execution of the decision be unclear, the authority responsible for its execution or the person subject to the administrative proceedings may apply to a court or the competent authority with a request for clarification of the procedure. Under Article 31.8 § 1 the court must examine the application within three days of the date on which the issues giving rise to the clarification arose and, under Article 31.8 § 3, deliver a ruling, which is to be sent to the applicant within three days. 97.", "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. Under Article 31.9 § 2, if the defendant impedes the enforcement proceedings, the limitation period specified in Article 31.9 § 1 is interrupted. 98. Article 3.9 provides that an administrative offender can be penalised by administrative arrest only in exceptional circumstances, and for a maximum term of thirty days. 3.", "Entry and Leaving Procedures Act 99. Section 27 § 2 of Federal Law no. 114-FZ of 15 August 2006 on the Procedure for Entering and Leaving the Russian Federation (“the Entry and Leaving Procedures Act”), provides that a foreign national who has been deported or subjected to administrative removal from Russia may not re-enter the territory for five years following his deportation or administrative removal. 4. Relevant case-law of the Constitutional Court 100.", "In decision no. 6-R of 17 February 1998 the Constitutional Court stated, with a reference to Article 22 of the Constitution, 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 assesses 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.", "D. Status of refugees 1. The 1951 Geneva Convention on the Status of Refugees 101. 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 judgment of a particularly serious crime, constitutes a danger to the community of that country.” 2. Refugees Act 102. Law no. 4258-I on Refugees of 19 February 1993 (\"the Refugees Act\"), 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 circumstances, is unable or, owing to such fear, unwilling to return to it (section 1 § 1 (1)).", "103. 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)). 104. 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). 105.", "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 the receipt of written notification of it or, in the event of lack of a written reply, within one month after the complaint was lodged, and within three months after the asylum seeker became aware of the refusal to grant him or her refugee status (Article 10 § 3 (1) and (2)). 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 a refusal, should there be no other legal grounds for him or her to remain, must leave the territory of the Russian Federation within three working days of receipt of 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.", "REPORTS ON UZBEKISTAN BY UN INSTITUTIONS AND NGOs 106. 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 ...” 107. 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) ...” 108. The applicant referred to the World Report released by Human Rights Watch in January 2013, which, in so far as relevant, reads as follows: “Uzbekistan’s human rights record remains atrocious, with no meaningful improvements in 2012. Torture is endemic in the criminal justice system.", "Authorities intensified their crackdown on civil society activists, opposition members, and journalists, and continued to persecute religious believers who worship outside strict state controls ... Torture remains rampant and continues to occur with near-total impunity. Detainees’ rights are violated at each stage of investigations and trials, despite habeas corpus amendments passed in 2008. The government has failed to meaningfully implement recommendations to combat torture made by the UN special rapporteur in 2003 and other international bodies. Suspects are not permitted access to lawyers, a critical safeguard against torture in pre-trial detention.", "Police coerce confessions from detainees using torture, including beatings with batons and plastic bottles, hanging by the wrists and ankles, rape, and sexual humiliation. Authorities routinely refuse to investigate allegations of abuse ...” 109. The applicant also referred to Amnesty International’s Annual Report for 2012, released on 23 May 2013, which, in so far as relevant, reads as follows: “Concerns remained over the frequent use of torture and other ill-treatment to extract confessions, in particular from those suspected of links with banned religious groups ... Torture and other ill-treatment of detainees and prisoners by security forces and prison personnel continued to be routine. Scores of reports of torture and other ill-treatment emerged during the year, especially from men and women suspected or convicted of belonging to Islamic movements and Islamist groups and parties or other religious groups, banned in Uzbekistan.", "As in previous years, the authorities failed to conduct prompt, thorough, and impartial investigations into such reports and into complaints lodged with the Prosecutor General’s Office ... The authorities continued to seek the extradition of suspected members of Islamic movements and Islamist groups and parties banned in Uzbekistan in the name of security and the fight against terrorism. They also requested the extradition of political opponents, government critics and wealthy individuals out of favour with the regime. Many of these extradition requests were based on fabricated or unreliable evidence. The government offered diplomatic assurances to sending states to secure the returns, pledging free access to detention centres for independent monitors and diplomats.", "In practice, they did not honour these guarantees. Those forcibly returned to Uzbekistan faced incommunicado detention, torture and other ill-treatment and, after unfair trials, long prison sentences in cruel, inhuman and degrading conditions. The authorities were also accused of attempting assassinations of political opponents living abroad ...” 110. The applicant further referred to the report by Amnesty International published on 3 July 2013 entitled Eurasia: Return to torture: Extradition, forcible returns and removals to Central Asia. The report reads, in so far as relevant: “Over the past two decades thousands of people across the region have alleged that they have been arbitrarily detained and tortured or ill-treated in custody in order to extract a forced confession or money from relatives.", "In this period, piecemeal reforms have been introduced in most Central Asia countries with the aim of strengthening the accountability of law enforcement agencies and improving the protection available in the criminal justice system. Nowhere, however, have they had any significant success in eliminating the practices of torture and other ill-treatment that are often used in relation to people suspected of ordinary crimes, and routinely used in relation to political opponents and individuals suspected of involvement in extremism and terrorism-related activities or in banned religious groups ... In all five republics, detainees are often tortured and ill-treated while being held incommunicado for initial interrogations. Those detained in closed detention facilities run by National Security Services on charges related to national security or “religious extremism” are at particular risk of torture and other ill-treatment ...” 111. The report specifically addresses the applicant’s situation, as follows: “In 2012 Akram Karimov, an Uzbekistani national, was detained for six months pending extradition in a SIZO (pre-trial detention centre) in Moscow.", "The Uzbekistani authorities sought his extradition on charges related to membership of a banned religious organisation, based on the fact that an acquaintance of his had allegedly set up a religious organisation in Uzbekistan. The legal time limit for Akram Karimov’s detention expired on 17 September 2012. He ought to have been released on this date. However, the documents ordering his release were not given to him or his defence lawyer but instead passed to officers of the Krasnoselsky police who took him directly from the SIZO to Krasnoselsky police station, Moscow, where he was detained on the grounds that he was present in Russia “illegally”. However, as he had applied for refugee status while in prison he should have been protected from any forcible return to his country of origin pending full examination of his asylum claim through the refugee status determination procedure.", "Despite this, the Federal Migration Services applied for an expulsion order on the basis that Akram Karimov was illegally present in the country. On 18 September the authorities’ application for administrative expulsion was heard by Meshansky regional court, where a representative of the Moscow City Prosecutor’s office informed the court that the General Prosecutor’s Office was reviewing the extradition case. The judge ruled that no decision could be made on Akram Karimov’s administrative expulsion as a decision on his extradition case had not yet been taken. The next day, the representative of the Moscow City Prosecutor’s Office showed the court a telex from the General Prosecutor’s office addressed to the Moscow City Prosecutor’s office stating that a decision had been taken to refuse the extradition request on 17 September. NGO observers believe that this telex was backdated in order to allow the court to take a decision on the case for his administrative expulsion.", "Indeed, when the administrative court hearing resumed on 19 September, the Meshansky regional court ruled that Akram Karimov should be expelled. The court refused to take into account materials submitted by the defence lawyer about the real risk of torture he would face should he be returned to Uzbekistan, and the fact that he was an asylum-seeker still awaiting final determination of his claim. The court also refused to hear from a representative of the UNHCR who was invited by the defence lawyer to attend the hearing as an expert witness. Akram Karimov appealed against the decision to expel him but on 10 October 2012 the Moscow City Court turned down his appeal and upheld the decision to expel him from Russia. Akram Karimov lodged a complaint with the European Court of Human Rights.", "On 4 October, the Court ordered interim measures instructing Russia not to return him pending its substantive determination of the case. Akram Karimov applied for refugee status in 2012 but his application was refused by the Federal Migration Service. On 17 January 2013 he attempted to lodge an appeal against this decision, as required, with an official at the detention centre, but the latter reportedly refused to accept it. After intervention by his lawyer, the same official purported to agree to send the appeal to court before the expiry of the deadline for appeals on 19 January. However, two days later on 21 January Akram Karimov’s lawyer discovered that his appeal had not been sent to the court.", "The detention centre official denied having received the appeal, despite the fact that Akram Karimov had handed this document to her in the presence of his lawyer. After the lawyer complained to the head of the detention centre, the official was instructed to deliver the appeal to the court directly. The Court turned down the appeal, and at the time of writing, Akram Karimov’s lawyer is appealing to the court of final instance. He is being held in “Severny” detention centre for foreigners awaiting deportation in the Moscow region. Amnesty International is concerned that he faces a real risk of torture or other ill-treatment if returned to Uzbekistan.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 112. The applicant complained that if 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. The parties’ submissions 1. The Government 113. The Government submitted that in the course of the extradition proceedings the Government of Uzbekistan had provided assurances that, if returned to Uzbekistan, the applicant would not be persecuted, in particular, on religious or political grounds.", "Furthermore, the courts had carefully examined his allegations regarding the risk of his being subjected to ill-treatment if he was returned to Uzbekistan. In the Government’s view, the decision on the applicant’s administrative removal was well-grounded and proportionate, as he had failed to regularise his stay in Russia despite being well aware of the applicable procedure. The Government also pointed out that the decision 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 were sceptical about the NGO reports concerning the situation in Uzbekistan referred to by the applicant; in the Government’s view, they contained general allegations uncorroborated by specific factual information. In particular, when describing the applicant’s situation in its report, Amnesty International had not referred to a single piece of evidence (see paragraph 111 above).", "The Government maintained that the reports did not prove a risk of ill-treatment in Uzbekistan either in the applicant’s case or in general. 2. The applicant 114. Firstly, 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 no other possibility had ever been discussed in the course of the administrative proceedings and, furthermore, that there was no reason to believe that any other country would be willing to accept him.", "As to the risk of ill-treatment if expelled to Uzbekistan, the applicant submitted that the FMS had failed to properly assess his arguments and that its reliance on the assurances provided by Uzbekistan in the extradition proceedings was insufficient. He referred, in particular, to Abdulkhakov v. Russia, no. 14743/11, §§ 149-50, 2 October 2012, in this connection. The applicant also pointed out that the very reliance on such assurances within the administrative proceedings demonstrated that his expulsion constituted extradition in disguise. He further maintained that the NGO reports on the situation in Uzbekistan constituted reliable evidence as to the high risk of treatment contrary to Article 3, especially taking into account that he was suspected of being a member of an extremist religious group.", "B. The Court’s assessment 1. Admissibility 115. The Court observes firstly that, Uzbekistan’s extradition request having being refused, it is only called upon to examine the applicant’s complaint under Article 3 of the Convention in relation to the expulsion proceedings. 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. 2. Merits (a) General principles 117.", "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. 118.", "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). 119.", "The assessment of whether there are substantial grounds for believing that an 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).", "120. In order to determine 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). 121.", "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). 122.", "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.). 123. 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). (b) Application of these principles to the present case (i) Domestic proceedings 124.", "Turning to the circumstances of the present case, the Court must first examine whether the applicant’s allegations regarding the risk of ill-treatment if expelled to Uzbekistan were duly assessed by the domestic authorities. 125. The Court notes that the General Prosecutor’s office refused to extradite the applicant to Uzbekistan on the ground that some of the charges against him were not regarded as criminal offences under Russian criminal law, and the remainder of the charges disclosed no corpus delicti. However, the refusal to extradite the applicant was immediately followed by the institution of administrative proceedings with regard to his failure to regularise his stay in Russia, which resulted in a decision on his administrative removal. The Court observes that the applicant raised the issue of his risk of being subjected to ill-treatment if returned to Uzbekistan in both the expulsion and the 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 participation in a banned religious activity, 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 religious extremism or attempted overthrow of the constitutional order (see paragraphs 106-111 above). 126. Having regard to the asylum proceedings, the Court observes that the migration authorities in their decisions refusing the applicant’s asylum application mainly referred to the fact that he had left Uzbekistan for economic reasons, and concluded that his wish not to return to Uzbekistan was based not on a fear of being persecuted on grounds of religion, nationality, ethnic origin, belonging to a particular social group, or political convictions, but on a fear of being subjected to punishment for the offences he was charged with in Uzbekistan (see paragraph 54 above).", "Although the Moscow FMS in its decision of 28 August 2012 did analyse the applicable Uzbek laws on prohibition of torture and freedom of religion, it did not examine the information stemming from various international organisations and the judgments of this Court submitted by the applicant in support of his detailed submissions concerning his risk of being subjected to ill-treatment if he was returned to his home country. The Basmanniy District Court of Moscow, which on 1 April 2013 upheld the FMS’s decision refusing the applicant’s application for refugee status, stated that the human rights situation in Uzbekistan was “ambiguous”. Yet, despite noting that a decision concerning refugee status should be taken not on the basis of the general situation in the country but in view of the applicant’s specific circumstances, it remained silent on the specific arguments raised by the applicant in the present case, such as the nature of the charges brought against him in Uzbekistan (see paragraph 58 above). The Court notes that it has no information on the outcome of the final round of appeal proceedings on refugee status. 127.", "As to the proceedings on administrative removal, the Court notes that the domestic courts’ analysis of the risk of ill-treatment the applicant might be subjected to if returned to Uzbekistan was remarkably scant. In its decisions of 19 September and 10 October 2012, the Meshchanskiy District Court of Moscow and the Moscow City Court, respectively, dismissed the applicant’s allegations briefly and without any detailed analysis of his specific arguments (see paragraphs 39, 40 and 48 above). The Moscow City Court, in particular, relied on the fact that the applicant had applied for asylum only after being arrested. In this connection, the Court observes that the main thrust of the applicant’s grievance was that he risked persecution by the Uzbek authorities in connection with charges of serious criminal offences punishable by long prison terms, of which he had become aware only upon his arrest, and consequently ill‑treatment in custody. 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, 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 apply for refugee status in due time do not, as such, refute his allegations under Article 3 of the Convention. 128. Having regard to the foregoing, the Court is not persuaded that the applicant’s grievance was thoroughly examined by the domestic authorities and it must, accordingly, assess whether there exists a real risk that the applicant would be subjected in Uzbekistan to treatment proscribed by Article 3 if he were to be removed. (ii) The Court’s assessment of the risk 129.", "The Court notes firstly that the Government in their observations pointed out that the decision on the applicant’s administrative removal 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, the Court must accept the applicant’s argument that no other possibility was discussed in the course of the administrative proceedings, and it notes, furthermore, that the Government provided no information regarding any other country willing to accept him. Accordingly, the Court cannot but conclude that the decision on the applicant’s administrative removal presupposed his expulsion to Uzbekistan. 130. 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, among many others, Ismoilov and Others v. Russia, no. 2947/06, § 121, 24 April 2008; Muminov v. Russia, no. 42502/06, §§ 93-96, 11 December 2008; Garayev v. Azerbaijan, no. 53688/08, § 71, 10 June 2010; Yakubov v. Russia, no. 7265/10, §§ 81 and 82, 8 November 2011; Rustamov v. Russia, no.", "11209/10, § 125, 3 July 2012; and Abdulkhakov v. Russia, no. 14743/11, § 141, 2 October 2012, as well as, more recently, Zokhidov v. Russia, no. 67286/10, § 135, 5 February 2013, and Ermakov v. Russia, no. 43165/10, § 201, 7 November 2013). 131.", "As regards the applicant’s personal situation, the Court notes that he was wanted by the Uzbek authorities on charges of incitement to national, racial, ethnic or religious hatred and producing and disseminating documents containing threats to national security and public order. In particular, the charges related to his alleged aiding of a Muslim extremist group. The above constituted the basis for the extradition request and the arrest warrant issued in respect of the applicant. Thus, his situation is similar to that of 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 Ermakov, cited above, § 203). 132.", "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 which are manifestly contrary to the principles of the Convention (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 128, ECHR 2012). Furthermore, the domestic authorities, as well as the Government before the Court, used summary and non-specific reasoning in an attempt to dispel the alleged risk of ill-treatment on account of the above considerations, including the evident pre-existing adverse interest the Uzbek authorities had in the applicant. 133. As to the assurances given by the Uzbek authorities and relied on by the Government, apart from being couched in general terms and uncorroborated by any evidence of being supported by any enforcement or monitoring mechanism (see, among many others, Abdulkhakov, cited above, § 150; see also, by contrast, Othman (Abu Qatada) v. the United Kingdom, no.", "8139/09, §§ 188-89, ECHR 2012 (extracts)), the Court finds that they were given for the purposes of extradition proceedings that were ultimately discontinued and as such are of no direct relevance to expulsion proceedings. 134. 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. 135. The Court therefore concludes that the implementation of the order on the applicant’s administrative removal 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 3 136. 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.” 137. 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 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 in paragraph 127 above, the Court considers that there is no need to examine this complaint separately on its merits (see, for a similar approach, Gaforov, cited above, § 144, and Azimov v. Russia, no. 67474/11, § 145, 18 April 2013). III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION IN RELATION TO THE APPLICANT’S DETENTION WITH A VIEW TO EXTRADITION 138.", "The applicant complained under Article 5 § 1 (f) of the Convention that his detention during the extradition proceedings had been unlawful. 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. The parties’ submissions 1.", "The Government 139. The Government submitted that the applicant had been arrested on the basis of the decision of the Bukhara Criminal Court of 15 June 2011 ordering his placement in detention, and the decision of the prosecutor of the Meshchanskiy District of Moscow of 19 March 2012. The extradition request had been received within thirty-eight days, that is, in compliance with the forty days’ time-limit provided for in Article 62 § 1 of the Minsk Convention. They pointed out that Russia had accepted the Protocol of 28 March 1997 to the Minsk Convention without any reservations. On 25 April 2012, after receipt of the extradition request, the prosecutor of the Meshchanskiy District of Moscow had extended the applicant’s detention for a total period of two months.", "By a decision of 15 May 2012 that court had extended his detention to a total period of six months, that is, until 17 September 2012, when the applicant was released. The decisions on the applicant’s detention had been taken in full compliance with the applicable laws. The applicant’s counsel’s appeals against the detention orders had been examined and dismissed by the courts. 2. The applicant 140.", "The applicant argued that his detention on the basis of the detention order of 19 March 2012 had been unlawful because that decision had been issued by a prosecutor and had not set any time-limit for his detention. He further maintained that his detention between 17 and 25 April 2012 had been unlawful because Uzbekistan had not ratified the Protocol of 28 March 1997 to the Minsk Convention, which modified Article 62 of that Convention and extended to forty days the period during which a person could be detained pending receipt of an extradition request. Therefore, it had been permissible to detain him without a court order only for up to thirty days, and thus his detention between 17 and 25 April 2012 had had no legal basis. The applicant also argued that his detention on the basis of the detention order of 25 April 2012 had been unlawful because that order had been based solely on Article 466 § 2 of the Code of Criminal Procedure, which neither provided a clear procedure for the extension of detention, nor set time-limits. The order of 25 April 2012 had also not specified a time-limit for the applicant’s detention.", "Furthermore, it was questionable whether the prosecutor of the Meshchanskiy District of Moscow had competence to order the applicant’s detention, as the decision did not specify which legal instrument vested him with such competence. Finally, the applicant averred that the entire term of his detention pending extradition had been in breach of the “due diligence” requirement set forth by the Court in relation to detention under Article 5 § 1 (f). In particular, Uzbekistan’s request for extradition had been refused on 17 September 2012, when the applicant had already spent six months in detention. However, given the grounds for the refusal – the absence of corpus delicti as regards one count of charges and that the other count did not constitute a criminal offence under Russian law – it must have been clear to the authorities from the outset that the extradition request should be refused. Yet, they had kept the applicant in custody for the maximum six-month term allowed under the domestic law.", "B. The Court’s assessment 1. Admissibility 141. 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 142. The Court observes that Article 5 § 1 (f) does not require that the detention of a person against whom action is being taken with a view to extradition be reasonably considered necessary, for example, to prevent his committing an offence or absconding. In this 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). 143. 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). 144. 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 145. Turning to the circumstances of the present case, the Court notes that between 17 March and 17 September 2012 the applicant was detained with a view to his extradition from Russia to Uzbekistan. Following his initial arrest on 17 March 2012, the applicant’s placement in custody was authorised by two decisions by the prosecutor of the Meshchanskiy District of Moscow of 19 March and 25 April 2012. On 15 May 2012 the Meshchanskiy District Court extended the term of his detention up to 17 September 2012.", "(i) Detention between 17 and 19 March 2012 146. The Court observes that the applicant did not contest that his detention between 17 and 19 March 2012 had complied with the requirements of Articles 91, 92 and 94 of the Code of Criminal Procedure. 147. Therefore, there has been no violation of Article 5 § 1 (f) of the Convention in respect of this period. (ii) Detention between 19 March and 15 May 2012 148.", "As regards the period between 19 March and 15 May 2012, the Government argued that the applicant’s detention had been authorised in accordance with the applicable domestic laws. The Court notes that it has recently dealt with a similar issue in the case of Zokhidov, cited above. It found in that case that before the receipt of the extradition request the applicant’s detention appeared to be based on Article 61 of the Minsk Convention, which did no more than refer back to domestic law and did not establish by itself any procedural rules for the detention of a person prior to the receipt of an extradition request. Therefore, it could only serve as a legal basis for detention in conjunction with corresponding domestic provisions establishing the grounds and the procedure for ordering detention, as well as the applicable time-limits (see Zokhidov, cited above, § 154). However, like in Zokhidov, in the case at hand neither the prosecutor in his decision nor the Government in their observations referred to any provision in domestic law authorising the former authority to place the applicant in custody pending receipt of an extradition request.", "Accordingly, from 19 March to 24 April 2012, when the extradition request was received, the applicant was in a legal vacuum that was not covered by any domestic legal provision clearly establishing the grounds for his detention or the procedure and time‑limits applicable to that detention pending receipt of the extradition request. 149. After the receipt of the extradition request on 24 April 2012, the applicant’s detention was governed by Article 466 § 2 of the Code of Criminal Procedure, and on 25 April 2012 the prosecutor of the Meshchanskiy District of Moscow again authorised his continued detention. However, as the Court has found in Zokhidov, cited above, § 154, Article 466 § 2 is 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.", "Furthermore, 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 in fact governed such a procedure or what time-limits were to be applied in situations covered by Article 466 § 2 (see paragraph 84 above). 150. Accordingly, the Court cannot but uphold its findings in Zokhidov, cited above, § 155, as to the absence of any precise domestic provisions establishing 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 receipt of an extradition request. 151. The Court is mindful of ruling no.", "11 of the Plenary Session of the Russian Supreme Court of 14 June 2012, in which it gave an authoritative interpretation of the Russian legal provisions applicable to detention pending extradition (see paragraph 87 above). The Court notes, however, that that ruling was adopted after the period of the applicant’s detention in question had expired. It cannot therefore affect the conclusion that at the time of the applicant’s detention the Russian legal provisions governing detention pending 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. However, it is clear from the ruling that the applicant’s detention should have been ordered and extended by a Russian court rather than by a prosecutor (see Zokhidov, cited above, § 161). 152.", "In view of the foregoing, the Court concludes that from 19 March to 15 May 2012 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 protection from arbitrariness, which are common threads throughout the Convention and the rule of law (see Zokhidov, cited above, § 162). 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 to have been “lawful” for the purposes of Article 5 § 1 of the Convention. 153.", "There has therefore been a violation of Article 5 § 1 (f) of the Convention in respect of the period between 19 March and 15 May 2012. (iii) Detention between 15 May and 17 September 2012 154. As to the subsequent period of the applicant’s detention, the Court notes that on 15 May 2012 the Meshchanskiy District Court extended it until 17 September 2012. In its decision the court stated, inter alia, that the applicant’s extradition was sought on charges concerning offences punishable under both Russian and Uzbek law, he was an Uzbek national with no permanent place of residence in Russia, and no extradition check had been completed in respect of him. 155.", "The applicant argued that the reasons to which the Meshchanskiy District Court had referred when extending his detention with a view to extradition had not complied with the requirements of Article 5 § 1 (f) as interpreted by the Court. 156. With a reference to paragraph 142 above, the Court considers that deprivation of liberty under Article 5 § 1 (f) will be acceptable only for as long as extradition proceedings are in progress, and if such proceedings are not conducted with due diligence, the detention will cease to be permissible under Article 5 § 1 (f). In other words, the length of detention for this purpose should not exceed what is reasonably required (see Saadi v. the United Kingdom [GC], no. 13229/03, § 74, ECHR 2008).", "157. The Court reiterates that the overall period of the applicant’s detention pending extradition lasted six months, whereas the period complained of lasted four months. For the reasons set out below, the Court does not consider this period to have been excessive. 158. The Court notes that the Uzbek authorities placed the applicant on a wanted list on 14 June 2011.", "On 19 March 2012 the Uzbek Ministry of the Interior asked the Russian Ministry of the Interior to extradite him. Between March 2012 and September 2012 the applicant was interviewed and the Russian Prosecutor General’s Office received the extradition request and diplomatic assurances from its Uzbek counterpart; the Federal Migration Service confirmed that the first applicant neither had Russian citizenship nor had been registered in the Moscow Region since his temporary stay between 20 June 2008 and 13 April 2009, nor had he applied for asylum. After the applicant applied for refugee status on 20 April 2012, the Federal Migration Service examined the request and refused it on 28 August 2012. 159. Having regard to the above, the Court concludes that throughout the period in question the extradition proceedings were in progress and complied with domestic law (see Shakurov v. Russia, no.", "55822/10, § 170, 5 June 2012, and Sidikovy v. Russia, no. 73455/11, § 165, 20 June 2013). 160. In view of the foregoing, the Court is satisfied that the requirement of diligence was complied with in the present case. 161.", "There has therefore been no violation of Article 5 § 1 (f) of the Convention in respect of the period between 15 May and 17 September 2012. IV. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION IN RELATION TO THE APPLICANT’S DETENTION WITH A VIEW TO EXTRADITION 162. The applicant complained under Article 5 § 2 of the Convention that he had not been promptly informed of the reasons for his placement in detention on 19 March 2012. In particular, the prosecutor’s decision of 19 March 2012 had been served on him only on 27 April 2012 and he had not been informed of his right of appeal against that decision or of the appeal procedure.", "Article 5 § 2 of the Convention reads as follows: “Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.” Admissibility 163. 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 (see Čonka, cited above, § 50, ECHR 2002‑I). This provision is a minimum safeguard against arbitrary treatment and an integral part of the scheme of protection afforded by Article 5: pursuant to Article 5 § 2 any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with Article 5 § 4 of the Convention. Whilst this information must be conveyed “promptly”, it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 40, Series A no.", "182). 164. Turning to the facts of the present case, the Court notes that the applicant was arrested on 17 March 2012. The record of arrest drawn up on the same date and signed by the applicant specified that he had been arrested as a person wanted by the Uzbek authorities on suspicion of having committed offences under Articles 156 § 3 (d) and 244 § 3 (a) of the Uzbek Criminal Code. Accordingly, at the time of his arrest the applicant was duly notified of the reasons for his arrest and of the charges against him.", "165. In the Court’s view, the fact that a copy of the decision of 19 March 2012 whereby the prosecutor of the Meshchanskiy District of Moscow authorised the applicant’s further detention had been served on him belatedly does not affect the above finding. Furthermore, although a copy of the decision of 19 March 2012 was received by the applicant only on 27 April 2012, he appears to have been aware before that date both of the prosecutor’s decision and of his right to appeal, as the applicant’s representative lodged an appeal against that decision on 12 April 2012. 166. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.", "V. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION IN RELATION TO THE APPLICANT’S DETENTION WITH A VIEW TO EXTRADITION 167. The applicant complained under Article 5 § 4 of the Convention that the review of his detention pending extradition had not been effective in that none of the arguments raised by his counsel in the appeal against the detention order of 19 March 2012 had been examined by the Preobrazhenskiy District Court of Moscow in its decision of 3 May 2012 and that, therefore, the proceedings that had ended with the Moscow City Court’s decision of 23 July 2012 had been in breach of the principle of equality of arms and had not been adversarial. Article 5 § 4 of the Convention 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.” Admissibility 168. The Court notes that in her appeal against the detention order of 19 March 2012, the applicant’s counsel argued, in particular, that the detention order was unlawful in that it had been delivered by a prosecutor and not by a court, and that Article 466 § 2 of the Code of Criminal Procedure was inapplicable. In the decision of 3 May 2012 the Preobrazhenskiy District Court of Moscow dismissed the appeal, finding that the applicant had been arrested in accordance with Articles 91 and 92 of the Code of Criminal Procedure and that on 19 March 2012 he had been detained pending receipt of the extradition request on the basis of Article 466 § 2 of the Code of Criminal Procedure.", "As the applicant’s counsel further appealed against the decision of 3 May 2012, on 23 July 2012 the Moscow City Court upheld that decision, finding also that the Preobrazhenskiy District Court of Moscow had duly addressed the arguments raised by the applicant’s counsel on appeal. 169. The Court cannot but concur with the finding of the Moscow City Court that the Preobrazhenskiy District Court of Moscow addressed the applicant’s counsel’s arguments concerning the alleged unlawfulness of the detention order of 19 March 2012 in its decision of 3 May 2012. The fact that the applicant disagrees with that court’s findings does not alter the fact that it did examine his counsel’s arguments. 170.", "Having regard to the foregoing, the Court finds that the applicant’s counsel’s arguments were duly examined by the courts. No other argument or evidence has been brought before it to show that the proceedings that ended with the Moscow City Court’s decision of 23 July 2012 violated the principle of equality of arms. 171. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. VI.", "ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION IN RELATION TO THE APPLICANT’S DETENTION PENDING ADMINISTRATIVE REMOVAL 172. The applicant complained under Article 5 § 1 (f) of the Convention that his arrest on 17 September 2012 and subsequent detention pending administrative removal had been unlawful. A. The parties’ submissions 1. The Government 173.", "The Government submitted, with a reference to Alim v. Russia, no. 39417/07, § 54, 27 September 2011, that administrative removal constituted “expulsion” within the meaning of Article 5 § 1 (f) of the Convention. They further pointed out that under Article 3.10 § 5 of the Code of Administrative Procedure a judge could place a person subject to administrative removal in custody in a special detention centre, where the person was detained pursuant to section 34 § 5 of the Foreigners Act until the execution of the decision on administrative removal. The Government also noted that according to the Constitutional Court’s decision no. 6-R of 17 February 1998, a person subject to administrative-removal proceedings could be detained without a court order for up to forty-eight hours.", "As on 17 September 2012 the applicant had been arrested on the ground of having committed an administrative offence punishable by administrative removal, and on 19 September 2012 the Meshchanskiy District of Moscow had found him guilty of that offence and ordered his administrative removal and detention in a special facility pending the execution of the decision, the applicant’s detention had fully complied with the domestic law. Moreover, when the Court had applied Rule 39, instructing the Russian Federation to suspend the applicant’s expulsion to Uzbekistan, the competent authorities had taken measures to comply with the Court’s request. 2. The applicant 174. The applicant admitted that he had failed to regularise his stay in Russia before his arrest in March 2012 and had therefore violated the migration laws.", "He also conceded that the authorities had become aware of that fact upon his arrest on 17 March 2012. He argued, however, that as the authorities had taken no measures in this regard while he was in custody pending extradition, they had then abused their powers by ordering his detention within the framework of administrative proceedings solely with a view to ensuring his return to Uzbekistan notwithstanding the refusal of the extradition request. The applicant considered that his detention pending administrative removal had in any event been unlawful, as the Code of Administrative Offences set no time-limits for such detention. Even though the execution of the decision on his administrative removal had been suspended on account of the application of Rule 39 by the Court, in the applicant’s view this did not remedy the absence of clear provisions in domestic law governing such detention. With reference to Azimov, cited above, §§ 172-73, the applicant argued that detention pending expulsion must not exceed the maximum term for detention as an administrative penalty, as otherwise it constituted a punitive rather than preventive measure.", "B. The Court’s assessment 1. Admissibility 175. 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 176. The applicant was detained on 17 September 2012 with a view to his administrative removal (expulsion) from Russia. On 19 September 2012 the Meshchanskiy District Court of Moscow found the applicant guilty of a breach of the residence rules, ordered his administrative removal from the Russian Federation and placed him in custody pending the removal.", "Following that decision, the applicant was placed in a centre for the detention of foreigners in Moscow, where he remains in detention. The administrative removal amounted to a form of “deportation” in terms of Article 5 § 1 (f) of the Convention. Article 5 § 1 (f) of the Convention is thus applicable in the instant case. 177. The Court reiterates that deprivation of liberty under Article 5 § 1 (f) of the Convention must be “lawful”.", "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 thereof. 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 (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009, with further references). It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1, and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that deprivation of liberty may be lawful in terms of domestic law but still be 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 Rustamov, cited above, § 150, with further references).", "178. It is common ground between the parties that the applicant had resided illegally in Russia for a year and a half before his arrest and, therefore, had committed an administrative offence punishable by expulsion. The Court reiterates that a period of detention will in principle be lawful if carried out under a court order (see Alim, cited above, § 55, 27 September 2011). The Court is satisfied that on 17 September 2012 the applicant was detained in accordance with Article 27.5 § 2 of the Code of Administrative Offences and that on 19 September 2012 his detention pending expulsion was ordered by a court having jurisdiction in the matter and in connection with an offence punishable with expulsion. Furthermore, the Court notes that the Russian court referred to the applicant’s lack of a stable income and place of residence in Russia, and to the length of his stay in Russia without a permit, while being aware that a permit was required, as the grounds justifying his detention (see paragraph 39 above).", "The Court thus concludes that the authorities acted in compliance with the letter of the national law. 179. The applicant, however, argued that his detention within the framework of the administrative proceedings had been imposed with a view to ensuring his return to Uzbekistan notwithstanding the refusal of the extradition request and that, therefore, his expulsion would amount to extradition in disguise. 180. The Court reiterates that detention may be unlawful if its purported purpose differs from the real one (see Bozano v. France, 18 December 1986, Series A no.", "111, § 60; Čonka, cited above, § 42, ECHR 2002‑I; and Khodorkovskiy v. Russia, no. 5829/04, § 142, 31 May 2011). 181. The Court observes that in Azimov, cited above, § 165, 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. However, the present case differs from Azimov in several respects.", "182. Firstly, and most importantly, in Azimov his detention pending expulsion was ordered while the extradition proceedings were still pending, but the maximum time-limit for detention pending extradition had expired. However, in the case at hand the authorities detained the applicant within the framework of proceedings on administrative removal after Uzbekistan’s extradition request had been refused. Therefore, the order could not possibly have served to circumvent the maximum time-limits set down in the domestic law for detention pending extradition. 183.", "Secondly, in Azimov the Court emphasised two specific elements that cast doubt on the good faith of the authorities when ordering the applicant’s detention pending expulsion: (i) it was the same court that had examined the applicant’s extradition case which recommended that the law-enforcement authorities re-detain the applicant on this new ground; and (ii) the applicant’s extradition was “under the control of the President of the Russian Federation”, which was found to imply that handing him over to the requesting authorities – Tajikistani in that case – must have been regarded as a top priority. However, neither of those elements is present in the case at hand. 184. Therefore, in the circumstances of the present case the Court cannot find it established beyond reasonable doubt that the authorities were driven by improper reasons in pursuing the administrative case against the applicant and detaining him with a view to expulsion. It is conceivable that the authorities did not initially institute expulsion proceedings because they believed that the extradition proceedings would lead to the same result, namely the removal of the applicant from the territory of Russia.", "Therefore, the simultaneous institution of expulsion proceedings would have led to duplicated results and entailed a waste of administrative and judicial resources. The Court thus concedes that the applicant’s detention pending expulsion pursued one of the legitimate aims indicated in Article 5 § 1 (f), namely to secure his “deportation”. 185. The Court further observes that even where the purpose of detention is legitimate, its length should not exceed that reasonably required for the purpose pursued (see Shakurov, cited above, § 162). 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.", "The lawfulness of the applicant’s detention pending extradition was examined by the Court in paragraphs 145-153 above. As regards the applicant’s detention pending expulsion, the Court will examine two periods separately. (a) The applicant’s detention between 17 and 19 September 2012 186. The Court notes that on 17 September 2012 the applicant was arrested under Article 18.8 of the Code of Administrative Offences on suspicion of a breach of the rules on residence. On 19 September 2012 the Meshchanskiy District Court of Moscow found him guilty of an administrative offence and ordered his administrative removal and placement in custody pending removal.", "It follows that the applicant’s detention between 17 and 19 September 2012 was in accordance with a procedure prescribed by law and complied with the forty-eight hour time-limit provided for in Article 27.5 § 2 of the Code of Administrative Offences. 187. Therefore, there has been no violation of Article 5 § 1 (f) of the Convention in respect of this period. (b) The applicant’s detention after 19 September 2012 188. The Meshchanskiy District Court of Moscow ordered the applicant’s placement in custody pending administrative removal on 19 September 2012; on 4 October 2012, following a request by the applicant, the Court indicated to the Government, under Rule 39 of the Rules of Court, that the applicant should not be expelled to Uzbekistan while the proceedings before the Court were pending.", "In the meantime the applicant appealed against the order of 19 September 2012, and that appeal was upheld by the Moscow City Court on 10 October 2012. Therefore, the applicant’s detention during that period was mainly attributable to the temporary suspension of the enforcement of the expulsion order on account of the indication made by the Court under Rule 39. 189. The Court reiterates in this regard that the Contracting States are obliged under Article 34 of the Convention to comply with interim measures indicated under Rule 39 of the Rules of Court (see Mamatkulov and Askarov, cited above, §§ 99-129, ECHR 2005‑I). However, the implementation of an interim measure indicated by the Court does not in itself have any bearing on whether the deprivation of liberty to which that individual may be subjected complies with Article 5 § 1 (see Gebremedhin [Gaberamadhien] v. France, no.", "25389/05, § 74, ECHR 2007‑II). Detention still needs to be lawful and not arbitrary. 190. In a number of cases where the respondent State refrained from deporting applicants in compliance with a request made by the Court under Rule 39, the Court has been prepared to accept that expulsion proceedings were temporarily suspended but were nevertheless “in progress”, and that therefore no violation of Article 5 § 1 (f) had occurred (see Al Hanchi v. Bosnia and Herzegovina, no. 48205/09, §§ 49-51, 15 November 2011; Al Husin v. Bosnia and Herzegovina, no.", "3727/08, §§ 67-69, 7 February 2012; and Umirov v. Russia, no. 17455/11, §§ 138-42, 18 September 2012). 191. That being said, suspension of domestic proceedings on account of the indication of an interim measure by the Court should not result in a situation where the applicant languishes in prison for an unreasonably long period. The Court observes in the present case that no specific time-limits for the applicant’s detention pending expulsion were set by the courts (see paragraphs 39 and 48 above).", "According to Article 31.9 § 1 of the Code of Administrative Offences, an expulsion decision must be enforced within two years (see paragraph 96 above). Thus, after the expiry of such period an applicant 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 the 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 Azimov, cited above, § 171). 192.", "The Court also notes in this regard 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 98 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 100 above). In the present case the “preventive” measure was much heavier than the “punitive” one, which is not normal (see Azimov, cited above, § 172). The Court also notes that at no time during the applicant’s detention while the interim measure applied by the Court was in force, did the authorities re-examine the question of the lawfulness of the applicant’s continuous detention (see paragraphs 199-204 below). 193. Finally, although the authorities knew that the examination of the case before the Court can take some time, they did not try to find “alternative solutions” which would secure the enforcement of the expulsion order in the event of the lifting of the interim measure under Rule 39 (see Keshmiri v. Turkey (no.", "2), no. 22426/10, § 34, 17 January 2012, and Azimov, cited above, § 173). 194. In view of the above considerations, the Court concludes that there has been a violation of Article 5 § 1 (f) of the Convention. VII.", "ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION IN RELATION TO THE APPLICANT’S DETENTION PENDING ADMINISTRATIVE REMOVAL 195. The applicant complained under Article 5 § 4 that the domestic law did not provide for periodic review of the lawfulness of detention following the decision on administrative removal nor for a possibility for an individual to initiate such review. A. The parties’ submissions 1. The Government 196.", "The Government pointed out that the applicant had availed himself of the right to appeal against the administrative-offence decision of 19 September 2012. They further stated that foreign nationals were normally held in the special facility pending their administrative removal for a very short period of time as decisions on administrative removal were executed within very promptly. 2. The applicant 197. The applicant submitted that his complaint concerned not so much the initial decision on his detention pending administrative removal, as the fact that it was impossible to obtain a review of that decision after a certain lapse of time.", "His counsel’s attempt to obtain such a review by means of lodging an application for clarification under Article 31.8 of the Code of Administrative Offences had been unsuccessful, and the courts had never actually examined it but had rejected it by a simple letter sent after a four-month delay. Therefore, the applicant had been unable to take proceedings so as to obtain a review of the lawfulness of his ongoing detention, in breach of Article 5 § 4 of the Convention. B. The Court’s assessment 1. Admissibility 198.", "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 199.", "The Court reiterates that the purpose of Article 5 § 4 is to ensure to individuals who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected (see, mutatis mutandis, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12). A remedy must be made available during a person’s detention enabling that person to obtain a speedy judicial review of the legality of the detention, capable of leading, where appropriate, to his or her 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 Ismoilov and Others, cited above, § 145, with further references). 200.", "The Court found in Azimov, cited above, § 151, that an appeal against an initial detention order issued in expulsion proceedings does not provide a judicial review of detention pending expulsion. Similarly to Azimov, the applicant in the present case complained under Article 5 § 4 not about the initial decision on his placement in custody, but about his inability to obtain a judicial review of his detention after a certain lapse of time. As the Court further noted in Azimov (ibid), 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 after the delivery of the appeal decision of 10 October 2012 the applicant has so far spent in custody about seventeen months, new issues affecting the lawfulness of the detention might have arisen during that period. Under such circumstances the Court considers that the requirement under Article 5 § 4 was neither incorporated in the initial detention order of 19 September 2012 nor fulfilled by the appeal court.", "201. The Court reiterates that by virtue of Article 5 § 4 the applicant was entitled to apply to a “court” having jurisdiction to decide “speedily” whether or not his deprivation of liberty had become “unlawful” in the light of new factors which had emerged subsequently to the decision on his initial placement in custody (see, for example, Khodzhayev v. Russia, no. 52466/08, §§ 125-31, 12 May 2010). 202. It observes that the applicant did not attempt to bring any proceedings for judicial review of his detention pending expulsion.", "However, the Government did not refer to any provision in domestic law which would have allowed the applicant to do so. The Court further notes that no automatic periodic extension of the applicant’s detention or any judicial review thereof took place in the relevant period. 203. It follows that at no time during the applicant’s detention pending expulsion did he have at his disposal any procedure for a judicial review of its lawfulness (see Azimov, cited above, §§ 153-54). 204.", "There has therefore been a violation of Article 5 § 4 on account of the applicant’s inability to obtain a judicial review of his detention after 19 September 2012. VIII. RULE 39 OF THE RULES OF COURT 205. 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. 206.", "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 continue in force until the present judgment becomes final or until further order. IX. APPLICATION OF ARTICLE 41 OF THE CONVENTION 207. 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 208. The applicant claimed 25,000 euros (EUR) in respect of non-pecuniary damage on account of distress and frustration caused by his detention pending extradition and 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. 209. The Government pointed out, in so far as the applicant’s claim concerns the risk of ill-treatment upon return to Uzbekistan, that 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, the claim should be dismissed.", "210. 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. 211.", "The Court further observes that it has dismissed certain grievances but found a violation of Article 5 § 1 and a violation of Article 5 § 4 of the Convention in the present case. The Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. 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 212.", "The applicant also claimed EUR 9,900 for the costs and expenses incurred before the domestic courts and the Court. This included Ms Ryabinina’s work on the preparation of information on the human rights situation in Uzbekistan and the Rule 39 application, which consisted of five hours of work at an hourly rate of 100 euros, amounting to EUR 500. The amount claimed for costs and expenses also includes Ms Yermolayeva’s work in representing the applicant in the domestic proceedings and before the Court. According to the table submitted by the applicant, Ms Yermolayeva’s work consisted of ninety-four hours of work at an hourly rate of EUR 100, amounting to EUR 9,400. 213.", "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. Furthermore, as the applicants’ representatives specialise in cases involving extradition and expulsion to the CIS States, the Government expressed doubts as to whether the present case required research and preparation to the extent claimed by the applicant. 214. 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, as well as to the fact that no violation was found in respect of part of the application, the Court considers it reasonable to award the sum of EUR 8,000, 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 215. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaints under Articles 3, 5 § 1 (f) and 5 § 4, in respect of the applicant’s detention pending administrative removal, and Article 13 in conjunction with Article 3 admissible and the remainder of the application inadmissible; 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 no violation of Article 5 § 1 (f) of the Convention in respect of the applicant’s detention pending extradition between 17 and 19 March 2012; 5. Holds that there has been a violation of Article 5 § 1 (f) of the Convention in respect of the applicant’s detention pending extradition between 19 March and 15 May 2012; 6. Holds that there has been no violation of Article 5 § 1 (f) of the Convention in respect of the applicant’s detention pending extradition between 15 May and 17 September 2012; 7. Holds that there has been no violation of Article 5 § 1 (f) of the Convention in respect of the applicant’s detention pending expulsion between 17 and 19 September 2012; 8.", "Holds that there has been a violation of Article 5 § 1 (f) of the Convention in respect of the applicant’s detention pending expulsion after 19 September 2012; 9. Holds that there has been a violation of Article 5 § 4 of the Convention on account of the unavailability of any procedure for a judicial review of the lawfulness of the applicant’s detention pending expulsion; 10. Decides to maintain the indication to the Government under Rule 39 of the Rules of Court that the applicant should not be removed to Uzbekistan or any other country until such time as the present judgment becomes final, or until further order; 11. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles 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[1] damage; (ii) EUR 8,000 (eight 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; 12. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 28 May 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident [1] Rectified on 28 May 2014: the text was “pecuniary”" ]
[ "SECOND SECTION CASE OF KARATAŞ AND YILDIZ AND OTHERS v. TURKEY (Applications nos. 4889/05, 4897/05, 24009/05, 33694/05, 37759/05, 42996/06, 43031/06, 43019/06, 43038/06 and 43054/06) JUDGMENT STRASBOURG 16 July 2009 FINAL 16/10/2009 This judgment may be subject to editorial revision. In the case of Karataş and Yıldız and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Vladimiro Zagrebelsky,Danutė Jočienė,Dragoljub Popović,Nona Tsotsoria,Işıl Karakaş, judges,and Sally Dollé, Section Registrar, Having deliberated in private on 23 June 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in ten applications (nos. 4889/05, 4897/05, 24009/05, 33694/05, 37759/05, 42996/06, 43031/06, 43019/06, 43038/06 and 43054/06) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by thirty-one Turkish nationals (“the applicants”, see the annex hereto), on 27 December 2004, 10 June, 5 and 29 September 2005 and 4 October 2006 respectively.", "Certain applicants were party to more than one application. 2. The applicants were represented by Mr S. Kaya, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent. 3.", "On 28 August 2008 the Court declared application no. 4897/05 partly inadmissible and decided to communicate to the Government the complaint concerning the length of the criminal proceedings. On 15 January and 12 June 2008 the President of the Second Section decided to give notice of the remaining applications to the Government. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 3). THE FACTS THE CIRCUMSTANCES OF THE CASE 4.", "All of the applicants are from the Çayçatı village of Muş. Numerous plots of land in the village have been used by the applicants’ parents or grandparents without a title deed since the 1930s. These plots were registered in the name of the Treasury in 1960 pursuant to Law no. 4753. In 1977 they were re-registered in the name of the Treasury pursuant to the Land Registry Act (Law no.", "766). 5. On various dates in 1989, the applicants instituted civil proceedings in the Varto Civil Court of First Instance pursuant to Law no. 3402 and requested the annulment of the titles to the plots. Claiming that the plots in question had been in their families’ possession for many years, the applicants further requested that the land be registered in their name.", "The first-instance courts delivered their initial judgments on various dates between 1989 and 1991 in the presence of the representatives of both parties. The claims made by İsmail Akbulut, one of the applicants in cases nos. 4897/05 and 33694/05 were rejected on 20 December 1990 on the ground that he had already been granted the maximum amount of land in the same area permitted by the relevant law. The applicant did not appeal. 6.", "Further details concerning the present applications, including the dates of the domestic judgments and notifications, may be found in the attached list. THE LAW I. JOINDER OF THE APPLICATIONS 7. 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. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 8.", "The applicants complained that the length of the proceedings had been incompatible with the “reasonable-time” requirement laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 9. The Government firstly pointed out that Turkey has accepted the competence of the Court to examine individual petitions only in respect of facts or events which have occurred since 22 January 1990. On that account, they contended that the Court can consider only the period after 22 January 1990. The Government secondly asked the Court to reject the case of Bingöl and Others v. Turkey (33694/05) for non-compliance with the six-month time-limit. In their view, the judgment had become final on 5 June 2002 at the end of the 30-day period for an appeal by the Treasury.", "10. Concerning the Government’s first objection, the Court reiterates that it has already held in a previous case that its competence ratione temporis began on 28 January 1987, the date on which Turkey’s declaration accepting the right of individual petition came into force (see Cankoçak v. Turkey, nos. 25182/94 and 2956/95, § 26, 20 February 2001). Noting that the proceedings in the present applications were initiated on various dates in 1989, the Court considers that the Government’s jurisdictional objection cannot be upheld. As for the Government’s request to dismiss the application in the case of Bingöl and Others v. Turkey (33694/05), the Court points out that the official note on the judgment of 20 December 1990, which is signed by the registrar and the judge of the Varto Civil Court of First Instance, states that the judgment became final on 28 June 2005.", "Since the application was lodged with the Court on 5 September 2005, the Court considers that it complied with the six-month time-limit laid down in Article 35 § 1 of the Convention. 11. In addition, the Court observes that the domestic court rejected the claims of İsmail Akbulut, who is the applicant in the case of İsmail Akbulut v. Turkey (4897/05) and one of the applicants in Bingöl and Others v. Turkey (33694/05), on 20 December 1990. His representative was present when the judgments were delivered. The applicant did not appeal in either case.", "The official note mentioned above in paragraph 10 does not specifically indicate when the judgment became final. However the Court notes that the Treasury had no legal interest in appealing against these judgments, which interest is one of the requirements in Turkish law for lodging an appeal. Moreover, the Court observes that the applicant – who was represented by a lawyer, whose title claims were rejected as he had already been granted the legally permitted maximum amount of land and who did not appeal in 1991 and 1992 in respect of either of his claims – did not lodge his complaints with the Court until 5 September 2005. 12. Against this background, the Court considers that, as regards Mr Akbulut’s complaints, the object and purpose of Article 35 § 1 of the Convention are best served by taking as the starting point of the relevant six-month period the date of the hearing at which the judgments were declared in the presence of the applicant’s lawyer, i.e.", "20 December 1990 (see, mutatis mutandis, Hatip Çelik v. Turkey (dec.), no. 52991/99, ECHR 2004‑X). It follows that the applications lodged by İsmail Akbulut were brought out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention. 13. Consequently, the Court notes that, with the exception of İsmail Akbulut, the applicants’ 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 14. The Government maintained that the delay had been due to the applicants’ failure to pay the fees for service of the first-instance courts’ judgments delivered in their favour between 1989 and 1990.", "Consequently, the judgments had not been duly served on the Treasury and had not become final. The applicants had furthermore refrained from taking any other action to execute the judgments and had chosen to remain inactive for long periods while waiting for the judgments to become final. Therefore the eleven-to-thirteen-year delays prior to the appeal stage had been caused by the applicants’ conduct and negligence. 15. The Court notes that the period to be taken into consideration began in 1989 and ended on various dates between 2004 and 2006.", "It thus lasted between fourteen and seventeen years for two levels of jurisdiction, producing between two to six judgments. In all the cases the first-instance court judgments were served on the Treasury after a delay of eleven to thirteen years (see annex). 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 applicants and the relevant authorities and what was at stake for the applicants in the dispute. 17.", "The Court firstly observes that it is not clear from the case file whether, and if so when and by which party, the fees for service were paid following the delivery of the judgments of the first-instance courts. Furthermore, it is also unclear whether the Treasury, being a State enterprise and hence exempt, in principle, from all fees and charges, was also exempt from the payment of fees for service in the present cases. The Court points out that in five of the present applications (nos. 42996/06, 43031/06, 43019/06, 43038/06 and 43054/06), although the first-instance court judgments of 20 December 1990 were served on the applicants on 3 August 1992, they were not served on the Treasury until 6 May 2002, some eleven years later. This indicates that at least the applicants’ share of the fees for service in those cases was paid in due time and that, despite that payment, a lengthy delay in service on the Treasury had still taken place.", "18. The Court notes the Government’s arguments that the applicants had not taken any steps to finalise or execute the judgments. However, it reiterates that it is for the Contracting States to organise their judicial system in such a way that their courts are able to guarantee everyone the right to obtain a final decision on disputes concerning civil rights and obligations within a reasonable time (Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 24, ECHR 2000‑IV). In this connection, even assuming that the Treasury was not exempt from the fees, to expect the applicants to take additional steps, such as the payment of the fees for service on behalf of the Treasury, in an attempt to make the judgments final would have imposed an excessive burden on them (see, mutatis mutandis, Ülger v. Turkey, no.", "25321/02, § 40, 26 June 2007). In the light of the above, the Court holds that such a lengthy delay in service of the first-instance courts’ judgments on the parties cannot be said to have been reasonable. 19. Having regard to its case-law on the subject, the Court concludes that in the instant cases the length of the proceedings was excessive and failed to meet the “reasonable-time” requirement (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII).", "There has accordingly been a breach of Article 6 § 1 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 20. Relying on Article 1 of Protocol No. 1, the applicants firstly asserted that the initial registration of the land in the name of the Treasury and the subsequent deprivation of their land had violated their right to property.", "In conjunction with this complaint they invoked Articles 6, 13, 14. They alleged that many people in other regions had acquired title to their land whereas they had had to have recourse to domestic proceedings to recover their title and that there had been no effective remedy against the interference with their property by the authorities. 21. The Government contested these allegations and argued that the applicants did not have victim status. 22.", "The Court notes that this complaint is closely linked to the one examined above and must therefore likewise be declared admissible, except in the case of İsmail Akbulut (see paragraph 12 above). 23. However, having regard to its finding of a violation of Article 6 § 1 (see paragraph 19 above), the Court does not consider it necessary to examine the merits of this complaint separately (Ezel Tosun v. Turkey, no. 3379/02, § 28, 10 January 2006). IV.", "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 applicants claimed various amounts in respect of pecuniary damage calculated on the basis of the size of the land in question and 5,000 euros (EUR) per person, per procedure, in respect of non-pecuniary damage. The Government contested these claims.", "26. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 27. As for the non-pecuniary damage, the Court observes that a common interest was at issue in all nine cases before the Court. They were brought in the same year, mainly at three monthly intervals, by inhabitants of the same village pursuing the same objective, namely claiming title to different parcels of land.", "All thirty-one applicants were represented by the same lawyer, both in the domestic proceedings and before the Court. The length of the proceedings at issue are some sixteen years in six of the applications, fifteen years in another two, and fourteen years in the remaining admissible application. Six of the applicants were simultaneously involved in multiple proceedings claiming title to different plots. Having regard to the foregoing, the Court notes that the extension of the impugned proceedings beyond a “reasonable-time” undoubtedly caused the applicants non-pecuniary damage which would justify an award. It also takes into consideration the number of applicants, the nature of the violation found and the need to determine the amount in such a way that the overall sum is compatible with the relevant case-law and is reasonable in the light of what was at stake in the proceedings in question.", "In the light of the Kakamoukas and Others v. Greece case and the above background, the Court considers that all the applicants must be awarded the same amount (see, mutatis mutandis, Kakamoukas and Others v. Greece [GC], no. 38311/02, § 48, 15 February 2008). Consequently, irrespective of the number of sets of proceedings concerned, it awards each of the thirty applicants whose complaints have been declared admissible[1] the full sum claimed under the head of non-pecuniary damage (EUR 5,000). B. Costs and expenses 28.", "The applicants also claimed EUR 2,000 for each of the nine applications that had been declared admissible in respect of the costs and expenses incurred before the domestic courts and EUR 3,000 per person for those incurred before the Court. 29. The Government contested these claims. 30. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum.", "In the present case, the Court observes that the applicants did not produce any document in support of their claims. Accordingly, the Court makes no award under this head. 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.", "Decides to join the applications; 2. Declares the applications admissible, except for the application in the case of İsmail Akbulut v. Turkey (4897/05) and the complaints of İsmail Akbulut in the case of Bingöl and Others v. Turkey (33694/05), which are declared inadmissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention in each admissible case; 4. Holds (a) that the respondent State is to pay, within three months, EUR 5,000 (five thousand euros) to each of the thirty applicants in respect of non-pecuniary damage, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above 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 16 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléFrançoise TulkensRegistrarPresident Application name and number, and name and year of birth of the applicants Parcel nos. Commencement date and subsequent proceedings Final judgment Notification of final judgment (where needed) Date of application to the Court Overall length 1. Mehmet Emin Karataş and Derviş Yıldız v. Turkey (no. 4889/05) Mehmet Emin Karataş (1930) Derviş Yıldız (1945) 33, 39 Beginning of proceedings: 19.09.1989 First judgment: 20.12.1990 Service on the Treasury: 06.05.2002 Court of Cassation: 13.02.2004 13.02.2004 08.07.2004 27.12.2004 14 years, 4 months and 28 days 2.", "İsmail Akbulut v. Turkey (no. 4897/05) İsmail Akbulut (1933) 5 Beginning of proceedings: 25.09.1989 First judgment: 20.12.1990 Service on the applicant: 03.08.1992 20.12.1990 03.08.1992 27.12.2004 Inadmissible for non-compliance with six-month rule. 3. Bingöl v. Turkey (no. 24009/05) Hilal Bingöl (1919) 17, 18, 26, 37, 41 Beginning of proceedings: 23.01.1989 First judgment: 19.07.1989 Court of Cassation: 20.04.1990 Second judgment: 29.05.1991 Service on the applicant: 04.06.2004 Service on the Treasury: 27.01.2005 Court of Cassation: 27.01.2005 27.01.2005 10.06.2005 16 years and 8 days 4.", "Bingöl and Others v. Turkey (no. 33694/05) Orhan Bingöl (1961) Ferman Şenyürek (1964) Felemez Yıldız (1960) Yasin Savaş (1961) İzzettin Savaş (1952) Halil Savaş (1922) Haydar Daştan (1949) İsmail Akbulut (1933) Fahrettin Bingöl (1964) Hasan Turhan (1968) Mikail Tunç ( 1961) 7 Beginning of proceedings: 29.08.1989 First judgment: 20.12.1990 (claims of İsmail Akbulut rejected) Service on Treasury: 05.06.2002 Second judgment (rejection of the Treasury’s appeal request as out of time): 02.06.2004 Court of Cassation: 07.04.2005 07.04.2005 05.09.2005 15 years, 7 months and 12 days, except for complaints lodged by İsmail Akbulut, which are inadmissible for non-compliance with six- month rule. 5. Bingöl v. Turkey (no. 37759/05) Giyasettin Bingöl (1950) Celalettin Bingöl (1952) 7 Beginning of proceedings: 29.08.1989 First judgment: 20.12.1990 Service on the Treasury: 05.06.2002 Second judgment (rejection of the Treasury’s appeal request as out of time): 02.06.2004 Court of Cassation: 07.04.2005 07.04.2005 29.09.2005 15 years, 7 months and 12 days 6.", "Karataş and Şahin v. Turkey (no. 42996/06) Mehmet Emin Karataş (1930) Abdullah Şahin (1942) 56 Beginning of proceedings: 25.09.1989 First judgment: 20.12.1990 Service on the applicants: 03.08.1992 Service on the Treasury: 06.05.2002 Court of Cassation: 13.10.2003 Second judgment: 31.05.2004 Court of Cassation: 24.02.2005 Third judgment: 15.09.2005 Court of Cassation: 20.04.2006 20.04.2006 04.10.2006 16 years, 3 months and 28 days 7. Ali İhsan Şenyürek v. Turkey (no. 43031/06) Ali İhsan Şenyürek (1940) 37 Beginning of proceedings: 23.01.1989 First judgment: 20.12.1990 Service on the applicant: 03.08.1992 Service on the Treasury: 06.05.2002 Court of Cassation: 13.10.2003 Second judgment: 02.06.2004 Court of Cassation: 12.01.2005 Third judgment: 15.09.2005 Court of Cassation: 20.04.2006 20.04.2006 04.10.2006 17 years, 2 months and 30 days 8. Ali İhsan Şenyürek and Nusrettin Özdemir v. Turkey (no.", "43019/06) Ali İhsan Şenyürek (1940) Nusrettin Özdemir (1934) 47 Beginning of proceedings: 04.10.1989 First judgment: 20.12.1990 Service on the applicants: 03.08.1992 Service on the Treasury: 06.05.2002 Court of Cassation: 13.10.2003 Second judgment: 31.05.2004 Court of Cassation: 24.02.2005 Third judgment: 15.09.2005 Court of Cassation: 13.04.2006 13.04.2006 04.10.2006 16 years, 6 months and 12 days 9. Ali İhsan Şenyürek and Six Others v. Turkey (no. 43038/06) Mustafa Şahin (1935) Ali Turhan (1948) Abdurrahman Çelik (1954) Tevfik Şahin (1948) Şevfik Şahin (1960) Abdullah Turhan (1948) Ali İhsan Şenyürek (1940) 31 Beginning of proceedings: 26.09.1989 First judgment: 20.12.1990 Service on the applicants: 03.08.1992 Service on the Treasury: 06.05.2002 Court of Cassation: 18.10.2003 Second judgment: 31.05.2004 Court of Cassation: 10.03.2005 Third judgment: 20.10.2005 Court of Cassation: 27.04.2006 27.04.2006 04.10.2006 16 years, 7 months and 4 days 10. Ali İhsan Şenyürek and Ten Others v. Turkey (no. 43054/06) Mustafa Oktan (1954) Ali İhsan Şenyürek (1940) Abdulkerim Şahin (1956) Kutbettin Gündüz (1936) Abdullah Şahin (1942) Selahattin Ataç (1964) Cindi Gündüz (1337) Mustafa Şahin (1935) Haydar Ataç (1956) Tevfik Şahin (1948) Şevfik Şahin (1960) 23, 34 Beginning of proceedings: 19.09.1989 First judgment: 20.12.1990 Service on the applicants: 03.08.1992 Service on the Treasury: 03.05.2002 Court of Cassation: 23.02.2004 Second judgment: 02.06.2004 Court of Cassation: 17.03.2005 Third judgment: 15.09.2005 Court of Cassation: 04.05.2006 04.05.2006 04.10.2006 16 years, 7 months and 18 days [1] Thereby excluding İsmail Akbulut." ]
[ "FIFTH SECTION CASE OF STREHAR v. SLOVENIA (Application no. 34787/04) JUDGMENT STRASBOURG 21 July 2011 This judgment is final but it may be subject to editorial revision. In the case of Strehar v. Slovenia, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Ganna Yudkivska, President,Boštjan M. Zupančič,Angelika Nußberger, judges, and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 28 June 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 34787/04) 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 Hilda Strehar (“the applicant”), on 6 September 2004.", "2. The applicant was not represented before the Court. The Slovenian Government (“the Government”) were represented by their Agent, T. Mihelič Žitko, State Attorney. 3. The applicant alleged under Article 6 § 1 of the Convention that the length of the proceedings before the domestic courts to which she was a party was excessive.", "In substance, she also complained that there was no effective domestic remedy in respect of the excessive length of the proceedings (Article 13 of the Convention). 4. On 14 October 2010 the Court decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect to the Government. In accordance with Protocol No. 14, the application was assigned to a committee of three Judges.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1943 and lives in Polskava. 6. On 5 September 1997 the applicant instituted civil proceedings before the Slovenska Bistrica Local Court seeking annulment of a purchase contract.", "7. On 6 July 1999 the first-instance court annulled the contract. An appeal was lodged. 8. On 24 October 2000 the Maribor Higher Court upheld the appeal and remitted the case for re-examination.", "9. Between 12 July 2006 and 15 February 2007 three hearings were held. 10. On 27 February 2007 the applicant withdrew the claim and a decision on termination of proceedings was issued on 21 March 2007. II.", "RELEVANT DOMESTIC LAW 11. A description of relevant domestic law can be found in the Nezirović v. Slovenia decision (no. 16400/06, 25 November 2008, §§ 13‑20). THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 12.", "The applicant complained about the excessive length of the proceedings. She relied on Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 13. 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 14. The Government pleaded non-exhaustion of domestic remedies.", "They stated, in particular, that the applicant should have availed herself of a just satisfaction claim as provided by the section 25 of the 2006 Act. 15. The applicant did not comment on that issue. 16. The Court observes that the transitional provision of the 2006 Act, namely section 25, provides for the procedure to be followed in respect of applications where the violation of the “reasonable time” requirement has already ceased to exist and which were lodged with the Court before 1 January 2007.", "As the proceedings to which the applicant was a party terminated on 21 March 2007, the above provision does not apply to the applicant’s case. The Court further notes that the present application is similar to the case of Maksimovič v. Slovenia (no. 28662/05, 22 June 2010). In that case 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 (ibid., §§ 21–24). 17.", "The Court finds that the Government have not submitted any convincing arguments which would require the Court to distinguish it from the above-mentioned case and therefore rejects this objection. 18. The Court further notes that the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. Article 6 § 1 19. The period to be taken into consideration began on 5 September 1997, the day the applicant instituted proceedings with the Slovenska Bistrica District Court, and ended on 21 March 2007, the day the decision terminating the proceedings was issued. It therefore lasted nine years and six months and two levels of jurisdiction were involved.", "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. 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 (see, for example, Marjan Hriberšek v. Slovenia, no.", "36054/02, §§ 16-18, 27 April 2006). 22. There has accordingly been a breach of Article 6 § 1. 2. Article 13 23.", "The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). In view of its findings concerning the exhaustion of domestic remedies (see paragraphs 14-17 above) and having regard to the fact that the arguments put forward by the Government have already been rejected in the case of Maksimovič v. Slovenia (cited above, §§ 29–30), the Court finds that in the present case there has been a violation of Article 13 on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding his right to have her case heard within a reasonable time, as set forth in Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 24.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 25. The applicant claimed 140,682 euros (EUR) in respect of pecuniary damage. The applicant explained that this amount consisted of the following expenditure: the price of the apartment she had purchased, the construction of a garage, the purchase of a new garage door, the installation of the sound isolation, the price of one part of the building she had purchased, and, lastly, the façade finishing works. The applicant further claimed EUR 10,000 in respect of non-pecuniary damage.", "26. The Government contested both claims. 27. 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 non-pecuniary damage in respect of the excessive length of the proceedings and of the lack of an effective remedy.", "Ruling on an equitable basis, it awards her EUR 8,000 under that head. B. Costs and expenses 28. The applicant did not seek reimbursement of costs and expenses relating to the proceedings before the Convention organs and this is not a matter which the Court has to examine of its own motion (see Motière v. France, no. 39615/98, § 26, 5 December 2000).", "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 that there has been a violation of Article 13 of the Convention; 4. Holds (a) that the respondent State is to pay, within three months, EUR 8,000 (eight 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; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 21 July 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsGanna YudkivskaDeputy RegistrarPresident" ]
[ "FIFTH SECTION CASE OF ORLIK v. UKRAINE (Application no. 27454/11) JUDGMENT STRASBOURG 11 February 2016 This judgment is final but it may be subject to editorial revision. In the case of Orlik v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: André Potocki, President,Ganna Yudkivska,Síofra O’Leary, judges,and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 19 January 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 27454/11) 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, Ms Olga Nikolayevna Orlik (“the applicant”), on 15 April 2011.", "2. The applicant was represented by Mr I.P. Pogasiy, a lawyer practising in Kirovograd. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr B. Babin, of the Ministry of Justice. 3.", "On 1 December 2014 the application was communicated to the Government. THE FACTS 4. The applicant was born in 1960 and lives in Oleksandrivka, Kirovograd Region. 5. On 3 February 2007 the applicant was assaulted.", "According to the subsequent findings of medical experts, she sustained haematomas on her jaw, shoulder and hip, a bruise under her right eye, concussion, and a displaced rib fracture. The applicant alleges that her assailants were Mr and Mrs K., her daughter’s former parents-in-law, whereas the domestic authorities found that it was only Mrs K. who had assaulted the applicant. The incident occurred in front of the applicant’s two-year-old granddaughter. 6. On 4 February 2007 the applicant lodged a complaint with the police.", "7. On 5 February 2007 a forensic medical expert examined the applicant. He found that she had haematomas which he classified as “minor bodily injuries”. 8. On 14 February 2007 the Oleksandrivka District Police Department (“the Oleksandrivka police”) refused to institute criminal proceedings in connection with the incident.", "9. On 22 February 2007 a forensic medical examination of the applicant was carried out. The expert found that in addition to the previously noted haematomas, the applicant had also suffered concussion and a displaced rib fracture. The expert classified the injuries as “bodily harm of medium severity”. 10.", "On 20 March 2007 the Oleksandrivka prosecutor overruled the decision of 14 February 2007 as premature and on 21 March 2007 instituted criminal proceedings in connection with the infliction of bodily harm of medium severity on the applicant. 11. On 20 May 2007 the investigator suspended the investigation for failure to identify the perpetrator. 12. On 29 August and 3 October 2007 the Oleksandrivka prosecutor’s office issued two decisions in which it overruled the investigator’s decision of 20 May 2007 as premature.", "13. On 6 October 2007 the investigator questioned Mr and Mrs K. 14. On 1 December 2007 the investigator again suspended the investigation for failure to identify the perpetrator. 15. On 10 December 2007 the Oleksandrivka prosecutor’s office, in response to the applicant’s complaint about the progress of the investigation, asked the Kirovograd Regional Police Department to have the police officers in charge of the investigation disciplined.", "16. On 21 January 2008 the Kirovograd Regional Police Department instructed the Oleksandrivka police to immediately resume the investigation. 17. On 7 April 2008 the investigator decided to ask a forensic medical expert to determine the degree of gravity of the applicant’s injuries. On 22 September 2008 the expert drew up a report generally confirming the findings of 22 February 2007.", "18. On 15 May 2008 the Kirovograd Regional Police Department informed the applicant that the police officers in charge of the case had been disciplined for omissions in the investigation. 19. On 23 October 2008 the Oleksandrivka Court absolved Mrs K. from criminal liability under an amnesty law, on the grounds that she had an elderly mother who was dependent on her. On 24 February 2009 the Kirovograd Regional Court of Appeal (“the Court of Appeal”) quashed that judgment, finding no evidence that Mrs K.’s mother was dependent on her.", "20. On 1 July 2009 the investigator refused to institute criminal proceedings against Mr K. 21. On 7 July 2009 the Novomyrgorod prosecutor issued a bill of indictment against Mrs K. 22. On 24 July 2009 the Oleksandrivka Court remitted the case against Mrs K. for further investigation, holding that the applicant had not been informed about the completion of the investigation until 3 July 2009 and had therefore not been given enough time to study the case file. It also held that the refusal to institute criminal proceedings against Mr K. had contravened the law.", "23. On 13 November 2009 the Novomyrgorod prosecutor quashed the decision of 1 July 2009 not to institute criminal proceedings against Mr K. Subsequently the investigator again refused to institute criminal proceedings against Mr K. 24. On 21 December 2009 the new round of pre-trial investigation in the case against Mrs K. was completed and another bill of indictment was issued by the Novomyrgorod prosecutor. 25. On 29 March 2010 the Oleksandrivka Court remitted the case against Mrs K. for further investigation, holding in particular that the decision not to institute criminal proceedings against Mr K. had been premature, since his role in the incident had not been sufficiently clarified.", "26. On 13 July 2010 the Novomyrgorod prosecutor quashed the decision not to institute criminal proceedings against Mr K. On 26 May 2011 the investigator again refused to institute criminal proceedings against Mr K. 27. On 20 December 2011 the Znamyanka Court convicted Mrs K. of inflicting bodily harm of medium severity on the applicant, sentencing her to restriction of liberty for two years, suspended for a one-year probationary period. The court found that the decision not to institute criminal proceedings against Mr K. in connection with the same incident had been correct. Mrs K., the prosecutor and the applicant appealed.", "28. On 6 March 2012 the Court of Appeal quashed the judgment and discontinued the criminal proceedings against Mrs K. as time-barred. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 29. The applicant complained that the investigation in her case had been ineffective and the proceedings excessively lengthy.", "She initially invoked Articles 6 and 13 of the Convention. 30. The Court, which is master of the characterisation to be given in law to the facts of the case, finds that the above complaints fall to be examined under the procedural limb of Article 3 of the Convention (see Muta v. Ukraine, no. 37246/06, § 51, 31 July 2012, and İbrahim Demirtaş v. Turkey, no. 25018/10, §§ 19 and 20, 28 October 2014).", "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 31. 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 32. In her reply to the observations of the Government, the applicant submitted that the investigation breached the procedural requirements of Article 3. She submitted that there had been delay in the institution of criminal proceedings: the investigator had initially refused to institute criminal proceedings and then the investigation had been repeatedly suspended. As a result of the delay, Mrs K. had been convicted belatedly.", "According to the applicant, the overruling of various procedural decisions by the superior prosecutor also demonstrated that the investigation had been ineffective. 33. The Government maintained that there had been no violation of Article 3. The domestic authorities had thoroughly examined the applicant’s allegations that she had been injured by Mr K. but had found, based on all the evidence in the file, that she had been attacked and injured by Mrs K. They submitted that the overruling of refusals to institute criminal proceedings and the fact that the case had been remitted for further investigation showed the authorities’ willingness to investigate the incident effectively. The authorities had responded actively to the applicant’s complaints; in particular, several police officers had been disciplined.", "2. The Court’s assessment 34. The Court notes at the outset that the violent treatment to which the applicant was subjected on 3 February 2007 fell within the scope of Article 3 of the Convention (see and compare Aleksandr Nikonenko v. Ukraine, no. 54755/08, §§ 7 and 40, 14 November 2013, and İbrahim Demirtaş v. Turkey, no. 25018/10, § 31, 28 October 2014).", "35. The Court reiterates that Article 3 of the Convention requires that the authorities conduct an effective official investigation of alleged ill‑treatment, even if such treatment has been inflicted by private individuals (see M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003‑XII, and Denis Vasilyev v. Russia, no. 32704/04, § 99, 17 December 2009).", "The minimum standards of effectiveness laid down by the Court’s case-law include the requirements that the investigation must be independent, impartial and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness (see, for example, Muta, cited above, § 61). 36. The procedural requirements of Article 3 go beyond the preliminary investigation stage when the investigation leads to legal action being taken before the national courts: the proceedings as a whole, including the trial stage, must meet the requirements of Article 3. This means that the domestic judicial authorities must on no account be prepared to let the physical or psychological suffering inflicted go unpunished. This is essential for maintaining the public’s confidence in, and support for, the rule of law and for preventing any appearance of the authorities’ tolerance of or collusion in unlawful acts (see, mutatis mutandis, Okkalı v. Turkey, no.", "52067/99, § 65, ECHR 2006 XII (extracts)). 37. Turning to the circumstances of the present case, the Court notes that although the applicant complained of the assault to the police the day after the incident, the investigation into it was instituted with a certain delay, more than a month and half later. 38. The pre-trial investigation was then suspended on 20 May 2007 and 1 December 2007 for failure to identify the perpetrator of the assault.", "Those decisions were subsequently set aside as premature, but they nonetheless delayed the investigation (see and compare Dudnyk v. Ukraine, no. 17985/04, § 36, 10 December 2009, and Koval and Others v. Ukraine, no. 22429/05, § 82, 15 November 2012). 39. The courts twice remitted the case against Mrs K. for further investigation.", "It is particularly notable that on one occasion, on 24 July 2009, the case was remitted for further investigation partly because the applicant’s right to study the case file on completion of the pre-trial investigation had not been respected. Moreover, between 1 July 2009 and 27 May 2011 the investigating authorities refused to institute criminal proceedings against Mr K. on three occasions, and two of those refusals were subsequently overruled. The Court reiterates that the repetition of such remittal orders and decisions not to institute proceedings discloses a serious deficiency (see Kozinets v. Ukraine, no. 75520/01, § 61, 6 December 2007). 40.", "In the light of the foregoing, the Court concludes that in the present case the authorities failed to conduct the investigation into the applicant’s allegations of ill-treatment expeditiously, which led to the expiry of the relevant time-limit and made it impossible to pursue prosecution in respect of one of the alleged perpetrators any further (see and compare Beganović v. Croatia, no. 46423/06, § 85, 25 June 2009; Valiulienė v. Lithuania, no. 33234/07, § 85, 26 March 2013; and Aleksandr Nikonenko, cited above, § 45). 41. The foregoing considerations are sufficient to enable the Court to conclude that the investigation of the applicant’s allegations of ill-treatment did not meet the requirements of Article 3.", "42. There has therefore been a violation of the procedural limb of Article 3 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 43. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 44. The applicant claimed 12,768 euros (EUR) and 1,111.04 Ukrainian hryvnias (UAH) in respect of pecuniary damage and EUR 28,000 in respect of non-pecuniary damage. 45. The Government considered that the claims were excessive and had no causal link with the alleged violations of the Convention. 46.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 47. The Court considers that the applicant must have suffered distress and anxiety on account of the violation it has found. Ruling on an equitable basis, it awards the applicant EUR 1,500 in respect of non-pecuniary damage. B.", "Costs and expenses 48. The applicant claimed UAH 7,100 for legal expenses before the domestic courts and UAH 22,000 for those before the Court. She also claimed UAH 282.88 for postal expenses. 49. The Government considered that this claim was unsubstantiated.", "50. 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 510 to cover costs under all heads. C. Default interest 51. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of the procedural limb of Article 3 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 510 (five hundred and ten 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 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoAndré PotockiDeputy RegistrarPresident" ]
[ "SECOND SECTION CASE OF HACI ZEKİ UZUN v. TURKEY (Application no. 11564/02) 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 Hacı Zeki Uzun v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President, Ireneu Cabral Barreto, Rıza Türmen, Vladimiro Zagrebelsky, Danutė Jočienė, András Sajó, Nona Tsotsoria, judges, and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 4 March 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "11564/02) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Hacı Zeki Uzun (“the applicant”), on 21 March 2000. 2. The applicant was represented by Ms A. Bingöl and Ms G. Kartal, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3.", "On 14 September 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant, a gynaecologist, was born in 1956 and lives in İzmir.", "5. In the course of an investigation into the PKK (the Kurdistan Workers’ Party), an illegal armed organisation, the applicant’s name was mentioned by a few detainees suspected of membership of that organisation and a convicted confessor (itirafcı)[1] as having provided assistance to that organisation. 6. On 19 October 1999, at around 6.30 p.m., the applicant was arrested and taken into police custody at his medical practice. The applicant claims that he was arrested in a humiliating manner, in front of his staff and patients, and that he was sworn at and beaten in the police car.", "7. On 20 October 1999 the applicant’s house and medical practice was searched. The applicant claims that the police officers continued to swear, threaten and humiliate him on this occasion. 8. The Government submitted that the applicant’s detention in police custody was first prolonged, on 21 October 1999, for an additional two days by the prosecutor and later prolonged, on 23 October 1999, for an additional three days by a judge at the State Security Court.", "9. The applicant alleges that, while he was in police custody, he was ill‑treated. In particular, he complains of having received electric shocks, of having been suffocated, and of having been beaten and threatened. He also alleges that, during the first three days of his detention, he had been deprived of food and medication and prevented from sleeping. 10.", "On 25 October 1999 the applicant was heard first by the public prosecutor and later by a judge at the İzmir State Security Court. The latter ordered his release from custody. 11. Following the applicant’s complaint, the İzmir public prosecutor instigated an investigation into the events. On 26 November 1999 the İzmir public prosecutor decided not to prosecute the police officers at the anti‑terror branch of the İzmir Security Directorate.", "In its decision the prosecution noted that none of the persons put forward as witnesses by the applicant were able to confirm the applicant’s version of events, that the applicant was unable to identify the alleged perpetrators and that none of the medical reports, dated 19 October 1999, 23 October 1999 and 25 October 1999 save for one dated 11 November 1999, i.e. fifteen days after the events, noted any physical findings of ill-treatment. The applicant did not object to this decision. 12. The criminal proceedings brought against the applicant before the İzmir State Security Court for aiding and abetting an illegal armed organisation ended on 23 May 2000 with his acquittal.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 13. A description of the relevant domestic law can be found in Öcalan v. Turkey ([GC], no. 46221/99, ECHR 2005-IV) and Sakık and Others v. Turkey (26 November 1997, Reports of Judgments and Decisions 1997‑VII). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 14. The applicant complained that the length of his detention in police custody was in breach of Article 5 § 3 of the Convention, which provides as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power.” A. Admissibility 15. The Government asked the Court to dismiss the application for failure to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention. In this respect, they argued that the applicant could have challenged his detention in police custody pursuant to Article 128 § 4 of the Criminal Code, Article 13 § 2 of Law no. 2845 and Articles 297-304 of the Criminal Code of Procedure.", "They further claimed that he could have sought compensation for having been unlawfully arrested or detained, pursuant to Law no. 466. 16. The applicant did not specifically deal with the Government’s arguments under this head. 17.", "The Court reiterates that it has already examined and rejected the Government’s preliminary objection in similar cases (see, in particular, Ayaz and Others v. Turkey, no. 11804/02, §§ 23-24, 22 June 2006; Hacı Özen v. Turkey, no. 46286/99, § 71, 12 April 2007; Keklik and Others v. Turkey, no. 77388/01, §§ 29-30, 3 October 2006; and Ferhat Berk v. Turkey, no. 77366/01, §§ 21-22 and 26-27, 27 July 2006).", "The Court finds no particular circumstances in the instant case which would require it to depart from its findings in these applications. 18. In view of the above, the Court rejects the Government’s preliminary objection. 19. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 20.", "The Government maintained that the applicant’s custody period was in full conformity with the domestic legislation in force at the time of the incident. They pointed out, however, that the detention periods laid down under Turkish law had been subsequently amended in compliance with the case-law of the Court. 21. The applicant maintained his allegations. 2.", "The Court’s assessment 22. The Court observes that the applicant’s detention in police custody lasted a little less than six days. It reiterates that, in the case of Brogan and Others v. the United Kingdom (judgment of 29 November 1988, Series A no. 145 B, pp. 33-34, § 62), it found that detention in police custody which had lasted four days and six hours without judicial control fell outside the strict time constraints of Article 5 § 3 of the Convention, even though its purpose was to protect the community as a whole against terrorism (see, amongst others, Keklik and Others, § 41, cited above).", "23. In the light of the principles enunciated in the Brogan case, the Court cannot accept that it was necessary to detain the applicant for such a long time without judicial intervention, even if the activities of which the applicant stood accused were serious. 24. There has accordingly been a violation of Article 5 § 3 of the Convention. II.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 25. In his application form and later submissions, the applicant further complained under Articles 3, 5, 6 and 8 of the Convention. In particular, he complained that he had been ill-treated during his arrest and detention in police custody, that he had been denied a fair hearing within a reasonable time by an independent and impartial tribunal on account of the presence of a military judge on the bench of the State Security Court which tried him, that his house had been unlawfully searched and that his telephone lines had been unlawfully tapped. The applicant also claimed that his arrest was unlawful because of the manner in which he was arrested and that he was not informed promptly of the reasons for it. Finally, he submitted that his right to be presumed innocent had been infringed as a result of the publication of the preliminary investigation by the press and that the domestic courts had failed to hear his witnesses.", "26. The Government raised a number of objections regarding the admissibility of these complaints. 27. However, the Court does not find it necessary to examine these objections since, in the light of all the materials in its possession, the Court finds that the applicant’s submissions outlined at paragraph 25 above do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 28.", "It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 29. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 30.", "The applicant claimed, in total, 50,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. 31. The Government contested the amount. 32. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.", "However, deciding on an equitable basis, it awards the applicant EUR 1,000 in respect of non‑pecuniary damage. B. Costs and expenses 33. The applicant also claimed EUR 10,000 for the costs and expenses incurred both before the domestic instances and the Court. 34.", "The Government contested the amount. 35. Since the applicant submitted no justification for this claim, as required by Rule 60 of the Rules of Court, the Court makes no award. C. Default interest 36. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the length of the applicant’s detention in police custody admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 5 § 3 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, to be converted into new Turkish liras at the rate applicable at the date of the settlement and free of any taxes or charges that may be payable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 27 March 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosFrançoise Tulkens Deputy Registrar President [1] The Turkish word “itirafçı” indicates a member of an illegal organisation who has defected and provides the authorities with information about that organisation." ]
[ "SECOND SECTION CASE OF TUMLUKOLÇU v. TURKEY (Application no. 33621/09) JUDGMENT STRASBOURG 18 December 2012 This judgment is final but it may be subject to editorial revision. In the case of Tumlukolçu v. Turkey, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Dragoljub Popović, President,Paulo Pinto de Albuquerque,Helen Keller, judges,and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 27 November 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 33621/09) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Kasım Tumlukolçu (“the applicant”), on 5 June 2009.", "2. The applicant was represented by Mr S. Tumlukolçu, a lawyer practising in Adana. The Turkish Government (“the Government”) were represented by their Agent. 3. On 2 November 2010 the application was 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 applicant was born in 1952 and lives in Adana.", "6. On 14 October 1999 he had cataract surgery in a hospital belonging to the Social Security Agency. Upon discomfort which emerged straight after the operation, he applied to the hospital where he was operated on and found out that the reason for his complaints was that the operation had not been conducted under the necessary hygienic conditions. 7. On 17 November 2000 he brought a civil case against the Social Security Agency before the Adana 5th Civil Court of General Jurisdiction and claimed damages.", "8. On 23 August 2001 the civil court decided that the case was not within its jurisdiction and sent it to the Adana 2nd Labour Court. 9. On 1 June 2001 the applicant brought a new case directly before the labour court in claim of damages. The labour court decided that both cases were out of its jurisdiction since they were not of a labour case nature.", "Pursuant to the Code of civil procedure, the first case was sent to the Court of Cassation for the conflict of jurisdiction between a general civil court and a labour court. Meanwhile the proceedings of the second case before the labour court were suspended until the decision of the Court of Cassation was delivered. 10. From 21 January 2002 to 3 October 2002 the case was sent from one chamber to another due to the conflict of authority among the chambers of the Court of Cassation. 11.", "On 24 April 2003 upon the decision of the Court of Cassation authorizing general civil courts over the case, the two cases were joined before the Adana 5th Civil Court of General Jurisdiction. 12. On 1 February 2006 the Civil Court of General Jurisdiction rendered its first decision. 13. On 2 May 2007 the Court of Cassation quashed that decision.", "14. In the course of the proceedings after the Court of Cassation quashed the decision, the Social Security Agency was attached to the Ministry of Health. 15. On 30 July 2008 the civil court decided that the case was out of its jurisdiction since the other party had become an administrative body. That decision was not appealed by the parties.", "16. On 23 October 2008 upon the decision of the civil court the applicant brought an administrative case against the Ministry of Health requesting damages. 17. The administrative case was still pending before the Adana 1st Administrative Court at the time of the decision. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 18. 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...” 19. The Government contested that argument. 20. The period to be taken into consideration began on 17 November 2000 and had not yet ended on the date of the adoption of the decision of the Court.", "On that date, it had already lasted twelve years before two instances. A. Admissibility 21. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 22. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute (see Daneshpayeh v. Turkey, no. 21086/04, § 28, 16 July 2009). 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 applicant claimed 50,000 euros (EUR) in respect of pecuniary and EUR 100,000 as of non-pecuniary damage. 27.", "The Government contested these claims. 28. 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 7,000 in respect of non‑pecuniary damage. B.", "Costs and expenses 29. The applicant also claimed EUR 3,000 for the costs and expenses incurred before the domestic courts. 30. The Government contested the claim. 31.", "Regard being had to the documents in its possession and to its case‑law, the Court rejects the claim for costs and expenses. C. Default interest 32. 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, EUR 7,000 (seven 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 18 December 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosDragoljub PopovićDeputy RegistrarPresident" ]
[ "FIRST SECTION CASE OF SA-CAPITAL OY v. FINLAND (Application no. 5556/10) JUDGMENT STRASBOURG 14 February 2019 FINAL 14/05/2019 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of SA-Capital Oy v. Finland, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Linos-Alexandre Sicilianos, President,Ksenija Turković,Krzysztof Wojtyczek,Armen Harutyunyan,Pauliine Koskelo,Tim Eicke,Jovan Ilievski, judges,and Renata Degener, Deputy Section Registrar, Having deliberated in private on 15 January 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "5556/10) 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 limited liability company SA-Capital Oy (“the applicant”), on 25 January 2010. 2. The applicant was represented by Mr Ari Huhtamäki, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agents, first Mr Arto Kosonen and then Ms Krista Oinonen, both from the Ministry for Foreign Affairs. 3.", "The applicant alleged, in particular, under Article 6 §§ 1 and 3 (d) of the Convention that it had not had a fair trial as it had been ordered to pay penalty payments in competition law proceedings on the basis of hearsay evidence but without being able to examine or have examined the persons at the origin of this evidence, and as the shifting of the burden of proof to it had violated its presumption of innocence under Article 6 § 2 of the Convention. 4. On 26 September 2011 the application was communicated to the Government. On 4 February 2014, at the applicant’s request, the examination of the case was adjourned pending the outcome of the connected domestic compensation proceedings. INTRODUCTION 5.", "The case arises from proceedings concerning restrictions of competition, conducted against several companies operating in the asphalt sector in Finland and accused of having operated a nationwide cartel involving price-fixing by means of territorial allocation of markets, bid rigging and other restrictive practices in public and private sector contracts for asphalt works and supplies. In the proceedings, lodged by the Competition Authority before the Market Court in the first instance and concluded before the Supreme Administrative Court, on appeals brought by both the Competition Authority and the respondent companies, the existence of a cartel was found established and financial penalties were imposed on the companies involved, including the applicant company. In terms of the scope and effects of the cartel, however, the assessment of the Supreme Administrative Court was more severe than that of the Market Court and, as a result, the Supreme Administrative Court, endorsing the motions put forward by the Competition Authority, increased the amount of the financial penalties imposed on the respondent companies, including the applicant company. 6. The applicant complains under Article 6 of the Convention, alleging that in the proceedings before the Supreme Administrative Court, the latter had relied on hearsay evidence which the applicant was not able to have cross-examined.", "The applicant also alleges that the standard of proof applied by the Supreme Administrative Court was contrary to Article 6 § 1 and that the burden of proof had been shifted to it in violation of Article 6 § 2 of the Convention. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicant company has its seat in Rovaniemi. 8.", "The applicant company is a limited liability company which was carrying out business in the asphalt sector until February 2000. In 2002 the Finnish Competition Authority (kilpailuvirasto, konkurrensverket) started to investigate whether the applicant company, among others, had been involved in nationwide or regional cartels in this sector. 9. On 31 March 2004 the Competition Authority lodged an application before the Market Court (markkinaoikeus, marknadsdomstolen), requesting that the court impose a penalty payment on the applicant company, among others, on the grounds that it had participated in a cartel from 1995 to 2000. A.", "Competition law proceedings 1. The Market Court 10. Between 14 November and 18 December 2006 the Market Court held an oral hearing in the course of which forty-eight witnesses were heard. Documentary evidence, including telephone recordings were also presented to the court. 11.", "On 19 December 2007 the Market Court found, inter alia, that the applicant company had taken part in a cartel in respect of asphalt contracts commissioned by the central government authorities, by participating in territorial allocation of markets, by participating to a minor degree in price-fixing activities and by participating in restrictions on the supply of asphalt mass. A penalty payment (seuraamusmaksu, påföljdsavgift) of 75,000 euros (EUR) was imposed on the applicant company. With regard to the allegation of territorial allocation and price-fixing in the markets for local government and private sector asphalt contracts, the Market Court found that the applicant company had not participated in a cartel. 12. The Market Court found that the territorial allocation of the markets and the bid-rigging between the companies involved in the cartel had amounted to a single continuous infringement of competition law rules, and that they were not to be regarded as individual unconnected infringements.", "According to the court, the infringements of competition law rules had lasted for more than seven years. Although some companies had participated in the infringements for a longer time than others, all the companies had infringed the competition law rules for three years at least. In addition, geographically, the infringements covered the entire country in respect of central government asphalt contracts, and several regions of the country in respect of local government and private sector contracts. 13. The Market Court found it established that between 1996 and 2000 the applicant company had agreed with three other asphalt companies about the allocation of central government asphalt contracts, and had done the same with three more asphalt companies between 1999 and 2000.", "Moreover, from 1996 until the end of 2000, the applicant company had agreed with another cartel company in advance the prices to be offered in competitive bidding, and had tendered accordingly. Between 1996 and 2000, as far as central government asphalt contracts were concerned, it had also agreed with the other cartel companies that none of them would supply asphalt mass to companies outside the cartel. The court held that the applicant company had infringed the prohibition on the division of markets by its above-mentioned conduct regarding central government asphalt contracts. 14. When considering the amount of the penalty payment the Market Court took into account, for each company, its turnover from the asphalt business in Finland during the last year of its participation in the infringement of competition law rules.", "In addition, considering the relatively low turnover of the applicant company, its market position, and the regionally limited scope of the related restriction of competition, the Market Court held that it was not justifiable to penalise the applicant company with a penalty payment exceeding the normal scale. 15. Concerning the evidence, the Market Court noted that evidence in competition law cases could be either direct or indirect, such as economic evidence. As direct evidence was not always available, an assessment was to be made of whether indirect evidence was sufficient to prove the existence of a cartel. The court found that, in the present case, the economic evidence alone was not sufficient to prove the existence of a cartel.", "The court also found that the existence of a cartel could not be proved on the basis of hearsay evidence. In the present case, the Market Court reached its conclusion in respect of the central government asphalt contracts by relying, inter alia, on the testimonies of eight witnesses. However, to the extent that those testimonies contained hearsay evidence, such evidence was not taken into account. As far as local government and private sector contracts were concerned, the Market Court analysed the evidence for restrictions of competition region by region and found it sufficient in respect of certain regions while insufficient in respect of others. As regards the regions where the applicant company was doing business (Northern Finland and North Karelia), the Market Court found that the evidence in support of a cartel was not sufficient.", "In this context, the Market Court stated, inter alia, that the testimonies of two witnesses who had been heard on this matter had been based solely on what the witnesses had heard from other people, whereas other witnesses had not given evidence that was capable of substantiating the existence of a cartel for local government and private sector contracts in this particular region. 2. The Supreme Administrative Court 16. In January 2008, the Competition Authority and the defendant companies, including the applicant company, lodged appeals at the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltnings­domstolen). In its appeal, the Competition Authority contested the interpretation adopted by the Market Court as regards the scope of the cartel, arguing that there was nothing to suggest that the territorial allocation of markets did not encompass contracts in all the above mentioned categories of works and pointing out that the exclusion of supplies of asphalt mass outside the cartel companies affected competition in the entire sector.", "The Competition Authority maintained that there had been a single, nationwide cartel encompassing the entire market for state, local authority and private sector asphalt contracts. In so far as evidence was concerned, the Competition Authority argued, inter alia, that even hearsay evidence should have been taken into account by the Market Court. The company which had been found to play a leading role in the cartel lodged a partial appeal. In its appeal, the applicant company claimed that the Market Court had drawn the wrong conclusions from the evidence, as the Competition Authority had not been able to show that the company had participated in a cartel. In its response to the appeal brought by the Competition Authority, the applicant company reiterated its submissions already made before the Market Court and argued, inter alia, that reliance on any elements of hearsay in the evidence should remain excluded.", "17. On 25 February 2009 the Supreme Administrative Court held a preparatory meeting with the parties for the oral hearing of the case. The oral hearing itself was held between 20 and 23 April 2009, at which the court again heard six key witnesses. Four of them had been called by the Competition Authority, and two by one of the asphalt companies. The parties, including the applicant company, did not ask the court to hear any other persons.", "18. On 29 September 2009 the Supreme Administrative Court overturned the Market Court’s decision. In its judgment, the Supreme Administrative Court held that the Competition Authority’s application was well-founded in respect of all but one of the defendants. Inter alia, the Supreme Administrative Court concluded that the applicant company had participated in a nationwide cartel between May 1995 and 15 February 2000, and the applicant company was ordered to pay a penalty payment of EUR 500,000. 19.", "In regard to matters of procedure, the Supreme Administrative Court noted that the concept of “criminal charge” had an autonomous meaning in the established case-law of the European Court of Human Rights on Article 6 § 1 of the Convention, and that therefore certain sanctions imposed in administrative-law proceedings fell within the scope of Article 6. The court stated that in the light of that case-law, the procedure for imposing a penalty payment under the Restriction of Competition Act had to be considered to fall within the scope of Article 6 (see Jussila v. Finland [GC], no. 73053/01, § 43, ECHR 2006‑XIV). The court further noted that the Court of Justice of the European Communities, when applying Article 6 as a part of the general principles of Community law, had held that the proceedings under Community competition law had to comply with the requirements of Article 6. The Supreme Administrative Court, citing the case of Jussila, considered that while Article 6 of the Convention under its criminal limb thus applied to proceedings imposing a penalty payment, in such cases the Article 6 requirements were not necessarily identical to the requirements which were applicable in the core areas of criminal procedure.", "20. In its judgment, the Supreme Administrative Court made a number of general statements about the assessment of evidence in competition proceedings. It emphasised at the outset that the domestic legislation in this regard was based on the principle of free assessment of evidence. This meant, inter alia, that the court was to take into account all evidence adduced before the Market Court, in addition to the evidence adduced in its own proceedings, while also bearing in mind the finality of the Market Court’s findings to the extent that it had not been challenged by a party on appeal. 21.", "The court also referred to the particular difficulties in obtaining evidence of practices aimed at restricting competition. In this context, it cited the relevant case-law of the Court of Justice of the European Union. The court thus recalled that as the prohibition of anti-competitive agreements and the penalties which offenders may incur are well known, it is normal for the activities relating to restrictive practices and agreements to take place in a clandestine fashion, for meetings to be held in secret, and for the associated documentation to be reduced to a minimum. Evidence of unlawful contact between economic operators will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. In most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together and in the absence of another plausible explanation, may constitute evidence of an infringement of the competition rules (see Aalborg Portland and Others v. the Commission, Joined cases C‑204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C‑219/00 P, ECLI:EU:C:2004:6, §§ 55-57).", "Accordingly, the competent court was not precluded from taking into account circumstantial evidence, or from drawing inferences from various elements of proof, including testimony containing references to what the witness has heard from others. Various factual elements attesting to similar events or patterns occurring in a given market, alongside other kinds of circumstantial evidence may, in the absence of any other reasonable explanation, demonstrate the existence of restrictive practices. Furthermore, the court cited case-law of the General Court of the EU emphasising that while the competition authority must produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement of competition rules took place, it is not necessary for every item of evidence produced to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on, viewed as a whole, meets that requirement (see JFE Engineering Corp. and Others v. the Commission, Joined cases T-67/00, T-68/00, T-71/00 and T-78/00, ECLI:EU:T:2004:221, §§ 179-180). 22.", "The court stated that the evidence provided in a competition law case could not be subject to the same requirements as evidence in criminal cases, inter alia, because Finnish competition law was a part of EU competition law. In this regard, the court also cited case-law of the General Court of European Union (see BPB plc v. the Commission, Case T-53/03, ECLI:EU:T:2008:254, § 64), according to which a standard of proof beyond reasonable doubt cannot be required in competition cases. It further cited case-law of the Court of Justice of the European Union according to which it is incumbent on the Commission as competition authority to prove the infringements of competition rules and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement, and where such evidence had been presented the court was entitled to consider that it was for the defendant to provide another explanation for the incriminating circumstances. This did not unduly reverse the burden of proof or set aside the presumption of innocence (see Montecatini Spa v. the Commission, Case C-235/92 P, ECLI:EU:C:1999:362, §§ 179-181). 23.", "According to the Supreme Administrative Court, circumstantial evidence as well as inferences could also be relied on for establishing prohibited cooperation in the absence of any alternative reasonable explanation. When drawing such inferences, the court was not precluded from taking into account hearsay evidence alongside other scattered evidence. It was essential to take a holistic approach to the evidence presented. When it came to the duration of the infringement of competition law rules, it was sufficient that the presented evidence related to facts sufficiently close in terms of time, in order that it could be established with reasonable certainty that the suspected infringement had continued without interruption between the dates when the alleged cartel had started and ended. 24.", "In this case, the Supreme Administrative Court had at its disposal all written evidence, including economic and financial evidence, as well as the records of statements made by all of the witnesses heard by the Market Court. The court also heard six witnesses in person. The gist of testimonies relied on is cited in the judgment. The court’s findings indicate, inter alia, that independently of each other, a number of witnesses mentioned examples from different geographical regions in different parts of Finland where the companies had agreed about the allocation of markets either by geographical regions or by the volumes of contracts. The witnesses expressed a common understanding that a cartel had dominated the Finnish asphalt markets throughout the country in respect of both local government and private sector contracts and central government contracts.", "Several witnesses also reported consistently on the practices by which the cartel companies had agreed the price to be offered by each of them in competitive bidding. The witnesses reported that the practices followed in competitive bidding had been intended to ensure that the markets were divided as agreed. The reported tendering practices were confirmed by the recordings of telephone calls presented as evidence, and by the written evidence relating to certain competitive biddings. Furthermore, the witnesses reported consistently on how the cartel had supervised the geographical division of the markets. In addition, three witnesses testified before the court about their experience regarding the alleged division of the markets, the related false invoices and the supply of cost-free asphalt mass, as well as some consistent hearsay.", "They testified that if the contracted works had not corresponded to the amounts agreed in advance, the company which had been awarded too many contracts would pay compensation to those which had received too few contracts, for example by means of false invoices. These witnesses also testified about the pressure exerted by cartel members on smaller companies to join the cartel and about measures taken to conceal the infringements. 25. On the basis of the evidence before it, the Supreme Administrative Court found that a single nationwide cartel had existed between 1994 and 2002 in respect of central and local government as well as private sector asphalt contracts. It found that the Competition Authority had presented extensive evidence of the existence of the cartel, by means of witness statements, documents, telephone recordings and other evidence.", "Although the evidence provided by the Competition Authority had not covered all incidents in the asphalt markets during the period covered by its application, either geographically or in terms of time, it had nevertheless permitted the court to get an overall picture of the functioning of the asphalt markets during the period in question. The evidence had excluded the possibility that the established facts were a matter of similar practices which had coincided accidentally. Taking into account what is generally known about the functioning of cartels on the basis of earlier experience and research, the most credible explanation for the similarity between the events which had occurred in different regions and the observations made by the witnesses was that the asphalt companies had agreed about the territorial allocation of the asphalt markets in the whole of Finland, as well as about the measures for implementing the agreed allocation in practice. In its final conclusion, the court stated that the Competition Authority had adduced extensive evidence of the existence of a cartel, while the defendants had not been able to refute the credibility or reliability of that evidence, nor the conclusions which the Competition Authority had drawn from it. 26.", "As to the applicant company’s participation in the cartel, the Supreme Administrative Court held that: “(1274) [o]n the basis of [the three witness] statements adduced before the Market Court and the Supreme Administrative Court and the written evidence consisting of the [chart on the geographical division of the markets], it has been shown that [the applicant company] took part in the cartel, in particular in Lapland and the North Karelia region. It had been agreed that the area of Northern Finland was allocated to [the applicant company], and in general the other cartel companies had no right to do business there. (1275) In addition, it has been shown that there were restrictions in respect of works on central government contracts as well as the supply of asphalt mass. When taking into account that works commissioned by the State were executed throughout the country, the restrictions relating to such contracts necessarily affected the whole State territory. (1276) On the above-mentioned grounds, [the applicant company] has participated in the nationwide cartel the existence of which the Supreme Administrative Court has found established in Part 9 of the present judgment.” 27.", "It further held that the applicant company had taken part in this cartel for almost five years. It had been established that the applicant company through its representatives had been an active operator in the cartel, taken initiatives for agreements regarding bidding for contracts, hampered the business of new and smaller companies in the market and exerted pressure on other companies to join the cartel. 28. The Supreme Administrative Court based its above mentioned findings concerning the applicant company on one witness statement given directly before it, which was corroborated by several witness statements given before the Market Court. The court noted that witnesses heard before it and the Market Court had given evidence about matters based on what they had experienced, heard or inferred concerning the applicant company’s conduct.", "Those statements could not be excluded when assessing the nature and extent of the restrictions of competition in which the applicant company had been involved. The court specifically stated that the economic evidence of the applicant company’s unusual financial performance was not taken into account as evidence of the existence of the cartel. Moreover, the court found that the applicant company had not been able to present any credible alternative explanations for its behaviour on the markets, or to refute the Competition Authority’s conclusions. 29. The applicant company had thus participated in a very serious and extensive cartel, which had aimed to eliminate all functioning competition in the Finnish asphalt markets and which had been particularly harmful for this sector.", "However, in determining the penalty payment, account was taken of the relatively small market share of the applicant company and the regional and temporal dimensions of the applicant company’s infringements, which were smaller than those of the prime participants in the cartel. B. Compensation proceedings 30. After the Supreme Administrative Court’s decision of 29 September 2009, and on the basis of that decision, the Finnish State and several municipalities brought compensation claims in the civil courts against the participants in the cartel, including the applicant company. Those claims amounted to several million euros in total.", "31. On 28 November 2013 the Helsinki District Court (käräjäoikeus, tingsrätten) rejected the Finnish State’s claims against all asphalt companies, including the applicant company. The Finnish State was ordered to pay the asphalt companies’ litigation costs, some EUR 2.6 million. On the other hand, most of the municipalities won their cases against the asphalt companies. The applicant company lost two out of the four cases brought against it, but it was not ordered to pay any compensation to either of those two municipalities, since another asphalt company had already been ordered to do so.", "32. The Finnish State appealed against the District Court judgment. Also, in three of the four cases which the municipalities had brought against the applicant company appeals were lodged with the Court of Appeal (hovioikeus, hovrätten). 33. On 20 October 2016 the Helsinki Court of Appeal accepted the claims of the Finnish State against the asphalt companies in four cases out of seven.", "The applicant company was among those asphalt companies which lost their case against the State, and it was ordered to pay some EUR 1.7 million in compensation to the State. Moreover, the Court of Appeal rejected the appeals of most of the municipalities. The applicant company thus won all of its three cases against the municipalities before the Court of Appeal. 34. The applicant company appealed against the judgment of the Court of Appeal in respect of the claim by the Finnish State which it had lost.", "Two of the three cases brought by the municipalities against the applicant company were also appealed against to the Supreme Court (korkein oikeus, högsta domstolen). 35. On 6 September 2017 the Supreme Court refused the applicant’s request for leave to appeal. The judgment of 20 October 2016 by the Court of Appeal thus became final in respect of the applicant company. C. Extraordinary proceedings 36.", "On 25 September 2014 the applicant company requested the Supreme Administrative Court to annul its decision of 29 September 2009. 37. On 3 January 2017 the Supreme Administrative Court decided to suspend the proceedings until the Strasbourg Court renders a decision in the present case. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "The Restriction of Competition Act 38. At the material time, the Restriction of Competition Act (laki kilpailunrajoituksista, lagen om konkurrensbegränsningar, Act no. 480/1992, as in force at the relevant time) was applicable to the case. This Act was subsequently repealed by the Competition Act (kilpailulaki, konkurrenslagen, Act no. 948/2011) that entered into force on 1 November 2011.", "39. In accordance with sections 5 § 1 and 6 of the Restriction of Competition Act: Section 5 § 1 “In carrying out an economic activity, it shall be prohibited to implement an agreement or any other concerted practice under which competitive bidding for the sale or purchase of good or for the rendering of a service requires (1) that a person refrain from making a tender; (2) that a person submit a tender which is higher or lower than [that of] another person, or; (3) that the price tendered or an advance or credit term applied shall otherwise be based on collusion among the tenderers.” Section 6 “Undertakings or associations of undertakings operating at the same level of production or distribution shall not, whether by virtue of an agreement, a decision or any similar procedure (1) fix or recommend prices or rentals to be charged or paid in relation to an economic activity; (2) restrict production, divide markets, or divide sources of supply, unless it is indispensable to do so with regard to arrangements which contribute to the efficiency of production or distribution or make for technical or economic development and which mainly benefit customers or consumers.” 40. Section 8 §§ 1-2 of the Restriction of Competition Act provided as follows: Section 8 §§ 1-2 “A penalty payment [penalty for the infringement of competition] shall be imposed on an undertaking or an association of undertakings which infringes the provisions of any [parts] of sections 4 to 7, unless the infringement must be deemed to be insignificant, or unless the imposition of a penalty must otherwise be deemed unjustifiable from the point of view of safeguarding competition. In determining the amount of the penalty, account shall be taken of the nature and scope of the restraint on competition, as well as its duration. The amount of the penalty shall be between FIM 5,000 [EUR 840.94] and FIM 4,000,000 [EUR 672,751.70].", "Where the restraint on competition and the circumstances of the case so warrant, the above maximum may be exceeded. The maximum penalty shall not, however, exceed 10% of the previous year’s total turnover of each of the undertakings or associations of undertakings that have participated in the restrictive practice.” 41. A penalty payment is imposed by the Market Court on the basis of an application by the Competition Authority. It is payable to the State. 42.", "According to the preparatory works of the Restriction of Competition Act (HE 162/1991 vp), a penalty payment is a punitive type of payment which is imposed in administrative-law proceedings. The amount of a penalty payment should exceed the amount of profit obtained as a result of the anti-competitive measures. 43. According to a preparatory working group report (KTM mietintö 1991:15), a penalty payment should be severe enough for an economic operator not to be able to draw any economic benefits from an intentional breach of competition law rules. As the sanction is to be imposed in administrative-law proceedings, legal guarantees need to be adequate.", "Legal principles applied within the field of criminal law are to be applied. In this regard, particular attention should be paid to the principles of substantive criminal law relating to the exclusion of liability in certain circumstances. Furthermore, the proceedings in the administrative courts have to satisfy the criterion of foreseeability, and the reasoning in their decisions must be clear and sufficient. B. The Administrative Judicial Procedure Act 44.", "In accordance with section 15a of the Restraint of Competition Act, the provisions of the Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslagen, Act no. 586/1996) are applicable to competition law cases. 45. Section 33 of the Act provides the following: Section 33 – Scope of review “The appellate authority is responsible for reviewing the matter. Where necessary, it shall inform the party or the administrative authority that made the decision of the additional evidence that needs to be presented.", "The appellate authority shall, on its own initiative, obtain evidence as far as the impartiality and fairness of the procedure and the nature of the case so require.” 46. It is stated in the reasoning for the Government Bill concerning the Administrative Judicial Procedure Act (HE 217/1995 vp) that the review under section 33 refers to an investigation of facts which is possible within the limits of the powers of investigation, the special features of the legal remedy in question, and other circumstances of a similar type. According to the reasoning, the provision mainly describes how the procedure must be conducted in order to enable the court to find out the substantive truth. 47. According to the reasoning for the Government Bill, the Administrative Judicial Procedure Act is founded on the principle that the parties must present the facts supporting their claims or counterclaims.", "If the court considers that a normal exchange of pleadings does not clarify the facts sufficiently, it must continue to examine the case. The primary way to proceed is to inform the parties about the additional evidence to be presented. 48. Section 34 of the Act provides the following: Section 34 – Hearing the parties “Before the resolution of the matter, the parties shall be reserved an opportunity to comment on the demands of other parties, and on evidence that may affect the resolution of the matter. The matter may be resolved without hearing a party if his claim is dismissed without being considered on its merits or is immediately rejected, or if the hearing is for another reason manifestly unnecessary.", "Separate provisions shall apply to the restraints on a party’s access to official documents that are not public.” 49. In accordance with section 51 of the Act: Section 51 – Resolution “The appellate authority shall resolve all the demands made in the matter in its decision. It shall review all evidence available and determine on which grounds the resolution can be based.” C. Ruling by the Supreme Administrative Court 50. In the judgment rendered in this case, the Supreme Administrative Court has stated that in the interpretation and application of the above mentioned procedural rules account must be taken of the fact that in proceedings such as the present ones the court is called upon to examine an application lodged by the Competition Authority, instead of an appeal lodged against a decision taken by an administrative authority. D. Precedent of the Supreme Court in criminal proceedings 51.", "In precedent case KKO:2008:68, the Supreme Court took a stand on hearsay evidence in criminal proceedings. According to the court, hearsay evidence refers to a situation where a witness reports on something communicated to him or her by another person and where it is the veracity of the latter person’s observations or declarations that is to be established. Finnish legislation does not prohibit hearsay evidence, but such evidence is also assessed in accordance with the principle of free assessment of evidence. 52. The Supreme Court considered that hearsay evidence was problematic to any court, because the assessment of the existence of such a fact would be based on an assessment of the reliability and credibility of a person not attending the hearing.", "The court would thus be deprived of a possibility to observe that person directly and to assess his or her credibility and reliability when delivering the statement. 53. The Supreme Court pointed out that hearsay evidence was also problematic with regard to the defendant against whom such hearsay evidence was used. The Supreme Court explicitly stated that, in accordance with Article 14, paragraph 3 (e) of the United Nations International Covenant on Civil and Political Rights and Article 6, paragraph 3 (d) of the European Convention on Human Rights, everyone accused of a crime must have the right to question witnesses who were testifying against him or her. The Supreme Court referred to the extensive case-law of the Court, and held that the right to a fair trial was violated if a conviction was based mainly on witness statements which the defendant had not had the chance to question in order to clarify the reliability and credibility of such witnesses.", "The Supreme Court referred in particular to cases Unterpertinger v. Austria, 24 November 1986, Series A no. 110; Delta v. France, 19 December 1990, Series A no. 191-A; and Rachdad v. France, no. 71846/01, 13 November 2003. The Supreme Court concluded that these Conventions and this case-law needed to be taken into account when assessing the role of hearsay evidence in an individual criminal case.", "54. In the precedent case in question, the Supreme Court held that, in the circumstances of the case, a conviction could not be based decisively on hearsay evidence. As the rest of the evidence admitted in that case supported the charges only weakly, the Supreme Court held that the charges had not been proven beyond reasonable doubt. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF THE CONVENTION 55.", "The applicant company complained under Article 6 §§ 1 and 3 (d) of the Convention that the Supreme Administrative Court had relied on hearsay evidence from unidentified sources which the applicant company had not been able to examine or have examined. 56. The Court, being the master of the characterisation to be given in law to the facts of the case (see Söderman v. Sweden [GC], no. 5786/08, § 57, ECHR 2013, and Moretti and Benedetti v. Italy, no. 16318/07, § 27, 27 April 2010), considers that the applicant company’s complaints should be examined solely under Article 6 § 1 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 ... by [a] ... tribunal ...” 57. The Government contested that argument. A. Admissibility 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 1. The parties’ submissions (a) The applicant company 59. The applicant company maintained that, by accepting hearsay evidence, the Supreme Administrative Court had failed to fulfil the requirements of the Convention.", "Although the Supreme Administrative Court had acknowledged in its decision that it needed to take the Convention into account, it had still failed to do so in practice. The applicant company had been able to actively use its right to cross-examine the witnesses, but since all of them had only offered hearsay evidence, it had naturally been impossible to have the initial sources examined, some of whom had even remained unidentified. 60. The applicant company further argued that none of the provisions in Finnish legislation gave any right to assume that hearsay evidence was admissible. On the contrary, the Supreme Court had come to a different conclusion in precedent case KKO:2008:68, which, according to the Supreme Administrative Court, was also applicable to civil and administrative-law proceedings.", "The Supreme Administrative Court had relied on a “holistic approach” and had based the conviction on hearsay evidence “alongside other scattered evidence”. There was no justification for that in EU law or in EU competition law in particular. 61. In the applicant company’s case, this other evidence had consisted of an ambiguous document, the origin of which was not clear, and of financial evidence which in fact had shown that, in the applicant company’s case, the financial evidence did not support any findings regarding the existence of a cartel. None of the telephone recordings related to the applicant company.", "The outcome of the case dealt with by the Market Court had been different because the court had not accepted any hearsay evidence. The Court’s findings in the case of Delta v. France, cited above, supported this latter approach. (b) The Government 62. The Government observed that, when examining the applicant company’s case, the Supreme Administrative Court had considered that the matter was comparable in principle to criminal charges to which Article 6 of the Convention applied. Both the Market Court and the Supreme Administrative Court had held an oral hearing in the matter to hear witnesses, and the applicant company had actively used its right to cross-examine those witnesses.", "The applicant company had not asked the Supreme Administrative Court to hear any witnesses other than those it had heard. 63. The Government stressed that, in accordance with domestic legislation, there was free assessment of evidence, which meant that each court considered what evidentiary value was to be given to each piece of evidence. Hearsay evidence was not expressly forbidden, but, like any other evidence, was to be assessed freely. Hearsay evidence was also not ruled out by the Court’s case-law.", "In the present case, the Supreme Administrative Court had held that it was essential to take a holistic approach to the evidence presented, and also that inferences could be drawn in order to substantiate prohibited cooperation in a competition law case. In competition issues, careful account had to be taken not only of the relevant domestic legislation, but also of EU competition law and the case-law of the EU courts in particular. The Supreme Administrative Court had done so by linking the principles governing the assessment of evidence seamlessly with the case-law of the Court of Justice of the European Union on competition law. In the Government’s view, the judgment of the Supreme Administrative Court thus complied with the requirements for the processing of competition law cases which the Court of Justice of the European Union had laid down in its case-law. 64.", "The Government submitted that the Supreme Administrative Court had not exclusively or decisively based its decision on hearsay evidence. It had relied on documentary evidence, oral testimonies which had been based on the experience of the witnesses heard by the court, and financial analysis. The hearsay evidence had thus not been the sole and decisive evidence in the case (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 128 and 147, ECHR 2011). Nor was the court’s decision based on witness statements which the applicant company could not have examined during the proceedings.", "2. The Court’s assessment (a) The applicability of the criminal limb of Article 6 65. The Court notes first of all that the Government did not dispute the applicability of the criminal limb of Article 6 to the present case. In fact, the Government submitted that when examining the applicant company’s case, the Supreme Administrative Court, referring to the Court’s judgment in Jussila (cited above), had considered that the matter was in principle comparable to criminal charges to which Article 6 of the Convention applied. It is therefore not disputed that the matter at hand falls within the criminal limb of Article 6 of the Convention.", "(b) General principles 66. The Court has emphasised that the adversarial principle and the principle of equality of arms, which are closely linked, are fundamental components of the concept of a “fair hearing” within the meaning of Article 6 § 1 of the Convention. They require a “fair balance” between the parties: each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, inter alia, Regner v. the Czech Republic [GC], no. 35289/11, § 146, 19 September 2017, and Salov v. Ukraine, no. 65518/01, § 87, ECHR 2005‑VIII).", "67. The rights deriving from these principles are not absolute. While the Contracting States enjoy a certain margin of appreciation in this area, it is for the Court to determine in the last instance whether the requirements of the Convention have been complied with. Even in criminal cases the Court has held that there may be competing interests which must be weighed against the rights of the party to the proceedings. However, only measures restricting the rights of a party to the proceedings which do not affect the very essence of those rights are permissible under Article 6 § 1.", "For that to be the case, any difficulties caused to the applicant party by a limitation of his or her rights must be sufficiently counterbalanced in the procedures followed by the judicial authorities (see Fitt v. the United Kingdom [GC], no. 29777/96, §§ 45-46, ECHR 2000‑II). 68. In the Court’s case-law, the autonomous interpretation adopted by the Convention institutions of the notion of a “criminal charge” under the so-called Engel criteria has led to a gradual broadening of the scope of the criminal limb of Article 6 to cases not strictly belonging to the traditional categories of criminal law (see, inter alia, Jussila, cited above, § 43). Cases relating to the enforcement of competition and similar domains of law have often been examined under the criminal head of Article 6 (see Deweer v. Belgium, 27 February 1980, §§ 46-47, Series A no.", "35; Société Stenuit v. France, no. 11598/85, §§ 59-67, Commission’s report of 30 May 1991; Lilly France S.A. v. France (dec.), no. 53892/00, 3 December 2002; A. Menarini Diagnostics S.R.L. v. Italy, no. 43509/08, 27 September 2011; Dubus S.A. v. France, no.", "5242/04, §§ 37-38, 11 June 2009; and Grande Stevens and Others v. Italy, nos. 18640/10, 18647/10, 18663/10, 18668/10 and 18698/10, §§ 99-101, 4 March 2014). 69. As the Court has often emphasised, ensuring the fairness of the proceedings as a whole is its primary concern under paragraph 1 of Article 6 (see, inter alia, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, §§ 250-251, ECHR 2016, and Simeonovi v. Bulgaria [GC], no.", "21980/04, § 113, ECHR 2017). In criminal proceedings the guarantees contained in paragraph 3 of Article 6 are specific aspects of the general concept of a fair trial set forth in paragraph 1. The various rights, of which a non-exhaustive list appears in paragraph 3, reflect certain of the aspects of the notion of a fair trial in criminal proceedings, exemplifying the requirements of a fair trial in respect of typical procedural situations which arise in criminal cases. They are, however, not aims in themselves: their intrinsic aim is always to contribute to ensuring the fairness of the criminal proceedings as a whole (see, inter alia, Correia de Matos v. Portugal [GC], no. 56402/12, §§ 119-120, 4 April 2018; Ibrahim and Others, cited above, § 251).", "The Court therefore considers complaints under Article 6 § 3 under paragraphs 1 and 3 of Article 6 taken together (see, inter alia, Correia de Matos, cited above, § 119). 70. In this assessment, the Court will, inter alia, look at the way in which the evidence was obtained, taking into account the rights of the defence, but also the interests of the public and the victims in seeing crime properly prosecuted (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100 and 101, 15 December 2015, and Paić v. Croatia, no. 47082/12, § 27, 29 March 2016) and, where necessary, the rights of the witnesses (see, for example, Al-Khawaja and Tahery, cited above, § 118).", "71. The Court has also acknowledged, not least in view of the fact that the range of proceedings which are considered to fall under the criminal limb of Article 6 has expanded, that there are “criminal charges“ of differing weight and that, while the requirements of a fair hearing are strictest concerning the hard core of criminal law, there are cases where despite their falling under the criminal head the procedural guarantees do not necessarily apply with their full stringency (see Jussila, cited above, § 43; Mamidakis v. Greece, no. 35533/04, § 30, 11 January 2007; Chap Ltd v. Armenia, no. 15485/09, § 41, 4 May 2017; and Özmurat İnşaat Elektrik Nakliyat Temizlik San. ve Tic.", "Ltd. Şti. v. Turkey, no. 48657/06, § 28, 27 November 2017). A differentiated approach in this regard can be seen to reflect the Court’s above-mentioned general focus on regarding, as its primary concern, the fairness of the proceedings as a whole, with a view to ensuring the rights of defence while also remaining mindful of the interests of the public and the victims in the proper enforcement of the laws in question (see paragraph 69 above). 72.", "The Court furthermore recalls that is has consistently held that 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, provided that decisions taken by an authority which does not itself satisfy the requirements of Article 6 § 1 of the Convention must be subject to subsequent control by a judicial body which does meet the said requirements and has full jurisdiction of review (see, inter alia, A. Menarini Diagnostics S.R.L., cited above, §§ 58-59, and Grande Stevens and Others, cited above, § 139). Thus, in the light of the Court’s established case-law, it is not a requirement under Article 6 of the Convention that proceedings such as those concerning sanctions for breaches of competition law be conducted according to the classic model of a criminal trial. 73. Turning to questions of evidence in criminal proceedings, the Court recalls at the outset that according to its established case-law, Article 6 does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Schenk v. Switzerland, 12 July 1988, §§ 45-46, Series A no. 140; Moreira Ferreira v. Portugal (no.", "2) [GC], no. 19867/12, § 83, 11 July 2017; and Seton v. the United Kingdom, no. 55287/10, § 57, 31 March 2016). The Court has also consistently held that, as a general rule, it is a matter for the domestic courts to assess the evidence before them (see, for instance, Vidal v. Belgium, 22 April 1992, § 33, Series A no. 235‑B).", "Thus, the Court will not, in principle, intervene in issues concerning the assessment of evidence and the establishment of the facts, nor in the interpretation of domestic law, unless the decisions reached by the domestic courts appear arbitrary or manifestly unreasonable and provided that the proceedings as a whole were fair as required by Article 6 § 1 (see, for instance, Ajdarić v. Croatia, no. 20883/09, § 32, 13 December 2011). 74. The Court notes, however, that there is a distinction between the admissibility of evidence, that is, the question of which elements of proof may be submitted to the competent court for its consideration, and the rights of defence in respect of evidence which in fact has been submitted before the court (see, for instance, Barberà, Messegué and Jabardo v. Spain, 6 December 1988, § 68, Series A no. 146; Lüdi v. Switzerland, 15 June 1992, § 43, Series A no.", "238; and C.B. v. Switzerland, no. 27741/95, Commission decision of 17 January 1997). There is also a distinction between the latter, that is, whether the rights of defence have been properly ensured in respect of the evidence taken, and the subsequent assessment of that evidence by the court once the proceedings have been concluded. From the perspective of the rights of defence, issues under Article 6 may therefore arise in terms of whether the evidence produced for or against the defendant was presented in such a way as to ensure a fair trial (see, for instance, Horvatić v. Croatia, no.", "36044/09, § 78, 17 October 2013, and Barım v. Turkey (dec.), no. 34536/97, 12 January 1999). 75. An assessment of the fairness of the proceedings may thus depend, inter alia, on whether the defendant was given an opportunity to challenge the authenticity of the evidence and to oppose its use. In this context, the quality of the evidence must be taken into consideration, as must the circumstances in which it was obtained and whether these circumstances cast doubt on its reliability or accuracy (see, for instance, Bykov v. Russia [GC], no.", "4378/02, § 89, 10 March 2009, and Erkapić v. Croatia, no. 51198/08, §§ 72-73, 25 April 2013). (c) Application of the general principles to the present case 76. With a view to the particular domain of competition proceedings, the Court observes that the present case arises from the context of domestic legislation under which the power to impose financial penalties in such cases is entrusted, in the first instance, to a court, the decisions of which are subject to appeal at a further judicial instance with full jurisdiction. The Court notes, however, that this is not the prevailing situation in the States Parties, as in many of those jurisdictions similar penalties are instead imposed by an administrative authority in the first instance.", "77. In light of the general principles above, the question before the Court in the present case is whether the proceedings before the domestic courts, when examining in particular issues concerning the scope of the impugned restrictions of competition, the applicant company’s implication in unlawful restrictive practices and the requisite financial penalty, were fair from the point of view of the rights of defence, given the applicant company’s complaint about the Supreme Administrative Court having relied on evidence which could not be tested before it. The Court is called upon to consider the questions of fairness in view of the domestic proceedings as a whole, bearing in mind that the Supreme Administrative Court was examining those issues as second, final judicial instance following appeals both by the Competition Authority and the applicant company, the latter contesting its involvement in a cartel, and taking into account that the outcome of the case for the applicant was aggravated on appeal in comparison with the judgment of the Market Court in first instance. In this context, the Court is further called upon to assess those issues with due regard to the particular nature of competition proceedings. (i) Preliminary considerations 78.", "The Court emphasises that the fairness of the proceedings should be assessed as a whole, by taking into account the specific nature and circumstances of the case, and that the question whether the rights of defence, in particular, have been ensured in a manner consonant with Article 6 must be considered in the light of all the relevant elements in the case. In this context, the Court acknowledges that cases concerning restrictions of competition typically involve complex and often wide-ranging economic matters and related factual issues, which means that the relevant elements of evidence will also be multifaceted. The Court is also aware of the strong public interest involved in the effective enforcement of competition law. Moreover, it is mindful of the fact that as a rule, the financial penalties applicable in this field are not imposed on natural persons but on corporate entities, quantified on the basis of the harmful effects of the anti-competitive conduct and taking into account the business turnover of the entities found to be in breach of competition rules. 79.", "In the present context, the Court considers it appropriate to examine, first, the reasons behind the extent to which evidence by witnesses was examined; secondly, the importance of the untested indirect evidence in the establishment of the facts; and thirdly, the fairness of the proceedings as a whole with a particular emphasis on the rights of defence. (ii) The reasons behind the extent to which evidence by witnesses was examined 80. The Court notes, firstly, that at the first instance level, a large amount of evidence was adduced by the Competition Authority and the defendants and examined before the Market Court in adversarial proceedings. According to the court record, the Competition Authority in its application had attached sixty-eight pieces of documentary evidence, adduced further written evidence in the course of the hearing and called fifteen witnesses, about half of whom were persons having served in the management or as employees of some of the companies concerned, while the rest were persons having served in relevant public sector organisations and involved in asphalt sector works. The defendant companies in turn had called over thirty witnesses and adduced written evidence.", "81. Secondly, the Court notes that in its judgment, the Market Court concluded that the defendant companies, including the applicant company, had participated in the operation of a nationwide cartel in the market for central government contracts in the asphalt sector, albeit that the applicant’s participation insofar as price-fixing was concerned was limited. By contrast, as regards the market for local government and private sector asphalt works and supplies, the Market Court conducted a separate analysis of the evidence concerning the existence of a cartel in that market segment on a regional basis and found that there was sufficient evidence of a cartel in that segment only in respect of certain regions, none of which were areas where the applicant company was doing business, whereas the evidence was not considered sufficient in respect of a cartel concerning that market segment for other regions of the country. Consequently, while the Market Court did find the applicant company in breach of competition rules for participating in the nationwide cartel for central government contracts, it did not make a similar finding in respect of the alleged cartel for local government and private sector contracts. 82.", "In this context, the Court further observes that in its appeal to the Supreme Administrative Court, the Competition Authority contested, in particular, the interpretation adopted by the Market Court as regards the scope of the cartel, arguing that there was nothing to suggest that the territorial allocation of markets did not encompass contracts in all the above mentioned segment of the asphalt market and pointing out that the exclusion of supplies of asphalt mass outside the cartel companies affected competition in the entire sector. Thus, the main issue raised by the Competition Authority’s appeal in respect of which the applicant company risked a potential aggravation of the outcome of the case for its part was not merely a question of fact, or evidence relating to certain facts, but involved wider questions concerning the relevant market and its functioning as well as the nature and effects of the alleged restrictive practices. In other words, it cannot be said that the key issue before the Supreme Administrative Court from the point of view of the applicant company was limited to an assessment of evidence only. Rather, the issues on appeal concerned a complex set of issues which required an assessment of several elements and involved a range of economic, factual as well as legal considerations. 83.", "Thirdly, the Court observes that before the Supreme Administrative Court, the applicant company had the opportunity to influence the extent to which evidence was to be adduced and examined on appeal. Prior to the hearing of the case on appeal, a preparatory meeting was held by Supreme Administrative Court in order to afford the parties the opportunity to make submissions in this regard. The applicant had the opportunity of weighing up in advance, taking into consideration all the issues and arguments raised in the Competition Authority’s appeal, the need for and the availability of additional evidence with a view to supporting its position at the appeal stage. The applicant company did not request the hearing of any further witnesses apart from the six persons who were called to appear before the Supreme Administrative Court, although at that stage it was well aware of both of the judgment of the Market Court, the content of the Competition Authority’s submissions on appeal as well as the fact that the outcome of the Market Court’s decision could be changed to its detriment before the Supreme Administrative Court (see Vilches Coronado and Others v. Spain, no. 55517/14, § 42, 13 March 2018).", "84. Furthermore, the Court is also mindful of the fact that given the nature and purpose of competition law, proceedings for its enforcement depend on a variety of evidence that must be considered and assessed together, whereupon the role of evidence taken from witnesses may vary. As it is not the Court’s task to enter into the assessment of evidence, its scrutiny of whether the defendants’ rights of defence have been adequately safeguarded in regard to evidence from witnesses must also take account of the fact that such evidence is only part of the proof on which the assessment of these kinds of cases rests. 85. In view of these considerations, the Court concludes that the manner and extent to which evidence from witnesses was examined before the Supreme Administrative Court was not without justification.", "(iii) Importance of the untested indirect evidence 86. The Court notes that in its judgment, the Supreme Administrative Court made certain general statements about the assessment of evidence in competition proceedings, emphasising at the outset that the domestic legislation in this regard is based on the principle of free assessment of evidence. That court further addressed the particular evidentiary difficulties arising in the context of practices which are aimed at restricting competition, citing also the relevant case-law of the Court of Justice of the European Union. The Supreme Administrative Court emphasised that the evidence in a competition case could not be subject to the same requirements as evidence in criminal cases, inter alia, because the domestic competition law was a part of the competition of law of the European Union. Accordingly, circumstantial evidence as well as inferences could also be relied on for establishing prohibited cooperation in the absence of any alternative reasonable explanation.", "When drawing such inferences, the court was not precluded from taking into account hearsay evidence alongside various other pieces of evidence. It was essential to take a holistic approach to the evidence presented (see paragraphs 20-22 above). Thus, the Court accepts at the outset that the domestic court carefully considered and explained the principles which according to it must govern the assessment of evidence in these types of cases in view of both domestic and EU law. 87. The Court further observes that in this case, the Supreme Administrative Court heard, as witnesses for the Competition Authority, three persons who at the relevant time had held positions in the management or as employees of some of the defendant companies having their main business in different parts of the country.", "From the Supreme Administrative Court’s judgment, it transpires that one of these witnesses, a former owner of one of the companies concerned, had directly implicated the applicant company as a participant in the cartel. In addition, the Supreme Administrative Court relied on transcripts of testimonies by further witnesses given before the Market Court, including an employee of one of the companies concerned as well as one former manager and one former employee of the applicant company itself, whose testimonies corroborated the evidence inculpating the applicant company. The witnesses and the gist of their testimonies were cited in the Supreme Administrative Court’s judgment. 88. In this context, the Court reiterates that the central issue before the Supreme Administrative Court on appeal concerned the question whether the Market Court had been right in its analysis of the scope of the restrictive practices, in particular in separating from each other the different segments of the market depending on whether the business concerned central government contracts or local government or private sector contracts (see paragraph 16 above).", "As stated above (see paragraph 88), this issue was not solely one of facts or evidence alone but one which largely required an intricate analysis of market-related economic factors as well as relevant legal considerations. In its analysis, the Supreme Administrative Court arrived at a conclusion different from that of the Market Court, concluding that the asphalt sector was to be regarded as a whole in terms of the restrictive practices, and finding that there was a single cartel encompassing all the segments of the asphalt contracts. 89. In its judgment the Supreme Administrative Court held, as far as the applicant company was concerned (see paragraph 26 above), that it had participated in the cartel in particular in the regions of Lapland and North Karelia. The Court found that Northern Finland had been allocated to the applicant company, in the sense that other cartel companies were not allowed to carry out works there.", "The court also referred to established restrictive practices in the bidding and the supply of asphalt mass for central government contracts, stating that such restrictive practices have inevitably had nationwide effects. 90. The Supreme Administrative Court’s judgment shows that its finding according to which the applicant company had participated in the cartel was reached on the basis of documentary evidence and the testimony of witnesses who were either heard before the court itself or before the Market Court and who, as insiders in the companies concerned, had told the courts about their own experiences in relation to the impugned restrictive practices. The relevant witnesses were named and the gist of their testimonies quoted, without there being any indication that the court had in any significant degree relied on testimony consisting of hearsay (see Hedström Axelsson v. Sweden (dec.), no. 66976/01, 6 September 2005).", "To the extent that the testimonies may also have included references to second-hand information received from others, the account provided in the Supreme Administrative Court’s judgment of all the evidence on the basis of which its conclusions were reached does not support the allegation that the court’s findings depended on such elements in the testimonies. Although the incriminating witnesses, who were cartel insiders, may also have related information based on hearsay, the Court is not persuaded that such elements played a decisive role in the Supreme Administrative Court’s judgment. 91. The Court therefore concludes that the indirect evidence was not decisive for the outcome of the impugned proceedings. (iv) The fairness of the proceedings as a whole 92.", "The Court recalls that as the fairness of the proceedings calls for them being assessed as a whole, despite its finding that the judgment rendered by the domestic court was not decisively based on untested indirect evidence, there is still a need to determine whether the defendant benefitted from sufficient factors counterbalancing any handicaps which reliance on such evidence might have entailed for the defence. This being said, the Court reiterates that the assessment of the rights of the defence is a relative one and depends on the importance of the untested evidence as well as on the opportunity provided for the defence to comment on such evidence during an oral hearing and/or in written procedure (see Seton, cited above, § 68, and Simon Price v. the United Kingdom, no. 15602/07, §§ 127 and 131, 15 September 2016). 93. In the present case, the Court notes first of all that in its judgment, the Supreme Administrative Court carefully considered and explained the principles which under relevant domestic and EU law governed the assessment of questions of fact and evidence in competition proceedings.", "It also took into account the applicability of Article 6 of the Convention to such proceedings. Thus, the issues raised by the applicant were not overlooked by the domestic court. That court found that the evidence adduced by the Competition Authority was both extensive and consistent, and that the defendants had not been able to undermine the credibility or reliability of that evidence. It also found that the evidence which had been adduced excluded the possibility of an alternative explanation based on a coincidental, concurrent occurrence of business conduct by the companies concerned. As regards the Supreme Administrative Court’s findings concerning the applicant company’s participation in the cartel, the testimonial evidence which was relied on was identified, cited and quoted as given by witnesses who had been examined before the domestic courts.", "94. As the Court has stated above, the judgment of the Supreme Administrative Court was principally based on conclusions drawn from documentary evidence and witness testimony of a kind which had been open for challenge by the applicant company, including cross-examination, in the course of the proceedings. The Court further observes that the applicant company’s right to submit evidence in order to rebut the evidence presented by the Competition Authority and to explain extensively its own assessment of the evidence accepted by the domestic court was fully respected. 95. The Court concludes that in the written and oral proceedings before the Supreme Administrative Court, the applicant company had opportunity to exercise rights of defence providing adequate safeguards also in respect of the evidence on the basis of which the domestic court reached its judgment in the case.", "(v) Conclusion 96. In the light of its findings above, the Court concludes that in the circumstances of the case, the extent to which the Supreme Administrative Court relied on the untested indirect evidence was not unjustified. 97. Accordingly, there has been no violation of Article 6 § 1 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 2 OF THE CONVENTION 98. The applicant company also complained that the Supreme Administrative Court had accepted that in competition law cases the standard of proof could be lower than “beyond reasonable doubt”, or, as in the present case, lower than the “preponderance of evidence” standard. It further complained that the shifting of the burden of proof to it by the Supreme Administrative Court had violated the presumption of innocence under Article 6 § 2 of the Convention. 99. Article 6 §§ 1 and 2 of the Convention read as follows: “1.", "In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” 100. The Government contested that argument. Admissibility 1. The parties’ submissions (a) The applicant company 101.", "The applicant company argued that the standard of proof applied by the Supreme Administrative Court had failed to fulfil the requirements of Article 6 § 1 of the Convention, alleging that the standard of proof had fallen below the standard of “preponderance of evidence”, although the case concerned financial penalties. Nothing could authorise the domestic courts to abandon the minimum level of the standard of proof, namely the standard of “preponderance of evidence”. 102. The applicant company asserted that the Government had admitted in their observations that the applicant company should have proved its innocence in relation to the alleged infringements in order to be acquitted. A reversed burden of proof had thus been applied, and it had clearly violated the presumption of innocence under Article 6 § 2 of the Convention.", "(b) The Government 103. The Government submitted that, in the present case, the domestic provisions concerning administrative judicial procedure were applicable. The domestic legislation did not prescribe any standard of evidence, nor were there any formal provisions on the allocation of the burden of proof applicable in administrative judicial procedures. 104. The Government stressed that, when assessing the sufficiency of the evidence in a competition law case, the problems of finding direct evidence had to be taken into account, a fact that had specifically been mentioned in the Supreme Administrative Court’s judgment.", "In that judgment, the court had held that the Competition Authority had provided extensive and consistent evidence of the operation of a cartel in breach of the Restriction of Competition Act in the asphalt sector from 1994 to 2002, this evidence deriving from documents, telephone recordings, witness statements and a financial analysis. It had further held that in order to prove their innocence in relation to the alleged infringements of the provisions of the Act, the applicant companies should have been able to present a credible alternative interpretation to refute the evidence provided by the Competition Authority or its conclusions from the evidence. Since the applicant companies had been unable to refute the evidence provided by the Competition Authority, or prove that the Competition Authority had drawn false conclusions from the evidence, in the light of the evidence provided by the Competition Authority, the Supreme Administrative Court had held that a nationwide cartel had operated in the Finnish asphalt markets in violation of sections 5 and 6 of the Restraint of Competition Act. 105. The Government maintained that the standard of proof used by the Supreme Administrative Court had fulfilled the requirements of Article 6 § 1 of the Convention, and that the court had not applied a reversed burden of proof.", "The court had found that the alleged violation of the Restriction of Competition Act had been substantiated on the basis of the evidence provided by the Competition Authority and that the defendant companies had not been able to present sufficient evidence to the contrary or provide a credible alternative interpretation. In the Government’s view, the Supreme Administrative Court had respected the presumption of innocence guaranteed by Article 6 § 2 of the Convention. 2. The Court’s assessment 106. The Court reiterates that, as a general rule, it is for the national courts to assess the evidence before them, to apply the relevant standard of proof, and to evaluate whether the admitted evidence is sufficient for a conviction.", "It is for the Court to ascertain that the proceedings, considered as a whole, were fair. 107. Fairness with regard to criminal proceedings also includes respecting the presumption of innocence. Article 6 § 2 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. Thus, the presumption of innocence will be infringed where the burden of proof is shifted from the prosecution to the defence (see Barberà, Messegué and Jabardo, cited above, §§ 67-68 and 77; Telfner v. Austria, no.", "33501/96, § 15, 20 March 2001; and Natunen v. Finland, no. 21022/04, § 53, 31 March 2009). 108. Furthermore, while it is incompatible with Article 6 to base a conviction in criminal proceedings solely or mainly on an accused’s silence or his refusal to answer questions or give evidence himself, in situations which clearly call for an explanation from the accused, his silence or other response can be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution (see John Murray v. the United Kingdom, 8 February 1996, §§ 47 and 54, Reports of Judgments and Decisions 1996‑I, and Narinen v. Finland (dec.), no. 13102/03, 13 December 2005).", "109. In the present case, the Court notes that in its judgment the Supreme Administrative Court discussed the questions concerning the burden of proof and the applicable standard of proof (see paragraphs 21-22 above). Having examined all the evidence submitted to it, the court concluded that the Competition Authority had adduced extensive evidence of the existence of a cartel, while the defendants had not been able to refute the credibility or reliability of that evidence, nor the conclusions which the Competition Authority had drawn from it (see paragraph 25 above). In the light of the Supreme Administrative Court’s judgment, the Court cannot find any indication that the principles adopted in it or their application conflicted with the requirements arising from Article 6 § 2. Nor is there any indication that the Supreme Administrative Court had a preconceived idea of the applicant company having been in breach of competition rules (see Grande Stevens and Others, cited above, § 159).", "In these circumstances, it cannot be said that the Supreme Administrative Court shifted the burden of proof to the applicant company (see, a contrario, Telfner v. Austria, cited above, § 18). Nor is there any indication in the case file that the standard of proof applied by the Supreme Administrative Court was in any way arbitrary. 110. It follows that these complaints are manifestly ill-founded and must therefore be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY 1.", "Declares the complaint under Article 6 § 1 of the Convention in respect of reliance on indirect evidence admissible and the remainder of the application inadmissible; 2. Holds that there has been no violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 14 February 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Renata Degener Linos-Alexandre SicilianosDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinions of Judge Wojtyczek and Judge Koskelo are annexed to this judgment. L.-A.S.R.D.", "CONCURRING OPINION OF JUDGE WOJTYCZEK 1. I fully agree with the view that the Convention has not been violated in the instant case. However, I have some hesitations concerning the approach adopted in the reasoning. 2. The Court has developed a rich case-law concerning the principle of formal immediacy (in German: formelle Unmittelbarkeit) as an element of a fair criminal trial (see Al-Khawaja and Tahery v. the United Kingdom [GC], 26766/05 and 22228/06; Schatschaschwili v. Germany [GC], no.", "9154/10, ECHR 2015; and Murtazaliyeva v. Russia [GC], no. 36658/05, 18 December 2018). The present case concerns a different issue, namely the principle of the material immediacy (materielle Umittelbarkeit) of criminal proceedings, which requires that factual findings be based – to the greatest possible extent – upon sources of evidence in direct contact with the facts of a case. There is no doubt that direct sources of evidence are preferable to indirect sources, such as hearsay witnesses (i.e. witnesses who report what other persons have told them), and that reliance upon indirect sources requires special caution.", "At the same time, however, I note that criminal proceedings in many European States are based upon the principle of free assessment of evidence. The free assessment of evidence is widely seen as one of most fundamental guarantees of a fair criminal trial. Under this principle, the criminal court has the power to determine which evidence is necessary to establish the facts, to assess the credibility of each piece of evidence and to determine the weight attributed to each of them. The free assessment of evidence is usually combined in domestic law with the obligation to duly reason the factual findings. This obligation is another essential guarantee of a fair trial.", "Criminal courts are under an obligation to explain in detail why and how their factual findings stem from the evidence presented during the proceedings. In particular, a court which relies upon evidence from indirect sources must explain – as for any other piece of evidence – its assessment of the credibility of this evidence, the relevance of this evidence for establishing the facts of the case and its relationship with other items of evidence. The guarantees of a fair trial are further reinforced by the right of appeal in criminal matters (as guaranteed by Article 2 of Protocol No. 7 to the Convention). The factual findings reached and reasoned by the first-instance court are reviewed by a second-instance court.", "Free assessment of evidence therefore means a rational assessment under the review of a higher-instance court. Last but not least, the free assessment of evidence is combined with the presumption of innocence (Article 6 § 2). Where factual elements are subject to doubt, they cannot be decided to the accused’s disadvantage. 3. In paragraph 73 of the present judgment, the Court has correctly summarized the relevant principles concerning the assessment of evidence produced in domestic criminal proceedings in the following way: “the Court recalls at the outset that according to its established case-law, Article 6 does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Schenk v. Switzerland, 12 July 1988, §§ 45-46, Series A no.", "140; Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 83, 11 July 2017; and Seton v. the United Kingdom, no. 55287/10, § 57, 31 March 2016). The Court has also consistently held that, as a general rule, it is a matter for the domestic courts to assess the evidence before them (see, for instance, Vidal v. Belgium, 22 April 1992, § 33, Series A no.", "235 B). Thus, the Court will not, in principle, intervene in issues concerning the assessment of evidence and the establishment of the facts, nor in the interpretation of domestic law, unless the decisions reached by the domestic courts appear arbitrary or manifestly unreasonable and provided that the proceedings as a whole were fair as required by Article 6 § 1 (see, for instance, Ajdarić v. Croatia, no. 20883/09, § 32, 13 December 2011).” 4. The Court, in paragraph 96, reaches the conclusion “that in the circumstances of the case, the extent to which the Supreme Administrative Court relied on the untested indirect evidence was not unjustified”. This conclusion is based on the implicit assumption that a criminal court may rely on hearsay witnesses only if this justified, and this justification is subject to review by the European Court of Human Rights.", "The review carried out in the instant case was based upon a three-stage test (see paragraph 79): “first, the reasons behind the extent to which evidence by witnesses was examined; secondly, the importance of the untested indirect evidence in the establishment of the facts; and thirdly, the fairness of the proceedings as a whole with a particular emphasis on the rights of defence”. 5. In assessing the reasons for invoking hearsay evidence in a judgment and its relevance for establishment of the facts, the Court is entering the field of assessment of evidence, usually considered as belonging to a sphere in which the domestic criminal courts enjoy exclusive competence. The Court’s approach consists in identifying parts of the evidentiary material which it considers as problematic and as requiring enhanced scrutiny on its part. In my view, this approach departs to a certain extent from the general principles set out in point 3 above.", "It may be perceived as a step towards introducing certain exceptions to the free assessment of evidence by the domestic courts. This general approach is adopted without a deeper and comprehensive analysis of the different principles concerning the assessment of evidence in criminal proceedings. I have doubts as to whether there is a sufficient rational justification for the approach adopted. Moreover, the evidentiary material is usually to be viewed as a single whole, and the assessment of an individual piece of evidence cannot usually be carried out in isolation from the assessment of all other pieces of evidence. Nonetheless, the Court implicitly identifies a certain general type of “suspect” evidentiary material and subjects it to enhanced scrutiny in the Strasbourg proceedings, while leaving the assessment of all other parts of the evidentiary material to the exclusive competence of the domestic courts and declaring it as immune – in principle – from “Strasbourg review”.", "To put it differently: domestic judges may be fully trusted when they handle direct evidence but this trust is limited when they are required to handle indirect evidence. I do not perceive sufficient reasons for such a differentiation of the evidentiary material for the purpose of proceedings before the European Court of Human Rights. More generally, the main problem with indirect evidence is the risk of judicial error. This is an issue of substantive rather than of procedural justice. The strict scrutiny of indirect evidence through the prism of procedural fairness is not sufficient to eliminate the risk that a domestic criminal judgment based on erroneous factual findings will be declared compliant with the Convention standards.", "At the same time, the mere admission of indirect evidence does not necessarily prejudice the position of the accused. On the contrary, under the system of free assessment of evidence it may be easier for the defence to call into question the credibility of indirect sources (especially if there are not corroborated by other pieces of evidence) than to challenge direct evidence. I would like to reiterate here that the review of the correct application of the standards of formal immediacy by the domestic courts is, obviously, a completely different issue. 6. Turning to the circumstances of the instant case, I have doubts whether enhanced scrutiny of selected parts of the evidentiary material was necessary, given that the factual findings of the domestic courts were neither arbitrary nor manifestly unreasonable.", "In such a situation, it was sufficient to verify whether the proceedings as a whole were fair as required by Article 6 § 1. 7. The present judgment defines the object of the proceedings in the following way: “the Court is called upon to consider the questions of fairness in view of the domestic proceedings as a whole” (see paragraph 77). At the same time, it introduces the three-stage approach mentioned above in point 4 of this concurring opinion. I note in this context that the third element of this test coincides with the general object of the proceedings, namely the question of the overall fairness of the proceedings.", "It is not clear how the first two elements articulate with this general requirement of fairness. If the reasons for taking into account the testimony of the hearsay witness had been insufficient, would this have been a sufficient ground for finding a violation of Article 6? If the “untested indirect evidence” had been decisive for the establishment of the facts, would this have been a sufficient ground to conclude that Article 6 has been violated because the proceedings, considered as a whole, would have been unfair? Or are there other factors which may yet have tipped the balance in favour of finding a non-violation? All those questions were left without clear answers.", "The devised test raises further question. As stated above, the Court defines the first element of the test as follows: “the reasons behind the extent to which evidence by witnesses was examined”. The problem does not stem, however, from the mere fact that a hearsay witness was examined by a court. It may instead stem from the fact that the hearsay part of his testimony was later assessed as credible and relied upon by a court for the purpose of establishing facts. 8.", "I note, moreover, that the fact that the indirect evidence was subject to enhanced scrutiny by the Court does not mean that the defence should enjoy broader rights in its respect than in respect of other pieces of evidence. The general panoply of defence rights applicable to all items of evidence was considered sufficient in this case. 9. The proceedings before the European Court of Human Rights cannot be compared to domestic criminal proceedings. In particular, the object of these two procedures and the nature of the factual circumstances to be established are completely different.", "Bearing in mind all of the fundamental differences between the two procedures, it is worth noting, however, that neither the principle of substantive immediacy nor the principle of formal immediacy apply in the proceedings before the European Court of Human Rights. Evidence from indirect sources, including, inter alia, witnesses’ testimonies and other evidence gathered by non-governmental organisations, is often relied upon in the Court’s proceedings (see, among many examples, NA. v. The United Kingdom, no. 25904/07, 17 July 2008; Georgia v. Russia (I) [GC], no. 13255/07, ECHR 2014 (extracts); Paposhvili v. Belgium [GC], no.", "41738/10, 13 December 2016; and J.R. and Others v. Greece, no. 22696/16, 25 January 2018). This confirms that evidence from indirect sources may be of great value in establishing facts in judicial proceedings. CONCURRING OPINION OF JUDGE KOSKELO 1. I agree with the present judgment.", "However, in respect of the complaint concerning the Supreme Administrative Court’s alleged reliance on incriminating evidence consisting of “hearsay”, I wish to add a few remarks relating to the reasoning that has been adopted. 2. As is well-known, and mentioned in paragraph 68 of the judgment, the Court embarked a long time ago on a line of case-law which, under its autonomous interpretation of the concept of a “criminal charge”, has entailed a considerable expansion of the scope of the criminal limb of Article 6. As also mentioned in paragraph 71 of the judgment, the Court has acknowledged in this context that there are “criminal charges” of differing weight and that, while the requirements of a fair hearing are strictest concerning the hard core of criminal law, there are cases where, despite their falling under the criminal head, the procedural guarantees do not necessarily apply with their full stringency. 3.", "The ensuing need for a differentiated approach is indeed both inevitable and reasonable. Yet the Court can hardly be credited with having so far developed any clear or coherent set of criteria or principles for what such a differentiated approach will mean in more concrete terms. The present judgment represents just one building block in a gradual evolution of the case-law in this area. 4. In the above-mentioned part of its complaint, the applicant company has relied on both Article 6 § 1 and Article 6 § 3(d) of the Convention.", "The issue raised in this context is that certain witnesses, whose testimony was part of the evidence against the applicant company, included in their statements – apart from matters of which they had direct knowledge – elements of “hearsay”, in the form of information which the witness in question had heard from other persons, who themselves did not appear as witnesses before the court. The gist of this complaint is that the Supreme Administrative Court’s reliance on such elements of evidence, the primary sources of which had not been available for testing by the applicant, violated the applicant’s rights of defence under Article 6 § 1 and 6 § 3(d). 5. In the judgment, the Court has decided to examine this part of the complaint solely under Article 6 § 1 of the Convention (see paragraph 56). Under the general principles set out in paragraphs 66-75 of the judgment, the guarantees contained in Article 6 § 3 are referred to, together with a statement that the Court considers complaints under Article 6 § 3 under paragraphs 1 and 3 of Article 6 taken together.", "No explanation is provided as to why the complaint in the present case falls to be examined solely under Article 6 § 1. This I find unsatisfactory, not from the perspective of the outcome of the present case but from the perspective of transparency and with a view to future cases. 6. The special feature in the assessment of the fairness of proceedings under the criminal limb of Article 6 usually has to do with the rights of the defence, given that these types of proceedings concern the imposition of public-law sanctions for various kinds of unlawful conduct. Indeed, the specific guarantees provided for under paragraph 3 of Article 6 are all about the rights of the defence (which of course does not detract from the fact that some other important elements of the rights of the defence, such as the privilege against self-incrimination, are derived from paragraph 1 of Article 6 alone).", "7. The present complaint is focussed on the rights of the defence in competition proceedings, specifically in relation to witness statements adduced before the Supreme Administrative Court, and has been brought before the Court in reliance on Article 6 § 3(d) together with Article 6 § 1. The unexplained announcement that the complaint falls to be examined solely under Article 6 § 1 of the Convention may therefore be a source of both query and uncertainty. In my view, it would have been preferable to address this point in the judgment. In particular, questions may arise as to whether the reasons behind the chosen approach have to do with issues of general methodology, or instead with the formal scope of Article 6 § 3(d) in relation to the circumstances complained of.", "I will therefore explore the latter question a bit more closely. 8. I would note at the outset that the situation in the present case is different from that examined by the Court in certain other cases where a person was heard as a witness before the trial court alongside other witnesses, and where the latter reported (conflicting) prior hearsay attributed to the former (see Ajdaric v. Croatia, no. 20883/09, 13 December 2011, and Aho v. Sweden, (dec.) no. 25514/15, 13 December 2016).", "In such circumstances, the issue did not concern a witness who was unavailable for examination before the court but rather the assessment of evidence taken at the trial and consisting of, on the one hand, the testimony given by the witness himself and, on the other, statements made by other witnesses who reported what the former had allegedly told them on previous occasions. Thus, those cases did not raise an issue under Article 6 § 3(d). In the present case, by contrast, the complaint concerns a situation where certain witnesses called by the Competition Authority who gave evidence before the domestic court introduced, in the course of their testimonies, statements containing hearsay from third persons (the sources) who themselves did not appear as witnesses. 9. Regarding the scope of Article 6 § 3(d), the Court’s case-law makes it clear that the notion of “witness” is an autonomous one (see Kostovski v. the Netherlands, 20 November 1989, § 4, Series A no.", "166). Primarily, this provision is applicable in respect of persons giving evidence in the course of the proceedings. The Court has, however, held that Article 6 § 3(d) extends to statements which were in fact made before the trial court and taken into account by it (ibid. § 40; see Delta v. France, 19 December 1990, Series A no. 191-A, § 35, and Lüdi v. Switzerland, 15 June 1992, § 44, Series A no.", "238). Thus, the provision has been applied in situations where information received from anonymous informants or other persons has been adduced at the trial, not by hearing the source but through the questioning of law-enforcement officials (see, for instance, Delta, cited above, § 37; Haas v. Germany (dec.), no. 73047/01, 17 November 2005; Dzelili v. Germany (dec.), no. 15065/05, 29 September 2009; Hümmer v. Germany, no. 26171/07, 19 July 2012; and Scholer v. Germany, no.", "14212/10, 18 December 2014), or through written reports (see Kostovski, cited above, §§ 38 and 40; Lüdi, cited above, §§ 42 and 44; and Guerni v. Belgium, no. 19291/07, §§ 67 and 70, 23 October 2018). 10. Moreover, the Court has considered that this provision was engaged in respect of a person who had not made any statements but was merely the source of documentary information which had been relied on by the competent domestic authority in the context of proceedings for the imposition of an administrative sanction falling under the criminal limb of Article 6 (see Chap Ltd v. Armenia, no. 15485/09, §§ 46-48, 4 May 2017).", "Also, the provision has been applied in a situation where essential pieces of evidence, in the form of original documents and extracts from computer log files, were not adequately adduced and discussed at the trial in the applicant’s presence (see Georgios Papageorgiou v. Greece, no. 59506/00, § 7, ECHR 2003‑VI). In Donohoe v. Ireland, the Court considered that it was appropriate to be guided by the general principles articulated in relation to absent witnesses in a situation involving so-called “belief evidence”, provided by a law-enforcement official and based on information received from unidentified sources (see Donahoe v. Ireland, no. 19165/08, § 78, 12 December 2013; see also Kelly v. Ireland (dec.), no. 41130/06, 14 December 2014).", "11. As is clear from this overview, there are no crystal-clear boundaries regarding the circumstances in which Article 6 § 3(d) has been found applicable. 12. Regarding the substance of the guarantees provided under this provision, there is abundant case-law on the specific issues of reliance by courts in criminal proceedings on statements made by witnesses who are absent from the trial (or who refuse to give evidence on the grounds of the privilege against self-incrimination or their proximity to the accused) and whose testimony is therefore not available for direct examination or cross-examination at the trial. The relevant principles have been articulated by the Grand Chamber in Al-Khawaja and Tahery v. the United Kingdom (GC, nos.", "26766/05 and 22228/06, §§ 119-147, ECHR 2011), and further in Schatschaschwili v. Germany (GC, no. 9154/10, §§ 110-131, 15 December 2015). Under this line of case-law, it is clear that reliance on so-called “hearsay” evidence which is not available for cross-examination before the trial court may under certain conditions be compatible with the rights of the defence even in proceedings where the case examined undoubtedly falls under the “hard core” of criminal law. 13. It is true that in the present case the applicant’s complaint regarding “hearsay” evidence does not arise from the “typical” situation envisaged in the above case-law, namely one where a witness has given a statement or deposition for the purposes, and at the stage, of the pre-trial investigation of the case but has not subsequently been available for questioning and cross-examination at the actual trial.", "Instead, the present complaint arises from a situation where certain witnesses who were available for cross-examination in the proceedings before the domestic courts have, in the course of their testimonies, related information which they claim to have obtained from sources who themselves were not available for such cross-examination before the courts. 14. Nevertheless, and irrespective of whether subparagraph 3(d) of Article 6 may as such be considered formally applicable in circumstances such as those in the present case, the alleged unfairness caused to the defence by a situation where incriminating information relating to primary facts in the case is introduced by certain “prosecution” witnesses and where such information originates from sources who themselves do not appear as witnesses before the court (“the untested indirect evidence”, as it is referred to in the judgment) is akin to the problem addressed in the case-law developed under that provision. The potentially problematic feature from the perspective of the rights of the defence, namely the fact that the competent court might rely on incriminating information unavailable for direct testing by the defendant in the course of the proceedings, is of a similar nature. 15.", "Therefore, while it would not be appropriate to transpose the specific case-law mentioned in paragraph 12 above to contexts such as the present one, it is nevertheless appropriate that the consideration of the applicant’s complaint should, in broad terms, be guided by the general principles underpinning the rights of the defence in those kinds of situations (cf. Donahoe, cited above, § 78). Within the framework of a “differentiated approach”, this is essentially what the present judgment is about. In my view, it would have been desirable and helpful to explain this more clearly. 16.", "It is perhaps worth adding that although – as stated in the judgment (paragraphs 78 and 84) – the enforcement of competition law typically depends on a variety of evidence that must be considered and assessed together, evidence from witnesses and the rights of the defence in relation to information from sources who are or have been cartel “insiders” are nevertheless matters requiring attention. This is so not least because of the significant role played in this field by leniency policies, as a result of which those choosing to “blow the whistle” may have important financial and other incentives for doing so, namely for alerting the competent authorities and for supplying key evidence to assist them in the enforcement process. In such circumstances, the manner in which incriminating evidence from sources inside a cartel is introduced in the proceedings, and the manner in which the rights of the defence are secured in this context, will accordingly be important matters for consideration in the assessment of the overall fairness of the proceedings. While there is a strong public interest in the effective enforcement of competition law, there is also a strong interest in not getting it wrong." ]
[ "FIFTH SECTION CASE OF MARCHENKO v. UKRAINE (Application no. 24857/07) JUDGMENT STRASBOURG 10 February 2011 This judgment is final but it may be subject to editorial revision. In the case of Marchenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Mirjana Lazarova Trajkovska, President,Zdravka Kalaydjieva,Julia Laffranque, judges,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 18 January 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 24857/07) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Ukrainian nationals, Ms Lyudmyla Ivanivna Marchenko, Ms Svitlana Viktorivna Marchenko (Matsevitska) and Ms Bozhena Viktorivna Marchenko (“the applicants”), on 1 June 2007.", "2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev. 3. On 5 May 2009 the Court decided to give notice of the complaint concerning the length of the proceedings to the Government. In accordance to Protocol No.", "14, the application was allocated to a Committee of three Judges. THE FACTS 4. The applicants were born in 1963, 1983 and 1988, respectively, and live in Makariv. Ms Lyudmyla Marchenko is the mother of the other two applicants. 5.", "From 1987 onwards Ms Lyudmyla Marchenko lived in a house together with Mr M., her husband, Mrs O.N., her mother in law, and Ms Svitlana Marchenko. In 1988 Ms Bozhena Marchenko was born. In 1989 Mrs O.N. acquired a property title over the said house. In 1992 Mr M. died.", "In 2000 Mrs O.N. concluded a deed of gift with Mr O.O. and transferred the ownership over the house to him. 6. In August 2000 Ms Lyudmyla Marchenko instituted proceedings in the Makariv Court against Mrs O.N.", "and Mr O.O. on her own behalf and on behalf of the other two applicants seeking division of the house and partial invalidation of the deed of gift. 7. On 20 October 2000 the court ordered a forensic examination and suspended the proceedings. 8.", "Having received the results of the examination on 3 May 2001, the court resumed the proceedings on 28 May 2001. 9. On 6 August 2001 the court found in part for the applicants. 10. On 31 August 2001 Mrs O.N.", "and Mr O.O. appealed. 11. On 12 October and 14 December 2001 the Kyiv Regional Court of Appeal returned the appeal to the first instance court due to procedural shortcomings. On 6 November and 16 December 2001 the first instance court allowed the appellants time to rectify their appeal.", "Finally, on 13 February 2002 the first instance court rejected that appeal without examination due to its procedural shortcomings. 12. On 21 May 2002 the court of appeal quashed that decision and remitted the case to the first instance court for a decision on the admissibility of the appeal lodged by Mrs O.N. and Mr O.O. 13.", "Following a decision on admissibility, on 1 July 2002 the Makariv Court sent the appeal to the court of appeal for consideration. 14. On 11 October 2002 the Kyiv Regional Court of Appeal quashed the judgment of 6 August 2001 and remitted the case to the Makariv Court for a fresh consideration. 15. On 18 April 2003 the court suspended the proceedings in the case upon the applicants' request.", "16. On 22 August 2003 the Makariv Court ordered resumption of the proceedings. 17. On 13 February 2004 the court found in the applicants' favour. 18.", "On 10 March 2004 Mrs O.N. and Mr O.O. appealed. On 4 June 2004 the court of appeal quashed the first instance court judgment and found against the applicants. 19.", "On 5 July 2004 the applicants appealed in cassation. 20. On 9 November 2006 the Supreme Court rejected that appeal as unsubstantiated. 21. Out of sixteen hearings in the case four were adjourned upon the applicants' request or due to their failure to appear, four were adjourned upon the respondents' requests or due to their failure to appear, and three were adjourned due to the necessity to call a witness or to examine proof or information.", "THE LAW I. COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS UNDER ARTICLE 6 § 1 OF THE CONVENTION 22. The applicants complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads, in so far as relevant, 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 23. The Court notes 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 24. The Government submitted that the proceedings had been complex because they involved many parties and the courts had examined events which had occurred more than thirty years ago. In the Government's view, the applicants contributed to the protraction of the proceedings by requesting suspension of the proceedings and their failure to appear before the court.", "The Government contended that there had been no significant delays attributable to the first instance court and the court of appeal, while the length of the proceedings before the Supreme Court had been justified by the latter's heavy workload. The Government emphasized that the latter problem had been solved by introducing, on 22 February 2007, amendments into relevant domestic legislation. 25. The applicants disagreed. 26.", "The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the 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). 27. The period to be taken into consideration began in August 2000 and ended on 9 November 2006. It thus lasted for about six years and three months for three levels of jurisdiction.", "28. At the outset, the Court notes that the applicants contributed to the protraction of the proceedings by failing to attend some of the hearings, by requesting suspension of the proceedings and by lodging appeals. However, the Court does not share the Government's view that the primary responsibility for the delays in the proceedings rests with the applicants. 29. The Court notes that the subject matter of the dispute was not complex as it mainly concerned a property title over a house which could have been established on the basis of the documentary evidence.", "The Court also notes that the proceedings in question were of undeniable importance for the applicants as they concerned ownership of the house which was their main place of residence. 30. The Court observes that the case was twice remitted to a lower court for a fresh consideration. In this regard the Court recalls that since remittal is usually ordered because of errors committed by lower courts, the repetition of such orders within one set of proceedings discloses a serious deficiency in the judicial system (see Wierciszewska v. Poland, no. 41431/98, §§ 46, 25 November 2003).", "The Court also observes that it took the domestic authorities about eleven months to decide on admissibility of the appeal lodged by Mrs O.N. and Mr O.O. (see §§ 10-14). The Court further observes that the legislative amendments referred to by the Government were introduced on 22 February 2007, after the proceedings in the present case had ended. 31.", "The Court concludes that, given the undeniable importance of the proceedings at issue for the applicants, the domestic authorities did not act with a due expedition while examining their claims and the overall duration of the proceedings exceeded what may be considered “reasonable”. Accordingly, there has been a breach of Article 6 § 1. II. OTHER COMPLAINTS 32. The applicants complained under Articles 6 § 1 and 13 of the Convention about the unfavourable outcome of the proceedings as the domestic courts rejected their claims.", "33. In the light of the materials in its possession, the Court finds that the applicant's complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 34. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 35. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 36. The applicants lodged their claims for just satisfaction after the prescribed time-limit. Therefore, the Court considers that there is no call to award them any sum on that account. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaint under Article 6 § 1 of the Convention 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. Done in English, and notified in writing on 10 February 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsMirjana Lazarova TrajkovskaDeputy RegistrarPresident" ]
[ "THIRD SECTION CASE OF NIKOLIĆ v. SERBIA (Application no. 41392/15) JUDGMENT STRASBOURG 19 March 2019 This judgment is final but it may be subject to editorial revision. In the case of Nikolić v. Serbia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Pere Pastor Vilanova, President,Branko Lubarda,Georgios A. Serghides, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 26 February 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application against Serbia (no. 41392/15) 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 Marica Nikolić (“the applicant”), on 7 August 2015.", "2. The applicant was represented by Ms N. Dautović, a lawyer practising in Novi Sad. The Serbian Government (“the Government”) were represented by their Agent, Ms N. Plavšić. 3. On 20 February 2017 the complaint concerning the length of civil proceedings 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 4. The applicant was born in 1949 and lives in Novi Sad. 5. On 1 June 2004 the applicant instituted civil proceedings seeking reimbursement for income she had lost because of a car accident. 6.", "On 25 February 2008 the Novi Sad Court of First Instance delivered a judgment partly in favour of the applicant and ordered the defendant to pay her a certain amount in that respect. 7. On 30 October 2008 the Novi Sad District Court partly quashed the judgment of 25 February 2008 and remitted the case, upholding the remainder of the judgment. 8. On 2 July 2010 the Novi Sad Court of First Instance rejected the applicant’s claim in the remitted part.", "9. On 30 January 2012 the Novi Sad Court of Appeal partly upheld the judgment of 2 July 2010 and partly reversed it granting certain applicant’s claims. 10. On 5 February 2015 the Constitutional Court rejected the applicant’s complaint about the length of those proceedings, taking into consideration that the civil courts had rendered four judgments at two instances and that the proceedings had been complex. THE LAW I.", "ALLEGED VIOLATIONS OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION 11. The applicant complained under Articles 6 and 13 of the Convention that the length of the civil proceedings in question had been incompatible with the “reasonable time” requirement. Articles 6 § 1 and 13 of the Convention 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.” 12. The Government contested that argument, relying on the arguments set out in the Constitutional Court’s decision (see paragraph 10 above). 13.", "The period to be taken into consideration began on 1 June 2004 and ended on 30 January 2012. It thus lasted seven years and eight months for two levels of jurisdiction. The Court also observes that the proceedings in question concerned the applicant’s lost income as a consequence of a car accident and were therefore important for the applicant. A. Admissibility 14. The Court notes that the application is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds and must therefore be declared admissible.", "B. Merits 15. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the 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). 16.", "The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see, for example, Nemet v. Serbia, no. 22543/05, 8 December 2009, Blagojević v. Serbia [Committee], no. 63113/13, 28 March 2017, and Ković and Others v. Serbia [Committee], no. 39611/08 and 2 others, 4 April 2017). 17.", "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 merits of the applicant’s complaint. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 18. Accordingly, there has been a breach of Article 6 § 1 of the Convention. 19.", "After reaching such a conclusion, the Court does not find it necessary to examine essentially the same complaint invoked by the applicant under Article 13 of the Convention (see mutatis mutandis, Kin-Stib and Majkić v. Serbia, no. 12312/05, § 90, 20 April 2010). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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 submitted that the claim was excessive. 23.", "The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 2,100 under that head. B. Costs and expenses 24. The applicant also claimed EUR 1,130 for the costs and expenses incurred before the Constitutional Court and before the Court.", "25. The Government contested this claim. 26. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 500 covering costs under all heads. C. Default interest 27.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there is no need to examine separately the complaint under Article 13 of the Convention; 4.", "Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts: (i) EUR 2,100 (two thousand one hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 500 (five hundreds euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that the amounts specified above shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 19 March 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş Aracı Pere Pastor VilanovaDeputy RegistrarPresident" ]
[ "FOURTH SECTION CASE OF GREENHALGH v. THE UNITED KINGDOM (Application no. 61956/00) JUDGMENT (Friendly Settlement) STRASBOURG 5 September 2006 This judgment is final but may be subject to editorial revision. In the case of Greenhalgh v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Chamber composed of: MrJ. Casadevall, President,SirNicolas Bratza,MrG. Bonello,MrM.", "Pellonpää,MrK. Traja,MrS. Pavlovschi,MrJ. Šikuta, judges,and Mr T.L. Early, Section Registrar, Having deliberated in private on 11 July 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr David Greenhalgh, a British national. 2. Mr Greenhalgh was represented before the Court by Ms Elaine Mills, a welfare rights adviser from the South Manchester Law Centre. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. 3.", "The applicant complained under Articles 8 and 14 of the Convention, that, because he was a man, he was denied social security benefits equivalent to those received by female widows. 4. After obtaining the parties’ observations, the Court declared the application admissible on 4 November 2003. THE FACTS THE CIRCUMSTANCES OF THE CASE 5. Mr David Greenhalgh was born on 5 November 1954 and lives in Manchester.", "His wife died on 10 November 1999. The applicant made a claim for widows’ benefits on 1 December 1999. His claim was rejected on 3 December 1999 on the ground that he was not entitled because he was not a woman. On 4 August 2000 the applicant asked for a revision of the decision. No decision was made on the review.", "The applicant’s appeal was refused by the Appeal Tribunal on 12 September 2000. II. RELEVANT DOMESTIC LAW AND PRACTICE 6. The relevant domestic law and practice are described in the Court’s judgment in Willis v. the United Kingdom, no. 36042/97, §§ 14‑26, ECHR 2002-IV.", "THE LAW 7. By a letter of 11 May 2005 the respondent Government informed the Court that the House of Lords had decided, in relation to the claims for Widowed Mother’s Allowance (WMA) and Widow’s Payment (WPt), that there was in principle no objective justification at the relevant time for not paying these benefits to widowers as well as widows, but that the Government had a defence under section 6 of the Human Rights Act 1998 (the HRA). It noted that, in view of this, the multitude of cases before the Court and the fact that the HRA defence is only applicable in the domestic arena, the Government were prepared, in principle, to settle all claims made by widowers against the United Kingdom arising out of the arrangements applicable prior to April 2001 for the payment of WMA and WPt. 8. On 13 October 2005 the applicant’s representative sent a duly signed declaration informing the Court that the applicant had been offered GBP 3,888.59 and that this payment would constitute “the final resolution of the applicant’s claim to a widowed mother’s allowance and/or widow’s payment”.", "On 27 March 2006 the Government notified the Court that the applicant had received payment of GBP 3,888.59. 9. On 11 May 2006 the Registrar wrote to the applicant informing him that, unless he objected before 26 May 2006, the application would be struck off the Court’s case list. No response was received to that letter. 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 applications should be struck out of the list. FOR THESE REASONS, THE COURT UNANIMOUSLY Decides to strike the application out of its case list.", "Done in English, and notified in writing on 5 September 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyJosep CasadevallRegistrarPresident" ]
[ "FORMER THIRD SECTION CASE OF Y v. NORWAY (Application no. 56568/00) JUDGMENT STRASBOURG 11 February 2003 FINAL 11/05/2003 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 Y v. Norway, The European Court of Human Rights (Former Third Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrW. Fuhrman,MrL.", "Loucaides,MrP. Kūris,MrsF. Tulkens,MrK. Jungwiert,MrsH.S. Greve, judges,andMrs S. Dollé, Section Registrar, Having deliberated in private on 17 September and on 21 January 2003, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1.", "The case originated in an application (no. 56568/00) against the Kingdom of Norway lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Norwegian national, Y (“the applicant”), on 23 March 2000. The applicant had been granted permission by the President of the Chamber to keep his name confidential. 2. The applicant was represented by Mr Klomsæt, a lawyer practising in Oslo.", "The Norwegian Government (“the Government”) were represented by Mr F. Elgesem, who acted as Agent until he left the Attorney-General’s Office (Civil Matters) in June 2002. Thereafter, they were represented by Mr H. Harborg of that office. 3. The applicant alleged a violation of Article 6 § 2 of the Convention on account of the national courts’ decision, despite his acquittal of criminal charges, to order him to pay compensation to the deceased victim’s parents. 4.", "The application was allocated to the former Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5. On 11 September 2001 the Chamber decided that, in the interests of the proper administration of justice, the proceedings in the present case should be conducted simultaneously with those in the cases of O v. Norway, Hammern v. Norway and Ringvold v. Norway (application nos. 29327/95, 30287/96 and 34964/97 – Rule 43 § 2)).", "6. The applicant and the Government each filed observations on the admissibility and merits (Rule 54). 7. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). However, this case was retained by the former Third Section.", "8. A hearing on admissibility and merits (pursuant to the accelerated procedure under Article 29 § 3 of the Convention) took place in public in the Human Rights Building, Strasbourg, on 17 September 2002 (Rule 59 § 2). There appeared before the Court: (a) for the GovernmentMrH. Harborg, Attorney-General’s Office,(Civil matters)Agent,MrF. Elgesem, Advokat,Counsel/AdviserMrK.", "Kallerud, Senior Public Prosecutor,Office of the Director of Public Prosecutors,MsE. Holmedal, Attorney,Attorney-General’s Office (Civil matters),MsT. Steen, Attorney,Attorney-General’s Office,Advisers; (b) for the applicant Mr S.J. Klomsæt, Advokat,Counsel, MsI. Bergum, Advokat,Adviser.", "The Court heard addresses by Mr Klomsæt, Mr Elgesem and Mr Harborg. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1977 and lives in Spain. 10.", "On 1 October 1997 the applicant was charged (under Articles 193, first alternative, and Articles 229 and 233, first and second sub-paragraphs of the Penal Code-straffeloven) of having committed on Saturday, 6 May 1995, offences of violent assault, sexual assault and homicide against his cousin Ms T. (aged 17). 11. The Karmsund District Court (herredsrett), sitting with 2 professional judges and 3 lay judges, held a hearing from 20 October to 19 November 1997, during which 84 witnesses and 5 experts were heard. On 27 November 1997 the District Court convicted the applicant of the charges and sentenced him to 14 years’ imprisonment. Moreover, under Article 3-5 of the Damage Compensation Act 1969, the District Court ordered the applicant to pay NOK 100,000 in compensation to Ms T.’s parents for pain and suffering and additional inconvenience.", "12. The applicant appealed to the Gulating High Court (lagmannsrett), which held a hearing between 4 May and 18 June 1998, during which it took oral evidence from 115 witnesses, 2 of whom were experts appointed by the High Court. Statements by 10 expert witnesses were submitted. Giving its verdict, the jury answered all the questions put to it in the negative. When the jury’s verdict is that the person is not guilty, but the court finds that he is undoubtedly guilty, the court may unanimously decide that the case shall be retried before other judges.", "The professional judges withdrew and deliberated for approximately 50 minutes, before they came back to announce that they accepted the jury’s verdict. The High Court thence acquitted the applicant of the charges. 13. On the following day, after hearing the pleas of counsel for the applicant and for the victim’s parents lasting approximately one hour, but without further evidence being submitted by the parties or taken by the court, the High Court judges unanimously upheld the District Court’ decision to award NOK 100,000 in compensation to Ms T.’s parents. On this point the High Court relied on the following considerations: “It has been established in case-law that in such a serious case as the present one, and where the question of guilt has been decided in favour of the accused, a condition for making an award of compensation for non-pecuniary damages is that it must be clear on the balance of probabilities that the accused has committed the infringements specified in the indictment, see Norsk Retstidende 1996:864.", "Considering the evidence adduced in the case as a whole, the High Court finds it clearly probable that [the applicant] has committed the offences against Ms T. with which he was charged and that an award of compensation to her parents should be made under Article 3-5 (2) of the Damage Compensation Act. With respect to the compensation matter the High Court finds the following circumstances established. On Friday, 5 May 1995 the applicant went to the cinema in Kopervik with some of his friends. Around midnight he was in the centre of town. The same night Ms T. had attended a Christian event at Avaldsnes.", "After this event she hitchhiked to the centre of Kopervik, where she arrived around midnight. She talked to some friends who were in the main street of Kopervik and then left the centre at approximately 12.10 a.m. About the same time [the applicant] left the main street and went for a short while to one of his friend’s house. Thereafter he cycled towards his home. He caught up with his cousin, Ms T., and they continued together. [They] lived about 1 km from one another.", "They took a road called Gamle Sundsveg. This is a short cut to Ms T.’s home, but a detour for [the applicant]. ... When they approached the habitation in Sund they stopped. [The applicant] stroked Ms T.’s breasts.", "She rejected him, kicked his bike, yelled at him and continued on her own. [The applicant] feared that, should Ms T. find his conduct completely unacceptable, it would have disastrous consequences for him when his conduct would be known. He thought about earlier incidents of flashing and obscene behaviour and got scared of the consequences. He charged after her and performed the acts described in the indictment. The High Court considers that his acts had their origin in an explosion of emotion, combined with a sexual attraction to Ms T. According to forensic expert statements, it is established that by the time she was on the road she had already suffered lethal injury.", "It has not been fully ascertained whether she was dead when he dragged her from the road to the bushes in a field. Here he lifted a 23-kg stone and hit her at least twice on the head. There was blood on both sides of the stone. The accused himself stated that he had the evil idea to conceal her face, so she could not tell anyone, by any means, what he had done. He then left the scene, washed himself clean from the blood and earth in [a lake] nearby and then cycled at random towards Kopervik.", "After a while he cycled towards his home and encountered a witness. ... She stated that this was at around 1.45 a.m. A neighbour, who was the owner of the field, found Ms T. the next morning. ... The police were called. An extensive investigation was carried out and [the applicant] was summoned for questioning at an early stage.", "He was considered suspect, particularly because the police had some knowledge about his previous sexual acts, of which one incident had led to a formal complaint. At the end of January 1997 [the applicant] gave a new statement to the police and changed his version as to the time of his arrival at home and his choice of roads from the town centre back home. It was inter alia against this background that [the applicant] was apprehended on 8 February 1997. On 10 February 1997 he was placed in custody with a prohibition on correspondence and visits. At the court hearing he accepted his remand in custody.", "Ten days later [the applicant] delivered to his defence counsel at the time two notes stating that he had killed Ms T. Counsel is thought to have asked the defendant whether he could recall this. He denied it and counsel handed the notes back to [the applicant]. A few days later he confessed and gave detailed information about the course of events and the background. During questioning on 2 March 1997, after having gone through the statements with his counsel, he declared that he was guilty of a crime in accordance with the confession. Approximately one month later the confession was repeated to psychiatric experts.", "After having been transferred to Bergen regional prison, he began to doubt the accuracy of his confession. ... During a police inquiry on 11 August 1997, his counsel gave notice that [the applicant] would not maintain his previous statement.” 14. The applicant sought to appeal against the High Court order that he pay compensation, according to the rules of the Code of Civil Procedure 1915 (tvistemålsloven). Ms T.’s parents and the applicant, represented by their respective counsel, took part in these proceedings, but not the prosecution. On 1 February 1999 the Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) refused the applicant leave to appeal in so far as it concerned the High Court’s assessment of the evidence, but granted leave in so far he was challenging the High Court’s procedure and interpretation of the law.", "15. By a judgment of 24 September 1999 the Supreme Court, by 3 votes to 2, rejected the appeal. 16. The majority, Mr Justice Skogstad, joined by Mrs Justice Gjølstad and Mrs Justice Coward, stated: “Appeal concerning the procedure Apart from the fact that neither the wording of the Code of Criminal Procedure nor the preparatory works suggest that an authorisation to pass judgment on civil claims in spite of a defendant’s acquittal should depend on the reasons for the latter, I cannot find any real grounds to support this proposition. Although it is evident that – in cases like the one at hand – it must be a condition for passing judgment on compensation for non-pecuniary damage that it is clear on the balance of probabilities that the act has been committed [handlingen er begått], the evidentiary standard is not as strict as that applying to a criminal conviction.", "I have problems seeing that in cases where the defendant has been acquitted, because it has not been found proven that the act has been committed [handlingen er begått], should be placed in a somewhat different position than where there are other grounds for acquittal – as for example where the conduct is not punishable, where it has not been established that the defendant acted with the required criminal guilt, where the defendant is not found to be liable under the criminal law, or where there is self-defence or any other ground of exemption from criminal liability. Should it not be permissible to adjudicate civil claims in criminal proceedings in which the defendant has been acquitted because it has not been established that he has committed the act that was the factual basis for the indictment [begått handlingen], the consequence would be that the claim must be brought up in separate civil proceedings. However such a lawsuit is both time consuming and expensive [and] .... the aggrieved party’s possibilities to pursue such claims will depend on his economic situation. I find no attraction in such a solution. I should also point out that if one were to operate a rule whereby an acquittal on the ground that it has not been established that the defendant has committed the act that was the factual basis for the indictment [har begått den handling han er tiltalt for] is treated differently than acquittals on other grounds, it might give rise to difficulties in instances where the case has been tried by a High Court sitting with a jury, as in the present case.", "A verdict of conviction requires that at least seven of the ten jurors have answered ‘yes’ to the question of guilt and, regardless of whether the jury has answered ‘yes’ or ‘no’, no grounds are given for the verdict. In most instances one will have more or less well-founded perceptions, but never total certainty, as to why the jury has answered in the negative. On several occasions the courts have had to deal with the question whether a civil claim can be adjudicated in spite of the defendant having been acquitted in the criminal case. On those occasions, where the question has been submitted to the Supreme Court or the Appeals Selection Committee, it has not been a condition for dealing with the civil claim in connection with the criminal case that the [criminal] court ... has found it established that the defendant has committed the act that was the factual basis for the indictment [har begått den handling tiltalen gjelder]. ...", "In my opinion, in the light of existing legal sources, there cannot be any doubt that, under the Code of Criminal Procedure 1981, it is not a condition for adjudicating a civil claim in connection with criminal proceedings that the court in [the latter] proceedings has found it proven that the defendant has committed the act that was the factual basis for the indictment [har begått den handling saken gjelder]. ... Consequently, no procedural errors were committed when the High Court, in spite of [the applicant’s] acquittal in the criminal proceedings, passed judgment on the civil claim. ... Appeal concerning the application of the law The appellant has based his appeal on law on the argument that it would be contrary to the presumption of innocence in Article 6 § 2 of the Convention if the court, after the defendant has been acquitted in the criminal case, passes judgment for compensation for non-pecuniary damage in the same case. In any event, he submits, it must be contrary to the presumption of innocence to give such reasoning on the compensation matter as done by the High Court. ... [Article 6 § 2] is primarily addressed to judges in criminal proceedings and its main message is that judges shall not prejudge the defendant as having committed the crime of which he is indicted, or that there shall be no prejudgment through statements by public authorities (see Frowein/Peukert: “Europäische Menschenrectskonvention”, “ECHR”, 2. edition (1996) page 280 and following, and Rehof/Trier: Menneskerett – Human Rights (1990), page 164).", "Both according to legal doctrine and the case-law of the Strasbourg institutions, the provision may also have importance after the criminal case has been terminated (see Harris/O’Boyle/Warbrick: “Law of the ECHR” (1995), pages 246-247 with further references to practice). For instance, in the Sekanina v. Austria judgment, the Court stated that if the defendant has been acquitted by a final judgment, the courts might not, in a subsequent case concerning compensation for unjust prosecution, base its judgment on the fact that the accused is guilty. However, how far these points of view go is somewhat uncertain. While it is the accused and the State who are parties to the compensation proceedings regarding unjust prosecution, such proceedings can be seen as a prolongation of the criminal case. In my view, however, the presumption of innocence can hardly apply to civil proceedings between the accused and the person who has been prejudiced or has suffered damage by the act [which was] the factual basis for a criminal charge in respect of which the defendant has been acquitted [en handling som siktede er frifunnet for].", "In any event, it must be evident that Article 6 § 2 of the Convention cannot bar the courts – in a civil case (for example a case for compensation; on dismissal or parental responsibilities) – from establishing facts regarding the course of events in question, even if it should disclose the occurrence of a criminal offence and even if the person against whom the claim is directed has been acquitted of the offence in a preceding criminal case (see, inter alia, Lorenzen/Rehof/Trier: “Den Europæiske Menneskeretskonvention med kommentarer” “The ECHR with comments” (1994), page 199, and Frowein/Peukert, op. cit. page 285). Should the presumption of innocence apply at all to civil proceedings between the aggrieved party and the accused, it must at any rate be a condition for finding a violation of Article 6 § 2 that a decision establishing criminal guilt has been taken. Were the court in a civil case not permitted to base its decision on the fact that the person acquitted of a criminal offence, has in fact committed the act [begått handlingen], the acquittal would deprive the victim, or the person who has suffered damage, of the possibility to obtain a judicial review of claims that he or she might have against the accused.", "This would, in my view, be contrary to the fundamental right to a fair hearing in Article 6 § 1. [The applicant] has argued that a distinction must be made between cases where a civil claim is being reviewed together with the criminal matter and cases where the claim is examined in separate civil proceedings. I do not agree that there is any basis for making such a distinction. The system whereby civil claims may be raised in the criminal case is based upon well-founded considerations of procedural economy and ... can also benefit the defendant. In criminal proceedings the accused is, as a main rule, entitled to defence counsel paid for by the State and, bearing in mind also the thoroughness with which evidence is presented in a criminal trial, the accused, in the event of a civil claim being determined together with the criminal matter, enjoys particular protection against being wrongly judged.", "If the defendant is acquitted in the criminal case but is ordered to pay compensation for non-pecuniary damage, the accused will be left with a feeling of not having been ‘totally acquitted’. But it should not matter to him whether the compensation claim is determined in connection with the criminal proceedings or in ensuing civil proceedings. ... As mentioned above, the presumption of innocence under Article 6 § 2 of the Convention can, in my view, hardly be applied in a civil case between the person acquitted and the aggrieved party. Bearing in mind the nature of this case, I do not, however, find it necessary to take a definite stance on this question, the High Court did not in my view base its decision in the compensation claim on a finding of criminal guilt, which under any circumstance must be a condition for a violation of Article 6 § 2. ...", "The appellant has pleaded that the courts in practice will have difficulties in applying different evidentiary standards to criminal conviction and compensation. Moreover, he has submitted that when, as in this case, it is a requirement for making an award of compensation for non-pecuniary damage that it is clear on the balance of probabilities that the the accused has committed the act [begått handlingen], the evidentiary requirement is so close to that applying to a criminal conviction that this in itself contributes to casting a suspicion of criminal liability. I have difficulties in understanding these arguments. The fact that the evidentiary requirements are different in various relations is nothing special for cases such as the present one. ... [I]t is based on the general view that a qualified probability is required in order for the court to ground its decision on a fact that is strongly incriminating ...", "The fact that a stricter standard of proof applies in order to protect the interests of the defendant cannot entail a breach of the Convention.” 17. The minority of the court, Mr Justice Flock joined by Mr Chief Justice Smith in the main reasoning and the conclusion, expressed the following opinion: “I am ... of a different opinion as to the main issue in the case. In my view, the appeal on procedure ... should be upheld. When a court primarily has found that the defendant was not the perpetrator of ‘the act with which the case is concerned’, the court may not, in my opinion, in the same judgment order the defendant to pay compensation for non-pecuniary damage on the ground that he nevertheless has performed the same ‘act’. Under the 1981 Code of Criminal Procedure – as noted by the first voting Justice – it was authorised to pass judgment on civil claims even though the defendant had been acquitted of the criminal act.", "...The former [limitation in this respect] was repealed. However, in my view, the far reaching application of the new rule made by the High Court in this case does not necessarily follow from the statute or from former Supreme Court rulings. Besides, it would be more consistent with the presumption of innocence under Article 6 § 2 of the Convention, now incorporated into Norwegian law, if the court did not both brand the defendant as the perpetrator of the act under civil law and acquit him of criminal liability in the same judgment. Against this background, the best solution would be to interpret the possibility – and the corresponding duty for the courts – under the statute to adjudicate civil claims in the criminal case with the qualification that the most extreme consequences should be avoided. Below I shall deal with each of the reasons for my position.", "When the 1981 Code improved the possibilities of the aggrieved party to have civil claims determined in connection with the criminal proceedings, some instances were mentioned in the preparatory work of claims that could be adjudicated even though the defendant had been acquitted. This was, inter alia, where the purpose, intent or gross negligence required by the Penal Code had not been proved but where it had been shown that the defendant had displayed sufficient negligence to be held liable to pay compensation. However, the preparatory works did not include ... those instances where the defendant had been acquitted because it had not been established that he or she had performed the act as cited in the indictment. This would be the most frequent reason for acquittal in, for example, cases of aggravated sexual assault against minors ... and where compensation for non-pecuniary damage is a recurrent issue. Special questions arise in this kind of acquittal.", "A conviction and an order to pay compensation are not only different legal consequences based on different aspects of the case, but also, in the same case and on the same evidence, the court assesses the evidence twice with the possibility of reaching different results. Legally, this would be justified by the fact that the evidentiary requirements for criminal conviction are stricter than those with respect to an order to pay compensation for non-pecuniary damage. However, this situation is so special – and was excluded under the former legislation – that one would expect that the subject be discussed, or at least be explicitly mentioned, in the preparatory works. As this was not the case, it can be deduced that the legislators probably did not have such cases in mind, or at least did not regard them as essential when the rules were amended in 1981. It is undoubtedly correct that the Supreme Court – and other courts in our country – in certain rulings have noted that an award can be made for pecuniary and non-pecuniary damage even if the defendant has been acquitted in the same case.", "... However, ... I can hardly see ... that there is such an established case-law in this area as to prevent certain limitations being made in the interpretation of the law. As regards the presumption of innocence in Article 6 § 2 of the Convention, it is somewhat uncertain how far this requirement extends in Norwegian law. ...", "When taking a decision in the present case, one is faced with the need to strike a balance between, on the one hand, the accused’s interests and, on the other hand, those of the victim and his or her closest relatives. It is important to take into account the fact that the 1981 revision was intended to strengthen the victim’s position. However, I find that an acquittal for having committed the incriminated act – and in particular an act of murder – must clearly appear from the judgment. This is such a prominent consideration that it should in my view be predominant in the interpretation of the law. ...", "In following this reasoning, some issues of delimitation will arise as to when the court should abstain from determining civil claims together with an acquittal. The limitation, that is implied in my opinion, on the possibility to adjudicate such claims is inter alia that it must be ascertainable that the acquittal is based on a finding that there is insufficient evidence to show that the accused committed the offence of which he/she was charged. This might be a problem in all cases before the High Court where the question of guilt is decided by a jury, without a reasoned verdict.” II. RELEVANT DOMESTIC LAW AND PRACTICE 18. Under Norwegian criminal law there are four basic conditions that must be met in order to establish criminal liability: (1) the accused has committed the proscribed act or omission (actus reus) which is contrary to a provision of the Penal Code or to a special statutory penal provision in force at the time when the act was committed; (2) there are no exonerating circumstances (e.g.", "self-defence); (3) the accused has acted with intent (mens rea), unless otherwise expressly stated in the relevant penal provision; and (4) the accused was of sound mind at the time of the commission of the offence. 19. As a general rule, the prosecution has to prove these four elements beyond reasonable doubt. Any reasonable doubt shall benefit the accused (in dubio pro reo). 20.", "Under the Norwegian jury system, when an accused is acquitted the jury is not entitled to disclose whether any of its members held a different opinion, and no records are kept which could disclose that a negative answer as to the applicant’s guilt was not unanimous. The criminal system knows only two conclusions in a criminal case—guilt or acquittal (see Articles 365, 366, 372 and 373 of the Code of Criminal Procedure). There is no third alternative, which was known in some other European countries, where a criminal charge could result in the finding that there was not sufficient evidence for establishing guilt. 21. In so far as is relevant, Article 376A of the Code of Criminal Procedure reads: “If the jury’s verdict is that the person is not guilty, but the court finds that he is undoubtedly guilty, the court may unanimously decide that the case shall be retried before other judges.", "At the new trial the High Court shall be constituted as a composite court (meddomsrett)...” Composed of three new judges and four lay judges, the “composite court” examines the case afresh. In contrast to a trial court sitting with a jury, it gives reasons not only for its decision on civil liability to pay compensation, but also with regard to criminal liability. 22. Article 376 of the same Code provides: “If the jury’s verdict is that the accused is not guilty and if the court does not take a decision pursuant to Article 376A, it shall render a judgement of acquittal.” No reasons are given for an acquittal. Regardless of whether the accused has been acquitted or is convicted, the High Court is to determine any civil claim made in the criminal proceedings, for instance claims for compensation, without the participation of any members of the jury.", "That is, civil claims are decided exclusively by the three professional judges who have taken part in the criminal case. The court will determine the claim on the basis of the evidence adduced during the trial but may receive or order the submission of further evidence if necessary. Evidence already produced in the criminal case but relevant to the compensation issue will not be heard again. Reasons are given for the judges’ decision on compensation. 23.", "Under the Code of Criminal Procedure 1981, a civil claim may be pursued in connection with a criminal trial, provided that the claim arises from the same set of facts. Consequently, the civil claim of a victim may be decided either in connection with a criminal case or in separate proceedings. Article 3 reads: “Any legal claim that the aggrieved person or any other injured person has against the person charged may, in accordance with the provisions of chapter 29, be pursued in connection with such cases as are mentioned in Article 1 or Article 2, provided that the said claim arises from the same act that the case is concerned with. On the said conditions the following claims may also be pursued: The claims specified in the first and second paragraphs are deemed to be civil claims and shall be dealt with in accordance with the provisions of chapter 29...”. Other provisions concerning civil compensation claims may be found in Chapter 29 of the Code of Criminal Procedure, notably the following: “§ 427.", "In a public case the prosecuting authority may on application pursue such civil legal claims as are specified in Article 3. ... When civil legal claims are pursued against a person other than the person charged, the person concerned assumes the position of a party to the case in so far as this issue is concerned. ... § 428. Any person who has any such civil legal claim as is specified in Article 3 may himself pursue it in connection with a public case if a main hearing is held.", "... § 435. A separate appeal against the decision of civil legal claims shall be brought according to the provisions of the Civil Procedure Act. The same applies to a reopening of the case.” 24. Under the Damage Compensation Act 1969, the purported victim may, regardless of the outcome of the criminal proceedings, claim compensation for pecuniary and non-pecuniary damage. Article 3-5, as in force at the relevant time, read as follows: “Anyone who, with intent or gross negligence has a.", "Caused personal injury or b. Committed ... an act of misconduct as mentioned in Article 3‑3, may ... be obliged to pay the victim such a lump sum as the court deems would constitute reasonable compensation (oppreisning) for the pain and suffering and other non-pecuniary damage caused thereby. ... A person who with intent or gross negligence has caused the death of another person, may be ordered to pay such compensation to the deceased’s ... parents.” Article 3-3, referred to in the above provision, expressly applies to misconduct mentioned in, amongst others, Article 193 of the Penal Code. A claim for compensation for non‑pecuniary damage submitted by a victim under Article 3-5 of the Act, is subject to his or her showing that the alleged perpetrator, with intent or gross negligence, committed the wrongful act. The test is normally the balance of probabilities and the burden of proof lies with the claimant.", "This burden may be heavier where liability may have serious consequences for the respondent’s reputation, though it will be less than for criminal liability. The competent court has to determine liability in the light of all the evidence available at the time of the adjudication of the case. 25. The objective constitutive elements of acts which may give rise to both criminal liability and civil liability to pay compensation are not always the same. The subjective constitutive elements in principle differ: normally criminal liability requires intent whereas liability to pay compensation requires gross or simple negligence.", "There may be exonerating circumstances – such as self-defence, necessity, provocation or ignorance – which exclude criminal liability but which do not exclude liability to pay compensation. A person of unsound mind may be exempted from criminal liability but not necessarily from civil liability to pay compensation (see Norges Offentlige Utredninger (Official Norwegian Report) 2000:33 “Erstatning til ofrene hvor tiltalte frifinnes for straff” (Compensation to Victims in Cases where the Accused has been Acquitted of the Criminal Charge), study by Mr J. T. Johnsen, Professor of Law, Chapter 1, sub-chapter 1.3.2). The purposes of the criminal law and the law on compensation are not identical. While deterrence and restoration are important considerations in both areas of law, the former places emphasis on retribution and the latter on the spreading of financial loss. The two systems also supplement one another in important respects.", "While criminal law sanctions are particularly designed to deter the actual and potential offenders from committing offences, those of the law of compensation are particularly designed to meet the aggrieved person’s need for economic redress (ibidem, Chapter 1, sub-chapter 1.2.1). AS TO THE LAW I. ADMISSIBILITY OF THE APPLICATION 26. The Government requested the Court to declare the application inadmissible as being manifestly ill-founded. 27. The Court, however, finds that the applicant’s complaint under Article 6 § 2 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "No other grounds for declaring it inadmissible have been established. It follows that the application is admissible. II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 28. The applicant complains that the Supreme Court’s judgment of 24 September 1999, upholding the High Court’s decision to award compensation to Ms T.’s parents, entailed a violation of his right under Article 6 § 2 of the Convention to be presumed innocent until proven guilty of the commission of an offence.", "29. Article 6 § 2 of the Convention provides as follows: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” 30. The Government contested this allegation and requested the Court to hold that this provision was not applicable and had not been violated in the instant case. A. Submissions of those appearing before the Court 1. The applicant 31.", "The applicant maintained that, during the compensation case following his acquittal, he was still “charged with a criminal offence”, at the least within the autonomous sense of Article 6 § 2. Invoking the Court’s interpretation of this expression, he submitted that, under domestic law, he was formally considered as charged until the acquittal gained legal force. Moreover, an award of compensation for non-pecuniary damages had a punitive purpose, was deliberately used to express the community’s disapproval of the act concerned and signalled that the wrong committed ought to be righted. This was apparent from the compensation award which undoubtedly served to weaken the applicant’s earlier acquittal. 32.", "The applicant invited the Court to assimilate his case to that of Sekanina v. Austria (judgment of 25 August 1993, Series A no. 266-A), in which it attached primary weight to the degree of linkage between the criminal proceedings and the compensation case in its finding that Article 6 § 2 was applicable to the latter. In the applicant’s case, the criminal charges and the compensation claim made against him had been pursued in joint proceedings before the same court, in accordance with Article 3 of the Code of Criminal Procedure. The accused’s acquittal and the ruling on compensation were stated in the same court record. The oral pleadings on compensation took place the day after the acquittal, virtually as an extension of the criminal proceedings.", "Since no new evidence was adduced, the compensation issue was determined on the basis of the same evidence as that submitted in the criminal trial. The applicant’s appeal against the High Court’s assessment of the evidence was refused by the Supreme Court. Thus, in several respects, this case was even stronger than Sekanina, where the compensation matter was adjudicated long after the acquittal and by a court other than the trial court. Furthermore, in determining under the law on compensation whether the applicant had committed the criminal act of which he had previously been acquitted, the High Court was called upon to establish a form of guilt. Its assessment amounted to a finding of a penal nature, in violation of the presumption of innocence.", "Only the applicable evidentiary standard had differed from that applicable to criminal liability, but that was merely theoretical. All other relevant criteria were the same as for criminal liability. 33. In these circumstances, the applicant submitted, the compensation matter was so closely linked to the criminal proceedings as to attract the application of Article 6 § 2, which provision had been violated. 34.", "The applicant refuted the Government’s contention that the right of access to court of the victim under Article 6 § 1 militated against the applicability of Article 6 § 2 to his case. That right was not absolute but could be subject to limitations. In addition, the fact that the aggrieved party receive the assistance of the public prosecutor, backed by the entire State apparatus with regard to measures of investigation, could adversely affect the defendant’s right to “equality of arms” in a manner incompatible with Article 6 § 1. 2. The Government 35.", "The Government disputed the applicant’s contention that he was “charged with a criminal offence” in the civil compensation proceedings. They moreover requested the Court to distinguish this case from the above-mentioned Sekanina judgment, as well as its judgments in Rushiti v. Austria (no. 28389/95, 21.3.2000) and Lamanna v. Austria (no. 28923/95, 10.7.2001), and to hold that Article 6 § 2 was inapplicable and not violated. While the Prosecution had acted as a defendant party in those cases, the present case had involved other types of litigants.", "The Prosecution had acted neither as a party nor as a representative of the victim’s parents or the applicant, but was discharged upon the completion of the criminal trial. The ensuing compensation round only involved counsel for the victim’s parents and for the applicant – two private civil parties. Moreover, there was no link between the outcome of the criminal proceedings and the compensation case, the right of the victim’s parents to claim compensation being entirely independent of the criminal case. On essential points the legal basis and the legal issues in the civil compensation proceedings differed from those in the criminal case. Thus the criteria for civil and criminal liability differed, as did the applicable evidentiary standards.", "Above all, the compensation case did not involve an assessment of the applicant’s criminal guilt. 36. The fact that the issues of criminal liability and compensation were adjudicated in joint proceedings could not be decisive for the applicability of Article 6 § 2. The right of a victim to claim compensation was entirely independent of the criminal charges and could just as well be brought in separate proceedings. Joint proceedings were only an option, and a victim’s choice in this respect should have no bearing on the applicability of this provision.", "The system of joint proceedings was based upon well-founded considerations of cost-efficiency and speediness, and was advantageous to both parties. 37. In the Government’s view, the application of Article 6 § 2 in such matters would run counter to its wording and to the intentions of States upon ratification of the Convention. A fine – but absolutely essential – line had to be drawn between criminal and civil responsibility. The Convention principle of the presumption of innocence could not bar judicial or other authorities acting in civil matters from addressing the question whether the acquitted person had perpetrated the act that formed the basis for the criminal charge against him.", "It would be unacceptable if an acquittal in a criminal case should be binding upon any authority that subsequently was called upon to decide civil-law matters arising from the same set of facts. While a court would of course be bound by a finding that criminal responsibility had not been established, it should be free to establish the civil consequences flowing from the same set of facts. An acquittal could not have as its consequence that subsequent decisions in civil matters must take as its premise that the acquitted person did not perpetrate the act, if it was shown on the balance of probabilities that he or she nevertheless was the perpetrator. Such a view would indeed give rise to serious questions under the Convention itself, namely the right under Article 6 § 1 of access to a court of, inter alia, a victim claiming compensation under the civil law of tort. 38.", "In the light of the above, the Government requested the Court to hold that Article 6 § 2 was not applicable and was not violated in the applicant’s case. B. The Court’s assessment 39. The Court reiterates that the concept of a “criminal charge” in Article 6 is an autonomous one. According to its established case-law 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, namely the classification of the proceedings under national law, their essential nature and the type and severity of the penalty that the applicant risked incurring (see Phillips v. the United Kingdom, no.", "41087/98, § 31; A.P., M.P. and T.P. v. Switzerland, judgment of 29 August 1997, Reports of Judgments and Decisions 1997-V, § 39). Moreover, the scope of Article 6 § 2 is not limited to criminal proceedings that are pending (see Allenet de Ribemont v. France, judgment of 10 February 1995, Series A no. 308, p. 16, § 35).", "In certain instances, the Court has also found the provision applicable to judicial decisions taken after the discontinuation of such proceedings (see in particular the following judgments: Minelli v. Switzerland, 25 March 1983, Series A no. 62, and Lutz, Englert and Nölkenbockhoff v. Germany, 25 August 1987, Series A no. 123), or following an acquittal (see the above-mentioned Sekanina, Rushiti and Lamanna judgments). Those judgments concerned proceedings related to such matters as an accused’s obligation to bear court costs and prosecution expenses, a claim for reimbursement of his (or his heirs’) necessary costs, or compensation for detention on remand, and which were found to constitute a consequence and the concomitant of the criminal proceedings. Accordingly, the Court will examine whether the compensation proceedings in the present case gave rise to a “criminal charge” against the applicant and, in the event that this was not the case, whether the compensation case nevertheless was linked to the criminal trial in such a way as to fall within the scope of Article 6 § 2.", "40. Turning to the first of the above-mentioned criteria, the classification of the proceedings under national law, the Court notes the applicant’s argument that, formally speaking, he remained “charged” until the acquittal gained legal force. However, this concerned only the initial criminal charges of which he was acquitted; it was of no relevance to the compensation claim. The Court notes that the latter had its legal basis in Chapter 3 of the Damage Compensation Act 1969, which sets out the general principles of the national law on torts applicable to personal injuries. It is clear from both the wording of Article 3-5 and Norwegian case-law that criminal liability is not a prerequisite for liability to pay compensation.", "Even where, as here, the victim had opted for joining the compensation claim to the criminal trial, pursuant to Article 3 of the Code of Criminal Procedure, the claim would still be considered a “civil” one. This also transpires from the Supreme Court’s judgment in the applicant’s case, which described the claim as “civil”. Thus, the Court finds that the compensation claim in issue was not viewed as a “criminal charge” under the relevant national law. 41. As regard the second and third criteria, the nature of the proceedings and the type and severity of the “penalty” (i.e.", "in the instant case the allegedly punitive award of compensation), the Court observes that, while the conditions for civil liability could in certain respects overlap, depending on the circumstances, with those for criminal liability, the civil claim was nevertheless to be determined on the basis of the principles that were proper to the civil law of tort. The outcome of the criminal proceedings was not decisive for the compensation case. The victim had a right to claim compensation regardless of whether the defendant was convicted or, as here, acquitted, and the compensation issue was to be the subject of a separate legal assessment based on criteria and evidentiary standards which in several important respects differed from those applicable to criminal liability. In the view of the Court, the fact that an act which may give rise to a civil compensation claim under the law of tort is also covered by the objective constitutive elements of a criminal offence could not, notwithstanding its gravity, provide a sufficient ground for regarding the person allegedly responsible for the act in the context of a tort case as being “charged with a criminal offence”. Nor could the fact that evidence from the criminal trial is used to determine civil law consequences of the act warrant such characterisation.", "Otherwise, as rightly pointed out by the Government, Article 6 § 2 would give a criminal acquittal the undesirable effect of pre-empting the victim’s possibilities of claiming compensation under the civil law of tort, entailing an arbitrary and disproportionate limitation on his or her right of access to court under Article 6 § 1 of the Convention. This again could give an acquitted perpetrator, who would be deemed responsible according the civil burden of proof, the undue advantage of avoiding any responsibility for his or her actions. Such an extensive interpretation would not be supported either by the wording of Article 6 § 2 or any common ground in the national legal systems within the Convention community. On the contrary, in a significant number of Contracting States, an acquittal does not preclude establishing civil liability in relation to the same facts. Thus, the Court considers that, while the acquittal from criminal liability ought to be maintained in the compensation proceedings, it should not preclude the establishment of civil liability to pay compensation arising out of the same facts on the basis of a less strict burden of proof (see, mutatis mutandis, X v. Austria, no.", "9295/81, Commission decision of 6 October 1992, Decisions and Reports (D.R.) 30, p. 227; M.C. v. the United Kingdom, no. 11882/85, decision of 7 October 1987, D.R. 54, p. 162).", "42. However, if the national decision on compensation contains a statement imputing the criminal liability of the respondent party, this could raise an issue falling within the ambit of Article 6 § 2 of the Convention. 43. The Court will therefore examine the question whether the domestic courts acted in such a way or used such language in their reasoning as to create a clear link between the criminal case and the ensuing compensation proceedings as to justify extending the scope of the application of Article 6 § 2 to the latter. 44.", "The Court notes that the High Court opened its judgment with the following finding (paragraph 13 above): “Considering the evidence adduced in the case as a whole, the High Court finds it clearly probable that [the applicant] has committed the offences against Ms T. with which he was charged and that an award of compensation to her parents should be made under Article 3-5 (2) of the Damage Compensation Act. ...” (emphasis added) 45. This judgment was upheld by the majority of the Supreme Court (paragraph 16 above), albeit using more careful language. However, that judgment, by not quashing the former, did not rectify the issue, which in the Court’s opinion, thereby arises. 46.", "The Court is mindful of the fact that the domestic courts took note that the applicant had been acquitted of the criminal charges. However, in seeking to protect the legitimate interests of the purported victim, the Court considers that the language employed by the High Court, upheld by the Supreme Court, overstepped the bounds of the civil forum, thereby casting doubt on the correctness of that acquittal. Accordingly, there was a sufficient link to the earlier criminal proceedings which was incompatible with the presumption of innocence. 47. In the light of these considerations, the Court concludes that Article 6 § 2 was applicable to the proceedings relating to the compensation claim against the present applicant and that this provision was violated in the instant case.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 48. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 49. The applicant’s claims for just satisfaction and costs have been confused and contradictory, but it appears from his final words at the hearing before the Court that the applicant withdrew his original claim for pecuniary damage, whilst maintaining his claims for non-pecuniary damages and costs, to be assessed at the Court’s discretion. 50.", "The Government objected to any damages being awarded, the finding of a violation, in their view, being in itself sufficient just satisfaction. They had no comment on the costs issue. A. Damage 51. The Court accepts that the applicant suffered some non-pecuniary damage as a result of the infringement of the presumption of innocence in the present case.", "Making an assessment on an equitable basis, the Court awards 20,000 euros (“EUR”) under this head. B. Costs and expenses 52. The Court notes that the applicant claimed translation costs in the sum of 26,000 NOK, plus various expenses incurred in attending the Strasbourg hearing, totalling, according to bills submitted, EUR 950. The Court, deciding on an equitable basis, awards the applicant EUR 4500.", "C. Default interest 53. The Court considers that the default interest should be fixed at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares that the applicant’s complaint under Article 6 § 2 of the Convention is admissible; 2. Holds that Article 6 § 2 was applicable to the disputed compensation proceedings; 3.", "Holds that Article 6 § 2 has been violated; 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 sums: (i) EUR 20,000 (twenty thousand euros) in compensation for non-pecuniary damage; (ii) EUR 4,500 (four thousand five hundred euros) in respect of costs and expenses; (iii) that these sums be converted into the national currency of the respondent State, at the rate applicable at the date of settlement; (b) that simple interest at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points shall be payable from the expiry of the above-mentioned three months until settlement; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 11 February 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléJ.-P. CostaRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Mrs H.S.", "Greve is annexed to this judgment. J.-P.C.*.S.D. CONCURRING OPINION OF JUDGE GREVE Norwegian not being an official language of the Court, the present case, like perhaps most cases originating in legal decisions delivered in languages other than English or French, gives rise to particularly challenging linguistic problems. This is all the more so where the European Court of Human Rights is called upon to examine the fine nuances of the legal language used in the original decisions and where translation is less a matter of word-by-word translation than of understanding the meaning of the expressions used. It has to be appreciated that the Court does not have any professional assistance in translating official languages of a High Contracting Party other than English into French or French into English (English and French, being the Court’s official languages, are translated by professional linguists into the other official language).", "Texts such as judgments of national courts written in an official language of a High Contracting Party (other than English and French) are translated into the Court’s official languages within the Court without any professional linguistic assistance. This raises a general problem concerning the accuracy of the basic documents on which the Court relies when deciding whether Convention rights have been violated in a specific case. It is not unusual for expressions used in the national authorities’ decisions to play an important role in the Court’s decision-making. In the present case the issue is whether the Norwegian courts implied that the applicant was criminally liable when they examined the compensation case. In my opinion, there is a clear violation of the principle of presumption of innocence as a result of the language used by the High Court in its decision and the fact that the Supreme Court did not quash that decision.", "In contradistinction to the language used by the High Court, the Supreme Court distinguished carefully between the reasoning specific to a criminal case and that specific to a compensation case. In a criminal case there are two main issues to be decided. Firstly, there is the question whether the defendant acted as set out in the definition of the criminal act in the indictment – the actus reus issue. Secondly, there are the questions relating to the defendant’s personal guilt – the mens rea issue. Quite apart from those two issues, there are further considerations relating to the defendant’s age, soundness of mind and whether, for example, he acted in self-defence or out of necessity such that he may be exempt from criminal liability.", "Only when all those elements are in place – the actus reus, the mens rea and the absence of circumstances exempting the defendant from criminal liability – will criminal responsibility be established. The core of the Supreme Court’s reasoning, as endorsed by this Court, is that an affirmative decision on the actus reus issue in a criminal case is not a necessary precondition for determining the issue of civil liability in a compensation case. In other words, in both contexts a central issue will be whether or not (i) the defendant in the criminal case, and (ii) the party sued in the civil case, acted (i) as set out in the definition of the criminal act in the indictment, and (ii) in a manner that gave rise to civil liability. The act scrutinised could be identical in both types of cases. In the present case consideration was given to translating all of the domestic courts’ discussion of whether a person acted in a specific manner by whether the person “committed the offence”.", "Such a translation would have failed to reflect accurately the kinds of consideration expressed by the Norwegian courts. By way of compromise, the Court has replaced the word “offence” with “act” wherever it is plain that the Norwegian courts focused solely on whether the person did act in a specific manner. Furthermore, the Court has used the expression “commit the act” as having a neutral connotation, that is to say neither a criminal nor a civil one. For the benefit of readers able to follow the nuances of the Norwegian Supreme Court’s reasoning, the latter (in so far as the majority’s reasoning has been included in our Court’s judgment; cf. paragraph 16) is set out in extenso below.", "It reads as follows: “Saksbehandlingsanken ... I tillegg til at det verken av ordlyden eller av forarbeidene til straffeprosessloven kan utledes noe om at adgangen til å pådømme borgerlige rettskrav til tross for at tiltalte er frifunnet for straff, skal være avhengig av frifinnelsesgrunnen, kan jeg ikke se at det er noen reelle grunner som taler for dette. Selv om det for at det i tilfeller som det foreliggende skal kunne avsies dom for oppreisning, må stilles krav om klar sannsynlighetsovervekt for at handlingen er begått, er beviskravene ikke riktig så strenge som for å avsi en fellende straffedom. Jeg har vanskelig for å se at det skal være noen grunn til at tilfeller hvor tiltalte er blitt frifunnet fordi det ikke finnes bevist at handlingen er begått, skal komme i en noe annen stilling enn andre frifinnelsesgrunner – som f.eks. at handlingen ikke er straffbar, at det ikke finnes bevist at tiltalte har handlet med den strafferettslige skyld som kreves, at tiltalte finnes å være strafferettslig utilregnelig, at det foreligger nødverge eller en annen straffrihetsgrunn m.v.", "Dersom det i tilfeller hvor tiltalte er frifunnet fordi det ikke er funnet bevist at han har begått den handling han er tiltalt for, ikke skal være adgang til å pådømme borgerlige rettskrav i straffesaken, vil konsekvensen av det være at kravet må forfølges i en separat sivil sak. Men å føre en separat sivil sak koster både tid og penger. [Hvis borgerlige rettskrav etter at tiltalte er blitt frifunnet for straff fordi det ikke er funnet bevist at han har begått handlingen, bare skal kunne forfølges i en separat sivil sak,] vil fornærmedes muligheter til å forfølge slike krav være avhengig av hvilke økonomiske ressurser han råder over. En slik løsning finner jeg lite tiltalende. Jeg påpeker også at om man skal ha en regel som stiller frifinnelse fordi det ikke finnes bevist at tiltalte har begått den handling han er tiltalt for, i en annen stilling enn andre frifinnelsesgrunner, vil det kunne by på problemer å anvende regelen i tilfeller hvor saken har vært behandlet av lagmannsretten med lagrette – slik tilfellet er i vår sak.", "For at kjennelsen skal være fellende må minst sju av lagrettens 10 medlemmer ha svart ja på skyldspørsmålet, og uten hensyn til om lagretten svarer ja eller nei, er kjennelsen uten begrunnelse. Som oftest vil man nok kunne ha mer eller mindre velfunderte oppfatninger om hva som er grunnen til at lagretten har svart nei, men full sikkerhet vil man aldri ha. Spørsmålet om borgerlige rettskrav kan pådømmes til tross for at tiltalte er frifunnet for straff, har flere ganger tidligere vært forelagt for domstolene. De ganger spørsmålet tidligere har vært forelagt for Høyesterett eller Høyesteretts kjæremålsutvalg, har det vært lagt til grunn at det ikke er noe vilkår for at borgerlige rettskrav skal kunne pådømmes i forbindelse med straffesaken, at retten ved avgjørelsen av straffesaken har funnet det bevist at tiltalte har begått den handling tiltalen gjelder. ... Etter mitt syn kan det på grunnlag av det rettskildemateriale som foreligger, ikke være tvilsomt at det etter straffeprosessloven av 1981 ikke kan oppstilles som noe vilkår for at borgerlige rettskrav skal kunne pådømmes i forbindelse med behandling av straffesaker, at retten [ved avgjørelsen av straffesaken] har funnet det bevist at tiltalte har begått den handling saken gjelder.", "... Etter dette foreligger det ikke noen saksbehandlingsfeil når lagmannsretten har pådømt oppreisningskravet til tross for at [klageren] er frifunnet for straff. ... Anken over rettsanvendelsen [Klageren] har begrunnet anken over rettsanvendelsen med at det er i strid med uskyldspresumsjonen i EMK artikkel 6 nr. 2 om retten etter at tiltalte er frifunnet for straff, i samme sak avsier dom for oppreisning, og at det under enhver omstendighet må være i strid med uskyldspresumsjonen å begrunne en dom for oppreisning på den måte lagmannsretten har gjort. ... [Artikkel 6 nr. 2] henvender seg i første rekke til dommere i straffesaker, og hovedbudskapet i bestemmelsen er at dommerne ikke skal ha en forutinntatt oppfatning om at den siktede har begått den lovovertredelsen han er tiltalt for, eller gjennom uttalelser fra offentlige myndigheter søkes påvirket til dette, se Frowein/Peukert: Europäische Menschenrechtskonvention, 2.", "Auflage (1996), side 280 ff. og Rehof/Trier: Menneskerett (1990), side 164. Både i teori og praksis fra Strasbourgorganene er det imidlertid lagt til grunn at bestemmelsen også kan få betydning etter at straffesaken er avsluttet, se Harris/O’Boyle/Warbrick: Law of the European Convention on Human Rights (1995), side 246-247 med nærmere henvisninger til praksis. I dom av 25. august 1993 i saken Sekanina mot Østerrike har f.eks. Den europeiske menneskerettighetsdomstol lagt til grunn at dersom siktede er frifunnet ved rettskraftig dom, kan domstolene i en etterfølgende sak om erstatning for uberettiget forfølgning ikke bygge på at tiltalte er skyldig.", "Men hvor langt dette synspunktet rekker, kan være noe usikkert. Saker om erstatning for uberettiget forfølgning går mellom siktede og staten, og slike saker fremstår som en forlengelse av straffesaken. Etter min oppfatning kan uskyldspresumsjonen derimot neppe komme til anvendelse i en sivil sak mellom siktede og den som måtte være krenket eller ha lidt skade ved en handling som siktede er frifunnet for. Det må i alle fall være på det rene at EMK artikkel 6 nr. 2 ikke kan avskjære domstolene fra i en sivil sak – f.eks.", "en erstatningssak, sak om oppsigelse eller avskjed eller sak om foreldreansvar – å ta stilling til et faktisk hendelsesforløp, selv om dette i og for seg skulle utgjøre en straffbar handling, og den som kravet er rettet mot, er frifunnet for forholdet i en tidligere straffesak, se blant annet Lorenzen/Rehof/Trier: Den Europæiske Menneskeretskonvention med kommentarer (1994), side 199 og Frowein/Peukert, op. cit. side 285. Om uskyldspresumsjonen overhodet får anvendelse i en sivil sak mellom skadelidte og siktede, må det under enhver omstendighet være en forutsetning for at EMK artikkel 6 nr. 2 skal være krenket, at det blir foretatt en strafferettslig skyldkonstatering.", "Dersom domstolene i en sivil sak ikke skulle ha adgang til å legge til grunn at den som er frifunnet for en straffbar handling, har begått handlingen, ville frifinnelsen frata den som måtte være krenket eller ha lidt skade ved handlingen, muligheten til å få prøvd krav som vedkommende måtte ha mot tiltalte. Dette ville etter mitt syn støte an mot den grunnleggende bestemmelse om rett til rettferdig rettergang i artikkel 6 nr. 1. Fra [klagerens] side har det vært hevdet at det må skilles mellom tilfeller hvor borgerlige rettskrav blir behandlet sammen med straffesaken, og tilfeller hvor kravet blir behandlet i en etterfølgende sivil sak. Jeg kan vanskelig se at det kan være grunnlag for et slikt skille.", "Ordningen med at borgerlige rettskrav skal kunne tas med i straffesaken, har gode prosessøkonomiske grunner for seg, og [som ankemotpartene har påpekt,] kan også tiltalte ha fordeler av ordningen. I straffesaker har tiltalte som hovedregel krav på forsvarer på det offentliges bekostning, og med den grundige bevisførsel som finner sted i straffesaker, har tiltalte i tilfeller hvor det borgerlige kravet blir behandlet sammen med straffesaken, en særlig beskyttelse mot å bli uriktig dømt. Dersom tiltalte blir frifunnet for straff, men idømt erstatning, vil det for tiltaltes følelse av ikke å være blitt “frifunnet helt”, ikke kunne spille noen rolle om erstatningskravet blir pådømt i forbindelse med straffesaken, eller i en etterfølgende sivil sak. ... Som nevnt kan uskyldspresumsjonen i EMK artikkel 6 nr. 2 etter min oppfatning neppe få anvendelse i en sivil sak mellom den som er blitt frifunnet for en straffbar handling, og skadelidte.", "Slik denne saken ligger an, finner jeg det imidlertid ikke nødvendig å ta endelig stilling til dette, da lagmannsretten ved pådømmelsen av oppreisningskravet etter mitt syn ikke har foretatt en slik strafferettslig skyldkonstatering som under enhver omstendighet må være en forutsetning for at det kan foreligge en krenkelse av EMK artikkel 6 nr. 2. ... [Klageren] har anført at domstolene i praksis vil ha vanskelig for å håndtere forskellige beviskrav for straff og erstatning, og at når det for oppreisningskrav i tilfeller som det foreliggende blir stilt krav om at det må foreligge klar sannsynlighetsovervekt for at handlingen er begått, vil beviskravene ligge så nært opp til det som kreves for en fellende straffedom, at dette i seg selv bidrar til å kaste mistanke om at det foreligger straffeskyld. Disse argumentene har jeg vanskelig for å forstå. Det at beviskravene er forskjellige i ulike relasjoner, er ikke noe særegent for denne type saker.", "[Når det for pådømmelse av oppreisningskrav i tilfeller hvor tiltalte er frifunnet for straff, blir stilt krav om klar sannsynlightsovervekt for at tiltalte har begått handlingen, er det] ut fra et generelt synspunkt om at det må stilles krav om kvalifisert sannsynlighetsovervekt for at retten skal kunne legge til grunn at det foreligger et sterkt belastende faktum ... Det at det i slike tilfeller av hensyn til den som kravet er rettet mot, stilles skjerpede beviskrav, kan ikke innebære noen krenkelse av EMK.”" ]
[ "FOURTH SECTION CASE OF BURCEA AND OTHERS v. ROMANIA (Application no. 15557/15 and 10 others - see appended list) JUDGMENT STRASBOURG 26 July 2018 This judgment is final but it may be subject to editorial revision. In the case of Burcea and Others v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Vincent A. De Gaetano, President,Georges Ravarani,Marko Bošnjak, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 5 July 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.", "2. The applications were communicated to the Romanian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4.", "The applicants complained of the inadequate conditions of their detention. In application no. 16249/16, the applicant also raised another complaint under Article 3 of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 6. The applicants complained principally of the inadequate conditions of their detention. They relied on Article 3 of the Convention, which reads as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 7. In applications nos.", "52024/15 and 16171/16, the Government raised a preliminary objection of non-compliance with the six-month time-limit, claiming that the applicants’ complaints regarding their initial detention period had been lodged out of the time. 8. The Court observes that in application no. 52024/15 the applicant’s complaint regarding his initial detention in Colibași Prison, which ceased on 6 September 2010 by his transfer to other prison facilities in respect of which he did not raise any complaint, was lodged with the Court on 7 March 2016, that is, more than six months after the transfer. 9.", "The Court further observes that in application no. 16171/16 the applicant’s complaint regarding his initial detention period in Craiova Prison, which ceased on 21 July 2014 by his transfer to another prison facility in respect of which he did not raise any complaint, was lodged with the Court on 11 April 2016, that is, more than six months after the transfer. 10. Therefore, the Court accepts the Government’s objection and finds that these parts of the applications nos. 52024/15 and 16171/16 were lodged out of the six-month time-limit and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.", "11. The Court notes that the applicants were kept in detention in poor conditions. The details of the applicants’ detention are indicated in the appended table. The Court refers to the principles established in its case‑law regarding inadequate conditions of detention (see, for instance, Muršić v. Croatia [GC], no. 7334/13, §§ 96‑101, ECHR 2016).", "It reiterates in particular that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see Muršić, cited above, §§ 122 ‑141, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 149‑159, 10 January 2012). 12. In the leading case of Rezmiveș and Others v. Romania, nos. 61467/12 and 3 others, 25 April 2017, the Court already found a violation in respect of issues similar to those in the present case.", "13. Having examined all the material submitted to it, as well as the Government’s objections concerning the continuous situation of the applicants’ conditions of detention in some of the cases, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention were inadequate. 14. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention.", "III. REMAINING COMPLAINTS 15. In application no. 16249/16, the applicant also raised another complaint under Article 3 of the Convention about the lack of medical assistance in detention. 16.", "Having examined the application, 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, this complaint either does not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or does not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention. IV. 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.” 18.", "Regard being had to the documents in its possession and to its case‑law (see, in particular, Rezmiveș and Others v. Romania, nos. 61467/12 and 3 others, 25 April 2017), the Court considers it reasonable to award the sums indicated in the appended table. 19. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Decides to join the applications; 2. Declares the complaints concerning the inadequate conditions of detention, as set out in the appended table, admissible and the remainder of the applications nos. 52024/15, 16171/16 and 16249/16 inadmissible; 3. Holds that these complaints disclose a breach of Article 3 of the Convention concerning the inadequate conditions of detention; 4. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.", "Done in English, and notified in writing on 26 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtVincent A. De Gaetano Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 3 of the Convention (inadequate conditions of detention) No. Application no. Date of introduction Applicant name Date of birth Representative name and location Facility Start and end date Duration Sq.", "m. per inmate Specific grievances Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 15557/15 11/09/2015 Marius-Cătălin Burcea 10/04/1992 Mărgineni Prison, Craiova Prison, Ploiești Prison, Găești Prison 08/06/2011 to 01/08/2016 5 years and 1 month and 25 days 1.5-2.9 m² overcrowding (save for the period of 23/07/2012-07/05/2013), insufficient number of sleeping places, lack of or inadequate hygienic facilities, lack or inadequate furniture, lack of fresh air, mouldy or dirty cell, small courtyard, lack of or insufficient natural light 5,000 29956/15 03/08/2015 Costel Dănciulescu 21/04/1980 Jilava Prison 17/10/2014 to 04/12/2015 1 year and 1 month and 18 days 1.8-2.6 m² overcrowding (save for the period of 13/07/2015-04/12/2015), bunk beds, lack of fresh air, lack of or restricted access to leisure or educational activities 3,000 46426/15 05/10/2015 Ion Vălu 28/09/1960 Rahova Prison 11/03/2014 pending More than 4 years and 2 months and 19 days 1.9-2.4 m² overcrowding (save for the period of 11/03/2014-31/03/2014), lack of or insufficient natural light, lack of fresh air, inadequate temperature, lack of or inadequate hygienic facilities, mouldy or dirty cell, lack of or poor quality of bedding and bed linen, lack or inadequate furniture 3,000 48073/15 10/10/2015 Dumitru Marian David 26/09/1987 Rahova Prison 14/10/2014 to 17/09/2015 11 months and 4 days 1.9-2.4 m² overcrowding (save for the periods of 09/12/2014-10/12/2014, 20/04/2015-22/04/2015, 12/05/2015-14/05/2015, 15/06/2015-17/06/2015, 03/07/2015-17/09/2015), lack of or insufficient natural light, lack of fresh air, mouldy or dirty cell, lack or inadequate furniture 1,000 52024/15 07/03/2016 Nicolae Ionescu 28/01/1979 Colibași Prison 31/03/2011 to 08/08/2016 5 years and 4 months and 9 days 14/11/2016 to 26/09/2017 10 months and 13 days 1.6-2.4 m² 2 m² overcrowding (save for the period of 26/08/2013-04/09/2013), lack of or insufficient natural light, lack of or insufficient electric light, lack of or inadequate hygienic facilities, inadequate temperature overcrowding, lack of or insufficient natural light, lack of or insufficient electric light, lack of or inadequate hygienic facilities, inadequate temperature 5,000 15681/16 03/05/2016 George Ioan 06/11/1981 Rahova Prison, Jilava Prison, Giurgiu Prison, Galați Prison 23/10/2015 to 09/09/2016 10 months and 18 days 1.2-2.7 m² overcrowding 1,000 16171/16 11/04/2016 Cătălin-Georgel Ţuiu 30/06/1983 Craiova Prison 24/11/2014 pending More than 3 years and 6 months and 6 days 1.4-2.1 m² overcrowding, bunk beds, lack or inadequate furniture, infestation of cell with insects/rodents, lack of fresh air, lack of or insufficient physical exercise in fresh air 3,000 16249/16 15/04/2016 Marian Pruteanu 23/03/1969 Craiova Prison, Drobeta-Turnu Severin Prison 14/05/2003 pending More than 15 years and 16 days 1.1-1.8 m² overcrowding (save for the period of 26/07/2013-1/08/2013), bunk beds, infestation of cell with insects/rodents, no or restricted access to warm water 5,000 16475/16 15/06/2016 Andrei-Ionuț Sabău 09/01/1992 Tulcea Prison 28/01/2016 pending More than 2 years and 4 months and 2 days 2.3-2.6 m² overcrowding (save for the period starting with 29/03/2017 and onward), inadequate temperature, lack of fresh air, lack of or insufficient natural light, lack of or insufficient electric light, mouldy or dirty cell, lack of or poor quality of bedding and bed linen, lack or inadequate furniture, lack of or inadequate hygienic facilities, no or restricted access to warm water, lack of toiletries, lack of privacy for toilet, infestation of cell with insects/rodents 3,000 44312/16 25/07/2016 Flaviu-Ștefan Pop 01/08/1985 Vasile Rareș Biro Satu Mare Rahova Prison, Jilava Prison, Baia Mare Prison 12/11/2014 to 05/10/2016 1 year and 10 months and 24 days 1.6-2 m² overcrowding (save for the period of 28/10/2015-05/10/2016), bunk beds, infestation of cell with insects/rodents, lack of or poor quality of bedding and bed linen, poor quality of food, lack of or inadequate hygienic facilities 3,000 49001/16 04/08/2016 Gheorghe-Cătălin Cobzaru 23/09/1975 Neamț County Police Arrest, Bacău Prison, Iași Prison, Vaslui Prison 21/01/2014 to 29/11/2016 2 years and 10 months and 9 days 1.2-2.6 m² overcrowding (save for the periods of 16/04/2014-09/09/2014, 24/10/2014-19/12/2014, 29/01/2015-14/03/2015, 28/07/2015-10/09/2015, 18/09/2015-09/06/2016, 30/07/2016-29/09/2016), small courtyard, lack of or inadequate hygienic facilities, lack or inadequate furniture, lack of fresh air, infestation of cell with insects/rodents 3,000 [1]. Plus any tax that may be chargeable to the applicants." ]
[ "FOURTH SECTION CASE OF TIMES NEWSPAPERS LTD (Nos. 1 and 2) v. THE UNITED KINGDOM (Applications nos. 3002/03 and 23676/03) JUDGMENT STRASBOURG 10 March 2009 FINAL 10/06/2009 This judgment has become final under Article 44 § 2 of the Convention. In the case of Times Newspapers Ltd (nos. 1 and 2) v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Lech Garlicki, President,Nicolas Bratza,Giovanni Bonello,Ljiljana Mijović,Päivi Hirvelä,Ledi Bianku,Nebojša Vučinić, judges, and Lawrence Early, Section Registrar, Having deliberated in private on 17 February 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in two applications (nos. 3002/03 and 23676/03) 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 Times Newspapers Ltd (“the applicant”), on 28 October 2002 and on 28 July 2003 respectively. 2. The applicant was represented by Reynolds Porter Chamberlain, a law firm in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. Grainger of the Foreign and Commonwealth Office.", "3. The applicant alleged that the rule under United Kingdom law, whereby a new cause of action in libel proceedings accrues each time defamatory material on the Internet is accessed (“the Internet publication rule”), constituted an unjustifiable and disproportionate restriction on its right to freedom of expression. 4. On 11 October 2005 the Court declared inadmissible part of the application and communicated the remainder of the application to the Government. It also decided to examine the merits of this part of the application at the same time as its admissibility (Article 29 § 3 of the Convention).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant, Times Newspapers Ltd, is the proprietor and publisher of The Times newspaper. The applicant is registered in England. A.", "The two articles in The Times 6. On 8 September 1999 The Times published an article in the printed version of the newspaper headlined “Second Russian Link to Money Laundering”. This article stated: “British and American investigators are examining the role of an alleged second Russian mafia boss over possible involvement in money-laundering through the Bank of New York. Investigators are understood to be looking at links to [G.L. : his name was set out in full in the original article], whose company, Nordex, has been described by the CIA as an ‘organisation associated with Russian criminal activity’.", "[G.L. ]’s name surfaced in earlier money-laundering investigations which may have links to the Bank of New York affair, in which millions of dollars of Russian money are alleged to have been laundered. The Russian-born businessman came to the attention of European and American investigators in the early 1990s. They suspected Nordex of using its former international base in Vienna as a front for a large-scale money-laundering operation. His name also figured in a British police report in 1995, known as Operation Ivan, which looked at the extent of the influence of the Russian mob in London.", "[G.L.] has repeatedly denied any wrongdoing or links to criminal activity. Nordex, which has since moved out of Vienna, is also alleged to have been involved in the smuggling of nuclear weapons and by the mid-1990s reportedly controlled about 60 businesses in the former Soviet Union and another 40 companies in the West. The Times has learnt that these included between eight and ten offshore companies in British jurisdictions, including the Channel Islands and the Isle of Man. They were administered through a chartered accountant in central London whose offices and home were raided in 1996 by officers from the City of London Police.", "The companies were suspected of being used to help launder money from Russia, which was then channelled through European banks. No charges were ever filed against the accountant. At about the same time a Yugoslav associate said to have been a frontman for [G.L.] was stopped and questioned after arriving at a London airport. No charges were filed against him.", "The British investigation into Nordex is believed to have failed because of the difficulty of establishing that the money funnelled through offshore companies controlled by Nordex was linked to criminal activities. [G.L.] is alleged to be a former business associate of Viktor Chernomyrdin, the former Russian Prime Minister, and in 1995 his name hit the headlines after it emerged that he had been photographed with President Clinton at a Democrat fund-raising event in 1993. He is also alleged to have had business dealings with Semyon Mogilevich, the Hungarian-based mafia figure at the centre of the Bank of New York investigation.” 7. On 14 October 1999 The Times published a second article entitled “Trader Linked to Mafia Boss, Wife Claims”.", "This article stated: “A Russian businessman under investigation by Swiss authorities pursuing allegations of money-laundering was a friend of [G.L. ], a suspected mafia boss, the businessman’s wife claims. Lev Chernoi, the aluminium magnate under Swiss investigation, was given access to staff and a chauffeur by [G.L.] when he moved to Israel, according to Lyudmila Chernoi, Mr Chernoi’s estranged wife ... If Mrs Chernoi’s allegation about a connection between her husband and [G.L.]", "is true, it will raise further questions about Mr Chernoi. In 1996 the CIA described Nordex, a company operated by [G.L.] and alleged to have been used to launder money and smuggle nuclear weapons, as an ‘organisation associated with Russian criminal activity’. In 1996 [G.L.] triggered a row in America after a photograph was published of him with President Clinton in 1993.", "[G.L.] has denied any wrongdoing.” 8. Both articles were uploaded onto the applicant’s website on the same day as they were published in its newspaper. B. The commencement of proceedings 9.", "On 6 December 1999 G.L. brought proceedings for libel in respect of the two articles printed in the newspaper against the applicant, its editor and the two journalists under whose bylines the articles appeared (“the first action”). The defendants did not dispute that the articles were potentially defamatory and did not seek to prove that the allegations were true. Instead, they relied solely on the defence of qualified privilege, contending that the allegations were of such a kind and seriousness that they had a duty to publish the information and the public had a corresponding right to know. 10.", "While the first action was under way, the articles remained on the applicant’s website, where they were accessible to Internet users as part of the applicant’s archive of past issues. On 6 December 2000, G.L. brought a second action for libel in relation to the continuing Internet publication of the articles (“the second action”). Initially, the defendants’ only defence to the second action was one of qualified privilege. The two actions were consolidated and set down for a split trial on issues of liability and then quantum.", "11. On 23 December 2000 the applicant added the following preface to both articles in the Internet archive: “This article is subject to High Court libel litigation between [G.L.] and Times Newspapers. It should not be reproduced or relied on without reference to Times Newspapers Legal Department.” C. The Internet publications proceedings 12. In or around March 2001 the defendants applied to re-amend their defence in the second action in order “to contend that as a matter of law the only actionable publication of a newspaper article on the Internet is that which occurs when the article is first posted on the Internet” (“the single-publication rule”).", "They argued that, as a result, the second action was time-barred by section 4A of the Limitation Act 1980. 13. On 19 March 2001 the High Court refused permission to re-amend the defence, relying in particular on the common-law rule set out in Duke of Brunswick v. Harmer (see paragraph 20 below) that each publication of a defamation gives rise to a separate cause of action. The court held that, in the context of the Internet, this meant that a new cause of action accrued every time the defamatory material was accessed (“the Internet publication rule”). 14.", "On 20 March 2001 the High Court found that the defendants had no reasonable grounds for contending that after 21 February 2000 (the date on which the defendants lodged their defence in the first action) they remained under a duty to publish the articles on the Internet. As a result, the court struck out the defence of qualified privilege in relation to the second action. On 27 March 2001, judgment was entered for G.L. in the second action, with damages to be assessed. By this time the applicant had removed the articles from its website.", "D. The Court of Appeal 15. The defendants appealed against the High Court’s order of 19 March 2001 rejecting the single-publication rule. They argued that the Internet publication rule breached Article 10 of the Convention, pointing out that as a result of the rule, newspapers which maintained Internet archives were exposed to ceaseless liability for republication of the defamatory material. The defendants argued that this would inevitably have a chilling effect on the willingness of newspapers to provide Internet archives and would thus limit their freedom of expression. 16.", "In its judgment of 5 December 2001, the Court of Appeal, per Simon Brown LJ, dismissed the appeal against the order in the second action, stating: “We do not accept that the rule in the Duke of Brunswick imposes a restriction on the readiness to maintain and provide access to archives that amounts to a disproportionate restriction on freedom of expression. We accept that the maintenance of archives, whether in hard copy or on the Internet, has a social utility, but consider that the maintenance of archives is a comparatively insignificant aspect of freedom of expression. Archive material is stale news and its publication cannot rank in importance with the dissemination of contemporary material. Nor do we believe that the law of defamation need inhibit the responsible maintenance of archives. Where it is known that archive material is or may be defamatory, the attachment of an appropriate notice warning against treating it as the truth will normally remove any sting from the material.” 17.", "On 30 April 2002 the House of Lords refused leave to appeal. The parties subsequently settled the action and the applicant agreed to pay G.L. a sum of money in full and final settlement of claims and costs arising in both actions. II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A.", "The Limitation Act 1980 18. Section 2 of the Limitation Act 1980 (“the 1980 Act”) sets out a general limitation period of six years in tort actions. Section 4A of the 1980 Act qualifies this limitation period as regards defamation actions and provides as follows: “The time-limit under section 2 of this Act shall not apply to an action for – (a) libel or slander; or (b) slander of title, slander of goods or other malicious falsehood; but no such action shall be brought after the expiration of one year from the date on which the cause of action accrued.” 19. Section 32A of the 1980 Act provides: “(1) It if appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which – (a) the operation of section 4A of this Act prejudices the plaintiff or any person whom he represents; and (b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; the court may direct that that section shall not apply to the action or shall not apply to any specified cause of action to which the action relates. (2) In acting under this section the court shall have regard to all the circumstances of the case and in particular to – (a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) where the reason or one of the reasons for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the end of the period mentioned in section 4A – (i) the date on which any such facts did become known to him; and (ii) the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action; and (c) the extent to which, having regard to the delay, relevant evidence is likely – (i) to be unavailable; or (ii) to be less cogent than if the action had been brought within the period mentioned in section 4A.” B.", "The Internet publication rule 20. Duke of Brunswick v. Harmer [1849] 14 QB 154 lays down a common-law rule of some significance. On 19 September 1830 an article was published in the Weekly Dispatch. The limitation period for libel was, at that time, six years. The article defamed the Duke of Brunswick.", "Seventeen years after its publication an agent of the Duke purchased a back number containing the article from the Weekly Dispatch’s office. Another copy was obtained from the British Museum. The Duke sued on those two publications. The defendant contended that the cause of action was time-barred, relying on the original publication date. The court held that the delivery of a copy of the newspaper to the plaintiff’s agent constituted a separate publication in respect of which suit could be brought.", "21. In Godfrey v. Demon Internet Ltd [2001] QB 201 the respondent brought an action in defamation against the appellants who were Internet service providers. They had received and stored on their news server an article, defamatory of the respondent, which had been posted by an unknown person using another service provider. The judge stated: “In my judgment the defendants, whenever they transmit and whenever there is transmitted from the storage of their news server a defamatory posting, publish that posting to any subscriber to their ISP [Internet service provider] who accesses the newsgroup containing that posting. Thus every time one of the defendants’ customers accesses ‘soc culture thai’ and sees that posting defamatory of the plaintiff there is a publication to that customer.” C. The defence of qualified privilege 22.", "The leading case on the defence of qualified privilege is Reynolds v. Times Newspapers Ltd [2001] 2 AC 127. That case established that qualified privilege is an absolute defence to libel proceedings. In the leading judgment before the House of Lords, Lord Nicholls of Birkenhead explained the defence as follows: “The underlying principle is conventionally stated in words to the effect that there must exist between the maker of the statement and the recipient some duty or interest in the making of the communication. Lord Atkinson’s dictum, in Adam v. Ward [1917] A.C. 309, 334, is much quoted: ‘a privileged occasion is ... an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential’.” D. The Code of Practice of the Press Complaints Commission 23.", "The Press Complaints Commission has adopted a Code of Practice which is regularly reviewed and amended as required. Paragraph 1 of the current Code of Practice reads as follows: 1. Accuracy “(i) The Press must take care not to publish inaccurate, misleading or distorted information, including pictures. (ii) A significant inaccuracy, misleading statement or distortion once recognised must be corrected, promptly and with due prominence, and – where appropriate – an apology published. (iii) The Press, whilst free to be partisan, must distinguish clearly between comment, conjecture and fact.", "(iv) A publication must report fairly and accurately the outcome of an action for defamation to which it has been a party, unless an agreed settlement states otherwise, or an agreed statement is published.” E. The United States single-publication rule 24. Unlike the United Kingdom, the courts of the United States of America have chosen to apply the “single-publication rule”. In the case of Gregoire v. GP Putnam’s Sons (1948) 81 N.E.2d 45, a book originally put on sale in 1941 was still being sold in 1946 following several reprints. The New York Court of Appeals considered the rule in Duke of Brunswick v. Harmer, but concluded that it was formulated “in an era which long antedated the modern process of mass publication” and was therefore not suited to modern conditions. Instead, the court held that the limitation period started to run in 1941, when the book was first put on sale.", "The court pointed out that: “Under [the rule in Duke of Brunswick v. Harmer] the Statute of Limitation would never expire so long as a copy of such book remained in stock and is made by the publisher the subject of a sale or inspection by the public. Such a rule would thwart the purpose of the legislature.” 25. The single-publication rule was subsequently applied to a website publication in Firth v. State of New York (2002) NY int 88. In that case, a report published at a press conference on 16 December 1996 was placed on the Internet the same day. An action was brought over a year later.", "The New York Court of Appeals held that the limitation period started when the report was first uploaded onto the website and did not begin anew each time the website version of the report was accessed by a user. The court observed that: “The policies impelling the original adoption of the single-publication rule support its application to the posting of ... the report ... on the website ... These policies are even more cogent when considered in connection with the exponential growth of the instantaneous, worldwide ability to communicate through the Internet ... Thus a multiple publication rule would implicate an even greater potential for endless retriggering of the statute of limitations, multiplicity of suits and harassment of defendants. Inevitably, there would be a serious inhibitory effect on the open, pervasive dissemination of information and ideas over the Internet which is, of course, its greatest beneficial promise.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 26. The applicant complained that the Internet publication rule constitutes an unjustifiable and disproportionate restriction of its right to freedom of expression as provided in Article 10 of the Convention, which reads, in so far as relevant, 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 ... for the protection of the reputation or rights of others ...” A. Admissibility 27. The Court has consistently emphasised that Article 10 guarantees not only the right to impart information but also the right of the public to receive it (see Observer and Guardian v. the United Kingdom, 26 November 1991, § 59 (b), Series A no. 216, and Guerra and Others v. Italy, 19 February 1998, § 53, Reports of Judgments and Decisions 1998‑I). In the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general.", "The maintenance of Internet archives is a critical aspect of this role and the Court therefore considers that such archives fall within the ambit of the protection afforded by Article 10. 28. The Court concludes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. The merits 1. The parties’ observations (a) The applicant 29. The applicant contended that the Internet publication rule restricted its ability to maintain a publicly accessible Internet archive. It pointed to the “chilling effect” that the rule had upon freedom of expression, which it said was aggravated by the fact that it had not actively sought to disseminate the information contained in its Internet archive.", "The applicant submitted that Article 10 required the adoption of a single-publication rule. 30. The applicant contested the finding of the Court of Appeal that the maintenance of archives constituted an insignificant aspect of freedom of expression. The applicant pointed to the importance of the integrity and availability of historical records to an open and democratic society. 31.", "The applicant argued that since the defence of qualified privilege was a complete defence to the libel claim, it was under no obligation to publish a qualification in respect of the relevant articles until the litigation had been resolved. It pointed out that the Code of Practice of the Press Complaints Commission obliged newspapers to post a notice or qualification where a publication had been the subject of a judgment or settlement in favour of the complainant. Any other approach would require a large number of articles to be qualified. Attempts to limit qualification to those articles which were potentially libellous would be difficult: because the libellous nature of a publication may change over time, the applicant would be required to keep the entirety of its Internet archive under review. The applicant pointed out that approximately five hundred items were uploaded onto its Internet archive every day.", "32. The applicant argued that it was open to the Court to consider the general principle which arose, notwithstanding the specific facts of the case. Although the applicant accepted that G.L.’s rights were also engaged, it considered that a single-publication rule would not constitute an excessive restriction on the right of effective access to the court. (b) The Government 33. The Government relied on the conclusions in the domestic proceedings that the journalists had not demonstrated the requisite standard of responsibility in respect of the two articles.", "They further relied on the fact that no qualification was added to the articles on the applicant’s website until 23 December 2000, over twelve months after the original libel proceedings were initiated. 34. Although the Government accepted that maintaining archives had a social utility, they considered that this was not an aspect of the exercise of freedom of expression which was of central or weighty importance, archive material being “stale news”. In the present case, the Government argued that there was no evidence that the applicant had been prevented or deterred from maintaining its online archive. Furthermore, the steps required of the applicant to remove the sting from its archive material were not onerous.", "35. As regards the applicant’s claim of ceaseless liability, the Government observed that no question of ceaseless liability arose in the present case. The Government pointed out that the second action was contemporaneous with the first action and did not raise stale allegations many years after the event. In any case, even under a single-publication rule, (i) the continued publication of articles which the applicant knew to be defamatory, which were not qualified in any way and which were not defended as true would constitute a separate actionable tort under English law; and (ii) if accompanied by a statutory discretion along the lines of section 32A of the Limitation Act 1980, the court may well have exercised that discretion to allow G.L. to bring the second action, having regard to the circumstances.", "36. The Government highlighted that the present case also engaged the Article 8 and Article 6 rights of G.L. In the choice between the single-publication rule and the Internet publication rule, these competing interests should be balanced. They pointed to the fact that there was no consistency of approach to this issue in other jurisdictions and concluded that, on the facts of this case, the application of the Internet publication rule was a permissible and proportionate restriction on the applicant’s right to freedom of expression and did not violate Article 10 of the Convention. 2.", "The Court’s assessment 37. The Court notes that judgment was entered against the applicants in the second action. Furthermore, the applicant subsequently agreed to pay a sum of money in settlement of G.L.’s claims and costs in both actions. The Court therefore considers that the second action constituted an interference with the applicant’s right to freedom of expression. Such interference breaches Article 10 unless it was “prescribed by law”, pursued one or more of the legitimate aims referred to in Article 10 § 2 and was “necessary in a democratic society” to attain such aim or aims.", "(a) “Prescribed by law” 38. The applicant does not contest the lawfulness of the interference, which derived from the application of the rule set out in Duke of Brunswick v. Harmer and developed in the case of Godfrey v. Demon Internet Ltd. The Court sees no reason to hold that the interference was not lawful and therefore concludes that the interference with the applicant’s right to freedom of expression was “prescribed by law” within the meaning of Article 10 § 2. (b) Legitimate aim 39. The Internet publication rule is aimed at protecting the rights and reputation of others.", "It has not been disputed, and the Court also agrees, that the interference has a legitimate aim. (c) “Necessary in a democratic society” (i) General principles 40. The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and in that context the safeguards guaranteed to the press are particularly important. While the press must not overstep the boundaries set, inter alia, in the interest of “the protection of the reputation or rights of others”, it is nevertheless incumbent on it to impart information and ideas of public interest. Not only does the press have the task of imparting such information and ideas, but the public also has a right to receive them.", "In this way, the press fulfils its vital role as a “public watchdog” (see Observer and Guardian, cited above, § 59). 41. The Court observes that the most careful of scrutiny under Article 10 is required where measures or sanctions imposed on the press are capable of discouraging the participation of the press in debates on matters of legitimate public concern (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 64, ECHR 1999‑III). The Court further notes that particularly strong reasons must be provided for any measure limiting access to information which the public has the right to receive (see Timpul Info-Magazin and Anghel v. Moldova, no.", "42864/05, § 31, 27 November 2007). 42. However, the Court reiterates that Article 10 does not guarantee a wholly unrestricted freedom of expression to the press, even with respect to press coverage of matters of serious public concern. When exercising its right to freedom of expression, the press must act in a manner consistent with its duties and responsibilities, as required by Article 10 § 2. These duties and responsibilities assume particular significance when, as in the present case, information imparted by the press is likely to have a serious impact on the reputation and rights of private individuals.", "Furthermore, the protection afforded by Article 10 to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with responsible journalism (see Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999‑I, and Bladet Tromsø and Stensaas, cited above, § 65). 43. Finally, it should be recalled that in assessing whether the interference was justified, it is not the role of the Court to substitute its views for those of the national authorities but to review the case as a whole, in the light of Article 10, and consider whether the decision taken by the national authorities fell within the margin of appreciation allowed to the member States in this area (see Handyside v. the United Kingdom, 7 December 1976, § 50, Series A no. 24).", "(ii) Application of the above principles to the present case 44. The applicants maintain that they are exposed to litigation, without limit in time, on account of the adoption of the Internet publication rule instead of the single-publication rule. 45. The Court agrees at the outset with the applicant’s submissions as to the substantial contribution made by Internet archives to preserving and making available news and information. Such archives constitute an important source for education and historical research, particularly as they are readily accessible to the public and are generally free.", "The Court therefore considers that, while the primary function of the press in a democracy is to act as a “public watchdog”, it has a valuable secondary role in maintaining and making available to the public archives containing news which has previously been reported. However, the margin of appreciation afforded to States in striking the balance between the competing rights is likely to be greater where news archives of past events, rather than news reporting of current affairs, are concerned. In particular, the duty of the press to act in accordance with the principles of responsible journalism by ensuring the accuracy of historical, rather than perishable, information published is likely to be more stringent in the absence of any urgency in publishing the material. 46. The Court further observes that the introduction of limitation periods for libel actions is intended to ensure that those who are defamed move quickly to protect their reputations in order that newspapers sued for libel are able to defend claims unhindered by the passage of time and the loss of notes and fading of memories that such passage of time inevitably entails.", "In determining the length of any limitation period, the protection of the right to freedom of expression enjoyed by the press should be balanced against the rights of individuals to protect their reputations and, where necessary, to have access to a court in order to do so. It is, in principle, for contracting States, in the exercise of their margin of appreciation, to set a limitation period which is appropriate and to provide for any cases in which an exception to the prescribed limitation period may be permitted (see Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 54-55, Reports 1996‑IV). 47. On the facts of the present case, the Court considers it significant that, although libel proceedings in respect of the two articles were initiated in December 1999, the applicant did not add any qualification to the articles in its Internet archive until December 2000. The Court notes the conclusion of the Court of Appeal that the attachment of a notice to archive copies of material which it is known may be defamatory would “normally remove any sting from the material”.", "To the extent that the applicant maintains that such an obligation is excessive, the Court observes that the Internet archive in question is managed by the applicant itself. It is also noteworthy that the Court of Appeal did not suggest that potentially defamatory articles should be removed from archives altogether. In the circumstances, the Court, like the Court of Appeal, does not consider that the requirement to publish an appropriate qualification to an article contained in an Internet archive, where it has been brought to the notice of a newspaper that a libel action has been initiated in respect of that same article published in the written press, constitutes a disproportionate interference with the right to freedom of expression. The Court further notes that the brief notice which was eventually attached to the archive would appear to undermine the applicant’s argument that any qualification would be difficult to formulate. 48.", "Having regard to this conclusion, it is not necessary for the Court to consider in detail the broader chilling effect allegedly created by the application of the Internet publication rule in the present case. The Court nonetheless observes that the two libel actions brought against the applicant concerned the same two articles. The first action was brought some two to three months after the publication of the articles and well within the one-year limitation period. The second action was brought a year later, some fourteen or fifteen months after the initial publication of the articles. At the time the second action was brought, the legal proceedings in respect of the first action were still under way.", "There is no suggestion that the applicant was prejudiced in mounting its defence to the libel proceedings in respect of the Internet publication due to the passage of time. In these circumstances, the problems linked to ceaseless liability for libel do not arise. The Court would, however, emphasise that while an aggrieved applicant must be afforded a real opportunity to vindicate his right to reputation, libel proceedings brought against a newspaper after a significant lapse of time may well, in the absence of exceptional circumstances, give rise to a disproportionate interference with press freedom under Article 10. 49. The foregoing considerations are sufficient to enable the Court to conclude that in the present case, the finding by the domestic courts in the second action that the applicant had libelled the claimant by the continued publication on the Internet of the two articles was a justified and proportionate restriction on the applicant’s right to freedom of expression.", "50. There has accordingly been no violation of Article 10 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the remainder of 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 10 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence Early Lech Garlicki Registrar President" ]
[ "FOURTH SECTION CASE OF MEJER AND JAŁOSZYŃSKA v. POLAND (Application no. 62109/00) JUDGMENT STRASBOURG 19 October 2004 FINAL 19/01/2005 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 Mejer and Jałoszyńska v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrM. Pellonpää,MrsV.", "Strážnická,MrJ. Casadevall,MrR. Maruste,MrS. Pavlovschi,MrL. Garlicki, judges,and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 28 September 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 62109/00) 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 Polish nationals, Mr Jan Mejer (the first applicant) and Mrs Mirosława Jałoszynska (the second applicant) on 24 May 1999. 2. The Polish Government (“the Government”) were represented by their Agents, Mr K. Drzewicki and Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3.", "The applicants alleged, in particular, that the length of the proceedings in their case had been incompatible with the “reasonable time” requirement. 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 3 June 2003 the Court declared the application admissible. 6. The applicants and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7.", "The first applicant was born in 1942 and the second applicant was born in 1944. They both live in Wrocław, Poland. 8. On 19 May 1994 the applicants, employees of the Wrocław Technical University (Politechnika Wrocławska) and members of a trade union, were informed by their employer that as from 1 September 1994 their employment contracts would be modified and that they would be transferred. 9.", "On 24 May 1994 the applicants sued the Wrocław Technical University in the Wrocław-Śródmieście District Court (Sąd Rejonowy), seeking the annulment of the employer's decisions. The court joined their actions. 10. As a result of the applicants' refusal to accept the proposed changes to their employment contracts, they were dismissed from their jobs with effect from 31 August 1994. Subsequently, the applicants modified their claims and filed actions for reinstatement with the Wrocław-Śródmieście District Court.", "11. On 15 September 1994 the court held a first hearing in the case. It imposed a fine on the defendant for having failed to appear before the court. The court held hearings on 20 October and 6 December 1994, and 10 January 1995. The hearing listed for 27 January 1995 was cancelled because the judge rapporteur was ill. 12.", "On 24 February 1995 the court held a hearing and heard evidence from the parties and witnesses. On 10 March 1995 the second applicant asked the court not to fix hearings on Wednesdays and Fridays, since she would not be able to appear before the court. At the hearing held on 1 June 1995 the court heard evidence from other witnesses. On 16 June 1995 the court ordered that the case file be obtained from the Wrocław-Śródmieście District Prosecutor (Prokurator Rejonowy). 13.", "On 6 July, 28 September and 7 December 1995, and 5 January 1996 the court held hearings. 14. On 16 January 1996 the District Court gave judgment. The applicants appealed. 15.", "On 16 April 1996 the Wrocław Regional Court (Sąd Wojewódzki) held a hearing. On 30 April 1996 the Regional Court quashed the first-instance judgment and remitted the case. 16. The hearing before the District Court listed for 31 July 1996 was adjourned because the defendant's lawyer had failed to appear before the court. On 4 October 1996 the court held a hearing and heard evidence from a witness.", "The hearing listed for 5 December 1996 was adjourned because a witness had not appeared before it. 17. On 7 February 1997 the District Court gave judgment and ordered that the applicants be reinstated. The defendant appealed. 18.", "On 27 January and 28 April 1998 the Wrocław Regional Court held hearings. On 9 July 1998 the court ordered the defendant's lawyer to produce certain documentary evidence. 19. On 17 September 1998 the court adjourned a hearing because a summoned witness had not appeared before the court. On 26 November 1998 the court held a hearing and heard a witness.", "20. On 10 December 1998 the Regional Court gave judgment. It set aside the first-instance judgment in respect of the applicants' reinstatement and awarded them compensation for unlawful dismissal. 21. The applicants lodged their cassation appeals with the Supreme Court (Sąd Najwyższy).", "On 15 October 1999 the Supreme Court set aside the judgment of the Regional Court and remitted the case. 22. On 9 May and 5 September 2000 the court held hearings. At the hearing held on 28 November 2000 the applicants challenged two judges of the Regional Court. On 12 December 2000 the court dismissed their request as unfounded.", "23. Subsequently, on 2 February 2001 the applicants challenged seven judges of the Wrocław Regional Court. On 15 March 2001 the court dismissed this request as unfounded. Another hearing was held on 26 June 2001. 24.", "At the hearing held on 5 July 2001 the Regional Court gave judgment. 25. On 28 September 2001 the applicants lodged a cassation appeal with the Supreme Court. 26. On 5 December 2002 the Supreme Court dismissed the applicants' cassation appeal.", "The judgment is final. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 27. The applicant 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 reads in so far as relevant: “In the determination of his civil rights and obligations..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” The Government contested this view. A.", "Period to be taken into consideration 28. The period to be taken into consideration began on 24 May 1994 and ended on 5 December 2002. It thus lasted 8 years, 6 months and 12 days. B. Reasonableness of the length of the proceedings 1. The applicants' submissions 29.", "The applicants argued that their case had not been complex. 30. They further maintained that there had been much at stake for them in the proceedings, as they had concerned reinstatement. 31. Lastly, they stressed that the manner in which they exercised their procedural rights had not substantially delayed the proceedings.", "32. In conclusion they invited the Court to find that there had been a violation of Article 6 § 1 of the Convention. 2. The Government's submissions 33. The Government argued that the case had involved complex issues of fact and law.", "34. They further submitted that the authorities had shown due diligence in dealing with the case. 35. The Government were also of the opinion that the applicants had contributed to the prolongation of the proceedings. In particular, they had modified their claim on several occasions and they had also lodged two unfounded applications for the trial judges to step down.", "36. Lastly, they claimed that there had been no violation of Article 6 § 1 in the proceedings. 3. The Court's assessment 37. 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], § 60 GC], no. 26614/95, 15 October 1999, § 60). 38. In the present case the Court first observes, that what was at stake for the applicants in the proceedings in question was of crucial importance to them, taking into consideration that they sought reinstatement. In this respect the Court reiterates that an employee who considers that he or she has been wrongly suspended or dismissed by his employer has an important personal interest in securing a judicial decision on the lawfulness of that measure promptly, employment disputes by their nature calling for expeditious decision, in view of what is at stake for the person concerned, who through dismissal loses his means of subsistence (see, among other authorities, the Obermeier v. Austria judgment of 28 June 1990, Series A no.", "179, pp. 23‑24, § 72, and the Caleffi v. Italy judgment of 24 May 1991, Series A no. 206-B, p. 20, § 17). 39. The Court further considers that the applicants' conduct and the manner in which they exercised their procedural rights, had not substantially contributed to the length of the proceedings.", "In particular, the applicants' claims for the judges to step down resulted in a total delay of two months (see paragraphs 22 and 23 above). 40. 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). 41. 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. 42. There has accordingly been a violation of Article 6 § 1 of the Convention. 2. APPLICATION OF ARTICLE 41 OF THE CONVENTION 43.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 44. Both applicants sought an award of EUR 35,000 each, in respect of pecuniary damage. They further asked for EUR 15,000 for each of them in respect of non-pecuniary damage. 45.", "The Government submitted that the second applicant's claims were excessive and that there had been no causal link between the length of the proceedings and the amount claimed. They did not comment on the first applicant's claims. 46. As regards the pecuniary damage, the Court's conclusion, on the evidence before it, is that the applicants have failed to demonstrate that the pecuniary damage pleaded was actually caused by the unreasonable length of the impugned proceedings. Consequently, there is no justification for making any award to them under that head (see, mutatis mutandis, Kudła v. Poland [GC], no.", "30210/96, § 164, ECHR 2000-XI). 47. The Court further considers that the applicants 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 each of the applicants a total sum of 2,500 euros (“EUR”) under that head. B.", "Costs and expenses 48. The second applicant also claimed EUR 400 for the costs and expenses incurred before the domestic courts (lawyer's fees). 49. 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 in the preparation of the applicant's case before the Court 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). 50. 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 were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings. C. Default interest 51.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 § 1 of the Convention; 2. Holds (a) that the respondent State is to pay to each of the applicants, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 2,500 (two thousand five hundred euros) in respect of non-pecuniary damage, 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 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; 3. Dismisses the remainder of the applicants' claims for just satisfaction.", "Done in English, and notified in writing on 19 October 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O'BoyleNicolas BratzaRegistrarPresident" ]
[ "SECOND SECTION CASE OF GÁVRIS v. HUNGARY (Application no. 33723/06) JUDGMENT STRASBOURG 15 March 2011 This judgment is final but it may be subject to editorial revision. In the case of Gávris v. Hungary, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Ireneu Cabral Barreto, President,Dragoljub Popović,András Sajó, judges,and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 22 February 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 33723/06) 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 two Hungarian nationals, Mr and Mrs János Gávris (“the applicants”), on 11 May 2006.", "2. The applicants were represented by Mrs Gy. Scheszták, 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 11 March 2008 the President of the Second Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1935 and 1939 respectively and live in Szolnok.", "5. In 1993 administrative proceedings started concerning the grant of a building permit to the applicants' neighbours. In pursuit of the applicants' administrative appeals and their ensuing request for judicial review dated 14 October 1993, on 14 November 1994 the Kaposvár District Court quashed the existing decisions and remitted the case to the second-instance administrative authority. It held that the building permit issued had approved some irregular plans. On 13 July 1995 the Somogy County Regional Court upheld this judgment.", "6. In the resumed administrative proceedings, on 10 October 1995 the Somogy County Administrative Office remitted the case to the Balatonszárszó Notary. It appears that, by this time, the neighbours had already constructed the building in question. In March 1996 the Notary approved the continued existence of the building. On 13 June 1996 the County Administrative Office dismissed the applicants' appeal in which they had requested the removal of part of the building, constructed irregularly in their view.", "7. On 2 April 1997 the Kaposvár District Court quashed these decisions and again remitted the case to the administrative instances. It held that the permit allowing the continued existence of the building had been adopted in defiance of the relevant administrative law because the interests of the other neighbours (including the applicants) had not been taken into account. On 28 August 1997 the Regional Court upheld the judgment. However, this decision was quashed in review proceedings by the Supreme Court on 20 March 2000.", "The Supreme Court remitted the case to the first-instance court. 8. Due to a change in the law, in the resumed judicial review proceedings the Regional Court heard the case as a first-instance court. On 27 February 2001 it ordered the administrative instances to resume the proceedings, because their previous decisions had approved some irregular plans. On 9 December 2002 the Supreme Court, sitting as a second-instance court, upheld this decision.", "9. In the resumed administrative proceedings, on 17 December 2003 the Balatonföldvár Notary granted the neighbours a permit for the continued existence of the building in question. On 24 May 2004 the Fejér County Administrative Office dismissed the applicants' appeal in which they had alleged that the building had been constructed in defiance of the regulations and that its continued existence infringed their rights as neighbours. 10. In judicial review proceedings, on 30 November 2004 the Regional Court dismissed the applicants' action.", "The court pointed out that, under section 48 of Act no. 78 of 1997 on Construction, the authority in charge of construction may take measures in respect of an irregularly constructed building within one year from its taking cognisance of the irregularity but in any event not later than ten years from the certification of the building for use. In the court's view, the one-year time-limit had been triggered by the Regional Court's decision of 28 August 1997; therefore – the one-year time-limit having been elapsed – the neighbours could no longer be denied a permit for the continued existence of the building in question. 11. This decision was upheld by the Supreme Court's appeal bench on 23 November 2005.", "It stressed that – contrary to what was apparently argued by the applicants – the running of the one-year time-limit had not been interrupted by the review proceedings in which the decision of 28 August 1997 had been quashed, because its execution had not been suspended. THE LAW 12. The applicants complained that the length of the proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention. The Government contested that argument. 13.", "The period to be taken into consideration began on 14 October 1993 and ended on 23 November 2005. It thus lasted over twelve years and one month 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. The applicants also complained under Article 1 of Protocol No. 1 in conjunction with Article 13 of the Convention that the nuisance caused by the neighbours' irregular construction had been perpetuated, because the authorities in charge had missed, without any particular reason, the one-year time-limit in which they could have ordered the demolition of the building. 17. The Government submitted that the applicants should have availed themselves of an official liability action in damages under section 349 of the Civil Code ; section 349 (1) providing that liability for damage caused by the State administration shall be established if damage could not be prevented by means of ordinary legal remedies or if the person concerned has resorted to ordinary legal remedies appropriate for preventing damage.", "The applicants contested this view. 18. The Court considers that, by not bringing an action in compensation against the administrative authorities for the damages which they had allegedly sustained on account of those authorities' inaction, the applicants did not provide the Hungarian courts with the opportunity which is in principle intended to be afforded to Contracting States by Article 35 of the Convention, namely the opportunity of preventing or, in the instant case, putting right the violations alleged against them (see Cardot v. France, 19 March 1991, § 36, Series A no. 200). This part of the application must therefore be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.", "19. Relying on Article 41, each of the applicants claimed 10,000 euros (EUR) in respect of pecuniary damage and EUR 20,000 in respect of non-pecuniary damage. 20. The Government contested these claims. 21.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it considers that the applicants must have sustained some non-pecuniary damage. Ruling on an equitable basis, it awards them, jointly, EUR 9,600 under that head. 22. The applicants also claimed EUR 3,500 for the costs and expenses incurred before the domestic courts and the Court.", "The Government contested the claim. 23. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the applicants the sum of EUR 1,000 in respect of all costs and expenses incurred. 24. 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 (a) that the respondent State is to pay the applicants, jointly, within three months, the following amounts, to be converted into Hungarian forints at the rate applicable at the date of settlement: (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 applicants, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants' claim for just satisfaction.", "Done in English, and notified in writing on 15 March 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosIreneu Cabral Barreto Deputy RegistrarPresident" ]
[ "FIRST SECTION CASE OF TALPIS v. ITALY (Application no. 41237/14) JUDGMENT (Extracts) This version was rectified on 21 March 2017 under Rule 81 of the Rules of Court. STRASBOURG 2 March 2017 FINAL 18/09/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Talpis v. Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Mirjana Lazarova Trajkovska, President, Guido Raimondi,Kristina Pardalos, Linos-Alexandre Sicilianos, Robert Spano,Armen Harutyunyan,Tim Eicke, judges,and Abel Campos, Section Registrar, Having deliberated in private on 24 and 31 January 2017, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.", "The case originated in an application (no. 41237/14) 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 a Romanian and Moldovan national, Ms Elisaveta Talpis (“the applicant”), on 23 May 2014. 2. The applicant was represented by Ms S. Menichetti and Ms C. Carrano, lawyers practising in Rome[1]. The Italian Government (“the Government”) were represented by their Agent, Mrs E. Spatafora.", "3. The applicant complained, inter alia, of a failure by the Italian authorities to comply with their duty to protect her against the acts of domestic violence inflicted on her and that had led to an attempt to murder her and the death of her son. 4. On 26 August 2015 the application was communicated to the Government. The Romanian and Moldovan Governments did not exercise their right to intervene in the procedure (Article 36 § 1 of the Convention).", "5. The Government objected on the grounds that the observations submitted by the applicant had reached the Court on 15 March 2016, which was after the time-limit of 9 March 2016 had expired. The Court observes, however, that the observations were sent on 9 March 2016, in accordance with Rule 38 § 2 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6.", "The applicant was born in 1965 and lives in Remanzaccio. 7. The applicant married A.T., a Moldovan national, and two children were born of the marriage: a daughter in 1992 and a son in 1998. 8. The applicant alleged that after their marriage her husband had started beating her.", "However, in 2011 the applicant followed her husband to Italy in order to provide her children with the opportunity of a more serene future. 1. The first assault committed by A.T. against the applicant and her daughter 9. The applicant submitted that her husband, who was an alcoholic, had already been physically abusing her for a long time when, on 2 June 2012, she requested the intervention of the police after she and her daughter had been assaulted by A.T. 10. When the police arrived, A.T. had left the family home.", "He was found in the street in a state of intoxication, with scratches on the left side of his face. The police drew up a report of the incident. The report stated that the applicant had been beaten and bitten in the face and the left leg and that she had a number of bruises. The report also stated that the applicant’s daughter had herself been hit after intervening to protect her mother and presented a neck injury caused by a fingernail and injuries to both arms. The applicant and her daughter were informed of their rights and expressed their intention to go to the hospital accident and emergency unit.", "11. The applicant alleged that she had not, however, been informed of the possibility of lodging a complaint or contacting a shelter for battered women. She also submitted that she went to the accident and emergency unit in order to have her injuries recorded, but that after waiting for three hours she had decided to return home. 12. The Government, referring to the police report, submitted that there was no evidence that the applicant had gone to the accident and emergency unit.", "2. The second assault committed by A.T. against the applicant a) The applicant’s version 13. The applicant submitted that after the assault on 2 June 2012 she had taken refuge in the cellar of her flat and started sleeping there. 14. She recounted the following events as follows.", "On 19 August 2012, after receiving a threatening telephone call from her husband, and fearing an attack by him, she decided to leave the house. When she returned home, she found that the cellar door had been broken. She tried telephoning a friend to ask if she could stay the night with her, but no one answered her call. She then decided to go back to the cellar. A.T. attacked her there with a knife and forced her to follow him in order to have sexual relations with his friends.", "Hoping that she would be able to seek help once outside, she resigned herself to following him. She asked a police patrol in the street for help. 15. The police merely checked her and A.T.’s identity papers, and despite the applicant’s assertions that she had been threatened and beaten by her husband, they invited her to go home without offering her help and told A.T. to keep away from her. A.T. was fined for unauthorised possession of a lethal weapon.", "16. Shortly after she had returned home, the applicant called the emergency services and was taken to hospital. The doctors noted, among other things, that she suffered from cranial trauma, a head injury, multiple abrasions to her body and a bruise on her chest. It was deemed that her injuries would heal up within a week. b) The Government’s version 17.", "The Government indicated that, according to the incident report drawn up by the police, they had arrived at Leopardi Street shortly after midnight. The applicant informed them that she had been hit in the face. A.T. had given the police officers a knife. The applicant told the police that she wanted to go to hospital to have her injuries recorded. She had gone there and A.T. had returned home.", "The knife had been seized and the applicant fined for unauthorised possession of a lethal weapon. 3. The applicant’s complaint 18. At the hospital the applicant spoke to a social worker and said that she refused to return home to her husband. She was then given shelter by an association for the protection of female victims of violence, IOTUNOIVOI (“the association”).", "19. The president of the women’s shelter, accompanied by police officers, went to the cellar where the applicant had been living in order to fetch her clothes and personal effects. 20. From 20 August onwards A.T. began harassing the applicant by telephoning her and sending her insulting messages. 21.", "On 5 September 2012 the applicant lodged a complaint against her husband for bodily harm, ill-treatment and threats of violence, urging the authorities to take prompt action to protect her and her children and to prevent A.T. from approaching them. She stated that she had taken refuge in a women’s shelter and that A.T. was harassing her by telephone. 22. A.T. was placed under judicial investigation on charges of ill-treating family members, inflicting grievous bodily harm and making threats. The police sent the criminal complaint to the prosecution on 9 October 2012.", "23. On 15 October 2012 the prosecution, having regard to the applicant’s requests for protection measures, ordered urgent investigative measures, in particular requesting the police to find potential witnesses, including the applicant’s daughter. 24. The applicant was given shelter by the association for three months. 25.", "In a letter of 27 August 2012 the head of Udine social services informed the association that there were no resources available to take charge of the applicant or to find alternative accommodation for her. 26. The Government gave a different interpretation of that letter, saying that, as the applicant had not first been referred to the Udine social services, which cared for victims of violence in the context of another project, called “Zero tolerance”, the latter could not pay the association’s expenses. In their submission, female victims of violence could contact social services requesting assistance, which the applicant had not done. 27.", "On 4 December 2012 the applicant left the shelter to look for work. 28. She said that she had first slept in the street before being accommodated by a friend, and had subsequently found a job as an assistant nurse for elderly people and was then able to rent a flat. According to the applicant, A.T. had continued exerting psychological pressure on her to withdraw her complaint. 29.", "On 18 March 2013 the prosecution, finding that no investigative measure had been carried out, again asked the police to investigate the applicant’s allegations rapidly. 30. On 4 April 2013, seven months after she had lodged her complaint, the applicant was questioned for the first time by the police. She altered her statements, mitigating the seriousness of her original allegations. Regarding the episode of June 2012 she stated that A.T. had unsuccessfully attempted to hit her and her daughter.", "With regard to the incident that had occurred in August 2012, she said that A.T. had hit her but had not threatened her with a knife. A.T. had, however, pretended to turn the knife on himself. The applicant also stated that at the time she had not spoken very good Italian and had not been able to express herself properly. She also stated that A.T. had not forced her to have sex with other people and that she had returned to live at the family home. She said that when she had been living at the shelter provided by the association, she had not spoken to her husband on the telephone because she had been told not to.", "She stated that, barring her husband’s alcoholism, the situation at home was calm. She concluded by saying that her husband was a good father and a good husband and that there had been no further episodes of violence. 31. The applicant submitted that she had altered her original statements because of the psychological pressure exerted on her by her husband. 32.", "On 30 May 2013 the Udine public prosecutor’s office, after noting, firstly, that the applicant, who had been interviewed in April, had mitigated her allegations against her husband saying that he had not threatened her with a knife and that she had been misunderstood by an employee from the shelter where she had taken refuge and, secondly, that no other violent episode had occurred, asked the investigating judge to close the complaint lodged against A.T. for ill-treatment of family members. Regarding the offence of grievous bodily harm, the prosecuting authorities indicated that they intended to continue the investigations. 33. In a decision of 1 August 2013 the investigating judge discontinued the part of the complaint concerning the allegations of ill-treatment of family members and threats. He considered that the course of the events was unclear and that, with regard to the alleged ill-treatment, the offence had not been made out because, since the applicant had complained only about the incident of August 2012, the criterion of repeated episodes of violence was not satisfied.", "34. With regard to the complaint of threats aggravated by the use of a weapon, the investigating judge noted that the applicant’s statements were contradictory and that in the report drawn up by the hospital there was no reference to knife injuries. 35. With regard to the offence of causing bodily harm, the proceedings were continued before the magistrate. A.T. was committed for trial on 28 October 2013.", "The first hearing was held on 13 February 2014 and A.T. was ordered to pay a fine of 2,000 euros (EUR) on 1 October 2015. 4. The third assault by A.T., against the applicant and her son and the murder by A.T. of his son 36. It can be seen from the case file that on 18 November 2013 A.T. received notice of his committal for trial before the magistrate’s court on 19 May 2014 for inflicting bodily harm on the applicant in August 2012. 37.", "In the night of 25 November 2013 the applicant sought the intervention of the police in connection with a dispute with her husband. 38. The police made the following findings in their report: on their arrival they saw that the bedroom door had been broken down and that the floor was strewn with bottles of alcohol. The applicant had stated that her husband was under the influence of alcohol and that she had decided to call for help because she thought he needed a doctor. She told them that she had lodged a complaint against her husband in the past, but that she had subsequently changed her allegations.", "The applicant’s son had stated that his father had not been violent towards him. Neither the applicant nor her son had shown any traces of violence. 39. A.T. was taken to hospital in a state of intoxication. In the night he left the hospital and went to an amusement arcade.", "40. While he was walking along the street he was arrested by the police for an identity check at 2.25 a.m. 41. The police report shows that A.T. was in a state of intoxication and had difficulty keeping his balance and that the police had let him go after stopping and fining him. 42. At 5 a.m. A.T. entered the family flat armed with a 12 cm kitchen knife with the intention of assaulting the applicant.", "The applicant’s son attempted to stop him and was stabbed three times. He died of his wounds. The applicant tried to escape but A.T. succeeded in catching up with her in the street, where he stabbed her several times in the chest. 5. Criminal proceedings instituted against A.T. for grievous bodily harm 43.", "On 1 October 2015 A.T. was convicted by the magistrate’s court of inflicting grievous bodily harm on the applicant, on account of the injuries he had inflicted on her during the incident in August 2012, and sentenced to a fine of EUR 2,000. 6. Criminal proceedings instituted against A.T. for the murder of his son, the attempted murder of the applicant and ill-treatment of the applicant 44. On an unspecified date in November 2013 the investigation into acts of ill-treatment was reopened. 45.", "A.T. asked to be tried in accordance with the summary procedure (giudizio abbreviato). 46. On 8 January 2015 A.T. was sentenced to life imprisonment by the Udine preliminary hearings judge for the murder of his son and the attempted murder of his wife and for the offences of ill-treatment of his wife and daughter and unauthorised possession of a prohibited weapon. He was also ordered to pay the applicant, who had applied to join the proceedings as a civil party, EUR 400,000 in damages. 47.", "With regard to the ill-treatment, the preliminary hearings judge, after hearing witnesses and the applicant’s daughter, considered that the applicant and her children had been living in a climate of violence. He found that A.T. had been habitually violent and held that, apart from the daily harassment suffered by the applicant, there had been four violent episodes. He added that A.T., at his trial, had confessed to experiencing feelings of hatred towards his wife. According to the preliminary hearings judge, the events of 25 November 2013 were the consequence of an attempt by the applicant to get away from A.T. 48. On 22 May 2015 A.T. appealed against the judgment.", "It can be seen from the file that in a judgment of 26 February 2016 the judgment was upheld by the Court of Appeal. However, neither of the parties annexed the judgment to their observations. II. RELEVANT DOMESTIC LAW AND PRACTICE ... 55. In its report entitled “Violence towards women” (2014) the National Statistics Institute (ISTAT) provided statistical data concerning violence towards women.", "“Istat carried out the survey in 2014, on a sample of 24,000 women aged 16‑70.The results are to be widely disseminated also among migrant women. Istat carried out the survey in 2014, on a sample of 24,000 women aged 16-70. Estimates indicate the most affected foreign women for citizenship: Romania, Ukraine, Albania, Morocco, Moldavia, China. More specifically, according to the second Istat survey, 6,788,000 women have been victims of some forms of violence, either physical or sexual, during their life, that is 31.5% of women aged 16-70. 20.2% has been victim of physical violence; 21% of sexual violence and 5.4% of the most serious forms of sexual violence such as rape and attempted rape: 652,000 women have been victims of rape; and 746,000 have been victims of attempted rape.", "Further, foreign women are victims of sexual or physical violence on a scale similar to Italian women’s: 31.3% and 31.5%, respectively. However, physical violence is more frequent among the foreign women (25.7% vs. 19.6%), while sexual violence is more common among Italian women (21.5% vs. 16.2%). Specifically, foreign women are more exposed to rape and attempted rape (7.7% vs. 5.1%) with Moldavians (37,3%), Romanians (33,9%) and Ukrainians (33,2%) who are the most affected ones. As for the author, current and former partners are those who commit the most serious crimes. 62.7% of rapes is committed by the current or the former partner while the authors of sexual assault in the majority of cases are unknown (76.8%).", "As for the age of the victim, 10.6% of women have been victims of sexual violence prior to the age of 16. Considering VAW-cases against women with children who have been witnessed violence, the rate of children witnessing VAW cases rises to 65.2% compared to the 2006 figure (= 60.3%). As for women’s status, women separated or divorced are those far more exposes to physical or sexual violence (51.4% vs. 31.5% relating to all other cases). It remains of great concern the situation of women with disabilities or diseases. 36% of the women with bad health conditions and 36.6% of those with serious limitations have been victims of physical or sexual violence.", "The risk to be exposed to rape or attempted rape doubles compared to women without any health problems (10% vs. 4.7%). On a positive note, compared to the previous edition-2006, sexual and physical violence cases result to be reduced from 13.3% to 11.3%. This is the result of an increased awareness of existing protection tools by women in the first place and the public opinion at large, in addition to an overall social climate of condemnation and no mercy for such crimes. More specifically, physical or sexual violence cases committed by a partner or a former partner is reduced (as for the former, from 5.1% to 4%; as for the latter, from 2.8% to 2%) as well as for cases of VAW perpetrated by non-partners (from 9% to 7.7%). The decline is meaningful when considering cases among female students: it reduced from 17.1% to 11.9% in the event of former partners; from 5.3% to 2.4% in the event of current partner; and from 26.5% to 22%, in the event of a non-partner.", "Significantly reduced are those cases of psychological violence committed by the current partner (from 42.3% to 26.4%), especially when they are not coupled with physical and sexual violence. Women are far more aware that they have survived a crime (from 14.3% to 29.6% in case of violence by the partner) and it is reported far more often to the police (from 6.7% to 11.8%). More often, they talk about that with someone (from 67.8% to 75.9%) and look for professional help (from 2.4% to 4.9%). The same applies in the event of violence by a non-partner. Compared to the 2006 edition, survivors are far more satisfied with the relevant work carried out by the police.", "In the event of violence from the current or the former partner, data show an increase from 9.9% to 28.5%. Conversely, negative results emerge when considering cases of rape or attempted rape (1.2% in both editions). The forms of violence are far more serious with an increase of those also victims of injuries (from 26.3% to 40.2% when the partner is the author); and an increased number of women that were fearing that their life was in danger (from 18.8% in 2006 to 34.5% in 2014). Also the forms of violence by a non-partner are more serious. 3, 466,000 women (=16.1%) have been victims of stalking during lifetime, of whom 1, 524,000 have been victims of their former partner; and 2,229,000 from other person that the former partner.” III.", "RELEVANT INTERNATIONAL LAW 56. The relevant international law is partly described in the case of Opuz v. Turkey (no. 33401/02, §§ 72-82, ECHR 2009) and partly in the case of Rumor v. Italy (no. 72964/10, §§ 31-35, 27 May 2014). 57.", "At its 49th session, which was held from 11 to 29 July 2011, the Committee on the Elimination of Discrimination against Women (“the CEDAW Committee”) adopted its concluding comments on Italy, of which the passages relevant to the present case read as follows:- “26. The Committee welcomes the adoption of the Act No. 11/2009 which introduced a crime of stalking and mandatory detention for perpetrator of acts of sexual violence, the National Action Plan to Combat Violence against Women and Stalking as well as the first comprehensive research on physical, sexual and psychological violence against women developed by the National Statistics Institute. However, it remains concerned about the high prevalence of violence against women and girls and the persistence of socio-cultural attitudes condoning domestic violence, as well as lack of data on violence against immigrant, Roma and Sinti women and girls. The Committee is further concerned about the high number of women murdered by their partner or ex-partner (femicide), which may indicate a failure of the State party’s authorities to adequately protect the women victims from their partners or ex-partners.", "In accordance with its general recommendation No. 19 on violence against women and the views adopted by the Committee under the Optional Protocol procedures, the Committee urges the State party to: (a) put emphasis on comprehensive measures to address violence against women in the family and in society, including through addressing the specific needs of women made vulnerable by particular circumstances, such as Roma and Sinti, migrant and older women and women with disabilities; (b) ensure that female victims of violence have immediate protection, including expulsion of perpetrator from the home, guarantee that they can stay in secure and well funded shelters, in all parts of the country, and that they have access to free legal aid, psycho-social counselling and adequate redress, including compensation; (d) enhance the system of appropriate data collection on all forms of violence against women, including domestic violence, protection measures, prosecutions and sentences imposed on perpetrators and conduct appropriate surveys to assess the prevalence of violence experienced by women belonging to disadvantaged groups, such as Roma and Sinti, migrant and older women and women with disabilities; (e) further pursue, in collaboration with a broad range of stakeholders, including women’s and other civil society organizations, awareness-raising campaigns through the media and public education programmes to make violence against women socially unacceptable and disseminate information on available measures to prevent acts of violence against women among the general public; (f) ratify the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, in a timely manner.” 58. On 27 September 2012 the Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) was signed. It was ratified by Italy on 10 September 2013 and came into force in that country on 1 August 2014. The passages of that Convention relevant to the present case are partly set out in the case of Y. v. Slovenia (no.", "41107/10, § § 72, ECHR 2015 (extracts)). Furthermore, Article 3 of that Convention provides: Article 3 – Definitions “For the purpose of this Convention: a “violence against women” is understood as a violation of human rights and a form of discrimination against women and shall mean all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life; b “domestic violence” shall mean all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim; ...” 59. The conclusions of the United Nations Special Rapporteur on violence against women, its causes and consequences, drawn up following his official visit to Italy (from 15 to 26 January 2012), read as follows:- “VII. Conclusions and recommendations 91. Efforts have been made by the Government to address the issue of violence against women, including through the adoption of laws and policies and the establishment and merger of governmental bodies responsible for the promotion and protection of women’s rights.", "Yet these achievements have not led to a decrease in the femicide rate or translated into real improvements in the lives of many women and girls, particularly Roma and Sinti women, migrant women and women with disabilities. 92. Despite the challenges of the current political and economic situation, targeted and coordinated efforts in addressing violence against women, through practical and innovative use of limited resources, need to remain a priority. The high levels of domestic violence, which are contributing to rising levels of femicide, demand serious attention. 93.", "The Special Rapporteur would like to offer the Government the following recommendations. A. Law and policy reforms 94. The Government should: (a) Put in place a single dedicated governmental structure to deal exclusively with the issue of substantive gender equality broadly and violence against women in particular, to overcome duplication and lack of coordination; (b) Expedite the creation of an independent national human rights institution with a section dedicated to women’s rights; (c) Adopt a specific law on violence against women to address the current fragmentation which is occurring in practice due to the interpretation and implementation of the civil, criminal and procedures codes; (d) Address the legal gap in the areas of child custody and include relevant provisions relating to protection of women who are the victims of domestic violence; (e) Provide education and training to strengthen the skills of judges to effectively address cases of violence against women; (f) Ensure the provision of quality, State-sponsored legal aid to women victims of violence as envisaged in the constitution and Law No. 154/200 on measures against violence in family relations; (g) Promote existing alternative forms of detention, including house arrest and low-security establishments for women with children, having due regard to the largely non-violent nature of the crimes for which they are incarcerated and the best interest of children; (h) Adopt a long-term, gender-sensitive and sustainable policy for social inclusion and empowerment of marginalized communities, with a particular focus on women’s health, education, labour and security; (i) Ensure the involvement of representatives of these communities, particularly women, in the design, development and implementation of policies which impact them; (j) Ensure continued provision of quality education for all, including through a flexible application of the 30 per cent ceiling of non-Italian pupils per classroom, to allow for inclusive schools particularly in places where the population of non-Italians is high.", "(k) Amend the “Security Package” laws generally, and the crime of irregular migration in particular, to ensure access of migrant women in irregular situations to the judiciary and law enforcement agencies, without fear of detention and deportation; (l) Address the existing gender disparities in the public and private sectors by effectively implementing the measures provided by the Constitution and other legislation and policies to increase the number of women, including from marginalized groups, in the political, economic, social, cultural and judicial spheres; (m) Continue to remove legal hurdles affecting the employment of women, which is exacerbated through the practice of signing blank resignations, and the lower positions and salary scale for women. Strengthen the social welfare system by removing impediments to the integration of women into the labour market; (n) Ratify and implement the Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children; the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, International Labour Organization Convention No. 189 (2011) concerning decent work for domestic workers; the European Convention on the Compensation of Victims of Violent Crimes and the Council of Europe Convention on preventing and combating violence against women and domestic violence. B. Societal changes and awareness-raising initiatives 95.", "The Government should also: (a) Continue to conduct awareness-raising campaigns aimed at eliminating; (b) Strengthen the capacity of the National Racial Discrimination Office to put in place programmes to bring about change in society’s perception of women who belong to marginalized communities and groups; (c) Continue to conduct targeted sensitization campaigns, including with CSOs, to increase awareness on violence against women generally, and women from marginalized groups in particular; (d) Train and sensitize the media on women’s rights including on violence against women, in order to achieve a non-stereotyped representation of women and men in the national media. C. Support services 96. The Government should further: (a) Continue to take the necessary measures, including financial, to maintain existing and/or set-up new anti-violence shelters for the assistance and protection of women victims of violence; (b) Ensure that shelters operate according to international and national human rights standards and that accountability mechanisms are put in place to monitor the support provided to women victims of violence; (c) Enhance coordination and exchange of information among the judiciary, police and psychosocial and health operators who deal with violence against women; (d) Recognize, encourage and support public-private partnerships with CSOs and higher learning institutions, to provide research and responses to addressing violence against women.” 60. A report by the non-governmental organisation WAVE (Women Against Violence Europe) on Italy was published in 2015. The part relevant to the present case reads as follows: “In 2014, 681 women and 721 children were accommodated at 45 women’s shelters that are part of the national network Associazione Nazionale Donne in Rete contro la violenza - D.i.R.e.", "In addition, there are three shelters for Black and Minority Ethnic (BME) women, migrant and asylum seeking women in the cities of Reggio Emilia, Imola and Modena, one shelter for girls and young women victims of forced marriage, and 12 shelters for victims of trafficking. Women’s Centres There are 140 women’s centres providing non-residential support to women survivors of any kind of violence in Italy; 113 of these centres are run by NGOs, 19 are run by the state, and 8 are run by faith-based organisations. While the exact number of such services is not known, there are several women’s centres for Black and Minority Ethnic (BME) women, as well as centres for women victims of trafficking. All the women’s centres provide information and advice, counselling, advocacy and practical support with access to social rights (i.e. housing, income, health care) and legal advice.", "Some only provide specialist support for children and family support, and cooperate with programmes for perpetrators of violence against women. Women’s Networks There is one national women’s network in Italy, called Associazione Nazionale Donne in Rete contro la violenza - D.i.R.e. The network includes 73 members, all women’s organisations running women’s shelters and anti-violence centres in Italy. Formed in 2008 and based in Rome, the network conduct activities in the areas of public awareness, lobbying and advocacy, training, research and networking. In 2014, the network received EUR 66,747 in funding from various private donors and foundations for specific projects, and EUR 20,000 in membership fees.", "Policy & Funding The Extraordinary Action Plan against gender and sexual violence in accordance with art.5 par. 1 Law Decree 14 August 2013 n.93 converted with amendments into Law 15 October 2013 n.119 (Piano di Azione Straordinario contro la violenza sessuale e di genere ai sensi dell’art 5 comma 1 D.L. 14 Agosto 2013 n. 93 convertito con modifiche nella legge del 15 Ottobre 2013 n 119) was launched in 2015 and covers a three-year period [voir paragraphe 53 ci-dessus]. The Plan addresses rape and sexual assault only marginally, and it does not provide for adequate financing of existing services or to create new services in the many regions where these are inexistent. While forced and early marriage is mentioned in the Plan, no particular measures are included.", "Conceived as an extraordinary measure provided for in a law decree addressing other subjects, the Plan generally fails to address the structural characteristics of violence against women and gender-based violence. Measures and interventions included in the Plan do not consider women’s shelters and anti-violence centres as key actors in providing specialist support to survivors of violence, with a gender perspective. The Department for Equal Opportunities – Presidency of the Council of Ministers – acts as coordinating body for the implementation of policies on VAW. This body has in practice little effectiveness, largely due to the failure of the President of the Council of Ministers to appoint a Minister with decision-making. There is currently no national monitoring body entrusted with the evaluation of national strategies on VAW in Italy, and women’s organisations are rarely invited to conduct such evaluation.", "Nonetheless, in 2014, a coalition of Italian women’s NGOs (among which D.i.R.e.) submitted a Shadow Report on the implementation of the Beijing Declaration and Platform for Action covering 2009-2014, and including review of national strategies on VAW. In 2014, funding for governmental activities to combat VAW equalled EUR 7 million, while very little funding was provided for NGOs activities through local regional governments; detailed information on funding for NGOs activities is not available, due to the budget being decentralized. State funding for women’s organisations providing support is exclusively project-based. Prevention, Awareness-raising, Campaigning The national women’s network, along with most of the women’s shelters and centres, and the national women’s helpline conduct activities in the field of prevention, awareness-raising and campaigning; besides the national women’s helpline (1522), none of them received funding to carry out these activities in 2014.", "Training Most of the women’s shelters and centres conduct trainings with a number of target groups: police, judiciary, civil servants, health professionals, psychologists, social workers, education professionals, media, and others.” THE LAW ... II. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION 76. Relying on Articles 2, 3 and 8 of the Convention, the applicant complained that, owing to their complacency and indifference, the Italian authorities, despite having been alerted several times to her husband’s violence, had not taken the necessary measures to protect her and her son’s life from the – in her view real and known – risk represented by her husband, and had not prevented the commission of other domestic violence. She alleged that the authorities had thus failed to comply with their positive obligation under the Convention. 77.", "The Court reiterates that since it is master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by an applicant or a government. By virtue of the jura novit curia principle, it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by the parties. In other words, a complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012). Having regard to the circumstances complained of by the applicant and the manner in which her complaints were formulated, the Court will examine them under Articles 2 and 3 of the Convention (for a similar approach, see E.M. v. Romania, no.", "43994/05, § 51, 30 October 2012; Valiulienė v. Lithuania, no. 33234/07, § 87, 26 March 2013; and M.G. v. Turkey, no. 646/10, § 62, 22 March 2016). Those Articles provide: 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.” 78. The Government disputed that argument. A.", "The applicant’s submissions 79. The applicant alleged that the failure by the authorities to comply with their obligation to protect her life and that of her son, who was killed by her husband, had resulted in a violation of Article 2 of the Convention. She submitted in that regard that the Italian authorities had failed to protect her son’s right to life and that they had been negligent before the repeated violence, threats and injuries which she herself had endured. 80. She argued that the Italian authorities had tolerated de facto her husband’s violence.", "In her submission, the police had known since June 2012 that she had been a victim of violence and should have known that there was a real and serious risk that A.T. would be violent towards her. According to the applicant, there had been clear signs of a continuing threat of danger to her, but the authorities had not taken the necessary measures immediately after she had lodged her complaint and had thus left her alone and defenceless. 81. The applicant alleged, further, that, despite the hospital certificate of 19 August 2012 establishing that she had been beaten and threatened with a knife, that fact had not been taken seriously. 82.", "In the applicant’s view, the only remedy available had been a criminal complaint and this had not been effective. She stated that she had lodged a complaint on 5 September 2012 and made a statement to the police in April 2013. She added that, during the seven months between lodging the complaint and giving her statement, no investigative steps had been taken and no witnesses heard. In March 2013 the public prosecutor had again had to ask the police to investigate (see paragraph 29 above). 83.", "The applicant complained of the authorities’ complacency and stated that she had changed her version of the facts once she had been questioned by the police seven months after lodging her complaint. In her view, it was clear that the State had not protected her and that she had been abandoned by the authorities, who had not taken any measures to protect her despite her request. The applicant also stated that the Udine District Council, while aware of the difficult situation in which she found herself, had refused to help her and had stopped funding her accommodation at the shelter run by the association for the protection of battered women. In her submission, the authorities should have intervened of their own motion given the circumstances of the case and her vulnerability. 84.", "The applicant argued that, according to the Court’s case-law, the positive obligations under Article 2 of the Convention imposed a primary 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 and backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. She submitted that this could also imply in certain circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life was at risk from the criminal acts of another individual (she referred to Osman v. the United Kingdom, 28 October 1998, § 115, Reports of Judgments and Decisions 1998‑VIII, cited in Kontrová v. Slovakia, no. 7510/04, § 49, 31 May 2007). She concluded that in the present case the Italian State had not taken the necessary measures to protect her life and that of her son. 85.", "Referring to the Court’s case-law (Opuz, cited above, § 159), the applicant complained that she had also been subjected to inhuman and degrading treatment. She reiterated that she had lodged a complaint, supported by her medical case notes, in September 2012 and that, for seven months, the authorities had done nothing to protect her. She added that her husband had meanwhile succeeded in convincing her to come back and live with him. 86. In conclusion, the applicant submitted that the State had failed to comply with its positive obligations under Articles 2 and 3 of the Convention.", "B. The Government’s submissions 87. After stating the principles established in the Court’s case-law, the Government submitted that not every claimed risk to life could entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising (they referred to Opuz, cited above, § 129). In their submission, it also had to be established that the authorities had known or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they had failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. 88.", "Furthermore, the Government considered that the present case had to be distinguished from the case of Opuz (cited above). In their submission, in the present case the authorities had not known and could not have known that the applicant and her son’s lives were at risk, as there had been no tangible evidence that their lives were in imminent danger. They pointed out that, after the two episodes of violence in June and August 2012 the applicant had found refuge in a victim support shelter and that she had subsequently found employment providing her with financial independence. In the Government’s submission, the two episodes reported in June and August 2012 had appeared to be mere family rows. The Government submitted that the authorities had done everything in their power by fining A.T. for unauthorised possession of a lethal weapon, and that an investigation in respect of ill-treatment and bodily injury required that a complaint be lodged.", "89. The Government also stated that the applicant had left the shelter where she had taken refuge and that when she had been questioned by the police in April 2013 she had changed her earlier statements. They observed that the authorities, before discontinuing the complaint of ill-treatment, had checked whether her version of the facts was accurate, whether there had been other events of that type and whether the applicant had been in a vulnerable situation capable of inducing her to change her statements. According to the Government, the applicant had then stated that there had been no further incident and that A.T. had calmed down. 90.", "In those circumstances the Government considered that an intervention by the authorities could have breached Article 8 of the Convention. 91. In their view, the time that elapsed between lodging the complaint and hearing the applicant had not had the effect of leaving the applicant exposed to violence from A.T. The Government pointed out, further, that as no other request for intervention had been made, there had been no specific sign of real and immediate violence. They added that on the basis of the aforementioned factors the authorities had decided not to prosecute A.T. for ill-treatment of family members.", "92. The Government submitted that the applicant had never shown that she had suffered continual abuse or violence or that she had lived in fear of being attacked. They observed, however, that during her interview with the police in April 2013 she had asserted that she was no longer being abused. 93. Consequently, the Government considered that the acts of violence allegedly suffered by the applicant could not be classified as inhuman or degrading treatment.", "94. From a procedural point of view, the Government submitted that they had complied with their positive obligations under the Convention. They stated that, following the investigation, as the applicant had changed her statements, the prosecution had to request that the case be discontinued. They added that the proceedings relating to the offence of causing bodily injury had continued and that A.T. had been sentenced on 1 October 2015 to pay a fine of EUR 2,000. C. The Court’s assessment 1.", "Applicable principles 95. The Court will examine the complaints under Articles 2 and 3 of the Convention in the light of the converging principles deriving from both those provisions, principles which are well-established and have been summarised, inter alia, in the judgments Nachova and Others v. Bulgaria ([GC], nos. 43577/98 and 43579/98, §§ 110 and 112-113, ECHR 2005‑VII), and Ramsahai and Others v. the Netherlands ([GC], no. 52391/99, §§ 324-25, ECHR 2007‑II). 96.", "The Court has already stated that, in interpreting Articles 2 and 3, it must be guided by the knowledge that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective. 97. It reiterates that Article 3, like Article 2, must be regarded as one of the most fundamental provisions of the Convention and as enshrining one of the core values of the democratic societies making up the Council of Europe (see Soering v. the United Kingdom, 7 July 1989, § 88, Series A no. 161). In contrast to the other provisions in the Convention, it is cast in absolute terms, without exception or proviso, or the possibility of derogation under Article 15 of the Convention (see Pretty v. the United Kingdom, no.", "2346/02, § 49, ECHR 2002‑III). 98. The Court also reiterates the general principles established in its case-law concerning domestic violence as laid down in Opuz (cited above, § 159, with the case-law references mentioned therein). 99. In that connection it reiterates that children and other vulnerable individuals – into which category fall victims of domestic violence – in particular are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see Opuz, cited above, § 159).", "It also observes that the positive obligations laid down in the first sentence of Article 2 of the Convention also require by implication that the State should set in place an efficient and independent judicial system by which the cause of a death can be established and the guilty parties punished. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. A requirement of promptness and reasonable expedition is implicit in that context (ibid., §§ 150-51). 100. The Court has also previously held that the authorities’ positive obligations – in some cases under Articles 2 or 3 and in other instances under Article 8 taken alone or in combination with Article 3 of the Convention – may include a duty to put in place and apply an adequate legal framework affording protection against acts of violence by private individuals (see, among other authorities, Bevacqua and S. v. Bulgaria, no.", "71127/01, § 65, 12 June 2008; Sandra Janković v. Croatia, no. 38478/05, § 45, 5 March 2009; A. v. Croatia, no. 55164/08, § 60, 14 October 2010; Đorđević v. Croatia, no. 41526/10, §§ 141-143, ECHR 2012; and M. and M. v. Croatia, no. 10161/13, § 136, ECHR 2015 (extracts)).", "101. Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman, cited above, § 115; Branko Tomašić and Others v. Croatia, no. 46598/06, § 50, 15 January 2009; Opuz, cited above, § 128; Mahmut Kaya v. Turkey, no. 22535/93, § 85, ECHR 2000‑III; and Kılıç v. Turkey, no. 22492/93, § 62, ECHR 2000‑III).", "Bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Keenan v. the United Kingdom, no. 27229/95, §§ 89-90, ECHR 2001‑III; Gongadze v. Ukraine, no. 34056/02, § 165, ECHR 2005‑XI; and Opuz, cited above, §§ 129-30).", "Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention (see Osman, cited above, § 116, and Opuz, cited above, § 129). 102. The Court reiterates that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together 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 or punishment, even administered by private individuals. 103. Nevertheless, it is not the Court’s role to replace the national authorities and to choose in their stead from among the wide range of possible measures that could be taken to secure compliance with their positive obligations under Article 3 of the Convention (see Opuz, cited above, § 165).", "Moreover, under Article 19 of the Convention and under the principle that the Convention is intended to guarantee not theoretical or illusory, but practical and effective rights, the Court has to ensure that a State’s obligation to protect the rights of those under its jurisdiction is adequately discharged (see Sandra Janković, cited above, § 46, and Hajduová v. Slovakia, no. 2660/03, § 47, 30 November 2010). The question of the appropriateness of the authorites’ response may raise a problem under the Convention (see Bevacqua and S., cited above, § 79). 104. The positive obligation to protect a person’s physical integrity extends to matters concerning the effectiveness of a criminal investigation, which cannot be considered to be limited solely to cases of ill-treatment by State agents (see M.C.", "v. Bulgaria, no. 39272/98, § 151, ECHR 2003‑XII). 105. This aspect of the positive obligation does not necessarily require a conviction, but effective implementation of the law, particularly criminal, in order to secure the protection of the rights guaranteed by Article 3 of the Convention (see M.G. v. Turkey, cited above, § 80).", "106. A requirement of promptness and reasonable expedition is implicit in the obligation to carry out an investigation. The protection machinery provided for in domestic law must operate in practice within a reasonable time such as to conclude the examination on the merits of specific cases submitted to them (see Opuz, cited above, §§ 150-51). The State’s obligation under Article 3 of the Convention will not be deemed to be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice, and that requires a prompt examination of the case without unnecessary delays. 2.", "Application of the above-mentioned principles to the present case a) Article 2 107. The Court observes first of all that there is no doubt that Article 2 of the Convention applies to the situation arising as a result of the death of the applicant’s son. 108. It notes subsequently that in the instant case the force used against the applicant was not in the event lethal. This does not, however, exclude in principle an examination of the complaints under Article 2, the text of which, read as a whole, demonstrates that it covers not only intentional killing but also situations where it is permitted to use force which may result, as an unintended outcome, in the deprivation of life (see Makaratzis v. Greece [GC], no.", "50385/99, §§ 49-55, ECHR 2004‑XI). The first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports 1998‑III). 109. It is also necessary to bear in mind that, where the State’s positive obligations to protect the right to life are concerned, it may be a question of recourse to lethal force by the police or of failure by the authorities to take protective measures to avoid a risk from the acts of third party (see, for example, Osman, cited above, §§ 115-22).", "110. The Court considers that the applicant was the victim of inherently life-endangering conduct even though she ultimately survived her injuries (see Camekan v. Turkey, no. 54241/08, § 38, 28 January 2014). Article 2 of the Convention therefore applies in the present case in respect of the applicant herself as well. 111.", "Turning to the circumstances of the instant case, the Court notes that, following the violent acts perpetrated against her in June and August 2012, the applicant lodged a criminal complaint in respect of the abuse inflicted by A.T. (see paragraph 21 above). It observes that the applicant appended to her complaint a medical report drawn up after the assault and describing the physical injuries visible on her body (see paragraph 16 above). At that time she expressed her fears for her life and that of her daughter and requested the benefit of protective measures. Accordingly, the conduct of the domestic authorities must be assessed from that date onwards. 112.", "The Court notes that a judicial investigation was instituted against A.T. for ill-treatment of family members, inflicting grievous bodily harm and making threats. The police sent the applicant’s complaint to the prosecution on 9 October 2012. On 15 October 2012 the prosecuting authorities, having regard to the applicant’s request for protective measures, ordered urgent investigative measures to be carried out. In particular, they requested the police to check whether there had been witnesses, including the applicant’s daughter. It notes that in the meantime the applicant had found refuge, through an association, in a shelter for victims of violence, where she stayed for three months.", "113. The Court notes that no protection order was issued, that the prosecution reiterated its request to the police in March 2013, emphasising the urgency of the situation, and that the applicant was not heard until April 2013. 114. Whilst, in the context of domestic violence, protection measures are in principle intended to avoid a dangerous situation as quickly as possible, the Court notes that seven months elapsed before the applicant was heard. Such a delay could only serve to deprive the applicant of the immediate protection required by the situation.", "Admittedly, as submitted by the Government, during the period in question the applicant was not subjected to further physical acts of violence by A.T. However, the Court cannot disregard the fact that the applicant, who was being harassed by telephone, was living in fear while staying at the shelter. 115. In the view, the national authorities had a duty to take account of the unusual psychological, physical and material situation in which the applicant found herself and to assess the situation accordingly, providing her with appropriate support. That was not done in this case.", "116. While it is true that, seven months later, in April 2013, the applicant changed some of her statements, which led the authorities to discontinue the case in part, the Court notes that proceedings for grievous bodily harm were still pending on that date. Yet, the authorities failed to conduct any assessment of the risks facing the applicant, including the risk of renewed assaults. 117. In the light of the foregoing, the Court considers that, by failing to act rapidly after the applicant had lodged her complaint, the national authorities deprived the complaint of any effectiveness, creating a situation of impunity conducive to the recurrence of A.T.’s acts of violence against his wife and family (see Halime Kılıç v. Turkey, no.", "63034/11, § 99, 28 June 2016). 118. Although the Government submitted that there had been no tangible evidence of an imminent danger to the applicant’s life or that of her son, the Court considers that the authorities do not appear to have assessed the risks involved for the applicant as a result of A.T.’s behaviour. 119. It notes that the context of impunity referred to above (see paragraph 117) reached its peak during the tragic night of 25 November 2013.", "The Court observes in that connection that the police intervened twice that night. Having been called out by the applicant, the police first found the bedroom door broken and the floor strewn with bottles of alcohol. The applicant had informed them that her husband had been drinking and that she had decided to call them because she thought he needed a doctor. She had told them that she had lodged a complaint against her husband in the past, but that she had subsequently changed her statements. The couple’s son had stated that his father was not violent towards him.", "Lastly, neither the applicant not her son presented any traces of violence. A.T. had been taken to hospital in a state of intoxication but had subsequently checked himself out to go to an amusement arcade. The police intervened a second time the same night when they stopped and fined A.T. during an identity check in the street. According to the police report, A.T. had been in a state of intoxication, had difficulty maintaining his balance and the police had let him go after fining him. 120.", "The Court notes that on neither occasion did the authorities take any specific measures to provide the applicant with adequate protection consonant with the seriousness of the situation, even though the violence inflicted on her by A.T. was known to the police as proceedings for inflicting grievous bodily harm on the applicant were still pending at the time (see paragraph 35 above). 121. The Court cannot speculate as to how events would have turned out if the authorities had adopted a different approach. It reiterates, however, that a failure to take reasonable measures which might realistically have altered the outcome or mitigated the harm is sufficient to engage the State’s responsibility (see E. and Others v. the United Kingdom, no. 33218/96, § 99, 26 November 2002; Opuz, cited above § 136; and Bljakaj and Others v. Croatia, no.", "74448/12, § 124, 18 September 2014). 122. In the Court’s view, the risk of a real and immediate threat (see paragraph 99 above) must be assessed taking due account of the particular context of domestic violence. In such a situation it is not only a question of an obligation to afford general protection to society (see Mastromatteo v. Italy [GC], no. 37703/97, § 69, ECHR 2002‑VIII; Maiorano and Others v. Italy, no.", "28634/06, § 111, 15 December 2009; Choreftakis and Choreftaki v. Greece, no. 46846/08, § 50, 17 January 2012; and Bljakaj, cited above, § 121), but above all to take account of the recurrence of successive episodes of violence within the family unit. In that context the Court reiterates that the police had to intervene twice during the night of 25 November 2013: firstly when they inspected the damaged flat, and secondly when they stopped and fined A.T., who was in a state of intoxication. Having regard also to the fact that the police had been in a position to check, in real time, A.T.’s police record, the Court considers that they should have known that the applicant’s husband constituted a real risk to her, the imminent materialisation of which could not be excluded. It therefore concludes that the authorities failed to use their powers to take measures which could reasonably have prevented, or at least mitigated, the materialisation of a real risk to the lives of the applicant and her son.", "123. The Court reiterates that in domestic violence cases perpetrators’ rights cannot supersede victims’ human rights to life and to physical and psychological integrity (see Opuz, cited above, § 147). Furthermore, the State has a positive obligation to take preventive operational measures to protect an individual whose life is at risk. 124. In those circumstances the Court concludes that the authorities cannot be considered to have displayed due diligence.", "They therefore failed in their positive obligation to protect the right to life of the applicant and her son within the meaning of Article 2 of the Convention. 125. Having regard to the foregoing, the Court considers that the shortcomings observed above rendered the applicant’s criminal complaint ineffective in the circumstances of the instant case. Accordingly, it rejects the preliminary objection raised by the Government on grounds of non-exhaustion of domestic remedies (see paragraph 68 above) and concludes that there has been a violation of Article 2 of the Convention. b) Article 3 126.", "The Court considers that the applicant can be regarded as belonging to the category of “vulnerable persons” entitled to State protection (see A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998‑VI). In that connection it takes note of the acts of violence suffered by the applicant in the past. It also notes that the violent acts perpetrated against the applicant, manifesting themselves in physical injuries and psychological pressure, are sufficiently serious to be classified as ill-treatment within the meaning of Article 3 of the Convention. It must therefore be determined whether the domestic authorities acted in a manner such as to satisfy the requirements of that Article. 127.", "The Court has found, under Article 2 of the Convention (see paragraph 117 above) that, by failing to act rapidly after the applicant had lodged her complaint, the national authorities deprived the complaint of any effectiveness, creating a situation of impunity conducive to the recurrence of A.T.’s acts of violence against his wife and family. It also notes that A.T. was convicted on 1 October 2015 of causing grievous bodily harm following the incident in August 2012, while in the meantime he had killed his son and attempted to murder the applicant and had also been sentenced on 8 January 2015, by the Udine preliminary hearings judge to life imprisonment for the murder of his son and the attempted murder of his wife, and for the offences of ill-treatment of the applicant and her daughter. It was established that the applicant and her children had been living in a climate of violence (see paragraph 47 above). 128. The Court reiterates on this point that the mere passing of time can work to the detriment of the investigation, and even fatally jeopardise its chances of success (see M.B.", "v. Romania, no. 43982/06, § 64, 3 November 2011). It also observes that the passing of time will inevitably erode the amount and quality of the evidence available and that the appearance of a lack of diligence will cast doubt on the good faith of the investigative efforts, as well as drag out the ordeal for the complainants (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002‑II). 129.", "The Court again emphasises that special diligence is required in dealing with domestic violence cases and considers that the specific nature of domestic violence as recognised in the Preamble to the Istanbul Convention (see paragraph 58 above) must be taken into account in the context of domestic proceedings. It stresses in this regard that the Istanbul Convention imposes a duty on the States Parties to take “the necessary legislative or other measures to ensure that investigations and judicial proceedings in relation to all forms of violence covered by the scope of this Convention are carried out without undue delay while taking into consideration the rights of the victim during all stages of the criminal proceedings”. 130. In that connection the Court also considers that, in judicial cases involving disputes relating to violence against women, the national authorities have a duty to examine the victim’s situation of extreme psychological, physical and material insecurity and vulnerability and, with the utmost expedition, to assess the situation accordingly. In the instant case there is no explanation for the authorities’ complacency for such a long period – seven months – before the instigation of criminal proceedings.", "Likewise, there is no explanation for why the criminal proceedings for grievous bodily harm, instituted after the applicant had lodged her complaint, lasted three years, ending on 1 October 2015. 131. Having regard to the findings in the present case, the Court considers that the manner in which the domestic authorities prosecuted the case is also a manifestation of that judicial complacency and cannot be deemed to satisfy the requirements of Article 3 of the Convention. ... III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLES 2 AND 3 133.", "Relying on Article 14 of the Convention taken in conjunction with Articles 2 and 3, the applicant submitted that the omissions by the Italian authorities proved that she had been discriminated against as a woman and that the Italian legislation on domestic violence was inadequate. Article 14 of the Convention provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. The parties’ submissions 134. Referring to all the domestic and international legislation she considered relevant in the instant case, the applicant relied on the conclusions of the United Nations Special Rapporteur, who urged Italy to eliminate stereotypical attitudes about the roles and responsibilities of women and men in the family, society and workplace. 135.", "The applicant alleged that she had not had the benefit of adequate legislative protection and that the authorities had failed to respond appropriately to her allegations of domestic violence. In her submission, that amounted to discriminatory treatment on grounds of sex. 136. Referring to the Court’s conclusion regarding Article 14 of the Convention taken in conjunction with Article 3 in the case of T.M. and C.M.", "v. the Republic of Moldova (no. 26608/11, §§ 49 and 62, 28 January 2014), the applicant requested the Court to conclude that there had been a violation of Article 14. 137. The Government submitted that there had not been discrimination on grounds of sex in the present case. Moreover, in their submission, the claim that discrimination was institutionalised by the criminal law or administrative or judicial practice did not stand up to close analysis.", "138. They pointed out that the National Council of the Judiciary had adopted two resolutions – on 11 February 2009 and 18 March 2014 – requesting the heads of the judicial offices to organise their departments and specialise in this area in such a way as to be able to deal effectively with cases of domestic violence. 139. They added that the domestic law provided for a firm response to such acts of violence: the law on stalking ... contained provisions for combating violence against women. B.", "The Court’s assessment 1. Admissibility 140. The Court, while observing that this complaint was never examined as such by the domestic courts, considers, in the light of the circumstances of the case, that it is so closely linked to the complaints examined above that the outcome must be the same and the complaint accordingly declared admissible. 2. Merits 141.", "The Court reiterates that, according to its case-law, a State’s failure to protect women against domestic violence breaches their right to equal protection before the law and that this failure does not need to be intentional (see Opuz, cited above, § 191). The Court has previously held that “the general and discriminatory judicial passivity [of the police] creating a climate that was conducive to domestic violence” amounted to a violation of Article 14 of the Convention (ibid., §§ 191 et seq.). It also found that such discriminatory treatment occurred where it could be established that the authorities’ actions were not a simple failure or delay in dealing with the violence in question, but amounted to repeatedly condoning such violence and reflected a discriminatory attitude towards the complainant as a woman (see Eremia v. the Republic of Moldova, no. 3564/11, § 89, 28 May 2013). 142.", "In the instant case the Court notes that the applicant was assaulted by A.T. on several occasions (see paragraphs 10, 16, 21 and 47 above) and that the authorities had been aware of this. 143. It observes that the authorities did not carry out any investigation in the seven months following the applicant’s lodging of her complaint and that no measure of protection was implemented. Whilst, admittedly, the proceedings in respect of the applicant’s complaint were discontinued approximately one year later, on account of her having changed her statements, the Court also notes that A.T. was convicted of grievous bodily harm three years later, on 1 October 2015, after killing his son and attempting to murder the applicant. 144.", "The authorities’ complacency in the present case is particularly striking in that the prosecution had asked the police, who had remained inactive for six months, to take immediate action having regard to the applicant’s request for protective measures. The Court reiterates in this connection the findings it has reached regarding the domestic authorities’ failure to provide the applicant with effective protection and the impunity enjoyed by A.T. (see paragraph 117 above). 145. According to the Court, the combined effect of the above-mentioned factors shows that, by underestimating, through their complacency, the seriousness of the violent acts in question, the Italian authorities in effect condoned them. The applicant was therefore a victim of discrimination, as a woman, in breach of Article 14 of the Convention (see T.M.", "and C.M. v. the Republic of Moldova, cited above, § 62; Eremia, cited above, § 98; and Mudric v. the Republic of Moldova, no. 74839/10, § 63, 16 July 2013). Furthermore, the conclusions of the Special Rapporteur on violence against women, its causes and consequences, following his official visit to Italy (see 59 paragraph above), those of the CEDAW (see paragraph 57 above) and those of the National Statistics Institute (see paragraph 55 above) demonstrate the extent of the problem of domestic violence in Italy and the discrimination suffered by women in this regard. The Court considers that the applicant provided prima facie evidence, backed up by undisputed statistical data, that domestic violence primarily affects women and that, despite the reforms implemented, a large number of women are murdered by their partners or former partners (femicide) and, secondly, that the socio-cultural attitudes of tolerance of domestic violence persist (see paragraph 57 and 59 above).", "146. That prima facie evidence, which is undisputed by the Government, distinguishes the present case from that of Rumor (cited above, § 76), the circumstances of which were very different, and in which the Court had held that the legislative framework in Italy governing domestic violence had been effective in that case in punishing the perpetrator of the crime of which the applicant had been a victim and preventing the recurrence of violent attacks on her physical integrity and had accordingly held that there had been no violation of Article 3, taken alone or in conjunction with Article 14. 147. The Court reiterates that, having found that the criminal-law system in the present case had not had an adequate deterrent effect capable of effectively preventing the unlawful acts by A.T against the personal integrity of the applicant and of her son, it held that there had been a violation of the applicant’s rights under Articles 2 and 3 of the Convention. 148.", "Having regard to its conclusions reached above (see paragraph 145), the Court considers that the violence perpetrated against the applicant must be regarded as based on her sex and accordingly as a form of discrimination against women. 149. Consequently, in the circumstances of the instant case, the Court concludes that there has been a violation of Article 14 of the Convention taken in conjunction with Articles 2 and 3 of the Convention. ... FOR THESE REASONS, THE COURT ... 3. Holds, by six votes to one, that there has been a violation of Article 2 of the Convention on account of the murder of the applicant’s son and the attempted murder of the applicant; 4.", "Holds, unanimously, that there has been a violation of Article 3 of the Convention on account of the authorities’ failure to comply with their obligation to protect the applicant from the acts of domestic violence committed by A.T.; ... 6. Holds, by five votes to two, that there has been a violation of Article 14 of the Convention taken in conjunction with Articles 2 and 3; ... Done in French, and notified in writing on 2 March 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel CamposMirjana Lazarova TrajkovskaRegistrarPresident 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 concurring, partly dissenting opinion of Judge Eicke; (b) partly dissenting opinion of Judge Spano. M.L.T.", "A.C. PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE EICKE I. Article 2 and/or 3 of the Convention 1. Having had the opportunity to read, in draft, the Partly Dissenting Opinion of Judge Spano in this Case, I agree with his expression of the applicable principles (as derived from Opuz v. Turkey, no. 33401/02, ECHR 2009, and Osman v. the United Kingdom, 28 October 1998, Reports 1998-VIII), as well as the identification of the two questions to be answered concerning the “immediacy of the risk” and “reality of the risk”: see Sections I and II of that Partly Dissenting Opinion.", "However, unlike him and not without considerable hesitation, I have reached a different conclusion on the application of those principles to the facts in the present case and have voted for a finding of a violation of Articles 2 and 3. 2. In relation to the question of immediacy of the risk Judge Spano focusses on the “lapses of time” between the initial incidents culminating in the lodging of her complaint on 5 September 2012 and the time of the tragic events of 25 November 2013. He concludes that these lapses “challenge the possibilities of imminence of risk in this case” (§ 5). However, from the point of view of the relevant “agents of the State” to whom an imminent real risk must have been reasonably foreseeable, the evidence suggests that there were a number of relevant events during that period of time running right up to the end of 2013.", "These include: a. 19 August 2012 to 4 December 2012, following the second alleged attack on the Applicant by her husband (potentially involving the use of a switch blade) and with the support and knowledge of the police and local social services, the Applicant resided at a shelter run by an association for the protection of women who have been victims of domestic violence (§§ 18-19 and 27); b. The Applicant’s criminal complaint of 5 September 2012 was transmitted to the competent judicial authorities together with a request for the adoption of preventive measures aimed at protecting the Applicant; c. 18 March 2013, the prosecutor, noting that, despite his orders of 15 October 2012 that investigative measures be taken urgently, none of the investigations had been concluded, again ordered the police to investigate the Applicant’s complaints as soon as possible (§ 29); d. 4 April 2013, the Applicant was interviewed for the first time by the police (§ 30). While the Applicant, at this interview, modified her initial allegations, it is said as a result of psychological pressure by her husband (not an uncommon phenomenon in the context of domestic violence), she nevertheless confirmed that her husband’s alcoholism was at the heart of any problems there might have been at home; e. 30 May 2013, the public prosecutor invited the preliminary investigations judge to close the investigation into the offence of domestic abuse but to maintain the investigation against the Applicant’s husband for grievous bodily harm against the Applicant (§ 32); f. 1 August 2013, the preliminary investigations judge closed the investigations into the offence of domestic abuse but referred the charge of causing bodily harm to the Justice of the Peace (§§ 33-34); g. 28 October 2013, the Applicant’s husband was committed for trial by the Justice of the Peace for causing bodily harm (with the first hearing fixed for 13 February 2014) (§ 35); h. 18 November 2013, the Applicant’s husband was notified of his trial date (19 May 2014) in relation to the attack on the Applicant of August 2012 (§ 36); and, finally i. At an unspecified date in November 2013, the public prosecutor reopened the investigation against the Applicant’s husband for the physical abuse of his wife (§ 44).", "3. Taken together with the facts of the initial attacks on the Applicant by her husband (in June and August 2012), as recorded by the police, and the fact that both were apparently connected to (if not caused by) the husband’s alcohol abuse, it appears to me not unreasonable to work on the basis that the police was or should have been aware that (a) the Applicant’s husband had been and was again under investigation for repeated incidents of domestic abuse against the Applicant, (b) had been charged with causing physical harm to the Applicant in two separate instances, with trial dates notified on 28 October 2013 and 18 November 2013 (a week before the tragic events of 25 November 2013), and (c) the attacks in relation which the husband was subject to investigation and/or charge had occurred when the husband was severely drunk (if not as a result of his alcohol abuse). 4. It is with this in mind that one then has to look at the events of 24 and 25 November 2013. 5.", "The judgment, at § 38, explains that, on the evidence, the police recorded that when they arrived at the Applicant’s home (one assumes on 24 November), having been called by her as a result of an argument between her and her husband: a. They find the doors of the bedroom broken and the floor covered with empty alcohol bottles; b. The Applicant confirmed to them that her husband was drunk and indicated that she had called help because she considered that he might need the help of a doctor; and c. Reminded them of her criminal complaint (and the fact that she had since changed her complaint). 6. Thereafter, the Applicant’s husband was taken to hospital in a state of intoxication (§ 39) but checked himself out again that same night.", "7. It seems to me that the crucial question, therefore, is whether it can be said that the police officers who, at 2:25 am on 25 November 2013, stopped the Applicant’s husband for an identity check and noted that he was (again) in a state of intoxication and had difficulties maintaining his balance, were or should have been aware (having checked his identity) of the above facts and circumstances. Should they at that stage, rather than merely give him a verbal warning, have come to the conclusion that, in his current state, he posed an imminent and real risk to the Applicant’s physical integrity and/or life if he were allowed to return home (to the Applicant) in that state. 8. As indicated above and not without considerable hesitation, I have come to the conclusion that they should have known, when they stopped him and checked his identity at 2:25 am on 25 November 2013, of the existence of a real and immediate risk to the physical integrity and/or life of the Applicant (and her children) from the criminal acts of her husband and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.", "9. In saying that, I am, of course, conscious of (and agree with) the limitations identified in § 116 of Osman that: “... bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention.” 10. However, for me, there is a crucial distinction between the present case and that of Osman.", "After all, unlike in Osman, the police in this case had the Applicant within their control little more than 2.5 hours before the deadly attack on his wife and son and at a time when the common (and possibly causative) factor in all his previous attacks (namely his alcohol abuse) was present and apparent to everyone, when they checked his identity (and, therefore, had or should have had access to the information relevant to the risk posed by him, especially when drunk) and proceeded to give him a verbal warning. After all, the evidence is that, when he was stopped by the police, he was so intoxicated that he was having difficulties to maintain his balance. This case is not, therefore, about additional (pro-active) steps the police might or should have taken (which might impose an impossible or disproportionate burden on the police) but about the decision(s) taken when he was already within their control. 11. In this different context, there also seems to be no obvious reason why any short-term preventative intervention by the police authorities, whether in the form of an enforced return to hospital or otherwise, until (and only until) he was sober would have been inconsistent with his rights either under Article 5 or Article 8.", "In light of the particular circumstances of this case and my conclusions in relation to Article 2 (above) any such short-term (and effectively preventative) intervention may well have been capable of justification under Article 5 § 1; whether on the basis of securing fulfilment of “his obligation to keep the peace by not committing a specific and concrete offence” (see Ostendorf v. Germany, no. 15598/08, § 94, 7 March 2013) under Article 5 § 1(b), on the basis that it was “reasonably considered necessary to prevent his committing an offence” under Article 5 § 1(c) and/or on the basis of Article 5 § 1(e) (lawful arrest or detention of alcoholics “whose conduct and behaviour under the influence of alcohol pose a threat to public order or themselves, ... for the protection of the public or their own interests, such as their health or personal safety”; Kharin v. Russia, no. 37345/03, § 34, 3 February 2011, see also Witold Litwa v. Poland, no. 26629/95, § 62, ECHR 2000‑III). This is, of course, particularly so where the obvious less restrictive alternative to such intervention was to allow him to return home (to the place where his previous attacks took place and where the victim of those attacks, the Applicant, was also resident and was known to be resident as a result of the earlier police intervention).", "II. Article 14 read with Articles 2 and/or 3 of the Convention 12. Beyond the complaint under Articles 2 and/or 3 of the Convention, the Applicant further complained that “the unreasonable passivity of [the] authorities demonstrates that the regulatory and protection system provided is not sufficiently suitable in order to ensure the protection of a woman victim of domestic violence” (§124 of the Applicant’s Observations of 9 March 2016) and that, consequently, the ineffectiveness or lack of suitability of the domestic regulatory and protection system amounted to a violation of Article 14 read together with Articles 2 and/or 3. This complaint, therefore, was one of a systemic failure to protect women based on unlawful discrimination. 13.", "There is no doubt that gender based violence, including in particular domestic violence, continues to “reflect[..] and reinforce[...] inequalities between women and men and remains a major problem in the European Union. It is prevalent in all societies and is based on unequal power relations between women and men, which reinforce men’s dominance over women” (European Institute for Gender Equality – EIGE in brief (2016) at p. 8). The fact that gender based violence remains a major problem not only in the EU but also beyond not only lies at the heart of the on-going work of the EU Fundamental Rights Agency and the EIGE on combatting the underlying causes, both societal as well as legal, but, of course also led the Council of Europe, in 2011, to adopt the Council of Europe Convention on preventing and combating violence (the “Istanbul Convention”). As § 5 of the Explanatory Report to the Istanbul Convention explains further: “Violence against women is a worldwide phenomenon. The Committee on the Elimination of Discrimination against Women (CEDAW Committee) of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (hereafter CEDAW) in its general recommendation on violence against women No.", "19 (1992) helped to ensure the recognition of gender-based violence against women as a form of discrimination against women. The United Nations General Assembly, in 1993, adopted a Declaration on the Elimination of Violence against Women that laid the foundation for international action on violence against women. In 1995, the Beijing Declaration and Platform for Action identified the eradication of violence against women as a strategic objective among other gender equality requirements. In 2006, the UN Secretary-General published his In-depth study on all forms of violence against women, in which he identified the manifestations and international legal frameworks relating to violence against women, and also compiled details of \"promising practices\" which have shown some success in addressing this issue.” 14. That said, I agree with the sentiment expressed in the opening sentence of Judge Spano’s Partly Dissenting Opinion: “the law has its limits, even human rights law”.", "This Court is, of course, a court of law and is therefore constrained to act within the limits of the law, the observance of which it is charged to ensure (Article 19), and on the basis of the evidence available to it. As a consequence, the role the Convention and this Court can play in addressing the issue of gender based violence is clearly delimited by the terms of the Convention and by this Court’s case law; a fact which is, of course, also reflected in the fact that inter alia the Council of Europe, the United Nations and the EU have concluded Conventions and policies, adopted legislation and created specialist agencies for the specific purpose of addressing this issue. 15. Turning to the applicable law, it was in its landmark judgment in Opuz v. Turkey (no. 33401/02, § 191, ECHR 2009), that this Court, drawing inspiration from the terms of CEDAW and the work of the CEDAW Committee, first recognised that a State’s failure to protect women against domestic violence is capable of breaching their right to equal protection of the law irrespective of whether this failure is intentional or not.", "On the facts of that case, the Court concluded that Turkey had breached the applicant’s rights under Article 14 read together with Articles 2 and 3 of the Convention as there was: a. A “suggestion” that “domestic violence is tolerated by the authorities and that the remedies indicated by the Government do not function effectively” (§ 197); b. A “prima facie indication” that “the general and discriminatory judicial passivity in Turkey created a climate that was conducive to domestic violence” (§ 198); and c. “general and discriminatory judicial passivity in Turkey [which], albeit unintentional, mainly affected women, the Court considers that the violence suffered by the applicant and her mother may be regarded as gender-based violence which is a form of discrimination against women” (§ 200). 16. Applying the approach identified in Opuz, the Court has since had occasion to consider whether other High Contracting Parties had acted in breach of Article 14 read with Articles 2 and/or 3 in the context of domestic violence.", "17. In relation to the Republic of Moldova, the Court found a breach of Article 14 read together with Articles 2 and/or 3 on the express basis that: “... the authorities’ actions were not a simple failure or delay in dealing with violence against the first applicant, but amounted to repeatedly condoning such violence and reflected a discriminatory attitude towards the first applicant as a woman. The findings of the United Nations Special rapporteur on violence against women, its causes and consequences (see paragraph 37 above) only support the impression that the authorities do not fully appreciate the seriousness and extent of the problem of domestic violence in Moldova and its discriminatory effect on women. (see Eremia v. the Republic of Moldova (no. 3564/11, § 89, 28 May 2013), Mudric v. the Republic of Moldova, no.", "74839/10, § 63, 16 July 2013 and T.M. and C.M. v. the Republic of Moldova, no. 26608/11, § 62, 7 January 2014; my emphasis)” 18. By contrast, when confronted with a similar complaint against Croatia, the Court, in its judgment in A v. Croatia, no.", "55164/08, §§94-104, 14 October 2010, concluded that the complaint under Article 14 of the Convention was manifestly ill-founded; “the applicant has not produced sufficient prima facie evidence that the measures or practices adopted in Croatia in the context of domestic violence, or the effects of such measures or practices, are discriminatory” (§ 104). In reaching this conclusion, the Court identified the necessary evidential threshold for a finding of a violation of Article 14 in this context (by reference to and distinguishing the Court’s conclusion in Opuz): “96. In support of these findings the Court relied on the Turkish Government’s recognition of the general attitude of the local authorities, such as the manner in which the women were treated at police stations when they reported domestic violence, and judicial passivity in providing effective protection to victims (see Opuz, cited above, § 192). Furthermore, the reports submitted indicated that when victims reported domestic violence to police stations, police officers did not investigate their complaints but sought to assume the role of mediator by trying to convince the victims to return home and drop their complaint. In this connection, police officers considered the problem as a family matter with which they could not interfere (see Opuz, cited above, §§ 92, 96, 102 and 195).", "The reports also showed that there were unreasonable delays in issuing injunctions and in serving injunctions on the aggressors, given the negative attitude of the police officers. Moreover, the perpetrators of domestic violence did not seem to receive dissuasive punishments, because the courts mitigated sentences on the grounds of custom, tradition or honour (see Opuz, cited above, §§ 91-93, 95, 101, 103, 106 and 196). 97. The Court notes at the outset that in the present case the applicant has not submitted any reports in respect of Croatia of the kind concerning Turkey in the Opuz case. There is not sufficient statistical or other information disclosing an appearance of discriminatory treatment of women who are victims of domestic violence on the part of the Croatian authorities such as the police, law-enforcement or health-care personnel, social services, prosecutors or judges of the courts of law.", "The applicant did not allege that any of the officials involved in the cases concerning the acts of violence against her had tried to dissuade her from pursuing the prosecution of B or giving evidence in the proceedings instituted against him, or that they had tried in any other manner to hamper her efforts to seek protection against B’s violence. ... 101. The Court has already established that not all the sanctions and measures ordered or recommended in the context of these proceedings were complied with. While this failure appears problematic from the standpoint of Article 8 of the Convention, it does not in itself disclose an appearance of discrimination or discriminatory intent on the basis of gender in respect of the applicant.” 19. This jurisprudence makes clear that: a.", "The assessment under Article 14 read with Articles 2 and/or 3 was distinct from any analysis in relation to any alleged breach of the positive obligations under those Articles 2 and/or 3 in relation to the circumstances of the particular applicant; b. Absent any evidence that the officers involved in the individual case were acting in a discriminatory manner or with discriminatory intent towards the particular applicant, of which there was no evidence in those cases and is no evidence in the present case, a breach of Article 14 would arise only where there were systemic failings which arose out of a clear and systemic (even if not intentional) failure of the national authorities to appreciate and address the seriousness and extent of the problem of domestic violence within their jurisdiction and its discriminatory effect on women; and c. The failure to apply the “sanctions and measures” existing in national law in the circumstances of the particular case before the Court, while potentially problematic under Articles 2, 3 or 8 of the Convention, is not, in itself, sufficient to engage Article 14 of the Convention so as to shift the burden of proof to the respondent government to show that any difference in treatment is not discriminatory. 20. This is the context and background for the decision of this Court, as recently as 27 May 2014, in Rumor v. Italy, no. 72964/10.", "In that case, this Court was invited to consider the situation in Italy on the basis of a complaint by the applicant in that case that the “omissions and the inadequacy of the domestic legislative framework in combating domestic violence proved that she had been discriminated against on the basis of her gender” (§ 36). Having considered the applicant’s complaint, the Court, however, concluded in unqualified terms that: “... the authorities had put in place a legislative framework allowing them to take measures against persons accused of domestic violence and that that framework was effective in punishing the perpetrator of the crime of which the applicant was victim and preventing the recurrence of violent attacks against her physical integrity. (§ 76)” 21. As a consequence, the question for the Court in the present case was not only (to us the language in A v Croatia) whether the Applicant had produced “sufficient statistical or other information disclosing an appearance of discriminatory treatment of women who are victims of domestic violence on the part of the authorities such as the police, law-enforcement or health-care personnel, social services, prosecutors or judges of the courts of law” but whether she had produced sufficient such evidence to justify a conclusion by this Court either that, in light of such further evidence, its decision in Rumor had been wrong (or, at the very least, premature) or that changes in the legislative and policy environment in Italy had changed sufficiently since 2014 to enable the Court to conclude that, whereas the Italian system was compliant with Article 14 then, it no longer was so compliant in 2017. 22.", "If one considers the material relied upon in the judgment (§§ 55-60) it becomes clear that, in fact, with one exception, none of the material relied upon post-dates the judgment in Rumor and is of such a nature as not to have been available either to the parties or to the Court in that case. The one document referred to that (just) post-dates the Rumor judgment is the Report “Violence against Women” (2014) of the National Statistics Bureau of Italy (ISTAT), quoted in § 55 of the judgment. While providing a (still) depressing picture as to the number of women who are victims of sexual or physical violence in Italy, most frequently at the hands of current or former partners, that Report provides little to no evidence to support the conclusion that there is “an appearance of discriminatory treatment of women who are victims of domestic violence on the part of the authorities such as the police, law-enforcement or health-care personnel, social services, prosecutors or judges of the courts of law”. For what it is worth, the Report, in fact, appears to record a reduction in the number of cases of physical or sexual violence committed by a partner or former partner and notes that, compared to the 2006 ISTAT report, there is an increased awareness that domestic violence is a crime and it is reported far more often to the police. The Report also notes that “survivors are far more satisfied with the relevant work carried out by the police.", "In the event of violence from the current or the former partner, data shows an increase from 9.9% to 28.5%”. 23. In any event, it seems to me that where the Court considers (as the majority in this case must be assumed to have considered) that there is sufficient evidence for it to reach the conclusion either that a prior decision was wrong or premature or that the legislative situation in a respondent State had changed sufficiently to now warrant a finding of a violation, it would be prudent for the Court to identify (both for the benefit of the Respondent Government as well as for the Committee of Ministers who is charged with supervising the enforcement of this judgment). a. Which of these conclusions it had reached; and b.", "If the latter, which were the developments since the last judgment which meant that a system which had been compliant had now become deficient. A mere assertion, as in § 147 of the judgment, that the factual circumstances in Rumor were “clearly” different to those of the present case seems to me neither capable of justifying the finding of a violation under Article 14 nor capable of explaining either why the conclusion in § 76 of Rumor had been mistaken or premature or what had changed since 2014 to justify the conclusion now that the Italian “legislative framework” had become deficient. PARTLY DISSENTING OPINION OF JUDGE SPANO I. Preliminary remarks 1. The law has its limits, even human rights law.", "When a claim is made that the State did not take reasonable steps to prevent the taking of life by another individual, tensions arise between the demands of justice for the relatives of victims and the imposition of unrealistic burdens on law enforcement agents governed by the rule of law. The judicial resolution of such disputes, arising as they do from tragic events, thus requires that a delicate balance be struck between these two conflicting interests based on the objective and dispassionate application of clear and foreseeable legal standards. As the Court’s application of the settled principles under Article 2 of the Convention to the facts of the present case unduly strikes the balance in favour of the former, without adequately taking account of the latter, I respectfully dissent from the majority’s finding of a violation of Article 2, as I will explain in more detail in Part II of this opinion. Also, and for the reasons elaborated in Part III below, I disagree with the Court’s finding of a violation of Article 14 taken in conjunction with Articles 2 and 3 of the Convention. II.", "The State’s preventive obligation to protect life under Article 2 of the Convention – the Osman test and domestic violence 2. In the Court’s case-law on domestic violence, notably the landmark Opuz v. Turkey judgment, the Court established that the positive obligation to protect the right to life under Article 2 of the Convention requires domestic authorities to display due diligence, for instance by taking preventive operational measures, in protecting an individual whose life is at risk. In Osman v. the United Kingdom and subsequently in Opuz v. Turkey the Court held that “where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk” (see Osman, § 116, and Opuz, § 130; my emphasis). 3. It follows that in order for a finding of a violation of Article 2 to be properly substantiated in the present case, the Osman test must therefore be met.", "This begs the following question: did the national authorities know, or ought they to have known, that the lives of the applicant and her son were at real and imme­diate risk on 25 November 2013? The answer to this question requires a fact-sensitive analysis of the two prongs of the Osman test, i.e. the imminence and reality of the risk as reasonably foreseen by agents of the State, as I will now explain. 4. On 2 June 2012, the police intervened on the applicant’s request after she complained that her husband, A.T. had hit her and her daughter.", "On 19 August 2012, the applicant again sought police assistance after being physically assaulted by her husband. The applicant lodged a complaint against A.T. on 5 September 2012 for bodily harm, domestic abuse and threats. The final event, the fatal attack, then took place on 25 November 2013. On the evening in question, the police were called to the house by the applicant. Upon arrival, they noted a broken door and bottles on the floor.", "There were no signs of violence on either the applicant or her son, nor were such allegations made. Although the applicant mentioned that she had previously filed a complaint against her husband, she explained that she had subsequently modified her accusations and that she had sought help that evening believing that her husband’s drunken state necessitated medical attention. The police duly took A.T. to a hospital, which he left the same evening. When he was stopped in the street by the police later that night, he made no threats of violence. Returning to the family home in the early hours of the morning, he carried out his fatal attack.", "5. In determining the immediacy of the risk, it is crucial to note the lapses of time between the initial police intervention in June 2012, the August 2012 incident and the lodging of the complaint in September 2012, and between that time and the tragic events of 25 November 2013, a time lapse of over fourteen months. When contrasted with the close nexus in time and regularity of the violent acts in Opuz v. Turkey, which gave rise to the Court’s finding of constructive knowledge, namely that the authorities ought to have known of a real and immediate risk under the Osman test, it is plain that the requisite timeframe allowing for a conclusion of immediacy is lacking in the present case. Bljakaj and Others v. Croatia presents a similar stark contrast and demonstrates the required extent of immediacy, with the perpetrator in that case making threats on the day before, morning of, and hour prior to, the fatal incident. It is worth noting that the Court’s case-law in this regard falls in line with the requirements of the Istanbul Convention,[2] the Explanatory Report to which establishes that the term “immediate danger” refers to any situations of domestic violence in which harm is imminent or has already materialised and is likely to happen again.", "[3] The highlighted time lapses clearly challenge the possibilities of imminence of risk in this case. 6. Turning to the reality of the risk, besides their close nexus in time, the scale and regularity of the violent acts and the authorities’ direct knowledge of them also formed the basis for the Opuz Court’s finding of the existence of constructive knowledge under Osman. It goes without saying that the attacks of June and August 2012 and their impact on the applicant should in no way be underestimated, the Italian courts eventually convicting A.T. of the violence carried out on those occasions. Nonetheless, when contrasted with the gravity of the eight prior attacks identified in Opuz, involving repeated death threats and resulting in life-threatening injuries on several occasions, the constructive knowledge inevitably arising from such a course of events cannot be imputed to the authorities in the present case, who did not possess information on attacks and death threats on this scale.", "Similarly, in finding an Article 2 violation in Kontrová v. Slovakia, the Court highlighted the lack of action taken in respect of allegations that the applicant’s husband had a shotgun and had made violent threats with it. 7. The majority argues that the authorities failed to carry out an adequate risk assessment both on the night in question and during the preceding months, whereby the context of impunity eventually culminated in the fatal attack (see paragraphs 118-119). Having dealt with the former issue, the question in respect of the latter then arises: can investigative passivity give rise to constructive knowledge? 8.", "In Opuz v. Turkey, the Government had argued that there was no tangible evidence that the applicant’s mother’s life was in imminent danger. However, the Court found that it was not apparent that the authorities had assessed the threat posed by the perpetrator and only then concluded that his detention was a disproportionate step in the circumstances; rather, the authorities failed to address the issues at all (see Opuz, § 147). Despite the victim’s complaint that the perpetrator had been harassing her, wandering around her property and carrying knives and guns, the police and prosecuting authorities failed either to place him in detention or to take other appropriate action in respect of the allegation that he had a shotgun and had made violent threats with it. Thus inactivity of the sort demon­strated in the present case, and the results thereof, do not of themselves create constructive knowledge such as to trigger an obligation under Article 2 (although it will usually, and in the present case does, give rise to an Article 3 violation in the domestic violence context). What is ultimately required is a set of facts rendering untenable the claim that the authorities did not know, or could not have known, of a real and immediate risk to life.", "9. Consequently, although the majority finds that the nature of the act in August 2012 and the pending status of its inquiry in November 2013, along with the facts during the tragic evening, are sufficient to establish constructive knowledge of a real and immediate risk to the lives of the applicant and her son, the Osman test, as applied on the facts, the crux of the Article 2 substantive claim, is not made out. Regardless of how the judgment frames it, the Osman test continues to apply in the same way here as in other contexts triggering the State’s Article 2 preventive obligation; the Court’s domestic violence case-law has continued to apply a strict Osman test without any alterations. Diluting the Osman standard, to take account of the nature of different types of fatal criminal offences between individuals, will simply impose an unrealistic burden on law enforcement authorities. Again, the law, even human rights law, has its limits.", "10. Furthermore, and importantly, the applicable principles, as summarised at §§ 129-130 of Opuz v. Turkey, are not fully reflected in the majority’s judgment which, in particular, fails to take account of the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the Court being required to interpret the scope of the Article 2 positive obligation in a way which does not impose an impossible or disproportionate burden on the authorities. Indeed, “the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention”, is a particularly relevant consideration in cases such as these (see Opuz, § 129). 11. It is unclear what Convention-compliant measures the police could have taken on the night in question to avoid the ultimate tragic outcome.", "Despite finding, in paragraph 122 of the judgment, that possible measures were in existence at the relevant time, the majority fails both to specify the minutiae as well as to explain the feasibility of maintaining adherence to due process and Convention guarantees in the deployment of such measures. In the absence of any evidence or allegations of violence, the police lacked sufficient grounds to detain A.T. His lethal attack that evening, predicated as it was on volatile and unpredictable human behaviour rather than ongoing and repeated direct or indirect threats to life, could not in my view have been reasonably foreseen by the police. 12. Judge Eicke argues in his partly concurring, partly dissenting opinion, that there seems to be no obvious reason why any short-term preventative intervention by the police authorities, whether in the form of an enforced return to hospital or otherwise, until (and only until) the applicant’s husband was sober would have been inconsistent with his rights either under Article 5 or Article 8 of the Convention. However, in my view the Court should be very careful in making findings on the possible legality of hypothetical police measures under Article 5 when such arguments have neither been raised before it nor the domestic courts.", "13. Importantly, it has in no way been demonstrated before this Court that the arrest or detention of A.T. on 25 November 2013 could have been lawful under Article 5 § 1 (c), since, in the terms of that provision, there was no reasonable suspicion of him having committed an offence. Nor could his arrest or detention have been reasonably considered necessary to prevent his committing an offence, since, as was apparent both from the situation as seen by the police and from the exchanges with the applicant and her son, no threats had been made and no actual violence had occurred. On what basis, then, could he have been detained, arrested or held at a hospital against his will, bearing in mind that having a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective observer that he may have committed an offence and that there can clearly not be a “reasonable suspicion” if the acts or facts held against him, such as being drunk at home, did not constitute a crime at the time when they occurred? 14.", "The fact remains that, tragically, on 25 November 2013 the police did all they could by physically removing him from the premises in taking him to hospital, but they could not have kept him there by force. Furthermore, unlike Judge Eicke, I am unable to accept that the facts surrounding the police intervention on the street at 2.25 am on the night in question provided the police with any actionable information, even when reasonably viewed in context with other available information, about a real and immediate risk to the lives of the applicant and her children. In fact, with the exception of the drunken state of the applicant’s husband, which alone does not suffice for these purposes, there were no comments, threats or other behavioural signs that could have justified the deployment by the police of operational measures of arrest or detention at that point. 15. In short, the doctrine of positive obligations cannot remedy all human rights violations occurring in the private sphere if due process considerations, also worthy of Convention protection, are not to be rendered obsolete.", "In other words, it is true that the States are under a Convention-based positive obligation effectively to combat domestic violence. But that fight, like any other campaign by Government to safeguard the lives and protect the physical integrity of its citizens, must be fought within the boundaries of the law, not outside them. 16. Finally, it is all too easy to review tragic circumstances with the benefit of hindsight and impute responsibility where, on an objective and dispassionate analysis, there can be none. There is a limit on how far positive obligations under Article 2 can extend to shield victims from unforeseen attacks without imposing unrealistic obligations on the police accurately to forecast human behaviour and to act on those prognostications by unduly restricting other Convention rights.", "Although it may be tempting to dilute legal concepts such as the Osman test when faced with heart-rending facts and give solace to individuals in situations such as that of the applicant, there are reasons why the threshold under the Convention is set high, and, in my view, why it must continue to remain so. Even in the field of domestic violence the ends cannot justify the means in a democratic society governed by the rule of law. III. Systemic gender discrimination under Article 14 of the Convention 17. Judge Eicke and I are in agreement that a case for a violation of Article 14 of the Convention, taken in conjunction with Article 2 and 3, has not been made out on the facts and the materials before the Court and I largely agree with his reasoning in his separate opinion.", "I would only like to highlight the following elements. 18. The Court has previously concluded, in the landmark Opuz judgment, that general discriminatory judicial passivity creating a climate conducive to domestic violence entails a violation of Article 14 of the Convention, read in conjunction with Articles 2 and 3 (see Opuz, §§ 198 and 202). It has further stated that this conclusion will be reached where the actions of the authorities are not a simple failure or delay in dealing with violence, but amount to repeatedly condoning such violence and reflect a discriminatory attitude towards an applicant as a woman (see Eremia v. the Republic of Moldova, § 89). Having regard to this high threshold and the previous findings made under this provision with respect to Italy in the case of Rumor v. Italy, I cannot subscribe to the majority’s findings that the inaction of the authorities, as manifested in the present case, reflects systemic gender-based discrimination, since there is insufficient evidence to show general and discriminatory passivity of the kind previously established in the Court’s case-law.", "19. The Court in Opuz made clear the elements tending to show an Article 14 violation in this sphere. It made reference to the overall unresponsiveness of the judicial system and the impunity enjoyed by aggressors. In particular, it noted the manner in which female victims were treated at police stations, with reports indicating that when they reported domestic violence, police officers tried to persuade them to return home and drop their complaint, seeing the problem as a family matter with which they could not interfere. The perpetrators of domestic violence did not seem to receive dissuasive punishments, with the courts mitigating sentences on the grounds of custom, tradition or “honour”.", "These findings were confirmed in Halime Kılıç v. Turkey, the Court highlighting the wilful refusal of the authorities to accept the seriousness of the incidents of domestic violence. In regularly turning a blind eye to the repeated acts of violence and death threats, the authorities had created a climate that was conducive to domestic violence. In both cases, the Court found that the inactivity, delays and, in particular, attempts to dissuade women from lodging complaints that characterised the treatment of domestic violence claims in Turkey stemmed directly from the discriminatory attitudes of the authorities. 20. In contrast, and more in line with the facts of the present case, in A. v. Croatia, no.", "55164/08, § 97, 14 October 2010, the Court concluded that there was insufficient statistical or other information disclosing an appearance of discriminatory treatment of female victims of domestic violence on the part of authorities such as the police, law enforcement or healthcare personnel, social services, prosecutors or judges. The applicant did not allege that any officials had tried to dissuade her from pursuing the prosecution of the aggressor or giving evidence against him, or that they had tried in any other manner to hamper her efforts to seek protection against his violence. The Court thus declared the applicant’s complaint under Article 14 inadmissible, since she had failed to provide sufficient evidence that the practices adopted in Croatia as regards domestic violence were discriminatory. 21. Importantly, the Court has previously found that where the legislative framework cannot be said to be discriminatory, even if not all the sanctions and measures ordered or recommended are in fact complied with, this failure “does not in itself disclose an appearance of discrimination or discriminatory intent on the basis of gender” (see A. v. Croatia, § 101).", "Thus societal discrimination and high levels of domestic violence, as referenced by the judgment at paragraph 146, are not, in and of themselves, enough to ground a finding of an Article 14 violation; it is the legislative framework and its application by the national authorities that falls to be considered. In this regard, both in its substantive consideration of Articles 2 and 3 as well as in the Article 14 context, the judgment fails to take proper account of the Court’s finding in Rumor v. Italy, in the context of Article 3, that “the authorities had put in place a legislative framework allowing them to take measures against persons accused of domestic violence and that that framework was effective in punishing the perpetrator of the crime of which the applicant was victim and preventing the recurrence of violent attacks against her physical integrity” (see Rumor v. Italy, § 76). Although, as the judgment notes, that case may have concerned a different set of facts, the system at issue is the same. Since the impugned failings were not rooted in the discriminatory intent of the authorities but rather in pure passivity, they do not provide grounds for departure from the Article 14 conclusions previously drawn in respect of Italy. 22.", "The international materials on which the majority relies in its finding of an Article 14 violation also fail to point to a discriminatory failing in the system. Although the 2010 CEDAW Concluding Observations (see paragraph 57 of the judgment) noted that the increasing rate of femicides may lead one to think that the Italian authorities are not sufficiently protecting women, the UN Special Rapporteur concluded in 2012 that the legal framework in Italy “largely provides for sufficient protection for violence against women” (see paragraph 68 of the report cited by the majority at paragraph 59 of the judgment). Where the Court has previously relied on international reports in this sphere, the criticisms therein have undoubtedly been more unequivocal. For instance, in Mudric v. the Republic of Moldova, the Court was of the view that the findings of the Special Rapporteur supported “the impression that the authorities do not fully appreciate the seriousness and extent of the problem of domestic violence and its discriminatory effect on women” (see Mudric, § 63). 23.", "Ultimately, the finding in Rumor combined with the Opuz threshold makes it clear that there is insufficient evidence of institutional discrimination in Italy to ground a finding of an Article 14 violation. The relevant framework is still one that is effective, regardless of whether all the measures it provides for were, in the instant case, deployed (see A. v. Croatia, § 101). [1] Rectified on 21 March 2017: the text read as follows: “The applicant was represented by Ms S. Menichetti, a lawyer practising in Rome.” [2] Council of Europe Convention on preventing and combating violence against women and domestic violence. [3] Explanatory Report to the Council of Europe Convention on preventing and combating violence against women and domestic violence, para. 265." ]
[ "FIFTH SECTION CASE OF OSTERMÜNCHNER v. GERMANY (Application no. 36035/04) JUDGMENT STRASBOURG 22 March 2012 FINAL 22/06/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ostermünchner v. Germany, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Dean Spielmann, President,Boštjan M. Zupančič,Mark Villiger,Ann Power-Forde,Ganna Yudkivska,Angelika Nußberger,André Potocki, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 21 February 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "36035/04) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Franz Ostermünchner (“the applicant”), on 4 October 2004. 2. The applicant was represented by Ms A. Haucke-D’Aiello, a lawyer practising in Munich. The German Government (“the Government”) were represented by their Agents, Mrs A. Wittling-Vogel, Ministerialdirigentin, and Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice.", "3. The applicant alleged, in particular, that his continued preventive detention without admitting him to a therapy because of his impending expulsion to Austria and because of his age had breached Article 5 § 1 of the Convention. 4. On 13 March 2007 a Chamber of the Fifth Section decided to adjourn the examination of the application pending the outcome of the proceedings in the case of M. v. Germany, no. 19359/04.", "On 22 January 2009 the President of the Fifth Section decided to give notice of the application to the Government, requested them to submit information on changes in the applicant’s detention regime and adjourned the examination of the application until the judgment in the case of M. v. Germany (cited above) has become final. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). In view of the fact that the judgment of 17 December 2009 in the case of M. v. Germany became final on 10 May 2010, the President decided on 20 May 2010 that the proceedings in the application at issue be resumed and granted priority to the application (Rule 41 of the Rules of Court). 5. The Government of Austria, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise that right.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1953 and is currently detained in Vienna (Austria). A. The applicant’s previous convictions and the order for his preventive detention and its execution 1.", "The applicant’s convictions and the order for his preventive detention and for his expulsion 7. Between 1968 and 1988 the applicant was convicted by Austrian courts in seven judgments of offences including robbery, theft, assault and dangerous assault. In 1981 he was also found guilty of raping a woman he had followed from the street into her house on the day of his release from prison. He was sentenced to seven years’ imprisonment; the court further ordered his placement in an institution for mentally disturbed offenders. The applicant was detained altogether for more than ten years, at times in an institution for mentally disturbed criminals.", "8. On 14 June 1991 the Munich I Regional Court convicted the applicant of three counts of sexual abuse of children, combined with attempted rape in one case and with attempted sexual assault in another case, committed in 1989 and 1990. It sentenced him to five years and six months’ imprisonment and ordered his preventive detention pursuant to Article 66 § 1 of the Criminal Code (see paragraphs 31-32 below). The Regional Court found that the applicant, who had acted with full criminal responsibility, had sexually abused and attempted to sexually assault an eight-year-old girl he had followed from the street into her home. He had further sexually abused and attempted to rape a ten-year-old girl he had lured into the cellar of her house and had sexually abused another eight‑year-old girl in a playground.", "The Regional Court found that the applicant, whom the court-appointed experts had described as an egocentric anti-social personality lacking empathy, had a propensity to commit serious offences which considerably harm their victims physically or mentally. 9. By a decision of 19 September 1991 the City of Munich, having regard to the applicant’s conviction by the Munich I Regional Court on 14 June 1991, decided to expel the applicant from German territory and prohibited him from ever re-entering Germany. The expulsion was to be enforced on the applicant’s release from prison. The decision became final on 30 October 1991.", "2. The execution of the preventive detention order 10. The applicant served his full prison sentence until 20 March 1996. He was then placed in preventive detention, for the first time, on 21 March 1996, which was executed in a separate wing of Straubing Prison. 11.", "On 15 July 1997 the Regensburg Regional Court ordered the execution of the preventive detention order against the applicant (Article 67c § 1 of the Criminal Code, see paragraph 33 below). It noted that in his reports dated 15 October 1996 and 20 June 1997 the psychiatric and neurologic expert, A., it had consulted had found that the applicant suffered from a dissocial personality disorder and had not wished to undergo a therapy addressing his sexual offences in prison for fear of being harassed by other detainees. He considered that the applicant should first undergo a social therapy in prison to test his readiness to change his personality and should then be admitted to a therapy for sexual offenders. 12. The Regional Court found that unless the applicant had completed a therapy for sexual offenders, there was still a risk that he would commit further sexual offences if released.", "The court further refused to transfer the applicant to a psychiatric hospital (Article 67a § 2 of the Criminal Code, see paragraph 39 below). The applicant’s reintegration into society could currently best be furthered by a social therapy; he was not, therefore, transferred to a psychiatric hospital for a sexual therapy. 13. The applicant subsequently attempted to be admitted to a social therapeutic institution in a different prison, with the help of the Straubing Prison authorities. However, on 1 August 1997 the social therapeutic institution of Baden-Württemberg refused to accept the applicant for treatment.", "It argued that in view of the enforceable expulsion order against him, it could not be guaranteed that the applicant could complete a five-year therapy in that institution. Likewise, on 6 November 1998 the Erlangen Prison refused to admit the applicant to its social therapeutic department. It was argued that under the administrative rules relating to section 9 of the Execution of Sentences Act (see paragraph 38 below), prisoners against whom an enforceable expulsion order had been made were excluded from transfer to a social therapeutic institution. Moreover, on 22 December 1998 the Munich Prison equally refused to admit the applicant to a social therapy. It was argued that its department offered treatment for young sexual offenders and was therefore not suitable for the then 45-year-old applicant.", "14. In its decision of 13 January 2000, which was confirmed on appeal, the Regensburg Regional Court ordered the continuation of the applicant’s preventive detention. It found that there was a risk that the applicant, who still suffered from a dissocial personality disorder, would commit further sexual offences if released (Article 67d § 2 of the Criminal Code, see paragraph 34 below). The court considered that the applicant had refused with good cause to participate in a psychoanalytical group therapy for sexual offenders in Straubing Prison. He had further made strenuous efforts, with the help of the prison authorities, to be admitted to a social therapy in a different prison, which had also been considered to be beneficial by the psychiatric expert A. heard by that court.", "However, he had not been allowed to take part in a social therapy in Germany because of his age and because he was a foreigner who was to be expelled from German territory. It should therefore be examined by the prosecution authorities whether he could be transferred to Austria for the continuation of his preventive detention and could be admitted to a social therapy there. 3. Proceedings under Article 456a of the Code of Criminal Procedure 15. On 17 December 1993, 19 July 1995, 20 October 1998, 2 August 2000 and 14 February 2003 the Munich I Public Prosecutor’s Office, whose decisions were confirmed on appeal, dismissed the applicant’s repeated requests under Article 456a of the Code of Criminal Procedure (see paragraph 37 below) to dispense with the further execution of his prison sentence and his preventive detention in view of his expulsion from German territory.", "It argued that there was still a public interest in the further execution of the preventive detention order made against the applicant, who was likely to reoffend and was dangerous to the public. It was noted in these proceedings that the applicant had not taken up the authorities’ proposal that he should request his transfer to Austria for the further execution of his preventive detention. B. The proceedings at issue 1. The decision of the Regensburg Regional Court 16.", "On 2 May 2003 the Regensburg Regional Court, having heard the applicant, his counsel and a psychiatric and psychotherapeutic expert, H., ordered the further execution of the applicant’s preventive detention under Article 67d § 2 of the Criminal Code. 17. The Regional Court agreed with the findings of expert H. who had taken the view that the applicant’s dissocial personality had not changed and that there was still a risk that he would commit further violent sexual offences if released. In his report of 25 October 2002 the expert had considered that a therapy should be attempted despite its limited chances of success because the applicant had repeatedly stated that he was willing to undergo therapy and because there were no other means to reduce his dangerousness. He had proposed that the applicant participate in a discussion group for sexual offenders in Straubing Prison – which the applicant had, however, refused as he did not wish his offences to become known within that prison.", "The expert had further proposed that the applicant be admitted to a social therapeutic institution – for instance in Bayreuth, Amberg or Würzburg Prison or in that which was currently being built up in Straubing Prison itself. 2. The decision of the Nuremberg Court of Appeal 18. On 4 July 2003 the Nuremberg Court of Appeal dismissed the applicant’s appeal. Endorsing the reasons given by the Regional Court, it found that it was not to be expected that the applicant would not commit further offences on his release (Article 67d § 2 of the Criminal Code).", "It equally referred to the findings of expert H., which it considered convincing. It noted, in particular, that the expert had considered that the applicant should first take part in a discussion group for sexual offenders in Straubing Prison; however, the applicant had vigorously refused to do so. In view of this, the court considered that the applicant’s continued preventive detention was proportionate. 19. The Court of Appeal further noted that the prosecution authority’s refusal to dispense with a further execution of the applicant’s preventive detention under Article 456a of the Code of Criminal Procedure was not the subject-matter of the proceedings before it.", "It noted, however, that the applicant had not taken up the prosecution’s proposal to make a (necessary) request for his transfer to Austria for the further execution of his preventive detention. 3. The decision of the Federal Constitutional Court 20. On 8 August 2003 the applicant, represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court. He claimed that his right to liberty had been violated because his continued preventive detention, during which he had been refused any therapy in view of his impending expulsion, was disproportionate.", "Moreover, his continued preventive detention without a maximum duration, which had been abolished after his conviction (Article 67d § 3 of the Criminal Code, read in conjunction with section 1a § 3 of the Introductory Act to the Criminal Code, as amended in 1998, see paragraph 36 below), breached the prohibition of retrospective punishment. The refusal to offer him any treatment because of the expulsion order against him also discriminated against him on account of his Austrian nationality. 21. By a decision of 25 March 2004, which was served on the applicant’s counsel on 7 April 2004, the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1355/03).", "22. In so far as the applicant complained that the prohibition of retrospective punishment under the Basic Law had been breached, the Federal Constitutional Court found that his complaint was inadmissible. The applicant was not yet affected by the provisions of Article 67d § 3 of the Criminal Code, read in conjunction with Section 1a § 3 of the Introductory Act to the Criminal Code. The court further referred to its leading judgment of 5 February 2004 in the case of M. (file no. 2 BvR 2029/01; application no.", "19359/04 to this Court). Apart from that, the applicant’s complaint was ill-founded as the impugned decisions of the courts dealing with the execution of sentences did not violate constitutional law. C. Subsequent developments 1. Judicial review of the applicant’s preventive detention 23. On 14 July 2005 the Regensburg Regional Court again ordered the applicant’s preventive detention to continue (Article 67d § 2 of the Criminal Code).", "It noted that the applicant had not received any therapy. The applicant had confirmed this, stating that he had failed in his attempts to be admitted to a therapy in a different prison in view of his planned deportation. The applicant’s appeal against this decision was to no avail. 24. On 27 April 2006 the Regensburg Regional Court decided that the applicant’s preventive detention was not to be declared terminated on completion of ten years in such detention (20 March 2006).", "Having consulted a psychiatric expert, N., it found that there was still a risk that the applicant would commit further serious sexual offences resulting in considerable psychological or physical harm to the victims if released (Article 67d § 3 of the Criminal Code). It noted that the applicant had refused therapies for sexual offenders or social therapeutic treatment which had since been made available in Straubing Prison. On 4 July 2006 the Nuremberg Court of Appeal dismissed the applicant’s appeal. On 10 January 2007 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint. 2.", "Proceedings concerning the applicant’s transfer to Austria for the execution of his preventive detention and his expulsion respectively 25. On 15 September 2005 and on 28 September 2007 the Bavarian Ministry for Justice dismissed the applicant’s requests to be transferred to Austria for the further execution of the preventive detention order against him as the applicant would have to be released there after having served ten years in such detention, that is, in March 2006. The decisions became final. 26. Furthermore, on 13 May 2004, 13 April 2005 and 16 May 2007 the Munich I Public Prosecutor’s Office, whose decisions were confirmed by the Munich General Public Prosecutor, dismissed the applicant’s fresh requests under Article 456a of the Code of Criminal Procedure to dispense with the further execution of his prison sentence and his preventive detention in view of his expulsion from German territory.", "The latter decision was quashed on 4 December 2007 by the Munich Court of Appeal, which argued that it appeared that the prosecution authorities had failed to take all aspects relevant to their decision into account. 27. On 24 January 2008 the Munich I Public Prosecutor’s Office dispensed with the further execution of the applicant’s preventive detention at the date of his expulsion from Germany under Article 456a § 1 of the Code of Criminal Procedure. 28. On 16 April 2008 the applicant was released from Straubing Prison and expelled to Austria.", "29. On 14 May 2008 the Vienna Regional Court revoked the suspension on probation of the applicant’s placement in an institution for mentally disturbed offenders ordered in 1981 (see paragraph 7 above). Since 12 August 2008 the applicant has been detained in Vienna. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "Provisions governing preventive detention 30. A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court’s judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, ECHR 2009). The provisions referred to in the present case provide as follows: 1. The order of preventive detention by the sentencing court 31.", "The sentencing court may, at the time of the offender’s conviction, order his preventive detention (a so-called measure of correction and prevention) under certain circumstances in addition to his prison sentence (a penalty), if the offender has been shown to be a danger to the public (Article 66 of the Criminal Code). 32. In particular, the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to at least two years’ imprisonment and if the following further conditions are satisfied. Firstly, the perpetrator must have been sentenced twice already, to at least one year’s imprisonment in each case, for intentional offences committed prior to the new offence. Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years.", "Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims physically or mentally or which cause serious economic damage, the perpetrator presents a danger to the general public (see Article 66 § 1 of the Criminal Code, in its version in force at the relevant time). 2. The order for the execution of preventive detention by the court responsible for the execution of sentences 33. Article 67c § 1 of the Criminal Code provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention, the court responsible for the execution of sentences (that is, a special Chamber of the Regional Court composed of three professional judges, see sections 78a and 78b (1)(1) of the Court Organisation Act) must review, before completion of the prison term, whether the person’s preventive detention is still necessary in view of its objective. If that is not the case, it suspends the execution of the preventive detention order and places the person on probation with supervision of the person’s conduct which commences with the suspension.", "3. Judicial review and duration of preventive detention 34. Article 67d of the Criminal Code governs the duration of preventive detention. Paragraph 2, first sentence, of that Article, in its version in force at the relevant time, provides that if there is no provision for a maximum duration or if the time-limit has not yet expired, the court shall suspend on probation the further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his release. 35.", "Under Article 67d § 1 of the Criminal Code, in its version in force prior to 31 January 1998, the first period of preventive detention may not exceed ten years. If the maximum duration has expired, the detainee shall be released (Article 67d § 3). 36. Article 67d of the Criminal Code was amended by the Combating of Sexual Offences and Other Dangerous Offences Act of 26 January 1998, which entered into force on 31 January 1998. Article 67d § 3, in its amended version, provides that if a person has spent ten years in preventive detention, the court shall declare the measure terminated (only) if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in considerable psychological or physical harm to the victims.", "Termination shall automatically entail supervision of the offender’s conduct. The former maximum duration of a first period of preventive detention was abolished. Pursuant to section 1a (3) of the Introductory Act to the Criminal Code, the amended version of Article 67d § 3 of the Criminal Code was to be applied without any restriction ratione temporis. B. Provision on the execution of sentences in case of expulsion 37.", "Pursuant to Article 456a § 1 of the Code of Criminal Procedure, the Public Prosecutor’s Office may dispense with the execution of a prison sentence or a measure of correction and prevention if the convicted person is expelled from German territory. The execution of the sentence or measure may be continued if the expelled person returns to Germany territory (Article 456a § 2 of the Code of Criminal Procedure). C. Provision of the Execution of Sentences Act 38. Section 9 § 2 of the Execution of Sentences Act provides that prisoners may be transferred to a socio-therapeutic institution with their consent if the special therapeutic measures and social aids of the institution are advisable for their rehabilitation. The transfer is conditional upon the consent of the head of the socio-therapeutic institution concerned.", "D. Transfer for enforcement of a different measure of correction and prevention 39. Article 67a of the Criminal Code contains provisions on the transfer of detainees for the execution of a different measure of correction and prevention than the measure ordered in the judgment against them. Under Article 67a § 2, read in conjunction with § 1, of the Criminal Code, the court may subsequently transfer a perpetrator against whom preventive detention was ordered to a psychiatric hospital if the perpetrator’s reintegration into society can be better promoted thereby. E. Recent case-law of the Federal Constitutional Court on preventive detention 40. On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants’ preventive detention beyond the former ten-year maximum period and also concerning the retrospective order for the complainants’ preventive detention (file nos.", "2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). Reversing its previous position, the Federal Constitutional Court held that all provisions on the retrospective prolongation of preventive detention and on the retrospective ordering of such detention were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty. 41. The Federal Constitutional Court further held that all the relevant provisions of the Criminal Code on the imposition and duration of preventive detention were incompatible with the fundamental right to liberty of persons in preventive detention. It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot).", "These provisions included, in particular, Article 66 of the Criminal Code in its version in force since 27 December 2003. 42. The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the latest. The provisions on the imposition and duration of preventive detention which did not concern the retrospective ordering or prolongation of preventive detention could only continue to be applied in the transitional period subject to a strict review of proportionality. As a general rule, proportionality was only observed where there was a danger of the person concerned committing serious violent crimes or sexual offences if released.", "43. In its reasoning, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention made by this Court in its judgment in the case of M. v. Germany (cited above; see §§ 137 ss. of the Federal Constitutional Court’s judgment). It stressed, in particular, that the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment and the principles laid down in Article 7 of the Convention required an individualised and intensified offer of therapy and care to the persons concerned. In line with the Court’s findings in the case of M. v. Germany (cited above, § 129), it was necessary to provide a high level of care by a team of multi-disciplinary staff and to offer the detainees an individualised therapy if the standard therapies available in the institution did not have prospects of success (see § 113 of the Federal Constitutional Court’s judgment).", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 44. The applicant complained that his continued preventive detention without admitting him to a therapy because of his impending expulsion to Austria and because of his age violated Article 5 § 1 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; ...” 45.", "The Government contested that argument. A. Scope of the case before the Court 46. The Court observes that in the applicant’s submission, the present case concerned the prolongation of his preventive detention ordered in 2003 until his expulsion to Austria in April 2008. The Court notes, however, that the proceedings at issue, in respect of which the applicant lodged his application with the Court (in compliance with the six-month time-limit under Article 35 § 1 of the Convention), cover only the prolongation of his preventive detention as ordered by the Regensburg Regional Court on 2 May 2003 and as confirmed on appeal.", "The present application before the Court therefore concerns only the applicant’s preventive detention as a result of these proceedings. In particular, the applicant did not lodge a fresh application with the Court in respect of the Regensburg Regional Court’s decision of 27 April 2006, confirmed on appeal, not to declare his preventive detention terminated on completion of ten years in such detention. The Court further observes that, other than in the proceedings before the Federal Constitutional Court where he brought a separate complaint alleging discrimination, the applicant complained before this Court about his continued preventive detention without offering him treatment because of the expulsion order against him only under Article 5 of the Convention. B. Admissibility 1. The parties’ submissions (a) The Government 47.", "The Government submitted that the applicant had failed to complain about the refusal of therapeutic measures before the Federal Constitutional Court and had therefore not exhausted domestic remedies as required by Article 35 § 1 of the Convention in that respect. 48. In their further observations dated 14 June 2011 the Government objected that the applicant had failed to exhaust domestic remedies also on another ground. They argued that in its leading judgment of 4 May 2011 on preventive detention (see paragraphs 40-43 above), the Federal Constitutional Court had introduced a new domestic remedy for the review of the ongoing preventive detention of persons concerned by that judgment. For persons in preventive detention which had not been ordered or prolonged retrospectively, as in the applicant’s case, the Federal Constitutional Court had set stricter standards for their preventive detention to continue.", "The applicant had been obliged to avail himself of that new domestic remedy. 49. The Government further took the view that the applicant could no longer claim to be the victim of a violation of his Convention rights. In its above-mentioned judgment, the Federal Constitutional Court had implemented the findings the Court had made in its judgments on preventive detention in Germany. The Convention violations found had thus been remedied in part by the Federal Constitutional Court in its transitional rules, and would be remedied as soon as possible as to the remaining part.", "(b) The applicant 50. The applicant did not comment on these objections within the prescribed time-limit. 2. The Court’s assessment (a) Exhaustion of domestic remedies 51. The Court notes that the Government objected, first, that the applicant had not exhausted domestic remedies as he had failed to complain about the refusal of therapeutic measures before the Federal Constitutional Court.", "The Court notes that in his complaint to the Federal Constitutional Court in the proceedings here at issue, the applicant had claimed that his continued preventive detention had breached his right to liberty as he had been refused any therapy in view of his impending expulsion (see paragraph 20 above). It is therefore satisfied that the applicant submitted the complaint about a breach of his right to liberty caused by a refusal of therapeutic measures here at issue to the domestic courts prior to bringing it before this Court. He thus exhausted domestic remedies in this respect. 52. As regards the Government’s additional objection of non-exhaustion of domestic remedies, made in their further observations dated 14 June 2011, the Court notes, irrespective of the question whether the Government should be considered estopped from raising that objection (see Rule 55 of the Rules of Court), the following.", "According to its well‑established case‑law, under Article 35 § 1 of the Convention, recourse should be had to remedies which are available and sufficient to afford redress in respect of the breach of the Convention alleged (see, among many other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996‑IV). 53. As noted above, the proceedings here at issue concern the applicant’s preventive detention ordered and confirmed in 2003/2004. The applicant was released from preventive detention and expelled to Austria on 16 April 2008. The new domestic remedy introduced subsequently, on 4 May 2011, by the Federal Constitutional Court for the review of ongoing preventive detention is not, therefore, capable of affording redress to the applicant in relation to his preventive detention at issue in the present case and which had previously already come to an end.", "The applicant thus did not have to avail himself of that remedy for the purposes of Article 35 § 1 of the Convention. Consequently, the Government’s objection of non-exhaustion of domestic remedies must also be rejected in this respect. (b) Loss of victim status 54. The Court observes that the Government also objected that the applicant could no longer claim to be the victim of a violation of his Convention rights within the meaning of Article 34 of the Convention as the Federal Constitutional Court had remedied the alleged Convention violation by its judgment of 4 May 2011 and, in particular, by the transitional rules it contained. 55.", "The Court refers to its well-established case-law on that issue (see, inter alia, Eckle v. Germany, 15 July 1982, § 66, Series A no. 51; Amuur v. France, 25 June 1996, § 36, Reports 1996‑III; and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). It agrees with the Government that by its said judgment, the Federal Constitutional Court implemented in the domestic legal order the Court’s findings in its judgments on preventive detention in Germany (M. v. Germany (cited above) and the follow-up cases thereto). 56.", "Having regard to the scope of the Federal Constitutional Court’s judgment, however, it appears doubtful whether that court intended to acknowledge a violation of Article 5 § 1 of the Convention in the circumstances at issue in the present application. In any event, the Court, referring to its findings above (see paragraph 53), considers that the Federal Constitutional Court’s judgment of 4 May 2011 cannot be deemed to have afforded redress for the alleged breach of Article 5 § 1 resulting from the applicant’s preventive detention as ordered by the Regensburg Regional Court on 2 May 2003 and as confirmed on appeal and by the Federal Constitutional Court itself on 25 March 2004. 57. The Government’s objection that the applicant has lost his victim status must therefore likewise be rejected. (c) Conclusion 58.", "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. C. Merits 1. The parties’ submissions (a) The applicant 59.", "The applicant took the view that his preventive detention had violated Article 5 § 1 of the Convention. In particular, it had not been justified under sub-paragraph (a) of that provision. He argued, firstly, that the developments which had occurred after he had lodged his application in 2004 had to be taken into account. Since 21 March 2006 he had been in detention for a period exceeding ten years. His preventive detention as of that date had, in any event, breached Article 5 of the Convention for the reasons set out in the judgment in the case of M. v. Germany (cited above).", "60. The applicant further submitted that Article 5 had been breached in that he had persistently been refused a social therapy in view of his impending expulsion as an Austrian national or in view of his age. He had therefore been refused any suitable therapy in Germany. At the same time, his preventive detention had not been suspended and he had not been expelled as the domestic courts had considered that there was a risk that he might reoffend as he had not completed a therapy. Under these circumstances, his continued preventive detention was disproportionate.", "(b) The Government 61. The Government considered that the applicant’s preventive detention had complied with Article 5 § 1 of the Convention. They stressed that at the time of the proceedings at issue in the present application, in 2003, the preventive detention order against the applicant had been executed for less than ten years. Therefore, the present application was not a follow-up case to the application of M. v. Germany (cited above). During the period at issue, the applicant’s preventive detention had been justified under sub‑paragraph (a) of Article 5 § 1.", "In any event, the applicant’s detention had been justified under sub-paragraph (e) of Article 5 § 1 as the applicant suffered from a dissocial personality disorder and alcoholism and was therefore “of unsound mind”. 62. The Government further contested that the applicant had not been offered any suitable treatment in Straubing Prison in view of the enforceable expulsion order against him. Having regard to the findings of the experts consulted by the courts, in particular those made by expert A. in his reports dated 15 October 1996 and 20 June 1997, the applicant should first have completed a social therapy in prison in order to ensure that he was motivated to undergo further treatment before making a therapy for sexual offenders. The applicant, however, had repeatedly rejected offers for a suitable therapy made to him.", "In particular, between 1997 and 1999 he had refused participating in a psychoanalytic discussion group for sexual offenders offered in Straubing Prison which would have been appropriate to start his treatment. In March 2003 he had confirmed that he was unwilling to apply for a therapy for sexual offenders. 63. The Government further noted that the applicant had not been admitted to a social therapy in Erlangen Prison as that prison had considered that in view of the enforceable expulsion order against him, the applicant could not be accepted for treatment under the administrative rules relating to section 9 of the Execution of Sentences Act (see paragraph 38 above). A therapy could not attain its aims in those circumstances as its key elements comprised preparations of the detainee for release, including the search for a job, and an offer of care after his release which could not be realised if the detainee was not to reside in Germany after his release.", "In any event, given the applicant’s dangerousness, relaxations in the conditions of his detention, which were also part of the social therapy, had not been possible, irrespective of his foreign nationality. 64. The Government further stressed that the applicant had persisted in refusing to participate in the discussion group for sexual offenders in Straubing Prison even after another expert, H., had considered in his report of October 2002 that this would be useful. Moreover, when a social therapeutic department was opened in Straubing Prison in 2003, the applicant repeatedly refused his transfer to that department. 2.", "The Court’s assessment (a) Recapitulation of the relevant principles (i) Grounds for deprivation of liberty 65. The Court reiterates the fundamental principles laid down in its case‑law on Article 5 § 1 of the Convention, which have been summarised in relation to applications concerning preventive detention, in particular, in its judgment of 17 December 2009 in the case of M. v. Germany (cited above): “86. Article 5 § 1 sub-paragraphs (a) to (f) 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 v. Italy, 6 November 1980, § 96, Series A no. 39; Witold Litwa v. Poland, no. 26629/95, § 49, ECHR 2000‑III; and Saadi v. the United Kingdom [GC], no.", "13229/03, § 43, ECHR 2008‑...). ... 88. Furthermore, the word ‘after’ in sub-paragraph (a) does not simply mean that the ‘detention’ must follow the ‘conviction’ in point of time: in addition, the ‘detention’ must result from, follow and depend upon or occur by virtue of the ‘conviction’ (see Van Droogenbroeck, cited above, § 35). In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue (see Weeks v. the United Kingdom, 2 March 1987, § 42, Series A no. 114; Stafford v. the United Kingdom [GC], no.", "46295/99, § 64, ECHR 2002‑IV; Waite v. the United Kingdom, no. 53236/99, § 65, 10 December 2002; and Kafkaris v. Cyprus [GC], no. 21906/04, § 117, ECHR 2008‑...). However, with the passage of time, the link between the initial conviction and a further deprivation of liberty gradually becomes less strong (compare Van Droogenbroeck, cited above, § 40, and Eriksen, cited above, § 78). The causal link required by sub-paragraph (a) might eventually be broken if a position were reached in which a decision not to release or to re-detain was based on grounds that were inconsistent with the objectives of the initial decision (by a sentencing court) or on an assessment that was unreasonable in terms of those objectives.", "In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with Article 5 (compare Van Droogenbroeck, cited above, § 40; Eriksen, cited above, § 78; and Weeks, cited above, § 49).” (ii) “Lawful” detention “in accordance with a procedure prescribed by law” 66. Any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f) of Article 5 § 1, be “lawful”. 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 thereof (see, among many other authorities, Erkalo v. the Netherlands, 2 September 1998, § 52, Reports 1998‑VI; Baranowski v. Poland, no. 28358/95, § 50, ECHR 2000‑III; and Saadi, cited above, § 67). 67.", "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 (see, among many other authorities, Winterwerp, cited above, §§ 37, 45; Erkalo, cited above, §§ 52, 56; Saadi, cited above, § 67; and Mooren v. Germany [GC], no. 11364/03, § 72, 9 July 2009). (b) Application of these principles to the present case 68. The Court recalls at the outset its above finding that the present application concerns the compliance with Article 5 § 1 of the Convention of the applicant’s preventive detention as ordered by the Regensburg Regional Court on 2 May 2003 and as confirmed on appeal (see paragraph 46). 69.", "In determining whether the applicant was deprived of his liberty in compliance with Article 5 § 1 during that period, the Court refers first to its judgment of 17 December 2009 in the case of M. v. Germany (cited above). In that judgment, it found that Mr M.’s preventive detention, which, as in the present case, was ordered by the sentencing court under Article 66 § 1 of the Criminal Code, was covered by sub-paragraph (a) of Article 5 § 1 in so far as it had not been prolonged beyond the statutory ten-year maximum period applicable at the time of that applicant’s offence and conviction (see ibid., §§ 96 and 97-105). The Court was thus satisfied that Mr M.’s preventive detention, in so far as it fell within that maximum period, occurred “after conviction” by the sentencing court for the purposes of Article 5 § 1 (a). 70. Having regard to these findings in its judgment in the application of M. v. Germany, the Court considers that the preventive detention under Article 66 § 1 of the Criminal Code of the applicant in the present case was based on his “conviction”, for the purposes of Article 5 § 1 (a), by the Munich I Regional Court on 14 June 1991.", "The domestic court decisions here at issue cover a period from 2 May 2003 to 14 July 2005 (when a new order for the prolongation of the applicant’s preventive detention was made, see paragraph 23 above). During that period, the applicant, having been placed in preventive detention for the first time on 21 March 1996, was in preventive detention for less than the statutory ten-year maximum period applicable at the time of his offence (see paragraph 35 above). 71. The Court must further determine whether the applicant’s preventive detention at issue occurred “after” conviction, that is, whether there was still a sufficient causal connection between his conviction and his deprivation of liberty. That causal link may be broken, in particular, if the domestic courts’ decision not to release the applicant were based on grounds that were inconsistent with the objectives of the decision of the sentencing court to order preventive detention (see paragraph 65 above).", "The Court observes in this respect that the order for the applicant’s preventive detention by the sentencing Munich I Regional Court in June 1991 and the decision of the Regensburg Regional Court in May 2003, confirmed on appeal, not to release the applicant, were, in principle, based on the same grounds. Both aimed at preventing the applicant from committing further violent sexual offences such as those he had been previously convicted of. 72. However, the Court notes in this connection that in the applicant’s submission, the domestic courts’ assessment in the proceedings at issue that there was still a risk that he might reoffend if released was based on the fact that he had not completed a therapy. The applicant claimed that he had not been admitted to a suitable social therapy either in view of his impending expulsion as a foreigner or in view of his age.", "73. The Court observes that in the proceedings at issue, the domestic courts, having consulted a psychiatric and psychotherapeutic expert, have made clear that there was no other way for the applicant to reduce his dangerousness but the successful completion of a suitable therapy (see paragraphs 17 and 18 above). Otherwise, the courts would be unable to arrive at the conclusion that it was to be expected that the applicant would not commit further sexual offences and could thus be released. The Court therefore agrees that the successful completion of such a therapy as an essential precondition for the applicant’s release was a reasonable one. 74.", "The Court considers that a decision not to release a detainee as he still posed a threat to the public may be inconsistent with the objectives of the sentencing court’s order for preventive detention if the person concerned is placed and remanded in detention as there was a risk that he would reoffend, but is, at the same time, deprived of the necessary means, such as a suitable therapy, to demonstrate that he was no longer dangerous. In such circumstances, a detention which complied with Article 5 § 1 (a) at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with that provision (see paragraph 65 above). 75. The Court is therefore called upon to determine whether, in the circumstances of the case, the applicant must be said to have been deprived of the possibility successfully to complete the necessary therapy / therapies to obtain his release. It notes in this connection that in the proceedings at issue, the psychiatric and psychotherapeutic expert H. consulted by the domestic courts, whose findings the latter had endorsed, had proposed that the applicant should first participate in a discussion group for sexual offenders in Straubing Prison.", "The expert had further proposed that the applicant then be admitted to a social therapeutic institution, either in a different prison or in that which was currently being built up in Straubing Prison itself (see paragraphs 17 and 18 above). 76. The Court further observes that according to the findings of the domestic courts, which have not been contested by the applicant, the applicant refused to take part in the discussion group for sexual offenders in Straubing Prison which he had been free to participate in, apparently because he did not wish his sexual offences against children to become known within that prison. The applicant therefore has not been refused this therapy, considered as a suitable first step by the medical expert and the domestic courts, and neither his age nor his foreign nationality played a role in his not completing that therapy. In view of the applicant’s failure to participate in that first therapy, the availability of social therapeutic treatment to the applicant in a different prison or in Straubing Prison itself was not, at that stage, decisive for the question whether the applicant had been offered the treatment necessary for him to prove that he was no longer dangerous to the public.", "77. The Court does not overlook in that context that in the proceedings preceding those here at issue, the Regensburg Regional Court had considered, in its decision of 13 January 2000, that the applicant had refused with good cause to participate in a psychoanalytical group therapy for sexual offenders in Straubing Prison. Furthermore, that court had noted that, despite his efforts and the help of the Straubing Prison authorities, the applicant had not been admitted to a suitable social therapy in a different prison in Germany either because of his age or because he was a foreigner who was to be expelled from German territory (see paragraph 14 above). 78. However, the Court observes that the assessment of the domestic court in that set of proceedings that the applicant could refuse with good cause to participate in a group therapy addressing his sexual offences in Straubing Prison itself has not been shared by the domestic courts in the proceedings preceding those in 2000 (see paragraphs 11-12 above), nor in the present proceedings or in those succeeding them (see paragraphs 17 and 18 and paragraphs 23 and 24 above).", "It further considers that the domestic courts’ assessment in the proceedings at issue that the applicant’s readiness to change his personality should first be tested in a therapy in Straubing Prison and that such a therapy was therefore suitable for the applicant cannot be considered as arbitrary. 79. The Court further notes that the Straubing Prison authorities had previously nevertheless supported the applicant in his attempts to be admitted to a social therapeutic institution in a different prison. It refers in that context to its findings in its judgment of M. v. Germany (cited above, § 129) that the achievement of the objective of crime prevention requires a flexible approach aimed at providing persons in preventive detention with an individualised and intensified offer of therapy which had the best prospects of success (see also the findings of the Federal Constitutional Court in its leading judgment of 4 May 2011, cited in paragraph 43 above). It further notes that the applicant must be said to have been refused social therapeutic treatment in three different prisons either in view of the enforceable expulsion order against him or in view of his age (see paragraphs 13-14 above).", "80. However, as set out above, the Court considers that the applicant was not, therefore, exempt from starting his therapeutic treatment by participating in a group therapy for sexual offenders offered to him in Straubing Prison. Having regard to the material before it and the domestic courts’ reasoning, it is also not convinced that in view of his status as a foreign national or his age, the applicant would not have been subsequently offered further suitable therapeutic treatment which, if completed successfully, might have been sufficient for the domestic courts to conclude that he was no longer dangerous to the public. 81. The Court notes that the administrative rules relating to section 9 of the Execution of Sentences Act (see paragraph 38 above) raise an issue of discrimination of foreign nationals in that context as under those rules, prisoners against whom an enforceable expulsion order had been made were excluded from transfer to a social therapeutic institution (see paragraphs 13 and 63 above).", "However, there was a wider range of suitable therapies which could be offered to the applicant as a sexual offender following a first therapy in prison to test his readiness to change his personality, such as a therapy for sexual offenders in a psychiatric hospital (see paragraphs 11-12 above). Furthermore, it appears that, despite the above-mentioned administrative rules, the applicant was considered eligible for social therapeutic treatment at least in Straubing Prison itself (see paragraph 24 above). The Court also notes in that context that at the relevant time, the applicant did not make a – necessary – request to be transferred to Austria for the further execution of his preventive detention, where a social therapy would have had more prospects of success (see paragraphs 14 and 15 above). 82. In view of the foregoing, the Court concludes that, in the circumstances of the present case, the applicant had not been deprived of the possibility successfully to complete the necessary therapy / therapies to obtain his release.", "It was the applicant’s conduct and attitude, and not his status as a foreign national or his age, which were decisive for the fact that he did not complete a required therapy, enabling him to show that he was no longer dangerous to the public. The decision of the domestic courts in the proceedings at issue not to release the applicant were therefore not inconsistent with the objectives of the decision of the sentencing court to order preventive detention and thus not arbitrary, for the purposes of sub‑paragraph (a) of Article 5 § 1. There is further nothing to indicate that the assessment that the applicant, who had not made any therapy, was likely to commit further violent sexual offences if released was unreasonable in terms of the objectives of the initial preventive detention order by the sentencing court. 83. The applicant’s preventive detention was also lawful in that it was based on a foreseeable application of Article 66 § 1 and Article 67d § 2 of the Criminal Code.", "The Court takes note, in this connection, of the reversal of the Federal Constitutional Court’s case-law concerning preventive detention in its leading judgment of 4 May 2011 (see paragraphs 40-43 above). In its said judgment, the Federal Constitutional Court considered, inter alia, Article 66 of the Criminal Code in its version in force since 27 December 2003 not to comply with the right to liberty of the persons concerned. 84. The Court notes, however, that the applicant’s preventive detention here at issue was ordered and executed on the basis of a previous version of Article 66 of the Criminal Code. In any event, Article 66 of the Criminal Code in its version in force since 27 December 2003 was not declared void with retrospective effect, but remained applicable and thus a valid legal basis under domestic law, in particular, for the time preceding the Federal Constitutional Court’s judgment.", "Therefore, the lawfulness of the applicant’s preventive detention at issue for the purposes of Article 5 § 1 (a) is not called into question. 85. Furthermore, for the reasons set out above, the fact that the applicant was not admitted to a therapy he had wished to complete in view of either his impending expulsion or his age does not raise an issue in relation to the “lawfulness” of his detention, including the absence of arbitrariness, either. 86. There has accordingly been no violation of Article 5 § 1 of the Convention.", "II. OTHER ALLEGED VIOLATION OF THE CONVENTION 87. The applicant further complained that his continued preventive detention violated Article 3 § 2 of Protocol no. 4 to the Convention as the German authorities had deprived him of his right to enter the territory of Austria of which he was a national. 88.", "The Court notes that the applicant failed to raise this complaint in the proceedings before the Federal Constitutional Court. Consequently, this part of the application must be dismissed for non-exhaustion of domestic remedies, in accordance with Article 35 §§ 1 and 4 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 5 § 1 of the Convention concerning the execution of the applicant’s preventive detention ordered in 2003 admissible and the remainder of the application inadmissible; 2. Holds that there has been no violation of Article 5 § 1 of the Convention.", "Done in English, and notified in writing on 22 March 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekDean SpielmannRegistrarPresident" ]
[ "FIFTH SECTION CASE OF PETROVIĆ v. SLOVENIA (Application no. 5998/10) JUDGMENT STRASBOURG 6 November 2014 This judgment is final but it may be subject to editorial revision. In the case of Petrovic 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, Deputy Section Registrar, Having deliberated in private on 14 October 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "5998/10) 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 Serbian national, Mr Jovan Petrović (“the applicant”), on 24 December 2009. 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 1969 and lives in Trlić. 6. The applicant served his prison sentence in the closed and semi-open sections of Ljubljana prison.", "7. In the period from 25 August 2009 to 22 September 2009 and from 4 November 2009 to 12 November 2009 he was held in the closed section: for two days in cell 4, measuring 18.75 square metres (not including a separate 2.44 square metre sanitary facility) shared with two to four other inmates and with 3.26 to 5.4 square metres of personal space and for thirty‑six days in cell 2 measuring 16.18 square metres (not including a separate 1.7 square metre sanitary facility) shared with two to four other inmates and with 2.9 to 4.8 square metres of personal space. 8. In the period between 23 September 2009 and 3 November 2009 he was held in the semi-open section for forty-two days 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. 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 spend 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 5.4 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 December 2009 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, having for the most of the time between 2.9 and 4 sq. m of personal space and for few days slightly above 4 sq. m 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 that 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 December 2009 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 1,000 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 1,000 (one 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; 6.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 6 November 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsAngelika NußbergerDeputy RegistrarPresident" ]
[ "FOURTH SECTION CASE OF GÎRLEANU v. ROMANIA (Application no. 50376/09) JUDGMENT STRASBOURG 26 June 2018 FINAL 26/09/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gîrleanu v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Ganna Yudkivska, President,Vincent A. De Gaetano,Faris Vehabović,Iulia Motoc,Carlo Ranzoni,Marko Bošnjak,Péter Paczolay, judges,and Marialena Tsirli, Section Registrar, Having deliberated in private on 29 May 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 50376/09) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Marian Gîrleanu (“the applicant”), on 10 September 2009. 2. The applicant was represented by Ms D. O. Hatneanu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.", "3. The applicant complained, in particular, of a violation of his freedom of expression as guaranteed by Article 10 of the Convention. 4. On 18 June 2013 the complaint concerning Article 10 of the Convention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 5.", "Written submissions were received from Guardian News and Media, the Open Society Justice Initiative and the International Commission of Jurists, which had been granted leave by the then President of the Court to intervene as third parties (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1963 and lives in Focşani. 7.", "At the material time the applicant was a local correspondent for the national daily newspaper România liberă. The applicant’s articles covered various fields, including investigations into the activities of the armed forces and the police. A. Background to the case 8. In the summer of 2004 secret documents were leaked, accidentally or deliberately, from the Romanian unit of an international military base in Afghanistan.", "The leak consisted mostly of copies of documents produced by the Romanian unit and classified as secret. The documents referred to the military operations of the Romanian troops at the said base in 2002 and 2003, such as operations orders or military maps. Copies of secret documents produced for the use of the Romanian unit by a military unit belonging to another country were also leaked. 9. In March 2005 three Romanian journalists, including O.O., who was working for România liberă, were kidnapped by a terrorist group in Iraq.", "Their release in May 2005 was negotiated by the Romanian State and an investigation was immediately started by the Romanian authorities. The following year the media extensively reported on this case and the role played by the authorities. 10. On 31 January 2006 O.O., together with other journalists, participated in a television show on a national channel. They criticised the authorities’ negligence in allowing leaks of secret sensitive military information and mentioned the existence of a compact disc (“CD”) with secret documents belonging to a Romanian military unit in Afghanistan.", "When the host of the show questioned the authenticity of the information on the CD, O.O. showed his computer to the camera. Some of the documents, including several military maps with the positions of the Romanian troops, were thus made visible to the public. 11. The journalists speculated as to whether such information could have reached terrorists too and demanded an investigation in order to establish whether the leaks had been voluntary.", "O.O. also said that although at that stage, the information no longer posed a threat to the lives of Romanian soldiers, it could have more serious implications in connection with the conflict in Afghanistan and Iraq. 12. During the show it was mentioned that the newspapers România liberă and Ziua had received the secret information in question but had decided not to publish it, fearing possible damage to national security. 13.", "On 7 February 2006 the national daily newspapers, România liberă and Ziua, published articles drawing attention to the fact that confidential information which could threaten national security had been leaked from a military unit under the authority of the Ministry of Defence. 14. On 8 February 2006 O.O. participated in a radio show together with the chairman and vice-chairman of the Defence Commission of the Romanian Senate, the director of Ziua and an investigative journalist from a national newspaper. The show followed a day of discussions and explanations about the leak of secret documents given by the Minister of Defence, the Chief of the Armed Forces and the head of the Information Department of the Army before the Defence Commission of the Senate.", "When asked how they had obtained the documents in question, O.O. refused to disclose his source, while the director of Ziua stated that he had received them anonymously. The chairman of the Defence Commission mentioned that the security of classified information had been one of the main chapters in Romania’s negotiations for joining NATO. He emphasised the importance of the Ministry of Defence undertaking a thorough investigation in connection with the leak, which put into play Romania’s credibility as a member of NATO. 15.", "On 3 March 2006 the Minister of Defence held a press conference during which he announced that an internal inquiry into the leak of classified information had been finalised and that seventy-nine members of the army were being punished with disciplinary sanctions. Further investigations were being conducted by the prosecutors with respect to two other members of the army. The minister also confirmed the fact that he had been informed about the leak by the Romanian Intelligence Service (Serviciul Român de Informaţii) in October 2005 and that the specialised army departments had immediately started preliminary verifications. B. Criminal investigation against the applicant 16.", "On 7 February 2006 the prosecutor’s office attached to the High Court of Cassation and Justice opened of its own motion an investigation on the basis of the articles published the same day in România liberă and Ziua (see paragraph 13 above). At the same time, the Ministry of Defence informed the same prosecutor’s office about the leak of information from within its structures. 17. Shortly afterwards the prosecutor decided to institute criminal proceedings against the applicant and four other people (P.I. – a former member of the armed forces, O.S.", "– a journalist, E.G. and I.M.) for disclosing classified information on national security under Article 169 of the Criminal Code, and for the gathering and sharing of secret or confidential information under Article 19(1) of Law no. 51/1991 on national security. 18.", "Authorisations had been issued for the interception of telephone calls made from the phone numbers belonging to E.G., I.M. and P.I., as well as for the surveillance of E.G. and I.M. and the ambient recording of their discussions. As a result, transcripts of discussions between the applicant and E.G.", "and I.M. had been included in the investigation file. 19. At 4.30 p.m. on 16 February 2006, after his house had been searched by the police and the hard drive of his computer seized, the applicant was taken into police custody. 20.", "On 17 February 2006 the applicant’s pre-trial detention was authorised by a judge for a period of ten days. An appeal lodged by the applicant against the measure was allowed and he was released on 18 February 2006. 21. The prosecutor established that at the beginning of July 2005 O.S., a journalist specialised in military issues, working for local newspapers in Focşani, had received on a CD a copy of the secret military documents leaked in 2004. At that time, three people, including P.I., had been in possession of the above-mentioned documents.", "On 2 July 2005 O.S. had met the applicant and had given him a copy of the CD. 22. A list of the applicant’s telephone calls showed that on 4 July 2005 he had called the head of the public relations department of the Romanian Armed Forces. In the following months, both the applicant and O.S.", "had discussed the content of the CD with other journalists and on several occasions with employees of the Romanian Armed Forces and of the Romanian Intelligence Service. 23. The investigation further established that by the end of 2005 the applicant had shown the content of the CD to a few people and had given a copy of the CD to E.G. and I.M., who the applicant believed were former members of the police. Furthermore, in January 2006 O.O.", "(see paragraph 10 above) went to Focşani and met the applicant and O.S., who showed him the documents. 24. In a statement given before the prosecutor on 16 February 2006, the applicant said that he could not remember having discussed the secret documents with O.O. He also said that as soon as he had found out about the information in question, he became interested in it as a journalist. Because there were doubts about the authenticity of the documents, he had had to contact a number of people in order to verify the information.", "It was in that context that he had discussed and shown the said documents to E.G. and I.M., who had let him believe they had connections with high-ranking politicians. He acknowledged that he might have told some of his friends that he had seen secret documents in order to be given more credit as an investigative journalist. 25. On 2 July 2007 the head of the Romanian Armed Forces informed the chief prosecutor of the prosecutor’s office attached to the High Court of Cassation and Justice that the documents which formed the object of the investigation and which had been issued by the Romanian army, and had been compromised by their publication in the media, had been de-classified.", "26. On 15 August 2007 the prosecutor’s office attached to the High Court of Cassation and Justice decided that “by receiving (obtaining) from O.S. a CD that he [had] watched three times; by saving on the hard drive of his computer the information classified as State secret and work secret and by giving the CD to I.M. and E.G., outside the legal framework set forth by the provisions of Law no. 182/2002 and Government Decision no.", "585/2002”, the applicant had committed, in a continuous form, the crime proscribed by Article 19(1) of Law no. 51/1991. The prosecutor decided, however, not to indict the applicant but to sanction him with an administrative fine of 800 Romanian lei (ROL) (approximately 240 euros (EUR)). The applicant was further ordered to pay part of the judicial costs incurred in the investigation in the amount of ROL 1,912 (EUR 572). The prosecutor also ordered the confiscation of the hard drive seized from the applicant on 16 February 2006.", "27. The prosecutor’s decision was based on the Romanian legal framework on classified information, which was held to include Law no. 182/2002 on the protection of classified information, Government Decision no. 585/2002 approving national standards for the protection of classified information, Government Decision no. 781/2002 on the protection of professional secrets and Law no.", "51/1991 on national security. The decision further mentioned that the applicant had received the secret military information and had proceeded to verify its nature and importance. He had further shared the information with other people. From the elements in the file, the prosecutor concluded that the purpose of the applicant’s actions was just to make himself more visible as an investigative journalist and not to serve the public interest. Noting that the protection of classified information was an obligation incumbent only on authorised personnel, the prosecutor nevertheless considered that information concerning national defence was classified and could not be of public interest, as provided for by Article 12(1)(a) of Law no.", "544/2001 on access to public information. As a result, although anyone unauthorised in the field of national defence – such as a journalist – was not bound by a duty to protect this type of information, he or she did not have the right to disclose it to the public. 28. In view of the above, the prosecutor considered that the applicant had acted with intent to disclose classified information outside the above-mentioned legal framework. However, the prosecutor considered that the crimes committed by the applicant and the other four suspects were not serious enough to require the pursuit of the criminal investigation.", "In this connection, the prosecutor noted firstly that the information in dispute was not likely to endanger national security but only to harm the interests of the Romanian State and its armed forces. In addition, the information was outdated and hence was no longer likely to endanger the Romanian military structures in Afghanistan. The information in question had already been “compromised” (disclosed by a member of the armed forces to a civilian) as early as the summer of 2004, with no measures having been taken by the institution concerned. The prosecutor also mentioned that the actions undertaken by O.S and the applicant in order to gather information concerning the content, nature and importance of the secret documents in question, by contacting active or reserve members of the armed forces or other journalists were part of the working methods of investigative journalists and did not necessarily present a danger for society. 29.", "The applicant complained against that decision to the superior prosecutor, who rejected the complaint as ill-founded on 6 November 2007. C. Court proceedings 30. On 3 December 2007 the applicant complained against the prosecutors’ decisions before the Bucharest Court of Appeal. He submitted that he had been wrongfully found guilty of the crime proscribed by Article 19(1) of Law no. 51/1991.", "In his opinion, that Article, as well as the entire law, imposed obligations only on people authorised to work with secret information. He contended that he had not made any steps to gather military secrets but had merely passively received information that was already in the public domain. Invoking Article 10 of the Convention, the applicant submitted that the Court had already decided that once information concerning national security had entered the public domain, it was difficult to justify the imposition of sanctions for its publication. He therefore urged the court to acknowledge that his actions could not be regarded as crimes. 31.", "On 5 February 2008 the Bucharest Court of Appeal rejected the applicant’s complaint as ill-founded. The court held that the facts established during the investigation had led to the conclusion that the applicant had secretly transmitted the CD containing secret information to other people he knew, avoiding handing it over to the competent authorities of the Ministry of Defence or the Romanian Intelligence Service. The court further held: “The accused’s capacity as a journalist cannot exonerate him from the commission of this crime because anyone who finds out about secret military information does not have the right to publish it since this might endanger the lives of soldiers, officers in the conflict environment. But the applicant, by the means described above, covertly shared the secret information, which could have reached people interested in putting military structures in danger. The accused did not even wish to use his profession in order to bring to the public’s knowledge the leak of information, as he failed to ask the newspaper for which he worked to make public the breach of state secrets in the military (obviously the military secret information could not have been published).", "The freedom of the press invoked by the accused cannot give a journalist the right to make public, to unofficial people, secret military information, because this may endanger the right to safety of certain military structures.” 32. The applicant was ordered to pay court fees in the amount of ROL 50 (EUR 13). 33. The applicant appealed against that judgment. He alleged that the information in dispute had already been in the public domain at the time it had been brought to his attention.", "He submitted that the prosecutor’s decision had breached his freedom of expression in an attempt to cover up an embarrassing situation for the authorities, who had allowed the information to be leaked to the public. 34. On 23 March 2009 the High Court of Cassation and Justice rejected the applicant’s complaint with final effect. The court held that Article 19 of Law 51/1991 applied to anyone who gathered and shared secret information outside the legal framework. It further held that the applicant had not contested the fact that he had come into possession of secret information which he had then shared with other people outside the legal framework.", "Moreover, he had done this with direct intent. Considering that the information in question had not been in the public domain, the court held that journalists coming into possession of such information must submit it to the competent authorities and were allowed by law to share with the public only the failure of the institution concerned to protect its confidentiality. Having failed to act in that way, the applicant had committed the crime proscribed by Article 19(1) of Law no. 51/1991. The court concluded that the prosecutor had correctly considered that the crime had not, however, attained the degree of seriousness to require criminal sanctions.", "35. The applicant was ordered to pay court fees of ROL 200 (EUR 47). II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Domestic law and practice 36.", "The relevant provisions of Law no. 51/1991 on national security, in force at the relevant time, are as follows: Article 12 “No one has the right to make public secret activities regarding national security, taking advantage of unrestricted access to information, of the right to the diffusion of such activities or of the freedom to express opinions. The disclosure, by any means, of secret data and information that may be prejudicial to the interests of national security, regardless of the way in which they have been obtained, is prohibited and shall involve the responsibility of the guilty persons, in accordance with the law. The provisions of paragraphs 1 and 2 above are not prejudicial to the right to freedom of opinion and expression, to the right of the person concerned not to be in any way subjected to interference on account of his/her opinions, as well as to the right to look for, to receive and to diffuse information and ideas, by any means of expression, if these rights are exercised in accordance with the laws of Romania.” Article 19 “The initiation, organisation or constitution on the territory of Romania of some informative structures that can cause damage to national security, supporting them in any way or adhering to them, the holding, manufacturing or unlawful utilisation of specific means for the interception of communications, as well as gathering and sharing information of a secret or confidential nature, by any means, outside of the legal framework, shall constitute a criminal offence and shall be punishable by imprisonment for a term of two to seven years, unless the deed is considered a more serious offence. Any attempt [at carrying out the offence] shall be punished.” 37.", "The relevant parts of Law no. 182/2002 on the protection of classified documents provide as follows: Article 16 “Protection of State secrets is an obligation incumbent on authorised personnel who issue, manage or receive them.” Article 17 “The following information is classified as State secret: ... b) plans, military objectives, numbers and missions of the forces engaged in conflict; ... h) maps, topographic plans, thermograms and air recordings of any kind containing elements or objectives classified as State secret;” 38. Government Decision no. 585/2002 approving the national standards for the protection of classified information sets out the rules for the implementation of Law no. 182/2002.", "More specifically, it regulates issues such as the classification of State secret information, obligations and responsibilities on behalf of the authorities, public institutions, companies and other private or public legal entities; the norms for accessing classified information and for security screenings; as well as rules concerning the drafting, storing or transport of classified documents by authorised personnel. 39. The relevant provisions of the Criminal Code in force at the relevant time are as follows: Article 169Disclosure of classified information which endangers national security “(1) The disclosure of documents or data which are classified as State secret or of other documents or data by a person who knows of them through his or her professional duties, if doing so poses a threat to national security, shall be punishable by imprisonment for a term of seven to fifteen years and the restriction of certain rights. (2) The possession, outside professional duties, of a document classified as State secret, if such possession poses a threat to State security, shall be punishable by imprisonment for a term of five to ten years. (3) The same punishment provided for by paragraph 2 shall apply to the possession, outside professional duties, of other documents with the aim of divulging [their content], if doing so poses a threat to national security.", "(4) If the acts provided for by the previous paragraphs are committed by any other person, the punishment shall be a term of imprisonment of one to seven years.” 40. By new provisions which entered into force on 1 February 2014 Article 19 of Law No. 51/1991 was repealed and paragraph (3) of Article 169 of the Criminal Code was amended so as to punish with imprisonment for a term of one to five years any disclosure of state secret information without having the right by those who come across such information outside professional duties. 41. The relevant parts of Law no.", "544/2001 on access to public information provide as follows: Article 1 “Free access to information of public interest, as defined by the present law, is one of the fundamental principles of the relations between the public and the authorities ...” Article 2 “... b) information of public interest means any information concerning the activities or resulting from the activities of a public authority or institution, regardless of the manner in which it is stored, its form or means of expression.” Article 12 “(1) The following information is not subject to free access by the public: a) information in the field of national defence, safety and public order, if they are classified in accordance with the law; ...” B. International law and practice 42. In Recommendation No. R (2000) 7 on the rights of journalists not to disclose their sources of information, the Committee of Ministers of the Council of Europe held that the following measures should not be applied if their purpose was to circumvent the right of journalists not to disclose information identifying a source: “11.1. interception orders or actions concerning communication or correspondence of journalists or their employers; 11.2. surveillance orders or actions concerning journalists, their contacts or their employers; 11.3. search or seizure orders or actions concerning private or business premises, belongings or correspondence of journalists or their employers, or personal data related to their professional work.” 43.", "On 19 April 2007 the Parliamentary Assembly of the Council of Europe adopted a resolution on espionage and divulging State secrets. The paragraphs of relevance to the present case read as follows: “Fair-trial issues in criminal cases concerning espionage or divulging State secrets (Resolution 1551 (2007)) 1. The Parliamentary Assembly finds that the State’s legitimate interest in protecting official secrets must not become a pretext to unduly restrict the freedom of expression and of information, international scientific cooperation and the work of lawyers and other defenders of human rights. 2. It recalls the importance of freedom of expression and of information in a democratic society, in which it must be possible to freely expose corruption, human rights violations, environmental destruction and other abuses of authority.", "... 5. The Assembly notes that legislation on official secrecy in many Council of Europe member States is rather vague or otherwise overly broad in that it could be construed in such a way as to cover a wide range of legitimate activities of journalists, scientists, lawyers or other human rights defenders. 6. ... For its part, the European Court of Human Rights found ‘disproportionate’ an injunction against the publication in the United Kingdom of newspaper articles reporting on the contents of a book (Spycatcher) that allegedly contained secret information, as the book was readily available abroad. ... 9.", "It calls on the judicial authorities of all countries concerned and on the European Court of Human Rights to find an appropriate balance between the State interest in preserving official secrecy on the one hand, and freedom of expression and of the free flow of information on scientific matters, and society’s interest in exposing abuses of power on the other hand. 10. The Assembly notes that criminal trials for breaches of State secrecy are particularly sensitive and prone to abuse for political purposes. It therefore considers the following principles as vital for all those concerned in order to ensure fairness in such trials: 10.1. information that is already in the public domain cannot be considered as a State secret, and divulging such information cannot be punished as espionage, even if the person concerned collects, sums up, analyses or comments on such information. The same applies to participation in international scientific cooperation, and to the exposure of corruption, human rights violations, environmental destruction or other abuses of public authority (whistle-blowing); ...” 44.", "On 26 September 2007 the Committee of Ministers of the Council of Europe adopted a Declaration on the Protection and Promotion of Investigative Journalism, the relevant parts of which read as follows: “... 4. Acknowledging, in this context, the important work of investigative journalists who engage in accurate, in-depth and critical reporting on matters of special public concern, work which often requires long and difficult research, assembling and analysing information, uncovering unknown facts, verifying assumptions and obtaining corroborative evidence; ... 7. Considering that, because of its very nature, investigative journalism is of particular significance in times of crisis, a notion that includes, but is not limited to, wars, terrorist attacks and natural and man-made disasters, when there may be a temptation to limit the free flow of information for security or public safety reasons; ... II. Calls on member states to protect and promote investigative journalism, having regard to Article 10 of the European Convention on Human Rights, the relevant case law of the European Court of Human Rights and other Council of Europe standards, and in this context: ... iv. to ensure that deprivation of liberty, disproportionate pecuniary sanctions, prohibition to exercise the journalistic profession, seizure of professional material or search of premises are not misused to intimidate media professionals and, in particular, investigative journalists”.", "45. In the Claude Reyes et al. v. Chile case before the Inter-American Court of Human Rights (19 September 2006, Series C no. 151), the Inter‑American Commission on Human Rights submitted as follows: “58. ...", "The disclosure of State-held information should play a very important role in a democratic society, because it enables civil society to control the actions of the government to which it has entrusted the protection of its interests. ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 46. The applicant complained that his arrest, along with the criminal proceedings against him, had infringed his right to freedom of expression as provided for in Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression.", "This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. Admissibility 47. The Government argued that Article 10 was not applicable in the current case.", "In their opinion, the acts for which the applicant had been convicted could not be considered as journalistic investigation because they had not resulted in the publication of the information in question. The Government therefore raised an objection of incompatibility ratione materiae with the provisions of Article 10 of the Convention. 48. The applicant disagreed and submitted that the investigation he had conducted in his capacity as a journalist had resulted in the disclosure in the media of information which was of public interest. Accordingly, he contended that Article 10 was applicable in his case.", "49. The Court considers that the Government’s objection regarding the applicability of Article 10 to the facts of the current case is closely linked to the merits of the application. It therefore joins this issue to the merits. The Court further notes that the application 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 1. The parties’ submissions and third-party comments (a) The applicant 50. The applicant firstly submitted that Article 10 of the Convention provided that everyone had the right to receive and impart information.", "Notwithstanding that general right, the applicant argued that he had acted in his capacity as a journalist with the intention of publishing information which he believed was of public interest. He maintained that the acts for which he had been investigated and sanctioned were part of a journalistic investigation that he had undertaken in order to determine whether the information brought to his attention was true and of public interest. As soon as he had verified the said information, he had contacted the central office of his newspaper and subsequently entered into contact with his colleague, O.O. The manner in which his colleague from the central office and the newspaper where he was employed had chosen to publish the information had not depended on him. Moreover, his statements as well as the witness statements given by other journalists during the investigation were meant to protect their sources and their colleagues.", "Under those circumstances, the applicant submitted that his arrest and the criminal sanctions imposed on him constituted an interference with his right to freedom of expression. 51. As to whether the measures taken against him were provided for by law, the applicant submitted that the authorities’ decisions had been based on a legal framework which did not apply in his case. More specifically, Law no. 182/2002 clearly placed obligations only on authorised personnel, while Law no.", "544/2001 referred to the public’s free access to information of public interest held by the authorities. Moreover, the Court had already expressed concerns as to the foreseeability of Article 19 of Law no. 51/1991 in the case of Bucur and Toma v. Romania (no. 40238/02, § 82, 8 January 2013). Consequently, the applicant argued that the interference with his right to freedom of expression was not prescribed by law.", "52. The applicant further pointed out that he had acted in good faith, in his capacity as a journalist, firstly making enquiries about the authenticity and importance of the information before the relevant authorities. However, representatives of the army and the Romanian Intelligence Service had denied the authenticity of the information in his possession, so he had had to further his investigation. Subsequently, he had worked with his colleagues from the central office of his newspaper, who had finally decided to make public the fact that classified information had been leaked by the Romanian army. This type of information was clearly a matter of public interest.", "The applicant also submitted that having received the information in question from a colleague journalist, it could have been easily inferred that the said secret information was already in the public domain, a fact recognised also in the prosecutor’s decision of 15 August 2007. On this point the applicant was of the opinion that his case differed from the case of Stoll v. Switzerland (no. 69698/01, 10 December 2007) where classified information had been disclosed directly to the applicant journalist by a government agent. 53. The applicant considered that the criminal investigation to which he had been subjected, his detention, his surveillance, the seizure of his hard drive, as well as the fine and the court fees he had been obliged to pay had been disproportionate measures as compared to his actions.", "He had refused to pay the above-mentioned fine and fees considering their unfairness, but had not opposed their enforcement. 54. Lastly, the applicant noted that the offence for which the fine had been imposed was a serious one, punishable by up to seven years’ imprisonment. Although the fine he had been ordered to pay might appear to be low, the criminal proceedings had damaged his reputation as a journalist and led to him losing his permanent employment and later to his dismissal from his job with the newspaper. (b) The Government 55.", "The Government firstly argued that the applicant’s detention and the administrative fine imposed on him by the prosecutor’s decision of 15 August 2007 had not amounted to an interference with his right to freedom of expression. They considered that the applicant had not acted in his capacity as a journalist, because he had gathered and shared not information of public interest but military intelligence concerning operations of the Romanian army in Afghanistan. 56. The Government further submitted that should the Court consider that there had been an interference with the applicant’s rights under Article 10 of the Convention, such interference was provided for by law, pursued a legitimate aim and was necessary in a democratic society. 57.", "In the Government’s view the judicial authorities had correctly applied the legal provisions on national security and classified information. They contended that the measures taken against the applicant had been aimed at preventing the disclosure of confidential information concerning military operations in a conflict zone. 58. The Government challenged the applicant’s arguments that the information had already been in the public domain when it came into his possession. Its circulation within a small circle of people and the fact that it was confidential could not lead to the conclusion that the information in question had been accessible to the public.", "59. The Government also stressed that the domestic courts had correctly balanced the competing interests in the current case in the presence of all the relevant documents from the investigation file. 60. Lastly, the Government submitted that the sanction imposed on the applicant had been proportionate to the legitimate aim pursued. Referring to the case of Stoll (cited above, § 155), the Government argued that the Court had held that a consensus appeared to exist between the member States of the Council of Europe on the need for appropriate criminal sanctions to prevent the disclosure of certain confidential items of information.", "In the Government’s opinion, since the applicant’s pre-trial detention had been revoked by the domestic courts, the applicant could no longer claim to be a victim in that respect. As far as the administrative fine was concerned, the Government considered it a minor sanction, of a rather low amount, which by October 2013 the applicant had still not paid. In addition, the applicant had failed to provide any proof that that sanction had had a discouraging effect on him or had prevented him from continuing his work as a journalist. (c) Third parties (i) Guardian News and Media 61. Guardian News and Media submitted that measures which restrict, hinder or discourage journalists from researching and collating information, including information that remains unpublished, or from keeping such information as part of an investigation or for purposes of a future investigation, fell within the scope of Article 10 and must be subject to the same scrutiny as that applied in respect of measures which directly restrict, hinder or discourage the publication or dissemination of information.", "62. The third party further submitted that the collation and retention of (even non-published) investigative material – including, on occasion, sensitive material – was a necessary and essential part of investigative journalism. It facilitated the evaluation or development of future events, statements or decisions, and helped to form a properly informed view as to the public interest in publication in particular cases, a crucial aspect of responsible journalism; the identification and assessment of leads for potential further investigation; or the development of a body of “background” expertise or knowledge on particular issues to assist with the writing of accurate and properly informed articles and stories in future. 63. They lastly noted that there was an increasing trend for prosecutorial criminal enforcement powers to be utilised against journalists.", "The use of criminal enforcement powers against a journalist in the context of national security or terrorism could have a real impact in hampering or discouraging other journalists from engaging in research and investigation of such matters. In this context, it was well established in the Court’s case-law that the imposition of even very minor criminal sanctions on a journalist could have a wholly disproportionate chilling effect on those performing the role of reporting on matters of public interest and, in consequence, may very rarely be considered proportionate. (ii) Open Society Justice Initiative and the International Commission of Jurists 64. Open Society Justice Initiative, together with the International Commission of Jurists, submitted that based on research of various sources of comparative law and jurisprudence, there was an emerging European consensus distinguishing the sanctions that could be applied to journalists, and in some cases other members of the public, compared with those available for public servants, for the public disclosure of information of public interest. Public servants were subject to reasonable and qualified obligations of confidentiality to which members of the public were not.", "Among the members of the public, journalists and other similarly protected persons with a special responsibility to act as public watchdogs, could be sanctioned for disclosing government information only in extraordinary circumstances. 65. States increasingly distinguished between the offences or penalties available for the unauthorised disclosure of information by members of the public on the one hand, and public servants on the other. For instance, in Germany, the criminal law had been amended in 2012 to release journalists from the risk of being charged with aiding and abetting the “violation of official secrets” for disclosing classified information. If the unauthorised disclosure did not amount to treason or espionage, and was not in wartime, several countries – including Moldova, the Russian Federation and Slovenia – limited criminal responsibility for unauthorised disclosure only to public servants.", "Many other countries – including Belgium, Denmark, France, Poland and the United Kingdom – provided separate or heightened offences for public servants who disclosed information to which private persons, including those working in the media, were not subject. 66. They further submitted that the possession of information was protected from government restriction at least to the extent that disclosure would be so protected. It could not be lawful for a journalist who received information which the State did not want disseminated to be unprotected in the absence of disclosure. On this point, there was growing support in international and national law and practice against sanctions for unauthorised possession, including in the area of national security.", "For instance, where there was no espionage, demonstration of intent to harm, or actual harm, the laws of Albania, Moldova and Poland provided no punishment for the unauthorised possession of classified information by members of the public or public servants, despite clear penalties for the unauthorised disclosure of such information. In other States – including the Czech Republic, Germany, Serbia and Slovenia – the offence of unauthorised possession required that the offender was a public servant, had had an intent to disclose, had used unlawful means, or had caused harm. 67. They concluded that the State was primarily or exclusively responsible for the protection of government information, and journalists and other similarly protected persons may be subject to sanctions for possession or disclosure in the public interest of information only in exceptional circumstances due to the commission of crimes not based on the fact of possession or disclosure. 2.", "The Court’s assessment (a) Applicability of Article 10 and the existence of interference 68. The Court has consistently held that the press exercises a vital role of “public watchdog” in imparting information on matters of public concern (see, for example, Magyar Helsinki Bizottság v. Hungary, no. 18030/11, § 167, 8 November 2016). It is also well established that the gathering of information is an essential preparatory step in journalism and an inherent, protected part of press freedom (see Dammann v. Switzerland, no. 77551/01, § 52, 25 April 2006; Shapovalov v. Ukraine, no.", "45835/05, § 68, 31 July 2012; and Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 128, ECHR 2017 (extracts)). 69. In the current case, the Court notes that the applicant was a journalist whose field of work included investigations into the activities of the armed forces and the police. It was in this capacity that he received the information in question from a fellow journalist.", "He then contacted the authority which had produced the documents, his colleagues as well as other authorities and people who, the applicant believed, had knowledge about the subject (see paragraphs 22 and 23 above). In the Court’s opinion, all the above actions may be considered as part of a journalistic investigation, as the prosecutor also held in the decision of 15 August 2007 (see paragraph 28 above). 70. The Court further observes that the applicant was arrested, investigated and fined for gathering and sharing secret information. 71.", "In previous cases concerning gathering and disclosure by journalists of confidential information or of information concerning national security, the Court has consistently considered that it had been confronted with an interference with the rights protected by Article 10 of the Convention (see, for example, Fressoz and Roire v. France, no. 29183/95, § 41, 21 January 1999, and Stoll, cited above, §§ 46 and 47). Moreover, the Court reached a similar conclusion also in cases which, as the present case, concerned the journalistic preparatory work before publication (see Dammann, cited above, § 28; and Schweizerische Radio- und Fernsehgesellschaft SRG v. Switzerland, no. 34124/06, § 22, 21 June 2012). 72.", "In these circumstances, the Court is satisfied that Article 10 of the Convention is applicable in the present case and that the sanctions imposed on the applicant constituted an interference with his right to freedom of expression. The Government’s objection that the applicant’s complaint is incompatible ratione materiae must therefore be dismissed. (b) Whether the interference was justified 73. In order to be justified, an interference with the applicant’s right to freedom of expression must be “prescribed by law”, pursue one or more of the legitimate aims mentioned in paragraph 2 of Article 10, and be “necessary in a democratic society”. (i) “Prescribed by law” 74.", "The Court observes that the parties disagreed as to whether the interference with the applicant’s freedom of expression was “prescribed by law”. The difference in the parties’ opinions as regards the applicable law originates in their diverging views on the issue of whether the legal provisions on classified information prevented people other than authorised personnel from gathering or sharing classified information. According to the applicant, journalists and other people were not bound by such an obligation, whereas the Government argued that because classified national defence information was excluded from the types of information available freely to the public, as provided for by Law no. 544/2001 on access to public information, the applicant too had been under a duty to refrain from disclosing such information. 75.", "The Court also notes that it has already expressed concerns about the foreseeability of Romanian domestic law on national security in the case of Bucur and Toma (cited above, § 82), where the parties disagreed as to whether it was forbidden by law to classify information as State secret in order to hide violations of the law, or administrative errors, or in order to limit access to information of public interest. However, in the current case, it is clearly another area of domestic law that is involved. 76. As the Court has held on numerous occasions, it is not its task to take the place of the domestic courts and it is primarily for the national authorities, notably the courts, to interpret and apply domestic law. Nor is it for the Court to express a view on the appropriateness of the methods chosen by the legislature of a respondent State to regulate in a given field (see, among many authorities, Magyar Helsinki Bizottság, cited above, § 184).", "77. The Court notes that Law no. 51/1991 – which is part of the legal framework on national security – provides that no one has the right to make public secret activities regarding national security (see paragraph 36 above). The Court further notes that both the Bucharest Court of Appeal and the High Court of Cassation and Justice analysed the applicant’s arguments in this respect and considered that Article 19 of Law no. 51/1991 applied to everyone (see paragraphs 31 and 34 above).", "The Court sees no reason to question the domestic courts’ interpretation of the legislation on national security and therefore accepts that the interference was “prescribed by law” within the meaning of the second paragraph of Article 10 of the Convention. (ii) Legitimate aim 78. The parties disagreed also as to whether the interference had pursued a legitimate aim. 79. The applicant alleged that the information in question had already been circulating among a number of people before reaching him and that therefore the measures taken against him could not have had the purpose of preventing the disclosure of that information.", "80. The Government contended that the information in dispute was confidential military information and that the purpose of the measures taken against the applicant had been to prevent its disclosure. 81. The Court notes that considerations of national security featured prominently in all the decisions adopted by the authorities in this case. In addition, it appears from the file that measures similar to the ones taken against the applicant were also taken against the people whom the authorities knew were in possession of the documents in question.", "82. In view of the above, the Court considers that the Government were entitled to invoke the legitimate aim of protecting national security. (iii) “Necessary in a democratic society” (α) General principles 83. The fundamental principles concerning the question whether an interference with freedom of expression is “necessary in a democratic society” are well established in the Court’s case-law and were summarised in Stoll (cited above, § 101) and restated more recently in Bédat v. Switzerland ([GC], no. 56925/08, § 48, ECHR 2016) as follows: “(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment.", "Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ... (ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10.", "(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...” 84. As regards the level of protection, there is little scope under Article 10 § 2 of the Convention for restrictions on freedom of expression in two fields, namely political speech and matters of public interest. Accordingly, a high level of protection of freedom of expression, with the authorities thus having a particularly narrow margin of appreciation, will normally be accorded where the remarks concern a matter of public interest.", "However, the protection afforded by Article 10 of the Convention to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism. The concept of responsible journalism, as a professional activity which enjoys the protection of Article 10 of the Convention, is not confined to the contents of information which is collected and/or disseminated by journalistic means. That concept also embraces the lawfulness of the conduct of a journalist, and the fact that a journalist has breached the law is a relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly (see Pentikäinen v. Finland [GC], no. 11882/10, § 90, ECHR 2015 and the cases referred to therein; see also Bédat, cited above, §§ 49-50). (β) Application of these principles to the present case 85.", "In the present case the applicant was arrested, the hard drive of his computer was confiscated and he was ordered by the domestic courts to pay a fine of ROL 800 and additional judicial fees totalling ROL 2,162 for having gathered and shared secret information “outside the legal framework”, within the meaning of Article 19 of the Law on national security. In the view of the Romanian courts, the applicant had committed an offence by virtue of having shared secret military information with other people. The information in dispute – copies of secret documents belonging to a Romanian military unit operating in Afghanistan – concerned the national defence and was classified. 86. In order to ascertain whether the impugned measure was necessary the Court had previously relied on the following aspects: the interests at stake, the conduct of the applicant, the review of the measure by the domestic courts and whether the penalty imposed was proportionate (see Stoll, cited above, § 112).", "‑ The interests at stake 87. In the current case, in order to answer whether the information in question was of public interest, the Court firstly takes note of the context surrounding the applicant’s actions – more specifically, the public debate on the kidnapping of three journalists in Iraq (see paragraph 9 above). In addition, the information in question and the fact that it was leaked was amply discussed in the media, with journalists speculating that it could have serious implications in connection with the conflict in Afghanistan and Iraq (see paragraphs 10-14 above). Furthermore, the disclosure of the documents to the public gave rise to an internal investigation within the Ministry of Defence, and to a high number of disciplinary sanctions (see paragraph 15 above). It must also be noted that the High Court of Cassation and Justice recognised in its judgment of 23 March 2009 that the issue of the leak of secret information from the army was a matter of public interest (see paragraph 34 above).", "Therefore, in the Court’s view the documents in the applicant’s possession, as well as the fact that they had been leaked from the Romanian army, were likely to raise questions of public interest. 88. On this point the Court also reiterates the principle adopted in Resolution 1551 (2007) of the Parliamentary Assembly of the Council of Europe on fair-trial issues in criminal cases concerning espionage or divulging State secrets, whereby publication of documents is the rule and classification the exception (see paragraph 43 above). Similarly, the Inter-American Commission on Human Rights has taken the view that the disclosure of State-held information should play a very important role in a democratic society because it enables civil society to control the actions of the government to whom it has entrusted the protection of its interests (see Stoll, cited above, § 111). 89.", "As regards the interests the domestic authorities sought to protect and the repercussions in the circumstances of the present case, the Court must ascertain whether the applicant’s actions were, at the relevant time, capable of causing “considerable damage” to national security (see Hadjianastassiou v. Greece, no. 12945/87, § 45 in fine, 16 December 1992, and Pasko v. Russia, no. 69519/01, § 86, 22 October 2009, for cases concerning military interests and national security in the strict sense; and, mutatis mutandis, Stoll, cited above, § 130). That being so, the Court does not doubt that secret information concerning military operations in a conflict zone is a priori information that must be protected. However, it is important to note that the prosecutor observed that the information was outdated and that its disclosure was not likely to endanger national security (see paragraph 28 above).", "Moreover, the documents issued by the Romanian military unit liable for the leak had been de-classified after the beginning of the investigation (see paragraph 23 above). Under these circumstances, the Court notes that the Government did not succeed in demonstrating that the gathering and the disclosure of the information by the applicant to E.G. and I.M. had been liable to cause considerable damage to national security. ‑ The conduct of the applicant 90.", "The Court firstly notes that the present case differs from other similar cases concerning disclosure of military secret information in that the applicant was not a member of the armed forces on which specific \"duties\" and \"responsibilities\" are incumbent (compare Hadjianastassiou, cited above, § 46, and Pasko, cited above, § 87). 91. The Court further notes that the applicant did not obtain the information in question by unlawful means and the investigation failed to prove that he had actively sought to obtain such information. It must also be noted that the information in question had already been seen by other people before the applicant (see paragraph 21 above). 92.", "In addition, the Court observes that the applicant’s first step after coming into possession of the information in question was to discuss it with the institution concerned by the leak, the Romanian Armed Forces. It does not appear from the investigation whether the latter tried to recover the documents or warn about possible dangers in the event of their disclosure. On this point, the Court reiterates that whoever exercises his freedom of expression undertakes “duties and responsibilities” the scope of which depends on his situation and the technical means he uses (see Dammann, cited above, § 55). However, it is for the States to organise their services and to train their personnel in such a way as to ensure that no confidential information is disclosed (ibid.). These findings are valid in the current case too, especially since the lack of action on the part of the institution concerned by the leak of the secret information was noted also by the prosecutor (see paragraph 28 above).", "93. Moreover, from the facts of the case it may be inferred that the journalistic investigations conducted by the applicant and O.S. were followed by discussions of the subject on national television and radio, the publication of two articles by the newspapers where they were employed, as well as by discussions in the Romanian Senate and an internal inquiry within the Ministry of Defence (see paragraphs 10-14 above). ‑ The review of the measure by the domestic courts 94. As far as the review of the measures against the applicant by the domestic courts is concerned, the Court reiterates that it is not for it to take the place of the States Parties to the Convention in defining their national interests, a sphere which traditionally forms part of the inner core of State sovereignty.", "However, considerations concerning the fairness of proceedings may need to be taken into account in examining a case of interference with the exercise of Article 10 rights (see Stoll, cited above, § 137). 95. The Court finds that none of the above specific elements concerning the applicant’s conduct (see paragraphs 89-91 above) were taken into consideration by the domestic courts in their analysis. Both the Bucharest Court of Appeal and the High Court of Cassation and Justice limited themselves to stating that journalists did not have the right to publish secret military information and that the applicant was guilty of sharing information which could have put military structures in danger. The courts did not address the prosecutor’s finding that the disclosure by the applicant of the information under dispute was not likely to endanger national security and failed to actually verify whether the said information could indeed have posed a threat to military structures.", "Moreover, although the applicant invoked the guarantees provided by Article 10 of the Convention (see paragraph 31 above), the courts did not appear to weigh, in the circumstances of the case, the interests in maintaining the confidentiality of the documents in question over the interests of a journalistic investigation and the public’s interest in being informed of the leak of information and maybe even of the actual content of the documents (contrast Stoll, cited above, § 138). ‑ Whether the penalty imposed was proportionate 96. In cases concerning criminal sanctions for the disclosure of classified military information the Court has held that the margin of appreciation is to be left to the domestic authorities in matters of national security (see Hadjianastassiou, cited above, § 47 and Pasko, cited above, § 87). However, the applicant in the current case is a journalist claiming to have made the disclosure in the context of a journalistic investigation and not a member of the military who collected and transmitted secret military information to foreign nationals (see Pasko, cited above, § 13) or to private companies (see Hadjianastassiou, cited above, § 7). 97.", "In the present case, the Court agrees with the Government that the amount of the fine (ROL 800 or approximately EUR 240) appears to be relatively low. The Court further observes that the applicant was also ordered to pay judicial fees of ROL 2,162 (approximately EUR 630) and that it is not evident from the file whether the applicant indeed paid those amounts. Be that as it may, the domestic courts held as established that the applicant had intentionally committed a criminal offense against the national security (see paragraph 34 above). On this point, the Court reiterates that contrary to the Government’s submission, the fact of a person’s conviction may in some cases be more important than the minor nature of the penalty imposed (see Dammann, cited above, § 57). 98.", "Furthermore, the above-mentioned sanctions against the applicant were imposed before publication of the secret information in question. The Court observes that the measures taken against the applicant had the purpose of preventing him from publishing and sharing the secret documents he had in his possession. This fact was not contested by the Government. The Court notes that after the de-classification of the documents in question and the prosecutor’s finding that they were outdated and not likely to endanger national security, the decision whether to impose any sanctions against the applicant should have been more thoroughly weighed. (γ) Conclusion 99.", "Having regard to the above, the Court considers that the measures taken against the applicant were not reasonably proportionate to the legitimate aim pursued, in view of the interests of a democratic society in ensuring and maintaining freedom of the press. 100. There has accordingly been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 101.", "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 102. The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage, alleging that the breach of his right to freedom of expression had damaged his professional life. 103. The Government considered that the applicant’s claim was excessive and submitted that the finding of a violation would be sufficient compensation for any non-pecuniary damage sustained by the applicant.", "104. Ruling on an equitable basis, the Court awards the applicant EUR 4,500 in respect of non-pecuniary damage. B. Costs and expenses 105. The applicant also claimed EUR 3,995.75 for the costs and expenses incurred before the Court.", "The claim consisted of EUR 3,695.75 in lawyer’s fees, to be paid directly to the lawyer’s account, and EUR 300 for technical support and various communication costs incurred by the Romanian Helsinki Committee, to be paid directly to that organisation’s account. The applicant submitted a contract signed by his representative and a detailed document indicating the number of hours worked in preparing the case. He also submitted an agreement signed with the Helsinki Committee by which the latter committed itself to offering technical support and to paying the correspondence fees incurred before the Court. 106. The Government considered the amount claimed for lawyer’s fees unreasonable.", "They further submitted that the EUR 300 requested by the Helsinki Committee was not justified in view of the low number of documents submitted on behalf of the applicant. 107. The Court reiterates that in order for costs and expenses to be reimbursed under Article 41, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII, and Cobzaru v. Romania, no. 48254/99, § 110, 26 July 2007).", "In accordance with Rule 60 § 2 of the Rules of Court, itemised particulars of all claims must be submitted, failing which the Chamber may reject the claim in whole or in part. 108. In the present case, having regard to the above criteria, to the complexity of the case and to the documents submitted by the applicant, the Court considers it reasonable to award the applicant the sum of EUR 3,695 in respect of lawyer’s fees, to be paid directly into the bank account indicated by the applicant’s representative. C. Default interest 109. 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 10 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 3,695 (three thousand six hundred and ninety-five euros), to be paid directly to Ms Diana Olivia Hatneanu, 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 26 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliGanna YudkivskaRegistrarPresident" ]
[ "FOURTH SECTION CASE OF BĄCZKOWSKI AND OTHERS v. POLAND (Application no. 1543/06) JUDGMENT STRASBOURG 3 May 2007 FINAL 24/09/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bączkowski and Others 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, judgesand Mr T.L.", "Early, Section Registrar, Having deliberated in private on 3 April 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 1543/06) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Tomasz Bączkowski, Mr Robert Biedroń, Mr Krzysztof Kliszczyński, Ms Inga Kostrzewa, Mr Tomasz Szypuła and by the Foundation for Equality (Fundacja Równości), on 16 December 2005. 2. The applicants were represented before the Court by Professor Zbigniew Hołda, a lawyer practising in Warsaw.", "3. The respondent Government were represented by their Agent, Mr Jakub Wołąsiewicz of the Ministry of Foreign Affairs. 4. The applicants complained that their right to peaceful assembly had been breached by the way in which the domestic authorities had applied relevant domestic law to their case. They alleged that they had not had at their disposal any procedure which would have allowed them to obtain a final decision before the date of the planned assemblies.", "They also complained that they had been treated in a discriminatory manner in that they had been refused permission to organise the assemblies whilst other persons had received such permission. 5. By a decision of 5 December 2006, the Court declared the application admissible. It decided to join to the merits of the case the examination of the Government's preliminary objections. 6.", "The applicants filed further written observations (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 1. Preparation of the assemblies 7. The applicants, a group of individuals and the Foundation for Equality (of whose executive committee the first applicant is also a member empowered to act on its behalf in the present case), wished to hold, within the framework of Equality Days organised by the Foundation and planned for 10‑12 June 2005, an assembly (a march) in Warsaw with a view to alerting public opinion to the issue of discrimination against minorities – sexual, national, ethnic and religious – and also against women and disabled persons.", "8. On 10 May 2005 the organisers held a meeting with the Director of the Safety and Crisis Management Unit of Warsaw City Council. During this meeting an initial agreement was reached as to the itinerary of the planned march. 9. On 11 May 2005 Mr Bączkowski obtained an instruction of the Warsaw Mayor's Office on “requirements which organisers of public assemblies have to comply with under the Road Traffic Act” should the assembly be regarded as an “event” (impreza) within the meaning of Article 65 of that Act.", "10. On 12 May 2005 the organisers applied to the City Council Road Traffic Office for permission to organise the march, the itinerary of which would lead from the Parliament buildings (Sejm) to Assembly Square (Plac Defilad) in the centre of Warsaw. 11. On 3 June 2005 the Traffic Officer, acting on behalf of the Mayor of Warsaw, refused permission for the march, relying on the organisers' failure to submit a “traffic organisation plan” (“projekt organizacji ruchu”) within the meaning of Article 65 (a) of the Road Traffic Act, which they had allegedly been ordered to submit. 12.", "On the same day the applicants informed the Mayor of Warsaw about stationary assemblies they intended to hold on 11 June 2005 in seven different squares in Warsaw. Four of these assemblies were intended to protest about discrimination against various minorities and to support actions of groups and organisations combating discrimination. The other three planned assemblies were to protest about discrimination against women. 13. On 9 June 2005 the Mayor issued decisions banning the stationary assemblies to be organised by Mr Bączkowski, Mr Biedroń, Mr Kliszczyński, Ms Kostrzewa, Mr Szypuła, and another person, Mr N. (who is not an applicant), who are active in various non‑governmental organisations acting for the benefit of persons of homosexual orientation.", "In his decision the Mayor relied on the argument that assemblies held under the provisions of the Assemblies Act of 1990 (Ustawa o zgromadzeniach) had to be organised away from roads used for road traffic. If they were to use roads, more stringent requirements applied. The organisers wished to use cars carrying loudspeakers. They had failed to indicate where and how these cars would park during the assemblies so as not to disturb the traffic, and how the movement of persons and these cars between the assembly sites would be organised. 14.", "Moreover, as a number of requests had been submitted to organise other assemblies on the same day the tenor of which ran counter to the ideas and intentions of the applicants, permission had to be refused in order to avoid any possible violent clashes between participants in the various demonstrations. 15. On the same day the municipal authorities, acting on the Mayor's behalf, allowed the three planned assemblies concerning discrimination against women to be held as requested by the applicants. 16. On the same day the same authorities permitted six other demonstrations to be held on 11 June 2005.", "The themes of these assemblies were as follows: “For more stringent measures against persons convicted of paedophilia”, “Against any legislative work on the law on partnerships”, “Against propaganda for partnerships”, “Education in Christian values, a guarantee of a moral society”, “Christians respecting God's and nature's laws are citizens of the first rank”, “Against adoption of children by homosexual couples”. 2. Meetings held on 11 June 2005 17. On 11 June 2005, despite the decision given on 3 June 2005, the march took place. It followed the itinerary as planned in the original request of 12 May 2006.", "The march, attended by approximately 3,000 people, was protected by the police. 18. In addition to the march, nine stationary assemblies were held on the same day under permission granted by the Mayor on 9 June 2005 (see paragraphs 15‑16 above). 3. Appeal proceedings a) The march 19.", "On 28 June 2005 the applicant Foundation appealed to the Local Government Appeals Board against the decision of 3 June 2005 refusing permission for the march. It was argued that the requirement to submit “a traffic organisation plan” lacked any legal basis and that the applicants had never been requested to submit such a document prior to the refusal. It was also argued that the decision amounted to an unwarranted restriction of freedom of assembly and that it had been dictated by ideological reasons incompatible with the tenets of democracy. 20. On 22 August 2005 the Board quashed the contested decision, finding that it was unlawful.", "The Board observed that under the applicable provisions of administrative procedure the authorities were obliged to ensure that parties to administrative proceedings had an opportunity of effectively participating in them. In the applicant's case this obligation had not been respected in that the case file contained no evidence that the applicant Foundation had been informed of its procedural right to have access to the case file. The Board's decision further read, inter alia: “In the written grounds of the decision complained of, the first‑instance authority refers to the fact that no traffic organisation plan is to be found in the case file. Under section 65 (a) item 3 (9) an organiser of a demonstration is obliged to develop such a plan in co‑operation with the police if he or she is required to do so by the authority. However, in the case file there is no mention that the organisers were obliged to submit such a plan.", "(...) The document on the procedure for obtaining permission to organise an event which was served on the organisers contained no information on such an obligation either. Having regard to the fact that the organisers' request concerned a march to be held on 11 June 2005 and that the appeal was received by the Board's Office [together with the case file] on 28 June 2005, the proceedings had already become devoid of purpose by that latter date.” b) The assemblies 21. On 10 June 2005 the applicants appealed to the Mazowsze Governor against the Mayor's refusals of 9 June 2005 of permission to hold several of the planned assemblies. They argued that the assemblies were to be entirely peaceful and that banning them breached their freedom of assembly guaranteed by the Constitution. They submitted that the assemblies did not pose any threat to either public order or morals.", "They contested the argument relied on in the decision that they were required to submit a document on the planned itinerary between the places where the assemblies were to be held, arguing that they only intended to organise stationary assemblies, not any movement of persons between them, and that they should not be held responsible for the organisation or supervision of such movement. 22. On 17 June 2005 the Mazowsze Governor quashed the contested 9 June 2005 refusals of authorisation to hold the assemblies . It was first observed that these decisions breached the law in that the parties had been served only with copies of the decisions, not with originals as required by the law on administrative procedure. It was further noted that the Mayor had informed the media of his decisions before they had been served on the applicants, which was manifestly in breach of the principles of administrative procedure.", "23. It was further observed that the 1990 Assemblies Act was a guarantee of freedom of assembly in respect of both the organisation of and participation in assemblies. The Constitution clearly guaranteed freedom of assembly, not a right. It was not for the State to create a right to assembly; its obligation was limited to ensuring that assemblies were held peacefully. Thus the applicable law did not provide for any permit for the holding of an assembly.", "24. The Governor noted that the requirement to submit a permit to occupy a part of the road, based on the provisions of the Road Traffic Act, lacked any legal basis in the provisions of the Assemblies Act. The Mayor had assumed that the demonstration would occupy a part of the road, but had failed to take any steps to clarify whether this had really been the organisers' intention, which he was obliged to do by law. It was further observed that a decision banning an assembly had to be regarded as a method of last resort because it radically restricted freedom of expression. The principle of proportionality required that any restriction of constitutionally protected freedoms be permitted only in so far as it was dictated by the concrete circumstances of a particular case.", "25. The Governor noted in this connection that the Mayor's reliance on the threat of violence between the demonstrations organised by the applicants and the counter‑demonstrations planned by other persons and organisations for the same day could not be countenanced. It was tantamount to the administration endorsing the intentions of organisations which clearly and deliberately intended to breach public order, whereas protecting the freedom of expression guaranteed by the Assemblies Act should be an essential task of the public powers. 26. He then discontinued the proceedings as they had become devoid of purpose, the assemblies having taken place on 11 June 2005.", "4. Translation of an interview with the Mayor of Warsaw published in “Gazeta Wyborcza” on 20 May 2005 27. “E. Siedlecka: The Assemblies Act says that freedom of assembly can be restricted only if a demonstration might entail a danger to life or limb, or a major danger to property. Did the organisers of the march write anything in their application that indicates that there is such a danger?", "Mayor of Warsaw: I don't know, I haven't read the application. But I will ban the demonstration regardless of what they have written. I am not for discrimination on the ground of sexual orientation, for example by ruining people's professional careers. But there will be no public propaganda about homosexuality. E. S. What you are doing in this case is precisely discrimination: you are making it impossible for people to use their freedom only because of their particular sexual orientation.", "MoW: I do not forbid them to demonstrate, if they want to demonstrate as citizens, not as homosexuals. E. S.: Everything seems to suggest that – like last year – the Governor will quash your prohibition. And if the organisers appeal to the administrative court, they will win, because preventive restrictions on freedom of assembly are unlawful. But the appeal proceedings will last some time and the date for which the march is planned will pass. Is this what you want?", "MoW: We will see whether they win or lose. I will not let myself be persuaded to give my permission for such a demonstration. E. S.: Is it right that the exercise of people's constitutional rights should depend on the views of the powers that be? MoW: In my view, propaganda about homosexuality is not to the same as exercising one's freedom of assembly.” II. RELEVANT DOMESTIC LAW AND PRACTICE 1.", "Relevant provisions of the Constitution 28. Article 57 of the Constitution reads: Freedom of peaceful assembly and participation in such assemblies shall be ensured to everyone. Limitations upon such freedoms may be imposed by statute. 29. Article 79 § 1 of the Constitution, which entered into force on 17 October 1997, provides as follows: “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 Court for a judgment on the conformity with the Constitution of a statute or other normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.” 30.", "Article 190 of the Constitution, insofar as relevant, provides as follows: “1. Judgments of the Constitutional Court shall be universally binding and final. 2. Judgments of the Constitutional Court, ... shall be published without delay. 3.", "A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. ... 2. The Assemblies Act 31. Pursuant to section 1 of the 1990 Assemblies Act, everyone has the right to freedom of peaceful assembly.", "A gathering of at least fifteen persons, called in order to participate in a public debate or to express an opinion on a given issue, is to be regarded as an assembly within the meaning of the Act. 32. Under section 2, freedom of assembly can be restricted only by statute and where it is necessary for the protection of national security or public safety, for the protection of health or morals or for the protection of the rights and freedoms of others. 33. All decisions concerning the exercise of freedom of assembly must be taken by the local authorities in the municipality where the assembly is to be held.", "These decisions can be appealed against to the Governor. 34. Under section 3 of the Act, the municipality must be informed by the organisers of the intention to hold a public gathering in the open air for an indeterminate number of persons. Under section 7 such information must be submitted to the municipality not earlier than thirty days before the planned date of the demonstration and not later than three days before it. The information must include the names and addresses of the organisers, the aim and programme of the demonstration, its place, date and time as well as information about the itinerary if the demonstration is intended to proceed from one place to another.", "35. Pursuant to section 8 the municipality shall refuse permission for the demonstration if its purpose is in breach of the Act itself or of provisions of the Criminal Code, or if the demonstration might entail a danger to life or limb, or a major danger to property. 36. A first-instance refusal of permission to hold a demonstration must be served on the organisers within three days of the date on which the relevant request was submitted and not later than three days before the planned date of the demonstration. An appeal against such a refusal must be lodged within three days of the date of its service.", "The lodging of such an appeal does not have a suspensive effect on the refusal of permission to hold the demonstration. 37. A decision given by the appellate authority must be served on the organisers within three days of the date on which the appeal was submitted. 3. The Road Traffic Act 38.", "Under section 65 of the Road Traffic Act of 1997, as amended in 2003, the organisers of sporting events, contests, assemblies and other events which may obstruct road traffic are obliged to obtain permission for the organisation of such assemblies. 39. Under section 65 read together with section 65 (a) of the Act, organisers of such events are obliged to comply with various administrative obligations specified in a list contained in that provision and numbering nineteen items, including the obligation to submit a traffic organisation plan to the authorities. 40. These provisions were repealed as a result of the judgment of the Constitutional Court, referred to below.", "4. Judgment of the Constitutional Court of 18 January 2006 41. In its judgment of 18 January 2006 the Constitutional Court examined a request submitted to it by the Ombudsman to determine whether the requirements imposed on organisers of public events by the provisions of the Road Traffic Act were compatible with the Constitution in so far as they impinged on freedom of assembly, or whether they amounted to an excessive limitation of that freedom. 42. The Constitutional Court observed that the essence of the constitutional problem was whether the requirements imposed by section 65 of the Act were compatible with freedom of expression as formulated by the Constitution and developed by the Assemblies Act.", "It noted that the 1990 Assemblies Act was based on the premise that the exercise of this freedom did not require any authorisations or licences issued by the State. As it was a freedom, the State was obliged to refrain from hindering its exercise and to ensure that it was enjoyed by various groups despite the fact that their views might not be shared by the majority. 43. Accordingly, the Assemblies Act provided for a system based on nothing more than the registration of the proposed assembly. The court observed that subsequently, when it enacted the Road Traffic Act, the legislature had incorporated various administrative requirements which were difficult to comply with into the procedure created for the organisation of sporting events, contests and assemblies, thus replacing the registration system by a system based on permission.", "In so doing, it placed assemblies within the meaning of the Assemblies Act on a par with events of a commercial character or organised for entertainment purposes. This was incompatible with the special position that freedom of expression occupied in a democratic society and rendered nugatory the special place that assemblies had in the legal system under the Constitution and the Assemblies Act. The court also had regard to the fact that the list of requirements imposed by the Road Traffic Act contained as many as nineteen sundry administrative obligations. The restrictions on freedom of assembly imposed by that Act were in breach of the requirement of proportionality applicable to all restrictions imposed on the rights guaranteed by the Constitution. 44.", "The court concluded that section 65 of the Road Traffic Act was incompatible with the Constitution in so far as it applied to assemblies. THE LAW I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS A. Whether the applicants can claim to have the status of victims 45. The Government contended by way of a preliminary submission that the applicants could not claim to be victims of a violation of the Convention within the meaning of Article 34.", "It transpired from the written grounds of the second-instance administrative decisions that the appellate authorities had fully shared the applicants' arguments and had quashed the contested decisions in their entirety. The Governor, in his decision of 17 June 2005 (see paragraph 22 above), had gone even further, stressing that prohibiting an assembly on the grounds of a threat of violence between demonstrators and counter-demonstrators was tantamount to the authorities' endorsing the intentions of organisations which deliberately set out to cause a disturbance. When quashing the contested decisions, the appellate authorities had stated that their assessment had been made bearing in mind the applicants' freedom of assembly. As the impugned decisions had eventually been found unjustified, the applicants could not claim to have victim status. 46.", "The Government were of the view that as the applicants had not claimed to have sustained any pecuniary or non-pecuniary damage, the domestic authorities had been under no obligation to offer them any redress. A decision or measure favourable to the applicant was not in principle sufficient to deprive him of his status as a “victim” unless the national authorities had acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, § 66). 47. The applicants submitted that the authority relied on by the Government, the Eckle v. Germany case, was of little relevance to the case at hand.", "They argued that it was only when those two conditions were cumulatively satisfied that the subsidiary nature of the protective mechanism of the Convention precluded examination of an application (see Scordino v. Italy (dec.), no. 36813/97, 27 March 2003). In their case it could not be said that those two conditions had been satisfied. No redress had ever been afforded at domestic level for any of the breaches of the Convention alleged in their application. 48.", "The Court reiterates that in its decision on the admissibility of the application it joined to the merits of the case the examination of whether the applicants could claim to be victims of a breach of their rights (see paragraph 5 above). The Court confirms its approach. B. Exhaustion of domestic remedies 49. The Government submitted that the applicants had had at their disposal procedures capable of remedying the alleged breach of their freedom of assembly. Section 7 of the Assemblies Act provided for time-limits which should be respected by persons wishing to organise an assembly under the provisions of that Act.", "A request for authorisation for an assembly to be held had to be submitted to the municipality not earlier than thirty days before the planned date of the demonstration and no later than three days before it. 50. If the applicants had considered that the provisions on the basis of which the domestic decisions in their cases had been given were incompatible with the Constitution, it had been open to them to challenge those provisions by lodging a constitutional complaint provided for by Article 79 of the Constitution. The applicants could thus have achieved the aim they sought to attain before the Court, namely an assessment of whether the contested regulations as applied to their case had infringed their rights guaranteed by the Convention. 51.", "The Government recalled that the Court had held that the Polish constitutional complaint could be recognised as an effective remedy where the individual decision which allegedly violated the Convention had been adopted in direct application of an unconstitutional provision of national legislation (Szott‑Medyńska v. Poland (dec.), no. 47414/99, 9 October 2003). The Government concluded that the applicants should have had recourse to that remedy. 52. The applicants disagreed.", "They submitted that because of the specific nature of their case, a remedy that had not been capable of providing them, before 11 June 2005, with a judicial or administrative review of the ban on holding their assemblies could not be regarded as effective. Subsequent review by the Constitutional Court would have served no practical purpose. 53. In any event, even if it were to be accepted that an ex post facto review could be contemplated as a remedy to be used in their case, the applicants were of the view that it would have been ineffective also for other reasons. A constitutional complaint under Polish law was a remedy available only when a possibility existed to apply for the re‑opening of the original proceedings in the light of a favourable ruling of the Constitutional Court.", "This condition alone would have rendered this remedy ineffective since, in view of the specific and concrete nature of the redress sought by the applicants, the reopening of their case would have been an entirely impracticable and untimely solution. Furthermore, the quashing of the final decisions would have been futile as the decisions of 3 and 9 June 2005 had already been quashed by the Self‑Government Board of Appeal and the Governor of Mazowsze Province on 22 August and 17 June 2005, respectively. 54. The Court reiterates that in its decision on the admissibility of the application it joined to the merits of the case the examination of the question of exhaustion of domestic remedies (see paragraph 5 above). The Court confirms its approach to the exhaustion issue.", "II. THE MERITS OF THE CASE A. Alleged violation of Article 11 of the Convention 55. The applicants complained that their right to peaceful assembly had been breached by the way in which the domestic authorities had applied the relevant domestic law to their case. They invoked Article 11 of the Convention which reads: “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.” 1. The arguments of the parties 56.", "The Government were of the view that there had been no interference with the applicants' rights guaranteed by Article 11 of the Convention. They referred in this respect to their submissions concerning the applicants' victim status (see paragraphs 45‑48 above). 57. The Government did not contest the fact that the second-instance decisions of the domestic authorities had been given after the date for which the assemblies had been planned. However, the applicants had been aware of the time‑limits provided by the applicable laws for the submission of requests for permission to hold an assembly.", "58. The applicants complained that their right to peaceful assembly had been breached by the way in which the domestic authorities had applied the relevant domestic law to their case. It followed from the very character of freedom of assembly that the requirements which laws imposed on organisers of public meetings should be restricted to a reasonable minimum and to those of a technical character. 59. Under the 1990 Assemblies Act the authorities could ban the organisation of an assembly only when its purpose ran counter to provisions of criminal law or when it might entail danger to life or limb or a major danger to property.", "On the other hand, the requirements that could be imposed on organisers of assemblies once the authorities classified the assembly to be held as an “event” under the Road Traffic Act went much further. They lacked precision, leaving the decision as to whether the organisers satisfied them entirely to the discretion of the authorities. 60. In the applicants' view, the Mayor's refusals lacked proper justification. The assemblies to be held were of a peaceful character, their aim being to draw society's attention to the situation of various groups of persons who were discriminated against, in particular persons of homosexual orientation.", "The relevant requests had complied with the very limited requirements laid down by the Assemblies Act. As to the Equality March, the refusal had been motivated by the alleged failure of the applicants to submit a traffic organisation plan which the authorities had never required to be submitted prior to this refusal. These assemblies had lawful aims and there had been no special grounds, such as a major danger to property or danger to life or limb, which could justify the refusals. 2. The Court's assessment 61.", "As has been stated many times in the Court's judgments, not only is democracy a fundamental feature of the European public order but the Convention was designed to promote and maintain the ideals and values of a democratic society. Democracy, the Court has stressed, is the only political model contemplated in the Convention and the only one compatible with it. By virtue of the wording of the second paragraph of Article 11, and likewise of Articles 8, 9 and 10 of the Convention, the only necessity capable of justifying an interference with any of the rights enshrined in those Articles is one that may claim to spring from a “democratic society” (see Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, §§ 86‑89, ECHR 2003‑II, and Christian Democratic Peoples Party v. Moldova, 28793/02, 14 May 2006). 62.", "While in the context of Article 11 the Court has often referred to the essential role played by political parties in ensuring pluralism and democracy, associations formed for other purposes are also important to the proper functioning of democracy. For pluralism is also built on genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs and artistic, literary and socio-economic ideas and concepts. The harmonious interaction of persons and groups with varied identities is essential for achieving social cohesion. It is only natural that, where a civil society functions in a healthy manner, the participation of citizens in the democratic process is to a large extent achieved through belonging to associations in which they may integrate with each other and pursue common objectives collectively (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 92, 17 February 2004).", "63. Referring to the hallmarks of a “democratic society”, the Court has attached particular importance to pluralism, tolerance and broadmindedness. In that context, it has held that although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position (see Young, James and Webster v. the United Kingdom, 13 August 1981, Series A no. 44, p. 25, § 63, and Chassagnou and Others v. France [GC], nos. 25088/95 and 28443/95, ECHR 1999‑III, p. 65, § 112).", "64. In Informationsverein Lentia and Others v. Austria (judgment of 24 November 1993, Series A no. 276, p. 16, § 38) the Court described the State as the ultimate guarantor of the principle of pluralism. Genuine and effective respect for freedom of association and assembly cannot be reduced to a mere duty on the part of the State not to interfere; a purely negative conception would not be compatible with the purpose of Article 11 nor with that of the Convention in general. There may thus be positive obligations to secure the effective enjoyment of these freedoms (see Wilson & the National Union of Journalists and Others v. the United Kingdom, nos.", "30668/96, 30671/96 and 30678/96, § 41, ECHR 2002‑V, and Ouranio Toxo v. Greece, no. 74989/01, 20 October 2005, § 37). This obligation is of particular importance for persons holding unpopular views or belonging to minorities, because they are more vulnerable to victimisation. 65. In this connection, the Court reiterates that according to the Convention organs' constant approach, the word “victim” of a breach of rights or freedoms denotes the person directly affected by the act or omission which is in issue (see Marckx v. Belgium, judgment of 13 June 1979, Series A no.", "31, § 27, and Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, § 41). 66. Turning to the circumstances of the present case, the Court observes that the authorities banned the planned march and several of the stationary assemblies. The appellate authorities, in their decisions of 17 June and 22 August 2005, quashed the first‑instance decisions and criticised them for being poorly justified and in breach of the applicable laws.", "These decisions were given after the dates on which the applicants had planned to hold the demonstrations. 67. The Court acknowledges that the assemblies were eventually held on the planned dates. However, the applicants took a risk in holding them given the official ban in force at that time. The assemblies were held without a presumption of legality, such a presumption constituting a vital aspect of effective and unhindered exercise of freedom of assembly and freedom of expression.", "The Court observes that the refusals to give authorisation could have had a chilling effect on the applicants and other participants in the assemblies. It could also have discouraged other persons from participating in the assemblies on the grounds that they did not have official authorisation and that, therefore, no official protection against possible hostile counter‑demonstrators would be ensured by the authorities. 68. Hence, the Court is of the view that, when the assemblies were held the applicants were negatively affected by the refusals to authorise them. The Court observes that legal remedies available to them could not ameliorate their situation as the relevant decisions were given in the appeal proceedings after the date on which the assemblies were held.", "The Court refers in this respect to its finding concerning Article 13 of the Convention (see paragraph 84 below). There has therefore been an interference with the applicants' rights guaranteed by Article 11 of the Convention. 69. An interference will constitute a breach of Article 11 unless it is “prescribed by law”, pursues one or more legitimate aims under paragraph 2 and is “necessary in a democratic society” for the achievement of those aims. 70.", "In this connection, the Court observes that on 22 August 2005 the Local Government Appeals Board found the decision of 3 June 2005 unlawful (see paragraph 20 above). Likewise, on 17 June 2005 the Mazowsze Governor quashed the refusals of 9 June 2005, finding that they had breached the applicants' freedom of assembly (see paragraphs 22 – 26). The Court concludes that the interference with the applicants' right to freedom of peaceful assembly was therefore not prescribed by law. 71. In the context of the examination of the lawfulness of the interference complained of, the Court notes, in addition, the relevance of the judgment of the Constitutional Court given on 18 January 2006.", "That court found that the provisions of the Road Traffic Act as applied in the applicants' case were incompatible with the constitutional guarantees of freedom of assembly. It observed that the restrictions on the exercise of this freedom imposed by the impugned provisions were in breach of the proportionality principle applicable to all restrictions imposed on the exercise of rights guaranteed by the Constitution (see paragraphs 39‑42 above). The Court is well aware that under the applicable provisions of the Constitution these provisions lost their binding force after the events concerned in the present case (see paragraph 30 above). However, it is of the view that the Constitutional Court's ruling that the impugned provisions were incompatible with the freedom of assembly guaranteed by the Constitution cannot but add force to its own above conclusion concerning the lawfulness of the interference complained of in the present case. 72.", "Having regard to this conclusion, the Court does not need to verify whether the other two requirements (legitimate aim and necessity of the interference) set forth in Article 11 § 2 have been complied with. 73. The Court therefore dismisses the Government's preliminary objection regarding the applicants' alleged lack of victim status and concludes that there has been a violation of Article 11 of the Convention. B. Alleged violation of Article 13 of the Convention 74.", "The applicants further complained that Article 13 of the Convention had been breached in their case because they had not had at their disposal any procedure which would have allowed them to obtain a final decision prior to the date of the planned demonstrations. Article 13 of the Convention 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.” 1. The arguments of the parties 75. The Government reiterated their submissions concerning the question of exhaustion of domestic remedies. In particular, the applicants should have lodged a constitutional complaint to challenge the provisions on the basis of which the decisions in their case had been given.", "76. The applicants complained that, when the first-instance decisions had banned the holding of the assemblies, they had not had at their disposal any procedure which would have allowed them to obtain a final decision before the date on which it was planned to hold them. This was so because if a refusal was issued, the second-instance authority could only quash that decision and could not issue a new one. This meant that the organisers would have to start the procedure all over again. In fact, that was how the relevant procedural provisions had been applied in the applicants' case.", "77. The applicants submitted that pursuant to section 7 of the Assemblies Act, a request for approval of an assembly to be organised could be submitted thirty days before the planned date at the earliest. That meant that it was impossible to submit such a request earlier. Under Polish law, if the authorities considered that the planned assembly was to be regarded as an “event” covered by the provisions of the Road Traffic Act as applicable at the relevant time, it was altogether impossible to comply with the thirty‑day time‑limit, given the unreasonably onerous requirements to submit numerous documents relating to the traffic organisation aspects of such an assembly which could be imposed on the organisers under that Act. 78.", "The applicants concluded that in any event, the State should create a procedure – a special one if need be – which would make it possible for organisers of public meetings to have the whole procedure completed within the time-frame set out in the Act, that is to say from 30 to 3 days prior to the planned date and, importantly, before the day on which the assembly was planned to be held. 2. The Court's assessment 79. The Court reiterates that the effect of Article 13 is to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they comply with their obligations under this provision (see, among many other authorities, Chahal v. the United Kingdom, judgment of 15 November 1996, Reports of Judgments and Decisions 1996‑V, pp. 1869‑70, § 145).", "In the present case the Court found that the applicants' rights under Article 11 were infringed (see paragraph 73 above). Therefore, they had an arguable claim within the meaning of the Court's case-law and were thus entitled to a remedy satisfying the requirements of Article 13. 80. As regards the Government's reliance on an individual constitutional complaint, the Court first notes that in the context of Polish administrative procedure, two-tiered judicial review of second‑instance administrative decisions is available. Only a judgment of the Supreme Administrative Court is considered to constitute a final decision in connection with which a constitutional complaint is available.", "In the present case, the applicants, having obtained decisions of the second-instance administrative bodies essentially in their favour, in that they quashed the decisions refusing to allow their demonstrations, had no legal interest in bringing an appeal against these decisions to the administrative courts. Hence, the way to the Constitutional Court was not open to them. 81. Further, the Court accepts that the administrative authorities ultimately acknowledged that the first‑instance decisions given in the applicants' case had been given in breach of the applicable laws. However, the Court emphasises that they did so after the dates on which the applicants planned to hold the demonstrations.", "The Court notes that the present case is similar to that of Stankov and the United Macedonian Organisation Ilinden v. Bulgaria (nos. 29221/95 and 29225/95, Commission decision of 29 June 1998, unreported), in which the former Commission held that “it [was] undisputed that had the applicants attempted [an appeal against the refusal of the district court to examine the appeal against the mayoral ban], the proceedings would have lasted for at least several months and any favourable outcome would have resulted long after the date of a planned meeting or manifestation”. In other words, bearing in mind that the timing of the rallies was crucial for their organisers and participants and that the organisers had given timely notice to the competent authorities, the Court considers that, in the circumstances, the notion of an effective remedy implied the possibility to obtain a ruling before the time of the planned events. 82. In this connection, the Court is of the view that such is the nature of democratic debate that the timing of public meetings held in order to voice certain opinions may be crucial for the political and social weight of such meetings.", "Hence, the State authorities may, in certain circumstances, refuse permission to hold a demonstration if such a refusal is compatible with the requirements of Article 11 of the Convention, but they cannot change the date on which the organisers plan to hold it. If a public assembly is organised after a given social issue loses its relevance or importance in a current social or political debate, the impact of the meeting may be seriously diminished. Freedom of assembly – if prevented from being exercised at a propitious time – can well be rendered meaningless. 83. The Court is therefore of the view that it is important for the effective enjoyment of freedom of assembly that the applicable laws provide for reasonable time-limits within which the State authorities, when giving relevant decisions, should act.", "The applicable laws provided for time‑limits for the applicants to submit their requests for permission. In contrast, the authorities were not obliged by any legally binding time‑frame to give their final decisions before the planned date of the demonstration. The Court is therefore not persuaded that the remedies available to the applicants in the present case, all of them being of a post‑hoc character, could provide adequate redress in respect of the alleged violations of the Convention. 84. Therefore, the Court finds that the applicants have been denied an effective domestic remedy in respect of their complaint concerning a breach of their freedom of assembly.", "Consequently, the Court dismisses the Government's preliminary objection regarding the alleged non‑exhaustion of domestic remedies and concludes that there has been a violation of Article 13 in conjunction with Article 11 of the Convention. C. Alleged violation of Article 14 in conjunction with Article 11 of the Convention 85. The applicants complained that they had been treated in a discriminatory manner in that they had been refused permission to organise the march and some of the assemblies. They relied on Article 11 read together with Article 14 of the Convention, which provides: “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.” 1. The arguments of the parties 86.", "The Government submitted that the applicants had challenged the administrative decisions given in their cases on 3 and 9 June 2005. In the former, the Traffic Officer, acting on behalf of the Mayor of Warsaw, had refused permission for the march, relying on the organisers' failure to submit a “traffic organisation plan” within the meaning of section 65 (a) of the Road Traffic Act. In the latter decision the Mayor had relied on the argument that the applicants had failed to comply with more stringent requirements imposed by the law on organisers of assemblies held on roads used for road traffic. 87. The Government were of the view that these decisions had been sufficiently reasoned and that their reasoning had been based on section 65 of the Road Traffic Act.", "It could not, in their opinion, be assumed that the decisions banning the assemblies had been influenced by the personal opinions held by the Mayor of Warsaw as presented in an interview published in “Gazeta Wyborcza” on 20 May 2005. The facts of the case did not indicate that any link existed between the Mayor's views expressed in the press and the official decisions given in the applicants' case. 88. The Government argued that in the instant case no provisions, acts or omissions of the public authorities had exposed the applicants to treatment less favourable than that to which other persons in an analogous situation would have been subjected. There was no indication that their treatment had been based on any prohibited grounds.", "Consequently, the applicants had not suffered discrimination in the enjoyment of their freedom of assembly contrary to Article 14 of the Convention. 89. The applicants stressed that they had been required to submit a “traffic organisation plan”, while other organisations had not been requested to do so. In the absence of particularly serious reasons by way of justification and in the absence of any reasons provided by the Government for such differences in treatment, the selective application of the requirement to submit such a plan sufficiently demonstrated that they had been discriminated against. 90.", "The applicants further argued that they had been treated in a discriminatory manner essentially because they were refused permission to organise the demonstrations on 11 June 2005, while other organisations and persons had received permission. This difference of treatment had not pursued a legitimate aim, the more so as the Mayor and his collaborators had made it plain to the public that they would ban the demonstrations because of the homosexual orientation of the organisers, regardless of any legal grounds. 91. The applicants further argued that the decisions of 3 and 9 June 2005 had been formally issued in the name of the Mayor of Warsaw. They referred to the interview with the Mayor published in May 2005 in which he had stated that he would ban the assemblies irrespective of what the organisers had submitted in their requests for permission.", "They submitted that it could not be reasonably concluded that there had been no link between the statements made by the Mayor and the decisions subsequently given in his name. They emphasised that the practical outcome of the proceedings in their case had been consistent with the tenor of the Mayor's statements. 92. The applicants observed that the Government's argument about the lack of a causal link between the opinions publicly expressed by the Mayor and the administrative decisions given in his name amounted to implying that at the relevant time decisions had been issued in the Mayor's office with no regard to his opinions expressed publicly in his capacity as head of the municipal administration. 2.", "The Court's assessment 93. The Court has repeatedly held that Article 14 is not autonomous but has effect only in relation to Convention rights. This provision complements the other substantive provisions of the Convention and the 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 at issue fall within the ambit of one or more of the latter (see, among many other authorities, Van Raalte v. Netherlands, judgment of 21 February 1997, Reports 1997‑I, p. 184, § 33, and Gaygusuz v. Austria, judgment of 16 September 1996, Reports 1996‑IV, § 36).", "94. It is common ground between the parties that the facts of the case fall within the scope of Article 11 of the Convention. Hence, Article 14 is applicable to the circumstances of the case. 95. The Court first notes that the first-instance administrative decisions concerned in the present case did not refer to any direct motive that could be qualified as one of the forbidden grounds for discrimination within the Convention meaning of the term.", "These decisions focused on technical aspects of the organisation of the assemblies and on compliance with the relevant requirements (see paragraphs 11 and 13 above). It has been established that in the proceedings before the Traffic Officer the applicants were required to submit a “traffic organisation plan” and that their request was refused because of their failure to submit such a plan. At the same time, the Court notes that it has not been shown or argued that other organisers were likewise required to do this. 96. The Court further notes that the decision of 3 June 2005, refusing permission for the march organised by the applicants, was given by the Road Traffic Officer, acting on behalf of the Mayor of Warsaw.", "On 9 June 2005 the municipal authorities, acting on the Mayor's behalf, gave decisions banning the stationary assemblies to be organised by the first five applicants, referring to the need to avoid any possible violent clashes between participants in the various demonstrations to be held on 11 June 2005. It is also not in dispute that on the same day the same authorities gave permission for other groups to stage six counter‑demonstrations on the same date. 97. The Court cannot speculate on the existence of motives, other than those expressly articulated in the administrative decisions complained of, for the refusals to hold the assemblies concerned in the present case. However, it cannot overlook the fact that on 20 May 2005 an interview with the Mayor was published in which he stated that he would refuse permission to hold the assemblies (see paragraph 27 above).", "98. The Court reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest, in particular as regards politicians themselves (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV, and Castells v. Spain, judgment of 23 April 1992, Series A no. 236).", "However, the exercise of freedom of expression by elected politicians who at the same time are holders of public offices in the executive branch of government entails particular responsibility. In certain situations it is a normal part of the duties of such public officials personally to take administrative decisions which are likely to affect the exercise of individual rights, or that such decisions are given by public servants acting in their name. Hence, the exercise of freedom of expression by such officials may unduly impinge on the enjoyment of other rights guaranteed by the Convention (as regards statements by public officials, amounting to declarations of a person's guilt, pending criminal proceedings, see Butkevičius v. Lithuania, no. 48297/99, § 53, ECHR 2002‑II (extracts); see also Allenet de Ribemont v. France, judgment of 10 February 1995, Series A no. 308, p. 16, §§ 35-36, and Daktaras v. Lithuania, no.", "42095/98, §§ 41‑44, ECHR 2000‑X). When exercising their freedom of expression they may be required to show restraint, bearing in mind that their views can be regarded as instructions by civil servants whose employment and careers depend on their approval. 99. The Court is further of the view, having regard to the prominent place which freedom of assembly and association hold in a democratic society, that even appearances may be of a certain importance in administrative proceedings where the executive powers exercise their functions relevant to the enjoyment of these freedoms (see, mutatis mutandis, De Cubber v. Belgium, judgment of 26 October 1984, Series A no. 86, p. 14, § 26).", "The Court is fully aware of the differences between administrative and judicial proceedings. It is true that it is only in respect of the latter that the Convention stipulates, in its Article 6, the requirement that a tribunal deciding on a case should be impartial from both a subjective and an objective point of view (see Findlay v. the United Kingdom, judgment of 25 February 1997, Reports 1997‑I, § 73, and Warsicka v. Poland, §§ 34-37, no. 2065/03, 16 January 2007). 100. However, in the present case the Court considers that in the assessment of the case it cannot disregard the strong personal opinions publicly expressed by the Mayor on issues directly relevant to the decisions regarding the exercise of freedom of assembly.", "It observes that the decisions concerned were given by the municipal authorities acting on the Mayor's behalf after he had made known to the public his opinions regarding the exercise of freedom of assembly and “propaganda about homosexuality” (see paragraph 27 above). It is further noted that the Mayor expressed these views when a request for permission to hold the assemblies was already pending before the municipal authorities. The Court is of the view that it may be reasonably surmised that his opinions could have affected the decision‑making process in the present case and, as a result, impinged on the applicants' right to freedom of assembly in a discriminatory manner.” 101. Having regard to the circumstances of the case seen as a whole, the Court is of the view that there has been a violation of Article 14 in conjunction with Article 11 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 102. 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.” 103. The applicants did not claim any compensation for damage in connection with the violation of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Dismisses the Government's preliminary objections; 2.", "Holds that there has been a violation of Article 11 of the Convention; 3. Holds that there has been a violation of Article 13 in conjunction with Article 11 of the Convention; 4. Holds that there has been a violation of Article 14 in conjunction with Article 11 of the Convention. Done in English, and notified in writing on 3 May 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T. L. EarlyNicolas BratzaRegistrarPresident" ]
[ "THIRD SECTION CASE OF ENACHE v. ROMANIA (Application no. 10662/06) JUDGMENT STRASBOURG 1 April 2014 FINAL 01/07/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Enache v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Alvina Gyulumyan,Dragoljub Popović,Luis López Guerra,Kristina Pardalos,Valeriu Griţco,Iulia Antoanella Motoc, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 11 March 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "10662/06) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Marian Enache (“the applicant”), on 7 March 2006. 2. The Romanian Government (“the Government”) were represented by their Agents, Ms I. Cambrea and Ms C. Brumar, of the Ministry of Foreign Affairs. 3. The applicant alleged that he had been detained in inhuman conditions and that State agents had hindered his right to individual petition before the Court.", "4. On 15 September 2011 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1977 and is currently detained in Giurgiu Prison.", "6. In a final judgment by the Dolj County Court, the applicant was sentenced to life imprisonment for murder. 7. The applicant was detained in Craiova Prison between 2 December 1997 and 26 June 2008. During that time he was transferred to other prisons or prison hospitals for short periods.", "On 26 June 2008 he was transferred to Poarta Albă Prison. He has been serving his sentence in Giurgiu Prison since 2 September 2010. A. Material conditions of detention 1. Craiova Prison (a) The applicant’s account 8.", "The material conditions of detention in Craiova Prison were described by the applicant as being inhuman and degrading. 9. As a result of the severity of his sentence, the applicant was classified as a dangerous prisoner in accordance with the prison regulations and was held in solitary confinement. He alleged that he had insufficient living space in his cell because it contained unnecessary beds. His requests for some of the beds to be removed were always refused by the prison administration.", "He also complained that he felt isolated, as he had been forbidden to share the cell with another person or to meet other detainees for the entire duration of his detention. This situation was aggravated by the complete lack of activities outside the cell. In this respect he contended that he had participated in educational activities only in 2002 and 2003. For the rest of the time he had spent in Craiova Prison, no activities had been proposed to him. 10.", "There was a severe lack of drinking water, and of hot and cold water in general. The insufficient provision of hot water, namely once a week for one hour for a high number of detainees in collective showers, made it impossible to maintain a proper standard of personal hygiene. 11. Heating was provided for only two hours in the morning and two in the evening, which was not enough to heat the cell. The applicant therefore suffered constantly from the cold during the winter.", "12. The food was insufficient and of very poor quality. The applicant, who did not have the financial means to buy additional food, suffered from hunger for most of the time. 13. There was not enough light in the cell because the window was too narrow and artificial light was only provided in the evening.", "14. The applicant was systematically handcuffed every time he was taken out of his cell, even when he was taken to the prison’s religious facilities. 15. The applicant alleged that those conditions had had a negative impact on his physical and psychological well-being. In this connection, it appears from his prison medical file that he was suffering from chronic depressive psychopathy and had attempted to commit suicide.", "He was also diagnosed with gastritis and duodenitis, both of which became chronic as from 2004. (b) The Government’s account 16. The applicant was held alone in a cell measuring 9.03 sq. m, in which three rows of bunk beds were installed each measuring 1.90 m by 0.80 m. The cell also contained a table and two chairs. All the furniture was fixed on the floor and could not be moved.", "During his detention in Craiova Prison, the applicant shared the cell with other detainees for various periods of time. On one occasion, he even planned an escape with his cellmate, R.A. The applicant participated in two educational activities in the course of 2002 and one educational activity from January to April 2003. 17. There was a constant supply of cold drinking water, in accordance with the international conventions signed by Romania.", "Until 2001 inmates had had an opportunity to take a bath once a week in the collective bathing facilities. As from the second half of 2001, hot water was supplied daily, for a minimum of one hour. 18. In winter, heating was available between 1 November and 31 March, in accordance with a pre-established schedule, for an average of eight hours per day. 19.", "With respect to the quality and quantity of food served, the Government submitted that it was in accordance with the European standards and the internal prison regulations. 20. Concerning the alleged lack of light in the applicant’s cell, the Government submitted that the cell contained a window measuring 1.50 m high and 0.75 m wide, which afforded the necessary light during the day. In addition, artificial lighting was available if needed until 10 p.m., in accordance with the prison’s schedule for the provision of electricity. 21.", "Prisoners classified as dangerous, such as the applicant, were handcuffed whenever they were taken out of their cells and during transportation, in accordance with the prison regulations. The handcuffs were removed while they were attending educational or ethic/religious programmes and during visits. 2. Giurgiu Prison (a) The applicant’s account 22. The applicant was detained alone in a cell measuring 7 m by 1.50 m. A very small window was covered with metal bars and metallic netting.", "23. The applicant could leave his cell for only three hours per day for a walk outside, but had no other activities. 24. The prison rubbish dump was outside the cell window and made the air smell unbearably fetid. 25.", "Whenever the applicant needed something, he had to tap on the door in order to draw the guard’s attention. For this he was disciplined, usually by members of the special intervention units wearing masks. (b) The Government’s account 26. The applicant was detained in five different cells, all of which had the same specifications, namely a surface of 10.24 sq. m, two beds measuring 1.93 m by 0.83 m and one bed-side table.", "27. The prison’s rubbish dump was, and still is, located around 100 m from the window of the applicant’s cell and the rubbish is collected at least once per month. The Government submitted that there were situations when a fetid smell was released in the air but measures to remedy the situation were always taken. No specific measures were given as examples in that respect. 28.", "As for the activities available to prisoners in Giurgiu Prison, the Government submitted a general overview of the internal regulations on that matter. B. Right of petition and correspondence with the Court 29. On 23 January 2007 and 14 May 2009 the Court sent two letters to the applicant at Craiova Prison. The second letter was returned to the Court by the postal services with the mention “recipient unknown at this address”.", "30. On 5 August 2010 the Court invited the Government to submit information on whether the applicant was still detained and if so, in which prison he was currently being held. 31. On 16 September 2010 the Government submitted information confirming that the applicant was detained at that time in Poarta Albă Prison. 32.", "The Court sent two more letters by registered mail on 21 September and 30 November 2010 to Poarta Albă Prison. In view of the applicant’s failure to reply to those letters and of the difference between the applicant’s signature on the application form and the signatures on the return receipts, on 12 January 2011 the Court asked the Government to submit additional information as to whether the two letters had reached the applicant. 33. On 24 February 2011 the Government replied that as the applicant had been transferred to Poarta Albă Prison and subsequently to Giurgiu Prison, the two letters had not reached him until 1 October and 10 December 2010 respectively. 34.", "In support of those allegations, the Government submitted copies of incoming mail registers showing that the two letters had been returned from Craiova Prison owing to the applicant’s transfer. They also submitted a copy of a page from a register entitled “Planning of personnel for prisoner’s escort”, on which the applicant’s name, his signature and the registration number of the letter of 21 September 2010 appeared. The page was not dated. A copy of a page from Giurgiu Prison’s incoming mail register showed the applicant’s name and signature confirming receipt of the Court’s letter of 30 November 2010 on 10 December 2010. Another copy of a page from an incoming mail register of 31 January 2011 showed the applicant’s signature for a delivery from the Council of Europe.", "35. The Government further submitted that the signatures on the return receipts belonged to the prison employee in charge of receiving and distributing correspondence from and to the detainees, as provided for by the prison regulations. In this connection, they submitted a copy of the procedural rules for ensuring prisoners’ right to correspondence, as approved by the National Administration of Prisons, as well as a copy of the relevant internal regulations in force in Poarta Albă Prison. It appears from those documents that the correspondence addressed to prisoners is collected by designated staff members, who confirm the collection of mail by signing the post office register. Subsequently, the receipt of mail by the detainee to whom it is addressed is confirmed by the detainee’s signature in the prison’s incoming mail register.", "36. Among the documents attached to the Government’s response was a copy of a statement signed by the applicant on 4 February 2011 and drafted in the following terms: “... With respect to the letter sent by the E.C.H.R. [the Court] to the Romanian Ministry of Foreign Affairs concerning the letters addressed to me, which remained without reply, I declare that I submitted these 2 (two) petitions, being unsatisfied with the conditions of detention in Craiova Prison. ... I was transferred to Poarta Albă Prison and subsequently to Giurgiu Prison.", "I declare that I no longer wish to correspond with the E.C.H.R. because I was transferred to another prison and the previous problems do not interest me anymore. In order to clarify any suspicions, I can hand over copies of the letters in question to the Giurgiu Prison. ...” 37. In a letter dated 16 May 2011 the applicant replied to the Government’s submissions, stating that the authorities in the prisons of Craiova, Poarta Albă and Giurgiu continuously refused to ensure that his correspondence reached the Court, even threatening him that if he continued to complain before the Court “he would get out of prison only in a coffin” (“Dacă mai continui procesul la Curtea Europeană te vom scoate de aici în patru scânduri”).", "He further alleged that he had been transferred from Poarta Albă to Giurgiu Prison only to make him give up his application before the Court, and that he had been forced to sign the statement of 4 February 2011 in the office of the prison section director and in the presence of three masked guards. He mentioned that he intended to pursue his application before the Court. 38. The applicant also mentioned that he had received the Court’s letters of 21 September and 30 November 2010 with excessive delay. They had been opened.", "39. The Government submitted that all letters addressed to detainees were opened in order to check them for forbidden elements. They were then handed to the recipients without their content being read by the authorities. However, correspondence received from non-governmental organisations or international institutions such as the Court was never opened. With respect to the two letters in question, the Government contended that they had been handed to the applicant in due time and without being opened.", "II. RELEVANT DOMESTIC LAW AND INTERNATIONAL STANDARDS 40. Excerpts from the relevant provisions concerning the rights of detainees, Emergency Government Ordinance no. 56/2003 and Law no. 275/2006, are quoted in Iacov Stanciu v. Romania (no.", "35972/05, §§ 113‑16, 24 July 2012) and Petrea v. Romania (no. 4792/03, § 22, 29 April 2008). 41. Excerpts from the relevant parts of the General Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“the CPT”) as well as of the of the European Prison Rules adopted by the Committee of Ministers on 11 January 2006 are quoted in Iacov Stanciu (cited above, §§ 121-24). 42.", "In a report of 2003 published following their visit to Craiova Prison in 1999, the CPT noted very severe overcrowding, a lack of heating, unsatisfactory hygiene conditions, as well as very poor quality food and no provision of cold water between 10 p.m. and 6.30 a.m. The CPT also expressed concerns about the absolute lack of activities for detainees with long sentences, as well as their isolation from the other detainees. The report concluded that the conditions of detention in Craiova Prison could easily be qualified as inhuman and degrading treatment. 43. In a second report issued following their visit of 2006 to Craiova Prison, the CPT reiterated its concerns that prisoners sentenced to life imprisonment were automatically qualified as dangerous and therefore placed under a very restrictive detention regime associated with draconian security measures.", "The CPT noted that they were strictly separated from other prisoners and even contacts between each other were forbidden. In addition, the CPT noted with concern that those prisoners were systematically handcuffed whenever they left their cell or detention zone, often without justification. 44. In both the above-mentioned reports the CPT expressed concerns about the dispatch of special intervention units wearing masks in order to control violent and/or recalcitrant detainees in all the Romanian prisons visited. The CPT noted that the presence of such units created an oppressive and intimidating atmosphere and that the wearing of masks made it difficult to identify a potential suspect, if and when an allegation of ill-treatment was made.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 45. The applicant complained, under Article 3 of the Convention, of inhuman and degrading treatment on account of the material conditions of his detention in Craiova and Giurgiu Prisons. In particular, he complained of a lack of living space and light in his solitary cell, a lack of hot and cold running water, the poor quality of food, a lack of adequate activities and out-of-cell time, his isolation from the other prisoners, his systematic handcuffing whenever he left his cell and the brutal interventions of masked special forces members. 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 46.", "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 submissions of the parties 47. The applicant contested the Government’s factual submissions and alleged that they did not correspond to the situation in the prisons in which he had been detained. He admitted that he had shared a cell with R.A. and that they had attempted to escape, but he submitted that he had been sanctioned for that act with ten days’ strict isolation and eight months’ restrictive detention regime. He contended that being isolated for his entire prison term constituted too severe a punishment for one act of indiscipline. 48.", "Referring to the information submitted on the general conditions of detention (see paragraphs 16-21 and 26-28 above), the Government contended that the domestic authorities had taken all necessary measures in order to ensure that the applicant’s conditions of detention were adequate. The Government argued that the applicant’s conditions of detention had not amounted to a violation of Article 3 of the Convention. 2. The Court’s assessment (a) General principles 49. With regard to the general principles governing the right of prisoners to detention conditions which are compatible with respect for human dignity, the Court has already emphasised in previous cases that people in custody are in a vulnerable position and the authorities are under a duty to protect them.", "Under Article 3 the State must ensure that the manner and method of the execution of the measure of deprivation of liberty do not subject the person to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well‑being are adequately secured (see Valašinas v. Lithuania, no. 44558/98, § 102, ECHR 2001‑VIII; and Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI). 50. When assessing conditions of detention, their cumulative effects as well as the applicant’s specific allegations must be considered (see Dougoz v. Greece, no.", "40907/98, § 46, ECHR 2001‑II). The Court notes that, in addition to overcrowding, other aspects of the physical conditions of detention are relevant for its assessment of compliance with Article 3 (see Ostrovar v. Moldova, no. 35207/03, § 89, 13 September 2005; Babushkin v Russia, no. 67253/01, § 44, 18 October 2007; and Iacov Stanciu, cited above, § 169). The Court has found that the following conditions of detention raise an issue under Article 3 of the Convention: lack of appropriate furniture in the cells; poor sanitary facilities, such as a limited number of toilets and sinks for a large number of detainees; toilets in cells with no water supply; sinks in cells providing only cold water for a wide range of needs (personal hygiene, washing clothing and personal objects, cleaning the toilets); limited access to showers providing hot water; poor sanitary conditions in general, including the presence of cockroaches, rats, lice and bedbugs; worn-out mattresses and bed linen; and poor quality food (see Iacov Stanciu, cited above, § 175).", "51. With respect to special prison regimes, such as the one for dangerous prisoners, the Court has held that although the prohibition of contact with other prisoners for security, disciplinary or protective reasons can in certain circumstances be justified, solitary confinement, even in cases entailing only relative isolation, cannot be imposed on a prisoner indefinitely. It would also be desirable for alternative solutions to solitary confinement to be sought for persons considered dangerous and for whom detention in an ordinary prison under the ordinary regime is considered inappropriate (see Piechowicz v. Poland, no. 20071/07, § 164, 17 April 2012). Indeed, solitary confinement, which is a form of “imprisonment within the prison”, should be resorted to only exceptionally and after every precaution has been taken, as specified in paragraph 53.1 of the European Prison Rules adopted by the Committee of Ministers on 11 January 2006 (see Öcalan v. Turkey [GC], no.", "46221/99, § 191, ECHR 2005-...; and Messina (no. 2) v. Italy (dec.), no. 25498/94, ECHR 1999-V, with further references). 52. Concerning the use of handcuffs, the Court has previously stated that, in view of the gravity of an applicant’s sentence, his criminal record and his violent antecedents, it could be warranted on specific occasions, such as for transfers outside the prison (see Garriguenc v. France (dec.), no.", "21148/02, 15 November 2007; and Paradysz v. France, no. 17020/05, § 95, 29 October 2009). However, the systematic handcuffing of a prisoner when taken out of his cell was considered in itself as degrading treatment when the measure lacked sufficient justification and was prolonged for a period of thirteen years (see Kashavelov v. Bulgaria, no. 891/05, §§ 39-40, 20 January 2011). (b) Application of these principles to the present case 53.", "The Court observes that the applicant spent ten years and seven months in Craiova Prison and three years and four months in Giurgiu Prison, where he is currently detained. 54. With respect to the living space available to the applicant, it appears from the Government’s submissions that, excluding the space occupied by the beds installed in his cells, the applicant had available 4.47 sq. m at Craiova Prison and 7.04 sq. m at Giurgiu Prison (see paragraphs 16 and 26 above).", "Therefore, it may be questioned whether the living space available to the applicant for a period of ten years and seven months in Craiova Prison could be regarded as attaining acceptable standards. In this connection the Court recalls that the CPT has set 7 m² per prisoner as an approximate, desirable guideline for a single occupancy detention cell (see, among others, Kuzmin v. Russia, no. 58939/00, § 47, 18 March 2010). 55. Concerning the applicant’s isolation for long periods of time due to his automatic classification as a dangerous prisoner, the Court observes that the Government contended that this had been done in accordance with the law, but that during his stay in Craiova Prison the applicant did share the cell with other detainees.", "Except for the name of one person who shared the cell with the applicant for a certain period of time, no other factual information was submitted by the Government to show that the applicant had indeed shared the cell with other persons. No information was provided by the Government with respect to the period the applicant spent in Giurgiu Prison. The Court notes on this issue that the CPT expressed concerns about the automatic classification of prisoners as dangerous and the strict security measures deriving from it, including solitary confinement, in Craiova Prison as well as other Romanian prisons visited by the Committee. 56. The Court further observes that the parties submitted that the applicant had participated in educational out-of-cell activities only during 2002 and 2003 in Craiova Prison.", "For the rest of the applicant’s sentence in both Craiova and Giurgiu Prisons, no specific information was provided by the Government in order to refute the applicant’s allegation that he had been entirely deprived of out-of-cell activities, with the exception of the daily walk. 57. The Court also notes that, for a period of at least four years until 2002, the applicant had limited access to hot showers. Concerning the provision of heating in Craiova Prison, the Court notes the Government’s submission that heating was provided for eight hours per day, whereas the applicant alleged that there had been insufficient heating to ensure a comfortable temperature in the cells during the winter. As regards the alleged inadequate provision of cold water in Craiova Prison, the Court notes that the applicant’s assertions are disputed by the Government.", "The Court considers that the applicant’s submissions concerning the lack of hot water and heating, as well the lack of sufficient cold water in Craiova Prison, are corroborated by the CPT reports. It cannot but conclude that the applicant in the instant case was subjected to unsatisfactory sanitary conditions and deprived of the possibility of maintaining adequate personal hygiene. 58. With respect to the applicant’s specific allegations concerning the insufficiency and poor quality of the food, the Court notes that they are supported by the findings of the CPT, at least with respect to Craiova Prison, while the Government merely referred to an alleged compatibility of the food in general with the European standards and the prison regulations. 59.", "Concerning the applicant’s allegations about the unpleasant smell coming from the rubbish dump of Giurgiu Prison, the Court notes that they were not entirely contradicted by the Government, who merely stated that the authorities took measures whenever necessary, but gave no specific examples. 60. The Court notes that it is not in dispute between the parties that the applicant was systematically handcuffed whenever he was taken out of his cell in both Craiova and Giurgiu Prisons. In addition, the CPT’s reports fully confirm the applicant’s allegations on that point (see paragraph 37 above). 61.", "The Court is aware that prison authorities need to exercise caution when dealing with individuals who have been convicted of violent offences (see Raninen v. Finland, § 56, 16 December 1997, Reports of Judgments and Decisions 1997-VIII; Mouisel v. France, no. 67263/01, § 47, ECHR 2002-IX; and Mathew v. the Netherlands, no. 24919/03, § 180, ECHR 2005-IX). However, it observes that the systematic use of handcuffs in respect of the applicant started about fourteen years ago, in December 1997, and apparently continues to this day. With the exception of one attempt to flee, the Government did not identify any other specific incidents over that period in which the applicant had tried to flee or harm himself or others.", "Nor did they submit any information to show that there was a risk that such incidents might occur. Therefore, the Court shares the CPT’s concerns that the routine handcuffing of a prisoner in a secure environment cannot be considered justified (see paragraph 37 above). 62. In view of the foregoing, the Court considers that the cumulative conditions of the applicant’s detention caused him distress that exceeded the unavoidable level of suffering inherent in detention and that attained the threshold of severity under Article 3. There has accordingly been a violation of Article 3 of the Convention.", "II. ALLEGED FAILURE TO COMPLY WITH OBLIGATIONS UNDER ARTICLE 34 OF THE CONVENTION 63. The applicant complained that the prison authorities had hindered his right to petition the Court and subjected him to pressure to withdraw his complaint. He relied in substance on Article 34 of the Convention, which reads as follows: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” A.", "The parties’ submissions 64. The applicant submitted that there was no legal provision allowing prison employees to sign return receipts for letters sent by registered mail. He alleged that when he had received the two letters from the Court they had already been opened and that he had been constantly pressured by the prison authorities to give up his application before the Court. 65. The Government contended that the applicant had failed to bring his complaints concerning the alleged interference with his right to petition the Court before the domestic courts, as provided for by Law no.", "275/2006 on the execution of sentences. The Government further submitted that the applicant’s allegations were unsubstantiated. They concluded that the applicant was duplicitous and insincere since, if his allegations were true and he had indeed been pressured into signing the 4 February 2011 statement, he should have immediately informed the Court about such a serious incident. B. The Court’s assessment 1.", "General principles 66. The Court reiterates at the outset that a complaint under Article 34 of the Convention is of a procedural nature and therefore does not give rise to any issue of admissibility under the Convention (see Iulian Popescu v. Romania, no. 24999/04, § 29, 4 June 2013). 67. The Court further reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 that applicants or potential 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 (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 105, Reports 1996-IV; Knyazev v. Russia, no.", "25948/05, § 115, 8 November 2007; and, mutatis mutandis, Di Cecco v. Italy, no. 28169/06, § 27, 15 February 2011). 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 Kurt v. Turkey, 25 May 1998, p. 1192, § 159, Reports 1998‑III). 68. Furthermore, whether or not contacts between the authorities and an applicant are tantamount to unacceptable practices from the standpoint of Article 34 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 Akdivar and Others, p. 1219, § 105; and Kurt, pp. 1192-93, § 160, both cited above). The applicant’s position might be particularly vulnerable when he is held in custody with limited contacts with his family or the outside world (see Cotleţ v. Romania, no. 38565/97, § 71, 3 June 2003). 2.", "Application of these principles to the present case 69. The Court notes that, in view of the applicant’s failure to reply to two successive letters, on 21 September and 30 November 2010 two additional letters were sent to him by registered mail. As the return receipts of those letters had not been signed by the applicant, information in this connection was requested from the Government. On 24 February 2011 the Government replied that the applicant had received the correspondence from the Court and his failure to reply clearly inferred that he no longer wished to pursue his application. In this connection, the Government forwarded to the Court a statement signed by the applicant on 4 February 2011, in which he declared that he no longer wished to correspond with the Court.", "70. The Court observes that it is not clear from the Government’s submissions when the applicant received the letter of 21 September 2010. As for the letter of 30 November 2010, it was indeed received on 10 December 2010. In addition, the relevant regulations governing prisoners’ access to correspondence do not indicate that the return receipt of a letter sent by registered mail must be signed by anyone other than the addressee prisoner (see paragraph 34 above). 71.", "The applicant informed the Court on 16 May 2011 that his statement of 4 February 2011 should be regarded as invalid, as it had been written under pressure, and confirmed his intention to pursue the proceedings (see paragraph 37 above). The Court notes that after those submissions had been transmitted to the Government, they insisted, without presenting any additional elements, that the statement in question had been written by the applicant voluntarily and that his allegations that it had been written under pressure from State agents were unsubstantiated (see Knyazev, cited above, § 118). In the Court’s view, such conduct on the part of the Government, taken together with the difficulties encountered by the applicant in receiving the Court’s letters, was not consistent with their obligation not to interfere with the applicant’s right of individual petition. 72. The respondent State has therefore failed to comply with its obligations under Article 34 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 73. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 74. The applicant claimed 60,000 euros (EUR) in respect of non-pecuniary damage for the suffering he had had to endure as a result of the inhuman and degrading conditions of detention.", "He further claimed a total of 60,000 EUR in respect of pecuniary and non-pecuniary damage for the hindrance of his right to individual petition before the Court. 75. The Government asked the Court not to grant any pecuniary damage to the applicant, since no plausible pecuniary damage could have been caused from the alleged breach of Article 34 of the Convention. In their view, should the Court find a violation of the applicant’s rights guaranteed by Article 34 in the present case, such a finding should constitute sufficient just satisfaction. With respect to the non-pecuniary damage claimed for the alleged violation of the applicant’s rights under Article 3 of the Convention, the Government submitted that it was speculative, excessive and unsubstantiated.", "76. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 77. On the other hand, the Court observes that in the present case it has found a violation of Article 3 of the Convention and established that the respondent Government have failed to comply with their 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, deciding on an equitable basis, it awards the applicant EUR 24,000 in respect of non‑pecuniary damage. B. Default interest 78. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 3 of the Convention; 3. Holds that the State has failed to fulfil its obligation under Article 34 not to hinder the effective exercise of the right of individual petition; 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 24,000 (twenty-four thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, 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; 5. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 1 April 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident" ]
[ "FIRST SECTION CASE OF RÓŻAŃSKI v. POLAND (Application no. 55339/00) JUDGMENT STRASBOURG 18 May 2006 FINAL 18/08/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Różański v. Poland, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL.", "Loucaides,MrsF. Tulkens,MrsE. Steiner,MrL. Garlicki,MrK. Hajiyev,MrD.", "Spielmann, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 6 April 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 55339/00) against the Republic of Poland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Stanisław Różański, on 6 March 1997. 2. The Polish Government (“the Government”) were represented by their Agents, Mr K. Drzewicki and, subsequently, by Mr Jakub Wołąsiewicz.", "3. The applicant alleged through being prevented from recognising a child of whom he was the biological father, he was the victim of a violation of his right to respect for his “private and family life” guaranteed by Article 8 of the Convention. He was represented before the Court by Mr P. Rybiński, a lawyer practising in Gdańsk. 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.", "6. 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). 7. By a decision of 10 March 2005 the Court declared the application admissible.", "8. The applicant and the Government each filed observations on the merits (Rule 59 § 1). The parties replied in writing to each other’s observations. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9.", "The applicant was born in 1960 and lives in Gdańsk. 10. From 1990 to 1994 the applicant lived with B.F. On 29 August 1992 B.F. had a baby, a boy D. He was registered at the Birth Register as having “Stanisław F.” as father, i.e. a fictitious name, consisting of the applicant’s first name and the mother’s surname. 11.", "In April 1994 the relationship ended. B.F. left the child with the applicant and disappeared for over a month. The applicant submits a copy of a letter, in which B.F. states that she leaves him and the boy and that they should now fend for themselves. As the child subsequently fell ill, the applicant took him to a hospital. B.F. took D. from the hospital on 21 May 1994.", "She then stayed in hiding for several months. Since then the applicant has not had any contacts with the child. 12. Prior to this, on 18 April 1994, the applicant lodged a motion with the Gdańsk District Court, claiming that the paternity of D. be established and submitting that he was his biological father. He was subsequently summoned by the court to submit certain documents in order to have a guardian appointed who would bring a paternity action on the child’s behalf as under the domestic law the alleged biological father, not married to the mother, lacked standing in paternity proceedings.", "The applicant failed to do so. 13. In a note of 20 May 1994 the Gdańsk Social Assistance Centre informed the family court about the situation of D. and requested it to take steps to supervise B.F. in her exercise of parental rights. The social assistance officer also referred in her note to the applicant and stated that, in the light of the information received from his sister, in her view he would be unable to take adequate care of the child. 14.", "Subsequently the Gdańsk District Court instituted custody proceedings concerning D. By a decision of 26 May 1994 the court ordered that D. be taken into public care. Apparently shortly afterwards this decision was revoked. 15. In August 1994 the Gdańsk District Court requested the prosecuting authorities to investigate whether B.F. had committed a criminal offence by exposing D. to immediate danger of serious bodily injury. Such investigations were instituted in November 1995.", "16. By a decision of 27 January 1995 the District Court gave a new decision on the basis of which D. was taken into public care. The custody rights of B.F. were restricted and she was only allowed to visit him. The applicant was not a party to the proceedings. B.F. refused to give D. away when police officers came to take him to a children’s home.", "17. On that date the applicant lodged a new motion with the District Court to have a guardian appointed to represent D. for the purposes of the paternity proceedings. 18. Prior to that, on 9 January 1995, the applicant requested the Gdańsk District Prosecutor to institute on his behalf proceedings to have his paternity established in respect of D. In a reply of 5 May 1995, the prosecutor recalled that the applicant, by a motion of 27 January 1995, had requested the civil court to appoint a guardian for the child for the purpose of instituting the paternity proceedings, and that therefore it would not be advisable that the prosecuting authorities considered the applicant’s request, which, if successful, would lead to two parallel sets of proceedings pending at the same time, both concerning the determination of the applicant’s paternity in respect of D. 19. In July 1995 the Court rejected the applicant’s motion of 27 January 1995 because he had failed to pay the court fee.", "Subsequently, the applicant paid the fee and the proceedings were resumed. 20. At a hearing held on 10 November 1995 the applicant withdrew his motion to have a guardian appointed and the court discontinued the proceedings. 21. On 15 March 1996 B.F. declared before the Gdańsk District Court that her new partner J.M.", "was D’s biological father. On 18 March 1996 she lodged a motion with the District Court to have her full parental rights restored. By a decision of 26 March 1996 the District Court revoked its decision of 27 January 1995 to take D. into public care and ordered that he could stay with her until the termination of the proceedings, considering that since her living conditions had improved, she would be capable of taking adequate care of D. until a final decision on the merits be given. 22. By a decision of 10 July 1996 the District Court restricted B.F.’s parental rights by appointing a guardian to supervise her in the exercise of her rights.", "23. On 15 July 1996 the new partner of B.F., J. M., was acknowledged as D.’s legal father, following his recognition of paternity. 24. On 8 August 1996 the applicant lodged with the Gdańsk District Prosecutor a request to institute investigations concerning his parental rights. He alleged that criminal offences had been committed in connection with the relevant proceedings.", "By a decision of 30 August 1996 the prosecution authorities refused to institute investigations, finding that no laws had been breached in connection with determination of the applicant’s parental rights. 25. On 8 August 1996 the applicant lodged another motion with the District Court, asking again for the appointment of a guardian to represent the child for the purpose of instituting paternity proceedings. By a decision of 15 November 1996 the District Court dismissed it, stating that the applicant had no right of action, since following the declaration of 15 July 1996 it was J.M. who was D.’s legal father.", "26. On 12 November 1996 the applicant again requested the prosecutor to institute criminal proceedings, alleging that the birth certificate of D. had been forged. On 20 December 1996 the Gdańsk District Prosecutor refused to do so, finding that the child’s birth certificate had been amended following the recognition of the paternity of D. by his mother’s new partner J.M. The prosecutor observed that under the applicable laws recognition of a child was only possible if the mother gave her consent thereto. No criminal offence had been committed in that D.’s certificate had been rectified to reflect the recognition of paternity, effected with his mother’s consent.", "27. The applicant appealed against the prosecutor’s decision. On 15 May 1997 the appellate prosecutor dismissed his appeal. 28. On 15 January 1997 the applicant challenged the decision of the Gdańsk District Court of 15 November 1996 by which it had stated that in view of the fact that J.M.", "had recognised his paternity of D., the applicant had no standing to bring paternity proceedings. On 29 January 1997 the court dismissed his appeal. 29. In a letter of 22 January 1997 the President of the Gdańsk District Court informed the applicant that the paternity proceedings had been discontinued due to the fact that B.F.’s new partner had recognised his paternity in respect of the child. 30.", "On 30 October 1997 the applicant complained to the Court of Appeal that the Gdańsk District Court failed to take steps in the interest of the child in order to have the applicant’s paternity recognised. He submitted that he did not have access to the child, although he was his biological father. He argued that the parental skills of B.F. were inadequate as shown by the fact that her two other children K. and T. had been placed with a foster family; that in 1994 she had left the child with him and disappeared for over a month, and that the man who had recognised D. as his child was a habitual offender. He emphasised that the court relied only on the submissions of the mother, disregarding entirely his interests as a biological father of the child, and failed to take the child’s best interests properly into consideration. 31.", "In a letter of 1 December 1997 of the President of the Gdańsk Court of Appeal, the applicant was informed that a copy of the decision of 15 November 1996 by which the District Court had dismissed the applicant’s request to have a guardian for the child appointed for the institution of paternity proceedings, had been sent to a wrong address. Therefore, the decision should be served again on the applicant. The applicant was further informed that the Gdańsk District Court had, on 18 April 1997, restricted the parental rights of B.F. and J.M. in respect of D. in that a guardian had been appointed to supervise them in the exercise of their parental rights. 32.", "By letters of 22 December 1997 and 7 January 1998 the President of the Court of Appeal informed the applicant that his further complaints concerning the conduct of the District Court as regards D. were unfounded, and that it was J.M. who was the father of the child. 33. In a letter of 12 January 1998 the Gdańsk Regional Prosecutor recalled that the applicant’s request to institute proceedings on his behalf in order to have him recognised as a biological father of D had been refused on 5 May 1995 as it was not in the child’s best interest. 34.", "On 6 November 1998 the Ministry of Justice informed the applicant, in reply to his complaints, that the case-files concerning the child had been reviewed and the applicant’s complaints about the failure to examine his position as a biological father of D. were unfounded. 35. The applicant does not have any access to the child. II. RELEVANT DOMESTIC LAW AND PRACTICE 1.", "Provisions of the Constitution 36. Article 47 of the Constitution provides that “(e) everyone shall have the right to legal protection of his private and family life, of his honour and good reputation, and to make decisions about his personal life.” 37. Pursuant to Article 48, parents shall have the right to educate their children in accordance with their own convictions. Such upbringing shall respect the degree of maturity of a child as well as his freedom of conscience. Limitation or deprivation of parental rights may be effected only in the instances specified by statute and only on the basis of a final judicial decision.", "38. Article 72 of the Constitution provides that “the Republic of Poland shall ensure protection of the rights of children.” 39. Article 190 of the Constitution, insofar as relevant, provides as follows: “1. Judgments of the Constitutional Court shall be universally binding and final. 2.", "Judgments of the Constitutional Court, ... shall be published without delay. 3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. Where a judgment has financial consequences not provided for in the Budget, the Constitutional Court shall specify a date for the end of the binding force of the normative act concerned, after seeking the opinion of the Council of Ministers.", "4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final judicial decision, a final administrative decision or settlement of other matters was issued, shall be a basis for re-opening proceedings, or for quashing the decision or other settlement in a manner and on principles specified in provisions applicable to the given proceedings”. 40. Article 4011 of the Code of Civil Procedure provides that a party to civil proceedings which have terminated with a final judgment on the merits can request that these proceedings be re-opened, if the Constitutional Court has found that the legal provision on the basis of which this judgment was given was incompatible with the Constitution. Such a request can be lodged with the competent court within one month from the judgment of the Constitutional Court.", "2. Relevant provisions of the Family and Custody Code (Kodeks Rodzinny i Opiekuńczy) 41. Article 72 of the Code reads: “If there is no legal presumption in operation that the mother’s husband is the father of her child, or if such presumption has been rebutted, the paternity of the child may be established by the recognition of paternity by the father, or by a decision of a court.” 42. A declaration recognising paternity of a child can be made before a registrar of a local births, marriages and deaths register office. 43.", "Article 77 § 1 reads: “The recognition of paternity in respect of a minor child should be subject to the approval of its mother. On the death of the mother, or if her parental rights have been withdrawn, or if a contact with her is impossible, a court appointed guardian shall give consent to the recognition of paternity.” 44. Pursuant to Articles 80 to 83, an action to have the recognition of a child declared null and void can be brought by the mother, by the child and by the man who recognised his paternity. Under Article 86 the prosecutor may also bring an action to have the recognition of a child declared null and void. 45.", "Under Articles 84 and 86 of the Code, an action to establish paternity may be brought by the mother or by the child, or by the prosecutor. 46. Article 99 of the Code provides that a guardian can be appointed by the family court to represent the child, if neither of the parents can represent it in judicial proceedings. 3. Judgment of the Constitutional Court of 28 April 2003 47.", "In its judgment of 28 April 2003 (K 18/02) the Constitutional Court ruled on the Ombudsman’s request to have Article 77 of the Family and Custody Code and Article 84 § 1 of that Code declared incompatible with the Constitution. The Ombudsman argued that the fact that a biological father did not have standing to lodge himself with a court an action to have his paternity recognised in respect of an out-of-wedlock child and that such action on behalf of a father could be only brought by the public prosecutor, breached the father’s right to have access to a court, guaranteed by the Constitution. It was further argued that this restriction on access to a court was in violation of these provisions of the Constitution which guaranteed respect for private and family life. 48. The Constitutional Court observed that the Constitution does not regulate the issue of methods to be applied in order to establish filiation of children to whom a presumption of paternity of the mother’s husband did not apply.", "This matter is left to be regulated by statute. Nevertheless, the constitutional principle of protecting the child’s best interest, enshrined in Article 72 of the Constitution, indicated preference as to the manner in which legal procedures to establish filiation should be shaped, namely so as to allow legal filiation to be determined in accordance with child’s biological parentage. 49. The Constitutional Court observed that under Article 77 § 1 of the Custody and Family Code the recognition of paternity by way of unilateral declaration of a putative biological father was subject to the mother’s consent. 50.", "The Constitutional Court observed that the decision of the legislature to make the effectiveness of recognition of paternity by a declaration made under this provision conditional on the mother’s consent was justified by the need to protect mother’s personal rights. Had the requirement of consent been removed, it would create a situation in which a man would be the sole person capable of establishing the child’s filiation. This could result in creation of legal bonds inconsistent with biological reality and, also, expose the mother to the risk of harassment by a man claiming to be a biological father of her child. However, the Constitutional Court considered that it would not be justified to introduce a judicial control over the mother’s consent. This would ultimately lead to replacing the mother’s consent by consent given by a court, which would undermine the very reason for the existence of unilateral declaration of paternity as a special method of establishing legal ties between the father and child.", "51. The Constitutional Court further considered that the lack of standing before a court for a man claiming to be the biological father of a child and trying to have his paternity recognised in law in procedure provided for by Article 84 of the Custody and Family Code had to be seen in the light of the fact that the recognition of paternity by way of declaration was conditional on the mother’s consent, referred to above. 52. The necessity of the mother’s consent, on the one hand, and the lack of standing before the court to have one’s paternity recognised in law on the other resulted in a situation in which, in the absence of such a consent, a biological father would be deprived of any possibility of creating legal ties between himself and his child, either by way of declaration or by instituting paternity proceedings. The Constitutional Court emphasised that a decision of the prosecuting authorities to institute proceedings with a view to creating such ties was left entirely to their discretion.", "All these factors taken together led the Court to the conclusion that the lack of standing before a court of the biological father in proceedings to have his biological paternity recognised in law were in breach of Article 72 of the Constitution, providing for protection of the children’s rights as a constitutional principle. It was further stated that this was also in breach of the father’s right to respect for his private and family life, guaranteed by Article 47 of the Constitution. Moreover, these provisions breached Article 45 of the Constitution, guaranteeing the right of access to a court. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 53.", "The applicant alleged that, through being prevented from recognising a child of whom he claims to be the biological father, he was the victim of a violation of his right to respect for his “private and family life”. He relied on Article 8 of the Convention, the relevant parts of which provide: “1. Everyone has the right to respect for his ... family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Arguments of the parties 1.", "The Government 54. The Government acknowledged that the domestic law as applicable at the relevant time had not provided for a putative biological father to bring directly a court action in order to have his paternity recognised in law. However, the provisions of the Family and Custody Code provided for a number of legal avenues by which the applicant could have had his paternity confirmed. 55. Firstly, before the legal tie of paternity was established between D. and his mother’s partner J.M.", "who recognised D. as his child with effect from 15 July 1996, it was open to the applicant to request the court, under Article 99 of the Code, to appoint a guardian who could lodge an action on the child’s behalf to have the applicant’s legal paternity established. On 27 January 1995 the applicant indeed requested the Gdańsk District Court that such a guardian be appointed. However, later on, at the hearing held on 10 November 1995 he withdrew his application and the court subsequently discontinued these proceedings. 56. Secondly, even after J.M.", "had recognised D. as his son, the applicant could have had recourse to the legal avenue provided for by Article 86 of the Family and Custody Code. Under this provision, the recognition of a child could be challenged by the prosecuting authorities, which were competent to bring an action for annulment of the declaration of recognition made by J.M. The Government argued that the applicant had failed to request the prosecutor to bring such an action. 2. The applicant 57.", "The applicant argued that, in the absence of the consent of D’s mother, he could pursue two paths to have his legal paternity established. The first one was to have a paternity claim lodged on behalf of the child by a court appointed guardian. On 27 January 1995 the applicant had indeed requested the Gdańsk District Court that such guardian be appointed. The second one had been a request to the prosecutor for a paternity action to be lodged on the applicant’s behalf. The applicant had submitted such a request on 9 January 1995.", "However, on 9 May 1995 the prosecutor had refused to grant his request on the ground that his earlier request to have a guardian appointed had already been pending at that time and therefore it was not advisable for the prosecutor to consider his request to have the parallel proceedings instituted. This showed, in the applicant’s submission, that under domestic law these two paths had been mutually exclusive, or at least had been so considered by the prosecution in the present case. The unfettered discretion that the prosecutor enjoyed as regards institution of paternity proceedings on behalf of a putative father had made it possible for the prosecution authorities to refuse to proceed with the examination of the applicant’s request of 9 January 1995 in the light of the other set of proceedings already pending at that time. 58. The applicant further argued that on 8 August 1996 he had renewed his request to have a guardian appointed, but to no avail, because by then J.M.", "had already become D’s. legal father, following his acknowledgment of paternity which became effective on 15 July 1996. The authorities considered that the paternity action could not be have been instituted in respect of a child whose legal parentage had already been established. 59. The applicant submitted that another possibility he had would have been to request the prosecutor to institute an action for annulment of recognition of paternity by J.M.", "However, this action was not available to him personally and was entirely dependent on the prosecutor’s discretionary decision. B. The Court’s assessment 1. General principles 60. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities.", "There may in addition be positive obligations inherent in effective \"respect\" for 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 (Mikulić v. Croatia, no. 53176/99, § 57, with further references). 61. 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 (Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49; Kroon and Others v. the Netherlands, judgment of 27 October 1994, Series A no. 297‑C, p. 56, § 31). 62.", "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 Mikulić, cited above, § 59; 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 efforts to have his putative biological paternity recognised in law, has complied with its positive obligations under Article 8 of the Convention. 2. Compliance with Article 8 of the Convention 63.", "The Court first recalls that it has already found in the decision of the admissibility of the present case (§ 7 above) that in the present case the applicant’s link with the child had a sufficient basis in fact to bring the alleged relationship within the scope of family life within the meaning of Article 8 § 1 of the Convention. 64. The Court reiterates in this respect that D. had been born out of a relationship between the applicant and Ms B. F. that had lasted for about four years. It is also worth noting that immediately after their relationship ended in April 1994, the applicant, as early as 18 April 1994, lodged a motion with the Gdańsk District Court, claiming that the paternity of D. be established and submitting that he was his biological father. Afterwards, after the applicant had lost all contact with the child in May 1994 (§ 11 above), he repeatedly took various steps in order to have his putative biological paternity recognised in law.", "Hence, it is relevant for the assessment of the case that the applicant has shown, in the Court’s opinion, demonstrable interest in and commitment to the child both before and after the birth (see no. 22920/93, dec. 6.4.1994, D.R.77-A, p. 115; Nylund v. Finland (dec.), no. 27110/95, ECHR 1999‑VI). 65. The Court reiterates that where the existence of a family tie with a child has been established, the State must act in a manner calculated to enable that tie to be developed and legal safeguards must be created that render possible, as from the moment of birth, the child’s integration into his or her family (see Keegan, cited above, p. 19, § 50, and Kroon, cited above, p. 56, § 32).", "66. The Court observes in this connection that in the present case the situation which existed from May 1994 when the applicant lost contact with D. until July 1996 when J.M. recognised his paternity in respect of the boy, differed from the situation which it examined in the Kroon judgment. In the latter case it was impossible for the mother to institute proceedings to deny paternity of her husband because the Dutch law imposed restrictions on her in order to protect legal certainty as to the legal paternity of a child born in wedlock. The Court emphasises that in the present case such a consideration was not involved as there was no presumption of paternity to the benefit of another man until the paternity of D. was recognised by J.M.", "67. The Court further recalls that in the Kroon case referred to above, it established a principle that respect for family life required that biological and social reality prevail over a legal presumption which in that case flew in the face of both established fact and the wishes of those concerned without actually benefiting anyone (Kroon, cited above, § 40). The Court emphasises that the present case differs in this respect from the situation examined in Kroon also in that in the latter the parents’ wishes were in agreement, while in the present case it has not been shown that such an agreement existed between the applicant and D’s mother since at least April 1994. Consequently, the Court is of the view that the principle that the biological reality must prevail cannot be said to be fully applicable to the circumstances of the present case. 68.", "Nonetheless, referring to the situation which obtained in the case until April 1994 when the applicant and D’s mother’s relationship ended, the Court observes that the right of a putative biological father under Polish law to recognise a child born out of wedlock by way of a simple declaration (see § 42 above) is a reflection of this principle. The Court notes that such a declaration was an ordinary and easily accessible instrument for creating family ties between the applicant and D. It further observes that the possibility of effectively making such declaration was dependent on the mother’s consent. It has not been argued or shown that D.’s mother had manifested her lack of consent for his recognition of paternity until they separated in April 1994. However, the Court notes that if the mother had not given such consent throughout this time, it would be impossible for the applicant to challenge her lack of consent in any proceedings. 69.", "As regards the period after April 1994, the Court observes that under domestic law in force at the material time it was open to the applicant to lodge a motion to have a guardian appointed by the court in order to institute paternity proceedings on the child’s behalf. The Court notes that the applicant submitted such a motion on 18 April 1994. 70. The Court further observes that the applicant also attempted to set in motion another procedure provided for by the family law in order to have his paternity recognised. On 9 January 1995 he requested the Gdańsk District Prosecutor to institute on his behalf the proceedings to have his paternity established.", "71. Hence, the Court concludes that under domestic law as it stood at the material time there were procedures available in which the applicant’s paternity in respect of a child born out of wedlock could be determined and recognised in law. 72. However, the Court notes the applicant’s argument that on 9 May 1995 the prosecutor refused to bring the paternity action on his behalf, considering that his earlier request to appoint a guardian for the purpose of bringing an identical action was pending at that time. The prosecuting authorities therefore considered that it was not advisable for them to proceed with his case.", "Hence, under domestic law these two paths were mutually exclusive, or at least were so considered by the prosecuting authorities in the present case. 73. The Court emphasises that it is a crucial aspect of the present case that neither of these procedures was available to the applicant in that he could not launch them himself. The launching of these procedures depended on a decision of the authorities who enjoyed a discretionary power to decide whether to accede to such a request or to refuse it. 74.", "In this context the Court also notes the relevance of the case-law of the Constitutional Court of Poland, referred to above (§§ 47 - 52) for the issues examined in the present case. In particular, the latter considered that the necessity of the mother’s consent for the recognition of paternity, on the one hand, and the lack of standing before the court to have one’s paternity recognised in law on the other resulted in a situation in which, in the absence of such a consent, a biological father would be deprived of any possibility of creating legal ties between himself and his child. It further emphasised that a decision of the authorities to institute proceedings with a view to creating such ties was left entirely to their discretion. All these factors taken together led that Court to the conclusion that relevant provisions were in breach of the putative father’s right to respect for his private and family life, guaranteed by the Constitution. 75.", "As regards the period after 15 July 1996, when D. mother’s new partner was recognised as his father following his declaration of 15 March 1996, the Court is of the view that the fact that the authorities enjoyed discretionary powers in deciding whether to institute proceedings in order to challenge the legal paternity established by way of a declaration of paternity by another man is not, in itself, open to criticism. The fact that the authorities had been vested with such discretionary powers was clearly designed to safeguard the best interest of a child in respect of whom paternity had already been recognised and, also, to balance the interests of both the child and the putative biological father. 76. The Court emphasises that when a decision to be given falls within the ambit of discretionary powers of competent authorities, the involvement of a person whose interests are at stake cannot, for obvious reasons, be attended by the same procedural guarantees as those applicable in judicial proceedings, in particular in the area as delicate as establishing a legal filiation with children. However, the Court observes that it has not been either shown or argued by the Government that the domestic law as it stood at the material time contained any guidance as to the way in which the discretion, with which the authorities had been vested by law, should be exercised.", "77. In this connection, the Court notes that the prosecuting authorities and the courts reiterated in their decisions given after the child had been recognised by J.M. that the mere fact of this legal recognition by another man was sufficient to refuse the applicant’s requests to have his biological paternity recognised (§§ 25, 28, 33 above). While it was obviously reasonable to take into consideration the fact that the legal paternity of the child had already been established, in the Court’s view, there were also other factual elements of the situation which should have been taken into account by the authorities examining the case. In this connection the Court notes that no steps were taken by the authorities to establish the actual circumstances of the child, the mother and the applicant or that any relevant evidence had been taken.", "It further observes that on no occasion was the applicant interviewed by the authorities in order to have his parental skills established and assessed by the authorities. The reasoning of the decisions given by the authorities was perfunctory, the mere reference to the recognition of paternity by J.M. being the only justification for their refusals to deal with the applicant’s repeated requests. 78. In the Court’s view, in the circumstances of the present case it would have been reasonable to expect that the authorities, when responding to the applicant’s efforts after July 1996 to have J.M’s paternity challenged, would consider the relative weight of, on the one hand, the interests of the applicant as a putative biological father and, on the other, of the child and the family that the recognition by J.M.", "had created. While the Court acknowledges that it can be surmised that that the authorities, when giving their decisions after the child had been recognised by J. M. might not have wanted to disturb the legal relationship between the child and his mother’s new partner, it is open to criticism that no examination of these interests against the factual background of a particular case has been effected or even considered. Moreover, it was not examined at all whether in the circumstances of the case the examination of the applicant’s paternity would harm the child’s interests or not. Hence, in the Court’s view, the manner in which the discretionary powers of the authorities were exercised in deciding whether to challenge legal paternity established by the declaration made by J.M. in July 1996 i.e.", "the absence of any steps taken to establish the actual circumstances of the case does not seem to have ensured that the rights and interests of the applicant have been given due consideration. 79. To sum up, when making the assessment of the case the Court had regard to the circumstances of the case seen as a whole. Hence, it has taken into consideration, firstly, the lack of any directly accessible procedure by which the applicant could claim to have his legal paternity established (see § 73 above). Secondly, the Court noted the absence, in the domestic law, of any guidance as to the manner in which discretionary powers vested on the authorities in deciding whether to challenge legal paternity established by way of a declaration made by another man should be exercised (see § 76 above).", "Thirdly, the Court considered the perfunctory manner in which the authorities exercised their powers when dealing with the applicant’s requests to challenge this paternity (see § 77 above). Having examined the manner in which all these elements taken together affected the applicant’s situation, the Court concludes that, even having regard to the margin of appreciation left to the State, it failed to secure to the applicant the respect for his family life to which he is entitled under the Convention (Mizzi v. Malta, no. 26111/02 § 114, mutatis mutandis). 80. There has therefore been a violation of Article 8 of the Convention.", "II. 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.” A. Damage 82. Under the head of non-pecuniary damage the applicant claimed a sum of 100,000 Polish zlotys (PLN) [approx.", "EUR 25,000] for moral suffering and distress resulting from a violation of his Convention rights. In that regard, the applicant in particular referred to the anxiety and stress he suffered on account of his unsuccessful efforts to have his paternity recognised in respect of a child of whom he considers to be the biological father. 83. The Government considered that the sum in question was excessive. They requested the Court to rule that the finding of a violation would constitute in itself sufficient just satisfaction.", "In the alternative, they invited the Court to make an award of just satisfaction on the basis of its case-law in similar cases and national economic circumstances. 84. The Court considers that the applicant must have sustained non‑pecuniary damage and that sufficient just satisfaction would not be provided solely by a finding of a violation of the Convention. Having regard to the circumstances of the case and making its assessment on an equitable basis as required by Article 41, it awards the applicant EUR 8,000 under this head. B.", "Costs and expenses 85. The applicant who received legal aid from the Council of Europe in connection with the presentation of his case in the proceedings before the Court did not seek reimbursement of the relevant costs and expenses. C. Default interest 86. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1.", "Holds by five votes to two that there has been a violation of Article 8 of the Convention; 2. Holds by five votes to two (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros) 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; 3. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 18 May 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Mr Garlicki joined by Mrs Steiner is annexed to this judgment.", "C.L.R.S.N. DISSENTING OPINION OF JUDGE GARLICKI JOINED BY JUDGE STEINER 1. It is with regret that we cannot accept the majority’s position in this case. The majority adopted a position finding that a violation of the applicant’s rights had resulted from the legislative framework in which no “paternity procedures” had been directly available to him. However, in Nylund v. Finland (dec.), no.", "27110/95, ECHR 1999‑VI, and later in Yousef v. the Netherlands, no. 33711/96, ECHR 2002‑VIII, the Court took a different approach and found that some limitations on paternity claims might be compatible with the Convention. It is not clear to us whether the judgment in the present case is meant to overrule Nylund and Yousef (and, if so, on what grounds) or whether it can be distinguished from those two cases (and, if so, on what basis). 2. Nevertheless, we are inclined to agree that the legislative framework for paternity recognition, as adopted in Poland at the material time, was defective.", "We do not think, however, that this conclusion can be drawn from any general requirement to provide “direct remedies”; that would not fit with the case law as established in Nylund and Yousef cases. We would rather attach more weight to the fact that, already three years ago, the Polish Constitutional Court declared that legislation unconstitutional (see paragraphs 47-52 of our judgment). That finding should be conclusive also for our assessments, and we are glad that the Strasbourg Court decided to follow it. We can only observe that it would be very much in line with the idea of the dialogue between judges if the reasoning of the Polish Constitutional Court were cited also in the “Law” part of our judgment. That could also be useful because it might encourage our Court to expand its reasoning.", "While it is true that, under both the European Convention and the Polish Constitution, a putative father should not be deprived of access to the courts to raise his paternity claim, it is also true that such access need not be unlimited. Where there is a loving and loyal union between man and woman, the mother has no reason to refuse consent for recognition of paternity. Refusal of consent presupposes a conflict and it is the child, and not the putative father, who should be protected in such a situation. There is always a risk that paternity claims might be raised in a frivolous or vexatious way and be used to harass mother and child. That could have a disastrous effect upon the psychological development of the child.", "Hence, the legislature can and should establish such limitations and restrictions as are necessary for protection of the welfare of the child. Those considerations were expounded in the 2003 judgment of the Polish Constitutional Court. We regret that they have not been included in the 2006 judgment of the Strasbourg Court. In its present form, our judgment may appear to be rather one-sided. 3.", "We would be more ready to find a violation had the applicant duly exhausted all available remedies. However, he failed to do so. In January 1995 he lodged a motion with the District Court to have a guardian appointed for the purposes of the paternity proceedings. Almost simultaneously, he requested the Public Prosecutor to institute the paternity proceedings on his behalf. In May 1995 he was advised by the Prosecutor that it was unwise to pursue two parallel sets of proceedings in the same matter.", "Six months later the applicant withdrew his motion before the District Court. Later he focused on futile attempts to institute a criminal investigation against the mother. It must not be forgotten that, in March 1996, another putative father claimed paternity and that his claim was confirmed by the mother. All those facts lead us to the conclusion that the applicant’s paternity request was not a clear and convincing one, nor did he show the required degree of diligence in pursuing his case. We are not sure whether the Court was correct when, in its admissibility decision of 10 March 2005, it observed that since neither of the above-mentioned procedures had been available to the applicant in that he could not launch them himself, they could not be considered as remedies to be exhausted before bringing the case to the Court.", "The existing remedies may have not been perfect, but they were in place and did work in the case of the second candidate to paternity, and it is not for the Court to speculate on how they would have worked in the case of the applicant. The applicant was a victim of his own indecisiveness. The State cannot be held responsible for his lack of action." ]
[ "COURT (PLENARY) CASE OF ENGLERT v. GERMANY (Application no. 10282/83) JUDGMENT STRASBOURG 25 August 1987 In the Englert case[*], The European Court of Human Rights, taking its decision in plenary session pursuant to Rule 50 of the Rules of Court and composed of the following judges: Mr. R. Ryssdal, President, Mr. J. Cremona, Mr. Thór Vilhjálmsson, Mrs. D. Bindschedler-Robert, Mr. G. Lagergren, Mr. F. Gölcüklü, Mr. F. Matscher, Mr. J. Pinheiro Farinha, Mr. L.-E. Pettiti, Sir Vincent Evans, Mr. R. Macdonald, Mr. C. Russo, Mr. R. Bernhardt, Mr. J. Gersing, Mr. A. Spielmann, Mr. J. De Meyer, Mr. N. Valticos, and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy Registrar, Having deliberated in private on 26 February and 24 June 1987, 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 28 January 1986, within the three-month period laid down by Article 32 § 1 and Article 47 (art.", "32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms (\"the Convention\"). It originated in an application (no. 10282/83) against the Federal Republic of Germany lodged with the Commission under Article 25 (art. 25) by a national of that State, Mr. Joachim Englert, on 13 October 1982.", "The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the Federal Republic of Germany recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the request was to obtain a decision as to whether or not the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 § 2 (art.", "6-2). 2. In response to the enquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, Mr. Englert stated that he wished to take part in the proceedings pending before the Court and designated the lawyer who would represent him (Rule 30). 3. On 28 January 1986, the President of the Court decided that in the interests of the proper administration of justice this case and the Lutz and Nölkenbockhoff cases should be considered by the same Chamber (Rule 21 § 6).", "The Chamber of seven judges to be constituted included, as ex officio members, Mr. R. Bernhardt, the elected judge of German nationality (Article 43 of the Convention) (art. 43), and Mr. R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). On 19 March 1986, in the presence of the Registrar, the President drew by lot the names of the other five members, namely Mr. F. Matscher, Mr. J. Pinheiro Farinha, Mr. L.-E. Pettiti, Sir Vincent Evans and Mr. R. Macdonald (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43). 4.", "After assuming the office of President of the Chamber (Rule 21 § 5), Mr. Ryssdal consulted - through the Deputy Registrar - the Agent of the German Government (\"the Government\"), the Delegate of the Commission and the lawyer for the applicant on the need for a written procedure. On 3 April, he directed that the Agent and the applicant’s lawyer should have until 1 July 1986 to file memorials and that the Delegate should be entitled to reply in writing within two months (Rule 37 § 1). At the same time, he granted the applicant’s lawyer leave to use the German language in the proceedings (Rule 27 § 3). The President twice extended the first of these time-limits - on 3 July until 31 October, and on 10 November until 21 November 1986. 5.", "The Government’s memorial was lodged with the registry on 17 November 1986. The applicant had informed the Registrar on 13 November that he would not be filing a memorial. 6. On 29 November, the Chamber decided to relinquish jurisdiction forthwith in favour of the plenary Court (Rule 50). 7.", "On 15 December, the Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing. 8. The next day, having consulted - through the Deputy Registrar - the Agent of the Government, the Delegate of the Commission and the lawyer for the applicant, the President directed that the oral proceedings should open on 23 February 1987 (Rule 38). On 6 February, he granted the members of the Government’s delegation leave to speak in German (Rule 27 § 2). 9.", "The hearing was held in public in the Human Rights Building, Strasbourg, on the appointed day. The Court had held a preparatory meeting immediately beforehand. There appeared before the Court: - for the Government Mrs. I. Maier, Ministerialdirigentin, Federal Ministry of Justice, Agent, Mr. H. Stöcker, Ministerialrat, Federal Ministry of Justice, Adviser; - for the Commission Mr. A. Weitzel, Delegate; - for the applicant Mr. N. Wingerter, Rechtsanwalt, Counsel, Ms. A. Stiefel-Bechdolf, Rechtsanwältin, Adviser. The Court heard addresses by Mrs. Maier for the Government, by Mr. Weitzel for the Commission and by Mr. Wingerter for the applicant, as well as their replies to its questions.", "10. On various dates between 6 February and 13 May 1987, the Commission, the Government and the applicant filed a number of documents and written comments either at the Court’s request or of their own motion. AS TO THE FACTS I. PARTICULAR CIRCUMSTANCES OF THE CASE 11. Mr. Joachim Englert, a German national born in 1958, was in custody in Ludwigsburg Prison when he applied to the Commission.", "Between 1975 and 1980, he was convicted of a number of offences. In 1981, he was sentenced to a year’s imprisonment for, among other things, extortion with menaces (räuberische Erpressung); the sentence was suspended, however, and he was put on probation (Bewährung) for four years. In August 1981, the Heilbronn District Court passed on him an aggregate sentence of one year and two months’ immediate imprisonment, thereby combining his last two sentences. 12. Earlier, on 24 February 1981, the applicant had been arrested and then, on 25 February, detained on remand; according to the warrant for his arrest issued by the Heilbronn District Court, he was suspected of extortion with menaces on two occasions and of having caused actual bodily harm (Körperverletzung) and committed a rape.", "On 26 June 1981, he had been indicted (angeklagt) for these offences before the 3rd Criminal Chamber (3. Grosse Strafkammer) of the Heilbronn Regional Court (Landgericht). According to the prosecution, Mr. Englert had (i) in a restaurant on 23 February 1981, threatened to use force against a customer - namely to lie in wait for him one night, break his bones and shoot him dead with a revolver - and by this means extorted DM 50 from him and demanded a further DM 500, to be paid on 7 March 1981; (ii) on the same day, punched Mr. K a distant relative of his, in the face, injuring him; (iii) at his lodgings in Bad Wimpfen on the next day, taken from Mr. K’s wife - whom he was temporarily accommodating, together with her husband, as they had nowhere to live - all her cash, amounting to DM 150, by threatening to kill her; and (iv) subsequently, after threatening that he would otherwise beat her up and kill her, sexually abused Mrs. K while her husband was asleep under the influence of drink. 13. During the trial on 2 November 1981, the Regional Court stayed the proceedings in respect of the first two charges under Article 154 § 2 of the Code of Criminal Procedure (see paragraph 19 below), on the ground that the sentence which the defendant could expect was \"almost negligible\" (nicht beträchtlich ins Gewicht fällt) compared with the sentence he was likely to be given if convicted on the other charges.", "On the same day, the Regional Court convicted Mr. Englert of the crime (Verbrechen) of extortion with menaces and sentenced him to one year and three months’ imprisonment; it acquitted him on the rape charge. The court found that the defendant had given Mr. and Mrs. K shelter. On 23 February, the couple had drawn DM 325 in welfare benefits. After buying food, they had spent the evening with the applicant and had had a few drinks at his home. After Mr. K. had fallen asleep, Mr. Englert made Mrs. K. give him DM 150, threatening that he would kill her if she refused.", "The next day, the couple reported the matter to the police. As regards the allegation of rape, the court found, having regard to a medical report, that it could not be ruled out that the victim, who was mentally handicapped, had not shown her will to resist clearly enough for it to be noticed by the applicant. The acquittal became final on 10 November 1981. 14. On 4 November 1981, Mr. Englert appealed on points of law against conviction; he filed full pleadings on 25 January 1982.", "On 6 April 1982, the Federal Court of Justice (Bundesgerichtshof) set the judgment aside and remitted the case for retrial by a different criminal chamber of the Heilbronn Regional Court. It found that the Regional Court had not heard evidence from a parish priest whom, according to the defence, Mrs. K had told that she had consented to sexual intercourse with the applicant. The Federal Court held that despite the applicant’s acquittal on the rape charge, the witness should have been heard because his evidence might have put Mrs. K’s credibility in doubt in respect of all the charges. 15. On 5 August 1982, the priest informed the police that he could not give evidence unless Mrs. K released him from his obligation of professional confidentiality.", "Mrs. K, who had left her husband in the meantime, refused to do this. 16. On 1 September 1982, the public prosecutor’s office applied for the proceedings to be stayed under Article 154 of the Code of Criminal Procedure (see paragraph 19 below), as the sentence Mr. Englert could expect was almost negligible in comparison with the one passed on him in August 1981 (see paragraph 11 above). Having been invited to make any comments he might have, the defence counsel assigned by the court, Mr. Wingerter, informed the Regional Court on 9 September that he could agree on the defendant’s behalf to Mr. Englert’s bearing his own necessary costs and expenses (notwendige Auslagen) but that his client had no intention of forgoing compensation for his detention on remand. 17.", "On 13 September 1982, the Regional Court stayed the proceedings under Article 154 § 2 of the Code of Criminal Procedure; it ordered that the costs of the proceedings - but not Mr. Englert’s necessary costs and expenses - should be borne by the Treasury, and it refused to award the applicant any compensation in respect of his arrest on 24 February 1981 and of his detention on remand from 25 February 1981 to 12 October 1982. The reasons for the decision (Beschluss) included the following: \"... The costs of the proceedings shall be borne by the Treasury, pursuant to Articles 464 and 467 § 1 of the Code of Criminal Procedure, but the court will not order the Treasury to pay the defendant’s necessary costs and expenses. Counsel for Mr. Englert stated on his client’s behalf that he - Mr. Englert - agreed to bear these. Moreover, it would have been fair, having regard to all the circumstances of the case, to order the person convicted to pay his own necessary costs and expenses.", "The same reasons are relevant here as justify the refusal of compensation for the time spent in detention on remand. Mr. Englert made known through his counsel that he was not prepared to forgo [such] compensation ... He cannot, however, claim compensation for the time he spent in detention on remand in the instant case. In the light of the course of the trial so far, the circumstances rebutting the presumption of innocence are, in the view of the Chamber, so overwhelming that a conviction is clearly more likely than an acquittal (Bei Würdigung des bisherigen Prozessgeschehens überwiegen nach Ansicht der Kammer die Umstände, welche die Unschuldsvermutung entkräften, derart, dass eine Verurteilung deutlich wahrscheinlicher ist als ein Freispruch). Furthermore, Mr. Englert - even if he were acquitted - could not be compensated for his detention, since it was his own actions that gave rise to the strong suspicion that he had committed an offence of extortion with menaces.", "On the morning of 24 February 1981, [he] stated that Mrs. K had given him only DM 100, which he had spent while shopping that morning in Heilbronn, except for DM 20 that were found at his home. After Mrs. K had said, when a statement was taken from her on the afternoon of 24 February, that Mr. Englert had put the DM 150 he had extorted from her into his swimming costume, [he] was searched, and a DM 100 note was indeed found in his swimming costume, as [she] had said. Not until 22 April 1981, when the investigating judge (Haftrichter) questioned him, did Mr. Englert explain how he came to have a DM 100 note belonging, as he admitted, to Mrs. K. The reasons why that explanation is unconvincing were set out in detail by the 3rd Criminal Chamber in its judgment of 2 November 1981. Even if the version offered by Mr. Englert was true, however, it has to be said against him that he himself prompted the criminal proceedings by his grossly negligent (grob fahrlässig) behaviour, for he failed to consider the obvious and elementary fact that he could be proved to have lied about the money in his possession and that this would provide evidence of the credibility of Mrs. K’s statements and his own lack of credibility. Compensation must therefore be refused him, in accordance with section 5(2) of the Criminal Proceedings (Compensation) Act (Gesetz über die Entschädigung für Strafverfolgungsmassnahmen).\"", "The Regional Court pointed out, lastly, that as no appeal lay (Unanfechtbarkeit) against the order staying the proceedings, the decision on costs and on compensation for detention on remand was likewise final. 18. On 20 September 1982, the applicant appealed against the refusal to award him compensation for his detention on remand. His lawyer’s pleadings consisted of a single sentence: \"On behalf of the defendant, I appeal against point III of the ... decision of 13 September 1982.\" The Stuttgart Court of Appeal (Oberlandesgericht) declared this appeal (Beschwerde) inadmissible on 30 September.", "It held, inter alia : \"The ... application is directed solely against the refusal to award compensation. No appeal is provided for in law (nicht statthaft) and the application is therefore inadmissible. The provisional stay of the proceedings under Article 154 § 2 of the Code of Criminal Procedure is a decision which terminates the proceedings, since it was taken on account of a penalty or measure imposed in respect of another offence and which had already become final. In such circumstances, the proceedings can only be reopened, under Article 154 § 3 of the Code of Criminal Procedure, if they have not become time-barred and if the penalty or measure which gave rise to the stay has since been lifted. The provisional stay amounts here to a final ruling putting an end to the proceedings.", "It is thus a decision which, under Article 464 §§ 1 and 2 of the Code of Criminal Procedure, requires another one to be taken as to the costs and expenses and, on to the same criteria, ... as to any compensation due in respect of the criminal prosecution brought ... The decision delivered pursuant to Article 154 § 2 of the Code of Criminal Procedure is unappealable. So too are the ancillary decisions (Nebenentscheidungen) delivered at the same time as the principal decision ... These include not only the one as to costs and expenses but also the one as to compensation in respect of the criminal prosecution ... The decision delivered by the Regional Court with regard to compensation is thus not appealable ...\" II.", "RELEVANT DOMESTIC LAW 19. Article 154 of the Code of Criminal Procedure, on which the Heilbronn Regional Court based its decision of 13 December 1982, provides: \"1. The public prosecutor may decide not to prosecute (1) where the penalty or the corrective or preventive measure to be expected if a conviction is secured is almost negligible in comparison with a penalty or corrective or preventive measure imposed on the defendant - or which he must expect to be imposed - for another offence ... ... 2. Once proceedings have been instituted, the court may provisionally stay them at any stage on an application by the public prosecutor. ....\" 20.", "By the terms of Article 464 of the Code of Criminal Procedure, any judgment, order of summary punishment or decision terminating a set of proceedings must determine who is to pay the costs of the proceedings (paragraph 1); the judgment or decision in which the proceedings culminate shall state who is to bear the necessary costs and expenses (paragraph 2). Article 467 of the Code of Criminal Procedure provides: \"1. If the defendant (Angeschuldigter) is acquitted or if committal for trial (Hauptverfahren) is refused or if the proceedings against him are discontinued, the costs of the proceedings and the defendant’s necessary costs and expenses shall be borne by the Treasury. ... 3. ...", "The court may decline to award the defendant’s necessary costs and expenses against the Treasury where the defendant (1) has brought about the proceedings (Erhebung der öffentlichen Klage) by incriminating himself in vital matters through statements which were inaccurate or contrary to subsequent statements by him or by withholding vital exonerating information, even though he had formally replied to the charge (Beschuldigung) .... ... 4. If the court stays the proceedings in pursuance of a provision which empowers it to do so, it may decide not to order the Treasury to bear the defendant’s necessary costs and expenses. ...\" Inasmuch as the law does not make the reimbursement of necessary costs and expenses mandatory, the courts decide the issue on an equitable basis and have a degree of discretion in the matter. 21. By section 2(1) of the Criminal Proceedings (Compensation) Act of 8 March 1971, any person who has suffered prejudice by reason of having been detained on remand shall be indemnified by the Treasury in the event of his being acquitted or if the proceedings brought against him are discontinued.", "This rule is, however, subject to certain exceptions, including the one laid down in section 5(2) of the Act, which provides: \"Compensation shall not be payable ... where and in so far as the defendant brought about the criminal proceedings deliberately or through gross negligence. Compensation shall not be precluded by reason only of the fact that the defendant merely did not respond to the charge or charges or that he failed to avail himself of a remedy.\" By section 8 of the same Act, the competent court shall give a ruling on indemnification in the judgment or the decision terminating proceedings. 22. The scope of the principle of the presumption of innocence in the context of discontinuance of criminal proceedings has recently been clarified by the Federal Constitutional Court.", "By a judgment (Beschluss) delivered on 26 March 1987, the Federal Constitutional Court quashed, as contravening the principle, two decisions by district courts and one decision by a regional court whereby the courts, having held the guilt of the defendants to be insignificant (gering), had stayed the private prosecutions brought against them but had awarded the costs of the proceedings against the defendants, including the costs and expenses of the complainants (cases 2 Bvr 589/79, 2 Bvr 740/81 and 2 Bvr 284/85, Europäische Grundrechte-Zeitschrift 1987, pp. 203-209). The Constitutional Court held it to be inconsistent with the presumption of innocence to speak in the reasons given for a discontinuance decision of a defendant’s guilt or to base an order as to costs and expenses on the supposition (Annahme) that a defendant has been guilty of an offence if the trial has not reached the stage at which the verdict can be given (Schuldspruchreife). It pointed out that the principle of the presumption of innocence derived from the principle of the rule of law, and it also referred to Article 6 § 2 (art. 6-2) of the Convention.", "The Convention did not have the status of constitutional law in the Federal Republic, but regard should be had to it and to the case-law of the European Court of Human Rights in interpreting the principles and fundamental rights enshrined in the Basic Law (Grundgesetz). Reaffirming its case-law, the Constitutional Court reiterated that, by virtue of the principle of the presumption of innocence, no measures amounting in effect to a penalty may be taken against a defendant without his guilt having been established beforehand at a proper trial and no defendant may be treated as guilty. The Court added that this principle requires that guilt be proved according to law before it can be held against the person concerned. A finding of guilt will accordingly not be legitimate for this purpose unless it is pronounced at the close of a trial which has reached the stage at which a verdict can be given. Citing the Minelli judgment of 25 March 1983 (Series A no.", "62), the Constitutional Court ruled that a decision discontinuing criminal proceedings may offend the presumption of innocence if it contains in its reasoning a finding of the defendant’s guilt without that guilt having been proved according to law. On the other hand, nothing precluded a court from making findings in such a decision as to the defendant’s guilt and ordering him to pay the necessary costs and expenses of the complainants as well as the costs of the proceedings if it had held a hearing enabling it to reach a verdict (Entscheidungsreife). On the basis of these considerations, the Constitutional Court quashed three of the five decisions challenged but dismissed the application in the first of the three cases concerned, as the defence had made the closing address after a trial. PROCEEDINGS BEFORE THE COMMISSION 23. In his application of 13 October 1982 to the Commission (no.", "10282/83), Mr. Englert complained of the reasons given by the Heilbronn Regional Court in its decision of 13 September 1982, which he alleged were incompatible with Article 6 § 2 (art. 6-2) of the Convention. 24. The Commission declared the application admissible on 12 December 1984. In its report of 9 October 1985 (made under Article 31) (art.", "31), the Commission expressed the unanimous opinion that there had been a breach of Article 6 § 2 (art. 6-2). The full text of its opinion is reproduced as an annex to the present judgment. FINAL SUBMISSIONS BY THOSE APPEARING BEFORE THE COURT 25. In their memorial of 17 November 1986, the Government requested the Court to hold \"1.", "... that by reason of the failure to exhaust domestic remedies, the Court is unable to take cognisance of the merits of the case, 2. alternatively, ... that there has been no violation of Article 6 § 2 (art. 6-2) of the Convention.\" They reiterated their submissions at the hearing. Counsel for Mr. Englert asked the Court at the hearing to give judgment for his client. AS TO THE LAW 26.", "Mr. Englert complained of the reasons given for the decision of the Heilbronn Regional Court, which on 13 September 1982 had refused to order reimbursement of his necessary costs and expenses and to award him any compensation in respect of his detention on remand. He claimed that they offended the principle of the presumption of innocence enshrined in Article 6 § 2 (art. 6-2) of the Convention, which provides: \"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.\" The Government submitted that the application was inadmissible by reason of non-exhaustion of domestic remedies and, in the alternative, that there had been no breach of Article 6 § 2 (art. 6-2).", "The Commission shared the view of the applicant. I. GOVERNMENT’S PRELIMINARY OBJECTION 27. The Government claimed that the applicant had not, as required under Article 26 (art. 26) of the Convention, exhausted the remedies available to him under German law, as he had neither brought his complaint about the failure to reimburse his necessary costs and expenses before the Stuttgart Court of Appeal nor applied to the Federal Constitutional Court. 28.", "Having raised this objection before the Commission at the stage of the initial examination of admissibility and again subsequently, the Government are not estopped from pleading it before the Court (see, as the most recent authority, the Bozano judgment of 18 December 1986, Series A no. 111, p. 19, § 44). A. First ground of the objection (Stuttgart Court of Appeal) 29. The applicant’s appeal to the Stuttgart Court of Appeal was restricted to the issue of compensation for detention on remand.", "However, in dismissing it (on the ground that no appeal was provided for in law and that it was thus inadmissible), the Court of Appeal stated that the finality of the decision that put an end to the proceedings extended also to the ancillary decisions, which included not only the one as to costs and expenses but also the one as to compensation in respect of the criminal prosecution (see paragraph 18 above). Above all, the Regional Court itself had pointed out that its decision as to costs and to compensation for detention on remand was final because the order staying the proceedings was unappealable (see paragraph 17 above). 30. The Government, however, emphasised that the German appellate courts did not always give the same answer to the question whether, in the event of proceedings being discontinued, an appeal lay against an order as to the apportionment of costs. The applicant, they maintained, should consequently have challenged in the Stuttgart Court of Appeal the refusal to order reimbursement of his necessary costs and expenses.", "It must be noted in this connection that the appellate court which in principle had jurisdiction in the instant case was indeed the Stuttgart Court of Appeal. Although that Court had indeed allowed an appeal in 1969 against an order as to costs after proceedings had been discontinued, it departed from that precedent in a judgment of 22 February 1974 (Die Justiz 1974, p. 228), as the Government acknowledged. Admittedly these judgments were given by two different chambers of the Court of Appeal, but the Government did not produce any decision upholding the 1969 one subsequent to the judgment of 22 February 1974. That being so, the generally recognised rules of international law which are referred to in Article 26 (art. 26) (see the Guzzardi judgment of 6 November 1980, Series A no.", "39, p. 26, § 72) do not require the applicant to have raised the matter in the Court of Appeal. 31. The Government further maintained that in the Court of Appeal the applicant should have pleaded Article 6 § 2 (art. 6-2), which is directly applicable in German law. In failing to do so, he had not given the court an opportunity to determine whether \"exceptionally, ... the separate contestation of the decision on expenses could be regarded as admissible\".", "Article 26 (art. 26) requires of applicants that they should - at least in substance - have raised before the domestic courts the complaint they subsequently submit to the Convention institutions (see the Glasenapp judgment of 28 August 1986, Series A no. 104, p. 24, § 44). Mr. Englert’s appeal, however, was limited to Mr. Wingerter’s single sentence: \"On behalf of the defendant, I appeal against point III of the ... decision of 13 September 1982\" (see paragraph 18 above). It contained no reasons and gave no hint that the applicant meant to challenge the Heilbronn Regional Court’s decision on the ground that it contravened the principle of the presumption of innocence.", "However, the Court does not need to determine whether in the instant case this was sufficient for the purposes of Article 26 (art. 26) of the Convention in view of the relevant rules of German law, because in order for the applicant to be able to complain of a breach of Article 6 § 2 (art. 6-2) it was first necessary that a remedy should be available - and it has just been pointed out in the present judgment that this was precisely what was lacking (see paragraphs 29-30 above). B. Second ground of the objection (Federal Constitutional Court) 32.", "Mr. Englert did not apply to the Federal Constitutional Court in order to challenge the Heilbronn Regional Court’s decision on the ground that it offended the presumption of innocence; such an application seemed to him to be bound to fail. The only remedies that Article 26 (art. 26) of the Convention requires to be exhausted are those that relate to the breaches alleged and that are available and sufficient (see the de Jong, Baljet and van den Brink judgment of 22 May 1984, Series A no. 77, p. 19, § 39). While it was possible for the applicant to bring his complaint before the Constitutional Court (under Article 93 § 1, sub-paragraph 4, (a), of the Basic Law), such a remedy would not have been effective in the circumstances of the case.", "As the Commission pointed out, the Government did not cite any decisions by the Constitutional Court indicating that the applicant could have challenged the reasons given for the impugned decision with some prospect of success. On the contrary, as recently as 2 February 1982 the Constitutional Court had held such a complaint - lodged by the applicant’s counsel in another case - to be inadmissible (Lutz case, judgment 2 BvR 1312/81). Admittedly what was at issue in that case was a stay of proceedings instituted in respect of a \"regulatory offence\"; but the Constitutional Court, which mentioned Article 6 § 2 (art. 6-2) of the Convention among other things, did not base its dismissal of the complaint on the argument that the presumption of innocence was not applicable. Two judgments given by the Constitutional Court more recently and produced by those appearing before this Court (2 BvR 790/84 of 20 July 1984 and 2 BvR 889/86 of 29 August 1986) are to the same effect as the one of 2 February 1982.", "The Commission, moreover, dealt with the same issue in the Liebig case. On 15 July 1976, it rejected a plea of non-exhaustion of domestic remedies (the applicant had not lodged a constitutional complaint) in view of the Constitutional Court’s case-law on the matter under consideration (see Decisions and Reports, no. 5, pp. 65 and 67). Lastly, the Constitutional Court’s judgment of 26 March 1987, produced by the Government on 13 May 1987, does not support their argument either: it relates to the discontinuance of a private prosecution on account of the \"slight degree of guilt\" of the persons concerned, who were ordered to pay the costs of the proceedings and the necessary costs and expenses of the complainants (see paragraph 22 above).", "It is thus very clearly distinguishable from the instant case, being comparable rather to the situation the Court had to consider in the Minelli case (see the judgment of 25 March 1983, Series A no. 62). C. Conclusion 33. In short, the objection pleading non-exhaustion of domestic remedies is unfounded. II.", "ALLEGED VIOLATION OF ARTICLE 6 § 2 (art. 6-2) 34. In Mr. Englert’s submission, the Heilbronn Regional Court’s decision of 13 September 1982 manifestly contained a finding of guilt and thus amounted to a \"conviction in disguise\". In the Government’s submission, the decision terminated the prosecution in the interests of avoiding unnecessary proceedings; that being so, they claimed that there was no longer a person \"charged with a criminal offence\" and an essential condition of the applicability of Article 6 § 2 (art. 6-2) accordingly no longer existed.", "Furthermore, the decision did not amount to a penalty or a measure which in its effects could be equated with a penalty. The reasons given for it did not imply any assessment of the defendant’s guilt: having regard to the state of the proceedings, the Regional Court was describing a \"state of suspicion\" with the sole aim of reaching a fair decision on the two issues in question. Moreover, it had refused the applicant’s request on the ground that his conduct had given rise to suspicions earlier which had prompted his prosecution and his detention on remand; the sentence complained of by Mr. Englert had no \"autonomous meaning\" and had to be understood in this general context. Besides, where a prosecution was discontinued, the Convention did not oblige the Contracting States to indemnify a person \"charged with a criminal offence\" for any detriment he might have suffered. The impugned decision could not be contrary to the Convention on account of its supporting reasoning if its operative provisions - which alone acquired final, binding effect - were in conformity with it.", "The Commission considered, like the applicant, that there had been a breach of Article 6 § 2 (art. 6-2), as the reasoning complained of could not be understood as describing merely a \"state of suspicion\". 35. On 13 September 1982, the Heilbronn Regional Court stayed the proceedings against Mr. Englert on the ground that the sentence he could expect was of no account in comparison with the one he was serving at the time in respect of other offences (Article 154 § 2 of the Code of Criminal Procedure - see paragraphs 17 and 19 above). As required by Articles 464 and 467 § 1 of the Code of Criminal Procedure and sections 5(2) and 8 of the Criminal Proceedings (Compensation) Act, the same decision also settled the issue of costs and the question of awarding the applicant compensation for his detention on remand (see paragraphs 17, 20 and 21 above).", "The apportionment of costs and the ruling on compensation were consequences and necessary concomitants of the stay of proceedings (Article 464 of the Code of Criminal Procedure and section 8 of the Criminal Proceedings (Compensation) Act - see paragraphs 20-21 above; see also, mutatis mutandis, the Minelli judgment previously cited, Series A no. 62, p. 16, § 30). The operative provisions of the decision clearly confirmed this: after an initial ruling that the proceedings were to be stayed, the other two dealt with the costs of the proceedings (including the applicant’s own necessary costs and expenses) and compensation for his detention on remand. Consequently, the applicant can in principle rely on Article 6 § 2 (art. 6-2) of the Convention as regards the impugned decision.", "36. The Court points out, however, like the Commission and the Government, that neither Article 6 § 2 (art. 6-2) nor any other provision of the Convention gives a person \"charged with a criminal offence\" a right to reimbursement of his costs or a right to compensation for lawful detention on remand where proceedings taken against him are discontinued. The double refusal complained of by Mr. Englert accordingly does not in itself offend the presumption of innocence (see, mutatis mutandis, the Minelli judgment previously cited, p. 17, §§ 34-35). Counsel for the applicant moreover stated that his client was not challenging the Regional Court’s decision as such but solely the reasons given for it.", "37. Nevertheless, a decision whereby compensation for detention on remand and reimbursement of an accused’s necessary costs and expenses are refused following termination of proceedings may raise an issue under Article 6 § 2 (art. 6-2) if supporting reasoning which cannot be dissociated from the operative provisions (see the same judgment, p. 18, § 38) amounts in substance to a determination of the accused’s guilt without his having previously been proved guilty according to law and, in particular, without his having had an opportunity to exercise the rights of the defence (ibid., § 37). 38. The double refusal complained of by Mr. Englert was based on Article 467 § 4 of the Code of Criminal Procedure and section 5(2) of the Criminal Proceedings (Compensation) Act (see paragraphs 20-21 above).", "These provisions set forth exceptions to the rule in German law that, where criminal proceedings are discontinued, the Treasury must bear the necessary costs and expenses of the defendant (Article 467 § 1 of the same Code) and pay him compensation for any detention on remand (section 2 of the same Act). Applying the provisions means that the relevant courts, which decide the matter on an equitable basis and have a degree of discretion, are under an obligation to take into account, inter alia, the state of the proceedings when brought to a close, the conduct of the defendant and the weight of the suspicion still falling on him. 39. The Heilbronn Regional Court refused to award Mr. Englert’s necessary costs and expenses against the Treasury. Mr. Englert’s counsel had indicated that his client was willing to pay his own costs; furthermore, the Regional Court stated, \"it would have been fair, having regard to all the circumstances of the case, to order [him to bear them]\" - for \"the same reasons ... as justify the refusal of compensation for the time spent in detention on remand\" (see paragraph 17 above).", "In this connection, the Regional Court found that \"in the light of the course of the trial so far, the circumstances rebutting the presumption of innocence are ... so overwhelming that a conviction is clearly more likely than an acquittal\". Lastly, \"it was [the defendant’s] own actions that gave rise to the strong suspicion that he had committed a crime of extortion with menaces\" (ibid.). The court thereby meant to indicate, as it had to for the purposes of the decision to be taken, that there were still strong suspicions concerning Mr. Englert, who by his own behaviour had caused the criminal proceedings to be taken against him. Even if the terms used were ambiguous and unsatisfactory, the court confined itself in substance to noting the existence of \"reasonable suspicion\" that the defendant had \"committed an offence\" (Article 5 § 1 (c) of the Convention) (art. 5-1-c).", "On the basis of the evidence, the decision described a \"state of suspicion\" and did not contain any finding of guilt. In this respect it contrasts with the decisions the Court considered in the Minelli case (see the judgment previously cited, Series A no. 62, pp. 8-10, §§ 12-14, and pp. 11-12, § 16) and also with the decisions set aside by the Federal Constitutional Court on 26 March 1987 (see paragraph 22 above).", "40. Moreover, the refusal to order reimbursement of Mr. Englert’s necessary costs and expenses and to award him any compensation in respect of his detention on remand does not amount to a penalty or a measure that can be equated with a penalty. In this respect too, the instant case very clearly differs from the Minelli case, as also from the cases decided by the Federal Constitutional Court on 26 March 1987 (see paragraph 22 above). The Swiss courts had directed that Mr. Minelli should bear part of the costs of the proceedings and had ordered him to pay the private prosecutors compensation in respect of their expenses (see the judgment previously cited, ibid. ), thus treating him as guilty.", "Nothing comparable occurred in the instant case : Mr. Englert did not have to bear the costs of the proceedings but only his own costs and expenses, and he was not awarded any compensation for his detention on remand. The competent court, acting on an equitable basis and having regard, among other things, to the strong suspicions which seemed to it to exist concerning him, did not impose any sanction on him but merely refused to order that the said costs and expenses or any compensation should be paid out of public funds. And, as the Court has already pointed out, the Convention - more particularly Article 6 § 2 (art. 6-2) - does not oblige the Contracting States, where a prosecution has been discontinued, to indemnify a person \"charged with a criminal offence\" for any detriment he may have suffered. 41.", "In conclusion, the Heilbronn Regional Court’s decision of 13 September 1982 did not offend the presumption of innocence guaranteed to the applicant under Article 6 § 2 (art. 6-2). FOR THESE REASONS, THE COURT 1. Rejects unanimously the objection pleading non-exhaustion of domestic remedies; 2. Holds by sixteen votes to one that there has been no breach of Article 6 § 2 (art.", "6-2). Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 25 August 1987. Rolv RYSSDAL President Marc-André EISSEN Registrar In accordance with Article 51 § 2 (art. 51-2) of the Convention and Rule 52 § 2 of the Rules of Court, the dissenting opinion of Mr. Cremona is annexed to this judgment. R. R. M.-A.", "E. DISSENTING OPINION OF JUDGE CREMONA Whilst agreeing with the judgment as to the rejection of the Government’s preliminary objection, I regret I cannot do the same with regard to the conclusion that there was no violation of Article 6 § 2 (art. 6-2) of the Convention in the instant case. Instead, I concur with the unanimous Commission that there was. In order to clear the ground at once of certain matters, I would premise the following: 1. Firstly, I concur with the judgment that neither Article 6 § 2 (art.", "6-2) nor any other provision of the Convention gives a person charged with a criminal offence a right to reimbursement of his costs and expenses or a right to compensation for his lawful detention on remand where proceedings taken against him are discontinued, and that the domestic court’s refusal to order such reimbursement or award such compensation does not therefore in itself offend the presumption of innocence (paragraph 36 of the judgment). 2. Secondly, I also concur with the judgment that a decision refusing such reimbursement or compensation following a stay of proceedings may, however, raise an issue under Article 6 § 2 (art. 6-2) if supporting reasoning which cannot be dissociated from the operative provisions amounts in substance to a determination (constat) of the accused’s guilt (which I understand in the sense of an assessment of his guilt) without his having previously been proved guilty according to law and in particular without his having had an opportunity to exercise his defence rights (paragraph 37 of the judgment). Having premised that, I consider that the conclusion of non-violation in this judgment rests essentially on two points: (a) that the contested judicial pronouncements of the domestic court described only \"a state of suspicion\" and did not involve a finding of guilt (paragraph 39 of the judgment), and (b) that the court’s refusal to order reimbursement of the accused’s necessary costs and expenses and to award any compensation in respect of his detention on remand did not amount to a penalty or a measure which could be equated with a penalty (paragraph 40 of the judgment).", "As to the first point, clearly an element of suspicion is inherent in the very fact that a person is criminally charged, but that is of course inseparable from the essential machinery of the criminal trial itself. In fact, among the cases where a person may be deprived of his liberty, provided this is done in accordance with a procedure prescribed by law, the Convention itself mentions \"the lawful arrest and detention of a person effected for the purpose of bringing him before the competent authority on reasonable suspicion of having committed an offence\" (Article 5 § 1 (c)) (art. 5-1-c). In the present case, however, the clear and explicit wording used by the court in its judicial decision concerning the applicant, who was charged with a criminal offence, goes much further than that. In fact, the decision of the Regional Court of Heilbronn, in staying the proceedings against the applicant and concurrently refusing to order reimbursement of his costs and expenses and indemnification in respect of his detention on remand under the applicable domestic legislation, stated, in terms which, unlike my colleagues, I find unambiguous, that \"in the light of the course of the trial so far, the circumstances rebutting the presumption of innocence are ... so overwhelming that a conviction is clearly more likely than an acquittal\".", "Here the wording used, quite clear in itself, not only speaks of a probable conviction which is also represented as clear (and of course a conviction necessarily postulates guilt), but also actually refers to the presumption of innocence, to conclude in express terms that it is rebutted by overwhelming circumstances, which are obviously taken as proved. In actual fact, therefore, and indeed in express terms, we have here a judicially declared rebuttal of the presumption of innocence in criminal proceedings which did not end up in a conviction but were in fact discontinued. Thus, in my view, what happened in the instant case is the materialisation of the situation envisaged in paragraph 37 of the judgment (see above). Indeed, we have here a judicial decision discontinuing proceedings for an offence and concurrently refusing reimbursement of the accused’s costs and expenses and indemnification in respect of his detention on remand, the supporting reasoning of which (which cannot be dissociated from the operative provisions) amounts in substance to a determination (constat) of the accused’s guilt (which, as already stated, I understand in the sense of an assessment thereof) without his having been previously proved guilty according to law and in particular without his having had an opportunity to exercise his defence rights. Like the unanimous Commission, I find that the above reasoning of the aforesaid court is perfectly capable of being understood as meaning that the accused was in fact guilty of a criminal offence.", "Indeed this is the ordinary meaning conveyed by the wording actually used, and when it comes to such a basic principle as that of the presumption of innocence, what really matters is not the possible intent with which certain words were uttered in a judicial decision concerning the accused, but the actual meaning of those words to the public at large. What is decisive is that at the end of the day one is left with the impression that the court did consider that the applicant was in fact guilty. The net result is in my view a surrogate conviction of the accused without the benefit of the protection afforded by Article 6 § 2 (art. 6-2). Incidentally, the offending wording at the centre of this case is not substantially dissimilar from that which was at the centre of the Minelli case, in which this Court did find a violation of that provision.", "An attempt has been made to distinguish the two cases on the basis of a \"punishment content\", and this brings me to the second point on which the finding of non-violation in the present judgment relies. As to this question of the absence of a penalty or a measure which can be equated with one, I would say that of course the application of such penalty or measure would have reinforced my conclusion, but absence thereof in no way invalidates it. The principle of the presumption of innocence can be violated independently of the application of such penalty or measure. That presumption accompanies a person charged with a criminal offence throughout the whole trial until conviction. Indeed this cardinal principle of the modern criminal trial would have been lamentably improvident if its scope had to be confined to the non-application of a penalty or, to use again the wording of the judgment, a measure which can be equated with one.", "Punishment is usually only the last stage in the unfolding of a criminal trial and modern criminal legislation also envisages convictions without punishment or a measure which can be equated with it (cf. for instance in the British system \"absolute discharge\"). What is decisive for the present purpose is not the non-application of punishment, but the fact of a judicial assessment of the applicant’s guilt, and in the instant case it is this that the wording of the judicial decision in question in fact entails. I therefore find a violation of Article 6 § 2 (art. 6-2) of the Convention.", "[*] Note by the Registrar: The case is numbered 9/1986/107/155. The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation." ]
[ "THIRD SECTION CASE OF GILLISSEN v. THE NETHERLANDS (Application no. 39966/09) JUDGMENT STRASBOURG 15 March 2016 FINAL 15/06/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gillissen v. the Netherlands, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Helena Jäderblom,George Nicolaou,Johannes Silvis,Branko Lubarda,Pere Pastor Vilanova,Alena Poláčková, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 23 February 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "39966/09) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Netherlands national, Mr Jozef Johan Anna Gillissen (“the applicant”), on 27 July 2009. 2. The applicant was represented by Mr F. Sijbers, a lawyer practising in The Hague. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.", "3. The applicant alleged a violation of Article 6 § 1 of the Convention in that he had been denied an opportunity to proffer witness evidence. 4. On 16 September 2014 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE A. Factual background 5. From 1996 onwards the applicant, a former police officer discharged for health reasons, enjoyed disability benefits under the Labour Disablement Insurance Act (Wet op de Arbeidsongeschiktheidsverzekering – “WAO”). He was allowed to earn by his own means a sum not exceeding 60,000 Netherlands guilders (NLG) without losing his entitlement under the WAO. This he did by running a one-man business as a trainer teaching people how to deal with stress.", "6. The applicant states that he entered into an arrangement with an official of the competent social-security authority (at that time called Cadans), one Mr G., which was intended to make possible his transition into independent self-employment without the need for additional social security benefits. He alleges that Mr G. gave him the assurance that he would be permitted for a period of five years to earn income over and above the sum of NLG 60,000, the purpose being to allow him to create cash reserves in case his health should deteriorate further. The agreement had been witnessed by another official, one Mr S. 7. In February 1999 the applicant announced his intention to continue his business in the form of a limited liability company (besloten vennootschap met beperkte aansprakelijkheid).", "He wrote to the social-security authority (re-named Social Security Implementing Institution for Government and Education (Uitvoeringsinstelling sociale zekerheid voor overheid en onderwijs; “USZO”)) asking it to confirm that this change would not affect the arrangements made during the time when he was self-employed. In the ensuing domestic proceedings the social security authorities submitted one or more letters which they stated had been sent in response, including one dated 12 July 1999 denying the applicant the confirmation sought. The applicant states that he never received any reply. 8. In September 1999 the applicant’s business was transformed into a limited liability company.", "The shares were held by the applicant’s wife. The applicant was its managing director and its only employee; he entered its employ on 1 October 1999. B. The fraud investigation 9. On 3 September 2003 Mr D., an official of the social-security authority (by this time re-named Employee Insurances Schemes Implementing Body (Uitvoeringsinstituut werknemersverzekeringen; “UWV”)) submitted an extensive investigation report implicating the applicant and his wife in suspected social-security fraud.", "According to the report, the applicant had defrauded the social-security system by declaring only his own income as an employee of the limited liability company but not the company’s profits, which were declared as taxable income by his wife. The report included the following passage: “It was arranged in addition that only what Gillissen earned in self-employment after his discharge would be considered his residual earning capacity (resterende verdiencapaciteit). The labour expert (arbeidsdeskundige) Mr G. has stated that he discussed this extensively with Gillissen, who could agree to that position and who indicated during the conversation that in the coming years more growth was to be expected and that it was his intention to make his own living in self-employment with a corresponding gradual reduction to zero (afbouw) of the WAO benefits.” C. Administrative proceedings 1. Objection proceedings 10. On 28 January 2004 UWV gave a decision reducing the applicant’s WAO benefits with retroactive effect.", "On 3 March 2004 UWV gave a second decision ordering the applicant to repay the excess. 11. The applicant lodged objections (bezwaar) against both decisions. As relevant to the case before the Court, the applicant argued that as from 1999 he had kept the competent authorities informed of developments as they occurred, withholding no information, and invoked the arrangement which he had agreed with Mr G. He named Mr S. as a witness. 12.", "Having held a hearing on 11 January 2006, UWV gave a decision on 31 January 2006 dismissing the applicant’s objections. It found that the applicant could reasonably have been aware that the total of his additional income – the sum of his salary and the profits of the limited liability company – was too high for him to be entitled to the full amount of his social-security benefits. The alleged arrangement to the contrary was not reflected in the case file, and in any case, whatever statements had been made (assuming that any had been made at all) had been made by a person lacking the requisite competence and could not bind UWV. 2. Proceedings before the Regional Court 13.", "The applicant lodged an appeal (beroep) with the Roermond Regional Court (rechtbank). As relevant to the case before the Court, he complained about UWV’s failure to question Mr G. and Mr S., which in his submission reflected a lack of due care affecting the quality of the investigation. He also submitted that Mr G. had acted within his competence in making the agreement alleged. 14. Having held a hearing on 30 August 2006, the Regional Court gave judgment on 21 November 2006 dismissing the applicant’s appeal.", "Its reasoning included the following: “The [applicant] has also stated that [UWV] officials had agreed with him that he would be permitted to earn unlimited income in addition to his WAO benefits for a period of five years. The Regional Court has found no evidence of such an agreement in the documents available, nor is there any other reason to consider it plausible. On the contrary, it appears from the labour expert Mr G.’s report of 26 October 1998 that the [applicant’s] income did in fact have to be taken into account. In addition, [UWV] answered the [applicant]’s questions about the possibilities of obtaining income from work (additional income) in a letter of 12 July 1999, which letter incidentally the [applicant] claims not to have received. This letter states in no uncertain terms that [UWV] must always be informed immediately of any taking up of work and generation of income.", "But even without this letter it ought in reason to have been clear to the [applicant] that income can have an effect on the benefits. This ground of appeal therefore also fails.” 3. Proceedings before the Central Appeals Tribunal 15. The applicant lodged a further appeal (hoger beroep) with the Central Appeals Tribunal (Centrale Raad van Beroep). As relevant to the case before the Court, he again complained in his written submissions about UWV’s failure to hear Mr G. and Mr S. as witnesses.", "He asked for them both to be heard as a witness in order to prove the existence of the agreement. He also prayed in aid his acquittal by the ‘s-Hertogenbosch Court of Appeal, which had been given in the meantime (see paragraph 22 below). He did not, however, himself summon Mr G. and Mr S. as witnesses by registered letter or bailiff’s writ. 16. The Central Appeals Tribunal held a hearing on 8 August 2008.", "The applicant did not bring Mr G. and Mr S. along but restated his request to have them heard as witnesses. The Central Appeals Tribunal decided to reopen its examination of the facts of the case in order to put an additional question to UWV. UWV replied to the Central Appeals Tribunal’s question in writing. The applicant and UWV waived the right to a further hearing. 17.", "The Central Appeals Tribunal gave judgment on 30 January 2009 dismissing the further appeal without having heard any witnesses. Its reasoning included the following: “The agreement relied on by the [applicant], which is denied by UWV, does not appear from the case file and no other credible case for its existence has been made out by the [applicant].” 4. Factual information submitted by the applicant 18. In response to a question by the Court, the applicant acknowledged that he had made no attempt to summon Mr G. and Mr S. himself or bring them along to the hearing of either the Regional Court or the Central Appeals Tribunal, as permitted by section 8:60(4) of the General Administrative Law Act (Algemene wet bestuursrecht; see paragraph 25 below). D. Criminal proceedings 19.", "In parallel with the administrative proceedings outlined above, the applicant was prosecuted for social security fraud and forgery. 20. On 20 January 2006 the single-judge chamber of the criminal division (politierechter) of the Roermond Regional Court convicted the applicant. 21. The applicant appealed to the ‘s-Hertogenbosch Court of Appeal (gerechtshof).", "22. Having held a hearing on 4 May 2007, the Court of Appeal gave judgment on 16 May 2007 acquitting the applicant. Its reasoning included the following: “The suspect states that he drew up a common plan with Mr G. of USZO in 1998 with a view to the gradual reduction to zero of the WAO benefits over five years. The applicant further states that he made arrangements with that Mr G. concerning the amount of additional income he would be allowed to earn in the said five-year period. The suspect understood these arrangements in the sense that he would in principle be allowed to earn unlimited additional income without losing his benefits.", "Prompted by the transformation of the one-man business into one or more limited liability companies the suspect sought confirmation from UWV that it would not matter for the arrangements made whether the provider of the income was the one-man business or the said limited liability companies. To this end he got in touch with USZO on multiple occasions by means of letters. These letters were answered by USZO with automatised standard letters which did not address the specific situation in which the suspect found himself and which the suspect himself had raised with USZO. By the time this question was put by the suspect to USZO Mr G. had been succeeded by Mr M. The latter found no report in the USZO file of the arrangements mentioned by the suspect. It is not apparent from the file that any attempt was made to hear Mr G. about the said arrangements within the framework of this criminal case.", "In view of the facts outlined above, the Court of Appeal considers it plausible (aannemelijk) that the suspect made arrangements with Mr G. of USZO in one form or another concerning the amount of permitted additional income within the framework of the gradual reduction to zero of his WAO benefits. It makes no difference that no report of any arrangements was found in the USZO file because no attempt has been made to verify the existence of these arrangements with Mr G.” II. RELEVANT DOMESTIC LAW A. The Labour Disablement Insurance Act 23. Provisions of the Labour Disablement Insurance Act relevant to the case are the following: Section 18 “1.", "A person disabled for labour (arbeidsongeschikt), totally or partially, shall be he [or she] who, as a result of a direct consequence, to be medically established, of disease, incapacity, pregnancy or childbirth is totally or partially unable to earn what healthy persons with similar education and experience normally earn from work (arbeid) in the place where he [or she] works or has latterly worked, or the surrounding area. 2. A person who is already partially disabled for labour within the meaning of the first paragraph at and since the time when his [or her] insurance begins, shall be considered, for purposes of claims to be derived from this Act, to be totally or partially disabled for labour if as a result of a direct consequence, to be medically established, of disease or incapacity he [or she] is totally or partially unable to earn what similar persons, who are disabled for labour within the meaning of the first paragraph to the same extent, normally earn from work in the place where he [or she] works or has latterly worked, or the surrounding area. ... ... 5. In the first and second paragraphs, the expression ‘work’ shall be understood to mean all generally accepted work of which the person insured [under this Act] is capable with his [or her] forces and competences.", "...” Section 39a “1. In relation to an increase in labour disability that manifests itself within five years from the date on which the labour disability benefits were first awarded or reviewed and which arises from the same cause as the labour disability in relation to which the benefits are enjoyed, the disability benefits shall be reviewed in each case as soon as the increased labour disability has lasted for a continuous period of four weeks. ...” Section 43a “1. If the person (a) whose labour disability benefits have been withdrawn because of diminishing labour disability ... becomes afflicted with labour disability ... within five years of such withdrawal and this labour disability arises from the same cause as the labour disability in relation to which the benefits withdrawn were enjoyed ... then the labour disablement benefits shall be awarded in each case as soon as the labour disablement has lasted for a continuous period of four weeks. ...” Section 44 “1.", "If a person who is entitled to labour disablement benefits enjoys income from paid employment (inkomen uit arbeid), then for a continuous period of five years counted from the first day in respect of which the income from work is enjoyed that work shall not be considered as work within the meaning of section 18(5) and the labour disablement benefits shall not be withdrawn or reviewed, but the benefits shall: (a) not be paid out if the income from work is such that if the work concerned were in fact work within the meaning of section 18(5) labour disablement would no longer be at least 15%, or (b) if sub-paragraph (a) does not apply, shall be paid to an amount the size of the labour disablement benefit as it would have been fixed had the work concerned been work as referred to in section 18(5). After the end of the period mentioned in the first sentence the work shall be considered to be work within the meaning of section 18(5). ...” 24. The Government state that the implementation of this Act follows policy rules dating from 2006. B.", "The General Administrative Law Act 25. Provisions of the General Administrative Law Act relevant to the case are the following: Section 8:46 “1. The Regional Court can summon witnesses. ...” Section 8:56 “After the preliminary investigation has been terminated, the parties shall be invited at no less than three weeks’ notice to appear at a hearing of the Regional Court to be held at a time and place to be specified in the invitation.” Section 8:60 “1. The Regional Court can summon witnesses and appoint experts and interpreters.", "2. A witness who is summoned and an expert or interpreter who has accepted the appointment and is summoned by the Regional Court to appear shall be obliged to answer that summons. Article 178 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) [which empowers the court to order the appearance of a witness who has been summoned by a bailiff’s writ but fails to appear] and Article 78 of the Code of Civil Procedure [which allows the court to give an order for costs against a witness who refuses to give evidence] shall apply. ... 4. The parties may bring witnesses and experts along or summon them by registered letter or bailiff’s writ, provided that the Regional Court and the other parties have been informed accordingly no later than one week before the day of the hearing, including names and places of residence.", "The parties shall be reminded of this right in the invitation referred to in section 8:56.” Section 8:63 “... 2. The Regional Court may decide not to hear witnesses or experts summoned or brought along by a party if it judges that hearing them cannot reasonably contribute to the consideration of the case. ...” 26. At the relevant time, these provisions were applicable by analogy to the procedure of the Central Appeals Tribunal by virtue of section 17 of the Appeals Act (Beroepswet). C. Case-law 27.", "In a decision of 8 January 2009, ECLI:NL:CRVB:2009:BH1537, the Central Appeals Tribunal overturned a decision of a Regional Court on the ground that that court had failed to give reasons for its refusal to hear a witness brought along to the hearing by one of the parties. 28. In a decision of 9 November 2010, ECLI:NL:CRVB:2010:BO4327, the Central Appeals Tribunal held that a Regional Court could only decide under section 8:63 of the General Administrative Law Act not to hear a witness brought along by a party if it was beyond doubt that there was no need for that witness to be heard. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 29.", "The applicant complained that since he had been denied the possibility to prove the truth of his allegations by calling witnesses, he had not had a “fair hearing” 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 fair ... hearing ... by [a] ... tribunal ...” 30. The Government contested that argument. A. Admissibility 1. The Government’s objection 31. The Government submitted that the applicant had failed to exhaust the available domestic remedies.", "They relied on section 8:60 of the General Administrative Law Act, in accordance with which the invitations extended to the applicant to attend the hearings of the Regional Court and the Central Appeals Tribunal had included the notification that he could bring witnesses or summon them by registered letter or bailiff’s writ. They drew attention to domestic case-law (see paragraphs 26 and 27 above) from which it followed that the domestic administrative tribunals were not entitled to refuse to hear witnesses summoned or brought along by a party unless persuaded that their evidence was in any case irrelevant, and had to give reasons for any such refusal. 32. Despite being allowed to do so, the applicant had not himself summoned or brought along any witnesses. In addition, the applicant had had the opportunity to ask for a second hearing to which he could have brought or summoned his witnesses but had not done so.", "33. Moreover, the Central Appeals Tribunal, at its hearing, had asked the applicant why he had not called Mr G. as a witness. The applicant had replied that he had considered doing so but had opted to leave it to the tribunal to decide whether Mr G. should be summoned or not. 34. The applicant pointed out that, pursuant to section 8:60(1) of the General Administrative Law Act, witnesses were under an actual obligation to appear only if summoned by the administrative tribunal itself.", "As to his decision not to ask for a second hearing before the Central Appeals Tribunal, the applicant submitted that the examination of the case had been reopened to put a specific question to UWV; this had no bearing on the applicants’ offer to prove his allegations by means of the evidence to be given by the witness Mr G., which offer still stood. 35. The Government restate this objection as part of their argument on the merits of the case. The Court therefore joins it to the merits. 2.", "The Court’s conclusion on admissibility 36. 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, without prejudice to the decision ultimately to be taken on the Government’s preliminary objection of non-exhaustion of domestic remedies. B.", "Merits 1. Applicability of Article 6 37. It is not in dispute that Article 6 of the Convention is applicable under its civil head, and the Court so finds. 2. Whether the applicant had an adequate opportunity to have the witnesses Mr G. and Mr S. heard 38.", "The Government asked the Court to dismiss the applicant’s complaints as unfounded. They submitted that the applicant had in fact had sufficient opportunity to have the witnesses of his choice heard by the competent domestic tribunals. The applicant disputed this. 39. The arguments of the parties on this point, as they relate to the merits of the case, are identical in their essentials to their arguments under the head of admissibility of the application.", "40. It is the Court’s understanding that the applicant offered to prove the existence of the agreement, should the Central Appeals Tribunal so require, by means of witness evidence. 41. The Court notes that Netherlands administrative tribunals have a wide discretion in deciding whether to hear witnesses, being empowered but not obliged to order witnesses to appear before them but retaining the freedom not to hear witnesses brought before them on the initiative of a party (sections 8:60(1) and 8:63(2) of the General Administrative Law Act; see paragraph 24 above). 42.", "In view of the consistent refusal of the tribunals at both levels of jurisdiction to grant the applicant’s urgent and repeated requests to summon Mr G. and Mr S. as witnesses, in the case of the Central Appeals Tribunal despite the acquittal given more than a year before its hearing (see paragraphs 15 and 22 above), the Court cannot find beyond doubt that either the Regional Court or the Central Appeals Tribunal would have agreed to hear them if the applicant had succeeded in obtaining their attendance himself. 43. It further appears that the Central Appeals Tribunal reopened its examination of the facts of the case in order to put a specific question to UWV. Neither party has suggested that this question was related to the matter now before the Court. The applicant having requested the hearing of witnesses before the Central Appeals Tribunal both in his written submissions and at the hearing, the Court is not persuaded that there would have been any point in his raising the matter afresh at a second hearing organised to discuss a separate factual issue.", "44. In the circumstances thus set out, the Court cannot find that the applicant failed to make use of an opportunity to have a competent tribunal hear the witnesses on whose evidence he wished to rely. It must therefore be found that the applicant has exhausted the available effective domestic remedies as required by Article 35 § 1 of the Convention. The Government’s preliminary objection, which the Court had joined to the merits, is therefore dismissed. 3.", "The refusal of the Regional Court and the Central Appeals Tribunal to hear Mr G. and Mr S. as witnesses 45. The applicant submitted that however unlikely the Government might believe the oral agreement entered into between Mr G. on behalf of the competent social-security authority and himself on the other to be, it would, if proven, have had an “undeniably direct bearing” on his benefits under the Labour Disablement Insurance Act. He based his complaint on the Central Appeals Tribunal’s finding of fact that the existence of the agreement “[did] not appear from the case file and no other credible case for its existence [had] been made out”. He had actually wished to demonstrate the plausibility of the agreement precisely by hearing Mr G. and Mr S. The refusal of the administrative tribunals to let him do so had placed him at a substantial disadvantage vis-à-vis the social-security authority. 46.", "The Government considered it highly unlikely that the applicant was offered an agreement that would allow him to earn unlimited amounts over and above his benefits without his benefits being reduced as a result. In their submission, such agreements were never entered into; nor were they necessary, since sections 39a and 43a of the Labour Disablement Insurance Act already provided for the possibility that the condition of a person enjoying labour disablement benefits might deteriorate. There was thus already a safety net in place. 47. Moreover, the applicant must in reason have been aware that any income he might generate from his own work was likely to affect his benefits.", "Regardless of whether the applicant had received letters reminding him of this, which he denied, this followed from section 44 of the Labour Disablement Insurance Act, from which an oral agreement with an official of the competent social-security authority could not detract. 48. In actual fact, the Regional Court and the Central Appeals Tribunal had found the applicant’s allegations of an oral agreement to lack credibility already because there was no documentary evidence to back it up. Nor was the existence of an agreement in the terms suggested by the applicant likely, since his entitlement to disablement benefits were determined solely by the statutory framework in place and therefore not by any agreement. 49.", "It could not make any difference that a different conclusion was reached by the criminal court. Criminal proceedings were, by their very nature, different from administrative proceedings: the presumption of innocence applied, and questions like criminal intent took on an importance which in administrative proceedings they had not. In contrast, in administrative proceedings it was for the party who stated a fact to prove it. 50. The Court has stated the applicable principles as follows: (a) Article 6 § 1 places the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision (see, among many other authorities, Van de Hurk v. the Netherlands, 19 April 1994, § 59, Series A no.", "288; Wierzbicki v. Poland, no. 24541/94, § 39, 18 June 2002; Van Kück v. Germany, no. 35968/97, § 48, ECHR 2003‑VII; Perez v. France [GC], no. 47287/99, § 80, ECHR 2004‑I; and Grădinar v. Moldova, no. 7170/02, § 107, 8 April 2008; as a more recent authority, see Ternovskis v. Latvia, no.", "33637/02, § 66, 29 April 2014). (b) Even though the courts cannot be required to state the reasons for rejecting each argument of a party, they are nonetheless not relieved of the obligation to undertake a proper examination of and respond to the main pleas put forward by that party (see Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, § 96, 28 June 2007). (c) 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 or her case must be consistent with the requirements of a “fair hearing” within the meaning of paragraph 1 of that Article, including the principle of equality of arms (see, among other authorities, Wierzbicki, ibid., and Gryaznov v. Russia, no. 19673/03, § 57, 12 June 2012). (d) The requirements inherent in the concept of “fair hearing” are not necessarily the same in cases concerning the determination of civil rights and obligations as they are in cases concerning the determination of a criminal charge. This is borne out by the absence of detailed provisions such as paragraphs 2 and 3 of Article 6 applying to cases of the former category. Thus, although these provisions have a certain relevance outside the strict confines of criminal law, the Contracting States have greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases.", "Nevertheless, certain principles concerning the notion of a “fair hearing” in cases concerning civil rights and obligations emerge from the Court’s case-law. Most significantly for the present case, it is clear that the requirement of “equality of arms”, in the sense of a “fair balance” between the parties, applies in principle to such cases as well as to criminal cases (see Dombo Beheer B.V. v. the Netherlands, 27 October 1993, §§ 32-33, Series A no. 274). (e) As a general rule, the assessment of the facts is within the province of the national courts (see Dombo Beheer B.V., cited above, § 31and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I); it is the domestic courts which are best placed for assessing the relevance of evidence to the issues in the case (see, amongst many authorities, Vidal v. Belgium, 22 April 1992, § 32, Series A no.", "235‑B; Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no. 247‑B; and Wierzbicki, cited above, § 45). (f) Finally, the Court also notes that it is not its function to deal with errors of fact or law allegedly made by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, inter alia, García Ruiz, ibid.). 51. Turning to the facts of the case, the Court notes that the applicant’s case hinged on the factual allegation that an agreement supporting his position and binding on the social-security authority had been reached between him and Mr G. 52.", "The Government’s argument, as relevant to the question remaining before the Court, is that whether or not such an agreement existed, the substance of the applicant’s rights depended entirely on statute, to which an oral agreement could make no difference even if its existence were established. 53. For its part, the Court notes that the Central Appeals Tribunal did not dismiss the applicant’s reliance on the oral agreement between him and Mr G. as irrelevant to its decision. Instead, it held that the existence of the agreement was unsubstantiated (see paragraph 17 above). 54.", "Although obviously social security entitlements are determined in accordance with legislation and policy rules, the Court cannot find that the Central Appeals Tribunal would have been prevented from deciding in the applicant’s favour had the agreement been found to exist in the terms alleged. It is worth noting in this respect that the Government have not produced any domestic case-law that would support such a position. Already for this reason the Court considers that Article 6 § 1 required the Central Appeals Tribunal not to leave the applicant’s offer to produce witness evidence unanswered. 55. The Court notes in addition that the ‘s‑Hertogenbosch Court of Appeal acquitted the applicant of fraud, finding that a plausible case for the existence of an agreement negotiated by the applicant with Mr G. had been made out (see paragraph 21 above).", "The Court, in agreement with the Government, recognises that the test applied to evidence in criminal proceedings may legitimately differ from that applied in administrative proceedings. Nonetheless, the significance of the judgment of acquittal by the ‘s-Hertogenbosch Court of Appeal and the reasoning on which it is based is such that the decision of the Central Appeals Tribunal to ignore it called for an explanation. 56. The Court finds that the failure by the Central Appeals Tribunal to accede to the applicant’s request to hear Mr G. and Mr S. as witnesses placed the applicant under a disadvantage vis-à-vis his opponent. There has, for that reason, been a violation of Article 6 § 1 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 57. The applicant alleged a violation of Article 6 § 2 of the Convention in that the decision of the Central Appeals Tribunal called into question the acquittal given by the ‘s-Hertogenbosch Court of Appeal. 58. This complaint does not appear in the original application.", "It was made for the first time in the applicant’s observations on the merits, which were submitted on 24 February 2015. The Central Appeals Tribunal’s decision was given already on 30 January 2009. 59. 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. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 60. 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 61. The applicant submitted no claim in respect of non-pecuniary damage. He claimed 81,932.03 euros (EUR), the amount he had been ordered to repay, in respect of pecuniary damage.", "He submitted that if the two witnesses had been heard, the agreement reached between him and Mr G. could have been proved and the decisions reducing the benefits could have been reversed. 62. The Government pointed out that even if it could have been proved that an agreement had been reached in the terms alleged, the applicant’s actual entitlement would still have been governed by the statutory framework in place. 63. The Court cannot find it established that the outcome of the proceedings would have been more favourable to the applicant had the violation of Article 6 § 1 not taken place.", "Being unable to find a definite causal link between the violation found and the pecuniary damage alleged, it therefore rejects this claim. B. Costs and expenses 64. The applicant also claimed EUR 5,356.90 including value-added tax for the costs and expenses incurred in the domestic proceedings. 65.", "The Government argued that only costs incurred in the proceedings before the Court should be awarded. 66. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these relate to the violation or violations found, have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum claimed in full. C. Default interest 67.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Joins to the merits the Government’s objection and dismisses it after considering the merits; 2. Declares the applicant’s complaint under Article 6 § 1 admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,356.90 (five thousand three hundred and fifty-six euros and ninety cents), including value-added tax, 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; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 15 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsLuis López GuerraRegistrarPresident" ]
[ "FIFTH SECTION CASE OF PYSARSKYY AND OTHERS v. UKRAINE (Application no. 20397/07 and 164 other applications) JUDGMENT STRASBOURG 20 June 2013 This judgment is final. It may be subject to editorial revision. In the case of Pysarskyy 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 11 June 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in 165 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 nationals, a company based in Ukraine and a Russian national, whose details are specified in the appended tables (“the applicants”).", "2. The applicants Mr Volodymyr Adamovych Umanets (application no. 22064/11) and Mr Petro Dmytrovych Neskoromyuk (application no. 22018/11) died. Their son, Mr Stanislav Volodymyrovych Umanets, and sister, Ms Mariya Dmytrivna Morgun, respectively, manifested the wish to pursue the applications on their behalf.", "3. By letters dated 11 February 2013, the Government informed the Court that the applicants Mr Yukhym Mykolayovych Nishchymenko (application no. 14893/11) and Ms Praskovya Ivanivna Kiriyachenko (application no. 20025/11) had died. Copies of the letters were forwarded to the deceased applicants’ addresses, respectively, on 18 and 7 March 2013 by registered post for comments to be submitted by 18 and 8 April 2013.", "The readers were warned that in the absence of response, the Court would assume that the applicants had died and that no individuals were entitled and wished to pursue the applications. No replies were received. 4. The Government (“the Government”) are represented by their Agent, Mr Nazar Kulchytskyy. 5.", "On 20 November 2012 the applications above were communicated to the Government of Ukraine. 6. The Russian Government, having been informed of their right to intervene in the proceedings in respect of the applicant in application no. 17575/11 (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise that right. THE FACTS THE CIRCUMSTANCES OF THE CASE 7.", "On the dates set out in the appended tables domestic courts and labour disputes commissions 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. 8. Some of the applicants also made submissions concerning factual and legal matters unrelated to the above non-enforcement issues.", "THE LAW I. THE STANDING OF THE APPLICANTS IN APPLICATIONS Nos. 22064/11 and 22018/11 9. The Court considers that the applicants’ heirs or next-of-kin in applications nos. 22064/11 and 22018/11 (see paragraph 2 above) have standing to continue the proceedings in the applicants’ stead (see, among other authorities, Mironov v. Ukraine, no.", "19916/04, § 12, 14 December 2006). II. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 10. The applicants complained 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.", "They relied on, expressly or in substance, Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1. A. Applications set out in Appendix 1 11. In view of the similarity of the applications in terms of the principal legal issue raised, the Court finds it appropriate to join them.", "12. The Court notes that the applicant in application no. 14893/11, Mr Yukhym Mykolayovych Nishchymenko, has died and that no heir has requested permission to pursue the application. 13. It also notes that the applicant in application no.", "20025/11, Ms Praskovya Ivanivna Kiriyachenko, has died and that no heir has requested permission to pursue the application. 14. In the light of the foregoing, and in the absence of any special circumstances regarding respect for the rights guaranteed by the Convention or its Protocols, the Court, in accordance with Article 37 § 1 (a) of the Convention, considers that it is no longer justified to continue the examination of the applications. In view of the above, it is appropriate to strike the applications out of the list. B.", "Applications set out in Appendix 2 15. In view of the similarity of the applications in terms of the principal legal issue raised, the Court finds it appropriate to join them. 16. In their observations with respect to application no. 10520/11 the Government submitted that the applicant complained about lengthy non-enforcement of the judgment of the Barvinkovo Court of 30 April 2010, but the above judgment had never been delivered by that court.", "The Barvinkovo Court rendered a judgment in the applicant’s favour on 17 May 2010 and the findings of the judgment are different from the findings of the judgment of 30 April 2010. The Government claimed that the application was an abuse of the right of individual application should be declared inadmissible pursuant to Article 35 § 3 (a) of the Convention. The applicant argued that he had obtained a copy of the judgment of 30 April 2010 in the Barvinkovo Court and learned about the judgment of 17 May 2010 from the Government’s observations. 17. The Court observes that it appears from the case-file materials that the judgment, enforcement of which the applicant seeks to obtain from the Ukrainian authorities, was delivered by the Barvinkovo Court on 17 May 2010.", "It was apparently a clerical error that the applicant was provided with the judgment dated 30 April 2010. The Court, therefore, rejects the Government’s objection that the application is an abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention. 18. The Court notes that the above complaints of the applicants enumerated in Appendix 2 (see paragraph 10 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. 19. The Court finds that the decisions in the applicants’ favour were not enforced in due time, for which the State authorities were responsible. 20. Having regard to its well-established case-law on the subject (see Yuriy Nikolayevich Ivanov, cited above, §§ 56-58 and 66-70), 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. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 21. Some of the applicants raised other complaints under the Convention which the Court has carefully examined.", "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. 22. 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. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 23.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 24. In the present case, 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) to award 2,000 euros (EUR) to each of the applicants in Appendix 2. This sum is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses. 25.", "The Court further notes that the respondent State has an outstanding obligation to enforce the judgments which remain enforceable. 26. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join the applications set out in Appendix 1, and to strike them out of its list of cases in accordance with Article 37 § 1 (b) of the Convention; 2.", "Decides to join the applications set out in Appendix 2; 3. Declares admissible the complaints of the applicants, listed in Appendix 2, 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 and declares inadmissible the remainder of the applications; 4. Holds that there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1; 5.", "Holds that there has been a violation of Article 13 of the Convention; 6. 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 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. Done in English, and notified in writing on 20 June 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsBoštjan M. ZupančičDeputy RegistrarPresident APPENDIX 1 (applications struck out of the Court’s list of cases) No. Application no.", "and date of introduction Applicant name date of birth Relevant domestic decisions 14893/11 01/03/2011 Yukhym Mykolayovych NISHCHYMENKO 1923 Kyiv Circuit Administrative Court, 08/12/2008 20025/11 21/03/2011 Praskoviya Ivanivna KIRIYACHENKO 1932 Barvinkovo Court, 14/12/2009 APPENDIX 2 (admissible applications) No. Application no. and date of introduction Applicant name date of birth Relevant domestic decisions 20397/07 21/04/2007 Mykhaylo Gavrylovych PYSARSKYY 1964 1) Berdychiv Court, 04/10/2006 2) Berdychiv Court, 12/10/2006 1190/08 21/12/2007 Borys Denysovych LUKYANENKO 1948 Oleksandriya Court, 14/05/2007 1392/08 17/12/2007 Vyacheslav Viktorovych KORNEYEV 1947 Korolyovskyy District Court of Zhytomyr, 26/05/2006, as amended by the Zhytomyr Regional Court of Appeal, 07/08/2006 14610/08 04/02/2008 Svitlana Anatoliyivna ZAKHARENKO 1959 Prymorskyy District Court of Odesa, 19/06/2006, as amended by the Odesa Regional Court of Appeal, 02/10/2007 30537/08 10/06/2008 Aleksandr Petrovich KURILO 1965 Konotop Court, 18/02/2008 44807/09 05/08/2009 Mykola Ivanovych KUZUB 1950 Darnytskyy District Court of Kyiv, 19/10/2009 61346/09 03/11/2009 Valentyna Petrivna KOTSYURUBA 1940 Saksaganskyy District Court of Kryvyy Rig, 21/04/2008 64036/10 25/10/2010 Aleksandr Andreyevich RUBANOVICH 1941 Rozdilna Court, 19/06/2009 75147/10 10/12/2010 Vira Vasylivna KRUGLYK 1965 Rivne Court, 05/11/2007 3515/11 04/12/2010 Aleksandr Dmitriyevich MEDVEDEV 1955 Lysychansk Court, 02/02/2009 3856/11 16/12/2010 Nadiya Ivanivna RYSKINA 1926 Tarashcha Court, 18/01/2008 3972/11 30/12/2010 Valeriy Vasilyevich TSUKANOV 1964 Kirovogradskyy District Court of the Kirovograd Region, 25/12/2002 4231/11 08/01/2011 Anatoliy Pavlovych TESLENKO 1953 1) Kharkiv Administrative Court of Appeal, 04/11/2009 2) Barvinkovo Court, 22/02/2010 6367/11 19/01/2011 Mykola Mykolayovych NIKOLAYENKO 1948 Zhytomyr Circuit Administrative Court, 26/09/2008 6691/11 19/01/2011 Viktor Semenovych VLASENKO 1955 Barvinkovo Court, 22/01/2010 6806/11 19/01/2011 Petro Mykolayovych TVARDOVSKYY 1957 Barvinkovo Court, 12/03/2010 7039/11 18/01/2011 Anna Ivanovna YEVMENKO 1965 Krasnyy Luch Court, 28/07/2005 7043/11 18/01/2011 Lyudmila Ivanovna SHEMET 1961 Krasnyy Luch Court, 16/06/2005 7045/11 18/01/2011 Nadezhda Ivanovna KIRGIZOVA 1965 Krasnyy Luch Court, 13/05/2005 7047/11 18/01/2011 Yuriy Alekseyevich KIRGIZOV 1965 Krasnyy Luch Court, 21/07/2005 7166/11 20/01/2011 Leonid Ivanovych GEBULTIVSKYY 1953 Tetiyiv Court, 29/11/2007 7180/11 24/01/2011 Marchel Gavrylovych KONSTANTYNOVYCH 1934 Pershotravnevyy District Court of Chernivtsi, 27/11/2006 7406/11 24/01/2011 Georgiy Dmytrovych KOSTASH 1934 Glyboka Court, 14/05/2009, as amended by the Chernivtsi Regional Court of Appeal on 15/07/2009 7413/11 24/01/2011 Vitaliy Vasylyovych KOSTASH 1987 Glyboka Court, 14/05/2009 7524/11 26/01/2011 Yosyp Vasylyovych YATSENKO 1962 Zamostyanskyy District Court of Vinnytsya, 27/02/2007 7575/11 17/01/2011 Mykola Fedorovych PETRUSENKO 1941 Zhytomyr Circuit Administrative Court, 16/01/2008 7653/11 28/01/2011 Petro Grygorovych GUMENYUK 1953 Zamostyanskyy District Court of Vinnytsya, 07/05/2007, quashed by the Kyiv Administrative Court of Appeal on 14/02/2012. 7931/11 19/01/2011 Yuriy Ivanovich KLYUYEV 1959 Oleksandriya Court, 07/12/1998 8077/11 28/01/2011 Oksana Viktorivna ZHYROVA 1984 Krolevets Court, 17/06/2009 8086/11 25/01/2011 KVF SEMKO, TOV Kirovograd Regional Commercial Court, 18/12/2009 8120/11 25/01/2011 Volodymyr Andriyovych ULYANCHENKO 1942 Zhytomyr Circuit Administrative Court, 23/10/2008 8128/11 26/01/2011 Volodymyr Ivanovych LUCHKO 1967 Zamostyanskyy District Court of Vinnytsya, 27/02/2007 8131/11 25/01/2011 Petro Oleksiyovych BORODIYCHUK 1948 Tetiyiv Court, 14/11/2007 8134/11 25/01/2011 Mykola Oleksandrovych SKORBENKO 1938 Tetiyiv Court, 04/12/2007 8244/11 24/01/2011 Igor Viktorovich ZAKHARYIN 1967 Artemivsk Court, 08/04/2010 8565/11 26/01/2011 Yuriy Grygorovych SEMENYURA 1960 Tetiyiv Court, 22/11/2007 9029/11 28/01/2011 Varvara Yakivna PROKOPCHUK 1936 Tetiyiv Court, 26/11/2007 9553/11 06/02/2011 Oleksandra Tykhonivna SHPAK 1942 1) Yagotyn District Court of the Kyiv Region, 27/03/2008 2) Kyiv Administrative Court of Appeal, 19/01/2010 9592/11 28/01/2011 Oleksandr Andriyovych MAYBORODA 1931 Tetiyiv Court, 11/12/2007 9625/11 04/02/2011 Vitaliy Vasylyovych SHPAK 1946 1) Yagotyn District Court of the Kyiv Region, 27/03/2008 2) Kyiv Administrative Court of Appeal, 20/05/2010 9747/11 27/01/2011 Mykhayla Andriyovych PROKOPCHUK 1952 Tetiyiv Court, 22/11/2007 9922/11 05/02/2011 Mykola Ivanovych BONDARENKO 1947 1) Kharkiv Administrative Court of Appeal, 07/09/2009 2) Kharkiv Administrative Court of Appeal, 15/12/2009 10069/11 03/02/2011 Yaroslav Mykhaylovych MARUNCHAK 1954 1) Oleksandriya Court, 11/04/2008 2) Oleksandriya Court, 29/10/2007 10236/11 04/02/2011 Lyubov Vasylivna PANCHENKO 1957 Tetiyiv Court, 03/12/2007 10314/11 03/02/2011 Ivan Ivanovych MELNYK 1956 Tetiyiv Court, 16/11/2007 10516/11 05/02/2011 Viktor Andriyovych PETRIN 1951 1) Barvinkovo Court, 22/02/2010 2) Barvinkovo Court, 11/03/2010 10520/11 05/02/2011 Volodymyr Vasylyovych LITVINOV 1955 Barvinkovo Court, 17/05/2010 10569/11 08/02/2011 Volodymyr Leonidovych OPANASYUK 1960 Tetiyiv Court, 07/12/2007 10582/11 01/02/2011 Grygoriy Mykolayovych TKACHUK 1949 Tetiyiv Court, 31/01/2008 10623/11 03/02/2011 Mykhaylo Ivanovych SVYATKIN 1937 1) Zhytomyr Circuit Administrative Court, 29/10/2007 2) Zhytomyr Circuit Administrative Court, 07/11/2008 10807/11 01/02/2011 Nadiya Anatoliyivna KHRESHCHENYUK 1961 Grygoriy Valentynovych KHRESHCHENYUK 1959 1) Zamostyanskyy District Court of Vinnytsya, 24/05/2007 2) Zamostyanskyy District Court of Vinnytsya, 24/05/2007 11004/11 28/01/2011 Sergiy Dmytrovych KOLOMIYETS 1979 Zamostyanskyy District Court of Vinnytsya, 22/12/2006 11024/11 03/02/2011 Oleksiy Mykolayovych SHUSTOV 1951 1) Kharkiv Administrative Court of Appeal, 02/11/2009 2) Barvinkovo Court, 12/05/2009, as amended by the Kharkiv Administrative Court of Appeal, 09/09/2009 3) Barvinkovo Court, 10/03/2010 11185/11 08/02/2011 Kyrylo Oleksandrovych SEMENOV 1923 Zhytomyr Circuit Administrative Court, 10/12/2007 11191/11 01/02/2011 Stefaniya Mykhaylivna MATIYESHYN 1961 Chervonograd Court, 15/03/2010 11231/11 10/02/2011 Volodymyr Gerasymovych GRYBENKO 1925 Tarashcha Court, 12/08/2008 11569/11 09/02/2011 Vitaliy Stepanovych VYGOVSKYY 1928 Zhytomyr Circuit Administrative Court, 13/11/2007 11624/11 09/02/2011 Volodymyr Mykolayovych GAVRYLENKO 1954 1) Barvinkovo Court, 11/11/2009 2) Barvinkovo Court, 11/11/2009 11629/11 10/02/2011 Nikolay Nikolayevich GUKOV 1949 Krasnodon Court, 01/11/2002 11697/11 08/01/2011 Anatoliy Mykolayovych MAGDA 1959 1) Barvinkovo Court, 03/06/2009 2) Kharkiv Administrative Court of Appeal, 29/09/2009 3) Barvinkovo Court, 22/01/2010 11707/11 09/02/2011 Yevgen Volodymyrovych ZHAGLOVSKYY 1959 Zamostyanskyy District Court of Vinnytsa, 06/03/2007 11866/11 09/02/2011 Sergiy Ivanovych CHUKHNO 1962 Barvinkovo Court, 17/11/2009 12109/11 19/01/2011 Oleksandr Gnatovych TARASYUK 1931 Zhytomyr Circuit Administrative Court, 14/10/2008 12216/11 08/02/2011 Oleksandr Mykhaylovych SAVLUK 1947 Tetiyiv Court, 06/12/2007 12264/11 09/02/2011 Vasyl Vasylyovych CHILIY 1959 Barvinkovo Court, 14/12/2009 12335/11 11/02/2011 Anatoliy Yakovych BURLACHENKO 1938 Tetiyiv Court, 23/03/2006 12595/11 09/02/2011 Petro Ivanovych DOVGAL 1952 1) Barvinkovo Court, 28/04/2010 2) Barvinkovo Court, 28/04/2010 12696/11 09/02/2011 Mykola Pavlovych RESHETNYAK 1953 1) Kharkiv Administrative Court of Appeal, 01/10/2009 2) Kharkiv Administrative Court of Appeal, 11/11/2009 12699/11 10/02/2011 Valentyna Ivanivna GRYBENKO 1929 Tarashcha Court, 12/08/2008 12715/11 16/02/2011 Volodymyr Mykhaylovych NAZARENKO 1953 Barvinkovo Court, 22/01/2010 12717/11 16/02/2011 Mykhaylo Aksentiyovych SHLYANCHAK 1949 Tetiyiv Court, 26/11/2007 12721/11 11/02/2011 Vasyl Ivanovych DONETS 1952 Tetiyiv Court, 30/11/2007 13062/11 11/02/2011 Ivan Pavlovych SLOMINSKYY 1961 Tetiyiv Court, 07/12/2007 13091/11 14/02/2011 Viktor Ivanovych KAZNADZEY 1956 Tetiyiv Court, 07/12/2007 13093/11 15/02/2011 Volodymyr Ivanovych PYZHEVSKYY 1956 Tetiyiv Court, 28/03/2008 13196/11 11/02/2011 Galyna Mykhaylivna KAMINSKA 1927 Zhytomyr Circuit Administrative Court, 11/01/2008 13318/11 12/02/2011 Inna Volodymyrivna VASKOVSKA 1970 Lugyny Court, 08/05/2007 13333/11 17/02/2011 Oleksandr Viktorovych GRYGORYEV 1968 Barvinkovo Court, 30/04/2010 13399/11 14/02/2011 Fedir Oleksiyovych GARKUSHA 1957 Barvinkovo Court, 30/04/2010 13564/11 17/02/2011 Volodymyr Ivanovych AKYMENKO 1964 1) Kharkiv Administrative Court of Appeal, 08/09/2009 2) Barvinkovo Court, 22/02/2010 13566/11 15/02/2011 Mykola Andriyovych PRYKHODKO 1931 Zhytomyr Circuit Administrative Court, 25/10/2007 13568/11 16/02/2011 Oleksandr Stepanovych KULISH 1954 Zhytomyr Circuit Administrative Court, 18/09/2008 13599/11 14/02/2011 Volodymyr Yukhymovych BUNDYUK 1954 Kharkiv Administrative Court of Appeal, 29/09/2009 13866/11 23/02/2011 Pavlo Andriyovych SOKUR 1961 Zhytomyr Circuit Administrative Court, 30/10/2007 13885/11 21/02/2011 Mikhail Davydovich ZAKHARCHENKO 1951 1) Kirovskyy District Court of Donetsk, 17/02/2009 2) Kirovsyyy District Court of Donetsk, 27/05/2009 13892/11 18/02/2011 Leonid Sergiyovych LESKOV 1966 Vinnytskyy District Court of the Vinnytsya Region, 11/10/2006 14006/11 15/02/2011 Leonid Grygorovych POLISHCHUK 1951 Tetiyiv Court, 29/01/2008 14188/11 23/02/2011 Oleksandr Leonidovych ZYKOV 1958 Lviv Circuit Administrative Court, 03/12/2008 14427/11 24/02/2011 Anatoliy Andriyovych YATSENKO 1957 Zhytomyr Circuit Administrative Court, 17/10/2007 14584/11 04/02/2011 Leonid Viktorovych TSESAR 1962 Oleksandriya Court, 23/10/2008 14589/11 08/02/2011 Sergiy Mykolayovych ARKHYPOV 1961 Tetiyiv Court, 04/12/2007 14698/11 23/02/2011 Igor Anatoliyovych SAVENKOV 1962 Svitlana Grygorivna SAVENKOVA 1960 Kramatorsk Court, 25/10/2006 14700/11 25/02/2011 Lyudmila Dmitriyevna BELOKONENKO 1942 Krasnyy Luch Court, 28/04/2004 14709/11 25/02/2011 Valentina Mikhaylovna TOKAREVA 1951 Krasnyy Luch Court, 12/02/2003 14723/11 25/02/2011 Anatoliy Vladimirovich TOKAREV 1952 Krasnyy Luch Court, 26/07/2005 14728/11 25/02/2011 Vitaliy Valentinovich PUZYRKOV 1955 Krasnyy Luch Court, 27/07/2005 14732/11 22/02/2011 Mykhaylo Andriyanovych KRYVOBIK 1928 Zhytomyr Circuit Administrative Court, 02/11/2007 14744/11 25/02/2011 Yevgeniy Vitalyevich PUZYRKOV 1983 Krasnyy Luch Court, 27/07/2005 14855/11 24/02/2011 Anatoliy Volodymyrovych CHEREPANSKYY 1955 Zhytomyr Circuit Administrative Court, 06/12/2007 14861/11 21/02/2011 Leonid Ksenofontovych SIMONOV 1947 1) Barvinkovo Court, 12/05/2009, as amended by the Kharkiv Administrative Court of Appeal on 03/11/2009 2) Kharkiv Administrative Court of Appeal, 19/11/2009 14903/11 22/02/2011 Petro Oleksandrovych KARASYOV 1950 Zhytomyr Circuit Administrative Court, 12/01/2009 15094/11 24/02/2011 Sergiy Yakovych VORONYUK 1966 Starokostyantyniv Court, 30/06/2006 15133/11 15/02/2011 Mykola Petrovych LEBID 1951 Oktyabrskyy District Court of Poltava, 19/12/2008, as amended by the Kharkiv Administrative Court of Appeal, 24/11/2009 15473/11 24/02/2011 Igor Vasylyovych BORTNIK 1969 Starokostyantyniv Court, 20/11/2006 15480/11 02/03/2011 Valentyn Oleksiyovych VASYLYEV 1971 Zhytomyr Circuit Administrative Court, 22/10/2007 15513/11 08/02/2011 Leonid Viktorovych TSESAR 1962 Oleksandriya Court, 04/11/2008 15529/11 23/02/2011 Volodymyr Dmytrovych LUTSYK 1962 Chervonograd Court, 14/05/2001 15536/11 28/02/2011 Zlatana Georgiyivna TARAN 1950 1) Zhovtnevyy District Court of Kharkiv, 15/06/2009 2) Zhovtnevyy District Court of Kharkiv, 17/09/2009 3) Zhovtnevyy District Court of Kharkiv, 17/06/2010 4) Zhovtnevyy District Court of Kharkiv, 17/11/2010 5) Zhovtnevyy District Court of Kharkiv, 30/12/2010 15882/11 02/03/2011 Anatoliy Dmytrovych TATARULYA 1936 1) Kyivskyy District Court of Poltava, 26/09/2005 2) Pecherskyy District Court of Kyiv, 18/05/2010 16144/11 01/03/2011 Nadiya Grygorivna MOROZOVA 1942 Lysychansk Court, 18/02/2005 16152/11 04/03/2011 Galina Nikolayevna ZAKHAROVA 1957 1) Lugansk Regional Commercial Court, 06/11/2007 2) Lugansk Regional Commercial Court, 19/04/2010 16164/11 03/03/2011 Volodymyr Valeriyovych ZALOZNYY 1973 Dnipropetrovsk Regional Commercial Court, 22/05/2006 16200/11 04/03/2011 Mykola Volodymyrovych NESHCHERET 1974 Lysychansk Court, 24/02/2005 16286/11 03/03/2011 Vadym Oleksiyovych PLATOV 1952 Kharkiv Administrative Court of Appeal, 29/10/2009 16288/11 02/03/2011 Volodymyr Stepanovych STOLYARCHUK 1950 Tetiyiv Court, 12/06/2008 16529/11 01/03/2011 Volodymyr Yukhymovych STEPANOV 1938 Tetiyiv Court, 03/12/2007 16555/11 04/03/2011 Tadey Vladyslavovych BARANOVSKYY 1933 Chervonograd Court, 12/12/2008 16799/11 05/03/2011 Pavel Pavlovich MOVCHAN 1939 1) Kuybyshevskyy District Court of Donetsk, 12/10/1999 2) Kuybyshevskyy District Court of Donetsk, 27/06/2000 16983/11 05/02/2011 Viktor Iosifovich GRIBOVSKIY 1951 1) Nova Kakhovka Court, 05/10/2009 2) Nova Kakhovka Court, 11/05/2011 17145/11 09/03/2011 Yuzefa Tofilivna VIKTORIVSKA 1926 Zhytomyr Circuit Administrative Court, 26/02/2008 17212/11 28/01/2011 Valentin Aleksandrovich MUKHONKO 1951 Krasnyy Luch Court, 30/10/2002 17573/11 22/02/2011 Yevgeniya Ivanovna VORONINA 1944 Odesa Administrative Court of Appeal, 29/07/2009 17575/11 10/03/2011 Olena Petrivna ZAYTSEVA 1986 Nova Kakhovka Court, 13/02/2009 17581/11 11/03/2011 Mykola Ivanovych BONDARENKO 1958 Oleksandriya Court, 28/01/2008 17648/11 09/03/2011 Stanislav Dominikovych BYSTRITSKYY No information Baranivtsi Court, 31/03/1999 17732/11 10/03/2011 Petro Petrovych BEZUGLYY 1952 Tetiyiv Court, 27/11/2007 18134/11 02/03/2011 Fedir Ivanovych PARTYKA 1941 Chervonograd Court, 31/10/2003 18334/11 10/03/2011 Tetyana Yevgeniyivna BADALOVA 1955 1) Bilogirsk Court, 19/11/2007 2) Bilogirsk Court, 18/02/2010 18376/11 03/03/2011 Vasyl Yuriyovych BELEN 1962 Zakarpattya Regional Commercial Court, 05/12/2007 18448/11 15/03/2011 Vasyl Vasylyovych KULISH 1955 1) Oleksandriya Court, 24/07/2007 2) Oleksandriya Court, 10/11/2008 3) Oleksandriya Court, 10/11/2008 18524/11 26/02/2011 Oleksiy Stepanovych BARANOV 1927 Polina Stepanivna BARANOVA 1936 Trostyanets Court, 18/10/2004 18819/11 16/03/2011 Kateryna Mykolayivna KALENSKA 1926 Zhytomyr Circuit Administrative Court, 02/12/2008 18968/11 10/03/2011 Oleksandr Yakovych TSYTSKUN 1958 1) Mukachevo Court, 08/12/2006 2) Mukachevo Court, 18/01/2007 18978/11 10/03/2011 Yeva Antoninovna TSYTSKUN 1959 1) Mukachevo Court, 08/12/2006 2) Mukachevo Court, 22/01/2007 18982/11 19/03/2011 Valeriy Leonidovych OLIYNYK 1976 Okhtyrka Court, 05/03/2008 19014/11 14/03/2011 Lyudmila Fedorovna POLYAKOVA 1949 1) Slovyansk Court, 06/09/1999 2) Labour Disputes Commission of the Sodovyy Zavod, OJSC, 27/09/2001 3) Slovyansk Court, 12/04/2002 19115/11 14/03/2011 Viktor Andriyovych VASYLYUSHCHENKO 1958 Starokostyantyniv Court, 10/10/2006 19148/11 16/03/2011 Tamara Ivanivna STELMAKH 1935 1) Lugansk Circuit Administrative Court, 19/05/2008 2) Artemivskyy District Court of Lugansk, 10/11/2008 19170/11 23/02/2011 Anatoliy Volodymyrovych KLYMENKO 1956 Oleksandriya Court, 13/05/2008 19510/11 11/03/2011 Anatoliy Mykhaylovych GONCHARUK 1956 Tetiyiv Court, 23/10/2007 20037/11 11/03/2011 Mykola Oleksiyovych BOYCHENKO 1957 Oleksandriya Court, 28/01/2008 20119/11 14/03/2011 Petro Ivanovych PROZHOGA 1959 1) Oleksandriya Court, 14/04/2008 2) Oleksandriya Court, 11/09/2008 20250/11 17/03/2011 Valentina Nikolayevna BUCHOK 1965 Proletarskyy District Court of Donetsk, 02/09/2009 20320/11 21/03/2011 Ganna Sergiyivna ZHYTOVA 1936 Zhytomyr Circuit Administrative Court, 14/02/2008 20390/11 24/03/2011 Nina Mykolayivna PROKOPETS 1968 Irpen Court, 04/12/2007 20447/11 22/03/2011 Valentyna Mykhaylivna BARSUK 1960 Tetiyiv Court, 04/12/2007 20455/11 22/03/2011 Sophiya Ivanivna SOLOVEY 1943 Tetiyiv Court, 31/01/2008 20543/11 16/03/2011 Galina Stepanovna CHERNYAVSKAYA 1954 Kostyantynivka Court, 26/06/2002 20549/11 22/03/2011 Petro Vasylyovych BARSUK 1954 Tetiyiv Court, 03/12/2007 20599/11 22/03/2011 Oksana Mykolayivna RYEZNIKOVA 1979 Lugansk Circuit Administrative Court, 30/03/2009 20792/11 21/03/2011 Mykola Oleksiyovych PLYS 1938 1) Kharkiv Administrative Court of Appeal, 29/10/2009 2) Barvinkovo Court, 22/02/2010 20962/11 19/03/2011 Valentina Aleksandrovna FEDICHEVA 1951 Kostyantynivka Court, 09/02/2001 21360/11 23/03/2011 Lidiya Prokopivna PALAMARCHUK 1953 Tetiyiv Court, 26/11/2007 21364/11 23/03/2011 Nelya Dmytrivna KORDUN 1950 Tetiyiv Court, 22/11/2007 21404/11 23/03/2011 Vasyl Oleksiyovych POTIYENKO 1936 Tetiyiv Court, 10/12/2007 21409/11 23/03/2011 Vira Oleksandrivna GORBUNOVA 1957 Tetiyiv Court, 28/11/2007 21512/11 23/03/2011 Anatoliy Petrovych DIKHTYARUK 1954 Tetiyiv Court, 12/12/2007 21523/11 14/03/2011 Sergiy Mykhaylovych PAVLOV 1929 Yenakiyeve Court, 05/11/2008 21779/11 28/03/2011 Yuriy Oleksiyovych SHKURKO 1960 Barvinkovo Court, 28/12/2009 22018/11 28/03/2011 Petro Dmytrovych NESKOROMYUK 1951 Tetiyiv Court, 03/12/2007 22032/11 24/03/2011 Galyna Grygorivna NAGAYCHUK 1949 Tetiyiv Court, 22/11/2007 22064/11 24/03/2011 Volodymir Adamovych UMANETS 1946 Tetiyiv Court, 10/12/2007 22112/11 24/03/2011 Lyudmyla Oleksandrivna ZVIZDOVSKA 1965 Tetiyiv Court, 10/12/2007" ]
[ "FIFTH SECTION CASE OF TELIGA AND OTHERS v. UKRAINE (Application no. 72551/01) JUDGMENT STRASBOURG 21 December 2006 FINAL 21/03/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Teliga and Others 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,MrsR. Jaeger,MrM.", "Villiger, judges, and Mrs C. Westerdiek, Section Registrar, Having deliberated in private on 27 November 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 72551/01) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Ukrainian nationals, Mrs Lyubov Volodymyrivna Teliga, the first applicant, Mr Vasyl Fedorovych Zamozdra, the second applicant, and Mrs Tetyana Grygoriyivna Golovatenko, the third applicant, and Mr Volodymyr Leonidovych Bilyi, the fourth applicant (“the applicants”), on 16 March 2000. 2. The Ukrainian Government (“the Government”) were represented by their Agents (Ms Zoryana Bortnovska, Ms Valeria Lutkovska and Mr Y. Zaytsev).", "3. On 20 February 2004 the Court decided to communicate the complaints concerning the alleged violation of Articles 6 § 1, 13 and 1 of Protocol No. 1 to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The first applicant was born in 1949. The second applicant was born in 1946. The third applicant was born in 1951. The fourth applicant was born in 1961.", "All the applicants reside in Oleksandriya, the Kirovograd region, and are Ukrainian nationals. A. The proceedings as to annulment of the OM's property transaction. 1. Proceedings instituted by the prosecution service 5.", "In 1994 the applicants became minority shareholders of the privatised JSC “Oleksandriysky Myasokombinat” (the “OM”), formerly State-owned enterprise, by investing property bonds issued by the State in the statutory fund of the OM. In total, the applicants had 0.25% of the OM's shares. In particular, the first applicant owned 109 shares (0.15 % of the OM's shares), the second and third applicant each owned 39 shares (0.05% of the OM's shares). The fourth applicant also made some similar minor investments into the OM. He did not specify a number of shares he owned.", "6. On 17 June 1994 the OM was officially registered as a legal entity with the Kirovograd Regional Council. 7. On 21 November 1997 the Kirovograd Regional Directorate of the JSC “Ukrsocbank” (the “USB”) signed a UAH 1,000,000[1] loan agreement with the OM, with its property used as security. 8.", "On 11 December 1997 the ad hoc arbitration court ordered the OM to pay USB a sum of UAH 1,018,493.15[2] in compensation for loan arrears. 9. On 12 December 1997 the USB sold the property of the OM to “Eldorado” (a private company). 10. In April 1998 five of the OM's shareholders (not including the applicants) T., P., K., M. and S. lodged a complaint with the Prosecutor of the Kirovograd Region seeking annulment of the transactions between the USB, the OM and “Eldorado”, the company that allegedly infringed their property rights.", "They also petitioned the Prosecutor to act as their legal representative and institute the civil proceedings against the aforementioned companies on their behalf. 11. On 2 July 1998 the Kirovograd Regional Arbitration Court rejected the protest lodged by the Prosecutor of the Kirovograd Region against the judgment of the ad hoc arbitration court of 11 December 1997 as being unsubstantiated. 12. In June 1998 the Prosecutor of the Kirovograd Region instituted proceedings on behalf of the above-mentioned shareholders T., P., K., M. and S. against the USB and “Eldorado” seeking annulment of the aforementioned property transactions.", "(Contract on sale of USB's property was appealed against by the State Tax Inspectorate of Kirovograd and this appeal was subsequently joined by the court to the claims lodged by the Prosecutor of Kirovograd Region against OM). 13. On 3 July 1998 the Oleksandriya City Court (the “Oleksandriya Court”) allowed the Prosecutor's claims and annulled the secured loan agreement of 21 November 1997 concluded by the OM and the agreement of 12 December 1997 between the USB and “Eldorado”. It also ordered the restitution of property to the OM. In particular, the court found that the real value of the OM's secured property was UAH 12,478,649[3] and did not correspond to the sums paid for it by “Eldorado”.", "This judgment was not appealed in cassation and became final and binding. 14. On 21 September 1998 the President of the Kirovograd Regional Court suspended the execution proceedings of the judgment of 3 July 1998 due to the initiation of supervisory review proceedings in the case upon his protest. 15. On 7 October 1998 the Presidium of the Kirovograd Regional Court quashed the judgment of the Oleksandriya Court of 3 July 1998 following a protest of the President of the Kirovograd Regional Court.", "The Presidium remitted the case for a fresh consideration. In particular, the Presidium found that the first-instance court incorrectly assessed circumstances of the case and misapplied the procedural and substantive law. It instructed the lower court to assess evidence and the case-file in full and to adopt a lawful and substantiated judgment, based on the Presidium's considerations. A member of the Presidium of the Kirovograd Regional Court expressed a dissenting opinion in the case, disagreeing with the quashing of the judgment of 3 July 1998 that had become final and binding. 16.", "On 27 October 1998 the Deputy President of the Higher Arbitration Court rejected the protest of the President of the Kirovograd Regional Arbitration Court by which he sought to institute supervisory review proceedings on the resolution of the Kirovograd Regional Arbitration Court of 2 July 1998. 17. On 30 November 1998 the Deputy President of the Supreme Court refused to initiate a supervisory review of the resolution of the Presidium of the Kirovograd Regional Court of 7 October 1998. 18. On 29 March 1999 the President of the Kirovograd Regional Court, acting within the limits of his jurisdiction under Article 133 of the Code of Civil Procedure, decided that the case-jurisdiction should be changed to the Leninsky District Court of Kirovograd.", "On 31 March 1999 the case file was sent to that court for further consideration on the merits. 19. On 23 May 1999 the Oleksandriya Prosecution Service terminated the criminal investigation into financial fraud committed by the OM's management due to the absence of any corpus juris in their actions. 20. On 7 June 1999 the Leninsky District Court of Kirovograd (the “Leninsky Court”) rejected the claims of the Prosecutor of the Kirovograd Region, who acted on behalf of the OM shareholders T., P., K., M. and S. (see paragraph 13 above), as being unsubstantiated.", "This judgment was not appealed in cassation and became final. 21. On 22 December 1999 the Presidium of the Kirovograd Regional Court allowed the protest of the Deputy Prosecutor of the Kirovograd Region and quashed the judgment of 7 June 1999, remitting the case to the same court for a fresh consideration. In particular, the Presidium of the Kirovograd Regional Court stated that, as the Leninsky Court had failed to comply with the instructions laid down in its previous resolution (see paragraph 15 above), the court had breached the norms of procedural and substantive law. It also decided that the case-jurisdiction be changed to the Kirovsky District Court of Kirovograd (the “Kirovsky Court”).", "22. On 13 June 2000 the Kirovsky Court, acting in accordance with Article 221 § 4 of the Code of Civil Procedure, adjourned the proceedings in the case due to other proceedings pending before the Oleksandriya Court which could affect the outcome of the case. These proceedings concerned the complaint of Ms G.V.R., the director of “Eldorado”, lodged against the OM and that concerned similar factual circumstances and legal issues. 23. On 21 August 2000 the Deputy President of the Regional Court informed the President of the Kirovsky Court of the need to expedite the case-proceedings.", "24. On 24 January 2001 the Oleksandriya Prosecution Service refused the applicant's request to re-open the criminal investigation. 25. On 2 March 2001 the President of the Kirovograd Regional Court refused to initiate supervisory review proceedings upon the applicants' complaints lodged with the President of the Supreme Court. In particular, he stated that there was no final decision taken in the case and therefore, under Article 327 of the Code of Civil Procedure, there was nothing to review in the course of supervisory review proceedings.", "26. On 4 April 2001 the Judge K. of the Oleksandriya Court informed the applicants that the case had not been considered on the merits on account of the court's excessive workload (in this respect judge K. mentioned that to have examined 140 civil and 17 criminal cases within the last three months), reference was also made to the fact that the Ms G.V.R., had lodged two motions on 3 March and 15 May 2001 seeking to adjourn the hearing of the case as it was being considered by other authorities. 27. On 13 June 2001 the Oleksandriya Court terminated the proceedings concerning the claims of Ms G.V.R. as she had failed to appear before the court.", "It also found that she had been duly notified about the date and place of the hearing. 28. On 7 September 2001 Ms G.V.R. lodged fresh complaints with the Oleksandriya Court against the OM seeking compensation for pecuniary and non-pecuniary damage to her property. 29.", "On 11 September 2001 the Kirovograd Regional Prosecution Service informed the applicants that they could bring the proceedings in their case in the Kirovsky Court. They were further informed that the case of Ms G.V.R. was terminated on 13 June 2001 (see paragraph 27 above) and that there were now no obstacles to considering their case on the merits in the Kirovsky Court. 30. On 12 November 2001 the acting President of the Kirovograd Regional Court of Appeal (the “Court of Appeal”) requested the President of the Kirovsky Court to ensure the examination of the applicants' case within a reasonable time.", "He also mentioned that the competent judge of the court would have to provide plausible explanations before the judicial disciplinary board as to the applicants' claims that the examination of the Prosecutor's claims lodged against OM had taken the Kirovsky Court an unreasonable time. 31. On 5 December 2001 the President of the Kirovsky Court informed the applicants that the proceedings of which they complained (see paragraph 12 above) were suspended on 13 June 2000 in view of the outcome of the proceedings instituted by Ms G.V.R., which were pending before Oleksandriya Court. 2. Proceedings joined by the first applicant 32.", "On 26 December 2001 the first applicant instituted civil proceedings in the Kirovsky Court against “Eldorado-OM Ltd.” seeking to annul the above mentioned property transaction. 33. On 7 February 2002 the Prosecutor of the Kirovograd Region suggested to the court that the first applicant's claims and those of the Prosecution, instituted on 17 June 1998, acting in the interests of the State and the shareholders T., P., K., M. and S., be joined. 34. On 15 April 2002 the Prosecutor of the Kirovograd Region informed the applicants that he had lodged a motion with the Kirovsky Court requesting that the proceedings suspended on 13 June 2000 be resumed (see paragraph 22 above).", "35. On 16 April 2002 the President of the Court of Appeal decided to change the case-jurisdiction from the Kirovsky Court to the Leninsky Court. 36. On 17 April 2002 the case-file was remitted to the Leninsky Court. 37.", "On 29 April 2002 the Oleksandriya Court informed the Leninsky Court of the judgment of 13 June 2001 rejecting the claims of Ms G.V.R. and others. 38. On 30 April 2002 the Leninsky Court joined the suits brought by the first applicant and the public prosecutor against “Eldorado” and the USB. On the same day, the judge resumed the proceedings.", "39. On 14 May 2002 the court adjourned the proceedings due to the parties' failure to appear. 40. On 3 June 2002 the President of the Kirovsky Court informed the first applicant that the proceedings in the case were still adjourned. He also informed her that the case file had been remitted to the Leninsky Court for consultation due to the pending proceedings in another case.", "41. On 25 July 2002 the proceedings were adjourned due to the parties' failure to appear. 42. On 8 and 29 November and on 24 December 2002 the court adjourned the hearings due to the parties' failure to appear. 43.", "On 22 January 2003 the Leninsky Court terminated the proceedings in the part supported by the public prosecutor (as the shareholders T., P. and M. renounced their claims and the two remaining shareholders were apparently disinterested in the proceedings). The proceedings instituted by the first applicant were remained pending. 44. On 24 February 2003 the court adjourned the proceedings to 17 March 2003 due to the defendant's representative's failure to appear before it. 45.", "On 17 March 2003 the Leninsky Court requested the President of the Court of Appeal to change the jurisdiction of the case to the Oleksandriya Court as the parties had failed to appear before the court for the hearing again. 46. On 19 March 2003 the Court of Appeal remitted the first applicant's claims lodged against “Eldorado” and the OM to the Oleksandriya Court for consideration on the merits. 47. On 7 April 2003 the Court of Appeal informed the first applicant that the case-jurisdiction had been transferred to the Oleksandriya Court (in accordance with Article 133 of the Code of Civil Procedure).", "On the same date a judge of the Oleksandriya Court invited the parties for a meeting to decide on the proceedings in the case. 48. On 17 April 2003 the judge of the Oleksandriya Court decided that the hearing be held on 27 May 2003. 49. On 27 May and 10 June 2003 the hearings were adjourned due to the defendant's failure to appear.", "50. On 10 July 2003 the Kirovograd Commercial Court declared the OM bankrupt. 51. On 19 August and 1 September 2003 the defendant failed to appear again. 52.", "On 17 September 2003 the Oleksandriya Court rejected the first applicant's claims due to her failure to comply with the statute of limitation, finding that she had lodged her complaint more than three years after the transaction took place. 53. On 14 November 2003 the Oleksandriya Court ordered the first applicant to pay the court fee. 54. On 8 December 2003 the judge of the Oleksandriya Court refused leave to appeal to the first applicant as she failed to pay the court fee for its introduction.", "55. On 5 February and 22 April 2004 the Court of Appeal quashed the decisions of the Oleksandriya Court of 14 November and 8 December 2003, respectively, and remitted the case for a fresh consideration. 56. 26 February 2004 the Oleksandriya Court rejected the first applicant's appeal as she failed to comply with formalities for its introduction, namely to provide a copy of the appeal. 57.", "On 4 March 2004 the applicant filed a copy of her appeal. 58. On 1 April 2004 the Court of Appeal ruled that it had jurisdiction to examine the appeal. 59. On 22 April 2004 the Court of Appeal quashed the judgment of 17 September 2003 and remitted the case for a fresh examination to the Oleksandriya Court in a different composition.", "60. On 21 May 2004 the first applicant amended her claims. 61. On 2 July 2004 the Oleksandriya Court terminated the proceedings in the case. In particular, the court stated that the first applicant was not a party to the above mentioned property transaction.", "62. On 10 March 2005 the Court of Appeal quashed this ruling and remitted the case for an examination of its merits. 63. On 22 May 2006 the Oleksandriya Court rejected the first applicant's claims lodged against “Eldorado” and the USB as to the unlawfulness of the security and sales agreement of the property belonging to OM. 64.", "On 7 June 2006 the Kremenchuk District Prosecutor informed the first applicant that the criminal investigation into allegations of financial fraud during the sale of OM's property was still pending. 65. On 9 June 2006 the first applicant appealed against the judgment of 22 May 2006. 66. On 17 July 2006 Mr G., a judge of the Court of Appeal, refused leave to appeal to the first applicant as the first-instance court had failed to rule on the payment of a court fee for the introduction of the complaint [(as provided by the Decree of the Cabinet of Ministers of Ukraine “On State Tax” from 1% from the cost of the claim or from 3 to 100 minimal citizen's revenue free from taxation).]", "The case-file was returned to the Oleksandriya Court for decision as to the payment of the State court fee that was to be adopted before 28 August 2006. 67. The proceedings appear to be still pending before the domestic courts. B. The proceedings as to the enforcement of the judgments given against the OM in the first applicant's favour 68.", "On 28 June 1998 the Oleksandriya Court ordered the OM to pay the first applicant UAH 767.28[4] in salary arrears. 69. In January 2004 the first applicant instituted civil proceedings against the Oleksandriya Bailiffs' Service seeking to find unlawful the failure to enforce the judgment given in her favour. 70. On 27 December 2004 the Oleksandriya Court allowed the first applicant's claim and ordered the Oleksandriya Bailiffs' Service to pay her UAH 1,383[5] in compensation for pecuniary and non-pecuniary damage.", "71. On 12 April 2005 the Court of Appeal quashed this decision and remitted the case for a fresh consideration. 72. The proceedings are still pending before the first instance court. II.", "RELEVANT DOMESTIC LAW A. Constitution of Ukraine of 1996 73. The relevant provisions of the Constitution of Ukraine provide as follows: Article 129 “...The main principles of judicial proceedings are: 1) legality; ... 8) ensuring complaints against court decisions by way of appeal and cassation, except in cases finalised by law; 9) the mandatory nature of court decisions. The law may also determine other principles of judicial procedure in courts of specific jurisdiction.” B. The Law “on the Introduction of Changes to the Code of Civil Procedure” of 21 June 2001 74.", "The relevant provisions of the Law of 21 June 2001 read as follows: Chapter II Transitional provisions “1. This Law shall enter into force on 29 June 2001 ... 3. Appeals in civil cases lodged before 29 June 2001 shall be considered in accordance with the procedure adopted for the examination of appeals against local court judgments. 4. Protests against judgments lodged before 29 June 2001 shall be sent to the Supreme Court of Ukraine for consideration in accordance with the cassation procedure.", "5. Judgments that have been delivered and which have become enforceable before 29 June 2001 can be appealed against, within three months, in accordance with the cassation procedure [to the Supreme Court of Ukraine].” THE LAW I. PRELIMINARY CONSIDERATIONS A. The fourth applicant 75. The Court notes that the last and only letter sent to it by the fourth applicant dated 10 August 2000.", "It further observes that on 10 July 2003 the first, the second and the third applicant submitted a letter, stating to be the only applicants in the case. 76. Having regard to Article 37 § 1 (a) of the Convention, the Court concludes that the fourth applicant does not intend to pursue his application. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the further examination of his complaints. B.", "Scope of the case 77. On 12 July 2005 the first applicant lodged an additional new complaint with the Court concerning the non-enforcement of the judgment given in her favour against the OM, a privatised company, by the Oleksandriya City Court on 28 June 1998. In the Court's view, this complaint is not an elaboration of his original complaint to the Court lodged one and a half years earlier and on which the parties have commented. The Court considers, therefore, that it is not appropriate now to take these matters up separately (cf. Piryanik v. Ukraine, no.", "75788/01, §§ 19-20, 19 April 2005). II. ADMISSIBILITY 78. The first, second and third applicants complained about the excessive length of the civil proceedings in their case. They also alleged that they had no effective remedies by which to complain about the excessive length of the proceedings and the lack of effective access to the domestic courts.", "They referred to Articles 6 § 1 and 13 of the Convention, which in so far as relevant, provide: “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...” “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.” 79. The applicants further complained about the infringement of Article 1 of Protocol No. 1 to the Convention. They alleged that the OM's shares, which they owned had lost their value as a result of unlawful commercial transactions by the OM's management. This provision reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.", "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. The complaints raised by the second and the third applicants 80. The Government submitted that the complaints of the applicants Ms Zamorozda and Ms Golovatenko should be found inadmissible since they were not participants in the civil proceedings concerning the invalidation of the OM's property transaction. For this reason, their complaints under Articles 6 § 1 and 13 of the Convention should be rejected as incompatible ratione personae in accordance with Article 34 of the Convention.", "As to their complaints under Article 1 of Protocol No. 1, they should be rejected under Article 35 §§ 1 and 4 of the Convention as these applicants failed exhaust the domestic remedies. 81. The applicants disagreed. In particular, they stated that the fact that the public prosecutor instituted proceedings on behalf of T., P., K., M. and S., five of the OM's shareholders (see paragraph 10 above), does not exclude the interest of other shareholders in the outcome of the proceedings.", "82. The Court observes that the public prosecutor's claims, joined with the claims of the Tax Inspection (see paragraph 12 above), were lodged in the interests of the aforementioned shareholders by a public official (see Merit v. Ukraine, no. 66561/01, § 63, 30 March 2004), who had a power to intervene in order to protect particular shareholders' constitutional rights, State and public interests. The dispute at issue concerned the “determination of the civil rights and obligations” of the shareholders T., P., K., M. and S., who inter alia, asked the prosecutor to intervene on their behalf and initially participated in the proceedings (see paragraph 10 above). 83.", "In this respect, the Court reiterates that a person cannot complain about a violation of his or her rights in the proceedings, to which he or she was not a party, despite the fact that she or he was a shareholder of the company that these proceedings concerned (see, e.g., F. Santos Lda. and Fachadas v. Portugal (dec.), no. 49020/99, 19 September 2000; Nosov v. Russia (dec.), no. 30877/02, 20 October 2005). Taking into account that the second and the third applicants have never been parties to proceedings concerning the invalidation of the OM's property transaction, the Court concludes that they may not be regarded as victims in respect of the allegations they raise (see Fédération chrétienne des témoins de Jéhovah de France v. France (dec.), no.", "53430/99, ECHR 2001‑XI). 84. It follows that the complaints lodged by the second and the third applicants must be rejected as being incompatible ratione personae, pursuant to Article 35 §§ 3 and 4 of the Convention. B. The complaints lodged by the first applicant 85.", "The Government submitted that the complaints of the first applicant under Articles 6 § 1 and 13 of the Convention should also be found inadmissible since she joined the above mentioned proceedings only in December 2001, and that that part of the proceedings complained about was not unreasonably long. As to her complaints under Article 1 of Protocol No. 1, they should be rejected under Article 34 of the Convention as the applicant was a minor shareholder of the OM. 86. The applicant disagreed.", "In particular, she stated that the fact that the public prosecutor instituted proceedings on behalf of five the OM's shareholders did not exclude the interest of other shareholders in the proceedings. As to the observations regarding her complaints under Article 1 of Protocol No. 1, she claimed, without providing any specific facts or documents, that the contested transaction of the OM's property had caused the significant loss in value of her shares. C. The Court's assessment 87. The Court notes at the outset, as to the applicant's complaints under Article 1 of Protocol No.", "1 to the Convention, that the applicant as a minor shareholder, who owned 0.15% of the OM's shares (see paragraph 6 above), cannot in principle claim to be a victim of a violation of Article 1 of Protocol No. 1 as a result of actions aimed at the property of the company (see Penton v. Turkey (dec.), no. 24463/94, 14 April 1998), as piercing the corporate veil can be justified only in exceptional circumstances (see Agrotexim and Others v. Greece, judgment of 24 October 1995, Series A no. 330‑A, § 66). The Court does not discern any exceptional circumstances in the present case.", "It therefore decides that this part of the first applicant's complaints must be rejected in accordance with Articles 34 of the Convention as being incompatible ratione personae. 88. The Court further notes, in relation to Article 6 § 1 of the Convention, that the parties have not commented on its applicability as to whether the dispute involved “determination of civil rights and obligations”. It therefore will examine the case on the assumption that this provision is applicable. 89.", "The Court considers, in the light of the parties' submissions, that the first applicant's complaints under Articles 6 § 1 and 13 of the Convention as to the unreasonable length of the proceedings and as to the lack of effective remedies in that respect, raise issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established. They should therefore be declared admissible. III.", "MERITS A. Alleged violation of Article 6 § 1 of the Convention 90. The Government maintained that there were no significant periods of delay that could be attributed to the domestic authorities. In particular, they stated that the applicant was herself responsible for the delays in April – December 2002. 91.", "The applicant disagreed. In particular, she stated that the domestic courts protracted hearings in the case. 92. The Court finds that the period under consideration started on 26 December 2001, when the first applicant lodged claims in her own behalf. It further, observes that the proceedings are still pending before the first instance court, after more than four years and eleven months.", "93. The Court recalls that the “reasonableness” of the length of proceedings must be assessed in accordance with the circumstances of the case and the following criteria: the complexity of the case, the behaviour of the applicant and that of the competent authorities and what was at stake for the applicant in the dispute (see Svetlana Naumenko v. Ukraine, no. 41984/98, § 77, 9 November 2004). 94. It considers that the subject matter of the litigation was not especially complex.", "95. As to the applicant's conduct, the Court sees no periods of substantial delay for which she was responsible. Moreover, the Government have failed to submit any evidence thereof. The Court also notes that the delays that could be attributed to the applicant related to periods when the hearings were adjourned five times as both the applicant and the defendant failed to attend the hearings (see paragraphs 38, 40 and 41 above). These delays amount to a total of about six months and the authorities cannot be responsible for them.", "They cannot also be responsible for adjournments of the case, for four months, due to the defendant's failure to appear on five occasions (see paragraphs 48 and 50 above). However, they should have taken reasonable steps to assure defendant's presence in the course of the hearing or could have proceeded with the final examination of the case in defendant's absence. 96. The Court further observes that there were certain delays attributable to the judicial authorities caused by their various remittals of the case for a fresh consideration from the court of appeal to the first-instance courts and reassignments of the case from one court to the other. In particular, it is to be noted that the case had been remitted for a fresh consideration on three occasions by the court of appeal and the case-jurisdiction had been reassigned twice (see paragraphs 35, 45, 58 and 61 above).", "97. In conclusion, regard being had to the circumstances of the instant case, the length of the proceedings from December 2001 to present date, namely four years and eleven months, the Court concludes that there was an unreasonable delay in disposing of the applicant's case. 98. There has accordingly been a violation of Article 6 § 1. B.", "Alleged violation of Article 13 of the Convention 99. Lastly, the first applicant complained that in Ukraine there were no effective remedies which could be used to obtain redress for the excessive length of the civil proceedings. She relied on Article 13 of the Convention. 100. The Government submitted that the first applicant had a possibility to introduce different procedural petitions with the courts hearing her case seeking to expedite its processing.", "For instance, in case of a failure of the respondent party to appear for hearings it was open for the applicant to ask for examination of the case without its participation or require that the respondent party's representatives be obliged to appear before the court. The Government concluded that there had been no violation of Article 13 of the Convention, in respect of the lack of effective remedies for the applicant's complaints under Article 6 § 1 of the Convention as to the length of the proceedings. 101. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI).", "It recalls that 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 Kudła v. Poland, cited above, §§ 157-159). Moreover, the remedy required by Article 13 must be “effective” in practice as well as in law (cf. Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI). The existence of such a remedy must be sufficiently certain not only in theory but also in practice, failing which it will lack the requisite accessibility and effectiveness (see, inter alia, Mifsud v. France (dec.) [GC], no.", "57220/00, ECHR 2002-VIII). 102. As to the remedies mentioned above and referring to the constant case-law of the Court on the matter of length of proceedings, the Court notes that the Government have not shown how recourse to such remedies could have expedited the proceedings in the case or how it could provide a redress for the delays in the applicant's proceedings that were pending. Furthermore, the Government have not supplied any example from domestic case-law to show that such proceedings by a litigant were successful. The Court also notes that the letter of 12 November 2001 by the acting President of the Kirovograd Regional Court had no effect on the course of the ensuing proceedings (see paragraph 30 above).", "103. In these circumstances, the Court considers that it has not been sufficiently established that recourse to the remedies suggested by the Government would have been capable of affording redress to the first applicant in relation to his complaints concerning the length of the proceedings (see Efimenko v. Ukraine, no. 55870/00, § 64, 18 July 2006). 104. Accordingly, the Court 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 for the first applicant's complaint in respect of the length of his civil proceedings.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 105. 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 106. The first applicant claimed UAH 80,000[6] in lost profits, UAH 60,000[7] in lost income and she also sustained losses to her unpaid yearly pension that amounted to UAH 1,200[8].", "She also claimed USD 100,000[9] in non-pecuniary damage. 107. The Government submitted that the pecuniary damage claims were unsubstantiated and exorbitant. They have requested the Court to determine the amount of compensation on equitable basis in accordance with the Court's previous case-law. 108.", "The Court makes no award in relation to the pecuniary damage claimed by the first applicant since there is no substantiation that that damage flowed from the Convention breaches found. Nevertheless, the Court finds that the first applicant may be considered to have suffered some degree of frustration and distress, given the length of proceedings in her case. It therefore awards her on an equitable basis EUR 1,700 (euros) in respect of non-pecuniary damage. B. Costs and expenses 109.", "The first applicant claimed no costs and expenses for the Convention proceedings neither for the proceedings before the domestic courts. 110. The Court therefore makes no award under this head (see Dulskiy v. Ukraine, no. 61679/00, § 100, 1 June 2006). C. Default interest 111.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to strike the fourth applicant's complaints out of its list of cases; 2. Declares the first applicant's complaints concerning the length of the proceedings and the lack of effective remedies in that respect admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4.", "Holds that there has been a violation of Article 13 of the Convention; 5. Holds (a) that the respondent State is to pay the first applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 1,700 (one thousand seven hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable; (b) 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 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 unanimously the remainder of the first applicant's claim for just satisfaction. Done in English, and notified in writing on 21 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident [1].", "About EUR 500,000. [2]. About EUR 510,000. [3]. About EUR 2,422,803.", "[4]. About EUR 150. [5]. EUR 197.16. [6].", "EUR 12,779. [7]. EUR 9,584. [8]. EUR 191.68.", "[9]. EUR 82,754." ]
[ "FORMER FIRST SECTION CASE OF TSECHOYEV v. RUSSIA (Application no. 39358/05) JUDGMENT STRASBOURG 15 March 2011 FINAL 15/06/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Tsechoyev v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Dean Spielmann,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Sverre Erik Jebens, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 13 January and 22 February 2011, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no.", "39358/05) 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 Ruslan Tsechoyev (“the applicant”), on 7 November 2005. 2. The applicant was represented by lawyers of the NGO EHRAC/Memorial Human Rights Centre. The Russian Government (“the Government”) were represented by the Representative of the Russian Federation at the European Court of Human Rights, Mr G. Matyushkin. 3.", "On 10 June 2008 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application and to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1). The President of the Chamber acceded to the Government's request not to make publicly accessible the documents from the criminal investigation file deposited with the Registry in connection with the application (Rule 33 of the Rules of Court). 4. The Government objected to the joint examination of the admissibility and merits of the application.", "Having considered the Government's objection, the Court dismissed it. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1965. He lives in Sagopshi, in the Malgobek district of Ingushetia.", "6. The applicant is the brother of Suleyman Tsechoyev, born in 1956. A. Suleyman Tsechoyev's arrest 1. Suleyman Tsechoyev's arrest and detention in Ingushetia 7. At the material time the applicant studied law in Yekaterinburg, Russia.", "The applicant was not an eyewitness to his brother's arrest and the following account is based on the witness statements collected by him later. 8. On the night of 23 October 1998 the applicant's brother Suleyman Tsechoyev was arrested in the family house situated at 40, Shosseynaya Street, in the settlement of Sagopshi in the Malgobek district of Ingushetia. The arrest was apparently carried out by the officers of the North Caucasus Regional Department for the Fight against Organised Crime (Северокавказское Региональное Управление по Борьбе с Организованной Преступностью – “the RUBOP”). The applicant submitted that at the time of the arrest the officers did not introduce themselves and did not present any documents or justification for their action.", "Nor did they inform the family where they were taking Mr Tsechoyev. 9. On 28 October 1998 the applicant, alerted by his mother, arrived at Sagopshi. His relatives told him that there had been no news of Suleyman Tsechoyev's whereabouts. 10.", "According to the documents submitted by the Government, on 3 November 1998 Suleyman Tsechoyev had been charged with aiding and abetting the kidnapping of Magomed K. on 5 September 1998, together with two other men and unidentified persons from Chechnya. The kidnapped man had been taken to Chechnya in two VAZ cars. 11. On 6 November 1998 the applicant, together with his sister, met with Mr Magomed Ye., the deputy prosecutor of Malgobek. The latter informed them that their brother had been arrested on his orders by officers of the RUBOP and was being detained in the town of Nazran, Ingushetia.", "Mr Magomed Ye. refused to tell the applicant and his sister where exactly their brother was detained and what charges had been brought against him. 12. On 20 November 1998 the applicant found out that his brother had been detained at the temporary detention centre (“the IVS”) of the Malgobek district police department (ROVD). 13.", "The applicant hired a lawyer, who unsuccessfully tried to reach Suleyman Tsechoyev at the detention centre. 14. In the beginning of December 1998 the applicant had a meeting with Mr Magomed Ye. The latter allegedly told him that he would release his brother in exchange for 6,000 US dollars (USD) and threatened to have Suleyman Tsechoyev transferred to the headquarters of the RUBOP in Nalchik, Kabardino-Balkaria, where he would be subjected to severe ill‑treatment, if the applicant refused to pay the money. The applicant refused to pay.", "15. On 24 February 1999 the applicant saw his brother at the IVS. Suleyman Tsechoyev told the applicant that he had been pressured to confess to the crime and that he had been threatened with transfer to the RUBOP headquarters in Nalchik. 16. On 25 February 1999 the applicant returned to the detention centre to see his brother.", "He was told by the employees that the night before, at around 10 p.m., Suleyman Tsechoyev had been taken to the prosecutor's office and that after that, at about midnight, he had been taken away in a vehicle in the direction of Nalchik. 17. The Government confirmed that on 23 October 1998 Suleyman Tsechoyev had been detained by the law-enforcement bodies in accordance with the provisions of the criminal procedural legislation in force at the material time. He had been detained in connection with the investigation into Mr Magomed K.'s abduction that had been opened on 15 September 1998 and registered under file number 98540062. The decision to place Suleyman Tsechoyev under arrest had been unsuccessfully appealed against to a court.", "The Government submitted that the term of detention for Mr Tsechoyev had been extended on several occasions, the last of which had been on 25 May 1999; his detention had been authorised until 24 October 1999. 2. Suleyman Tsechoyev's detention in Nalchik, Kabardino-Balkaria 18. The applicant and his relatives had no news of Suleyman Tsechoyev after 25 February 1999. On 16 March 1999 a man who introduced himself as “Aslan” contacted one of the applicant's relatives.", "According to “Aslan”, he had been detained with Suleyman Tsechoyev in cell no. 8 in pre-trial detention centre no. 1 (SIZO-1) in Nalchik, Kabardino-Balkaria. The applicant's brother had been detained there under a false identity and had been in poor health. 19.", "On 17 March 1999 the applicant, together with his lawyer Mr Magomed Ga., went to Nalchik to visit his brother. The applicant's lawyer was granted permission to see Suleyman Tsechoyev. According to the lawyer, Suleyman Tsechoyev was in poor health and had no access to medical treatment. 20. On 22 March 1999 the head of the SIZO-1 medical unit provided the applicant with a handwritten statement.", "According to it, Suleyman Tsechoyev had been brought to SIZO-1 on 26 February 1999 with numerous bruises, abrasions, scratches on his limbs and injuries to the chest. 21. On 30 July 1999 the applicant and his sister obtained the Malgobek district prosecutor's permission to visit their brother. Suleyman Tsechoyev told them that he had been pressured to confess to the involvement in the abduction of Mr Magomed K. and that he had been ordered to convince his relatives to pay USD 6, 000 for his release. Suleyman Tsechoyev told his relatives that he had been subjected to severe beatings in the building of the RUBOP situated at 49 Naumova Street in Nalchik.", "Finally, he insisted that the applicant and his other relatives should not pay money for his release. It does not appear that any complaints have been lodged in this respect. 3. Circumstances of Suleyman Tsechoyev's death 22. On 23 August 1999, at about 9 a.m., a group of four men wearing police uniforms arrived at SIZO-1 in a VAZ-2106 car.", "The men identified themselves as officers of the Malgobek ROVD in Ingushetia. Two of them entered the premises of the centre and produced the following documents authorising the transfer of Suleyman Tsechoyev from SIZO-1 to the Malgobek IVS: a) a letter from the acting prosecutor of Malgobek Mr U. B., dated 21 August 1999, requesting that Suleyman Tsechoyev be handed over to four officers of the Malgobek ROVD: Anzor K., Islam O., Kambulat K. and Ruslan B; b) a procedural decision in criminal case no. 98540062, dated 21 August 1999, concerning the transfer of the accused Suleyman Tsechoyev for investigative measures from SIZO-1 to the Malgobek IVS; c) an authority form, dated 23 August 1999, issued by the head of the Malgobek ROVD to officers of the Malgobek ROVD, Anzor K., Islam O., Kambulat K. and Ruslan B., concerning the transfer of Suleyman Tsechoyev to the Malgobek IVS. 23.", "The documents were produced to the employees of SIZO-1, officers Sh. and U., who handed Suleyman Tsechoyev over to the two men. The latter took the applicant's brother away in an unknown direction. 24. On 24 August 1999 Suleyman Tsechoyev's body was found in the Mayskiy district of Kabardino-Balkaria with gunshot wounds to the head.", "25. On 7 September 1999 two RUBOP officers arrived at the applicant's house. They told him that a body whose fingerprints were consistent with those of Suleyman Tsechoyev had been found in Kabardino-Balkaria and asked him to identify it. 26. On 8 September 1999 the applicant and his sister identified the body as that of Suleyman Tsechoyev.", "27. On 8 September 1999 the Kabardino-Balkaria forensic assessments office issued a report (no. 79). According to this, Suleyman Tsechoyev had died on an unspecified date from an open gunshot wound to the head. 28.", "It can be seen from the documents submitted by the Government that on 23 October 1999 the criminal proceedings in respect of Suleyman Tsechoyev were terminated in view of his death. 29. On 2 December 1999 the Malgobek town civil registration office issued a death certificate for Suleyman Tsechoyev. It stated that death had occurred on 23 August 1999. 30.", "The description of the events of the night of 23 October 1998 and the subsequent developments is based on the following documents: the applicant's accounts given on 10 and 16 February, 28 July and 29 August 2005; an account by the applicant's sister Ms L.B., given on 4 August 2005; an account by the applicant's neighbour R.G., given on 15 August 2005; a hand-drawn map of the premises of the applicant's house in Sagopshi and copies of the documents submitted with the application. 31. The Russian press widely reported the kidnapping for ransom of Magomed K., whose younger brother Musa K. had occupied a top executive position in Lukoil, one of Russia's largest oil companies, at the relevant time. It appears from the reports that Magomed K. had been freed from Urus‑Martan, Chechnya, some time in 1999 as a result of a raid carried out by his relatives, including Musa K., and that several well-known Chechen “field commanders” involved in the kidnapping were killed. Numerous publications also reported Suleyman Tsechoyev's murder and linked it to the kidnapping of Magomed K. Mr Magomed Ye., former deputy prosecutor of the Malgobek district, was quoted in many of these publications and wrote several articles himself.", "32. It can be seen from the information submitted by the Government that the official investigation into the kidnapping of Magomed K. was closed in November 2001. B. The official investigation 33. The Government, in response to the Court's request, submitted 380 pages from the investigation file, as well as additional information about its progress.", "They stated that disclosure of the remaining documents from the file could be harmful to the continuing investigation and sought application of Rule 33 § 3 of the Rules of Court to the submitted documents. 34. The applicant, in turn, submitted some additional information about his contacts with the investigation. The relevant information may be summarised as follows. 1.", "Opening of the investigation and other important procedural steps 35. On 24 August 1999 the prosecutor's office of the Mayskiy district of Kabardino-Balkaria instituted an investigation under Article 105 § 1 of the Criminal Code (murder) into the death of an unknown man whose body had been found in the vicinity of Aleksandrovskaya with gunshot wounds to the head. The case file was given number 16/24-99 (in the submitted materials the number is also referred to as 16/24). 36. On 9 September 1999 the investigation into the murder of Suleyman Tsechoyev was transferred to the Kabardino-Balkaria prosecutor's office.", "The applicant's family was informed of this by a letter from the Prosecutor General's Office. 37. On 9 December 1999 the Ingushetia prosecutor's office opened a criminal investigation in respect of Mr Magomed Ye. under Article 285 § 3 of the Criminal Code (abuse of power entailing serious consequences), no. 99540071.", "On 15 March 2000 the Ingushetia prosecutor's office opened an additional investigation into abuse of power by Magomed Ye. under file number 2054007. 38. On 23 May 2000 the three cases were joined under file number 16/24-99 at the Northern Caucasus department of the General Prosecutor's Office. 39.", "On 9 July 2001 (in accordance with the decision of 4 September 2002 suspending the investigation, see paragraph 46 below) the investigation in respect of Mr Magomed Ye., his relatives and members of the K. family (twelve persons altogether) for abuse of power was closed. 40. On 12 July 2001 criminal charges against Magomed Ye. for murder and kidnapping were dropped for want of evidence. 41.", "On 15 July 2001 the investigation into the murder was suspended in view of the failure to identify the suspects. 42. On 23 July 2001 the department of the Northern Caucasus department of the General Prosecutor's Office concluded that the investigation had been incomplete. The decisions of 12 and 15 July 2001 were quashed and the investigation was remitted to an investigator of that department with a number of specific directions. 43.", "In December 2001 the Northern Caucasus department of the General Prosecutor's Office created a special investigative group charged with solving the crime. 44. On 15 May 2002 charges of involvement in the kidnapping and murder of Mr Magomed Ye. were dropped for want of evidence. On the same day proceedings were suspended for lack of suspects.", "45. On 4 June 2002 the Russian Deputy General Prosecutor quashed the decisions of 9 July 2001 and 15 May 2002 and appointed a new investigative group, headed by the deputy head of the Northern Caucasus department of the General Prosecutor's Office. 46. On 4 September 2002 the investigation in criminal case no. 16/24‑99 was suspended owing to the failure to identify the perpetrators.", "On the same date the North Caucasus department of the Prosecutor General's Office informed the applicant of the decision. 2. Forensic and ballistic evidence 47. On 24 August 1999 the investigators carried out an examination of the site, compiled a description of the body and collected three cartridges. Two days later an additional examination of the site resulted in the finding of another cartridge and four bullets.", "48. On 25 August 1999 a forensic expert from the Mayskoye police department carried out an examination of the body and an autopsy. The expert found, inter alia, that the body bore six gunshot wounds to the left side of the head, each of which could have been lethal. The shots had been fired from a close range within a short period of time. The expert noted several bruises and abrasions on the face and hands, especially around the wrists, which had been caused within a period of twenty-four hours before death; he also noted traces indicating that the body had been dragged along immediately after the death had occurred.", "The expert concluded that death had occurred two or three days before the examination of the body. 49. On 23 September 1999 the ballistic expert reported that the four cartridges and bullets had been fired from one “Makarov” 9 mm calibre hand pistol. This conclusion was confirmed by a ballistic expert report of 14 November 1999, carried out by the expert department of the Ministry of the Interior of Kabardino-Balkaria. 3.", "Information obtained from the applicant and his relatives 50. On 9 September 1999 the investigator of the Mayskoye district prosecutor's office questioned the applicant. He stated that his brother had been detained on 23 October 1998 on the orders of the deputy prosecutor of the Malgobek district, Mr Magomed Ye., on suspicion of involvement in kidnapping. The applicant stated that on several occasions his brother had been transferred from one detention place to another. He had last seen him in June 1999 and Suleyman had complained that for a long time no investigative action had taken place.", "He also stated that in the beginning of September 1999 the investigator working on the kidnapping case had told him that he had ordered his brother's transfer to Malgobek and that he would soon be taken there. The applicant named several persons who could have been responsible for his brother's death, including former police officer Musa Kh., a cousin of the former deputy Malgobek district prosecutor Ibragim Ye., and Musa K. 51. On 30 September 1999 the investigator of the Kabardino‑Balkaria prosecutor's office again questioned the applicant, who gave detailed submissions relating the account of his brother's arrest and detention as summarised above. The applicant told the investigator that his brother had close friends in Urus-Martan, Chechnya, where he regularly travelled. He also stated that he suspected Magomed Ye.", "of masterminding and carrying out the operation aimed at abducting Suleyman Tsechoyev from the pre‑trial detention centre. He stated that Magomed Ye. had possessed the knowledge required to produce the papers necessary to organise the prisoner's transfer, that he had the necessary computer and other technical skills and that he had been rewarded by the relatives of Magomed K. In particular, the applicant stated that he was aware that Magomed Ye. had obtained from those relatives a VAZ vehicle, a computer, a mobile phone and that he had bought a flat in Nalchik, Kabardino-Balkaria, with money received from them. Furthermore, the applicant accused Magomed Ye.", "of being present when his brother had been beaten by relatives of Magomed K. outside Malgobek in February 1999. He again accused the K. family of organising his brother's murder and said that the crime could have been carried out by Magomed Ye., Musa Kh, Zaurbek Kh. and Mukhszhir Ye. 52. On the same day the applicant's sister L.B.", "told the investigator that she had visited her brother in prison, that he had not complained of anything but had denied that he had been involved in the kidnapping. She also named Magomed Ye. and Musa K., brother of the kidnapped Magomed K., as the possible perpetrators of the killing. 53. On 30 September 1999 the applicant and his sister L. B. were granted the status of victims in the criminal proceedings relating to their brother's murder.", "On 17 April 2000 the applicant was granted the status of victim in the criminal investigation carried out “into the unlawful actions of the former deputy prosecutor of the Malgobek town, Mr M[agomed] Ye.” 54. On 11 November 1999 the applicant and L. B. wrote to the Malgobek district prosecutor. They accused Mr Magomed Ye. of allowing the beating of their brother on the night of 24 to 25 February 1999 by two relatives of Ye. and by the relatives of Magomed K. They again submitted that Ye.", "had obtained property from the family of Magomed K. in return for his “assistance” in the solving of his kidnapping. 55. On 28 November 1999 the applicant's sister told the investigators that on 3 April 1999 she had visited her brother in prison and that on that day she had noticed marks from handcuffs and traces of beatings on his face. She also submitted that Suleyman Tsechoyev had told her that during the night of 24 February 1999 Magomed Ye. and his relatives, together with relatives of Magomed K., had taken him outside of Malgobek and beaten him in an attempt to obtain a confession regarding the kidnapping.", "56. On 15 December 1999 the applicant gave detailed submissions to an investigator from the Ingushetia prosecutor's office relating the arrest and detention of his brother, as described above. In addition, he submitted that on 3 April 1999 his brother had told him in great detail what had happened on the night of 24 to 25 February 1999 and named other persons who had been detained with him and questioned by the relatives of Magomed K. He also allegedly told him that he had been taken to several detention centres in the Northern Caucasus prior to being admitted to the pre-trial detention centre no. 1 in Nalchik because he had suffered from the beatings and the officials had refused to accept him. The applicant named Mr Magomed Ye.", "as the individual responsible for the ill-treatment of his brother and, ultimately, for organising his transfer to the murderers. He stressed that the documents authorising his brother's removal from the prison in Nalchik had been produced by someone who had detailed knowledge of the requirements for such documents and that the forgery had necessitated considerable computer skills. The applicant also submitted that on 28 August 1999 he had gone to the SIZO no. 1 in Nalchik and left a food parcel for his brother, which had been accepted. At that time he had not been informed that his brother was no longer detained there.", "57. On 17 December 1999 the applicant's sister repeated her previous statements. She stated, further, that in May and October 1999 Mr Ye. had threatened to kill her brother, the applicant. 58.", "On 17 December 1999 the applicant's mother gave statements similar to those of the applicant and her daughter. 59. On 21 April 2000 the applicant was questioned by an investigator from the Ingushetia prosecutor's office again. He repeated his allegations against Magomed Ye. 60.", "On 16 October 2001 the investigator from the Ingushetia prosecutor's office questioned the applicant again. He supplemented his previous statements and claimed that Mr Magomed Ye. had been acting in cooperation with the relatives of Magomed K. from the very early stages of the investigation. He stated that as early as September 1998 a number of men, whose names he had supplied to the investigation, had been arrested and then transferred to private residences where they had been beaten and tortured with the aim of extracting confessions. According to the applicant, Mr Magomed Ye.", "had participated in these actions and filmed them. The applicant also claimed that in February 1999 Mr Ye. had asked his mother and sister to pay USD 6,000 in return for his brother's release. He also submitted additional details about the circumstances of his brother's beatings on 24 February 1999. 4.", "Questioning of witnesses at the pre-trial detention centre and the prosecutor's office 61. The investigators questioned the staff at the pre-trial detention centre in Nalchik who had been on duty on 23 August 1999. On 10 September 1999 two officers stated that they had inspected the papers of the two men who had presented themselves as police officers from the Malgobek ROVD and had not found them suspicious. They had organised the transfer of Suleyman Tsechoyev to the two men in accordance with the usual procedure. One of the men bore the distinction of a Senior Lieutenant, the other of a non-commissioned officer of the Ministry of the Interior.", "The men had spoken Ingush between themselves; one of them had had a Motorolla radio receiver but had not used it during the encounter. One of the officers gave a detailed physical description of the two men and said that he would be prepared to identify them. The deputy head of the detention centre, Mr Zaurbi Sh., told the investigators that he had checked the names of the two men and the papers for the prisoner's transfer. He had not inspected their documents because, according to the relevant procedure, the identity documents should have been left at the entrance to the building. 62.", "Several of Suleyman Tsechoyev's co-detainees in the pre‑trial detention centre in Nalchik stated on 10 September 1999 that the deceased had not raised any complaints, that he had been visited by a lawyer and by his brother and that in August 1999 he had been taken away, apparently for transfer to Ingushetia. 63. On 12 October 1999 the acting prosecutor of the Malgobek district told the investigators that he had ordered Mr Tsechoyev's transfer to Malgobek on 5 August 1999, but for unknown reasons that order had not been complied with. The documents which had enabled Mr Tsechoyev to be kidnapped had been forged and their numbers corresponded to other documents. The persons indicated in the escort documents had not worked at the Malgbek ROVD.", "In June 2002 he gave a further statement, describing Mr Magomed Ye. as an honest and motivated officer who had been falsely accused by the applicant and his relatives. 64. On 15 November 1999 an officer from the Nalchik pre-trial detention centre identified a man from a photo as one of those who had collected Suleyman Tsechoyev on 23 August 1999. Later that man, a worker in a gas plant, submitted reliable evidence that he had not been in Kabardino-Balkaria at the time, as supported by documents and witness statements collected by the investigation.", "65. On 22 December 1999 the head of the Malgobek ROVD stated that Suleyman Tsechoyev had been detained at the Malgobek IVS from September 1998 to February 1999. He was shown the registration log of the IVS, according to which on 24 February 1999 Mr Tsechoyev had been taken out of the IVS at 11.40 p.m. by the local police officer Musa Kh. The head of the ROVD explained that he had been informed late at night by the officer on duty that the deputy district prosecutor had ordered that Mr Tsechoyev be brought to his office for questioning. At first the head of the ROVD had refused, but Mr Ye.", "had called him and insisted, threatening to open a criminal investigation if he did not comply. Mr Ye. explained that he had senior officers of the Ministry of the Interior in his office and that it was possible that Mr Tsechoyev would be transferred to Kabardino-Balkaria for further investigation. The head of the ROVD then agreed, but instructed his staff to obtain Mr Ye. 's signature to the effect that he had accepted the detainee.", "He could not explain why a district police officer, Mr Musa Kh., had signed. When questioned about Suleyman Tsechoyev's abduction and murder, the head of the police confirmed that the men identified in the escort documents had never served at the ROVD and that he had not issued the documents in question. 66. In addition to the above investigative documents, copies of which the Government submitted to the Court, it can be seen from their memorandum of 2 October 2008 that the investigators also questioned five acting and former officers of the Malgobek prosecutor's office, all of whom denied that they had been aware of any connection between the K. family and Magomed Ye. One of these officers, quoted by the Government, stated that Suleyman Tsechoyev had been a member of the bandit group based in Urus‑Martan, along with three other men who had been charged with kidnappings.", "67. The Government also submitted a copy of the record of interview of Zaurbek Kh., who stated that he had permanently lived in Moscow and had been there throughout the summer of 1999. Zaurbek Kh. denied having known Suleyman Tsechoyev; as to Magomed Ye., the witness stated that he had gone to the same school but had not kept in contact in recent years. 5.", "Graphology expert reports 68. On 16 November 1999 the investigators in criminal case no. 16/24‑99 carried out an expert assessment of three documents concerning the transfer of Suleyman Tsechoyev from SIZO-1 on 23 August 1999. The criminology expert of Kabardino-Balkaria concluded that the imprint of the Malgobek district prosecutor's office's seal had been reproduced with the aid of a factory-made stamp, but not the one used by the district prosecutor's office. The imprint of the Malgobek ROVD seal had been reproduced with the aid of a colour printer.", "A graphology expert report reported difficulties in analysing short notes with dates and signatures on the documents, but concluded that some of the notes could have been made by Mr Magomed Ye., his brother and by the acting Malgobek prosecutor. 69. On 14 December 1999 the Central North-Caucasus forensic laboratory issued an additional expert assessment. It concluded that the signatures on all the documents concerning the transfer of Suleyman Tsechoyev from SIZO-1 to the Malgobek IVS had been forged, and that the date and signature on one of the documents had been written by Mr Magomed Ye. 70.", "In October 2001 the investigators questioned a number of experts from the Central North-Caucasus forensic laboratory seeking an explanation for the differences in the reports. The experts referred to the incomplete conclusions of some of the studies. 71. On 12 November 2001 the Russian Federal Forensic Assessments Office of the Ministry of Justice concluded that it was impossible to establish with certainty whether the handwritten words on the document in question had been written by Mr Magomed Ye. or not.", "72. According to the documents contained in the criminal investigation file, at some point in 2001 documents constituting the basis for examination and a part of the original expert report had been stolen or changed. A separate criminal investigation was carried out, during which several officers from the prosecutor's office and the Ministry of the Interior were questioned. The investigation collected the copies of the original documents from the Russian Federal Bureau of Forensic Studies. Magomed Ye.", "was questioned as a suspect. On 15 May 2002 the investigation against him was closed for want of incriminating evidence. 6. Investigation in respect of Mr Magomed Ye. 73.", "On 7 October 1999 the investigator from the Kabardino-Balkaria prosecutor's office questioned Magomed Ye. The latter confirmed that he had headed the group at the Malgobek prosecutor's office which had investigated the kidnapping of Magomed K. He had authorised Suleyman Tsechoyev's detention in relation to that crime. According to him, Mr Tsechoyev had been suspected of involvement in other crimes committed in the region, which was the reason for his transfer to Nalchik and Pyatigorsk. Mr Ye. denied that he had been involved in the kidnapping and murder of Suleyman Tsechoyev.", "He stated that he had never seen the documents authorising the latter's removal from the pre-trial detention centre in Nalchik in August 1999. Mr Ye. stated that he had quit his job at the prosecutor's office in March 1999 and now lived in Moscow. He had learnt of Suleyman Tsechoyev's death from his father in September 1999. He denied that he had previously allowed the relatives of Magomed K. access to Suleyman Tsechoyev.", "74. In October 1999 the investigators carried out a series of identification parades, during which the officers of the Nalchik pre‑trial detention centre failed to identify Mr Magomed Ye., his brothers and cousins as the persons who had taken away Suleyman Tsechoyev. 75. On 11 January 2000 the Kabardino-Balkaria prosecutor's office brought charges against Mr Magomed Ye. He was charged in absentia with complicity in Suleyman Tsechoyev's kidnapping and murder and forgery of official documents.", "On the same day Mr Magomed Ye. was ordered to be arrested and declared a fugitive from justice, and his name was put on the wanted list. 76. On 26 February 2000 Mr Ye. was detained and questioned as a suspect.", "He again denied any connection with the murder and requested a number of additional investigative measures. 77. The investigators obtained the documents according to which in March 1999 Mr Magomed Ye. had complained to his superior about the false accusations brought against him by the relatives of Suleyman Tsechoyev and requested the district prosecutor of Malgobek to open a criminal investigation for libel. At the same time, pending completion of the investigation, he requested to be relieved from the duty of investigating the case.", "On 31 March 1999 Magomed Ye. resigned from the prosecutor's office. 78. On 10 March 2000 the Nalchik Town Court released Mr Magomed Ye. from detention, having found that there were no reasons to suspect him of absconding from justice.", "The court noted that Mr Ye. had always appeared at the prosecutor's office when summoned to do so, resided at his declared place of residence in Moscow and had other family reasons not to abscond. 79. In April 2000 a waitress in a roadside café in Kabardino‑Balkaria told the investigators that between 21 and 25 August 1999 she had seen Mr Magomed Ye. During a confrontation carried out on 24 January 2002 she retracted her statements and explained that she had last seen him in March 1999, and that in August 1999 she had seen another person whom she had confused with Mr Ye.", "She gave detailed submissions in this respect. Two other men and Magomed Ye. gave concordant statements. 80. In July 2001 the investigators questioned witnesses and obtained documents to the effect that in August 1999 Mr Ye.", "had been working daily for a private company in Moscow. 81. In April 2002 Magomed Ye. gave an additional statement as a suspect. He again denied any involvement in the imputed crime, denied having ever received or used a VAZ vehicle and denied receiving any money or property from the K. family.", "82. In their memorandum of 2 October 2008 the Government stated, without providing copies of such documents or the dates when they were obtained, that the investigators also questioned four members of the K. family who denied having any relations with Magomed Ye. or giving him money or property. These and other witnesses suggested that the libel campaign against Magomed Ye. had been inspired by members of a fundamentalist bandit group based in Urus-Martan, Chechnya, who had committed numerous kidnappings for ransom.", "The Kabardino-Balkaria Land Registry reported that Magomed Ye. had owned no real estate in that region. 7. Investigation in respect of other persons named by the applicant 83. In their memorandum of 2 October 2008 the Government also stated, without providing copies of such documents or the dates when they were obtained, that the investigators had also questioned the brother and cousin of Magomed Ye.", ": police officers named by the applicant as possible perpetrators of the crime. They denied their involvement in the events. The police department of Malgobek confirmed that Magomed Ye. 's cousin had been working daily between July and September 1999. Police officers Musa Kh.", "and Zaurbek Kh. were also questioned at some point and denied having any connection with the murder. The Government also referred to records of interviews of four members of the K. family who stated that they had no relations with Magomed Ye. outside the official framework of the investigation and that they had not given him money or property. 84.", "As can be seen from the statements collected in January 2008 from the applicant and his father, some time in 2001 police officer Musa Kh. had been charged with false imprisonment and abuse of power in relation to the taking of Suleyman Tsechoyev from the Malgobek IVS in the late hours on 24 February 1999. He had been found guilty and given a suspended sentence; the applicant did not appeal against the sentence. It also appears from these statements that the applicant and Musa Kh. had reached an informal agreement prior to the trial and that the applicant had “accepted” Musa Kh.", "'s “apology” and declaration that he had not been involved in his brother's murder. No other documents or information relating to this process have been submitted by the parties. 8. Proceedings against the applicant 85. It can be seen from the submitted documents that in 2001 Musa K., the brother of the kidnapped Magomed K., complained to the prosecutor's office that he had been libelled by the applicant.", "It appears that in June 2001 the indictment was sent to the court, which at some point acquitted the applicant. 9. Proceedings against other men involved in the kidnapping of Magomed K. 86. The investigators into the kidnapping of Magomed K. suspected and arrested several other men in addition to Suleyman Tsechoyev. Later, three of them were charged with other kidnappings; one of them was found guilty and sentenced in 2001; and two others were charged in absentia and their names put on the wanted list.", "One of them told the investigators that the applicant had threatened to denounce him to the law-enforcement bodies in order to give incriminating evidence against Magomed Ye. and Musa K. 10. Procedural decisions of 26 February 2002 87. On 26 February 2002 the criminal investigation was closed regarding the part concerning the actions of the officers of the Nalchik pre‑trial detention centre, on grounds of absence of corpus delicti. 88.", "On the same day the investigator from the department of the General Prosecutor's Office in the North Caucasus closed the criminal proceedings against Magomed Ye. for want of evidence. He noted that it had turned out to be impossible to identify the persons who had abducted and killed Suleyman Tsechoyev; that the conclusions of the graphology expert reports were contradictory and could not be construed as a single body of incriminating evidence against Mr Magomed Ye. ; that by the time of the abduction he had no longer been employed at the prosecutor's office for more than six months and there was no evidence that he had continued to be aware of or to influence the proceedings; that between March and September 1999 he had remained in Moscow, as confirmed by witness statements and documents; that the allegations that he had obtained money or property from the K. family had proved to be unfounded; and, finally, that there were reasons to suspect that the applicant had personal motives, since he was being prosecuted for libel against the K. family and had threatened a witness in order to obtain evidence incriminating Magomed Ye. 11.", "Correspondence between the applicant and the prosecutor's office 89. On 22 May 2001 the Prosecutor General's Office informed the applicant that on 11 April 2001 the investigation in criminal case no. 16/24‑99 had been transferred to the department of the Prosecutor General's office in the North Caucasus. According to the letter, Mr Ye. had absconded from the authorities and his name had been put on the wanted list.", "90. On 7 January 2002 the applicant and his relatives complained of the ineffectiveness of the investigation in criminal case no. 16/24-99 to the Prosecutor General. In his letter the applicant also alleged that some of the evidence in the criminal case-file materials had been forged by the investigators. 91.", "On 22 February 2002 the Prosecutor General's Office replied to the applicant. The letter stated that in connection with the forgery of the evidence in criminal case no. 16/24-99, they had opened criminal case no. 18/24411-01 on 14 September 2001. 92.", "On 15 or 24 May 2002 (the letter has two dates) the department of the Prosecutor General's Office in the North Caucasus informed the applicant that on 15 May 2002 the authorities had terminated the criminal proceedings against Mr Ye. owing to the failure to prove his involvement in the abduction of Suleyman Tsechoyev. On the same date the investigation had been suspended owing to the failure to identify the perpetrators. 93. On 20 June 2002 the applicant and his relatives wrote to the Prosecutor General complaining of the ineffectiveness of the criminal investigation into the murder.", "94. On 9 August 2002 the applicant's family received a letter from the Prosecutor General's Office. The letter stated that on an unspecified date the investigation of criminal case no. 16/24-99 had been resumed. 95.", "On 28 February 2003 the applicant complained about his brother's murder to the President of the Supreme Court of the Russian Federation. In his letter he complained of the ineffectiveness of the investigation into the crime and the decisions suspending it. The applicant requested the authorities to resume the investigation and carry out an additional examination of the evidence in criminal case no. 16/24-99. In particular, he complained that the investigation had failed to compile a composite sketch of the two men who had collected his brother from the pre-trial detention centre and to compare the handwriting of the kidnappers with those of all the officers of the Ministry of the Interior in Ingushetia and Kabardino‑Balkaria, as well as of the regional department of the RUBOP in the Northern Caucasus.", "96. On 5 March 2003 the Prosecutor General's Office, upon the applicant's request, forwarded him a copy of the decision of 4 September 2002 suspending the investigation in criminal case no. 16/24-99. 97. It does not appear that the applicant or the investigators took any steps between 5 March 2003 and 20 May 2005.", "12. Subsequent developments 98. On 20 May 2005 the applicant's representatives wrote to the Prosecutor General. They requested information concerning the progress reached in the investigation in criminal case no. 16/24-99 and enquired whether the investigators had carried out any expert or forensic examinations in the case.", "It does not appear that the applicant's representatives received any response to this request. 99. On 21 August 2007 the Deputy Prosecutor General quashed the decision suspending the proceedings. On 25 December 2007 Mr Magomed Ye. was placed under an obligation not to leave his place of residence in Moscow.", "100. In January 2008 the investigator questioned the applicant, his sister and his mother in Malgobek. They denied that Suleyman Tsechoyev had any connections to illegal armed groups in Chechnya or in Ingushetia, pointed out that he had never been charged with any such crime before and affirmed that there was no evidence to support that allegation. They again insisted that Magomed Ye. had been connected with the abduction and murder of their brother, in view of his involvement in the arrest and beatings.", "101. On 21 May 2008 the father of Musa and Magomed K. gave a statement in which he denied that his family had ever given any money or valuables to Magomed Ye. or his family. C. Other proceedings 102. In his submissions the applicant also described attacks by unspecified persons on himself, his relative and his house.", "103. Accordingly, the applicant submitted that on 13 July 2001 he and Mrs U. had been wounded during an attempt to arrest them by officers from the RUBOP of Kabardino-Balkaria. On the same day the Ingushetia prosecutor's office opened a criminal investigation into violent acts against public officers. 104. However, in January 2002 the investigation was adjourned in view of the failure to identify the suspect.", "In March 2004 criminal charges against the applicant were dropped; Mrs U. was granted victim status. 105. The applicant and Mrs U. sought damages for the injuries and moral suffering inflicted by the RUBOP and the Federal Treasury. They also contested the lawfulness of the order to deliver the applicant to an investigator which had served as the basis for the attempt to arrest him. 106.", "In October 2004 the Malgobek Town Court refused to grant their claim, referring to the absence of any definitive outcome of the criminal investigation and the applicant's failure to appeal against the decision to adjourn the proceedings. An appeal by the applicant was dismissed without consideration for failure to observe the requisite time-limits; he tried to have the time-limits restored but it appears that his complaint to the Supreme Court of Ingushetia remained unexamined. 107. No complaints were brought following those developments, but the applicant relied on the above proceedings to explain his inaction between 2003 and 2005 vis-à-vis the domestic criminal investigation into his brother's murder. D. Information about Mr Magomed Ye.", "108. The applicant submitted, referring to numerous publications concerning the subject, that following the events described above Mr Magomed Ye. had become a well-known political figure in Ingushetia. As a successful businessman and journalist, he had founded an Internet site (www.Ingushetiya.ru) in 2001 which had quickly become an important media forum for the opposition forces. In 2008 Mr Magomed Ye.", "had become one of the organisers of the “I did not vote” campaign aimed at denouncing electoral fraud in Ingushetia during the Russian presidential elections. In June 2008 a district court in Moscow classified the site as “extremist” and demanded its closure. The order could not be implemented because the site was hosted in the United States. 109. On 31 August 2008 Mr Magomed Ye.", "was detained on arrival at the airport in Nazran, Ingushetia, and shot dead in the police car. In December 2009 a court in Ingushetia found one officer of the Ministry of the Interior of Ingushetia guilty of causing death by negligence and gave him a suspended sentence. In August 2010 this officer was killed by unknown gunmen in Ingushetia. On 25 October 2009 another former co‑owner of the Ingushetia.ru site, Mr Maksharip A., was killed by unknown gunmen in Kabardino-Balkaria. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 110. The applicant complained under Article 2 of the Convention that his relative had been deprived of his life by State officers and that the domestic authorities had failed to carry out an effective investigation of the matter. Article 2 reads: “1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. Admissibility 1. The parties' submissions 111. The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation into the disappearance of Suleyman Tsechoyev had not yet been completed.", "As a victim, the applicant could challenge before a supervising prosecutor, or in court, any acts or omissions of the investigating or other law-enforcement authorities, but had not availed himself of those remedies. They also argued that it had been open to the applicant to pursue civil complaints but that he had failed to do so. 112. The applicant contested that objection. He stated that the criminal investigation had proved to be ineffective and that complaints to that effect had been futile.", "With reference to the Court's case-law, he argued that he was not obliged to apply to civil courts in order to exhaust domestic remedies. The applicant also argued that he had complied with the six‑month time-limit as provided for in Article 35 § 1 of the Convention, since he had become aware of the ineffectiveness of the domestic investigation in May 2005, when the cassation court in Ingushetia had refused to consider his appeal against the decision of the trial court in relation to his civil claim for damages (see paragraphs 105-106 above). The applicant considered that those civil proceedings had a direct bearing on the effective investigation of his brother's murder. 2. The Court's assessment (a) Exhaustion of domestic remedies 113.", "The Court will examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice (for a relevant summary, see Estamirov and Others v. Russia, no. 60272/00, §§ 73‑74, 12 October 2006). 114. The Court notes that the Russian legal system provides, in principle, two avenues of redress for the victims of illegal and criminal acts attributable to the State or its agents, namely civil and criminal remedies. 115.", "As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-21, 24 February 2005, and Estamirov and Others, cited above, § 77). In the light of the above, the Court confirms that the applicant was not obliged to pursue civil remedies. 116. As regards criminal-law remedies, the Court observes that on two occasions the applicant attempted to challenge the impugned decision: in February 2003 and on 20 May 2005, but it does not appear that he received any replies to his letters.", "Moreover, the Court notes that in any event the proceedings were reopened by the supervising prosecutors on three occasions. In such circumstances it is not convinced that further appeals by the applicant in this respect could have produced any different results. 117. The Government's objection in this regard is thus dismissed. (b) Compliance with the six-month time-limit 118.", "The Court reiterates that in a number of cases concerning ongoing investigations into the deaths of applicants' relatives it has examined the period of time from which the applicant can or should start doubting the effectiveness of a remedy and its bearing on the six-month time-limit provided for in Article 35 § 1 of the Convention (see Şükran Aydın and Others v. Turkey (dec.), no. 46231/99, 26 May 2005; Elsanova v. Russia (dec.) no. 57952/00, 15 November 2005; and Narin v. Turkey, no. 18907/02, § 50, 15 December 2009). The determination of whether the applicant in a given case has complied with the admissibility criteria will depend on the circumstances of the case and other factors, such as the diligence and interest displayed by the applicants as well as the adequacy of the investigation in question (see Narin, cited above, § 43).", "119. In the case at issue the Court notes that the investigation into the applicant's brother's murder was suspended on 4 September 2002 for failure to identify the suspects. The applicant was informed of that development on the same date and then again on 5 March 2003 (see paragraphs 46 and 96 above). In February 2003 the applicant complained of the ineffectiveness of the investigation to the President of Russia's Supreme Court and sought additional measures. After that he did not challenge the decision in question until 20 May 2005, when he wrote to the Prosecutor General (see paragraph 98 above).", "The applicant received no answer to that complaint. The application to the Court was lodged on 7 November 2005. On 21 August 2007 the investigation into the applicant's brother's murder was resumed. 120. The Court notes the following.", "First, it does not agree with the applicant that the proceedings described in paragraphs 105-106 above had a bearing on the assessment of the effectiveness of the investigation into his brother's murder and, consequently, on the calculation of the six‑month time-limit within the meaning of Article 35 § 1 of the Convention. 121. Second, the Court finds that the decision to suspend the investigation of 4 September 2002 was not final and inherently presupposed that the proceedings could be resumed if any additional relevant information came to the attention of the prosecutor's office. Thus, the applicant could reasonably have been expected to wait for some time in order to ascertain whether the investigators would continue to take steps to find the perpetrators of the crime or whether that avenue of redress should be considered ineffective. This is especially true in the present case, where the investigation had already been suspended on two previous occasions: 15 July 2001 and 15 May 2002, but then resumed pursuant to the supervising prosecutors' order (see paragraphs 41 and 45 above).", "122. Third, the Court notes that on two occasions the applicant attempted to challenge this decision: in February 2003 and on 20 May 2005 (see paragraphs 95 and 98 above), but it does not appear that he received any replies to his letters. 123. Finally, the Court does not consider that in the circumstances of the present case the period of the applicant's inaction vis-à-vis the domestic investigation was so long as to cast doubt on whether he had displayed due diligence and informed himself of the progress made in the investigation (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 158, ECHR 2009‑...).", "124. In the light of the foregoing, the Court considers that, in the circumstances of the present case, the applicant has complied with the six‑month rule in respect of his complaints. (c) Other factors regarding admissibility 125. The Court further 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 complaint under Article 2 of the Convention must therefore be declared admissible.", "B. Merits 1. The alleged violation of the right to life of Suleyman Tsechoyev (a) The parties' submissions 126. The Government contended that the domestic investigation had obtained no evidence to the effect that any officers of the federal law‑enforcement agencies had been involved in Suleyman Tsechoyev's kidnapping or murder. The investigation had established with certainty that the persons who had kidnapped Mr Tsechoyev had used forged documents and false identities; they were not officers of the Malgobek ROVD.", "Their true identities had not been established. Mr Ye., who had been charged with the crime at some point, had quit the prosecutor's office six months prior to the murder. In any event, by August 1999 he could not be considered as a representative of the State. The Government confirmed that Mr Tsechoyev had been detained in October 1998 in connection with the kidnapping of Mr Magomed K. and had been charged with the crime on 3 November 1998. His detention had been extended on several occasions, the last of which was from 25 May 1999 until 24 October 1999.", "127. The applicant maintained that it was beyond reasonable doubt that the men who had abducted and killed Suleyman Tsechoyev had been State agents. In particular, referring to press and human rights NGOs' reports, he alleged that the officers of the Kabardino-Balkaria RUBOP had been implicated in several illegal arrests and kidnappings in the region and that they had maintained a good relationship with Mr Magomed Ye. He therefore suggested that they could have been involved in the kidnapping and murder of his brother. According to the applicant, his brother had been detained by the officers of the Kabardino-Balkaria RUBOP in February 1999, when they had brought him to the Nalchik SIZO no.", "1. Finally, he alleged that the territory of Kabardino-Balkaria where his brother's body had been found should be regarded as a territory “under the jurisdiction” of that branch of the police forces. (b) The Court's assessment (i) Whether Mr Tsechoyev was killed by State agents 128. The Court points out that a number of principles have been developed in its case-law regarding its task of establishing the facts on which the parties disagree. As to the facts that are in dispute, the Court reiterates its jurisprudence confirming the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no.", "25657/94, § 282, ECHR 2001‑VII). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see Taniş and Others v. Turkey, no. 65899/01, § 160, ECHR 2005–VIII). 129.", "The Court observes that it is not disputed between the parties that Mr Tsechoyev was kidnapped from the pre-trial detention centre by four persons who had presented false identities and forged documents. 130. The parties disagreed, however, as to whether the four armed men had been representatives of the State. It appears that the applicant believed that they were, relying principally on the “informal connections” which had existed between Mr Magomed Ye., former deputy prosecutor of the Malgobek district, and certain members of the police force in the region. 131.", "The Government contended that the persons in question had not been police officers and that their identity documents had been forged. They relied on the ample evidence to that effect collected by the investigation. 132. The Court observes that the domestic investigation, which is under way, has to date produced no conclusive results on the matter. These men were not officers of the Malgobek ROVD, as they had claimed.", "A number of steps were taken to establish their identities, but they were all unsuccessful. The Court further notes that the applicant's allegation that the men could have been officers of the Kabardino-Balkaria RUBOP is not corroborated by any evidence. Moreover, despite being questioned on many occasions by the domestic investigators, the applicant advanced this version for the first time in his submissions to the Court dated 26 November 2008. 133. The applicant and his family members consistently stated to the investigators that Mr Ye.", "had been involved in the murder. The Court notes that some graphology evidence did indeed point to that possibility. However, this evidence was rather inconclusive and the results of several expert reports were conflicting (see paragraphs 68-71 above). Mr Ye. was charged with involvement in the crime.", "However, the investigation obtained sufficient proof to conclude that at the time of the murder Mr Ye. had been in Moscow. No other incriminating evidence has been collected. In any event, Mr Ye. had quit the prosecutor's office in March 1999, that is, more than six months prior to the murder.", "Thus, the Court does not find that the question of Mr Ye. 's possible involvement in the applicant's brother's murder is in itself decisive as to whether the crime can be attributed to agents of the State. 134. Having regard to the principles cited above, the parties' submissions and the documents reviewed, the Court finds that the evidence submitted by the parties is not sufficient to establish to the requisite standard of proof that the armed men who kidnapped and murdered Mr Suleyman Tsechoyev were indeed State agents. (ii) Whether there was a breach of the obligation to safeguard the right to life 135.", "The Court has not found it established that State agents were responsible for the murder of the applicant's brother. However, this does not necessarily exclude the responsibility of the Government under Article 2 of the Convention (see Osmanoğlu v. Turkey, no. 48804/99, § 71, 24 January 2008v. Turkey). According to the established case-law of the Court, the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B.", "v. the United Kingdom, judgment of 9 June 1998, Reports 1998-III, § 36). The State's obligation in this respect extends beyond its primary duty 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 sanctioning of breaches of such provisions. Article 2 of the Convention may also imply a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998‑VIII, § 115). 136. The Court reiterates that the scope of any positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources.", "Not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For the Court to find a violation of the positive obligation to protect life, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Osman, cited above, § 116; Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 55, ECHR 2002‑II; Medova v. Russia, no. 25385/04, § 96, ECHR 2009‑... (extracts); and Rantsev v. Cyprus and Russia, no. 25965/04, § 222, ECHR 2010‑... (extracts)).", "137. Accordingly, in the present case the Court must consider whether the authorities could have foreseen that by handing Mr Tsechoyev over to the persons who had presented themselves as police officers, his life would be at real and immediate risk. 138. In the above-mentioned Medova case the Court found a violation of the obligation to protect the right to life where the police and district prosecutor in Ingushetia had released a group of kidnappers who had presented service badges of the Chechnya Department of the Federal Security Service (FSB). These credentials were later found to have been forged and the two kidnapped men disappeared.", "The Court found that the authorities had failed to prevent an identifiable risk to the person's life. In reaching that conclusion, the Court gave special consideration to the following elements: the alarming behaviour of the kidnappers, who had initially refused to obey the instructions of the police and to identify themselves; confirmation of their identities had been carried out only over the telephone; no papers confirming the carrying out of the security operation had been obtained from the FSB; and no copies of the captors' identity documents had been taken and the detention had not been recorded anywhere. 139. In the present case the applicant's brother was collected from the pre-trial detention centre by individuals wearing police uniforms. They identified themselves as police officers by presenting the relevant papers and identity documents.", "The staff of the detention centre followed the routine procedure. Mr Tsechoyev himself did not recognise his kidnappers and left the building with them without any problems. The subsequent investigation established that the papers had been forged, and that the signatures of the acting deputy prosecutor and of the staff of the Malgobek ROVD, as well as the stamps of those two institutions, had also been forged. However, at the time of the transfer the officers of the pre-trial detention centre did not remark anything suspicious. 140.", "The Court also notes that on 26 February 2002 the investigation into the actions of the officers at the pre-trial detention centre was closed. The applicant did not challenge this decision. 141. The Court remarks that a situation where a person who is detained on criminal charges and thus finds himself entirely under the authorities' control could become the victim of a carefully masterminded murder should be of most serious concern to the relevant State bodies. The boldness of the act at issue and the lingering suspicions of possible involvement of the law‑enforcement personnel in its preparation call for efficient investigative measures aimed at solving the crime and at preventing possible similar occurrences in the future.", "Nevertheless, it does not appear that at the time when the transfer took place there were indications that Mr Tsechoyev's life was at real and immediate risk. The Court does not find that the particular chain of events leading to his death could have been foreseeable to the officers of SIZO no. 1 when they transferred him into the custody of the imposter police officers. Accordingly, the Court concludes that no obligation to take operational measures to prevent a risk to life arose in the present case. 142.", "For the above reasons, the Court concludes that there has been no violation of the positive obligation to protect Mr Tsechoyev's right to life under Article 2 of the Convention. 2. The alleged inadequacy of the investigation (a) The parties' submissions 143. The Government claimed that the investigation into the kidnapping of the applicant's relative had met the Convention requirement of effectiveness, as all measures available under national law were being taken to identify those responsible. The investigation had examined the applicant's allegations against Mr Ye., but these had proved to be unfounded.", "A large number of other investigative measures, including the questioning of dozens of witnesses, obtaining several expert reports, carrying out of identification parades and sessions, had proved futile. The applicant could have appealed against the decisions of the investigators to higher ranking prosecutors or to a court. 144. The applicant argued that the investigation had been ineffective. He submitted that he and his counsel had not been informed of all the developments in the investigation, in particular, about the forensic examination carried out.", "He drew the Court's attention to the fact that the investigation had been suspended between 15 May 2002 and 21 August 2007 and thus the taking of the necessary procedural steps had been unjustifiably delayed. Furthermore, the applicant contended that the investigation had not been objective and remained motivated by the political tensions between Mr Ye. and the authorities in Ingushetia. (b) The Court's assessment 145. The Court has on many occasions stated that the obligation to protect the right to life under Article 2 of the Convention also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force.", "The obligation to conduct an effective official investigation also arises where death occurs in suspicious circumstances not imputable to State agents. It has developed a number of guiding principles to be followed for an investigation to comply with the Convention's requirements, comprising, notably, the requirements of effectiveness, independence, promptness and expedition, accessibility to the family and sufficient public scrutiny (for a recent summary of these principles see Rantsev, cited above, no. 1062/03, §§ 232-33). 146. The Court notes at the outset that not all documents from the investigation file were disclosed by the Government.", "Drawing inferences from the respondent Government's conduct when evidence is being obtained (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25), the Court assumes that the materials made available to it have been selected so as to demonstrate to the maximum extent possible the effectiveness of the investigation in question. It will therefore assess the merits of this complaint on the basis of the existing elements in the file and in the light of these inferences. 147. As the information submitted by the parties demonstrates, a number of important steps were taken during the investigation to establish the circumstances of Suleyman Tsechoyev's death.", "The criminal investigation was instituted immediately after the discovery of the body. The authorities proceeded to search the place of the crime, order forensic reports and an autopsy and to collect the relevant evidence and ballistic expert reports (see paragraphs 47-49 above), thus securing the evidence. The documents produced by the kidnappers at the pre-trial detention centre were collected and subjected to expert examination (see paragraphs 68-71 above). 148. Following the identification of the body, the investigators questioned the staff of the pre-trial detention centre who had last seen Mr Tsechoyev, as well as his fellow detainees.", "They also took statements from the officers of the Malgobek law-enforcement authorities (see paragraphs 61-66). Identification parades and photo identification were organised in October 1999, but failed to produce any results (see paragraphs 64 and 74 above). 149. Furthermore, as soon as the body of Suleyman Tsechoyev had been identified through fingerprints, the applicant and his family members were notified and questioned. Within the following weeks, the applicant and his sister were granted the status of victims in the proceedings (see paragraphs 50‑53 above).", "The applicant was regularly in contact with the investigators, had access to all the major documents in the case file and kept copies of the relevant documents. The Court is not persuaded that in the present case the access of the next-of-kin to the materials of the investigation was such as to infringe the minimum standard under Article 2. 150. The investigators took steps to investigate the statements made by the applicant and his relatives about the possible involvement of Mr Ye. in the crime.", "At some point Mr Ye. was charged with abuse of power and then with aiding and abetting kidnapping and murder. It appears, however, that no other reliable evidence was obtained in this respect (see paragraphs 73‑82 and 88). In so far as the applicant's compliant is directed against the investigation's failure to arrest and prosecute Mr Magomed Ye., the Court does not find that the investigation ignored this information or failed to pursue the leads suggested by the course of events. The Court reiterates in this respect that the obligation to carry out an effective investigation comes into play, primarily, in the aftermath of a violent or suspicious death.", "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. However, there is no absolute right to obtain a prosecution or conviction and the fact that an investigation ends without concrete, or with only limited, results is not indicative of any failings as such. The obligation is of means only (see Avşar v. Turkey, no. 25657/94, § 394, ECHR 2001‑VII (extracts)). 151.", "The applicant's submissions concerning the possible involvement in the murder of members of K. family and of Musa Kh. were also examined. It follows from the documents reviewed by the Court that at some point Musa Kh. was found guilty of abuse of power for the events of 24 February 1999. However, it does not appear that the investigation obtained any information linking him or other persons named by the applicant to the kidnapping of his brother in August 1999.", "152. The Court agrees that the investigation was affected by a number of irregularities. In particular, the fact that in 2001 the documents comprising important evidence were stolen or changed raises serious concerns about the conduct of the law-enforcement officers involved in the proceedings. At the same time, the Court notes that this matter was the subject of a separate criminal investigation, whereby a number of officers from the prosecutor's office, experts and Mr Ye. were questioned (see paragraph 72 above).", "That investigation failed to identify the individuals responsible but it recovered the copies of the documents in question. In any event, by the time of the incident the documents had been subjected to three expert reports and it does not appear that their absence has adversely affected the subsequent proceedings in the main criminal investigation. 153. Having said this, the Court finds it difficult to ignore one particular aspect of the investigation which concerned a crucial aspect of the proceedings in question: its failure to elucidate the possible complicity of the law-enforcement staff of the Malgobek district in the applicant's brother's abduction. Thus, the Court notes that as can be seen from the transcript of the questioning of the Malgobek district prosecutor, the latter had indeed authorised Mr Tsechoyev's transfer to the Malgobek ROVD several weeks prior to the abduction (see paragraph 63 above).", "However, for unclear reasons this transfer did not take place. It does not appear that the investigators took any steps to clarify who had been aware of that decision, whether the corresponding documents had been issued at the Malgobek prosecutor's office and whether those documents could have been used to forge the papers presented at the Nalchik pre-trial detention centre on 23 August 1999. The information supplied by the parties in respect of this aspect of the investigation leads the Court to conclude that the investigation has been ultimately ineffective in that it failed to follow an obvious line of inquiry to an extent which undermined its ability to establish the circumstances of the case and the person or persons responsible, and that the authorities have thus failed to carry out a thorough, objective and impartial analysis of all relevant elements (see Kolevi v. Bulgaria, no. 1108/02, § 201, 5 November 2009). 154.", "As to the remaining aspects of the investigation, in view of the above conclusion the Court does not find it necessary to examine whether they complied with the positive obligations under Article 2 of the Convention. 155. In the light of the foregoing, the Court holds that there has been a breach of Article 2 in its procedural aspect. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 156.", "The applicant complained that he had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties' submissions 157. The Government contended that the applicant had had effective remedies at his disposal as required by Article 13 of the Convention and that the authorities had not prevented him from using them. 158. The applicant reiterated the complaint.", "B. The Court's assessment 159. The Court observes that the complaint made by the applicant under this Article has already been examined in the context of Article 2 of the Convention. Having regard to the findings of a violation of Article 2 in its procedural aspect, the Court considers that, whilst the complaint under Article 13 taken in conjunction with Article 2 is admissible, there is no need for a separate examination of this complaint on its merits (see Khumaydov and Khumaydov v. Russia, no. 13862/05, § 141, 28 May 2009, and Shaipova and Others v. Russia, no.", "10796/04, § 124, 6 November 2008). III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 160. The Court has examined other complaints submitted by the applicant under Articles 3, 5, 34 and 38 of the Convention. However, having regard to all the material in its possession, it finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.", "It follows that this part of the application must be rejected as being manifestly ill‑founded, pursuant to Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 161. 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 162. The applicant claimed damages on behalf of Suleyman Tsechoyev's mother, father, widow and son.", "He claimed a total of 267,273 US dollars (USD) under this head (209,334 euros (EUR)). 163. The Government regarded these claims as based on suppositions and unfounded. They also pointed to the existence of domestic statutory machinery for the provision of a pension for the loss of the family breadwinner. 164.", "The Court reiterates that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention. In the present case the applicant makes no pecuniary claims on his own behalf, but on behalf of other persons who are not applicants in the case (see Kaplanova v. Russia, no. 7653/02, § 144, 29 April 2008); furthermore the Court notes that no violation of Article 2 in its substantive aspect has been found and the causal link between Mr Tsechoyev's death and the loss by the family of the financial support is missing. In such circumstances the Court rejects the claims submitted under this heading. B. Non-pecuniary damage 165.", "The applicant claimed EUR 100,000 in respect of non-pecuniary damage for the suffering he had endured as a result of the loss of his family member and the ineffective investigation. 166. The Government found the amount claimed exaggerated. 167. The Court has found a violation of Article 2 of the Convention in so far as it concerned the obligation to investigate effectively the applicant's brother's violent death.", "The Court thus accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of violation. It awards the applicant EUR 15,000 under this head, plus any tax that may be chargeable on that amount. C. Costs and expenses 168. The applicant was represented by lawyers from the NGO EHRAC/Memorial Human Rights Centre. The aggregate claim in respect of costs and expenses related to the applicant's legal representation amounted to 3,775 pounds sterling (GBP) (EUR 4,590).", "He submitted the following breakdown of costs: (a) GBP 750 for 7.5 hours of legal work by a United Kingdom-based lawyer at a rate of GBP 100 per hour; (b) GBP 2,850 for translation costs, as certified by invoices; and (c) GBP 175 for administrative and postal costs. 169. The Government disputed the reasonableness of and justification for the amounts claimed under this head. 170. Having regard to the information concerning legal representation submitted by the applicant, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by his representatives.", "At the same time, the Court doubts that the translation costs in the present case were necessary to the extent claimed. 171. Having regard to the details of the claims submitted by the applicant and the violation found, the Court awards him the amount of EUR 2,500, together with any value-added tax that may be chargeable to the applicant, the net award to be paid into the representatives' bank account in the UK, as identified by the applicant. D. Default interest 172. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints under Articles 2 and 13 of the Convention admissible and the remainder of the application inadmissible; 2. Holds that there has been no substantive violation of Article 2 of the Convention in respect of Suleyman Tsechoyev; 3. Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Suleyman Tsechoyev was killed; 4. Holds that there is no need to examine separately the complaint under Article 13 of the Convention in respect of the alleged violation of Article 2; 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, the following amounts, to be converted into Russian roubles at the date of settlement, save in the case of the payment in respect of costs and expenses: (i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the applicant; (ii) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the representatives' bank account in the UK; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 15 March 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]
[ "FIRST SECTION CASE OF PASTUKHOV AND YELAGIN v. RUSSIA (Application no. 55299/07) JUDGMENT STRASBOURG 19 December 2013 FINAL 19/03/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Pastukhov and Yelagin v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Elisabeth Steiner,Khanlar Hajiyev,Linos-Alexandre Sicilianos,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 3 December 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "55299/07) 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 two Russian nationals, Mr Viktor Valeryanovich Pastukhov and Mr Denis Aleksandrovich Yelagin (“the applicants”), on 1 November 2007. 2. The applicants were represented by Mr V. Lunev, a lawyer practising in Kemerovo. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicants alleged in particular that their pre-trial detention had been unreasonably long. 4. On 21 September 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 THE CIRCUMSTANCES OF THE CASE 5.", "The applicants were born in 1958 and 1980 respectively and live in Kemerovo. A. Preliminary investigation and the first trial 6. Both applicants were suspected of involvement in an organised criminal gang. 7.", "On 11 March 2005 the Kemerovo Zavodskoy District Court authorised the second applicant’s detention pending investigation. When justifying the decision to remand him in custody, the court noted, in particular, as follows: “... [The second applicant] is charged with a serious offence which entails a custodial sentence exceeding ten years; he might abscond or ... put pressure on and threaten B., one of the co-defendants, who voluntarily testified that he and [the second applicant] had committed an armed robbery at the premises of ... a furniture manufacturing company. Furthermore, if released, [the second applicant] might attempt to destroy ... evidence.” 8. On 24 June 2005 the Kemerovo Tsentralniy District Court authorised the first applicant’s detention pending investigation. The court did not find it possible to use any other measure of restraint.", "In particular, the court noted as follows: “... the court takes into account that [the first applicant] is charged with a number of very serious criminal offences which ... entail a custodial sentence of from eight to fifteen years. Furthermore, the court takes into account that [the first applicant] played an active part in the offences: as well as the specific circumstances of the crimes committed ... the fact that he had had firearms in his possession ... and had so far failed to turn them in. Accordingly, the court considers that even though [the first applicant] does not have a criminal record, that he was employed and provided positive character references, the conclusion is that if released [the first applicant] might abscond, interfere with the administration of justice by putting pressure on and threatening witnesses, and continue with criminal activities. The court finds without merit the arguments furthered by the defence and [the first applicant] that he has not absconded in the past. The criminal investigation against [him] was suspended due to the [authorities’] failure to identify the culprits ... [The first applicant] was identified as a suspect only in May 2005 ... [Before that time] he did not have any reasons to abscond.” 9.", "On 22 July 2005 the Tsentralniy District Court extended the second applicant’s detention until 2 October 2005, reasoning as follows: “The circumstances underlying the [second applicant’s] remand in custody had not changed or ceased to exist. [The second applicant] is charged with a serious crime and a number of particularly serious offences. Accordingly, there are reasons to believe that once at liberty he might abscond, continue with his criminal activities or interfere with the establishment of the truth in the case.” 10. On 11 August 2005 the Tsentralniy District Court extended the first applicant’s detention until 2 October 2005. The court took into account the gravity of the charges against him and indicated as follows: “... the court finds that [the circumstances underlying the court’s decision to remand the first applicant in custody] did not cease to exist and it is still necessary to detain him.", "The court considers that, if released, [the first applicant] might continue his criminal activity, abscond or interfere with administration of justice.” 11. On 30 September 2005 the Kemerovo Regional Court extended the applicants’ pre-trial detention until 2 January 2006. The court issued a detention order in respect of seven co-defendants, including the applicants, noting that it granted the prosecutor’s request that the defendants be detained pending trial. 12. On 10 October 2005 the Regional Court set the trial for 24 to 28 October 2005, noting that the five defendants, including the applicants, should remain in custody.", "13. It appears that the applicants’ detention was repeatedly extended pending trial. Each time the court referred to the gravity of the charges, arguing that the circumstances underlying the court’s decision to remand them in custody had not ceased to exist. According to the second applicant, his detention was extended on 2 January 2006. On 20 March 2006 the Regional Court extended the applicants’ detention until 26 June 2006.", "14. According to the Government, on 22 March 2006 the authorities found a note on defendant B. which proved that the applicants had tried to put pressure on him to make him testify in their favour. B. was also held in custody pending trial. 15. On 29 May 2006 the Regional Court granted a request by the prosecutor for the criminal prosecution against the applicants and four other defendants to be discontinued in respect of the charges concerning membership of an organised criminal gang.", "On the same day the Regional Court found the first applicant guilty of robbery and wilful destruction of property and the second applicant of robbery and illegal possession of firearms. The court sentenced them to ten and twelve years’ imprisonment respectively. 16. On 25 October 2006 the Supreme Court of Russia quashed the applicants’ conviction on appeal and remitted the matter to the Regional Court for fresh consideration. The applicants remained in custody pending the new trial.", "B. Second trial 17. On 28 December 2006 the Regional Court extended detention in respect of four defendants, including the applicants, until 20 March 2007. In the relevant extension order the court reasoned as follows: “Regard being had to the gravity of the offences the defendants are charged with, their character and other circumstances, the court has sufficient reasons to believe that if at liberty they might abscond, continue with their criminal activities, threaten witnesses and other parties to the proceedings, or otherwise interfere with the administration of justice.” 18. On 12 March 2007 the Regional Court extended the applicants’ detention until 20 June 2007, reiterating verbatim the reasoning it had used when issuing the detention order of 28 December 2006.", "On the same date the court transferred the case back to the prosecutor’s office for further investigation. 19. On an unspecified date the prosecutor forwarded the case file to the Kemerovo Zavodskoy District Court. On 31 May 2007 the District Court fixed the hearing for 7 June 2007. It further extended the detention in respect of four of the co-defendants, including the applicants, reasoning as follows: “Regard being had to the gravity of the offences [the defendants] are charged with, their character and other circumstances, the court has sufficient reasons to believe that if at liberty they might abscond, continue with their criminal activities, threaten witnesses and other parties to the proceedings, or otherwise interfere with the administration of justice.", "[Their detention] is necessary for execution of the verdict. Furthermore, the court did not receive any evidence that [their detention] was no longer necessary.” 20. On 6 June 2007 the Supreme Court of Russia considered appeals against the decisions of 28 December 2006 and 12 March 2007 and upheld them. The second applicant appealed only against the decision of 28 December 2006. 21.", "On 4 July 2007 the Zavodskoy District Court returned the criminal case file to the prosecutor’s office to allow the latter to consolidate the cases against different defendants charged with the same offences. The court discerned no circumstances that would permit the applicants’ release, and ordered that they remain in detention. 22. On 19 July 2007 the police investigator discontinued the criminal proceedings against the first applicant in respect of the charge of wilful destruction of property. 23.", "On 24 July 2007 the Regional Court upheld the decision of 31 May 2007 on appeal. 24. On 22 August 2007 the Zavodskoy District Court decided to hold a preliminary hearing of the matter in response to the applicants’ request to be tried by jury. The court ruled that the applicants and two other defendants remain in custody. In particular, the court noted as follows: “Regard being had to the gravity of the charges against [the applicants], B. and L., their character and other circumstances, the court considers that if released they might abscond, continue with their criminal activity, threaten witnesses or other parties to the proceedings, or otherwise interfere with the administration of justice...", "Furthermore, the defence failed to furnish evidence that [their detention] was no longer necessary. Accordingly, there are no grounds to lift or change the measure of restraint imposed.” 25. On 30 August 2007 the District Court set the trial for 12 September 2007. It further reasoned that the four defendants, including the applicants, should remain in custody. The court did not establish any grounds justifying their release.", "26. On 13 September 2007 the District Court extended the applicants’ detention until 20 December 2007. The court issued a single order in respect of the four defendants, including the applicants, and reiterated verbatim the reasoning of its decision of 22 August 2007. On 18 October 2007 the Regional Court upheld the decision of 13 September 2007 on appeal. 27.", "On 13 December 2007 and 11 March and 15 May 2008 the District Court extended the applicants’ detention until 20 March, 20 May and 20 July 2008 respectively. The court’s reasoning and the format of the order remained unchanged. The Regional Court upheld the said decisions on appeal on 19 February, 17 April and 8 July 2008 respectively. 28. On 18 July 2008 the District Court found the applicants guilty of robbery and sentenced them to three years and one month and three years and two months’ imprisonment respectively.", "The applicants did not appeal. 29. It appears that both applicants were released shortly after the pronouncement of the judgment of 18 July 2008. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 30.", "The applicants complained that the length of their pre-trial detention had not been justified by relevant or sufficient reasons. They relied on Article 5 of the Convention, which, in so far as relevant, reads as follows: “3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 31. 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 32.", "The Government asserted that the length of the applicant’s pre-trial detention had been justified in view of the complexity of the case. They further considered that, by relying on such reasons as the gravity of the charges against the applicants and the risk that they would threaten the parties to the proceedings or abscond, the domestic courts had rightfully justified the applicants’ detention pending investigation and trial. Furthermore, the applicants had threatened one of their co-defendants to make him alter his testimony. 33. The applicants maintained their complaint.", "They denied the Government’s allegations that they had put any pressure on B. As the regards the notes found on B., the second applicant denied having written them. He also claimed that there was nothing in their text to substantiate the Government’s allegations that he had tried to make B. change his testimony. 2. The Court’s assessment (a) The period to be taken into consideration 34.", "According to the Court’s well-established case-law, in determining the length of pre-trial detention under Article 5 § 3 of the Convention the period to be taken into consideration begins on the day the accused is taken into custody and ends on the day when the charge is determined, even if only by a court of first instance (see, among many other authorities, Belevitskiy v. Russia, no. 72967/01, § 99, 1 March 2007). 35. Furthermore, in view of the essential link between Article 5 § 3 of the Convention and paragraph 1 (c) of that Article, a person convicted at first instance cannot be regarded as being detained “for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence”, but is in the position provided for by Article 5 § 1 (a), which authorises deprivation of liberty “after conviction by a competent court” (see Panchenko v. Russia, no. 45100/98, §§ 91 and 93, 8 February 2005, with further references).", "36. Accordingly, in the present case the period to be taken into consideration consisted of two separate terms: (1) from 24 June 2005 (in respect of the first applicant) and from 11 March 2005 (in respect of the second applicant), when the applicants were remanded in custody, to 29 May 2006, when they were convicted at first instance in the first set of criminal proceedings; and (2) from 25 October 2006, when the applicants’ conviction was quashed on appeal, to 18 July 2008, when the applicants were convicted at first instance in the second set of criminal proceedings. 37. It follows that the period of the detention to be taken into consideration in the instant case amounted in total to approximately two years and eight months in respect of the first applicant and two years and eleven months in respect of the second applicant. (b) General principles 38.", "The Court reiterates that the question whether a period of time spent in pre-trial detention is reasonable cannot be assessed in the abstract. Whether it is reasonable for an accused to remain in detention must be assessed on the facts of each case and according to its specific features. Continued detention can be justified in a given case only if there are actual indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110 et seq. ), ECHR 2000‑XI).", "39. The existence and persistence of a reasonable suspicion that the person arrested has committed an offence is a sine qua non for the lawfulness of the continued detention. However, after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds are “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no.", "26772/95, §§ 152 and 153, ECHR 2000‑IV). Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003‑I (extracts) When deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures of ensuring his appearance at trial (see Jabłonski v. Poland, no. 33492/96, § 83, 21 December 2000). 40.", "The responsibility falls in the first place on the national judicial authorities to ensure that in a given case the pre-trial detention of an accused person does not exceed a reasonable length. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the arguments for or against the existence of a public interest which justifies a departure from the rule in Article 5, and must set them out in their decisions on applications for release. It is essentially on the basis of the reasons given in these decisions and of the established facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see, for example, McKay v. the United Kingdom [GC], no. 543/03, § 43, ECHR 2006‑X). (c) Application of these principles to the present case 41.", "The Court accepts that the reasonable suspicion that the applicants committed the offences they had been charged with, being based on cogent evidence, persisted throughout the trial leading to their conviction. It remains to be ascertained whether the judicial authorities gave “relevant” and “sufficient” grounds to justify the applicants’ detention and whether they displayed “special diligence” in the conduct of the proceedings. 42. When remanding the applicants in custody, the domestic authorities referred to the gravity of the charges against them and their character. In this respect they noted that they might interfere with the administration of justice, put pressure on witnesses or other parties to the proceedings, or destroy evidence.", "They also cited the risk that they would abscond or continue with criminal activities. The Court is prepared to accept that the applicants’ detention may initially have been warranted by the combination of those factors. Accordingly, the Court must establish whether the same grounds given by the judicial authorities continued to justify the deprivation of liberty with the passage of time. 43. In this connection the Court reiterates that, although the severity of the sentence faced is a relevant element in the assessment of the risk of an accused absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the seriousness of the offence.", "Nor can continuation of the detention be used to anticipate a custodial sentence (see Letellier v. France, 26 June 1991, § 51, Series A no. 207; Panchenko, cited above, § 102; Goral v. Poland, no. 38654/97, § 68, 30 October 2003; and Ilijkov v. Bulgaria, no. 33977/96, § 81, 26 July 2001). 44.", "The Court accepts that in cases concerning organised crime and involving numerous accused, the risk that a detainee might put pressure on witnesses or otherwise obstruct the proceedings if released is often particularly high. All these factors may justify a relatively long period of detention. However, they do not give the authorities unlimited power to extend this preventive measure (see Osuch v. Poland, no. 31246/02, § 26, 14 November 2006, and Celejewski v. Poland, no. 17584/04, §§ 37‑38, 4 May 2006).", "The fact that a person is charged with acting in criminal conspiracy is not in itself sufficient to justify long periods of detention; his personal circumstances and behaviour must always be taken into account (see Sizov v. Russia, no. 33123/08, § 53, 15 March 2011). 45. As regards the argument advanced by the domestic judicial authorities that the applicants might put pressure on witnesses or obstruct the course of justice in some other way, the Court has regard to the fact that the second applicant was initially remanded in custody in March 2005 in order to prevent him from putting pressure on his co-defendant B. However, subsequently the domestic courts did not take this into account when extending the second applicant’s detention.", "According to the Government, in March 2006 the authorities found proof that the applicants had continued putting pressure on B. However, that circumstance was referred to for the first time in the proceedings before the Court, and the domestic courts never mentioned it in their decisions. It is not the Court’s task to take the place of the national authorities ruling on the applicants’ detention or to substitute its own analysis of the arguments for and against detention (see Nikolov v. Bulgaria, no. 38884/97, § 74, 30 January 2003, and Labita, cited above, § 152). Accordingly, the Court finds that the existence of a risk that the applicants could have put pressure on one of the co-defendants was not established.", "46. Another ground for the applicants’ detention was the risk that they would abscond. It appears from the domestic courts’ decisions that when reasoning that the applicants’ should be detained pending trial to minimise that risk, the courts did not refer to any matters which had allowed them to draw such an inference. The Court therefore considers that the national authorities were not entitled to regard the circumstances of the case as justification for using the risk of absconding as a further ground for the applicants’ detention. 47.", "The Court also notes that in ordering the extensions the courts used stereotyped wording. Such an approach may suggest that there was no genuine judicial review of the need for the detention at each extension of detention (see Yağcı and Sargın v. Turkey, 8 June 1995, § 50 et seq., Series A no. 319-A). In this connection, the Court observes that in the course of the criminal proceedings against the applicants, certain charges, such as involvement in an organised criminal gang and wilful destruction of property, were dropped. However, there is no indication in the materials before the Court that the domestic courts, when extending the applicants’ pre-trial detention, had in any way taken into account such developments in the circumstances in their case.", "48. The Court further reiterates that when deciding whether a person should be released or detained the authorities have an obligation under Article 5 § 3 to consider alternative measures of ensuring his or her appearance at trial (see Sulaoja v. Estonia, no. 55939/00, § 64, 15 February 2005, and Jabłoński, cited above, § 83). In the present case, the authorities did not consider the possibility of ensuring their attendance by the use of other “preventive measures” which are expressly provided for in Russian law to ensure the proper conduct of criminal proceedings. At no point in the proceedings did the domestic courts explain in their decisions why alternatives to depriving the applicants of liberty would not have ensured that the trial would follow its proper course.", "49. Lastly, the Court points out that on more than one occasion the domestic authorities refused to release the applicants arguing that the latter failed to furnish evidence that their detention was no longer necessary (see paragraphs 19 and 24 above). In this connection, the Court reiterates that it has repeatedly considered the practice of shifting the burden of proof to the detained person in such matters to be tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (see Ilijkov, cited above, §§ 84-85; and Rokhlina v. Russia, no. 54071/00, § 67, 7 April 2005). 50.", "Having regard to the above, the Court considers that by relying essentially on the gravity of the charges, by failing to substantiate their finding by pertinent specific facts or to consider alternative “preventive measures” and by shifting the burden of proof to the applicants, the authorities extended their detention on grounds which, although “relevant”, cannot be regarded as sufficient to justify its duration of two years and eight months and two years and eleven months respectively. In these circumstances it would not be necessary for the Court to examine whether the domestic authorities acted with “special diligence”. 51. There has accordingly been a violation of Article 5 § 3 of the Convention. II.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 52. Lastly, the applicants complained about the alleged unlawfulness of their pre-trial detention. They referred to Articles 5 and 6 of the Convention. Having regard to all the material in its possession and in so far as it falls within its competence, the Court finds that the evidence before it discloses 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 manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 53. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 54. The applicants each claimed 300,000 euros (EUR) in compensation for non-pecuniary damage.", "55. The Government submitted that there had been no violation of the applicants’ rights as set out in the Convention. In any event, they considered the applicants’ claims unreasonable and excessive and suggested that the acknowledgement of a violation would constitute adequate just satisfaction. 56. The Court observes that the applicants spent respectively two years and eight months and two years and eleven months in custody awaiting determination of the criminal charge against them, their detention not being based on sufficient grounds.", "In these circumstances, the Court considers that the applicants’ suffering and frustration cannot be compensated for by a mere finding of a violation. Making its assessment on an equitable basis, it awards EUR 2,800 to the first applicant and EUR 3,100 to the second applicant in compensation for non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 57. The applicants also claimed 4,000 Russian roubles (RUB) each for the work performed by their representative in the proceedings before the Court, and RUB 2,100 for their translator’s services.", "They submitted the relevant receipts. 58. The Government considered the applicants’ claims unsubstantiated. In their opinion, the applicants should have submitted a written agreement with their representative and specified what kind of work he had performed. 59.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 100 to each of the applicants in respect of the work performed by their representative and EUR 53 jointly to cover translation costs, plus any tax that may be chargeable to the applicants on the above amounts. 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 complaint concerning the length of the applicants’ pre-trial detention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 5 § 3 of the Convention; 3. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent at the rate applicable at the date of settlement: (i) EUR 2,800 (two thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the first applicant; (ii) EUR 3,100 (three thousand one hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the second applicant; (iii) EUR 100 (one hundred euros) to each applicant, plus any tax that may be chargeable to them, in respect of costs and expenses; (iv) EUR 53 (fifty three euros) jointly, plus any tax that may be chargeable to the applicants, in respect of the translation costs; (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 19 December 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]
[ "FOURTH SECTION CASE OF G.S. v. GEORGIA (Application no. 2361/13) JUDGMENT STRASBOURG 21 July 2015 FINAL 21/10/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of G.S.", "v. Georgia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Guido Raimondi, President,Päivi Hirvelä,George Nicolaou,Ledi Bianku,Nona Tsotsoria,Paul Mahoney,Faris Vehabović, judges,and Fatoş Aracı, 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. 2361/13) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms G.S. (“the applicant”), on 28 December 2012. The Chamber decided of its own motion to grant the applicant anonymity pursuant to Rule 47 § 4 of the Rules of Court.", "2. The applicant was represented by Mr S. Kalyakin, a lawyer practising in Kharkiv. The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze, of the Ministry of Justice. 3. The applicant alleged that, on account of the refusal by the Georgian courts to order her son’s return to Ukraine, in application of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”), she had been the victim of an infringement of her right to respect for her family life within the meaning of Article 8 of the Convention.", "4. On 18 December 2013 the applicant’s complaint under Article 8 of the Convention was communicated to the Government and the remainder of the application was declared inadmissible. Further to the notification under Article 36 § 1 of the Convention and Rule 44 § 1 (a), the Ukrainian Government did not wish to exercise their right to intervene in the present case. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1981 and lives in Kharkiv, Ukraine. A. Background 6. The applicant lived with her partner, a dual Georgian-Ukrainian national, Mr G. Ch., in Kharkiv.", "On 29 July 2004 their first child, L., was born; he was registered in Ukraine at the applicant’s address and acquired Ukrainian citizenship. 7. Some time in mid-2005 G. Ch. left Ukraine for Russia. L. continued to live with his mother and attended a pre-school educational institution in Kharkiv.", "8. In 2005 and 2006 G. Ch. visited the applicant and L. twice. In September 2006 the applicant gave birth to another child of the couple, T. 9. On 22 July 2010 T. died in an accident.", "She fell from an open window of an apartment. L., who had apparently witnessed the tragic incident, started receiving psychological help in the form of dolphin-assisted therapy. 10. On 30 July 2010 the applicant allowed G. Ch. to take their son for the first time to Georgia for the summer holidays.", "She signed a document authorising G. Ch. to travel with L. to Georgia and Russia between 30 July 2010 and 28 February 2011. According to the applicant, L. was expected to return to Kharkiv by the end of August in order to start in September at a primary school in which he had been pre-enrolled. 11. On 13 August 2010, the applicant learned when talking on the telephone with her son that the latter would not be returning to Ukraine and would be staying in Georgia.", "For two months the applicant tried to persuade her former partner to allow their child to return to Ukraine, to no avail however. It appears that soon after this G. Ch. left for Russia, while L. stayed in Georgia with his uncle, G. Ch.’s brother, and his grandfather. G. Ch. travelled occasionally to Georgia to see his son.", "12. On 16 November 2010 L. was diagnosed with an adjustment disorder and began having outpatient treatment. B. The proceedings in Ukraine 13. On 22 March 2011 the Kievskiy District Court of Kharkiv ordered L.’s return to Ukraine.", "The court ruled that L.’s place of permanent residence should be that of the applicant. 14. G. Ch. was not apparently informed of the institution of the above proceedings. He did not accordingly appeal against that decision.", "C. The proceedings in Georgia 15. In October 2010 the applicant initiated child return proceedings under the Hague Convention via the Ministry of Justice of Ukraine. On 18 November 2010 the latter contacted the Ministry of Justice of Georgia and requested legal cooperation on the matter. On 2 December 2010 the Ministry of Justice of Georgia, acting as the central authority responsible for the obligations established by the Hague Convention, instituted proceedings on behalf of the applicant before the Tbilisi City Court. 16.", "On 10 February 2011 two social workers went to see L. at the request of the Tbilisi City Court. They visited him at his uncle’s apartment, where he was living with his cousins. According to the report drawn up thereafter, L. was being looked after by his uncle, since his father was mainly based in Russia. The boy spoke Russian, although he had started attending a Georgian school. L.’s uncle told the social workers that L.’s sister had died as a result of their mother’s lack of attention; hence it was dangerous for L. to live with his mother.", "The social workers also had a short conversation with L. during which he stated that he was happy with his uncle and cousins, and did not want to go back to Ukraine. In conclusion, the social workers noted that L. was living in appropriate living conditions, and that his basic needs were being met. 17. In April 2011 the social workers set up and attended three meetings between the applicant and her son. In the report drawn up thereafter they concluded the following: “On the basis of our intervention, which included visits, conversations with L. and observation of his behaviour, we consider his behaviour to be problematic.", "In particular, although L. wants to see his mother, and when seeing her expresses his love, warm feelings and happiness, he refuses subsequently to talk to her on the telephone. It should be underlined that when communicating with his mother he is following his father’s prompting and is stressed. Given that L. is living in the family of his uncle and grandfather, he lacks relationship with his parents (since neither of the parents lives with him). In order for a child to develop into a contented and healthy individual, and to have his interests protected, it is necessary for him to communicate with his parents.” 18. In the same report the social workers noted that during one of the meetings they noticed that the boy, prompted by his father, had stopped hugging his mother.", "This happened twice, until one of the social workers warned G. Ch. to stop doing this. 19. In April L. additionally underwent a psychological examination, which concluded that the boy was suffering from insufficient emotional relationship with his parents. It was noted that L. had a clearly positive attitude towards his father and the paternal family, while with respect to the mother his attitude was twofold: love and warm feelings on the one hand, and anxiety on the other.", "L. indicated to a psychologist that he wanted to live with his father and his father’s family and wanted his mother to be with them too. In her conclusions about his emotional condition the psychologist noted that the boy’s nervousness, aggression, distrust, and irritability, as well as low self-esteem, were caused by psychological trauma he had suffered in the past, as well as by his current complicated and barely comprehensible situation. 20. On 16 May 2011 the Tbilisi City Court refused the applicant’s request. The court concluded, having regard to the boy’s age and other circumstances of the case, that his return to Ukraine would expose him to psychological risk.", "It stated in this connection that it would be inappropriate to order the boy’s return to Ukraine, since the applicant had failed to show that she could create a stable environment for her son in which he could be protected from psychological risks related to the separation from his father. The court further noted the following: “The court considers that in the current case, having regard to a psychologist’s report which categorically states that L. suffered a serious psychological injury, it is with high probability that if returned to Ukraine the child would be exposed to “physical or psychological harm or otherwise place[d] in an intolerable situation” (Article 13 of the Convention).” 21. The court dismissed the applicant’s argument that her son was suffering from an adjustment disorder and lacked communication with his parents. It noted in this connection the following: “In view of a psychological examination the court particularly stresses the following – “L. Ch.", "has revealed ... high level of anxiety ... and fear of the future”, “twofold attitude towards his mother, which implies love and warm feelings as well as strong anxiety,” according to the same report, it was established that [he suffers from] “lack of emotional relationship with both parents” and “positive attitude towards his father and the paternal family” especially towards the grandfather (N. Ch.). The court further particularly underlines the fact that minor L. Ch. expresses the wish to live with his father and the paternal family. At the same time, he wants his mother (G. S.) to stay with them ...", "The court cannot accept the argument of the requesting party that the child is having adaptation difficulties because of the separation from his mother and because he is being kept in Georgia. The above opinion is not supported by any evidence and is not substantiated ... There is an attempt on the father’s side to take every possible measure ... to treat [the boy’s] psychological condition.” 22. As to the risks related to the boy’s return to Ukraine, the court stated: “Hence, the court considers that the return of L. Ch. to Ukraine (in view of his current condition) would imply his return to an uncomfortable situation, which would result in his psychological stress and would place him at psychological risk, even if he returned to Ukraine with his father.", "Separation from his father and the paternal family and his return to Ukraine (at this stage) would cause mental deterioration of the child and from a psychological point of view would inevitably create a risk [for the boy]. (The requesting party failed to prove the opposite).“ 23. That decision was overturned on 27 October 2011 by the Tbilisi Court of Appeal, which ordered L.’s return to Ukraine. The appeal court observed that L. had been born and had lived in Kharkiv, so he had adapted to the situation in Ukraine. Further, according to the psychological and social welfare reports, the boy was suffering from adaptation difficulties and lacked sufficient communication with his parents.", "In this connection, the court stressed that L. had indeed suffered psychological trauma as a result of the accidental death of his sister; but, according to the very same reports, he was also suffering because of the situation he was currently in. Hence, it was within the best interests of the child to be reunited with his mother. The court further noted: “The above-mentioned conclusions confirm that the current situation for [the boy] is complicated and hardly comprehensible. Accordingly, in view of the interests of L. Ch., since there is no obvious risk of a negative impact on his mental state if he were returned to his mother, it would be appropriate that he be returned to his parent (the applicant G. S.) and to his habitual place of residence.” 24.", "As to the death of L.’s sister, the appeal court noted that related criminal proceedings had been dropped, as it had been concluded that it had been a tragic accident. It further noted in connection with the psychological trauma the boy suffered as a result, that “... already traumatised child should not be separated from his parents. This should be viewed as a decision taken in the interests of the child. As was noted in the appealed decision, L. before his arrival in Georgia had been having dolphin-assisted rehabilitation treatment. At the same time, his stay with his mother cannot be harmful to him, since she has been doing an internship at the psychiatric hospital ...” 25.", "G. Ch. appealed against this decision on points of law, alleging that the court of appeal had incorrectly interpreted the Hague Convention and the facts of the case. On 22 August 2012, without holding an oral hearing, the Supreme Court allowed the appeal on points of law, thus reversing the judgment of 27 October 2011. On a general note, in connection with the purpose of the initiated proceedings the court noted the following: “The subject matter of the pending application is the return to Ukraine of a child (L. Ch.)", "wrongfully retained in Georgia ... The cassation court pays attention to the analysis developed in the preamble of the Convention concerning its aims, according to which the interests of the child are of paramount importance when examining childcare-related issues. At the same time, the High Contracting Parties to the Convention undertook an obligation to provide international protection to children against any harmful effects of their wrongful removal or retention. Accordingly, it implies that the procedures provided for by the Convention which aim at the speedy return of a wrongfully removed or retained child to his or her habitual place of residence serve the main purpose of protecting children’s interests. In view of all the above-mentioned, the cassation court when considering the lawfulness of the request to end wrongful retention of a child considers it appropriate within the scope of the appeal on point of law to also examine the issue as to what extent the child’s interests would be protected in the event of his return which together with other factors implies the creation of a safe environment for a child.", "The above analysis of the cassation court finds its basis in the exceptional clauses of the Convention which in individual cases allow the relevant bodies of the receiving state to refuse the return of a child (Article 13 of the Convention).” 26. The Supreme Court further considered that the applicant had failed to show that the return of L. to the pre-abduction situation would be possible without damaging his interests. Notably, the court concluded: “The cassation court wholly shares the view of the appeal court, according to which L. is suffering from lack of relationship with his parents; accordingly, in order for the child to develop into a contented and healthy individual and to have his interests protected it is necessary for him to communicate with his parents. However, as was noted above, when dealing with this type of case particular attention should be given to the consideration of exceptional circumstances ... The appellant alleges a violation of Article 13 § b of the Convention (there is a serious risk that if returned the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation) and considers that the impugned decision omits the primary reason for L. Ch.’s leaving Ukraine, namely the tragic death of T. Ch.", "in July 2010, which fact had a negative impact on the psychological condition of L. Ch. ... The cassation court notes the results of the available psychological examination, in which the psychologist along with other issues stressed the high level of traumatisation in L. Ch. as a result of the death of his younger sister. At the same time, the psychologist considers the psychological features observed to be the boy’s reaction to the psychological trauma which he had suffered and to the current barely comprehensible situation.", "It is noteworthy that even the court of appeal could not omit the fact that as a result of the death of T. Ch. (the sister of L. Ch.) the latter had suffered mental trauma and is as of 16 November 2010 registered at a ... psychiatric institution .... However, the above-mentioned circumstances were not sufficient [for the appeal court] to refuse the return of the boy.", "The cassation court considers that there is no evidence in the case file which would lead the court to believe that it would be possible to return the child to his pre-abduction environment without damaging his interests. In the opinion of the cassation court, the appellant validly substantiated, on the basis of relevant evidence, the risk factors which are inconsistent with the purposes of the Convention, while the respondent failed to show a higher purpose which could have been achieved by putting an end to the unlawful situation and [she had also] failed to demonstrate that in the event of the child being returned to Ukraine his interests and rights would not be even more violated. Accordingly, bearing in mind that the primary purpose of the Convention on Civil Aspects of International Child Abduction is the protection of the interests of a child, the cassation court considers that the appellant has lodged a substantiated complaint.” 27. To conclude, in reference to Article 13 § b of the Hague Convention, the Supreme Court observed that the main purpose of the Hague Convention was the protection of the best interests of a child, and that accordingly, given the well-substantiated risks that L. was facing upon his return to Ukraine, the exception clause should have been invoked. 28.", "The case file indicates that G. Ch. did not take part in the relevant court proceedings, as he was not in Georgia at the material time. L., according to the case file, is currently living with his uncle and grandfather in Tbilisi. II. RELEVANT DOMESTIC LAW AND INTERNATIONAL LAW AND PRACTICE A.", "The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction 29. The relevant part of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“The Hague Convention”) reads: Article 2 Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available. 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 11 The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. Article 12 Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. ...", "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. 30. The relevant part of the Explanatory Report to the Hague Convention by Elisa Pérez-Vera (hereafter “the Explanatory Report”), published by the Hague Conference on Private International Law (HCCH) in 1982, reads as follows: C. Importance attached to the interests of the child 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, even when viewing from this perspective, 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. For the most part, these exceptions are only concrete illustrations of the overly vague principle whereby the interests of the child are stated to be the guiding criterion in this area. D. Exceptions to the duty to secure the prompt return of children 34.", "To conclude ... it would seem necessary to underline the fact that the three types of exception to the rule concerning the return of the child must be applied only so 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. In fact, the Convention as a whole rests upon the unanimous rejection of this phenomenon of illegal child removals and upon the conviction that the best way to combat them at an international level is to refuse to grant them legal recognition. ... [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. Article 11 – The use of expeditious procedures by judicial or administrative authorities 104.", "The importance throughout the Convention of the time factor appears again in this article. 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, 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. Articles 13 and 20 – Possible exceptions to the return of the child 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, be he a physical person, an institution or an organization, that person not necessarily being the abductor. 31.", "In 2003 the HCCH published Part II of the “Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction”. Although primarily intended for the new Contracting States and without binding effect, especially in respect of the judicial authorities, this document seeks to facilitate the Convention’s implementation by proposing numerous recommendations and clarifications. The Guide repeatedly emphasises the importance of the Explanatory Report to the 1980 Convention, in helping to interpret coherently and understand the 1980 Convention. It emphasises, inter alia, that the judicial and administrative authorities are under an obligation to process return applications expeditiously, including on appeal. Expeditious procedures should be viewed as procedures which are both fast and efficient: prompt decision-making under the Convention serves the best interests of children.", "B. The International Convention on the Rights of the Child 32. The relevant provisions of the United Nations Convention on the Rights of the Child (“the CRC”), signed in New York on 20 November 1989, read as follows: Preamble “The States Parties to the present Convention ... Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community, Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding ... Have agreed as follows ... Article 7 1.", "The child shall be registered immediately after birth and shall have the right from birth ... to know and be cared for by his or her parents... Article 9 1. States Parties shall ensure that a child shall not be separated from his or her parents against their will ... Article 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 ...” 33. In General Comment no. 14 on the right of the child to have his or her best interests taken as a primary consideration, published on 29 May 2013 (CRC/C/GC/14), the Committee on the Rights of the Child stated, inter alia, the following: 6. The Committee underlines that the child’s best interests is a threefold concept: (a) A substantive right: The right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake, and the guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general ... (b) A fundamental, interpretative legal principle: If a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child’s best interests should be chosen ... (c) A rule of procedure: Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision‑making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned.", "Assessing and determining the best interests of the child require procedural guarantees. Furthermore, the justification of a decision must show that the right has been explicitly taken into account. In this regard, States parties shall explain how the right has been respected in the decision, that is, what has been considered to be in the child’s best interests; what criteria it is based on; and how the child’s interests have been weighed against other considerations, be they broad issues of policy or individual cases ... 32. The concept of the child’s best interests is complex and its content must be determined on a case-by-case basis. It is through the interpretation and implementation of article 3, paragraph 1, in line with the other provisions of the Convention, that the legislator, judge, administrative, social or educational authority will be able to clarify the concept and make concrete use thereof.", "Accordingly, the concept of the child’s best interests is flexible and adaptable. It should be adjusted and defined on an individual basis, according to the specific situation of the child or children concerned, taking into consideration their personal context, situation and needs. For individual decisions, the child’s best interests must be assessed and determined in light of the specific circumstances of the particular child ... 33. The child’s best interests shall be applied to all matters concerning the child or children, and taken into account to resolve any possible conflicts among the rights enshrined in the Convention or other human rights treaties. Attention must be placed on identifying possible solutions which are in the child’s best interests ... (c) Preservation of the family environment and maintaining relations 58.", "The Committee recalls that it is indispensable to carry out the assessment and determination of the child’s best interests in the context of potential separation of a child from his or her parents ... 60. Preventing family separation and preserving family unity are important components of the child protection system, and are based on the right provided for in article 9, paragraph 1, which requires “that a child shall not be separated from his or her parents against their will, except when [...] such separation is necessary for the best interests of the child”. Furthermore, the child who is separated from one or both parents is entitled “to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests” (art. 9, para. 3).", "This also extends to any person holding custody rights, legal or customary primary caregivers, foster parents and persons with whom the child has a strong personal relationship. 61. Given the gravity of the impact on the child of separation from his or her parents, such separation should only occur as a last resort measure, as when the child is in danger of experiencing imminent harm or when otherwise necessary; separation should not take place if less intrusive measures could protect the child ...” C. Relevant Georgian legislation 34. On 21 June 2011 a new chapter concerning the examination of cases regarding wrongfully removed or retained children was inserted into the Civil Code of Procedure of Georgia. The new chapter describes the procedures and manner for submitting and examining requests for a return of wrongfully removed and/or retained children.", "The relevant Article of this Chapter concerning time-limits reads as follows: Article 351(14). Time-limits “1. A court shall take a decision concerning the return of a wrongfully removed or retained child ... expeditiously, within six weeks of receiving the request.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 35. The applicant complained about the refusal of the Georgian courts to order the return of her son to Ukraine.", "She also complained about the length of the return proceedings. She relied on 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. Admissibility 36.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ submissions a. The Government 37. The Government claimed at the outset that the initial removal of L. from Ukraine was not wrongful for the purposes of the Hague Convention, given that the applicant herself had authorised L.’s travel for the period between 30 July 2010 and 28 February 2011. They next submitted that the interference with the applicant’s family life on account of her son’s retention in Georgia had a legal basis, namely Article 13 § b of the Hague Convention. It had also served the legitimate aim of protecting the child’s best interests.", "Specifically, they maintained, in line with the reasoning of the first-instance court and the Supreme Court, that if returned to Ukraine L. would be exposed to psychological harm. The Government stressed that the domestic courts had relied on all the evidence adduced in the case, including two social welfare reports produced by the relevant authorities in respect of the child’s general situation and emotional state of mind, and evidence given by a psychologist concerning the boy’s psychological condition. In view of these reports they maintained that L.’s separation from his father would further aggravate his psychological trauma and hence was not in the child’s best interests. 38. As regards the length of the proceedings, the Government argued that having regard to the complexity of the case it could not be said that the domestic authorities had not acted expeditiously enough.", "Referring on the one hand to the social welfare reports as well as to the conclusion of a psychologist, which had been drawn up following observation of L.’s behaviour, and noting on the other that no significant periods of inactivity by the domestic courts could be observed, the Government claimed that they had fully discharged the positive obligation they owed to the applicant under Article 8 of the Convention. 39. In their additional observations the Government submitted that the place of residence of G. Ch. was irrelevant for the purposes of the return proceedings conducted under the Hague Convention, since the only purpose of those proceedings was to estimate the possible risks of psychological harm L. could face if returned to Ukraine. They further stressed that according to the social welfare reports as well as the conclusion of a psychiatrist, L. was living in a safe and loving environment and did not want to go back to Ukraine.", "They hence argued that his return would have caused him additional trauma. b. The applicant 40. The applicant contested the domestic court’s reasoning maintained by the Government before the Court, that the interference with her family life had been lawful under Article 13 § b of the Hague Convention. She claimed that the courts had failed to conduct a deep analysis of her family situation and to strike a proper balance between the various interests at stake in the best interests of the child.", "Her argument in this respect was mainly threefold: firstly, the domestic courts had simply omitted the fact that L. was in fact living in Georgia with his uncle and grandfather, who were taking care of him in the absence of his father. Neither of them had any custody rights in respect of the boy. Secondly, when reaching their conclusion that psychological harm would await the boy in Ukraine, the domestic courts did not assess the living conditions of the child in Ukraine. They also overlooked the fact that the applicant was a practising psychiatrist, and was thus in a position to provide her son with the required medical assistance. And lastly, there was no clear evidence in the case file that L. was indeed undergoing psychiatric treatment in Georgia.", "And in any event, he could have continued receiving the required treatment in Ukraine as well. 2. The Court’s assessment a. General principles 41. In Neulinger and Shuruk v. Switzerland ([GC], no.", "41615/07, §§ 131-140, 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: 42. 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, and of the relevant rules and principles of international law applicable in relations between the Contracting Parties; 43. 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”; 44. 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 his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13, first paragraph, (b)); 45. 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; 46.", "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; 47. 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, these factors must be evaluated in the light of Article 8 of the Convention; and 48. 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. 49. In addition to the principles outlined above, the Court has repeatedly stated that effective respect for family life requires future relations between parent and child to be determined solely in the light of all the relevant considerations, and not by the mere passage of time (see Maumousseau and Washington v. France, no. 39388/05, § 73, 6 December 2007; Lipkowsky and McCormack v. Germany (dec.), no.", "26755/10, 18 January 2011, and Diamante and Pelliccioni v. San Marino, no. 32250/08, § 177, 27 September 2011). Ineffective, and in particular delayed, conduct of judicial proceedings may give rise to a breach of positive obligations under Article 8 of the Convention (see Eberhard and M. v. Slovenia, no. 8673/05 and 9733/05, § 127, 1 December 2009, and S.I. v. Slovenia, no.", "45082/05, § 69, 13 October 2011), as procedural delay may lead to a de facto determination of the matter at issue (see H. v. the United Kingdom, 8 July 1987, § 89, Series A no. 120). Therefore, in cases concerning a person’s relationship with his or her child there is a duty to exercise exceptional diligence, in view of the risk that the passage of time may result in a de facto determination of the matter. This duty, which is decisive in assessing whether a case has been heard within a reasonable time as required by Article 6 § 1 of the Convention, also forms part of the procedural requirements implicit in Article 8 (see, for example, Süß v. Germany, no. 40324/98, § 100, 10 November 2005, and Strömblad v. Sweden, no.", "3684/07, § 80, 5 April 2012). b. Application of these principles to the current case 50. The Court first observes, in line with the domestic courts’ conclusion, that whilst L.’s travel to Georgia had not been wrongful, since the applicant had consented to it, the failure to return the boy to his habitual place of residence was wrongful within the meaning of Article 3 of the Hague Convention. It further notes that the Tbilisi City Court and the Supreme Court of Georgia, unlike the Tbilisi Court of Appeal, took the view that the boy’s return to Ukraine would expose him to psychological harm within the meaning of Article 13 § b of the Hague Convention.", "51. The Court accepts the Government’s submission that the interference with the applicant’s right to family life was provided by law, namely Article 13 § b of the Hague Convention, which entered into force for Georgia on 1 November 1997, and that it pursued the legitimate aim of protecting the child’s best interests. The Court must however 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 Hague Convention. For that purpose the Court, in line with the general principles outlined above (see paragraphs 41-49 above) will examine first whether the conclusion that the return of the boy to Ukraine would expose him to grave risk of harm was supported by relevant and sufficient reasons and whether the relevant factors were evaluated in the light of Article 8 of the Convention (see paragraphs 47-48 above); and second, whether the domestic courts exercised the required diligence in conducting expeditious return proceedings under the Hague Convention (see paragraph 49 above). 52.", "The Court will make an assessment in the light of the situation existing at the time when the relevant domestic decisions were taken (see X. v. Latvia, cited above, § 109). i. The reasons for the refusal to order the child’s return 53. The main line of reasoning of the first and cassation instances in the return proceedings centred on the death of L.’s sister and the psychological trauma which the boy had suffered as a result. Hence, the first-instance court concluded that in view of the applicant’s psychological trauma there was a high probability that his return to Ukraine would cause him physical or psychological harm, or would place him in an otherwise intolerable situation (see paragraph 20 above).", "Along the same line of reasoning, the Supreme Court concluded that G. Ch., by adducing relevant evidence, had substantiated the risks that the boy would face if returned to Ukraine, while the applicant had failed for her part to outweigh those risks by showing what greater benefit there would be in the boy being returned to the pre‑abduction situation (see paragraph 26 above). 54. The Court concurs with the domestic courts that the psychological trauma L. suffered as a result of the death of his sister was a relevant factor to be considered during the boy’s return proceedings. Indeed, the tragic incident was the very reason why the boy, with the consent of his mother, had initially gone to Georgia.", "The Court is, however, not persuaded by the subsequent reasoning of the Supreme Court, which led to the finding of the existence of a “grave risk” for the child in the event he was returned to Ukraine. Hence, the Supreme Court in its decision concluded that the father had well substantiated the risks which L. would have faced if returned to Ukraine. However, although it used general phrases such as “physical or psychological harm” or “otherwise intolerable situation” (see paragraphs 25-26 above) it failed to explain what those risks exactly implied. It is noteworthy that the father before the domestic courts did not assert that the applicant herself posed a threat to the boy (see, a contrario, X v. Latvia, cited above, §§ 23 and 116). Although L.’s uncle voiced his concerns with social workers about inattentiveness on the part of the applicant (see paragraph 16 above), it should be remembered that the relevant domestic proceedings in Ukraine concluded that the death of L.’s sister had been the result of a tragic accident (see paragraph 24 above).", "55. Further, there was no expert evidence in the case file to suggest that the return to Ukraine as such would exacerbate the boy’s psychological trauma (compare with Neulinger and Shuruk, § 143, and X. V. Latvia, § 116, both cited above). To the Court’s regret, neither of the reports proposed an analysis of the implications of L.’s possible return to Ukraine; and there was no exploration of the possible risks in this regard (see Karrer v. Romania, no. 16965/10, § 46, 21 February 2012, and Blaga v. Romania, no. 54443/10, § 82, 1 July 2014).", "The psychologist’s report merely stated that the boy had experienced psychological trauma and was in need of assistance (see paragraph 19 above), which the applicant did not contest. On the contrary, as someone with a medical background, she consistently reiterated before the domestic courts her readiness to provide her son with the required psychological assistance in Ukraine. 56. As to the Government’s argument that the boy wanted to stay in Georgia and that his return and consequent separation from his father and the paternal family would have caused him additional psychological trauma (see paragraphs 37-39 above), the Court observes the following: the aim of the Hague Convention is to prevent the abducting parent from succeeding in obtaining legal recognition, by the passage of time, of a de facto situation that he or she had unilaterally created (see Maumousseau and Washington, § 73, and Lipkowsky and McCormack (dec.), both cited above). Hence, the abducting parent cannot benefit from his or her own wrongdoing.", "Further, the exceptions to return under the Hague Convention must be interpreted strictly (see the Explanatory Report on the Hague Convention, § 34, quoted in paragraph 30 above; see also Maumousseau and Washington, cited above, § 73). Thus, the harm referred to in Article 13 § b of the Convention cannot arise solely from separation from the parent who was responsible for the wrongful removal or retention. This separation, however difficult for the child, would not automatically meet the grave risk test. Indeed, as the Court concluded in the case of X v. Latvia, the notion of “grave risk” cannot be read, in the light of Article 8 of the Convention, as including all the inconveniences linked to the experience of return: the exception provided for in Article 13 (b) concerns only the situations which go beyond what a child might reasonably bear (see X v. Latvia, cited above, § 116; see also Maumousseau, cited above, § 69). 57.", "In view of the above mentioned, and also having regard to the facts that no expert examination was conducted concerning the implications of L.’s separation from the paternal family, and that the living conditions awaiting the boy in Ukraine were also left without consideration, the Court finds the Government’s argument about possible psychological trauma due to L.’s separation from his father and the paternal family, misconceived. 58. It thus appears that there was no direct and convincing evidence in the case file concerning the allegation of a “grave risk” for the child in the event of his return to Ukraine. In such circumstances it is not entirely clear what were the specific reasons on the basis of which the domestic courts concluded that there was a grave risk either of psychological or physical harm or of an intolerable situation for the boy if he were returned to Ukraine (compare with Maumousseau and Washington, cited above, §§ 63 and 74). 59.", "As regards the evaluation of the domestic courts’ reasoning in the light of Article 8 of the Convention, the Court notes that while concluding with reference to the psychological and social welfare reports on the harm that was allegedly awaiting L. in the event of his return to the pre-abduction situation in Ukraine, the Supreme Court omitted the risks the boy was facing, according to the very same reports, in the event of his retention in Georgia. Notably, according to the medical report of 12 January 2011, L. was diagnosed with adjustment disorder (see paragraph 12 above). Further, the social workers in their report of 12 April 2011 explicitly concluded that the boy was suffering from lack of relationship with his parents (see paragraph 17 above). The psychologist went even further, noting in her conclusion of 3 May 2011 along with the problem of insufficient relationship with the parents that L. was suffering from psychological trauma as well as from “the currently complicated and barely understandable situation” (see paragraph 19 above). The Supreme Court did acknowledge a problem of lack of relationship with the parents (see paragraph 26 above).", "When identifying the boy’s best interests, however, it did not give any consideration to the above conclusions. Such an approach is difficult to reconcile with the requirement of a careful examination of a child’s situation enshrined in the Hague Convention as well as in Article 8 of the Convention (see Karrer, cited above, §§ 46-48 and İlker Ensar Uyanık v. Turkey, no. 60328/09, § 61-62, 3 May 2012). 60. At this point the Court also finds it necessary to address the Government’s other argument, according to which the place of residence of G. Ch.", "was irrelevant to the return proceedings (see paragraph 39 above). The Court reiterates in this connection that it has repeatedly emphasised in its case-law that the best interests of the child are to be the primary consideration in all decisions relating to children (see X v. Latvia, cited above, § 96; see also the General Comment no. 14, cited in paragraph 33 above). In the current case the de facto consequence of the return proceedings was L.’s being kept in Georgia with his uncle and grandfather. The domestic courts preferred to simply ignore the facts that L.’s father was in principle living in Russia, and that it was primarily the paternal family who was looking after the boy.", "Neither the uncle nor the grandfather had any custody rights with respect to L. 61. The Court is of the opinion that such a situation - keeping the child, who had spent the first six years of his life in Ukraine with his mother, in Georgia in the absence of both his parents - per se raises questions as to its compatibility with the principle of the best interests of a child (see in this regard, paragraphs 32-33 above). Indeed, the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and is protected under Article 8 of the Convention (see Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005; Iosub Caras v Romania, no. 7198/04, §§ 28-29, 27 July 2006; and Karrer, cited above, § 37).", "Even if not directly relevant to the return proceedings, as claimed by the Government, this factor should not have been simply ignored by the domestic courts, which were acting ostensibly in the child’s best interests. 62. To sum up, the Court considers that the above-identified shortcomings in the examination of the expert and other evidence in the current case could not have led to a relevant and sufficient reasoning in the Supreme Court’s decision. Furthermore, the latter failed to properly determine L.’s best interests in view of the specific circumstances of the current case (see paragraphs 59-61 above) and to strike a fair balance between the parties’ conflicting interests. ii.", "The promptness of the proceedings 63. Articles 2 and 11 of the Hague Convention (see paragraph 29 above) requires the judicial or administrative authorities concerned to act expeditiously to ensure the return of children, and any failure to act for more than six weeks may give rise to a request for explanations (see paragraphs 30-31 above). In the current case the applicant submitted a request for the return of her son in October 2010. The domestic court proceedings started on 2 December 2010 and were concluded with the final decision of the Supreme Court on 22 August 2012. Even though the six-week time-limit in Article 11 of the Hague Convention, which applies both to first-instance and appellate proceedings, is not mandatory (see paragraphs 30-31 above), the Court still considers that the overall length of the current proceedings – amounting to approximately ninety weeks, raises questions as to the respondent State’s compliance with the positive obligation to act expeditiously in the Hague proceedings (see Iosub Caras, §§ 38-39, and Karrer, § 54, both cited above; see also M.A.", "v. Austria, no. 4097/13, § 128, 15 January 2015). 64. The Government argued that the involvement of a psychologist and a social worker in the proceedings could explain their length. The Court is prepared to accept this argument in part, as regards the length of the first‑instance court proceedings.", "An issue already arises with respect to the length of the appeal proceedings, which lasted for approximately four months and did not involve any examination of new evidence. However, a major concern for the Court is the delay at the cassation stage. Hence, in the instant case the proceedings before the Supreme Court were pending for almost nine months. It is noteworthy that the Supreme Court opted not to hold an oral hearing (see paragraph 25 above). No witnesses were thus questioned in court, and no fresh expert or other evidence was presented and examined.", "In such circumstances, such a long period of inactivity gives rise to a concern. The Government provided no explanation for the Supreme Court’s failure to take action for a protracted period. 65. On this point, the Court also notes that Article 351(14) § 1 of the Civil Code of Procedure, which was already in force during the appeal and cassation proceedings, provided for a six-week period for taking decisions on requests in proceedings for the return of children (see paragraph 34 above). By disregarding that specific time-limit in the applicant’s case, the Tbilisi Court of Appeal and the Supreme Court did not use the most expeditious procedure as required (see Articles 2 and 11 of the Hague Convention in paragraph 29 above, and the Explanatory Report thereto in paragraph 30-31 above), and failed to respond to the urgency of the situation (see Adžić v. Croatia, no.", "22643/14, §§ 97-98, 12 March 2015). 66. Consequently, the Court finds that the domestic courts did not act with the required diligence, and failed to address this case in a most expeditious manner. iii. Conclusion 67.", "In the light of all the above mentioned, the Court considers that the applicant suffered a disproportionate interference with her right to respect for her family life, in that the decision-making process under the Hague Convention before the domestic courts did not meet the procedural and positive requirements inherent in Article 8 of the Convention. There has accordingly been a violation of Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 68. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 69. The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage, arguing that separation from her son over a lengthy period of time had caused her pain and suffering. In addition, she claimed EUR 850 in respect of pecuniary damage on account of several journeys she had undertaken between Ukraine and Georgia in order to spend time with her son and participate in the return proceedings. 70. The Government reiterated their argument concerning the unreasonableness of the applicant’s allegations under Article 8 of the Convention.", "They further argued that the amount claimed in relation to non‑pecuniary damage was excessive in the light of awards made by the Court in comparable cases. As regards the pecuniary damage, the Government noted that the documentation submitted by the applicant in support of her claim was insufficient; the copies of the two air tickets submitted showed an amount of only approximately EUR 300. 71. The Court accepts that the applicant must have suffered distress and emotional hardship as a result of the Georgian courts’ refusal to order her son’s return to Ukraine, which is not sufficiently compensated for by the finding of a violation of the Convention. Having regard to the sums awarded in comparable cases, and making an assessment on an equitable basis, the Court awards the applicant EUR 8,000 in respect of non-pecuniary damage.", "72. As regards the pecuniary damage, the Court discerns a causal link between the violation found and the pecuniary damage alleged, given that had the violation not occurred the applicant would not have had to travel to Georgia. However, on the basis of the documentary evidence before it, and in particular the flight bookings submitted by the applicant, the Court allows this claim only partially, awarding EUR 300 in respect of pecuniary damage. B. Costs and expenses 73.", "The applicant also claimed EUR 1,500 for costs and expenses incurred before the domestic courts, which included EUR 150 for court fees. 74. The Government submitted that the amount claimed was not supported by the required documentation. 75. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "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 800 for costs and expenses. C. Default interest 76. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 8 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 300 (three hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 800 (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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 21 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıGuido RaimondiRegistrarPresident" ]
[ "FIRST SECTION CASE OF Eduard CHISTYAKOV v. RUSSIA (Application no. 15336/02) JUDGMENT STRASBOURG 9 April 2009 FINAL 09/07/2009 This judgment may be subject to editorial revision. In the case of Eduard Chistyakov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 19 March 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 15336/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Eduard Nikolayevich Chistyakov (“the applicant”), on 16 March 2002.", "2. The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights. 3. On 20 January 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.", "4. The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government’s objection, the Court dismissed it. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1952 and lives in the town of Kamyshin in the Volgograd Region. A. First round of proceedings 6. The applicant was employed as an expert in the local Forensic Examinations Service. In 2000 he was accused of having been negligent in the discharge of his professional duties and was dismissed from his post.", "In March 2001 he was charged with having given a deliberately false expert opinion. 7. On 30 May 2001 the Kamyshin Town Court of the Volgograd Region convicted the applicant as charged and sentenced him to one year of correctional labour coupled with a fine amounting to 20% of his income. Under the Amnesty Act 2000 the applicant was absolved from serving his sentence. 8.", "On 7 August 2001 the Volgograd Regional Court overturned the judgment and discontinued the proceedings for want of corpus delicti. The court held that the offence required express malice, which had not been established on the facts of the case. The Rules on the Forensic Medical Examination of Corpses allowed the expert to determine the scope and methods of examination on the basis of ministerial instructions. The applicant’s failure to conduct a thorough corpse examination resulted from having chosen “the wrong scope and methods”. B.", "Supervisory review and second round of proceedings 9. On a supervisory request from the Volgograd Region Acting Prosecutor, on 21 September 2001 the Presidium of the Regional Court quashed both judgments for insufficient substantiation and remitted the case to the prosecutor for a new investigation. It held as follows: “Ruling on the discontinuation of the case, the [appeal] court referred to the Rules on forensic examination of corpse, annexed to the Decree 407 of 10 December 1996... According to paragraph 1.11 of the Rules, ‘the scope and method of the expert examination of a corpse is determined by the expert, taking account of the aim and objectives of the examination, the requirements of substantiation and objectivity of the expert’s conclusions, directions of the normative instructions and guidelines.’ So, the appeal court ruled that the insufficiency of the corpse examination carried out by the applicant ...had been due to his wrong choice as regards the scope and method of examination... [T]he case file did not contain all normative documents regarding the process of an expert examination. The investigating authority and the court concluded that [the applicant] had acted in gross disregard of the above Rules, only on the basis of excerpts from these Rules.", "This did not allow for a thorough examination of the case...” The prosecutor was present at the hearing and made submissions to the Presidium of the Regional Court. According to the applicant, neither he nor his counsel was apprised of this hearing and consequently could not attend it. 10. In the resumed proceedings, on 22 May 2002 the applicant was convicted as charged and sentenced to one year of correctional labour coupled with a fine amounting to 10% of his income. Under the Amnesty Act 2000 the applicant was absolved from serving his sentence.", "11. On 9 July 2002 the Regional Court set aside the judgment of 22 May 2002 and discontinued the proceedings as time-barred. C. Supervisory review and third round of proceedings 12. On a supervisory review request from the President of the Regional Court, on 20 September 2002 the Presidium of the Regional Court quashed the appeal judgment and remitted the case to the appeal court. The supervisory instance court stated that the defendant’s consent should have been obtained for a discontinuation due to the expiry of the limitation period.", "13. After a fresh appeal hearing on 15 October 2002, the Regional Court upheld the judgment of 22 May 2002. 14. On 21 March 2006 the Deputy Prosecutor General of the Russian Federation lodged a supervisory review request with a view to quashing the judgment of 15 October 2002. On 26 April 2006 the Supreme Court of Russia quashed the judgments of 20 September and 15 October 2002.", "The Supreme Court indicated that the Code of Criminal Procedure in force since 1 July 2002 did not allow supervisory review of a court decision to discontinue a criminal case. In addition, the Supreme Court stated that the Regional Court had mistakenly considered that the applicant’s consent to the discontinuation of the case had been necessary. The judgment of 9 July 2002 was thereby reinstated in legal force. 15. It appears that the applicant appealed against the judgment of 21 March 2006.", "On 7 June 2007 a judge of the Supreme Court dismissed his appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE 16. The relevant provisions of Russian law are outlined in the judgment of Nikitin v. Russia (no. 50178/99, §§ 22-29, ECHR 2004).", "17. At the relevant time, acquittals and decisions to discontinue the proceedings could not be subject to supervisory review (Article 405 of the Code of Criminal Procedure 2001). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS REGARDS THE SUPERVISORY RULING OF 21 SEPTEMBER 2001 18. The applicant complained that this supervisory ruling which set aside the judgment of 7 August 2001, had violated Article 6 § 1 of the Convention.", "He also alleged that neither he nor his representative had been apprised of the hearing on 21 September 2001 and therefore could not attend it. Article 6 § 1 reads, in so far as relevant, as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal...” A. Admissibility 19. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits 1. Quashing of the final judgment 20. The Government submitted that the judgment of 7 August 2001 was quashed within an acceptable period of time not breaching the principle of legal certainty. 21.", "The applicant maintained his complaint. 22. The Court reiterates the importance of one of the fundamental aspects of the rule of law, namely the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999‑VII). In the specific context of supervisory review in criminal cases, the Court has previously held that this requirement is not absolute and that any decision deviating from the principle must be assessed in the light of Article 4 § 2 of Protocol No.", "7, which expressly permits a State to reopen a case due to the emergence of new facts, or where a fundamental defect is detected in the previous proceedings which was capable of affecting the outcome of the case (see Nikitin v. Russia, no. 50178/99, §§ 54-57, ECHR 2004‑VIII; Savinskiy v. Ukraine, no. 6965/02, § 23, 28 February 2006, and Xheraj v. Albania, no. 37959/02, §§ 51-61, 29 July 2008). A review of a final and binding judgment should not be granted merely for the purpose of obtaining a rehearing and a fresh determination of the case, but rather to correct judicial errors and miscarriages of justice.", "23. The relevant considerations to be taken into account in this connection include, in particular, the effect of the reopening and any subsequent proceedings on the applicant’s individual situation and whether the reopening resulted from the applicant’s own request; the grounds on which the domestic authorities revoked the finality of the judgment in the applicant’s case; the compliance of the procedure at issue with the requirements of the domestic law; the existence and operation of procedural safeguards in the domestic legal system capable of preventing abuses of this procedure and other pertinent circumstances of the case (see Nikitin, cited above, § 60; Bratyakin v. Russia (dec.), no. 72776/01, 9 March 2006; Fadin v. Russia, no. 58079/00, § 34, 27 July 2006; and Savinskiy, cited above, §§ 24-26). Furthermore, proceedings before the supervisory-review court should afford the procedural safeguards of Article 6 § 1 and must ensure the overall fairness of the proceedings (see Vanyan v. Russia, no.", "53203/99, §§ 63-68, 15 December 2005). 24. Turning to the present case, the Court observes that the final judgment by which the criminal proceedings against the applicant had been discontinued for want of corpus delicti, was quashed at the prosecution’s request (see, by contrast, Fadin, cited above, § 34). The supervisory-instance court did not simply resume the proceedings, but remitted the case to the investigating authority for further investigation. Undoubtedly, that decision adversely affected the applicant’s individual situation (see, by contrast, Nikitin, cited above, §§ 18 and 60).", "25. The Court accepts that the supervisory review proceedings were initiated within a relatively short period of time. However, that factor alone is not sufficient to justify the quashing of the final judgment in the applicant’s case. The Court does not accept the Government’s argument that the supervisory review was aimed at the correction of the fundamental defect in the previous proceedings which might affect the outcome of the case. In that respect the Court has had regard to the reasoning of the reviewing court, which stated that the trial and appeal courts had not had at their disposal all relevant ministerial instructions and documents to decide the case (see paragraph 9 above).", "26. In the Court’s opinion, the mere consideration that the trial and appeal courts had not had regard to all relevant instructions cannot in itself, in the absence of jurisdictional errors or serious breaches of court procedure, abuses of power or any other weighty reasons stemming from the interests of justice, indicate the presence of a fundamental defect in the previous proceedings (see Radchikov v. Russia, no. 65582/01, § 48, 24 May 2007). Otherwise, the burden of the consequences of the authorities’ lack of diligence during the pre-trial investigation would be shifted entirely onto the applicant and, more importantly, the mere allegation of a shortcoming or failure in the investigation, however minor and insignificant it might be, would create an unrestrained possibility for the prosecution to abuse process by requesting the reopening of finalised proceedings (ibid.). The Court considers that the mistakes or errors of the national authorities should serve to the benefit of the defendant.", "In other words, the risk of any mistake made by the prosecuting authority or a court must be borne by the state and the errors must not be remedied at the expense of the individual concerned. 27. Finally, the Court notes that the grounds for supervisory review were identical to the grounds for an appeal under the domestic law. Such arrangement was in itself slightly conducive to the protection of legal certainty and, in the present case, led to a situation where the supervisory review court had dealt with the request for quashing as if in ordinary appeal proceedings and had reopened the finalised proceedings on vaguely formulated grounds and without considering the implication of its decision for legal certainty. 28.", "In view of the above considerations, the Court finds that the quashing of the judgment of 7 August 2001 by way of supervisory review amounted to a violation of Article 6 § 1 of the Convention. 2. Procedural guarantees in supervisory review proceedings 29. The Government submitted copies of the letters of 17 September 2001 which the Regional Court sent by mail to the applicant and his representative informing them of the date and time of the hearing on 21 September 2001. A copy of the prosecutor’s supervisory request had been enclosed therewith.", "30. The applicant maintained that he had not received any such notification. He contended that under national law a notification should have been by registered mail and that the Presidium court did not verify whether the applicant had been duly notified of the hearing on 21 September 2001. 31. In view of the finding made in paragraph 28 above, the Court considers that it is not necessary to examine whether the procedural guarantees of Article 6 of the Convention were complied with.", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS REGARDS THE SUPERVISORY RULING OF 20 SEPTEMBER 2002 32. The applicant complained that the supervisory ruling of 20 September 2002, which set aside the judgment of 9 July 2002, had violated Article 6 § 1 of the Convention (cited above). 33. The Government submitted that on 26 April 2006 the Supreme Court had quashed the supervisory ruling in question.", "By doing so, the Supreme Court acknowledged the violation of the Code of Criminal Procedure in respect of the applicant. The Government concluded that the applicant had lost his victim status. 34. The applicant submitted that the decision of 26 April 2006 had not been satisfactory, in particular because it had not afforded him compensation for unlawful prosecution. 35.", "The Court considers that this part of the application is linked to the complaint examined above and that, therefore, it should also be declared admissible. However, having regard to the conclusions in paragraph 28 above, the Court considers that it is not necessary to examine whether the 2002 supervisory review proceedings complied with Article 6 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 36.", "The applicant also contended under Article 4 of Protocol No. 7 that the supervisory review proceedings had constituted a violation of his right not to be tried again in criminal proceedings for an offence of which he had been finally acquitted. 37. The Court considers that this part of the application is likewise admissible. However, having once more regard to the conclusions in paragraphs 28 and 35 above, the Court considers that the applicant’s complaints raise no separate issue under the Convention and its Protocols (see Radchikov, cited above § 55).", "IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 38. Lastly, the applicant complained that the investigating authorities were slow in bringing charges against him and that the trial judge had been biased in that he had written a letter to his former employer. 39. The Court has examined the remainder of the applicant’s complaints as submitted by him.", "However, having regard to all the material in its possession, it finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 40. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 41.", "The applicant claimed 125,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. He claimed that the domestic court refused to reinstate him in his post with reference to the judgment of 22 May 2002 which was in force after the supervisory ruling of 20 September 2002. 42. The Government submitted that the amount claimed was excessive and unsubstantiated. 43.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. B. 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 complaints concerning the supervisory rulings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 of the Convention on account of the 2001 supervisory review proceedings; 3. Holds that there is no need to examine the procedural complaint under Article 6 of the Convention; 4. Holds that there is no need to examine whether the 2002 supervisory review proceedings complied with Article 6 of the Convention; 5.", "Holds that no separate issue arises under Article 4 of Protocol No. 7 to 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, EUR 1,000 (one 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; 7. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 9 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos RozakisRegistrarPresident" ]
[ "FOURTH SECTION CASE OF PREBIL v. SLOVENIA (Application no. 29278/16) JUDGMENT STRASBOURG 19 March 2019 FINAL 19/06/2019 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Prebil v. Slovenia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Jon Fridrik Kjølbro, President,Paulo Pinto de Albuquerque,Egidijus Kūris,Iulia Antoanella Motoc,Georges Ravarani,Marko Bošnjak,Péter Paczolay, judges,and Marialena Tsirli, Section Registrar, Having deliberated in private on 26 February 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "29278/16) 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 Andrej Prebil (“the applicant”), on 10 May 2016. 2. The applicant was represented by Mr M. Šušmelj, a lawyer practising in Ljubljana. The Slovenian Government (“the Government”) were represented by their Agent, Mrs V. Klemenc, State Attorney. 3.", "The applicant alleged, in particular, that he had not been able to participate in the proceedings against him in breach of Article 6 § 1. 4. On 14 January 2018 notice of the complaints concerning the applicant’s inability to participate in proceedings against him was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1974 and lives in Ljubljana. 6. The applicant was a member of the supervisory board of company A from 11 November 2013, with a four-year term. 7. On 12 March 2014, the chairman of the supervisory board of company A resigned: following this the supervisory board had only three members (of the required statutory six members).", "8. On 20 March 2014, the Ljubljana District Court in Ljubljana adopted a decision on the initiation of “preventive restructuring” of company A (see paragraph 24 below). 9. On 13 May 2014 a session of the supervisory board of company A was held. One of the members, T. H., proposed to extend the agenda with a point on the dismissal of the chair of the management board.", "Allegedly, physical violence occurred between the members of the supervisory board, as some of them did not allow one member to leave the premises, to maintain the required quorum. It would appear that a resolution was passed dismissing the chair of the management board. 10. On 15 May 2014, a claim was brought before the Ljubljana District Court seeking to establish nullity of the supervisory board’s resolution of 13 May 2014. Company A agreed to the claim and the court consequently issued a decision annulling the impugned resolution.", "11. In the meantime, on 29 May 2014, company P, who held a 91.42% share in company A, filed a motion to deprive the applicant and another supervisory board member, T.H., of their membership, and appoint provisional members. The motion was lodged against the applicant and T.H., who acted as opposing parties (nasprotna udeleženca). Company P relied on, inter alia, section 276 (2) of the Companies Act (see paragraph 24 below) and grounded the motion on the allegedly unacceptable personal qualities of the applicant and T.H., referring in particular to the incident that had occurred during a supervisory board meeting on 13 May 2014 (see paragraph 9 above). It requested the court to proceed to a decision without delay, without notifying the opposing parties of the proceedings and without holding a hearing.", "In particular, company P argued as follows: the applicant’s and T.H.’s conduct was unacceptable and therefore they should have not continued with their four-year mandate; there were well-founded reasons for depriving them of their membership; their membership should be terminated immediately and they should be replaced by provisional members so as to ensure lawful functioning of the supervisory board and company A; though company P had enough shares to request the management board to convene a general meeting of shareholders this was impossible due to the uncertainty as to who was the company manager; company A was undergoing reconstruction and there were deadlines to be met in this connection; calling a general meeting would thus not ensure a sufficiently prompt response to the situation; and so the court’s intervention was necessary. 12. On 4 June 2014 the Ljubljana District Court upheld company P’s motion. Referring to company P’s submissions and the case file in the proceedings concerning nullity of the resolution of 13 May 2014 (see paragraph 10 above) the court established that one member of the supervisory board had not been voluntarily present at the session of the supervisory board on 13 May 2014 (see paragraph 9 above) because of the conduct of the two remaining members of the supervisory board. In particular, it established that the applicant had clearly allowed T.H.’s conduct, had agreed with it, and had fully cooperated with her.", "The court explained that the law required that the supervisory board’s members act diligently and responsibly, and that this was particularly important in the present case, where company A was undergoing a process of “preventive restructuring”. It found that the conduct of two of the supervisory board members was harmful to company A’s functioning and that they should therefore not continue in their function until the end of their four-year term. It considered the case to be of an urgent nature, because company A was at risk, and the supervisory board with the applicant and T.H. as members was not in a position to perform its function until the first general meeting of company A. The decision also contained notice that an appeal was allowed against it within eight days of the notice of the decision.", "The court noted that the decision was effective immediately, and that any appeal would not stay its execution. 13. On 5 June 2014 a journalist asked the applicant to comment on the aforementioned decision. According to the applicant, he received a copy of it only a few days later. 14.", "On 24 June 2014 the applicant lodged an appeal arguing, inter alia, that he had been unlawfully denied the opportunity to participate in the proceedings. He referred to, inter alia, section 4 of the Non-Litigious Civil Procedure Act (see paragraph 25 below). He also disputed company P’s allegations concerning his conduct during the incident of 13 May 2014 (see paragraph 9 above), and gave his own version of events. He argued that the court’s intervention was not called for and that no grounds had been given for his dismissal. He also emphasised that the protection of his reputation required that he be involved in the proceedings and able to submit evidence.", "15. On 3 July 2014 company P replied to the appeal, arguing that the case had been of an urgent character because it could have incurred losses had company A gone into insolvency. In its view, the impugned decision was a kind of interim injunction, and the adversarial principle could be ensured through appeal proceedings. 16. On 5 August 2014 company P informed the court that, on 4 August 2014, company A had held an assembly and appointed two new members to replace the applicant and T.H.", "It invited the court to reject the appeal, because the applicant could not be considered to have any legal interest in its outcome. 17. The applicant replied to the above pleadings on 25 August 2014. He argued that the supervisory board’s member’s dismissal at a general meeting of the shareholders could not be equated with the judicial termination of his term of office, because for the latter there had to be well-founded reasons, which had not been established in his case. 18.", "On 3 November 2014 the applicant submitted examples of the domestic jurisprudence, with a view to demonstrating that the domestic law had required that he be given an opportunity to participate in the proceedings. 19. On 21 January 2015 the Ljubljana Higher Court rejected the applicant’s appeal, finding that he could not have had any legal interest in the outcome of the proceedings because in the meantime company A had at its general meeting appointed new members to replace him and T.H. It noted that the appointment and dismissal of the members of the supervisory board, whose role it was to represent the interests of the shareholders, fell within the discretion of the assembly. The latter could dismiss supervisory board members any time during their term of office without having to provide any reason for doing so.", "Therefore, in the court’s view, even had the applicant succeeded in the appeal proceedings he could not have obtained reinstatement in his previous position. 20. The applicant lodged a constitutional complaint. Relying on, inter alia, Articles 6 and 13 of the Convention, he complained about being unable to participate in the proceedings. He argued that had he had an opportunity to reply to company P’s allegations the court would have reached a different conclusion.", "21. On 10 November 2015 the Constitutional Court decided not to accept the applicant’s constitutional complaint for consideration pursuant to section 55b (2) of the Constitutional Court Act (see paragraph 27 below). This decision was served on the applicant on 13 November 2015. 22. A major Slovenian financial newspaper, Finance, reported the court’s dismissal of the applicant from its membership in company A’s supervisory board and the issues on which it had been based.", "II. RELEVANT DOMESTIC LAW 23. The Slovenian Constitution (Official Gazette no. 33/91) provides in its Article 21: (Protection of Human Personality and Dignity) “Respect for human personality and dignity shall be guaranteed in criminal and in all other legal proceedings, as well as during the deprivation of liberty and enforcement of punitive sanctions. Violence of any form against any person whose liberty has been restricted in any way is prohibited, as is the use of any form of coercion in obtaining confessions and statements.” 24.", "The relevant provisions of the Companies Act (Official Gazette no. 42/2006) provide as follows: Section 50(Cases decided by the court in a non-litigious civil procedure) “The court shall decide the following matters by non-litigious civil procedure: ... appointment or dismissal of members of the management or supervisory bodies (256 and second paragraph of Article 276) ...” Section 256(Appointment by the court) “If ... one or more of the members of the management or supervisory body are not appointed, a court should when urgent appoint a member upon a proposal from interested persons. The position of a court-appointed member of the management or supervisory body shall cease when a new member is appointed in his place in accordance with the articles of association. Court-appointed members of the management or supervisory body shall be entitled to receive payment for their work and reimbursement of expenses ...” Section 262(Contract with a member) “(1) The rights and obligations of a member of a management or supervisory body which are not laid down by this Act shall be defined in a contract concluded with the company. (2) The contract shall be approved by the supervisory board or the board of directors; otherwise the member of a management or supervisory body shall return the benefits arising therefrom.” Section 263(Diligence and responsibility) “(1) In the performance of their duties on behalf of the company, members of a management or supervisory body shall act with the diligence of a conscientious and fair manager and shall safeguard the trade secrets of the company ...” Section 274(Election of supervisory board members) “(1) Members of the supervisory board, which represents the interests of the shareholders, are elected by the [shareholders’] assembly ...” Section 275(Dismissal of supervisory board’s member) “(1) [Shareholders’] assembly may recall members of a supervisory board ... before the expiry of their term of office.", "[Such a decision] ... requires at least 75% of the votes casted. The articles of association may set a higher majority and other requirements ...” Section 276(Appointment and dismissal of supervisory board members by a court) “(1) In the event that the number of members present is insufficient for a quorum, the management board shall immediately submit a proposal for the appointment of a member of the supervisory board to the court. (2) Where good reasons exist for doing so, a court may dismiss a member of the supervisory board at the request of the supervisory board itself or of shareholders whose shares account for at least 10% of the share capital.” 25. Section 4 of the Non-Litigious Civil Procedure Act (Official Gazette of the Socialist Republic of Slovenia no. 30/86, with relevant amendments) provides that the courts should, unless otherwise provided in law, afford participants an opportunity to comment on the allegations of other participants and to participate in the evidence-taking procedure.", "26. Financial Operations, Insolvency Proceedings and Compulsory Dissolution Act (Official Gazette no. 13/14 - official consolidated text, and further relevant amendments, hereinafter “the Financial Operations Act”) provides, inter alia, for the procedure of “preventive reconstruction”, which is aimed at enabling a company at risk of insolvency to take measures aimed at avoiding insolvency proceedings. The Financial Operations Act also stipulates the principle of promptness of proceedings, which binds courts to treat as a priority matters which involve a debtor in insolvency as a party to proceedings, or when the results affect the progress of insolvency proceedings. 27.", "Section 55b, paragraph 2, of the Constitutional Court Act (Official Gazette no. 15/94, with relevant amendments) provides as follows: “(2) A constitutional complaint shall be accepted for consideration: if there has been a violation of human rights or fundamental freedoms which has had serious consequences for the complainant; or if it concerns an important constitutional question which exceeds the importance of the particular case in question.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 28. The applicant complained under Article 6 of the Convention that he had been unable to participate in the proceedings in which he had been deprived of his membership of company A’s supervisory board. Under Article 13 the applicant also complained that the Ljubljana Higher Court had not considered his appeal on the merits.", "Bearing in mind that the role of Article 6 in relation to Article 13 is that of a lex specialis, the requirements of Article 13 being absorbed by the more stringent requirements of Article 6 (see Baka v. Hungary [GC], no. 20261/12, § 181, ECHR 2016), the Court will examine the applicant’s complaints solely under Article 6 § 1 of the Convention (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 65, 29 November 2016), the relevant parts of which read as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 1. The parties’ arguments 29. The Government argued that Article 6 did not apply to the present case.", "They emphasised that the present case concerned non-litigious proceedings. Referring to Ferrazzini v. Italy ([GC], no. 44759/98, § 25, 12 July 2001), the Government argued that while the supervisory board’s members exercised their function for payment, this should not be sufficient to bring Article 6 into play. They further submitted that membership of a supervisory board was not a ‘profession’. 30.", "Referring to Regner v. the Czech Republic ([GC], no. 35289/11, 19 September 2017), the applicant argued that Article 6 applied to the proceedings at issue because the domestic law recognised his civil right and provided for its protection in judicial proceedings. In particular, a dismissal of a supervisory board member by a court was not at the latter’s discretion. Such a dismissal required a prior finding that there were well-founded reasons for it (these were reasons pertaining to the personality of an individual, especially when a supervisory board member did not act in accordance with the principles of due care, good faith and fair dealing, professionalism, independence and equal treatment of the shareholders). Thus, in such proceedings, the court was obliged to establish that there were well-founded reasons and explain its finding.", "31. The applicant further argued that he had carried out his function of a supervisory board member professionally and in return for payment. He had expected to carry out this function until the end of his term of office, and had therefore not sought other employment. Referring to Ternovskis v. Latvia (no. 33637/02, § 44, 29 April 2014), the applicant argued that although he had been appointed and not employed, the rights and obligations he enjoyed in that role had been similar to those in an employment relationship: in particular, he had the right to be paid for his work.", "Moreover, the applicant submitted that he had held important roles in large companies in the tourism sector in Slovenia and his dismissal, which had been reported in the media, had importantly affected his reputation. 2. The Court’s assessment 32. The Court refers to the principles set out in Regner (cited above, §§ 99 to 112). It reiterates, however, that there can be no doubt about the fact that there is a right within the meaning of Article 6 § 1 where a substantive right recognised in domestic law is accompanied by a procedural right to have that right enforced through the court (ibid, § 102).", "Moreover, in some cases, national law, while not necessarily recognising that an individual has a subjective right, does confer the right to a lawful procedure for examination of his or her claim, involving matters such as ruling whether a decision was arbitrary or ultra vires, or whether there were procedural irregularities. This is the case regarding certain decisions where the authorities have a purely discretionary power to grant or refuse an advantage or privilege, with the law conferring on the person concerned the right to apply to the courts, which may set the decision aside if they find it unlawful. In such a case Article 6 § 1 of the Convention is applicable, on condition that the advantage or privilege, once granted, gives rise to a civil right (ibid., § 105, and the case-law cited therein). 33. The Court further notes that in Mirovni Inštitut v. Slovenia (no.", "32303/13, §§ 28-30, 13 March 2018), which concerned a call for tenders for the award of a research grant, the applicant institute had had no right to an award of funding. The Court however found that Article 6 was applicable because the applicant institute had clearly enjoyed a procedural right to the lawful and proper adjudication of the bids and had its bid been accepted it would have thereby acquired a civil right. 34. As regards the present case, the Court notes that while the applicant’s appointment to the position of supervisory board member laid within the discretionary powers of the company’s shareholders at the time (see paragraph 24 above), the dismissal of the applicant was the subject of a judicial decision. The Court takes note of the Government’s reliance on Ferrazzini (cited in paragraph 29 above), but does not consider that any meaningful parallel could be drawn between that case, which concerned the applicability of Article 6 to tax disputes, and the present one.", "In the absence of any other relevant argument on the part of the Government, the Court cannot consider the mere domestic legal qualification of the impugned proceedings as non-litigious proceedings (see paragraphs 24 and 29 above) to mean that they did not involve a determination of the applicant’s civil right within the meaning of Article 6 (see Ferrazzini, cited above, § 24; see also Šakanovič v. Slovenia, no. 32989/02, §§ 14 and 26, 13 December 2007, and Šorgić v. Serbia, no. 34973/06, §§ 48 and 74, 3 November 2011, in which the Court found Article 6 applicable to non-litigious proceedings, namely inheritance proceedings). The Court notes that the applicant was dismissed because, following a request from a main shareholder, the Ljubljana District Court had determined that there were good reasons for such a course of action, establishing, inter alia, that his conduct was harmful to company A’s functioning (see paragraph 12 above). Under the domestic legislation (see paragraphs 24 and 25 above) the applicant, who was the opposing party in the proceedings, should have been in principle able to participate in the proceedings, including being able to comment on the allegations made against him as well as to lodge an appeal and have such an appeal determined by the second-instance court (see paragraph 12 above).", "This is in the Court’s view sufficient for it to conclude that the present case concerned a determination of the applicant’s “right” for the purposes of Article 6 (see Regner, cited above, § 105). 35. As regards the “civil” nature of the right, the Court notes that once the applicant was appointed as a member of a supervisory board, which was for a term of four years, he had responsibilities and rights, including a right to payment for his work, based on a contract which appears to be of a civil law nature (see paragraph 24 above). Additionally, the Court notes that the findings of the Ljubljana District Court (see paragraph 12 above) could arguably have had repercussions for the applicant’s reputation, particularly in his professional life (see, mutatis mutandis, Pocius v. Lithuania, no. 35601/04, §§ 41 and 43, 6 July 2010, and Helmers v. Sweden, 29 October 1991, §§ 27 and 29, Series A no.", "212‑A). 36. Having regard to the above considerations, the Court finds that Article 6 applies to the present case under its civil limb. Accordingly, the Government’s objection must be dismissed. 37.", "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 38. The applicant argued that the fact that company A had been undergoing restructuring was irrelevant to his complaint (see paragraph 41 below). The principle of promptness was to be applied to the cases where a party was undergoing insolvency proceedings, which was not the case here. In any event, the principle of promptness did not absolve a domestic court from the responsibility to respect the principle of adversarial proceedings. 39.", "The applicant further disputed the facts as established by the Ljubljana District Court, and argued that he had never had a chance to tell his side of the story, let alone be heard at a public hearing. He argued that under the domestic law he should have been given an opportunity to participate in the proceedings. He submitted that the Companies Act required that the general provisions of the Non-Litigious Civil Procedure Act applied to the proceedings in the present case (see paragraphs 24 and 25 above). In his view, the judge deciding the case had consciously acted in breach of law, expecting that his decision would not be subject to any further scrutiny. 40.", "In the applicant’s view, the restriction on his right to adversarial proceedings was neither temporary (see paragraph 41 below) nor proportionate. His right to appeal was illusory. None of the courts involved in the proceedings had ever addressed his arguments on the merits. 41. The Government argued that the rights of access to court and to adversarial proceedings were not absolute.", "They pointed out that company A was at risk of insolvency and therefore it was important that the question concerning its management and supervision be resolved as quickly as possible. They also submitted that the Ljubljana District Court considered it to be sufficient for the adversarial principle to be applied by means of appeal. They were of the view that the proceedings in question could be compared to those concerning interim measures. The restriction on the right of access to court was only of a temporary nature. 2.", "The Court’s assessment 42. The Court reiterates that the adversarial principle and the principle of equality of arms, which are closely linked, are fundamental components of the concept of a “fair hearing” within the meaning of Article 6 § 1 of the Convention. They require a “fair balance” between the parties: each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent or opponents (see Regner, cited above, § 146). 43. In the present case, the Ljubljana District Court upheld company P’s application, which included factual allegations about the applicant’s behaviour, and dismissed the applicant from the position of supervisory board member (see paragraph 11 above).", "It did so without ever giving the applicant an opportunity to comment on company P’s submissions (see, mutatis mutandis, APEH Üldözötteinek Szövetsége and Others v. Hungary, no. 32367/96, § 42, ECHR 2000‑X). Having regard to the domestic law submitted to it (see paragraphs 24 to 26 above), the Court cannot discern any proper legal basis on which the domestic court had decided to dispense with the adversarial principle in the present case. It understands that not notifying the applicant and not giving him an opportunity to participate in the proceedings might have been calculated to save time and expedite the proceedings. As its case-law bears out, the Court attaches great importance to that objective, which does not, however, justify disregarding such a fundamental principle as the right to adversarial proceedings and the principle of equality of arms.", "In fact, Article 6 § 1 is intended above all to secure the interests of the parties and those of the proper administration of justice (see Nideröst-Huber v. Switzerland, 18 February 1997, § 30, Reports of Judgments and Decisions 1997‑I). 44. The Court further notes that the applicant had in principle a right to appeal against the decision of the Ljubljana District Court and he in fact did appeal against it (see paragraphs 11 and 14 above). However the Ljubljana Higher Court did not assess the applicant’s appeal on the merits, finding that he could not have had any legal interest in the outcome of the proceedings because in the meantime company A had at its general meeting appointed new members to replace him (see paragraph 19 above). The Constitutional Court likewise rejected his constitutional appeal without entering into the merits of his constitutional complaint (see paragraphs 20 and 21 above).", "Accordingly, the shortcoming found to exist in respect of the procedure before the Ljubljana District Court was not capable of being remedied at a later stage (see, mutatis mutandis, Feldbrugge v. the Netherlands, 29 May 1986, § 46, Series A no. 99, and, by contrast, Schuler-Zgraggen v. Switzerland, 24 June 1993, § 52, Series A no. 263). 45. In view of the above, the Court concludes that the adversarial principle and the principle of equality of arms have not been respected in the present case.", "Having regard to the fact that the applicant had not had any possibility to participate in any meaningful way in the proceedings against him, the Court finds that the fair balance between the parties was affected to such an extent that the very essence of the applicant’s right to a fair trial was impaired. 46. Accordingly, there has been a violation of Article 6 § 1 of the Convention. In view of this conclusion, the Court does not find it necessary to examine the present case also from the perspective of the right to a public hearing, cited by the applicant (see paragraph 39 above). II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 47. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 48. The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage. He argued that his reputation as a businessman, who had held managerial positions in some of the largest tourist companies in Slovenia and had received awards for his successful work in the tourism industry, had been seriously undermined by the impugned decision of the Ljubljana District Court.", "49. The Government disputed the claim and invited the Court to find that a finding of a violation constituted a sufficient just satisfaction. 50. Making its assessment on an equitable basis, the Court awards the applicant EUR 8,000 in respect of non‑pecuniary damage. B.", "Costs and expenses 51. The applicant also claimed EUR 954 for the costs and expenses incurred before the domestic courts and EUR 1,606 for those incurred before the Court. In this connection, he submitted an agreement signed between him and his representative concerning the lawyer’s fees and informed the Court that the sums would be due only after the termination of the proceedings before the Court. 52. The Government argued that no receipt had been submitted and left the matter to the Court to decide in line with its case-law.", "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 full sum claimed, that is EUR 2,560, covering costs under all heads. C. Default interest 54. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,560 (two thousand five hundred and sixty 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 March 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena Tsirli Jon Fridrik KjølbroRegistrarPresident" ]
[ "FOURTH SECTION CASE OF PASHOV AND OTHERS v. BULGARIA (Application no. 20875/07) JUDGMENT STRASBOURG 5 February 2013 FINAL 05/05/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Pashov and Others v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Ineta Ziemele, President,David Thór Björgvinsson,George Nicolaou,Ledi Bianku,Zdravka Kalaydjieva,Vincent A. De Gaetano,Paul Mahoney, judges,and Lawrence Early, 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. 20875/07) 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 three Bulgarian nationals, Mr Pavel Simeonov Pashov, Ms Elena Pavlova Lazova and Mr Konstantin Vasilev Nikolov (“the applicants”), on 7 May 2007. 2. The applicants were represented by Mr Y. Grozev, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agents, Ms M. Kotseva and Ms R. Nikolova, of the Ministry of Justice.", "3. The applicants alleged, in particular, that a set of civil proceedings they were party to were excessively lengthy and that the authorities failed for a long period of time to enforce the final judgment. 4. On 12 May 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1944, 1970 and 1946 respectively, and live in Sofia. A. Background to the case 6.", "On 10 January 1997 a political rally took place in front of the Parliament building in Sofia, continuing until well after midnight. At one point, the rally turned violent and some protesters broke into the building. The police used force in order to disperse them. B. The applicants’ encounter with the police 7.", "At about 3 a.m. on 11 January 1997 the applicants, who were all in the first and second applicants’ flat, not far from the Parliament building, went outside to see what was happening, as they had heard on the radio that there had been some violence. They saw a group of police officers on the street armed with guns, batons, shields and helmets, who were running towards them. 8. The applicants hurried back into the first and second applicants’ apartment building, locking the front door after them. The police officers broke in and two of them chased the applicants to the top floor where they started beating them with batons.", "After several minutes they left. 9. As the applicants were too scared to go outside again, they waited until morning before going to see a doctor. The three of them had wounds to their heads and bruises on their backs and arms. The first and second applicants had their head wounds stitched and the third applicant, who had a broken finger, had his hand fixed with a splint and bandaged.", "10. On 22 January 1997 the applicants were examined by forensic doctors. It was established that the first applicant had three head wounds, one of which had been treated by a surgeon, and numerous bruises on the back, left shoulder and left arm. The second applicant had a head wound and the third applicant had a broken finger and bruises on the neck and the right arm. The doctors found that the applicants’ injuries were the result of having been beaten with hard objects, and could have been inflicted at the time and in the way the applicants alleged.", "11. On 22 and 23 January 1997 the first and second applicants lodged a complaint about the incident with the National Investigation Service, supported by copies of their medical records. C. Investigation of the events of 10-11 January 1997 12. On 20 January 1997, upon a request by the mayor of Sofia and instructions from the Chief Public Prosecutor’s Office, the Sofia Regional Military Prosecutor’s Office opened a criminal investigation in respect of the actions of the police during the rally. 13.", "During the course of the proceedings the prosecutors interviewed all the police officers who had been on duty during the rally and more than four-hundred participants. Several members of parliament and other politicians who had been inside the Parliament building during the rally were also interviewed. The prosecution collected documentary evidence, photos and video recordings. 14. On 9 November 1999, a prosecutor from the Sofia Regional Military Prosecutor’s Office decided that the criminal proceedings should be discontinued.", "He observed that around 1 a.m. on 11 January 1997, when the tensions in front of Parliament had escalated, the police had injured participants in the rally using their batons. However, the individual perpetrators could not be identified. In addition, it appeared that the police had acted in self-defence and with the aim of defending the life, physical integrity and possessions of others. No evidence had been collected to suggest that the officers had the authority of their superiors to use force. 15.", "A list of eighty-five participants reported to have sustained injuries during the rally was attached to the above decision; it contained the names of the first and second applicants, but not that of the third applicant. 16. The decision did not mention the specific circumstances in which the applicants had sustained their injuries. 17. Upon an appeal by the first and second applicants, on 11 July 2000 a prosecutor from the Military Appellate Prosecutor’s Office upheld the decision to discontinue the proceedings.", "18. It appears from the documents submitted by the parties that that decision was not sent to the relevant court for judicial control, as provided for in the legislation at the time. The applicants submitted that they did not receive any information regarding the investigation after the decision of 11 July 2000. D. Tort proceedings against the State 19. In the meantime, on 13 November 1997 the three applicants brought a tort action against the Ministry of the Interior under the State and Municipalities Responsibility for Damage Act (see paragraph 33 below).", "They sought non-pecuniary damages for the suffering and humiliation caused to them during the incident of 11 January 1997. 20. Between 6 February 1998 and 14 March 2000 the Sofia District Court held at least twelve hearings, four of which were adjourned due to improper service of the summons. 21. Meanwhile, on 23 March 1999 the applicants requested that three new defendants be joined to the proceedings, including the Sofia Directorate of Internal Affairs.", "22. In a judgment of 29 May 2000 the Sofia District Court allowed the applicants’ claim against the Sofia Directorate of Internal Affairs but rejected it in respect of the other defendants. 23. On appeal, on 4 October 2001 the Sofia City Court held that the lower court had erred in applying the law and remitted the case for fresh examination. 24.", "On 7 February 2002, sitting in camera, the District Court of its own motion joined the State, represented by the Minister of Finance, as a defendant. 25. In a judgment of 28 April 2003 the Sofia District Court allowed the applicants’ claims against the State. 26. On appeal by the Minister of Finance, in a judgment of 3 December 2003 the Sofia City Court held that the State was not the correct defendant in the case.", "It noted that the State could only be held responsible through the actions of its bodies, which were separate legal entities. Thus, it once again remitted the case for fresh examination. 27. In a judgment of 22 July 2004 the Sofia District Court held that evidence had been gathered proving that the police officers had had no justification for using force against the applicants and that the latter had done nothing to provoke such a violent attack. It further held that the correct defendant in the case was the Sofia Directorate of Internal Affairs, and ordered it to pay each of the applicants 1,000 Bulgarian levs (BGN), the equivalent of approximately 510 euros (EUR) in non-pecuniary damages, plus interest and costs.", "28. The Sofia District Court established the factual circumstances as described in paragraphs 7-10 above. It based its conclusions, inter alia, on medical expert opinions about the nature and probable cause of the applicants’ injuries, and on the statements of three witnesses: the third applicant’s wife, who had been with the applicants at the time of the incident, and two neighbours who had seen the police officers break the front door of the apartment building and chase the applicants, had heard a noise that sounded like beating and groaning, and had seen blood at the scene of the incident. 29. The above judgment was not appealed against and became final on 15 October 2004.", "E. Enforcement of the judgment of 22 July 2004 30. On 3 November 2004 the applicants obtained a writ of execution to enforce the judgment of 22 July 2004. On 26 November 2004 they submitted it to the Sofia Directorate of Internal Affairs with a request for payment. On 6 January, 4 April and 2 October 2006 they sent further requests. 31.", "At the time of the applicants’ latest communication to the Court of December 2010, the judgment of 22 July 2004 had not yet been enforced. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Use of force and the duty to investigate ill-treatment by the police 32. The relevant provisions, in force at the time, concerning use of force and the duty to investigate ill-treatment by the police have been summarised in paragraphs 42-44 of the Court’s judgment in the case of Krastanov v. Bulgaria (no.", "50222/99, 30 September 2004). B. Civil remedies against ill-treatment by the police 33. The relevant provisions concerning actions under the State Responsibility for Damage Act (the Act’s title having been amended later to State and Municipalities Responsibility for Damage Act – “the SMRDA”) have been summarised in paragraphs 45-46 of the Court’s judgment in the case of Krastanov (cited above). C. Enforcement against State bodies 34.", "Under the Code of Civil Procedure 1952, which was in force until March 2008, no enforcement proceedings could be instituted in cases where the debtor was a State body or a municipality. The relevant provisions in that connection have been summarised in paragraphs 36-38 of the Court’s judgment in the case of Mancheva v. Bulgaria (no. 39609/98, 30 September 2004). 35. The procedure for the execution of judgments against State bodies remained unchanged under the new Code of Civil Procedure, which entered into force on 1 March 2008.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 36. The applicants complained under Article 3 of the Convention that the authorities had failed to investigate effectively their claim that they had been beaten by the police. 37. Article 3 of Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 38.", "The Government disputed the third applicant’s claims that he had been beaten by police officers, on the grounds that he had not made a complaint to the prosecution authorities and that his name had not appeared on the list of injured people appended to the prosecutor’s decision of 9 November 1999 to discontinue the criminal investigation (see paragraph 15 above) or on other lists containing the names of people injured at the rally. Moreover, the Government argued that the ill-treatment inflicted on the applicants had not reached the minimum level of severity required under Article 3, nor had been intended to humiliate or debase them. The Government argued that the applicants’ ill-treatment had in any event been justified because the applicants may have provoked it. The Government also submitted that the criminal investigation of the events of 10 and 11 January 1997 had been thorough and that valid conclusions had been reached. 39.", "The applicants contested these arguments and reiterated their complaint. 40. As regards the Government’s objection concerning the facts of the case, namely that it had not been established that the third applicant had also been injured during the incident of 11 January 1997, the Court refers to the reasoned findings of the domestic courts in the tort proceedings brought by the applicants (see paragraphs 27-28 above) and sees no cogent elements which would lead it to depart from them (see Jasar v. “the former Yugoslav Republic of Macedonia”, no. 69908/01, § 53, 15 February 2007; Enukidze and Girgvliani v. Georgia, no. 25091/07, § 286, 26 April 2011; and Radu Pop v. Romania, no.", "14337/04, § 109, 17 July 2012). Admissibility 41. The Court is of the view that a question arises as to whether the complaint under Article 3 of the Convention has been raised within six months of the “final decision” on the case, as required by Article 35 § 1 of the Convention. 42. The six-month rule provided for in Article 35 § 1 has a number of aims.", "Its primary purpose is to maintain legal certainty by ensuring that cases raising issues under the Convention are examined within a reasonable time, and to prevent the authorities and other persons concerned from being kept in a state of uncertainty for a long period of time. That rule marks out the temporal limit of the supervision exercised by the Court and signals, both to individuals and State authorities, the period beyond which such supervision is no longer possible (see, among many other authorities, Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 39-40, 29 June 2012). The six‑month rule serves the interests not only of the respondent Government, but also of legal certainty as a value in itself. That is why the Court has to examine compliance with the rule even in the absence of an objection by the Government to that effect (see Walker v. the United Kingdom (dec.), no.", "34979/97, ECHR 2000-I; Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006‑III; and Manolov and Racheva-Manolova v. Bulgaria, no. 54252/00, § 25, 11 December 2008). 43. The Court notes in that connection that the present case concerns an incident dating back to January 1997 (see paragraphs 6-9 above).", "The criminal investigation opened by the authorities was closed in 2000 without, however, having involved the examination of the particular circumstances in which the applicants’ injuries had been inflicted, since it centred on the events in front of the Parliament, whereas the applicants had been attacked in the building where the first and second applicants had been living (see paragraphs 14-16 above). 44. The Court has already held in cases of alleged ill-treatment that applicants were required to lodge their applications with due expedition once they became, or should have become, aware of the lack of an effective investigation capable of leading to the identification and punishment of those responsible (see Kırlangıç v. Turkey, no. 30689/05, §§ 26-33, 25 September 2012; Brunner v. Turkey (dec.), no. 10/10, 6 December 2011; Manukyan v. Georgia (dec.), no.", "53073/07, 9 October 2012). The Court thus finds that the applicants in the present case should have become aware, within a reasonable time following the discontinuation of the criminal proceedings opened by the authorities, that no further investigation into their beating would be carried out, and should have lodged their application with due expedition after that. 45. Yet, the present application was only lodged on 7 May 2007 (see paragraph 1 above) and the applicants have not provided any valid justification for their failure to complain to the Court at an earlier date. 46.", "It is true that the applicants brought a tort action against the State (see paragraphs 19-29 above), which continued well after the discontinuation of the criminal proceedings. However, these proceedings had no bearing on the State’s obligation to carry out an effective investigation and the final judgment given in them could not be considered a “final decision” within the meaning of Article 35 § 1 of the Convention in respect of the applicants’ complaints under the procedural limb of Article 3. In any event, these proceedings ended on 15 October 2004 when the Sofia District Court’s judgment of 22 July 2004 became final (see paragraphs 27‑29 above), which was still more than six months before the lodging of the present application on 7 May 2007. 47. It is true also that even after 15 October 2004 an issue remained pending, as the damages awarded to the applicants in the tort proceedings had still not been paid (see paragraph 31 above).", "However, the Court points out that the complaint under examination concerns the lack of effective investigation of the applicants’ ill-treatment by police officers on 11 January 1997; it does not consider that the link between this complaint and the issue remaining after 15 October 2004, namely the non-enforcement of the judgment of 22 July 2004, was strong enough to justify the conclusion that the matters complained of by the applicants had not been determined at the domestic level. 48. It follows that the complaint under Article 3 about the lack of effective investigation has not been introduced within six months of the “final decision” in the case and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. II. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO.", "1 49. The applicants complained in addition of the length of the tort proceedings and the prolonged non-enforcement of the final judgment of 22 July 2004. They relied on Article 13 of the Convention in conjunction with Article 3, Article 6 § 1 and Article 1 of Protocol No. 1. 50.", "The Court is of the view that the issues raised would be most appropriately examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which, in so far as relevant, read: 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.” 51.", "The Government did not comment on these complaints. 52. The Court notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor inadmissible on any other grounds. They must therefore be declared admissible. A.", "Article 6 § 1 of the Convention 53. The Court notes that in the present case the period to be taken into consideration began on 13 November 1997, when the applicants brought a tort action against the Ministry of the Interior (see paragraph 19 above). 54. The judicial stage of the proceedings ended on 15 October 2004. The case was examined by two levels of jurisdiction and the courts ordered the Sofia Directorate of Internal Affairs to pay damages to the applicants (see paragraphs 20-29 above).", "However, by December 2010 the final judgment given in the proceedings had still not been enforced (see paragraphs 30-31 above). The Court has already held that the enforcement stage is the second stage of the proceedings and that the right asserted does not actually become effective until enforcement (see Di Pede v. Italy, 26 September 1996, §§ 22, 24 and 26, Reports of Judgments and Decisions 1996‑IV; Scordino v. Italy (no. 1) [GC], no. 36813/97, § 197, ECHR 2006‑V; and Kambourov v. Bulgaria, no. 55350/00, § 53, 14 February 2008).", "Therefore, the Court will include the enforcement stage in the period to be taken into consideration, which lasted until at least December 2010. 55. The overall length of the proceedings has thus been more than thirteen years, seven of which were at the judicial stage. 56. The reasonableness of the duration of proceedings must be assessed in the light of the particular circumstances of each 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 litigation (see, among many other authorities, Finger v. Bulgaria, no.", "37346/05, § 94, 10 May 2011). 57. The Court notes that the present case does not appear to have been particularly complex and that there appear to be no particular delays attributable to the applicants. At the judicial stage, the proceedings were delayed because the case was on several occasions remitted for fresh examination on account of errors by the courts in interpreting and applying domestic law (see paragraphs 23 and 26 above). As already mentioned, this resulted in the case continuing for seven years, at two levels of jurisdiction.", "The Court considers that the delays which incurred at the judicial stage of the proceedings were in themselves excessive in view of the requirements of Article 6 § 1 of the Convention. 58. Moreover, following completion of the judicial stage, the final judgment given by the courts has remained unenforced for a particularly long time – from 2004 to at least 2010 (see paragraphs 29-31 above). The Government have not provided any justification for that delay (see paragraph 51 above). The problem was exacerbated by the fact that Bulgarian law does not provide for enforcement proceedings against State institutions (see paragraphs 34-35 above), or for any clearly regulated complaints procedure before an independent body with the power to issue binding orders in cases of failure of State institutions to execute judgments against them (see Mancheva v. Bulgaria, cited above, § 60, and, mutatis mutandis, Mutishev and Others v. Bulgaria, no.", "18967/03, § 144, 3 December 2009). 59. Accordingly, the Court concludes that in the present case there has been a violation of Article 6 § 1 of the Convention. B. Article 1 of Protocol No.", "1 60. In accordance with the Court’s established case-law (see Burdov v. Russia, no. 59498/00, § 40, ECHR 2002‑III; Mancheva, cited above, § 65; and Kotov v. Russia [GC], no. 54522/00, § 90, 3 April 2012), the applicants’ enforceable claim under the final judgment of 22 July 2004 constituted a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention.", "61. The impossibility for the applicants to obtain the execution of that judgment constituted an interference with their rights to peaceful enjoyment of their possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see Mancheva, cited above, § 66). 62. The Government have not advanced any justification for this interference (see paragraph 51 above).", "63. It follows that there has been a violation of Article 1 of Protocol No. 1. 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. For pecuniary damage, the applicants claimed the amount of the judgment debt, plus the interest accrued, which they calculated to be BGN 3,554.58, the equivalent of EUR 1,813, for each of them. In respect of non-pecuniary damage resulting from the length of the proceedings and the non-enforcement of the judgment of 22 July 2004, the applicants claimed EUR 12,000 each. 66.", "The Government did not dispute the amounts claimed by the applicants for pecuniary damage, but noted that these sums were already due to them in the domestic proceedings. As regards the applicants’ claim for non-pecuniary damage, the Government argued that the amount claimed was exaggerated. 67. In respect of pecuniary damage, the Court notes that in accordance with domestic law, the applicants are entitled to the payment of the judgment debt claimed by them, together with the relevant interest and the costs and expenses incurred in the enforcement proceedings. The Court observes that in December 2010 the applicants were still in possession of their claim.", "Thus, it considers that no specific award in respect of pecuniary damage should be made and that, if they have not already done so, the respondent Government should ensure enforcement of the judgment of the Sofia District Court of 22 July 2004 in the applicants’ favour (see Čolić and Others v. Bosnia and Herzegovina, nos. 1218/07, 1240/07, 1242/07, 1335/07, 1368/07, 1369/07, 3424/07, 3428/07, 3430/07, 3935/07, 3940/07, 7194/07, 7204/07, 7206/07 and 7211/07, § 20, 10 November 2009; Solomatin v. Ukraine, no. 8191/04, § 30, 15 October 2009; and Puleva and Radeva v. Bulgaria, no. 36265/05, § 52, 14 February 2012). The Court holds further that enforcement should be guaranteed within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention.", "68. As regards non-pecuniary damage, the Court considers that the applicants must have suffered frustration as a result of the violation of their rights in the case. Judging on an equitable basis, it awards EUR 2,000 to each of them. B. Costs and expenses 69.", "The applicants also claimed EUR 3,700 in respect of costs and expenses incurred before the Court. In support of this claim, they submitted a contract for legal representation and a time sheet for their representative’s work. They requested that any amount awarded under this head be transferred directly into the bank account of their representative, Mr Y. Grozev. 70. The Government contested that claim as being exaggerated.", "71. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, the above criteria and the fact that it found the present application partially inadmissible, the Court considers it reasonable to award the sum of EUR 800 for costs and expenses. As per the applicants’ request, it is to be transferred directly into their representative’s bank account. 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 1. Declares unanimously the complaints concerning the length of the civil proceedings and the prolonged non-enforcement of a final judgment admissible; 2. Declares by a majority the complaint under Article 3 of the Convention inadmissible; 3. Holds unanimously that there has been a violation of Article 6 § 1 of the Convention; 4.", "Holds unanimously that there has been a violation of Article 1 of Protocol No. 1; 5. Holds by six votes to one (a) that within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention the respondent State is, if it has not already done so, to secure enforcement of the Sofia District Court’s judgment of 22 July 2004; (b) that, within the same time-limit, the respondent State is to pay the applicants the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement: (i) to each applicant – EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) jointly to the three applicants – EUR 800 (eight hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be transferred directly into the bank account of the applicants’ representative; (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 by six votes to one the remainder of the applicants’ claims 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.", "Lawrence EarlyIneta ZiemeleRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Zdravka Kalaydjieva is annexed to this judgment. I.Z.T.L.E. PARTLY DISSENTING OPINION OF JUDGE KALAYDJIEVA I fully agree that “the right asserted [by the applicants did] not actually become effective until enforcement” (paragraph 54) of the domestic civil court’s decision of 2004 against the Ministry of Interior, after proceedings in which a prosecutor was also a party. This decision “established the factual circumstances as described in paragraphs 7-10” (paragraph 28) – namely that “a group of police officers ... armed with guns, batons, shields and helmets... were running towards [the applicants] ...[broke into a locked private building and] chased [them] to the top floor, where they started beating them with batons... [causing] wounds to their heads and bruises on their backs and arms”. The court concluded that “the police had had no justification for using force against the applicants and ... the latter had done nothing to provoke such a violent attack” (paragraph 27).", "These conclusions led neither to payment of compensation nor to further investigation into the applicants’ particular circumstances in the following years. I agree with the Chamber that there were “no cogent elements which would lead it to depart from” the civil courts’ findings (paragraph 40), but not necessarily with the view that the tort action “had no bearing on the State’s obligation to carry out an effective investigation” (paragraph 47). While it is true that after 2004 the applicants did not request any further or more vigorous investigation into their particular circumstances, it is difficult to conceive that the decision in question remained unknown to the other parties to the civil case. Thus, while it may be correct that the decision disregarding the applicants’ arguable claims of 2000 “could not be considered”, at least in respect of the applicants’ complaints under the procedural limb of Article 3, a “final decision”, I wonder if no new ex officio obligation arose after 2004, when the alleged unlawful beating was “established beyond reasonable doubt” in proceedings to which both the police and the prosecution authorities were parties. I also wonder what more could reasonably be expected from the applicants in this regard after the “establishment of the circumstances beyond reasonable doubt” following the discontinuance of the investigation in respect of their initial “arguable claim”.", "The applicants’ steps to establish the facts of the unlawful use of force are not necessarily comparable (see paragraph 44) to those in the cases of Kırlangıç v. Turkey (no. 30689/05, 25 September 2012), Brunner v. Turkey ((dec.), no. 10/10, 6 December 2011) and Manukyan v. Georgia ((dec.), no. 53073/07, 9 October 2012), where both the applicants and the relevant authorities remained completely inactive for long periods. These circumstances raise the issue whether the positive obligation to conduct an effective investigation is an ex officio one which requires the authorities to take measures as soon as they are informed of circumstances falling under Articles 2 and 3, or one requiring the affected individuals to push for such an investigation in an attempt to “exhaust the available domestic remedies”, despite their evident ineffectiveness.", "This furthermore poses the question as to the moment when it may be reasonably argued that the authorities may be considered exempt from their further ex officio positive obligation to identify those responsible, in the face of established acts which fall to be considered under Article 3 of the Convention. In this regard the Court’s views have developed to require not only an effective investigation, but also a reasonably appropriate punishment to avoid the impression of impunity. Moreover, while it is true that the applicants did not insist on further investigation capable of identifying those responsible, it is difficult to deny their consistent attempt to obtain at least the compensation to which they were entitled. Was this attempt not a way of asserting their entitlement to redress for their suffering as a result of the alleged violation of their rights under Article 3? In previous cases, the Court has examined complaints initially raised about the length of criminal proceedings in a rape case as falling to be examined under Article 3; it has found that payment of compensation (see Öneryıldız v. Turkey [GC], no.", "48939/99, ECHR 2004‑XII) and legal aid (see Gäfgen v. Germany [GC], no. 22978/05, ECHR 2010, and Ilbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey, no. 19986/06, 10 April 2012) constitute elements of the positive obligations of the State authorities to provide appropriate and sufficient redress in cases under Articles 2 and 3; it has also found violations of the rights protected by these provisions in cases where the applicants had obtained pecuniary compensation but the criminal investigation had resulted in inappropriately lenient punishment of the perpetrators or in no punishment at all – regardless of the late registration of the complaints under this head (see Nikolova and Velichkova v. Bulgaria, no. 7888/03, 20 December 2007, and Vasil Sashov Petrov v. Bulgaria, no. 63106/00, §§ 31-32, 10 June 2010).", "Whereas in the present case, by contrast, the Court dismissed the applicants’ complaints that “the authorities had failed to investigate effectively their claim that they had been beaten by the police” (paragraph 36) and limited the scope of its examination to the complaints that the “set of civil proceedings they were party to were excessively lengthy and that the authorities failed for a long period of time to enforce the final judgment” (paragraph 3). It appears to me that in doing so, the Chamber apparently failed to address the pertinent questions: what were “the rights asserted by the applicants” and what was “at stake” in these long and ineffective proceedings? In this regard, the overall reasoning of the Court appears, for the first time, to treat complaints of ineffective protection under Article 3 as relating only to the right to a reasonable length of proceedings and enforcement of decisions – in respect of any civil right, that is to say, matters which are not necessarily protected by the Convention. As a result, the measures to be taken for the implementation of the present judgment will inevitably remain limited to the payment of compensation in addition to that which already became due ten years ago, this being a form of redress which the Court has considered insufficient in the circumstances of deliberate use of force by State agents, even prior to the development of the notion of positive obligations and protection of the rights of individuals under Articles 2 and 3 of the Convention." ]
[ "SECOND SECTION CASE OF MALO v. ALBANIA (Application no. 72359/11) JUDGMENT STRASBOURG 22 May 2018 FINAL 22/08/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Malo v. Albania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Robert Spano, President,Paul Lemmens,Ledi Bianku,Işıl Karakaş,Nebojša Vučinić,Jon Fridrik Kjølbro,Stéphanie Mourou-Vikström, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 17 April 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "72359/11) 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 an Albanian national, Mr Vladimir Malo (“the applicant”), on 31 October 2011. 2. The applicant was represented by Mr S. Luci, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their then Agent, Ms L. Mandia of the State Advocate’s Office. 3.", "The applicant alleged, in particular, that there had been a breach of Article 6 § 1 of the Convention. 4. On 26 June 2012 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1975. He is currently serving a prison sentence. A. The first set of proceedings 6. On 9 July 2002, following proceedings in absentia, the Gjirokastër District Court convicted the applicant of attempted armed robbery, negligent homicide and premeditated murder in relation to another criminal offence, and sentenced him to twenty-five years’ imprisonment.", "Three other co‑defendants, whose requests for the use of the summary procedure had been granted, were also found guilty. The applicant was represented by a court-appointed lawyer. 7. On 7 October 2002, following an appeal by the three other defendants, the Gjirokastër Court of Appeal upheld the decision in the applicant’s absence. 8.", "On 10 October 2007, upon the applicant’s extradition to Albania, the District Court accepted his application for leave to appeal out of time. The District Court stated in its reasoning that the postal service had noted that the applicant was living in Italy and that as a consequence he had not been aware of his conviction. B. The retrial proceedings 9. On an unspecified date in October 2007 the applicant lodged his appeal.", "In the first place, he requested that his case be re-examined separately from that of his co-defendants on the grounds that he had not sought the use of the summary procedure. He relied on the Supreme Court’s unifying decision no. 2 of 29 January 2003 (see paragraph 16 below). Secondly, he requested that a fresh examination of the evidence be conducted in his presence and that a number of witnesses be questioned. Thirdly, he maintained that the authorities had failed to inform him about the judicial proceedings before the first-instance court.", "10. On 17 December 2007 the Gjirokastër Court of Appeal upheld the applicant’s conviction in absentia. The court ruled that the applicant had not put forward new evidence to change the outcome of those proceedings. His request had been directed against the probative value of evidence which had already been examined and decided upon. In upholding the conviction, the court relied on forensic evidence produced in 1997 and 1999 and on witness statements made in 2001 and 2002.", "The court further stated that the applicant had been duly informed as the authorities had issued a public notice. It finally noted that the summary procedure had been applied equally to all the defendants in accordance with the Supreme Court’s unifying decision of 29 January 2003 (see “Relevant domestic case law below”). Separating the cases could not be considered as the district court had not decided on that issue. 11. On an unspecified date the applicant lodged an appeal against the Court of Appeal’s decision.", "He complained of a breach of his right to have witnesses questioned and evidence re-examined. He stressed the fact that in his appeal to the Court of Appeal he had asked for evidence to be obtained, including an identification parade, the questioning of a fourth person who had been present at the events, a face-to face confrontation between himself and the other co-defendants and so on. It had not been possible for him to obtain that evidence himself, only the courts or the prosecutor could have done that. The applicant also maintained the other complaints he had raised in his Court of Appeal case. 12.", "On 5 March 2010 the Supreme Court dismissed the appeal, finding that it lacked any grounds of appeal as prescribed by law. 13. On 21 February 2011 the applicant lodged a constitutional appeal with the Constitutional Court. 14. On 9 May 2011 the applicant’s lawyer was notified of the Constitutional Court’s decision that his appeal was inadmissible.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 15. The relevant domestic law and practice at the material time as regards proceedings in absentia have been described in detail in the judgments of Shkalla v. Albania (no. 26866/05, § § 28-35, 10 May 2011), and Izet Haxhia v. Albania (no. 34783/06, § § 19-42, 5 November 2013).", "16. The relevant domestic case-law and practice as regards the conduct of the summary procedure at the material time have been described in detail in Cani v. Albania (no. 11006/06, § § 34-35, 6 March 2012). 17. The relevant provisions as regards the scope of the examination of an appeal by the Court of Appeal, the reopening of the judicial examination of a case (përsëritja e shqyrtimit gjyqësor) by the Court of Appeal, and the competences of a court of appeal, have been described in detail in Mulosmani v. Albania (no.", "29864/03, § 106, 8 October 2013). 18. The relevant provisions as regards the appeal procedure before the Supreme Court have been described in detail in Çaush Driza v. Albania (no. 10810/05, § 53, 15 March 2011). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 19. The applicant complained under Article 6 §§ 1 and 3 (a), (b), (c) and (d) of the Convention about his trial in absentia. He also complained that he had not been permitted to examine witnesses or request the examination of evidence in the retrial proceedings. Those provisions 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: (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...” A. Admissibility 20. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 21. The applicant maintained that the proceedings against him had been unfair as they had been held in absentia. He had not been notified in person of any acts, nor had he had any information during the criminal investigation and the court proceedings. During the retrial the domestic courts had not been able to obtain fresh evidence and the applicant had not been able to examine witnesses against him and on his behalf. 22.", "The Government accepted that the applicant had been tried and convicted in absentia. However, they argued that the domestic proceedings had not been unfair. They reiterated the findings of the Court of Appeal’s decision of 17 December 2007 that the applicant had been duly notified by the authorities. They also contended that he had been represented by a court-appointed lawyer and that his defence rights had been respected. 23.", "The Government further argued that a request for leave to appeal out of time was an effective remedy for a trial in absentia and that a fresh determination of the criminal charge was considered as a new trial. They referred to Articles 425, 427 and 428 of the Code of Criminal Procedure, which provided for an examination of an appeal by the Court of Appeal and the reopening of the judicial examination of a case by the Court of Appeal and which defined the competences of a court of appeal (see paragraph 17 above). Turning to the present case, they noted that the applicant’s complaints had been mainly directed at the probative value of the evidence and the conduct of the proceedings before the first-instance court. Therefore, the Court of Appeal by its decision of 17 December 2007 had duly decided on the merits of the case and the probative value of the evidence. It had considered that on the basis of the evidence obtained during the first set of proceedings the applicant was guilty of the charges.", "24. The Court notes that the general principles as regards proceedings in absentia have been described in Sejdovic v. Italy ([GC], no. 56581/00, §§ 81‑95, ECHR 2006‑II). 25. The Court further reiterates that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1.", "In these circumstances the Court finds it unnecessary to examine the relevance of paragraph 3 to the case since the applicant’s allegations, in any event, amount to a complaint that the proceedings were unfair. It will therefore confine its examination to that point (see Shkalla, cited above, § 67). 26. In the present case it was not disputed by the parties that the applicant was tried and convicted in absentia. It has not been shown that the applicant had sufficient knowledge of the legal proceedings against him.", "In fact, it was established that he was informed of the conviction in absentia upon his extradition to Albania (see paragraphs 6-8 above). 27. The Court reiterates that, although proceedings that take place in the accused’s absence are not of themselves incompatible with Article 6 of the Convention, a denial of justice nevertheless undoubtedly occurs where a person convicted in absentia is unable subsequently to obtain from a court which has heard him a fresh determination of the merits of the charge, in respect of both law and fact, where it has not been established that he has waived his right to appear and to defend himself (see Sejdovic, cited above, § 82). Turning to the present case, the Court will examine whether the retrial proceedings entailed the possibility of a fresh factual and legal determination of the criminal charge against the applicant. 28.", "The Court notes that the Gjirokastër District Court granted the applicant’s request for leave to appeal out of time under Article 147 of the CCP. It further notes that after the applicant’s appeal the Gjirokastër Court of Appeal examined the merits of the case and upheld the applicant’s conviction in absentia. It relied on the evidence obtained during the first set of proceedings. The Court also notes that, as can be seen in the Court of Appeal’s decision and the applicant’s appeals to the Court of Appeal and the Supreme Court, the applicant’s lawyer made explicit requests to conduct a fresh examination of the evidence and to be allowed to cross-examine witnesses. However, the Court of Appeal did not carry out any fresh determination of the criminal charges against the applicant.", "The Court of Appeal found that the applicant had not put forward any new evidence to change the outcome of the proceedings held in absentia, without giving any other reasons whatsoever for its own failure to obtain new evidence and call witnesses, as requested by the applicant (compare and contrast Jones v. United Kingdom (dec.), no. 30900/02, 9 September 2003, and Makarenko v. Russia, no. 5962/03, § 139, 22 December 2009). It merely reiterated the reasoning and findings of the first set of proceedings. 29.", "In the light of the foregoing, the Court finds that the applicant did not in reality have the opportunity of obtaining a fresh determination of the merits of the charges against him by a court in proceedings compliant with the fairness guarantees of Article 6. 30. There has therefore been a violation of Article 6 § 1 of the Convention. II. OTHER ALLEGED VIOLATION OF THE CONVENTION 31.", "Lastly, the applicant also complained of a lack of reasons in the Supreme Court’s decision. 32. The Court also reiterates that according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 84, ECHR 2017; see also Marini v. Albania, no.", "3783/02, § 105, 18 December 2007). The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999‑I). Without requiring a detailed answer to every argument advanced by the complainant, this obligation presupposes that parties to judicial proceedings can expect to receive a specific and explicit reply to the arguments which are decisive for the outcome of those proceedings (see, among other authorities, Ruiz Torija v. Spain, 9 December 1994, §§ 29-30, Series A no. 303‑A, and Higgins and Others v. France, 19 February 1998, §§ 42-43, Reports of Judgments and Decisions 1998‑I).", "Moreover, in cases relating to interference with rights secured under the Convention, the Court seeks to establish whether the reasons provided for decisions given by the domestic courts are automatic or stereotypical (see, mutatis mutandis, Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 210, ECHR 2017 (extracts). 33. The Court observes in this connection that the applicant appealed to the Supreme Court on the same grounds as the appeal to the Court of Appeal. The Court considers that the limited reasons given by the Supreme Court in its de plano decision formula, however, implicitly indicated that the applicant had not raised one of the points of law provided for by the relevant domestic provision, which is an admissibility requirement for leave to appeal being granted (see paragraph 18 above).", "The Court observes that where a Supreme Court refuses to accept a case on the basis of the legal grounds for such a case not having been made out, very limited reasoning may satisfy the requirements of Article 6 of the Convention (see Marini, cited above, § 106). 34. For the above reasons, it follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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.” 36. The applicant did not submit a claim for just satisfaction. 37. The Court reiterates its findings in Shkalla (cited above, §§ 77-79), and Izet Haxhia (cited above, § 70) that when an applicant has been convicted in breach of her or his rights as guaranteed by Article 6 of the Convention, the most appropriate form of redress would be to ensure that the applicant is put as far as possible in the position in which she or he would have been had this provision been respected. The most appropriate form of redress would, in principle, be a new trial or the reopening of the proceedings if requested.", "FOR THESE REASONS, THE COURT UNANIMOUSLY, 1. Declares the complaints concerning the unfairness of the proceedings in absentia admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 22 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithRobert SpanoRegistrarPresident" ]
[ "FIRST SECTION CASE OF ŠUPUT v. CROATIA (Application no. 49905/07) JUDGMENT STRASBOURG 31 May 2011 FINAL 31/08/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Šuput v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Anatoly Kovler, President,Nina Vajić,Christos Rozakis,Peer Lorenzen,Elisabeth Steiner,Khanlar Hajiyev,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 10 May 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "49905/07) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Željko Šuput (“the applicant”), on 15 October 2007. 2. The applicant was represented by Mr Ð. Vučinić, a lawyer practising in Rijeka. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.", "On 19 June 2008 the President of the First Section decided to communicate the complaints concerning the adequacy of the medical care administered to the applicant and the complaint that the reasons relied on by the domestic courts for extending the applicant’s detention were not relevant and sufficient throughout the detention to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1971 and lives in Korenica.", "1. Background to the case 5. In July 2005 the police, at the request of the State Attorney, commenced an inquiry into allegations that during 1991, at the beginning of the Homeland War in Croatia, a large number of civilians were tortured and killed or detained in Korenica, Croatia by members of the so-called “Krajina Autonomous Region Militia” (Milicija “Autonomne Oblasti Krajina”), where they were allegedly tortured and some of them killed. A large number of survivors and other individuals who witnessed these events were interviewed by the police. A voluminous case file was produced and the inquiry resulted in the supposed perpetrators being identified, among whom was the applicant.", "2. Criminal proceedings against the applicant (a) Investigation 6. The applicant was arrested on 4 December 2006 on suspicion that he had committed war crimes against the civilian population and prisoners of war. On the same day the investigation judge of the Gospić County Court (istražni sudac Županijskog suda u Gospiću) heard evidence from the applicant in the presence of a defence counsel. The applicant denied the charges.", "On the same day the investigation judge heard evidence from two other suspects. 7. On 5 December 2006 an investigation was opened in respect of the applicant and two other suspects in the Gospić County Court in connection with suspected war crimes against the civilian population and prisoners of war in 1991 in Korenica, Croatia. 8. On 7 and 11 December 2006 the police interviewed two newly discovered potential witnesses.", "9. On 14 December 2006 the investigation judge requested a report from the Korenica Social Welfare Centre (Centar za socijalnu skrb Korenica) on the suspects’ personal circumstances. On the same day the investigation judge scheduled a hearing, with an identification parade, for 21 December 2006, and ordered the Gospić Police Station to ensure the presence of twelve other individuals of an appropriate age and physical appearance at the identification parade. 10. At a hearing held on 21 December 2006 the investigation judge heard evidence from nine witnesses and held an identification parade.", "Two of the witnesses were asked to identify the applicant and both of them recognised the applicant as a person named Željko Šuput who they alleged had ill-treated prisoners in Korenica in 1991. 11. On the same day the Gospić State Attorney’s Office asked for evidence from eighteen witnesses to be heard by the investigation judge. 12. On 27 December 2006 the Korenica Social Welfare Centre submitted their report to the Gospić County Court on the applicant’s personal circumstances.", "The report stated that the applicant and his family, who had left Croatia during the Homeland War, had returned to Croatia in 2001 and since then had lived in their own house in Korenica. Before his arrest the applicant had been employed as a driver in Rijeka, Croatia. On the same day the Ministry of Justice informed the Gospić County Court that the applicant had been fined twice for minor offences related to road safety and customs regulations. He had no criminal record. 13.", "On 3 and 17 January 2007 the investigation judge heard evidence from four and fifteen witnesses respectively. A voluminous case file was compiled containing evidence from witnesses and a large amount of documentary evidence. (b) Criminal trial 14. On 31 January 2007 the applicant and another defendant were indicted before the Gospić County Court for war crimes against prisoners of war, an offence under section 122 of the Croatian Criminal Code. The applicant was accused of inflicting exceptionally brutal treatment on prisoners of war on several occasions, consisting of beatings with wooden rods and chains, kicking, administering electric shocks, death threats and forcing schoolchildren to urinate on the prisoners.", "15. On 15 February 2007 the applicant lodged an objection to the indictment (prigovor protiv optužnice). His co-defendant also lodged an objection. 16. On 1 March 2007 the President of the Gospić County Court asked the Supreme Court to transfer jurisdiction to another court.", "This was refused on 8 March 2007. 17. On 19 March 2007 the objections to the indictment were dismissed by the Gospić County Court and the indictment became final. 18. On 4 April 2007 the President of the Gospić County Court again asked the Supreme Court to transfer jurisdiction to another court.", "On 26 April 2007 the Supreme Court transferred jurisdiction to the Rijeka County Court (Županijski sud u Rijeci) and the proceedings continued before that court. 19. A hearing scheduled for 12 July 2007 was adjourned owing to the absence of the parties. 20. On 18 July 2007 the applicant appointed new counsel, who asked the County Court to adjourn the trial in order to allow him sufficient time to consult the case file and prepare the applicant’s defence.", "For that reason on 20 July 2007 the Rijeka County Court adjourned the hearings already scheduled for 24, 25, 26 and 27 July 2007. The hearings were scheduled for 3, 4, 5 and 6 September 2007. 21. At a hearing held on 3 September 2007 the County Court dismissed a number of procedural objections put forward by the defence and heard evidence from one witness. A hearing scheduled for 4 September 2007 was adjourned because the defence counsel of both defendants refused to continue to represent them.", "On 5 September 2007 the County Court appointed legal-aid counsel for the applicant. On 7 September 2007 the appointed counsel asked to be relieved of his duties. On 10 September 2007 the County Court accepted this request and on 12 September 2007 it appointed new legal-aid counsel for the applicant. On 21 September 2007 that lawyer also sought to be relieved of her duties. On 25 September 2007 the County Court refused this request.", "On 10 and 11 October counsel again sought to be relieved of her duties, on different grounds from those given in her previous request. This request was accepted on 11 October 2007 and on 15 October 2007 new legal-aid defence counsel was appointed. 22. A hearing scheduled for 22 October 2007 was adjourned because the applicant’s counsel did not appear. A hearing scheduled for 10 December 2007 was adjourned because the case file had been forwarded to the Supreme Court upon the applicant’s appeal against a decision extending his detention (see below, § 39).", "23. At a hearing held on 8 January 2008 the County Court heard evidence from eight witnesses, on 9 January 2008 three witnesses and on 10 January 2008 also three witnesses. On the latter date the County Court commissioned an expert report from a medical expert. On 3 March 2008 the expert submitted her report. 24.", "At a hearing held on 10 March 2008 the County Court heard evidence from the medical expert and at a hearing held on 11 March 2008 it heard evidence from seven witnesses. 25. A hearing scheduled for 8 May 2008 was adjourned on account of the applicant’s inability to attend owing to his post-surgery state of health (see below, §§ 60 and 61). 26. At a hearing held on 30 June 2008 the Rijeka County Court heard the applicant’s evidence as to his health and decided to commission a report by a medical expert concerning the applicant’s health.", "The report was submitted on 14 July 2008. The expert stated that the applicant’s health was not incompatible with his ability to attend and follow the criminal trial against him (see below, § 63). 27. At a hearing held on 16 September 2008 the records of the identification parade (see above, § 10) were read and three witnesses gave evidence. 28.", "At a hearing held on 19 September 2008 the Rijeka County Court decided on a number of procedural objections put forward by the defence. At a hearing on 2 October 2008 two witnesses and both defendants gave evidence and the parties gave their closing arguments. 29. On 3 October 2008 the Rijeka County Court found the applicant guilty of war crimes against prisoners of war and sentenced him to four years’ imprisonment. At the same time it lifted the applicant’s detention.", "30. On 11 and 19 February 2009 respectively the applicant and the other defendant lodged their appeals. The appeal proceedings are currently pending before the Supreme Court. 3. Decisions concerning the applicant’s detention 31.", "On 4 December 2006 the investigation judge of the Gospić County Court remanded the applicant in custody for forty-eight hours. On the same day the investigation judge heard evidence from the applicant in the presence of a defence counsel. The applicant denied the charges against him. On the same day the investigation judge heard evidence from two other suspects. 32.", "On 5 December 2006 the investigation judge remanded the applicant in custody for one month on the grounds that there was a danger of absconding and that the offences allegedly committed by the applicant were serious ones. The relevant part of the decision reads: “This court finds that the grounds for detention under Article 102 § 1(1 and 4) of the Code of Criminal Procedure apply ... The case file shows that the first, second and third suspects lived in Serbia for a long time and therefore the circumstances indicated a danger of absconding because they might leave the territory of Croatia and thus impede the conduct of these criminal proceedings. Also, what is at issue is a crime against humanity and international law – a war crime against prisoners of war, liable to twenty years’ imprisonment, which was committed under particularly grave circumstances shown by a reasonable suspicion that the suspects brutally tortured the prisoners, and the injuries thus inflicted caused grave bodily impairments to the majority of the victims, resulting in their permanent grave disability.” This decision was upheld by a three-judge panel of the Gospić County Court on 13 December 2006 which endorsed the reasoning of the investigation judge. 33.", "On 3 January 2007 the investigation judge extended the applicant’s detention for a further two months on the same grounds as before. The applicant did not lodge an appeal. 34. On 14 February 2007 a three-judge panel of the Gospić County Court extended the applicant’s detention on the same grounds (danger of absconding and gravity of offences). This decision was upheld by the Supreme Court on 26 February 2007.", "The relevant part of the decision reads: “This court finds that the fact that the defendants lived abroad for a long time and are charged with a grave criminal offence liable to a lengthy prison term show that if released, they might abscond. Thus, the extension of their detention on the ground under Article 102 § 1(1) of the Code of Criminal Procedure is justified. The Supreme Court ... accepts the first-instance court’s findings that the conduct of the defendants amounted to an offence committed under particularly grave circumstances, which necessitate their further detention on the ground under Article 102 § 1(4) of the Code of Criminal Procedure. The defendants are charged with particularly brutal conduct consisting of beatings with wooden sticks, rods and chains, administering electric shocks, throwing cold water over and psychologically torturing war prisoners N.N., M.L. and P.B.", "on many occasions in cells, halls and the courtyard of the building where they were detained, which caused grave bodily injuries to the victims.” 35. On 12 April 2007 the Gospić County Court extended the applicant’s detention on the same grounds. 36. On 7 May 2007 the Supreme Court quashed the decision of 12 April 2007 on formal grounds, namely the absence of the applicant’s defence counsel from a panel meeting concerning his detention. 37.", "On 11 May 2007 the Gospić County Court extended the applicant’s detention on the same grounds. The applicant did not lodge an appeal. 38. On 12 July and 19 September 2007 the Rijeka County Court extended the applicant’s detention on the same grounds. The applicant did not lodge appeals.", "39. On 23 November 2007 the Rijeka County Court extended the applicant’s detention solely on account of the gravity of the offences. The relevant part of the decision reads: “This panel finds that the grounds for detention under Article 102 § 1(4) of the Code of Criminal Procedure in respect of the first defendant Željko Šuput still apply on account of the manner in which he had allegedly committed the criminal offences held against him. The factual basis of the criminal offence shows exceptional cruelty and brutality which, in the opinion of this panel, represent an offence committed under exceptionally grave circumstances and that therefore detention is necessary under Article 102 § 1(4) of the Code of Criminal Procedure. The record of the hearing held on 3 September 2007 shows that the first defendant Željko Šuput is a citizen of Croatia, that he was employed as a driver before his arrest, that he owns half a house in Korenica, and that he is married and the father of two children.", "These circumstances show that he has a connection with the Republic of Croatia and that, despite these criminal proceedings and a risk of imprisonment, the grounds for detention under Article 102 § 1(1) of the Code of Criminal Procedure have not been fulfilled, namely that there are no circumstances indicating a danger of absconding.” On 10 December 2007 the Supreme Court upheld this decision, endorsing the County Court’s reasons. The applicant lodged a constitutional complaint. 40. On 29 January 2008 the applicant asked for his detention to be lifted. 41.", "On 8 February 2008 the Rijeka County Court dismissed the applicant’s request and extended the applicant’s detention on account of the gravity of the charges. On 27 February 2008 the Supreme Court upheld this decision, endorsing the County Court’s reasoning. 42. At the hearing held on 11 March 2008 the applicant’s counsel asked for the detention to be lifted on the ground that he needed medical assistance outside prison, including surgery on his spine. The Rijeka County Court dismissed the request, finding that it was premature, since no surgery had yet been performed on the applicant.", "On 29 March 2008 the applicant was admitted to Zagreb Prison Hospital (Bolnica za osobe lišene slobode, “the ZPH”). On 9 April 2008 he was transferred to a civil hospital, where surgery on his spine was carried out on 14 April 2008. 43. On 15 April 2008 the applicant again asked for his detention to be lifted on health grounds. This was refused by the Rijeka County Court on 25 May 2008 and the applicant’s detention was extended for a further two months.", "The relevant part of that decision reads as follows: “This court finds that the ground for ordering the applicant’s detention under Article 102 paragraph 1(4) of the Code of Criminal Procedure still exists because of ... a suspicion that in the period between 15 October 1991 and the end of April 1992 the first defendant, Željko Šuput, as a member of the intervention brigade of the Militia of the so-called Krajina Autonomous Region, on several occasions brutally ill-treated prisoners of war in the cells, corridor and courtyard of the Korenica Militia building by beating them with wooden sticks, rods and chains, kicking them and administering electric shocks until they lost consciousness. These circumstances indicate utterly cruel and inhuman treatment of the prisoners of war, which significantly exceeded the basic features of the crime in question ... which represent an offence committed under particularly grave circumstances, which clearly warrant that the defendant remain in custody on the grounds under Article 102 paragraph 1(4) of the Code of Criminal Procedure.” 44. As to the applicant’s request that his detention be lifted, the County Court held: “This court finds the first defendant’s request for his detention to be lifted unfounded. The purpose of placing the first defendant Željko Šuput in Zagreb Prison Hospital is precisely to be able to administer adequate medical care appropriate to his needs and state of health. [The Hospital] is able to provide continuous monitoring and urgent medical interventions.", "There it is possible to administer the medical assistance the defendant needs, identical to that which he would receive in any other situation, irrespective of whether or not he is in detention.” This decision was upheld by the Supreme Court on 21 May 2008. The relevant part of the decision reads: “... the finding of the first-instance court that the ground for further detention of the defendant Željko Šuput under 102 paragraph 1(4) of the Code of Criminal Procedure still applied is correct. The indictment shows a relevant degree of reasonable suspicion that the defendant Željko Šuput committed the criminal offence under Article 122 of the Criminal Code, by which a general statutory condition under Article 102 paragraph 1 of the Code of Criminal Procedure for extending detention has been fulfilled. The factual background of the indictment shows that the defendant Željko Šuput, in his capacity as a member of the intervention squad of the so-called Krajina A[utonomous] R[egion] Militia, in the period from 15 October 1991 to the end of April 1992, together with other members of that militia, on many occasions, in cells, hall and courtyard of the building [where they were detained] kicked prisoners and beat them with wooden sticks, rods and chains on the head and body and administered electric shocks until they lost consciousness, all of which resulted in numerous and grave injuries. The above-described manner in which the offences were committed shows an exceptionally high degree of brutality, ruthlessness, unscrupulousness and cruelty, which surpasses by far the usual manner of committing such crimes and represents an offence committed under particularly grave circumstances which necessitates the defendants’ remaining in custody under Article 102 paragraph 1(4) of the Code of Criminal Procedure, as correctly found and explained by the first-instance court in the decision referred to.", "The defendant’s arguments that there was no proof that he had committed the criminal offences at issue are not decisive for deciding on his further detention, because for such a decision the relevant degree of reasonable suspicion suffices, and that suspicion is shown in the indictment. In considering [the reasons for] detention, this panel does not assess evidence and its probative value – that assessment is made by the trial court at the end of the trial. Contrary to the allegations of the appeal, the extension of his detention on the grounds under Article 102 paragraph 1(4) of the Code of Criminal Procedure contravenes neither the Croatian Constitution nor the Convention. Unlike the aim of the grounds for detention under Article 102 paragraph 1(1,2 and 3) of the Code of Criminal Procedure, the aim of the ground for detention under Article 102 paragraph 1(4) of the Code of Criminal Procedure is not to remove threats to the efficient and unobstructed conduct of the criminal proceedings but is preventive, intended to prevent the release of individuals who have committed criminal offences such that their release would diminish the reputation of and trust in the justice system by the public. Article 5 of the Convention gives only examples of the grounds for detention (exempli gratia) and these grounds are not exclusive (numerus clausus).", "Therefore, Article 102 paragraph 1(4) does not contravene the said provision of the Convention. Other security measures under Article 90 of the Code of Criminal Procedure, in view of their essence and character, could not fulfil the same purpose as detention. The applicant’s needs as regards medical care may be satisfied with medical treatment in prison, in view of the nature of his illness, and exceptionally by out-patient treatment.” 45. On 27 May 2008 the applicant again asked for his detention to be lifted on health grounds. 46.", "On 29 May 2008 the Constitutional Court declared the applicant’s constitutional complaint against the Supreme Court’s decision of 10 December 2007 inadmissible on the grounds that meanwhile a fresh decision extending the applicant’s detention had been adopted by the Rijeka County Court on 8 February 2008 and that therefore the original decision was no longer in effect. 47. On 10 June 2008 the applicant’s request of 27 May 2008 was dismissed by the Rijeka County Court on the grounds that the applicant’s health did not require treatment outside prison. The relevant part of the decision reads: “As regards the health of the first defendant Željko Šuput ... this panel finds that for now the treatment it requires is not incompatible with his detention. The medical documentation of 29 May 2007 shows that a haematoma which developed ... in the brain, is slowly diminishing.", "The neurosurgeons did not recommend surgery but only further supervision and rest. The next examination ... is scheduled for the end of June. His health is expected to become stable.” 48. On 18 July 2008 the Rijeka County Court extended the applicant’s detention on the grounds of the gravity of the charges. 49.", "On 3 October 2008, after finding the applicant guilty of war crimes against prisoners of war, the Rijeka County Court lifted his detention. The applicant was released the same day. A security measure of withdrawal of his passport and prohibition on leaving his place of residence was applied. The relevant part of the decision lifting the applicant’s detention reads: “ ... there is no ground for further detention of the defendant because the same purpose may be achieved by the use of a preventive measure of prohibition on leaving his place of residence and obligation to report periodically to the Korenica Police Station as well as temporary seizure of his passport.” 4. The applicant’s medical treatment during his detention 50.", "The applicant’s medical record shows that before his arrest he was suffering from discopathy of the lumbar spinal area. 51. He was seen by the prison doctor on 10 August 2007 for severe pain in the lumbar area of the spine and the left leg. He was diagnosed with lumboischialgia (chronic neck pain), and prescribed painkillers and rest. At his next examination on 27 August 2007 the doctor noted that the pain was decreasing and the same therapy was prescribed.", "On further examinations by the prison doctor on 30 August, 18, 19, 20, 21 24 and 28 September 2007 it was noted that the applicant was still suffering pain and he was prescribed various painkillers. 52. On 3 October 2007 the doctor recommended that the applicant be seen by an orthopedic specialist. On 10 October 2007 the applicant stated that he wanted to see a specialist at his own expense at a hospital of his choice. On 11 October 2007 a trial judge in the applicant’s case before the Rijeka County Court allowed the request and a visit to a clinic was scheduled for 16 October 2007.", "53. At the beginning of November 2007 the applicant was sent for an X‑ray examination of his spine. 54. On 21 January 2008 the applicant asked permission to undergo a computer tomography of his spine in a private clinic. The request was allowed on 21 January 2008 by the trial judge and the visit to the clinic was scheduled for 25 January 2008.", "55. On 8 February 2008 the trial judge allowed the applicant a specialist examination at the expense of the Rijeka County Court. 56. On 11 February 2008 the trial judge allowed the applicant’s treatment in the Zagreb Prison Hospital (ZPH) at the expense of the Rijeka County Court. The applicant stayed in the ZPH from 22 February to 6 March 2002.", "He was diagnosed with disc protrusion and surgery on his spine was scheduled for 28 March 2008. 57. On 10 March 2008 the Rijeka Prison doctor submitted a report on the applicant’s health to the Rijeka County Court. She stated that he was suffering from disc protrusion and that surgery was scheduled for 2 April 2008 at a civilian hospital - the Dubrava Hospital in Zagreb (Klinički bolnički centar Dubrava). She further noted that he had been taking painkillers for a long time and recommended that he rest every hour because he was not able to sit for a long period in the same position.", "58. At a hearing held in the Rijeka County Court on 10 March 2008 an independent medical expert recommended that a fifteen-minute break be taken every hour during the hearing on account of the applicant’s health problems. 59. On 26 March 2008 the trial judge allowed the applicant’s hospitalisation in the Dubrava Hospital in Zagreb for him to undergo surgery on his spine on 1 April 2008. 60.", "On 29 March 2008 the applicant was admitted to the ZPH. On 9 April 2008 he was transferred to Dubrava Hospital where he underwent surgery on his spine on 14 April 2008. On 17 April he was returned to the ZPH. 61. After the surgery the applicant developed a haematoma in the cerebellum.", "He underwent physiotherapy. A number of laboratory tests were carried out as well as several brain nuclear magnetic resonances, computer tomography of his spine and head, X-ray of his mouth cavity and electrocardiography. He was seen by an oral surgeon, neurologist, physiologist, ophthalmologist and a psychologist. A neurosurgeon examined him on 19 and 23 May 10 and 11 June 2008. 62.", "On 27 June 2008 he was returned to Rijeka Prison. 63. At a hearing held on 30 June 2008 in the Rijeka County Court, the trial judge asked for an opinion from a medical expert. On 14 July 2008 an independent medical expert, who saw the applicant on 10 July 2008, submitted his opinion, stating that the applicant’s health was not incompatible with his ability to attend and follow the criminal trial against him. He further recommended a brain examination at the end of July or beginning of August, an examination by a neurosurgeon and physiotherapy.", "II. RELEVANT DOMESTIC LAW 64. Section 122 of the Basic Criminal Code (Osnovni krivični zakon, Official Gazette no. 31/1993) reads as follows: War Crimes against Prisoners of War Whoever, in violation of the rules of international law, orders the killing, torture or inhuman treatment of prisoners of war, including biological, medical or other scientific experiments, the removal of tissue or organs for transplantation, or the causing of great suffering or injury to their physical integrity or health; or compels a prisoner of war to serve in the forces of a hostile power, or deprives a prisoner of war of the right to a fair trial; or commits any of the foregoing acts, shall be sentenced to not less than five years’ imprisonment or up to twenty years’ imprisonment. 65.", "The relevant part of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provides as follows: Preventive Measures Article 90 “(1) Where the conditions for ordering detention under Article 102 of this Code have been fulfilled, and where the same purpose may be achieved by other preventive measures under this Article, the court shall order that one or more preventive measures are to be applied ... (2) Preventive measures are: 1) prohibition on leaving one’s place of residence; 2) prohibition on being in a certain place or area; 3) obligation on the defendant to report periodically to a certain person or a State body; 4) prohibition on access to a certain person or on establishing or maintaining contact with a certain person; 5) prohibition on undertaking a certain business activity; 6) temporary seizure of a passport or other document necessary for crossing the State border; 7) temporary seizure of a driving licence. ...” 8. General Provisions on Detention Section 101 “(1) Detention may be imposed only if the same purpose cannot be achieved by another [preventive] measure. (2) Detention shall be lifted and the detainee released as soon as the grounds for detention cease to exist.", "(3) When deciding on detention, in particular its duration, a court shall take into consideration the proportionality between the gravity of the offence, the sentence which ... may be expected to be imposed, and the need to order and determine the duration of detention. (4) Judicial authorities conducting criminal proceedings shall proceed with particular urgency when the defendant is in detention and shall review ex officio whether the grounds and legal conditions for detention have ceased to exist, in which case detention shall immediately be lifted.” 9. Grounds for Ordering Detention Section 102 “(1) Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in detention: 1. where there are circumstances which show that there is a risk hat [the defendant] will abscond [is in hiding or his or her identity cannot be established etc. ); ... 4. where the charges relate to murder, robbery, rape, terrorism, kidnapping, abuse of narcotic drugs, extortion or any other offence carrying a sentence of at least twelve years’ imprisonment, or where detention is justified by the modus operandi or other especially grave circumstances of the offence.” 66. The relevant provisions of the Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette nos.", "128/1999 and 190/2003) read as follows: COMPLAINTS Section 15 “(1) Inmates shall have the right to complain about an act or decision of a prison employee. (2) Complaints shall be lodged orally or in writing with a prison governor, a judge responsible for the execution of sentences or the Head Office of the Prison Administration. Written complaints addressed to a judge responsible for the execution of sentences or the Head Office of the Prison Administration shall be submitted in an envelope which the prison authorities may not open ...” HEALTH PROTECTION Section 103 “(1) Inmates shall be provided with medical treatment and proper care of their physical and mental health...” OBLIGATORY MEDICAL EXAMINATION Section 104 “... (2) A doctor shall examine a sick or injured inmate ... and undertake all measures necessary to prevent or cure the illness and to prevent deterioration of the inmate’s health.” SPECIALIST EXAMINATION Section 107 “(1) An inmate has the right to seek a specialist examination if such an examination has not been ordered by a prison doctor. ...” TEMPORARY RELEASE Grounds for temporary release ... (2) Temporary release may be allowed on the following grounds: 1) to an inmate suffering from a serious acute illness or whose chronic illness worsens and where his or her medical treatment is not possible in prison. ...” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 67. The applicant complained of the conditions of his detention and in particular that he had not received adequate medical care in prison. He relied on Article 3 of the Convention, which reads: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 68. The Government argued that the applicant had failed to exhaust all available domestic remedies because he had not specifically complained to a judge responsible for the execution of sentences of a lack of adequate medical care in prison. 69.", "They further argued that the applicant had received adequate medical treatment and that all recommendations by various specialists had been followed. 70. The applicant claimed that he had not received adequate medical care while in detention. 71. The Court does not have to address all issues raised by the Government, since the application is in any event inadmissible for the following reasons.", "72. The Court notes firstly that the applicant, who was detained from December 2006 to October 2008, indeed suffered from various conditions, such as discopathy of the lumbar spinal area, back and neck pain and disc protrusion. However, detention in such conditions does not in itself constitute treatment contrary to Article 3. 73. 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.", "Measures depriving a person of his liberty may often involve such an element. Yet it cannot be said that detention in itself raises an issue under Article 3 of the Convention. Nor can that Article be interpreted as laying down a general obligation to release a detainee on health grounds or to place him in a civil hospital to enable him to obtain specific medical treatment. 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 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, §§ 93-94, ECHR 2000-XI; Kalashnikov v. Russia, no.", "47095/99, § 95, ECHR 2002‑VI; and Mathew v. the Netherlands, no. 24919/03, § 175, ECHR 2005‑IX). 74. As to the present case the Court notes that the applicant complained that while incarcerated he had not been provided with adequate medical care, and had sought release on health grounds. However, in his submissions to the Court he did not specify what treatment had been denied him and what precisely was the treatment he needed.", "75. The documents submitted show that the applicant’s health was continuously monitored by a prison doctor and that his requests to be examined by a specialist in a private clinic were allowed. Further to this, he was hospitalised in the ZPH whenever recommended. Surgery on his spine was carried out in a regular hospital, namely the Dubrava General Hospital in Zagreb, after which the applicant underwent physiotherapy and was monitored by various specialists, such as a neurologist, neurosurgeon and orthopediologist. All recommendations by specialist physicians were followed.", "Further to this, the independent medical experts who examined the applicant for the purposes of the criminal trial against him found that his health was not incompatible with detention. 76. In these circumstances the Court finds that the applicant was provided with adequate medical treatment during his detention. 77. 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.", "II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 78. The applicant further complained of the duration of his detention and submitted that the reasons relied on by the national courts for ordering and extending his detention had been insufficient and inadequate throughout his detention. He relied on Article 5 § 3 of the Convention which reads: Article 5 § 3 “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 79.", "The Government invited the Court to reject the application on the ground that the applicant had failed to exhaust domestic remedies as required under Article 35 § 1 of the Convention. 80. The Government submitted that the applicant had not lodged another constitutional complaint to the Constitutional Court. They observed that he had previously lodged such a complaint against the decision by the Supreme Court of 27 February 2008 upholding the Rijeka County Court decision of 8 February 2008, which had extended the applicant’s detention. However, the applicant’s detention had been extended by further decisions of the Rijeka County Court, in respect of which the applicant should have lodged another constitutional complaint.", "81. Having regard to the fact that the applicant’s detention continued after the Constitutional Court’s decision of 29 May 2008, lodging another constitutional complaint would have had reasonable prospects of success since it would have enabled the Constitutional Court to examine the length of the applicant’s further detention. 82. The applicant contested that argument. He argued that it was not justified to demand another constitutional complaint when his previous complaint had been declared inadmissible.", "83. The Court reiterates that under Article 35 § 1 of the Convention it may only deal with a matter after all domestic remedies have been exhausted. The purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-IV). The obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances.", "84. The Court accepts that in principle a constitutional complaint under section 62 of the Constitutional Court Act is an effective remedy in respect of decisions ordering and extending detention, which has to be used in the context of complaints about the length of detention. 85. In the present case, the applicant made normal use of this remedy against the decision of the Supreme Court of 10 December 2007. The Constitutional Court declared this complaint inadmissible on the grounds that meanwhile a fresh decision on the applicant’s detention had been adopted.", "86. It follows that the applicant has raised the issue of the length of and grounds for his detention before the competent domestic authorities, thereby offering them the opportunity of preventing or putting right the violation alleged. 87. However, seeing that his constitutional complaint had failed, the Court considers it understandable that the applicant did not lodge a further constitutional complaint, as this would overstretch the duties incumbent on an applicant pursuant to Article 35 § 1 of the Convention (see, mutatis mutandis, Unión Alimentaria Sanders S.A. v. Spain, judgment of 7 July 1989, Series A no. 157, p. 13-14, § 35; Ullrich v. Austria, no.", "66956/01, § 29, 21 October 2004; and Antonić-Tomasović v. Croatia, no. 5208/03, § 33, 10 November 2005). 88. The Court, therefore, concludes that the applicant has complied with his obligation to exhaust domestic remedies. The Government’s objection must therefore be dismissed.", "89. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3(a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The parties’ arguments 90. The applicant argued that the grounds for ordering and extending his detention had been insufficient. 91. The Government argued that the reasons relied on by the national courts for ordering and extending the applicant’s detention – the danger of absconding and the gravity of the charges - had been relevant and sufficient.", "92. The Government also argued that, owing to the gravity of the charges against the applicant, his release could have caused public disorder. They explained that the applicant had been charged with war crimes against the civilian population and prisoners of war allegedly committed in Korenica, the town where he had lived prior to his arrest and that the case had been very sensitive for the population of that town. 93. They submitted further that the criminal proceedings against the applicant had been very complex since they had concerned a number of allegations of criminal activity on the part of two defendants and that the national authorities had displayed due diligence in their conduct of the proceedings.", "2. The Court’s assessment (a) Grounds for detention 94. The Court has repeatedly held that under the second limb of Article 5 § 3, a person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify his continuing detention (see Yağcı and Sargın v. Turkey, 8 June 1995, § 52, Series A no. 319-A). Moreover, the domestic courts “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 v. France, 26 June 1991, § 35, Series A no.", "207). 95. The Court notes that the applicant in the present case was detained between 4 December 2006 and 3 October 2008. His detention thus lasted one year, nine months and twenty-nine days. (i) Period between 4 December 2006 and 23 November 2007 96.", "In the period between 4 December 2006 and 23 November 2007, during investigation and the initial stages of the trial, the national courts, in addition to the nature of the crimes allegedly committed, justified the applicant’s detention by a reasonable suspicion that he had committed the criminal offences and the danger of absconding. (α) Reasonable suspicion that the applicant had committed a criminal offence 97. According to the Court’s settled case-law, the persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the authorities continued to justify the deprivation of liberty (see, among many other authorities, Bochev v. Bulgarie, no. 73481/01, § 55, 13 November 2008).", "98. In the present case the Court accepts that the applicant’s arrest and his initial detention were justified by a reasonable suspicion that he committed the criminal offence of war crimes against the civilian population. (β) Danger of absconding 99. The Court reiterates that such a danger cannot be gauged solely on the basis of the severity of the sentence risked. 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 detention pending trial (see Neumeister v. Austria, 27 June 1968, p. 39, § 10, Series A no.", "8, and Letellier, cited above, § 43). 100. In the present case the national courts gave reasons why in their opinion there was a danger of absconding. They explained that the applicant, after having allegedly committed the crimes he was indicted for, had lived for a long time in Serbia and had connections in that State. In view of the background of the criminal proceedings against the applicant, and that they concerned allegations of war crimes against prisoners of war in which both States were implicated, the Court accepts that the danger of absconding was a relevant and sufficient reason for ordering and extending the applicant’s detention in the period from 5 December 2006 to 23 November 2007.", "(ii) Period between 23 November 2007 and 3 October 2008 101. The Court notes that in their decisions extending the applicant’s detention for a period of ten months and ten days between 23 November 2007 and 3 October 2008 when the applicant was released, the national courts cited only the gravity and nature of the offences and the severity of the likely penalty. 102. At this juncture the Court reiterates that a court decision extending detention on such grounds requires a more solid basis to show not only that there was genuinely “a reasonable suspicion”, but also that there were other serious public-interest considerations which, notwithstanding the presumption of innocence, outweighed the right to liberty (see, among other authorities, I.A. v. France, 23 September 1998, § 102, Reports 1998-VII).", "The Court will now examine whether in the particular circumstances of the present case there existed serious public interests considerations which outweighed the right to liberty. 103. The Court’s assessment in that respect shall as a starting point have the statutory ground for the applicant’s detention under the relevant domestic law. The national courts relied on the ground under Article 102 § 1(4) of the Code of Criminal Procedure. That provision allows for detention where a reasonable suspicion exists that the defendant has committed a criminal offence carrying a sentence of at least twelve years’ imprisonment and where detention is justified by the modalities of the crime or other particularly serious circumstances of the offence.", "104. The Court has held that any system of mandatory detention is per se incompatible with Article 5 § 3 of the Convention, it being incumbent on the domestic authorities to establish and demonstrate the existence of specific circumstances outweighing the rule of respect for individual liberty (see Ilijkov, no. 33977/96, § 84, 26 July 2001; and Rokhlina v. Russia, no. 54071/00, § 67, 7 April 2005.) 105.", "As regards the statutory ground for the applicant’s detention the Court notes that the relevant domestic legislation does not provide for mandatory detention and was not applied in that manner in respect of the applicant. The applicant was charged with a number of very serious individual offences, amounting to war crimes against the civilian population. It was alleged that on many occasions in the period between 15 October 1991 and end of April 1992 he had inflicted various forms of ill‑treatment on prisoners of war, who were all civilians, by, for example, kicking them, beating them with wooden sticks, rods and chains on the head and body, and also by administering electric shocks until they lost consciousness, all of which resulted in numerous and grave injuries. These specific elements of the charges held against the applicant together with the fact that the criminal offence of war crimes against the civilian population is liable to up to twenty years’ imprisonment, in the view of the national courts justified the application of the ground under Article 102 § 1(4) of the Code of Criminal Procedure. 106.", "The Court has held that although the gravity of the offence and the severity of the sentence faced are relevant elements in the assessment of the need of detention, such need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view (see Ilijkov, cited above, § 81; Khudoyorov v. Russia, no. 6847/02, § 180, ECHR 2005‑X; and Belevitskiy v. Russia, no. 72967/01, § 101, 1 March 2007). 107. In this respect the Court reiterates that the ground for his extended detention, relied on by the national courts, was not the gravity of the offence in abstracto, but the particular gravity of the specific circumstances in the case at issue, as explained by the decisions of the national authorities ordering and extending the applicant’s detention and in particular the decisions of the Supreme Court of 26 February 2007 and 21 May 2008.", "The national courts, when extending the applicant’s detention did not use some pre-existing template or formalistic and abstract language (see, a contrario, Fırat v. Turkey, no. 37291/04, § 15, 30 June 2009). They explained in detail what were the exact charges held against the applicant and repeatedly stressed the nature of the offences, namely war crimes against the prisoners of war, allegedly committed in a prolonged period of time and causing severe and lasting consequences to the victims. In this connection the Court cannot completely ignore the argument put forward by the Government that the majority of the alleged victims lived in the same place as the applicant. 108.", "Therefore, taking into account the particular circumstances of the instant case, the Court considers that the severity of the anticipated penalty, taken in conjunction with the nature of the charges held against the applicant, relied on by the authorities, in the specific circumstances of the present case, had a particular relevance (see, by way of comparison, Dudek v. Poland, no. 633/03, § 38, 4 May 2006; and Getoš‑Magdić v. Croatia, no. 56305/08, § 86, 2 December 2010). 109. The Court reiterates in this respect also the case of Miernicki (see Miernicki v. Poland, no.", "10847/02, § 62, 27 October 2009) where it found that the applicant’s detention lasting two years, six months and thirteen days was not excessive. It held: “62. The applicant was charged with numerous counts of drug smuggling committed in an organised and armed criminal group (see paragraph 12 above). In the Court’s view, the fact that the case concerned a member of such a criminal group should be taken into account in assessing compliance with Article 5 § 3 (see Bąk v. Poland, no. 7870/04, § 57, 16 January 2007).” Likewise, in the present case the Court considers that the fact that the applicant was charged with war crimes against the civilian population he had allegedly committed over a longer period of time in an exceptionally cruel manner bears significance.", "110. In view of the fact that the applicant’s detention, on the grounds of the particularly grave manner in which the alleged offences had been committed and the severity of the anticipated sentence, lasted about ten months and the fact that charges against the applicant concerned the criminal offence of war crimes against the civilian population, and included very serious allegations of inflicting cruel forms of ill-treatment on a number of civilians taken as prisoners, the Court considers that the particular seriousness discloses the presence of such public interest considerations that it could accepted as a relevant and sufficient ground for the applicant’s detention in the period from 23 November 2007 to 3 October 2008 (see, by way of comparison the above-cited Dudek judgment, §§ 37 and 38; and Getoš-Magdić, cited above, § 91). (b) Conduct of the proceedings 111. It remains to be ascertained whether the national authorities displayed “special diligence” in the conduct of the proceedings. In this regard, the Court firstly observes that the criminal case at issue was a complex one.", "The Court takes note of the seriousness of the charges brought against the applicant. A large amount of evidence had to be examined in the course of the proceedings. The complexity of the case thus undoubtedly prolonged its examination and contributed to the length of the applicant’s detention (see, by way of comparison, Dudek, cited above, § 36). 112. The Court notes that the investigation commenced on 4 December 2006 and was concluded by the end of January 2007, thus lasting for less than two months, in which period the investigation judge heard evidence from a large number of witnesses and compiled a voluminous case file.", "The applicant was committed to trial on 31 January 2007 and the trial ended with his conviction on 3 October 2008, when the applicant was also released. The actual trial thus lasted one year, eight months and four days. 113. The Court further notes that the first hearings were scheduled for July 2007. The Court accepts that a certain amount of time was necessary for the trial court to prepare the trial.", "In view of the volume of the case file and the large number of relevant documents in it, the Court accepts that the fact that the first hearings were scheduled for July 2007, about five months after the indictment had been lodged, appears reasonable in the circumstances. These hearings were adjourned at the request of the applicant’s defence counsel, since the applicant had appointed new defence counsel shortly before the beginning of the hearings. The Court therefore accepts that the adjournment of the July hearings was attributable to the applicant and benefited his defence rights. 114. The first hearings were held at the beginning of September 2007 and after that further hearings were held at regular intervals (in January, March, July, September and October 2008).", "The Court also accepts that certain delays in the trial proceedings were caused by the applicant’s illness and surgery in April 2008 which, apart from the surgery itself, also included preparation for the surgery and post-surgical treatment in the period between 8 March and 16 September 2008 (see above, paragraphs 24-26). 115. In the Court’s view, the conduct of the criminal proceedings by the national authorities complied with the requirements of efficiency, and therefore the domestic authorities cannot be criticised for failure to observe “special diligence” in the handling of the applicant’s case. 116. In sum, the Court considers that there has been no violation of Article 5 § 3 of the Convention.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 117. The applicant further complained under Articles 6 and 13 of the Convention that the criminal proceedings against him had been unfair and that there was no effective remedy in that connection. 118. The Court notes that the criminal proceedings against the applicant are still pending and that therefore any complaint as to their unfairness as well as to the existence of an effective remedy in that respect is premature.", "119. It follows that the complaint under Article 6 of the Convention must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies and that the complaint under Article 13 of the Convention is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3(a) and 4 of the Convention. FOR THESE REASONS, THE COURT 1. Declares unanimously the complaint concerning the grounds for and duration of the applicant’s detention admissible and the remainder of the application inadmissible; 2. Holds by six votes to one that there has been no violation of Article 5 § 3 of the Convention; Done in English, and notified in writing on 31 May 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenAnatoly KovlerRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Nicolaou is annexed to this judgment. A.K.S.N. DISSENTING OPINION OF JUDGE NICOLAOU I very much regret that I am unable to share the view taken by my learned colleagues that there has been no violation of Article 5 § 3. The legal issue in the present case is essentially whether Article 102 § 1 (4) of the Code of Criminal Procedure could provide sufficient legal basis for detention during the pre-trial period. An affirmative answer was given by a majority judgment in the case of Getoš-Magdić v. Croatia, no.", "56305/08, §§ 80-96, 2 December 2010, where it was accordingly found that there was no violation of Article 5 § 3 of the Convention. A separate dissenting opinion of judges Rozakis, Malinverni and Nicolaou found otherwise, on the ground that detention on the stated basis was inconsistent with the Court’s case-law. The main part of the reasoning is contained in the following excerpt (at p.30): “The nature and the actual seriousness of the offences or the gravity of the charges brought, as well as the severity of the penalty that may imposed, are obviously relevant factors which may indicate, especially when the prosecution evidence is strong, that there is a risk of absconding or reoffending. In such a situation it is incumbent on the national judicial authorities to ascertain and evaluate the various elements and factors involved, to explain their conclusions and to give reasons for their decision to detain, or for their decision to grant bail on terms that exceed what may normally be expected. In doing so, they are expected to balance the recognized requirements of public interest that may justify detention against respect for individual liberty, which at that stage is reflected in the presumption of innocence.", "The constant case-law of the Court leaves no doubt that the seriousness of the offence, whatever form the offence may actually have taken, and the probable severity of sentence do not of themselves, without more, justify detention, at least after the initial period. Article 102 § 1 (4) does not, on the face of it, seem to require more. Accordingly, it cannot constitute a valid basis for detention”. While, therefore, precedent must be respected, there is a choice to be made when one is confronted with divergence. In my opinion the case of Getoš-Magdić v. Croatia (cited above) in no way diminishes the force of a mass of case-law going in the opposite direction; and it is to the principles it establishes that I must adhere.", "This, in my view, can only be expressed by a dissenting opinion, not a concurring one which would imply acceptance of Getoš-Magdić v. Croatia as binding authority." ]
[ "FOURTH SECTION CASE OF WRÓBLEWSKI v. POLAND (Application no. 11748/03) JUDGMENT STRASBOURG 4 March 2008 FINAL 04/06/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Wróblewski v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Stanislav Pavlovschi,Ljiljana Mijović,David Thór Björgvinsson,Ján Šikuta,Päivi Hirvelä, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 12 February 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "11748/03) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Adrian Wróblewski (“the applicant”), on 24 March 2003. 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 his detention on remand exceeded a “reasonable time” within the meaning of Article 5 § 3 of the Convention.", "4. On 11 October 2006 the President of the Fourth Section of the Court decided to communicate the complaint concerning the applicant’s pre-trial detention 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 Toruń. As it appears from the documents submitted, he is currently detained in the Toruń Remand Centre. 1. First set of criminal proceedings against the applicant and his detention on remand 6. On 29 August 2002 the applicant was detained and subsequently remanded in custody by the Chełmno District Court on charges of rape and murder by a detention order of 31 August 2002.", "The latter was upheld on 18 September 2002 by the Toruń Regional Court. 7. On several occasions, namely 25 November 2002, 25 February, 28 May, 29 September 2003 and 21 January 2004 the applicant’s pre-trial detention was prolonged. The Toruń Regional Court relied in its decisions on the reasonable suspicion that the applicant had committed the offences and on the severity of the likely sentence. According to its reasoning, the applicant’s detention was the only measure which could secure the proper conduct of the proceedings in view of the extensive body of evidence which was to be considered in the case.", "The court stressed that the evidence already collected in the case, including mechanoscopic and olfactory expert opinions, comparative hair analysis, testimonies of witnesses and an experimental reconstruction of the crime scene indicated a high probability that the applicant had committed the crimes. Moreover, a psychiatrist’s examination and the observation of the applicant in a mental institution had been ordered by the court, as well as a genetic and chemical comparative analysis of available evidence. The court further added that the applicant had a previous criminal record. 8. The applicant submitted that his appeals against some of the above decisions were dismissed by the Gdańsk Court of Appeal on 18 December 2002, 18 March, 11 June 2003 and 25 February 2004.", "9. On 19 May 2003 the Chełmno District Prosecutor lodged a bill of indictment against the applicant with the Toruń Regional Court. The prosecutor requested to have 14 experts and 56 witnesses summoned to testify. 10. On 10 July 2003 the first hearing in the applicant’s case was scheduled for 20 August 2003; however the start of the trial had to be postponed, since the applicant’s counsel had asked the court to relieve him of his duties.", "The newly ex officio appointed lawyer informed the court that he was not able to fulfil his duties, as he had earlier been appointed as counsel of the auxiliary prosecutors – the victim’s parents. The Toruń Regional Bar immediately appointed another lawyer at the request of the court. 11. On 1 August 2003 the applicant’s counsel requested that the composition of the court to hear the applicant’s case be decided by the drawing of lots. 12.", "On 28 November 2003 the court scheduled the first hearings for 22 and 23 December 2003. On 3 December 2003 a supplementary drawing of lots was necessary as one of the lay judges could not take part in the proceedings. 13. The first hearings before the Toruń Regional Court were held on 22 and 23 December 2003. 14.", "Between 3 March and 24 May 2004 the Toruń Regional Court held 14 hearings. On 24 May 2004 the applicant requested the withdrawal of the presiding judge. His motion was dismissed by the Toruń Regional Court on the same day. 15. Between 21 September and 23 November 2004 the Toruń Regional Court held 7 hearings.", "On 25 November 2004 the applicant’s detention on remand was extended until 28 February 2005. 16. Between 10 January and 20 June 2005 the Toruń Regional Court held 10 hearings. 17. On 23 June 2005 the Toruń Regional Court found the applicant guilty as charged and sentenced him to 25 years’ imprisonment.", "The judgment ran to 167 pages. 18. The applicant, the prosecutor, as well as the auxiliary prosecutors, appealed. 19. On 30 May 2006 the Gdańsk Court of Appeal quashed the judgment and remitted the case for re-examination to the Toruń Regional Court.", "The proceedings are still pending. The applicant is still in detention in respect of the charges against him. 2. Second set of criminal proceedings against the applicant 20. On 16 May 2002 the applicant was sentenced to 4 years and 6 months’ imprisonment for double rape.", "21. On 5 February 2003 the Regional Court upheld the first–instance judgment. 22. As it transpires from the Government’s submissions, which were not contested by the applicant, he was serving the sentence imposed between 10 June 2003 and 9 February 2004, as well as between 29 February 2004 and 9 September 2007. 3.", "Third and fourth sets of criminal proceedings against the applicant 23. As it further transpires from the Government’s submissions, which were not contested either by the applicant, between 9 and 29 February 2004 he was serving a term of imprisonment imposed on 17 May 1996 by the Nowe Miasto Lubawskie District Court in another set of criminal proceedings. 24. Moreover, during the period between 21 May 2003 and 10 June 2003 the applicant was serving a term of imprisonment imposed by the Grudziądz District Court on 11 April 2001 for drunk driving. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 25. The relevant domestic law and practice 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) are described 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. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 26. The applicant complained that the length of his detention on remand had been excessive. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 27. The Government contested that argument.", "A. Admissibility 28. 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 29. The applicant’s detention started on 29 August 2002, when he was arrested on suspicion of rape and murder. On 23 June 2005 the Toruń Regional Court convicted him as charged. As from that date he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and, consequently, that period of his detention falls outside the scope of Article 5 § 3 (Kudła v. Poland [GC], no.", "30210/96, § 104, ECHR 2000‑XI). On 30 May 2006 the Gdańsk Court of Appeal quashed the applicant’s conviction. Following that date his detention was again covered by Article 5 § 3. The applicant is currently detained in the Toruń Remand Centre awaiting trial. 30.", "However, between 21 May 2003 and 9 September 2007 the applicant served three prison sentences which had been imposed on him in three other sets of criminal proceedings. These terms, being covered by Article 5 § 1 (a), must therefore be subtracted from the period of the applicant’s pre-trial detention for the purposes of Article 5 § 3. Accordingly, the period to be considered amounts at present to 14 months. 2. The parties’ submissions (a) The Government 31.", "The Government argued that the applicant’s detention was in conformity with the reasonable time requirement of Article 5 § 3 of the Convention. It was duly justified by the gravity of the charges brought against him and the existence of substantial evidence pointing to his guilt. The Government also stressed that the case was very complex. They further submitted that, since the applicant had simultaneously been serving prison sentences imposed in three other sets of criminal proceedings (as of 21 May 2003), an earlier release from detention in the present case would not have resulted in his being released. (b) The applicant 32.", "The applicant disagreed and submitted that the length of his detention was excessive. 3. The Court’s assessment (a) General principles 33. The Court recalls that the general principles regarding the right “to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention were stated in a number of its previous judgments (see, among many other authorities, Kudła, cited above, § 110 et seq, ECHR 2000‑XI; and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further references).", "(b) Application of the above principles in the present case 34. In their detention decisions, the authorities, in addition to the reasonable suspicion against the applicant, relied principally on three grounds, namely (1) the severity of the penalty to which he was liable; (2) his previous convictions; and (3) detention was the only measure which could secure the proper conduct of the proceedings in view of the extensive body of evidence to be considered in the case. 35. The Court accepts that the reasonable suspicion against the applicant of having committed a serious offence could initially warrant his detention. 36.", "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 cited by the judicial authorities continue to justify the deprivation of liberty. 37. In view of the evidentiary proceedings, the courts considered it necessary to extend the applicant’s pre-trial detention, in order to prevent him obstructing the proceedings. According to the authorities, the likelihood of a severe sentence being imposed on him created a presumption that he might tamper with evidence, in particular by influencing witnesses’ testimonies. The courts further stressed that the evidence already collected in the case indicated a high probability that the applicant had committed the crimes he had been charged with.", "Moreover, the court had to order the applicant’s psychiatric observation in a mental institution (see paragraph 7 above). 38. Accordingly, the Court considers that in the particular circumstances of the case and in view of its above findings as to the total length of the applicant’s detention, the domestic courts gave relevant and sufficient reasons for the applicant’s detention. 39. It remains for the Court to ascertain whether the authorities, in dealing with the applicant’s case, displayed the diligence required under Article 5 § 3 (see Mc Kay, cited above, § 44).", "In this regard, it would observe that the proceedings were of considerable complexity, regard being had to the extensive body of evidence, including mechanoscopic and olfactory expert opinions, comparative hair analysis, and an experimental reconstruction of the crime scene (see paragraphs 7 and 9 above). Nevertheless, the hearings in the applicant’s case were held regularly and in short intervals. The course of the proceedings was swift and their length reasonable (see paragraphs 14, 15 and 16 above). The Court therefore concludes that the national authorities displayed diligence in the conduct of the proceedings. 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 judges’ efforts 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.", "40. In the circumstances, the Court finds that the authorities acted with all due diligence in handling the applicant’s case. 41. There has accordingly been no violation of Article 5 § 3 of the Convention. 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. Done in English, and notified in writing on 4 March 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident" ]
[ "FIRST SECTION CASE OF TALI v. ESTONIA (Application no. 66393/10) JUDGMENT STRASBOURG 13 February 2014 FINAL 13/05/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Tali v. Estonia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Julia Laffranque,Linos-Alexandre Sicilianos,Erik Møse,Ksenija Turković, judges,and Søren Nielsen, 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.", "66393/10) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Estonian national, Mr Andrei Tali (“the applicant”), on 7 November 2010. 2. The applicant was represented by Ms E. Ezhova, a lawyer from the Legal Information Centre for Human Rights, Tallinn. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs. 3.", "The applicant alleged, in particular, that he had been subjected to ill-treatment in breach of Article 3 of the Convention. 4. On 7 September 2012 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1977. He is serving a life sentence in prison. A. Background information about the applicant’s convictions and behaviour in prison 6. According to an extract from the register of convictions provided by the Government, the applicant had nine criminal convictions and one misdemeanour punishment on record.", "He was serving a life sentence on the basis of his conviction in 2001 for the murder of two people and attempted manslaughter of another person. Furthermore, he had several convictions for attacking prison officers and other prisoners. In addition, a large number of disciplinary punishments had been imposed on him in prison, including for disobeying orders of and threatening prison officers. In the individual action plans (kinnipeetava individuaalne täitmiskava) drawn up in Tartu Prison and in Viru Prison, the applicant was characterised as a dangerous person lacking in self-control and capable of physically attacking others. B.", "Events of 3 July 2009 7. On 3 July 2009 the applicant was informed by prison guard KA that he would be transferred to a punishment cell in the evening in order to serve a disciplinary punishment. The applicant was dissatisfied, as he had been led to understand that he would not have to serve the punishment in question until the resolution by the Chancellor of Justice (Õiguskantsler) of his complaint related to the matter. He said that he would not gather his belongings until he could clarify the situation with a security officer. KA told him that if he continued to object to going to the punishment cell, he would be taken there by force.", "The applicant replied that he would defend himself if unlawfully attacked. 8. At 5.45 p.m. KA, together with two further guards, MN and JT, went to the applicant’s cell. KA had a plastic shield and MN and JT wore flak jackets and helmets. KA moved towards the applicant, keeping the shield in front of him.", "MN and JT followed him. 9. According to the applicant, KA came up to him and pressed the shield into his chest while the two other guards added pressure from behind. The applicant tried to push back against the shield, while MN and JT tried to grab his hands. Then KA let the shield fall and tried to grab the applicant’s neck.", "The guards twisted his arms behind his back and ordered him to lie down on the floor. The applicant was brought down and KA pressed his neck so strongly that he lost his breath. According to the applicant, KA pinched his nose with his fingers, covered his mouth with his palm, pressed his knee into his neck and poked him in the eyes with two fingers. While on the floor, the applicant was handcuffed and kicked in the ribs so hard that he felt his left rib cracking. He was then raised up and escorted to the punishment cell.", "In the corridor the applicant lost his breath, cried that he could not breathe and asked for permission to straighten up but the guards pressed him down and continued on their way. 10. According to the prison guards, the applicant attempted to hit them and had a scuffle with KA, in the course of which the latter sustained minor injuries. They denied having kicked or strangled the applicant and submitted that he had subsequently threatened to kill them one by one. 11.", "In the punishment cell, two nurses came to examine the applicant. They suspected a broken rib and told him to lie still until an X-ray image was taken (for the medical evidence in the case, see paragraphs 21 to 27 below). A guard told them that a medical certificate was required to keep a mattress in the punishment cell around the clock. According to the applicant a nurse confirmed that such a certificate would be drawn up. C. Events of 4 July 2009 12.", "At 6.45 a.m. guard OV entered the applicant’s cell and told him to hand in the mattress. The applicant explained that the nurses had drawn up a certificate stating that he needed the mattress around the clock because his rib was broken. The guard left. 13. At around 8.00 a.m. guards AR, VG, RT and OV came to the applicant’s cell and told him to hand in the mattress.", "They had a discussion of some length, in the course of which the applicant requested that senior duty officer ML be called. Guard AR warned the applicant that force would be used if necessary. According to the statements of VG given in the subsequent criminal proceedings, the applicant threatened to kill them. The guards left and returned after about fifteen minutes. According to the Government the guards had in the meantime checked with the medical service that the applicant had not in fact been authorised to keep the mattress in the punishment cell.", "14. At around 8.30 a.m. six guards arrived at the applicant’s cell. AR and VG entered, four further guards remained in the corridor or stood at the door to the cell. 15. According to the applicant, AR came up to him, grabbed his left hand and told him that they were going to take the mattress from him.", "The applicant pulled his hand away and VG – unexpectedly and without any notice – sprayed pepper spray in his face while AR was attempting to twist his arm. The applicant ran out of the cell into the corridor, covering his face with his hands. Several guards attacked him from behind and he was forced down on the floor. He was repeatedly hit on the back after handcuffs had been put on him. After the applicant shouted that he could not breathe VG struck him a couple more times.", "He was then raised up off the floor, bent down and guided to the security room. According to the applicant, he fainted several times on the way because his injured rib caused him serious pain when being bent down. 16. The Government relied on the statements of the prison guards given in the subsequent criminal proceedings. All six prison guards present were interviewed in the criminal proceedings, either as suspects or witnesses.", "According to AR and VG, the applicant pushed AR when he attempted to take the mattress. Then VG used pepper spray. According to the statements of the guards, the applicant resisted strongly and was forced down on the floor in the corridor. According to VG, he struck the applicant, who was on all fours, three times with a telescopic baton in order to overcome his resistance and handcuff him. AR and RT were unable to give details about the blows inflicted by VG.", "Nor was OV initially able to provide such details, but at a second interview he stated that by the time he closed the handcuffs, the applicant had not yet been hit with the telescopic baton. AJ thought that the applicant had probably been handcuffed while he was being hit by VG. According to AT, the applicant had been handcuffed but had forcefully struggled and pushed VG with his shoulder, after which the latter had struck him one or two times without much force. 17. The applicant was then strapped to a restraint bed in accordance with the orders of duty officer ML, as he was still behaving aggressively and offering physical resistance to the officers.", "18. According to the applicant he was suffocating from the pepper spray in his throat but the guards pressed him to the bed, strangled him and did not let him spit. Finally he was allowed to spit and given the water he had asked for. 19. According to a report on the use of the restraint bed, the applicant was strapped to the bed from 8.40 a.m. to 12.20 p.m. His condition was monitored once an hour, when the necessity of the continued use of the means of restraint was assessed on the basis of his behaviour.", "20. The report contains the following entries. At 8.40 a.m., 9.35 a.m., 10.30 a.m. and 11.25 a.m.: “[use of the restraint measures] to be continued, [the applicant is] aggressive”. At 12.20 p.m.: “[use of the restraint measures] to be discontinued, [the applicant is] calm.” The report also contains an entry according to which medical staff checked on the applicant; the time of the medical check-up recorded on the copy of the report on file is illegible. D. Medical evidence 21.", "According to a medical certificate dated 3 July 2009 medical staff had been asked to establish the applicant’s injuries in the punishment cell. It was stated in the certificate that the applicant had no visible injuries but there was crepitation in the area of the seventh rib on the left side. A rib fracture was suspected. 22. According to two medical certificates dated 4 July 2009 the applicant was examined by nurse RK at 8.50 a.m. and at 12.20 p.m. after his release from the restraint bed.", "It is stated in the certificates that the applicant had no visible injuries and did not need medical assistance. According to the applicant these certificates were “fabricated” in order to cover up his beating and were in contradiction with other medical evidence. 23. On 4 July 2009 the applicant underwent an X-ray examination which revealed no clear traumatic changes. Photographs were taken of the haematomas (described below) on the applicant’s body.", "He gave a urine sample. Urine test results, dated 6 July 2009, showed red blood cells in the urine. 24. According to a medical certificate dated 6 July 2009 the applicant had three haematomas measuring 20 by 1.5 cm on his back, a haematoma with a diameter of 8 cm on his right upper arm, a haematoma with a diameter of 3 cm on the right shin, swelling to the left wrist, crepitation in the region of the eighth and the ninth ribs on the left side. The applicant complained that he had been beaten on the back by the guards, complained of pain in his back and said that his urine had been red.", "The doctor considered that providing the applicant with a mattress was justified. 25. An ultrasound scan of the applicant’s kidneys performed on 7 July 2009 revealed no signs of disease. 26. According to a medical certificate concerning the applicant’s examination in a punishment cell on 9 July 2009, there were haematomas on the applicant’s back and ribs.", "The applicant did not allow the doctor to touch him, was aggressive and demanded a mattress. However, the doctor considered that the applicant’s chronic lower back pain did not serve as a reason for him to have a mattress. She made a recommendation “for further referral to a psychiatrist”. 27. In a written explanation to the prison director by nurse RK, dated 21 July 2009, she submitted that she had been asked to examine the applicant, who had been strapped to the restraint bed on 4 July 2009.", "The applicant had complained, as he had already done on the day before, of pain in the chest under the ribs. The nurse and guards, as well as the applicant himself, had wiped his eyes with wet napkins. The nurse had issued a medical certificate stating that she had discovered no injuries on the applicant. At 12.20 p.m. on 4 July 2009, upon the applicant’s release from the restraint bed, she had again been asked to examine him. He had no complaints, save for the previously known complaint of pain in the lower part of his chest.", "The nurse had issued a certificate stating that she had not discovered any injuries and that the applicant had not needed medical treatment. On both occasions the examination had been carried out visually and the nurse had asked the applicant about his complaints. She had only noticed the haematomas on the evening of 4 July 2009. She had not noticed them before and had not carried out a more detailed examination because this had not been requested by the applicant. Based on her earlier experience with the applicant, the nurse had known that he was very demanding in respect of medical treatment.", "Thus, she had assumed that the applicant was not suffering from any serious conditions. E. Criminal proceedings concerning abuse of authority 28. On 7 July 2009 the Prisons Department of the Ministry of Justice started a criminal investigation into the applicant’s allegations of abuse of authority by prison guards. The investigation was carried out by Ida Police Headquarters. 29.", "On 8 July 2009 the applicant was interviewed as a victim. Between 7 and 28 July 2009 four guards (KA, MN, VG and JT) were interviewed as suspects. Six further prison officers (including OV), a prison doctor and a prisoner were interviewed as witnesses. Reports on the use of the special equipment and means of restraint (shield, helmets, flak jackets and handcuffs on 3 July 2009 and handcuffs and restraint bed on 4 July 2009), and written explanations to the prison director from prison officers involved in the incidents were also included in the criminal case file. 30.", "On 23 September 2009 prison guard OV was interviewed for the second time. 31. On 26 November 2009 the police requested additional information from the prison administration, including the applicant’s medical records and information about the telescopic batons used in the prison. 32. On 15 December 2009 the police ordered a forensic expert examination of the applicant’s injuries.", "The expert completed his report on 15 February 2010. He relied on the written materials in the criminal case file, including a report of the applicant’s interview, medical documents and photos of the haematomas on the applicant’s body. He was of the opinion that the stripe-shaped haematomas on the applicant’s back had resulted from blows struck with a blunt instrument such as a stick or a baton, possibly on 4 July 2009. The haematomas on the applicant’s upper arm and shin had resulted from blows struck with a blunt instrument or from the applicant’s body being slammed against it. The haematoma and crepitation in the region of the eighth and the ninth ribs may have resulted from a rib fracture, but that diagnosis could not be confirmed without an X-ray examination.", "The expert concluded that the injuries in question were not life threatening and usually caused short-term health damage lasting from four days to four weeks. 33. On 5 February 2010 the applicant was interviewed for the second time. 34. On 10 February 2010 the police ordered a forensic expert examination of video recordings from prison security cameras.", "The expert completed his report on 13 April 2010. Having obtained forty-eight magnified and processed images from the video recordings, he concluded that it was not possible to establish the exact time at which the applicant was hit. 35. On 15 June 2010 the police investigator discontinued the criminal proceedings. She considered that the use of force by the prison guards against the applicant on 3 and 4 July 2009 had been lawful, since he had not complied with their orders and had behaved in an aggressive manner.", "On 3 July 2009 he had refused to gather his belongings for his transfer to the punishment cell and had threatened to resist if force was used. On 4 July 2009 he had refused to comply with the prison’s internal rules and hand in his mattress. The guards had not denied that they had used force but had asserted that this had been the only way to overcome the applicant’s resistance. The applicant had attempted to escape and run out of the cell. Thus, the use of force had had a legal basis.", "It did not appear that VG had used the telescopic baton to deliberately cause injuries to the applicant. Nor could it be established that the force used by JT, VG, MN and KA had been excessive. They had countered an imminent attack after a more lenient response had not proved effective and the applicant had continued his resistance. 36. On 17 June 2010 the police investigator’s decision to discontinue the criminal proceedings was approved by a circuit prosecutor.", "37. On 25 August 2010 the State Prosecutor’s Office dismissed the applicant’s appeal. It considered that the use of force, special equipment and means of restraint had been caused by the applicant’s behaviour, that is to say his failure to comply with the orders given to him and his physical and verbal aggressiveness towards the prison officers. It relied on the applicant’s handwritten letter of explanation to the prison director, in which he had confirmed having said on 3 July 2009 that if the prison officers unlawfully attacked him, he would strike back. Furthermore, according to prison guard MN the applicant had threatened to kill them if force was used to transfer him to the punishment cell.", "Considering the applicant’s extremely aggressive resistance, it had been proportionate to use force to bring him down to the floor and to hold him there. 38. In respect of the events of 4 July 2009 the State Prosecutor’s Office referred to the statements of the suspects and witnesses, according to which the applicant had threatened the prison officers. It had been established that guard VG had used pepper spray after the applicant had pushed AR. The applicant had been engaged in an unlawful attack and the use of pepper spray against him had been lawful.", "Although the applicant’s subsequent running into the corridor could not be seen as an attempt to escape, it had still been possible that the situation might have got out of the prison officers’ control and they had had grounds to believe that the applicant would continue attacking them. To prevent such a scenario, the prison officers had legitimately acted in a quick and decisive manner, including through the use of the telescopic baton by VG. The incoherent statements of the witnesses as to the issue of whether the blows with the telescopic baton had been delivered before or after the applicant’s handcuffing did not allow for a firm conclusion to be made on that point. Nevertheless, based on the witness statements, the prosecutor considered it probable that the applicant had been hit before handcuffing. She also referred to the principle that any reasonable doubt should benefit the accused and considered that it had not been established that the prison guards had unlawfully used a weapon, special equipment or force against the applicant.", "In respect of the applicant’s being strapped to the restraint bed, the State Prosecutor’s Office concluded that the video recordings showed that after being handcuffed the applicant had remained aggressive and had offered physical resistance to the prison officers. 39. On 21 October 2010 the Tartu Court of Appeal dismissed the applicant’s complaint against the decision of the State Prosecutor’s Office. It found that it had been established that the applicant had offered resistance to the prison officers and therefore the use of special equipment and means of restraint had been legitimate. The court agreed with the position expressed in the decision of the State Prosecutor’s Office that the special equipment had been used to the extent it had been necessary to overcome the applicant’s resistance.", "Thus, there were no grounds to continue the criminal proceedings in respect of the prison officers. F. Administrative Court proceedings 40. On 6 August 2009 the applicant filed a claim for non-pecuniary damage with the prison administration for his inhuman and degrading treatment on 3 and 4 July 2009. The claim was dismissed and the applicant filed a complaint with the Tartu Administrative Court. 41.", "In a judgment of 8 March 2010 the Tartu Administrative Court found for the applicant. It declared the use of the means of restraint, special equipment and service weapons in respect of the applicant unlawful. The court found that although the applicant’s failure to comply with the orders given to him had undeniably constituted a threat to the general security of the prison, the use of handcuffs and his immobilisation had nevertheless not been justified, as there was no evidence and it had not been argued that the applicant had been armed or equipped with a dangerous item or that he had intended to escape or attack anyone. However, the court dismissed the applicant’s claim for compensation, considering that the use of means of restraint and special equipment had been caused, to a large extent, by the applicant’s own behaviour. He had disputed the officers’ orders, engaged in an argument with them, voiced threats and offered physical resistance.", "In these circumstances the finding of the unlawfulness of the prison’s actions constituted sufficient just satisfaction. 42. Both parties appealed against the Administrative Court’s judgment. The applicant claimed monetary compensation and the prison administration contended that the prison officers had not acted unlawfully. 43.", "At the hearing of the Tartu Court of Appeal on 22 September 2010 the applicant submitted, inter alia, that on 3 July 2009 he had been kicked in ribs once and that on 4 July 2009 he had been hit with a telescopic baton after he had already been handcuffed. Video recordings concerning both 3 and 4 July 2009 were played at the hearing. 44. By a judgment of 14 October 2010 the Court of Appeal quashed the Administrative Court’s judgment and dismissed the applicant’s complaint. It found that the use of the means of restraint, special equipment, physical force and service weapons had been lawful.", "The court considered that the prison had been authorised to use preventive measures in case of a probable threat. It noted that the applicant was serving a life sentence and had two further convictions for attacking prison officers. In January 2009 he had also threatened to kill a prison officer. 45. In respect of the events of 3 July 2009 the Court of Appeal noted that there was no dispute that the applicant had repeatedly refused to comply with the prison officers’ order to go to a punishment cell.", "Furthermore, he had offered physical resistance and caused minor injuries to KA. Therefore, physical force and handcuffs had been used. Considering the applicant’s unlawful and aggressive behaviour, threats to the prison officers and to the general security in the prison, as well as the short duration (fifteen minutes) of the use of the handcuffs, the Court of Appeal found that the use of handcuffs had not been unlawful. In respect of the use of force, the court found that there was no evidence to prove that the applicant had been kicked, strangled or poked in the eyes with fingers. According to the medical evidence there had been crepitation but no fractures of the ribs.", "The court considered that pain in the applicant’s chest that he had complained of could have resulted from his resistance, which had led to a scuffle and his being forced on the floor for handcuffing. 46. In respect of the events of 4 July 2009 the Court of Appeal considered it established that the applicant had displayed disobedience and threatened the prison officers. He had offered physical resistance against the guard who had attempted to take the mattress. Thus, the use of pepper spray had not been disproportionate or unlawful.", "Since the subsequent use of physical force had proved not effective, it had also been justified to use the telescopic baton in order to have the applicant handcuffed. The fact that the applicant had been aggressive at the time he was strapped to the restraint bed had also been proven by the video recording shown at the court hearing. 47. On 17 February 2011 the Supreme Court declined to hear the applicant’s appeal. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 48. Article 291 of the Penal Code (Karistusseadustik) stipulates that abuse of authority, that is unlawful use of a weapon, special equipment or violence by an official while performing his or her official duties, is punishable by a fine or by one to five years’ imprisonment. 49. Relevant domestic law and practice concerning the use of special equipment and means of restraint in prison has been summarised in the judgement of Julin v. Estonia (nos. 16563/08, 40841/08, 8192/10 and 18656/10, §§ 84‑90 and 94, 29 May 2012).", "III. RELEVANT INTERNATIONAL STANDARDS 50. For relevant international instruments concerning the use of instruments of restraint, see Julin, cited above, §§ 95-97, and Kummer v. the Czech Republic, no. 32133/11, §§ 40-43, 25 July 2013. 51.", "According to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction of 13 January 1993 (“the CWC”), tear gas is not considered a chemical weapon and its use is authorised for the purpose of law enforcement, including domestic riot control (Article II § 9 (d)). The CWC entered into force with regard to Estonia on 25 June 1999. 52. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) has expressed its concerns over the use of such agents in law enforcement. For example, in the report on its visit to Bosnia and Herzegovina (CPT/Inf (2009) 25) it noted: “79.", "... Pepper spray is a potentially dangerous substance and should not be used in confined spaces. Even when used in open spaces the CPT has serious reservations; if exceptionally it needs to be used, there should be clearly defined safeguards in place. For example, persons exposed to pepper spray should be granted immediate access to a medical doctor and be offered an antidote. Pepper spray should never be deployed against a prisoner who has already been brought under control. Further, it should not form part of the standard equipment of a prison officer.", "The CPT recommends that the authorities of Bosnia and Herzegovina draw up a clear directive governing the use of pepper spray, which should include, as a minimum: - clear instructions as to when pepper spray may be used, which should state explicitly that pepper spray should not be used in a confined area; - the right of prisoners exposed to pepper spray to be granted immediate access to a doctor and to be offered an antidote; - the qualifications, training and skills of staff members authorised to use pepper spray; - an adequate reporting and inspection mechanism with respect to the use of pepper spray.” Similar observations and recommendations were made by the CPT in paragraph 48 of the report on its visit to the Czech Republic (CPT/Inf (2009) 8). THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 53. The applicant complained of ill-treatment on 3 and 4 July 2009 by prison officers in breach of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 54. The Government contested that argument.", "A. General principles 55. As the Court has stated on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. It prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s conduct (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000‑IV, and Chahal v. the United Kingdom, 15 November 1996, § 79, Reports of Judgments and Decisions 1996‑V).", "56. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is 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 health of the victim (see, among other authorities, Peers v. Greece, no. 28524/95, § 67, ECHR 2001‑III, and Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).", "57. Thus, 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 the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, for example, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI, and Van der Ven v. the Netherlands, no. 50901/99, § 48, ECHR 2003‑II). In order for punishment or treatment 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, for example, V. v. the United Kingdom [GC], no.", "24888/94, § 71, ECHR 1999-IX, and Van der Ven, loc. cit.). 58. The use of handcuffs or other instruments of restraint does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with lawful detention and does not entail the use of force, or public exposure, exceeding what is reasonably considered necessary. In this regard, it is important to consider, for instance, the danger of the person’s absconding or causing injury or damage (see, among other authorities and mutatis mutandis, Raninen v. Finland, 16 December 1997, § 56, Reports 1997-VIII; Mathew v. the Netherlands, no.", "24919/03, § 180, ECHR 2005‑IX; and Kuzmenko v. Russia, no. 18541/04, § 45, 21 December 2010). 59. The Court is mindful of the potential for violence that exists in penal institutions and of the fact that disobedience by detainees may quickly cause a situation to degenerate (see Gömi and Others v. Turkey, no. 35962/97, § 77, 21 December 2006).", "The Court accepts that the use of force may be necessary on occasion to ensure prison security, and to maintain order or prevent crime in detention facilities. Nevertheless, such force may be used only if indispensible and must not be excessive (see Ivan Vasilev v. Bulgaria, no. 48130/99, § 63, 12 April 2007, with further references). Recourse to physical force which has not been made strictly necessary by the detainee’s own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see, among others, Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336; Vladimir Romanov v. Russia, no.", "41461/02, § 63, 24 July 2008; and Sharomov v. Russia, no. 8927/02, § 27, 15 January 2009). 60. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, cited above, § 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 under 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). 61.", "Where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see Klaas v. Germany, 22 September 1993, § 29, Series A no. 269). Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Matko v. Slovenia, no. 43393/98, § 100, 2 November 2006). Where allegations are made under Article 3 of the Convention, however, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch, cited above, § 32).", "B. Application of the principles to the present case 1. Events of 3 July 2009 Admissibility 62. The Court notes that the applicant’s complaint of ill-treatment on 3 July 2009 related to the force used by the prison officers in response to his refusal to comply with their order to move to a punishment cell. It can be understood on the basis of the available information that the applicant voiced threats against the guards, or at least explicitly declared his intention not to comply and, moreover, to even resist them (see paragraphs 7, 10 and 45 above).", "The Court notes that this was not denied by the applicant (see paragraph 37 above). Thus, in order to secure the fulfilment of the order, three prison officers went to the applicant’s cell in order to handcuff him and take him to the punishment cell. The Court notes that the prison officers only relied on the use of a shield, flak jackets and helmets, that is to say, measures of passive defence. 63. As regards the intensity of the force used against the applicant, the Court notes that the applicant did not deny that he had resisted the prison officers.", "Furthermore, he did not allege that he had been beaten but mentioned having been kicked in the ribs once (see paragraphs 9 and 43 above), whereas the prison guards denied having kicked the applicant at all (see paragraph 10 above). Overall, the applicant’s description of the events appears to refer to the use of immobilisation techniques by the guards rather than anything close to indiscriminate beating. The Court also notes in this regard that according to the medical evidence the applicant’s only injury established in connection with the confrontation on 3 July 2009 was the crepitation in the area of the seventh rib. A broken rib was initially suspected but this was not confirmed by an X-ray examination. No other injuries were mentioned (see paragraphs 11, 21 and 23 above).", "The Court considers that it is not called upon to determine the exact origin of the applicant’s chest injury – whether it originated in his having been abruptly forced to the floor, a kick from a prison officer or a combination thereof. Having had regard to all the information available to it including the findings of the domestic authorities in the criminal and administrative court proceedings, the testimonies concerning the applicant’s behaviour on 3 July 2009, the evidence related to his personality and prior behaviour and the medical evidence, the Court considers that the use of force on 3 July 2009 did not go beyond what may be considered necessary in the circumstances. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 2. Events of 4 July 2009 (a) Admissibility 64.", "The Court notes that the complaint about the applicant’s ill-treatment on 4 July 2009 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 parties’ submissions (α) The applicant 65. The applicant argued that he had been ill-treated by the prison officers on 4 July 2009 and that the ill-treatment in question had amounted to torture.", "The use of measures such as handcuffs, a telescopic baton, pepper spray and a restraint bed in relation to a single incident by a group of six prison officers had been entirely disproportionate. He submitted that he had been beaten, kicked and subjected to ill-treatment with pepper spray, as a result of which he had suffered intense pain over the course of several days. He also claimed that he had been traumatised by the experience and suffered from feelings of insecurity and helplessness. 66. The applicant contended that following the incident of 3 July 2009 he had had reason to believe that he was allowed to have a mattress in his cell on a permanent basis, based on his earlier medical examinations and the doctors’ opinions.", "67. The applicant disputed the Government’s argument that he had been aggressive and had offered physical resistance. There was no evidence to that effect. On the contrary, he had not been in a condition to put up a fight against prison officers, due to the fact that he had been disabled by the pepper spray. In fact, he had been choking and in agony.", "The use of pepper spray against prisoners was not allowed and the use of physical force against him while handcuffed and otherwise being beaten pointed to the disproportionate use of force. The applicant referred to the statements of prison officers OV and AJ, according to whom he had first been handcuffed and thereafter beaten with a telescopic baton. 68. The applicant argued that the medical evidence indicated that the ill-treatment he had been subjected to on 4 July 2009 amounted to torture. In particular, he referred to a broken rib, scratches, abrasions and bruises, crepitation in the area of the eighth and ninth ribs and blood in the urine.", "The ill-treatment had been particularly serious and cruel and capable of causing “severe” pain and both physical and mental suffering within the meaning of Article 3 of the Convention. (β) The Government 69. The Government noted at the outset that the day before the events constituting the immediate subject of the present case, the applicant had refused to comply with the prison officers’ lawful orders and had offered physical resistance to them. On 4 July 2009 he had again refused to comply with an order to surrender the mattress. It was not acceptable to allow a situation where a prisoner could argue with an officer about the lawfulness of an order or about whether the officer should or could give such an order.", "In the present case the order given to the applicant had been lawful, clear and easy to comply with. The subsequent events had been prompted by the applicant’s failure to obey a lawful order given by the prison officers. The Government also considered that the applicant’s personality, his prior behaviour and the real danger posed by him required to be taken into account. They pointed out that the applicant was a life prisoner convicted of the brutal murder of two people and attempting to kill a third victim. He had continued committing crimes, both against prison officers and others, during his time in prison.", "At the time of the events he had had 29 disciplinary punishments on record and according to the assessment in the individual action plans drawn up for the applicant in Tartu Prison and in Viru Prison he was a dangerous person. Thus, based on the applicant’s prior behaviour, he could be considered a high-risk prisoner whose unpredictable behaviour and instability could pose a serious danger to everybody in his vicinity. 70. The Government considered that the use of the means of restraint, special equipment and service weapons by the prison officers on 4 July 2009 had been lawful under sections 69, 70, 70-1 and 71 of the Imprisonment Act (Vangistusseadus). 71.", "The Government argued that the use of pepper spray by VG after the applicant had pushed AR had been lawful – as had also been found by the domestic courts – and the least injurious method available to the officers that would also allow them to get a dangerous prisoner under control and remove the danger posed. Nevertheless, as the prison officers had been unable to get the applicant under control, as he had still been actively resisting and disobeying the order to submit to the use of handcuffs, the use of a telescopic baton – a measure less damaging than a rubber baton – had been justified. Although it was not fully certain that the telescopic baton had been used prior to the applicant’s handcuffing, this had been deemed more likely by the domestic authorities. At the same time, there was no dispute that the applicant had refused to comply with the order to submit to the use of handcuffs and had struggled with the officers. In any event, the use of the telescopic baton could not be considered disproportionate and excessive in the circumstances of the case.", "Regard being had to the applicant’s physical resistance and his threats to the life and health of the prison officers, as well as his previous pattern of behaviour, the force used against the applicant had not gone beyond what had been strictly necessary. 72. In respect of the use of handcuffs, the Government also considered that it had been lawful and necessary in the circumstances. They pointed out that the handcuffs had only been used in respect of the applicant for a few minutes until he had been taken to the restraint bed. 73.", "As concerns the applicant being strapped to the restraint bed, the Government contended that it had been lawful and justified as a measure of last resort, as all the previous measures had not succeeded in calming down the applicant. The Government noted that the strapping of the applicant to the restraint bed had only lasted for three hours and forty minutes, staff had checked on an hourly basis whether it was possible to release the applicant, and his condition had been checked twice by a doctor. The Government emphasised that the means of restraint had not been punitive but rather had been a preventive measure applicable in situations where there was a danger to the person’s own life and health or that of others. In the present case, the applicant’s behaviour had been extremely aggressive and disturbing and his immediate return to a single-occupancy disciplinary cell would not have guaranteed his calming down or prevented him, for example, from punching the walls and causing serious additional injuries to himself and possibly others. Thus, the threat posed by the applicant to himself and to others had justified the measure being applied.", "The Government maintained that Article 3 had not been breached thereby. 74. The Government submitted, in conclusion, that the use of pepper spray, handcuffs, physical force and a telescopic baton against the applicant, as well as his being strapped to a restraint bed, on 4 July 2009 had not exceeded the level of severity or disproportionality necessary to amount to a violation of Article 3 of the Convention. (ii) The Court’s assessment 75. The Court notes at the outset that it is aware of the difficulties the States may encounter in maintaining order and discipline in penal institutions.", "This is particularly so in cases of unruly behaviour by dangerous prisoners, a situation in which it is important to find a balance between the rights of different detainees or between the rights of the detainees and the safety of the prison officers. 76. In the present case, the Court has had regard to the evidence provided by the Government in respect of the risk posed by the applicant (his convictions for murder, attempted manslaughter, attacks against prison officers and other prisoners, disciplinary punishments and his characterisation in the individual action plans, see paragraph 6 above). Thus, the Court accepts that the applicant’s character and prior behaviour gave the prison officers reason to be alert in relation to their safety and for taking immediate measures when the applicant displayed disobedience, threats and aggression towards them. The Court also notes that in two separate sets of domestic proceedings (criminal and administrative) the domestic authorities established after a thorough examination of the events that the applicant had behaved aggressively and that it had therefore been justified to take different measures to combat that aggression.", "77. The Court observes that the prison officers relied on the use of several immobilisation techniques and special equipment in respect of the applicant. Thus, in addition to physical force and handcuffs they also used pepper spray and a telescopic baton. The Court considers that the applicant’s injuries, such as haematomas on his body and blood in his urine (see paragraphs 23, 24, 26 and 32 above) indicate that a degree of force was used against the applicant. As regards the use of the telescopic baton, the Court notes that the domestic authorities were unable to establish with certainty – despite a thorough examination of the evidence, including the video recordings of the security cameras, both in criminal and administrative court proceedings – whether the applicant was hit with the baton before or after he had been handcuffed.", "The Court notes that it is in no better position than the domestic authorities to establish the exact factual circumstances relating to the use of the telescopic baton. 78. As regards the legitimacy of the use of pepper spray against the applicant, the Court refers to the concerns expressed by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) in respect of the use of such agents in law enforcement. According to the CPT pepper spray is a potentially dangerous substance and should not be used in confined spaces; if exceptionally it needs to be used in open spaces, there should be clearly defined safeguards in place. Pepper spray should never be deployed against a prisoner who has already been brought under control (see İzci v. Turkey, no.", "42606/05, §§ 40-41, 23 July 2013, and Ali Güneş v. Turkey, no. 9829/07, §§ 39-40, 10 April 2012; see also paragraph 52 above). The Court also notes that although pepper spray is not considered a chemical weapon and its use is authorised for the purpose of law enforcement, it can produce effects such as respiratory problems, nausea, vomiting, irritation of the respiratory tract, irritation of the tear ducts and eyes, spasms, chest pain, dermatitis and allergies. In strong doses it may cause necrosis of the tissue in the respiratory or digestive tract, pulmonary oedema or internal haemorrhaging (haemorrhaging of the adrenal gland) (see Ali Güneş, cited above, §§ 37-38, with further reference to Oya Ataman v. Turkey, no. 74552/01, §§ 17-18, ECHR 2006‑XIII; see also İzci, cited above, § 35, and paragraph 51 above).", "Having regard to these potentially serious effects of the use of pepper spray in a confined space on the one hand and the alternative equipment at the disposal of the prison guards, such as flak jackets, helmets and shields on the other, the Court finds that the circumstances did not justify the use of pepper spray. 79. Furthermore, the Court reiterates that it has had occasion to deal with a complaint concerning strapping of a prisoner to a restraint bed in the recent case of Julin v. Estonia (cited above). In that case, the Court assessed both the domestic law underlying the use of this measure and its practice and application in that particular case (see Julin, cited above, §§ 124-128). The Court notes that the events giving rise to the complaint about the use of the restraint bed in the case of Julin and those of the present case took place at approximately the same time and under the same domestic law.", "In Julin the Court found that the applicant’s strapping to the restraint bed for nearly nine hours had been in breach of Article 3 of the Convention. 80. The Government’s main argument in the present case was that the applicant had been strapped to the restraint bed for three hours and forty minutes, in other words for a considerably shorter period of time than the applicant in the case of Julin. Furthermore, the Government pointed out that, unlike in Julin, the report drawn up in the present case had confirmed that the applicant had been aggressive throughout the period of his being strapped to the bed (see paragraph 20 above). 81.", "However, the Court considers that these factors are not sufficient to distinguish the present case from Julin. While it is true that the period for which the applicant was strapped to the restraint bed was shorter in the present case, and the report on the use of the restraint bed describes the applicant as having been aggressive, and notes that his situation was assessed on an hourly basis and that he was also checked on by medical staff, the Court nevertheless does not consider that these factors rendered the use of the restraint bed a justified measure in the circumstances of the present case. The Court notes that the applicant’s behaviour was described as “aggressive” after a physical confrontation with prison officers. The Court reiterates, however, that means of restraint should never be used as a means of punishment, but rather in order to avoid self-harm or serious danger to other individuals or to prison security (see Julin, cited above, § 127). In the present case, the Court considers that it has not been convincingly shown that after the end of the confrontation with the prison officers the applicant – who had been locked in a single-occupancy disciplinary cell – posed a threat to himself or others that would have justified applying such a measure.", "Furthermore, the period for which he was strapped to the restraint bed was by no means negligible and the applicant’s prolonged immobilisation must have caused him distress and physical discomfort. 82. In view of the above and considering the cumulative effect of the measures used in respect of the applicant on 4 July 2009, the Court finds that the applicant was subjected to inhuman and degrading treatment in violation of Article 3 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 83.", "The applicant further complained of the authorities’ failure to carry out an effective investigation into his allegations of ill-treatment on 3 and 4 July 2009. He relied on Articles 3 and 13 of the Convention. 84. However, having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the cited provisions. 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 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 30,000 euros (EUR) in respect of non-pecuniary damage.", "87. The Government considered that as the Convention had not been violated in respect of the applicant, there was no basis for awarding any compensation. Furthermore, they submitted that, should the Court find a violation of the applicant’s rights, a finding of a violation would constitute sufficient just satisfaction, taking into account the aggressive and dangerous behaviour of the applicant himself. Should the Court nevertheless decide to make an award in respect of non-pecuniary damage, the Government called on it to determine a reasonable sum. 88.", "The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated solely by a finding of a violation. In view of the circumstances of the present case, and ruling on an equitable basis, it therefore awards the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax which may be chargeable on that amount. B. Costs and expenses 89. The applicant also claimed EUR 1,776.20 for costs and expenses incurred before the Court.", "90. The Government submitted that no award should be made in respect of legal expenses incurred in the domestic proceedings and that the administrative expenses had been calculated arbitrarily. In the event of a finding of a violation of the Convention, the Government left it for the Court to determine a reasonable sum to cover legal assistance in the proceedings before it. 91. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,776.20 covering costs and expenses under all heads. C. Default interest 92. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint concerning the alleged ill-treatment on 4 July 2009 admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 3 of the Convention on account of the applicant’s ill-treatment on 4 July 2009; 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 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,776.20 (one thousand seven hundred and seventy-six euros and twenty cents), 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 13 February 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]
[ "SECOND SECTION CASE OF BARIŞ v. TURKEY (Application no. 26170/03) JUDGMENT STRASBOURG 31 March 2009 FINAL 30/06/2009 This judgment may be subject to editorial revision. In the case of Barış 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 Françoise Elens-Passos, Deputy Section Registrar. Having deliberated in private on 10 March 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "26170/03) 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 national, Mrs İlkay Barış (“the applicant”), on 18 June 2003. 2. The applicant was represented by Mr H. Sağlam, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3.", "On 14 September 2007 the President of the Second Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1967 and lives in Istanbul.", "5. On 13 July 1992 the applicant was taken into police custody on suspicion of membership of the Revolutionary Left (the “DEV-SOL”), an illegal organisation. 6. On 28 July 1992 she was brought before a single judge at the Istanbul State Security Court who ordered her detention on remand. 7.", "On 18 September and 14 October 1992 and 26 May 1995, the public prosecutor at the Istanbul State Security Court filed three bills of indictment, charging the applicant with attempting to undermine the constitutional order, proscribed by Article 146 of the former Criminal Code. 8. The case against the applicant was joined to another brought against five other persons. On 28 September 1992 the first hearing before the Istanbul State Security Court was taken up with procedural matters. 9.", "By 24 December 2002 the applicant had made several requests for release pending trial to the Istanbul State Security Court. The court dismissed her requests on each occasion, having regard to the nature of the offence, the state of evidence and the content of the case file. 10. On 24 December 2002 the Istanbul State Security Court convicted the applicant as charged and sentenced her to death, subsequently commuted to life imprisonment. The State Security Court further ordered the applicant’s release from prison, having regard to the total amount of time that she had been in detention.", "11. On 28 April 2003 the Court of Cassation quashed the judgment of 24 December 2002. 12. On 15 November 2006 the Istanbul Assize Court convicted the applicant under Article 146 of the former Criminal Code and sentenced her to life imprisonment. 13.", "On 16 April 2007 the Court of Cassation upheld the judgment of the assize court. II. RELEVANT DOMESTIC LAW 14. Section 1 (d) of Article 141 of the new Law of Criminal Procedure (Law no. 5271), which was adopted on 4 December 2004 and entered into force on 1 June 2005, provides: “Persons who; ... d) have been lawfully detained but not brought before the legal authorities within a reasonable time and who have not been tried within such time,... during criminal investigation or prosecution may demand all pecuniary and non‑pecuniary damages they sustained from the State.” THE LAW I.", "THE GOVERNMENT’S PRELIMINARY OBJECTIONS 15. The Government asked the Court to dismiss the application for failure to exhaust domestic remedies, under Article 35 § 1 of the Convention. In this regard, they submitted that the applicant could have sought compensation pursuant to Articles 141 § 1(d) of Law no. 5271. 16.", "The applicant contested the availability and effectiveness of this remedy. 17. The Court reiterates that it has examined and rejected similar arguments previously within the context of Law no. 466 on the Payment of Compensation to Persons Unlawfully Arrested or Detained (see Bayam v. Turkey, no. 26896/02, § 16, 31 July 2007, and Yağcı and Sargın v. Turkey, 8 June 1995, § 44, Series A no.", "319‑A). The Court notes that although the scope of Law no. 5271 is wider than that of Law no. 466, in that the latter only entails an action for damages against the State in respect of detention undergone by persons who had been unlawfully detained or acquitted, the underlying idea remains the same, which is to provide a remedy against shortcomings in relation to the detention procedure by way of compensation. However, the Court has clearly established in the past that the right to be tried within a reasonable time or released during the proceedings is not the same as the right to receive compensation for detention; Article 5 § 3 of the Convention covers the former and Article 5 § 5 the latter (see Yağcı and Sargın, cited above, § 44).", "In other words, a claim for compensation as indicated by the Government would not make it possible to end detention of excessive length within the meaning of Article 5 § 3 of the Convention (see Tepe v. Turkey (dec.), no. 31247/96, 22 January 2002, and Sincar and Others v. Turkey (dec.), no. 46281/99, 24 March 2005) and therefore may not be considered an effective remedy in these circumstances. 18. In the light of the foregoing, the Court concludes that this objection cannot be upheld.", "19. The Court notes 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. II.", "ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 20. The applicant complained that her detention during the aforementioned judicial proceedings had exceeded the “reasonable time” requirement of Article 5 § 3 of the Convention, which provides as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 21. The Government maintained that the length of the applicant’s remand in custody had been reasonable. In particular, they submitted that the seriousness of the crime, the risk of escape or the committal of a further crime, together with the special circumstances of the case, had justified her continued detention pending trial.", "22. The applicant maintained her allegations and contested the Government’s arguments. 23. The Court observes that in the instant case the applicant’s detention began on 13 July 1992 when she was taken into police custody and ended on 24 December 2002 upon her release by an order of the Istanbul State Security Court. It thus lasted over ten years and five months.", "24. The Court has frequently found violations of Article 5 § 3 of the Convention in cases raising similar issues to those in the present application (see, for example, Dereci v. Turkey, no. 77845/01, §§ 34-41, 24 May 2005; Atıcı v. Turkey (no. 1), no. 19735/02, §§ 48-51, 10 May 2007; and Çarkçı v. Turkey, no.", "7940/05, §§ 18-21, 26 June 2007). 25. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court finds that the length of the applicant’s detention during judicial proceedings was excessive and contravened Article 5 § 3 of the Convention. 26.", "There has accordingly been a violation of this provision. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 27. The applicant complained of the length of the criminal proceedings brought against her. She relied on Article 6 § 1, which provides as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 28.", "The Government maintained that, in the circumstances of the present case, the criminal proceedings could not be considered to have been unreasonably long or to have been prolonged unnecessarily due to a fault attributable to the State. In this respect, they referred to the number of defendants, the complexity of the trial and the difficulties encountered in the collection of evidence and the notification process. The Government further submitted that the applicant had contributed to the prolongation of the proceedings by refraining from participating in a number of hearings. 29. The applicant maintained her allegations.", "30. The Court observes that the period to be taken into consideration began on 13 July 1992, when the applicant was arrested and taken into police custody, and ended on 16 April 2007, when the Court of Cassation delivered its final decision. The period under consideration thus lasted over fourteen years and nine months before two levels of jurisdiction. 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, and 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). 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 application (see, for example, Ege v. Turkey, no. 47117/99, § 25, 29 March 2005; and Gümüşten v. Turkey, no. 47116/99, §§ 24-26, 30 November 2004).", "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 application. In particular, the Government have not sufficiently substantiated how the applicant could be considered to have made any significant contribution to the prolongation of the trial. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 34.", "There has accordingly been a breach of Article 6 § 1 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 35. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 36.", "The applicant, an environmental engineer, claimed 157,080 euros (EUR) in respect of pecuniary damage for the loss of earnings incurred as a result of her detention on remand for an excessive length of time. She relied on the Chamber of Environmental Engineers’ recommended scale of fees in support of her claim. She further claimed EUR 30,000 in respect of non-pecuniary damage. 37. The Government contested these claims as speculative and fictitious.", "38. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards the applicant EUR 15,000 in respect of non‑pecuniary damage. B. Costs and expenses 39.", "The applicant also claimed EUR 6,175 in legal fees, calculated on the basis of the Istanbul Bar Association’s minimum fees list, and EUR 181 as costs and expenses, such as stationery, translation and postal expenses. She submitted various invoices to substantiate her costs and expenses but provided no additional documentation, such as a fee agreement with her representative. 40. The Government contested these claims. 41.", "According to the Court’s case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court notes that the applicant solely referred to the Istanbul Bar Association’s rates in relation to her claim for legal fees and failed to submit any supporting documents. The Court therefore only awards EUR 120 in respect of her documented costs and expenses. C. Default interest 42. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Articles 5 § 3 and 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into new Turkish liras at the rate applicable at the date of settlement: (i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 120 (one hundred and twenty 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 31 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosFrançoise TulkensDeputy RegistrarPresident" ]
[ "SECOND SECTION CASE OF JÁNOS TÓTH v. HUNGARY (Application no. 6841/07) JUDGMENT STRASBOURG 20 December 2011 This judgment is final but it may be subject to editorial revision. In the case of János Tóth v. Hungary, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Dragoljub Popović, President,András Sajó,Paulo Pinto de Albuquerque, judges,and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 29 November 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 6841/07) 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 János Tóth (“the applicant”), on 14 December 2006.", "2. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice. 3. On 8 February 2010 the President of the Second Section decided to give notice of the application to the Government. In accordance with Protocol No.", "14, the application was allocated to a Committee of three Judges. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1951 and lives in Budapest. 5. In or about November 1993 the applicant and his wife brought an action against several respondents before the Budapest XVIII/XIX District Court, seeking ownership of a real estate and protection against trespass.", "6. The District Court held numerous hearings between 27 June 1994 and 29 June 1995. 7. On 5 July 1995 the District Court delivered a partial judgment, dismissing the plaintiffs’ claim for protection against trespass. This decision was upheld on appeal by the Budapest Regional Court on 13 March 1996.", "8. On 8 June 1998 the District Court appointed an expert who filed an opinion on 29 November 1998. 9. The final first-instance judgment was delivered on 14 September 1999. On appeal, the Budapest Regional Court decided the case on 20 March 2002.", "10. The applicant lodged a petition for review with the Supreme Court. It quashed the previous judgments and remitted the case to the first-instance on 25 April 2005. 11. In the resumed proceedings the applicant notified the domestic courts that one of the respondents had died on 2 November 2002.", "On 22 February 2006 the Supreme Court thus established that the review proceedings had been discontinued on this account, and annulled its previous judgment of 25 April 2005 (see paragraph 10 above). The same day, the Supreme Court remitted the case to the first-instance. 12. Between 16 October 2007 and 12 March 2008 the proceedings were stalled because the applicant did not cooperate with a court-appointed expert. 13.", "On 16 May 2008 the case was transferred to the Buda Central District Court, due to bias of the judges at the Pest Central District Court. 14. On 12 December 2008 the latter court delivered a partial judgment. On 13 November 2009 the Budapest Regional Court held a hearing on appeal. It appears from the documents available in the case file that the case is still pending before the Regional Court.", "THE LAW 15. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention. The Government contested that argument. 16. The period to be taken into consideration began in November 1993 and the proceedings are still pending before the domestic courts.", "It thus lasted some seventeen years and ten months to date before three levels of jurisdiction. From this time, a period of ten months between April 2005 and February 2006 must be deducted as the applicant failed to notify the Supreme Court about the death of one of the respondents, thus requiring a new review procedure by the Supreme Court (see paragraph 11 above). Moreover, the five-month period during which the applicant hindered the proceedings (see paragraph 12 above) must also be deducted. The relevant duration is therefore sixteen years and nine months. In view of such lengthy proceedings, the application must be declared admissible.", "17. 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). 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. 18. The applicant further complained that the length of the proceedings complained of had infringed his right to the peaceful enjoyment of his possessions, as guaranteed by Article 1 of Protocol No. 1. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.", "However, having regard to its finding under Article 6 § 1 (see paragraph 14 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 1 of Protocol No. 1 (see Zanghì v. Italy, 19 February 1991, § 23, Series A no. 194‑C). 19. Relying on Article 41 of the Convention, the applicant claimed 42,614,153 Hungarian forints[1] (HUF) in respect of pecuniary damage and HUF 73,640,000[2] in respect of non-pecuniary damage.", "The Government contested the claim. Rejecting the claim for pecuniary damage, the Court considers that the applicant must have sustained some non-pecuniary damage and awards him, on an equitable basis, EUR 17,600 under this head. 20. The applicant also claimed HUF 4,825,497[3] for the costs and expenses incurred before the Court. The Government did not express an opinion on the matter.", "Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the applicant, who was not represented by a lawyer, the sum of EUR 500 in respect of all costs incurred. 21. 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 it is not necessary to examine the applicant’s complaint under Article 1 of Protocol No. 1; 4. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Hungarian forints at the rate applicable at the date of settlement: (i) EUR 17,600 (seventeen thousand six 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. Done in English, and notified in writing on 20 December 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Françoise Elens-PassosDragoljub Popović Deputy RegistrarPresident [1] 144,950 euros (EUR) [2] EUR 250,460 [3] EUR 16,420" ]
[ "FOURTH SECTION CASE OF MIRACLE EUROPE KFT v. HUNGARY (Application no. 57774/13) JUDGMENT STRASBOURG 12 January 2016 FINAL 12/04/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Miracle Europe Kft v. Hungary, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Vincent A. De Gaetano, President,András Sajó,Boštjan M. Zupančič,Paulo Pinto de Albuquerque,Krzysztof Wojtyczek,Egidijus Kūris,Gabriele Kucsko-Stadlmayer, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 1 December 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 57774/13) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian company, Miracle Europe Kft (“the applicant”), on 5 September 2013. 2. The applicant was represented by Mr D. Karsai, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice.", "3. The applicant alleged, in particular, that the court designated to hear its case was not a ‘tribunal established by law’ for the purposes of Article 6 § 1 of the Convention. 4. On 20 February 2015 this complaint was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant is a limited liability company registered under Hungarian law, with its seat in Budapest. 6. In a dispute concerning a construction project envisaged in public procurement, in January 2012 the applicant company brought an action in damages against a university. 7.", "The President of the territorially competent Budapest High Court requested the National Judicial Office (“NJO”) to reassign the case to another court of the same jurisdictional level. In the request the President provided particulars about the case to be reassigned and indicated the data and the circumstances which prevented the adjudication, within a reasonable time, of this case, deemed to be of high importance, by relying on, in particular, the case-load of judges hearing civil cases, significantly exceeding the national average. 8. The President of the NJO examined the case-load statistics of the Budapest High Court, including the volume of highly important and priority cases and the workload of judges hearing civil cases. She found that, in view of the short statutory time-limits, the adjudication of the case within a reasonable time could only be ensured by reassigning the case to another court.", "9. By requesting information from the President of the Zalaegerszeg High Court, the President of the NJO also examined the case-load and the operational conditions, including staff and facilities, of the Civil Division of the Zalaegerszeg High Court. On the basis of this information, the President of the NJO was satisfied that the reassignment of the case to the Zalaegerszeg High Court would not impose a disproportionate burden on that court. 10. For the sake of judicial economy as appreciated above, on 16 February 2012 the President of the NJO case assigned the case to the Zalaegerszeg High Court (decision no.", "29/2012. (II.16.) OBHE), acting within the powers conferred upon her by the law. 11. The Zalaegerszeg High Court heard the case and dismissed the claim on 5 June 2012.", "That decision was confirmed by the Pécs Court of Appeal on 18 September 2012, a ruling served on 12 October 2012. The latter’s territorial competence to hear the appeal was a consequence of the case having been assigned to the Zalaegerszeg High Court. 12. Meanwhile, on 17 September 2012 the National Judicial Council issued decision no. 58/2012 on “the guidelines to be observed in respect of case reassignment”.", "13. On 7 September 2013 the Kúria upheld the decisions of the High Court and the Court of Appeal in review proceedings. The courts held in essence that the applicant company’s perception according to which the university had unlawfully backed out of the investment contract (namely, the construction of a dormitory) was nothing more than a misconception of the law and a tendentious interpretation of the circumstances, and that the facts of the case did not reveal any compensation liability on the respondent’s side, for want of unlawfulness. 14. Meanwhile, on 13 December 2012 the applicant filed a constitutional complaint.", "It counted – and complied with – the statutory sixty-day time-limit to do so from the service of the final decision in the case, i.e. from 12 October 2012. It claimed firstly that the domestic courts had reached their decisions in an arbitrary manner and, secondly, that it was deprived of a “tribunal established by law”, since by decision no. 29/2012. (II.16.)", "OBHE the President of the NJO had reassigned the case from the originally competent court to the Zalaegerszeg High Court. 15. The constitutional complaint was declared inadmissible on 10 June 2013 (decision no. 3123/2013. (VI.", "24.) AB). The Constitutional Court held that the case as a whole did not reveal any arbitrariness or unfairness as such. As regards the specific complaint about the reassignment, it held that this issue was severable from the main procedure. It was of the view that the sixty-day statutory time-limit had run, in that respect, from the very reassignment decision of 16 February 2012 – rather than from 12 October 2012 as construed by the applicant – and for that reason this part of the motion was time-barred.", "16. On 2 December 2013 the Constitutional Court adopted decision no. 36/2013. (XII.5.) AB in the matter of reassignment, in pursuit of constitutional complaints originating in cases other than that of the applicant.", "It held that the regulations which entitled the President of the NJO to reassign cases among courts (notably, sections 62 and 63 of Act no. CLXI of 2011 on the Organisation and Administration of Courts, as in force between 1 January and 16 July 2012, see paragraph 20 below) had been unconstitutional and in violation of Article 6 of the Convention. According to the Constitutional Court, the right for one’s “natural” (lawful) judge flows from the right to have one’s case examined by a court “established by law” and requires that a case be heard by a judge belonging to the court with competence and territorial jurisdiction and designated by the pre-established objective rules of case assignment of that court. In the Constitutional Court’s view, the impugned regulations, which had conferred responsibility for the reassignment of cases, at least in the material period, entirely on the President of the NJO, had been in breach of those principles. Moreover, it had violated the requirement of the appearance of impartiality.", "The Constitutional Court also held that the lack of a remedy against the decision of the President of the NJO had violated the Fundamental Law, as well as Article 13 of the Convention. The Constitutional Court did not prescribe any particular legal consequence of this decision for the ongoing procedures concerned by re-assignment. Consequently, the Constitutional Court’s decision did not invalidate any reassignment decisions taken previously (see paragraphs 19 and 24 below). II. RELEVANT DOMESTIC LAW 17.", "The Act on the Transitional Provisions of the Fundamental Law[1] provided as follows: Section 11 “(3) In order to guarantee the right to trial within a reasonable timeframe, as provided in Article XXVIII(1) of the Fundamental Law, the President of the National Judicial Office may assign any case to a court at an equal level but outside the normal court’s jurisdiction, if the caseload across courts is not balanced. (4) In order to guarantee the right to trial within a reasonable timeframe, as provided in Article XXVIII(1) of the Fundamental Law, the Public Prosecutor, as the leader and manager of the Office of the Prosecutor based on Article 29 of the Fundamental Law, may assign any case to a court at an equal level but outside the normal court’s jurisdiction, if the caseload across courts is not balanced. This does not impact the right of the President of the National Judicial Office as granted in paragraph (3) and the right of the prosecution to assign a case to any court within their jurisdiction.” 18. The Fundamental Law, as in force between 1 April and 1 October 2013[2], provided as follows: Article 27 “(4) In the interest of the enforcement of the fundamental right to a court decision within a reasonable time and a balanced distribution of caseload between the courts, the President of the National Judicial Office may designate a court, for cases defined in a cardinal Act and in a manner defined also in a cardinal Act, other than the court of general competence but with the same jurisdiction to adjudicate the case.” 19. The Constitutional Court Act provides as follows: Section 45 “... (3) The annulment of a legal provision does not ... concern the [previously] created legal relationships or the rights and obligations flowing from them.", "(4) The Constitutional Court may depart from [the previous paragraph] when deciding on the annulment of a legal provision contrary to the Fundamental Law or on the inapplicability of the annulled legal provision in general, or in concrete cases, if this is justified by the protection of the Fundamental Law, by the interest of legal certainty or by a particularly important interest of the entity initiating the proceedings.” 20. Act no. CLXI of 2011 on the Organisation and Administration of Courts provides as follows: Section 8 “(1) No one may be deprived of his lawfully appointed judge. (2) A lawfully appointed judge is the judge assigned to a specific case under the work schedule of the court having competence and jurisdiction in the case.” Section 62[3] “(1) The President of the National Judicial Office may exceptionally designate a court other than the territorially competent one (provided that the two have the same competence) to deal with a case, if the case – or a group of cases received by the [originally competent] court in a given period – cannot be heard within a reasonable time in any other way on account of the exceptional and disproportionate workload of the [originally competent] court, provided that such a designation does not impose a disproportionate burden on the designated court. (2) Such a designation can be initiated by the president of the court of appeal or of the high court or by the Attorney General within 15 days from the receipt of the case.", "(3) In the motion to initiate the designation, the reasons for which the case ... cannot be heard within a reasonable time must be outlined, together with such information on staffing and case influx as proves the exceptional and disproportionate workload of the [originally competent] court.” Section 63[4] “(1) [By relying on the principles determined by the National Judicial Council (Országos Bírói Tanács)][5] the President of the NJO shall, within 8 days from receipt of the motion, examine whether in light of the case flow, the personnel and other data and of the specific features of the case affected by the reassignment, the motion is well-founded and shall examine to which court the case may be reassigned. The President of the NJO shall consult the court to which the case is reassigned – in criminal cases the Chief Public Prosecutor, if the motion has been filed not by the Chief Public Prosecutor – and may request data or opinion from any court; such requests shall be complied with immediately. (2) The President of the NJO shall, within 8 days from receipt of the opinions and data referred to in subsection (1) decide on the reassignment by refusing the motion in case it is ill-founded or by reassigning the case to another court in case the motion is well-founded. In the decision, the President of the NJO shall explain how the principles determined by the NJO were applied. (3) A party affected by the reassignment may file an appeal against the decision on the reassignment within 8 days from the publication of the decision on the courts’ official website and on the central website.", "(4) ... The appeal shall be adjudicated by the Kúria in non-litigious proceedings within 8 days. ... (5) ... If the decision on the reassignment is not in conformity with those rules of this Act which govern the reassignment of cases, the Kúria shall quash the decision. A decision on the reassignment of a case may not be modified by the Kúria.” [6] 21.", "Constitutional Court decision no. 36/2013. (XII.5.) AB of 2 December 2013 (adopted by seven votes to seven with the casting vote of the President) contains the following passages: “[32] According to Article XXVIII (1) of the Fundamental Law and Article 6 § 1 of the Convention, everyone is entitled to a hearing by a tribunal established by law. The requirement of a tribunal “established by law” incorporates the right to a lawful judge, ... [who is] the judge belonging to the court with competence and jurisdiction and designated by the pre-established objective rules of case-assignment of that court.", "... [34] ... The designation of a court for the trial – and this entirely at the discretion of the President of the NJO – resulted in the violation of the right to a lawful judge, flowing from Article XXVIII (1) of the Fundamental Law that enshrines the requirement of a fair trial ... [38] ‘... The requirement of timeliness is only one of the elements of a fair trial and its enforcement cannot be taken to the extreme; it cannot prevail over other elements of fair trial and, most importantly, cannot be applied to the detriment of other fundamental rights’ [Constitutional Court decision no. 20/2005. (V.26.)", "AB]. ... [41] In its decision no. 166/2011. (XII.20.) AB concerning, among other issues, the principle of nullum iudicium sine lege, the Constitutional Court emphasised (having regard to the case-law of the [European] Court [of Human Rights] that ‘the reassignment of a particular group of cases from a court proceeding under the general jurisdiction rules to the jurisdiction of another court may only be compatible with the Convention if the substantive and procedural rules and preconditions of such a reassignment are laid down by the lawmaker in transparent, pre-determined, clear and objective parameters leaving no (or minimal) room for discretion and ensuring that the actual decision is taken by the own institutions of the independent, impartial court system.’ ... [43] Therefore, the Constitutional Court held that the [impugned provisions] were also incompatible with Article 6 § 1 of the Convention.", "[61] Since in the present case the lawmaker did not allow appeal against a decision which affected the fundamental rights of the persons concerned (in particular, their rights to a fair trial, as explained above), the Constitutional Court held that the provision was unconstitutional and also violated an international treaty, in that it was neither compatible with Article XXVIII (7) of the Fundamental Law nor with Article 13 of the Convention. [62] As a matter of principle, a declaration of unconstitutionality results, by the force of law, in the non-applicability of [the impugned provisions] in the cases which were at the origin of the Constitutional Court’s proceedings. For this reason, the Constitutional Court did not have to rule on this question separately.” 22. On 17 September 2012 the National Judicial Council decided (Resolution no. 58/2012.", "(IX.17.) OBT) that only the courts whose workload exceeded the national average from three perspectives conjointly (number of cases per judge, the proportion of cases pending over two years and the proportion of high-profile/priority cases) were entitled to request reassignment. 23. The Government submitted three cases, in which the Kúria decided on appeals against reassignments. Decision no.", "Kpkf.37.584/2012/2 contains the following passages: “... [The law] specifies reassignment as an exceptional institution which may only affect courts having the same competence in respect of cases making the effective and timely adjudication of court proceedings pending before a court difficult, due to their complexity. In the decision affected by the remedy, the President of the NJO may, and did, take into account only courts having the same competence and fitting the forum system. ... Thus the decision ... did not create a so-called separate court for the adjudication of the individual case which might have resulted in a fundamental breach of the right to a lawfully appointed court. ... Based on numbers and statistical data it can be established that the “high-priority” caseload of judges of the Budapest High Court is several times higher than at other tribunals.", "Since the challenged decision was taken prior to the assignment of the case to the judge actually adjudicating the case, ... the defendant’s right to his “natural” judge could obviously not be limited by the decision of the President of the NJO. Following the reassignment, the assignment of the case to the judge proceeding in the case took place according to the pre-arranged work schedule accessible to clients.” 24. The summary of case no. Bkk.I.519/2014., published by the Kúria on 16 May 2014, contains the following passages: “... [A]bove all, the question to decide was whether the ordinary court, whose jurisdiction is based on an already repealed provision that had been found, by the Constitutional Court, unconstitutional and in breach of [the Convention], can itself conclude that the unconstitutional provision had not been applicable in the ongoing proceedings, even if neither the Constitutional Court nor the lawmaker specified a consequence of that kind. ... Annulation of a law [by the Constitutional Court] ... does not prejudice legal relationships and ensuing rights and obligations established before or on the day of the decision’s publication – except when the Constitutional Court explicitly orders the review of the criminal ... proceedings.", "... In the absence of any specific Constitutional Court instructions in this respect, the declaration of unconstitutionality of the (already repealed) provisions that made possible for the President of the NJO to designate the competent court does not affect the validity of the decisions adopted on the basis of those provisions.” 25. Decision no. Bkk.III.494/2014/4. of the Kúria, adopted on 23 April 2014, contains the following passages: “[The Kúria shall decide on the question of jurisdiction] if two courts both refuse to hear the case for want of jurisdiction, but they do not consider the other court competent reciprocally and it is only one of them who deems the other one competent.", "... According to section 20 (3) of the Code of Criminal Procedure, a court shall be designated by the Kúria to hear/try the case if the circumstances defining the jurisdiction are unclear. ... In that case, jurisdiction will be based on the decision of the Kúria. ...", "In the present case, the Kúria adopted its decision [assigning the case to the court designated previously by the President of the NJO] with regard to [the principle of pre-emption]. The former assignment decision of the President of the NJO and the decision of the Constitutional Court are both immaterial in this procedural situation. ... The existence of a procedural act may only be set aside ... if the invalidation was explicitly directed on it. ...", "Thus, the fact that the [court designated by the President of the NJO] already conducted a part of the proceedings cannot be ignored; it forms the basis for the application of the principle of pre-emption.” III. WORK OF the European Commission for Democracy through Law (“the Venice Commission”) 26. Document CDL-AD(2012)001[7] contains the following passages: “The Commission fully acknowledges the need to establish an efficient and operational administration of justice. However, the Commission has serious doubts about the reform model chosen, which concentrates these very large competences in the hand of one individual person, the President of the newly established National Judicial Office (NJO)[8]. States enjoy a wide margin of appreciation when establishing a system for the administration of justice and a variety of models exist in Europe.", "However, in none of the member states of the Council of Europe have such important powers been vested in a single person, lacking sufficient democratic accountability. In countries where the Minister for Justice appoints judges, the Minister is directly accountable to Parliament, has a shorter mandate and tends to be personally involved only in the most important cases. Even if most of the competences of the President of the NJO do not relate to decision-making in individual cases, many of the powers listed above are closely related to the position of the judge who makes these decisions. The President of the NJO is not only a strong court “administrator”, he or she also intervenes very closely in judicial decision making through the right of transferring cases to another court, his or her influence on individual judges and on the internal structure of the judiciary. In contrast, the President of the NJO has abundant competences and, hence, is the main actor in judicial administration.", "However, the mere fact that only judges are eligible as President of the NJO, does not make the latter an organ of judicial self-government. Instead, this would imply that the judges have a decisive vote in his/her election. Since the President of the NJO is elected by Parliament, i.e. an external actor from the viewpoint of the judiciary, it cannot be regarded as an organ of judicial self-government. Allocation of cases The allocation of cases is one of the elements of crucial importance for the impartiality of the courts.", "With respect to the allocation of cases, the Venice Commission - in line with Council of Europe standards[9] - holds that “the allocation of cases to individual judges should be based on objective and transparent criteria established in advance by the law. [10] According to the ECtHR’s case-law, the object of the term “established by law” in Article 6 ECHR is to ensure “that the judicial organisation in a democratic society [does] not depend on the discretion of the Executive, but that it [is] regulated by law emanating from Parliament”. [11] Nor, in countries where the law is codified, can the organisation of the judicial system be left to the discretion of the judicial authorities, although this does not mean that the courts do not have some latitude to interpret the relevant national legislation. [12] Together with the express words of Article 6 ECHR, according to which “the medium” through which access to justice under fair hearing should be ensured must not only be a tribunal established by law, but also one which is both “independent” and “impartial” in general and specific terms [...], this implies that the judges or judicial panels entrusted with specific cases should not be selected ad hoc and/or ad personam, but according to objective and transparent criteria. [13] The order in which the individual judge (or panel of judges) within a court is determined in advance, meaning that it is based on general objective principles, is essential.", "It is desirable to indicate clearly where the ultimate responsibility for proper case allocation is being placed. In national legislation, it is sometimes provided that the court Presidents should have the power to assign cases among the individual judges. However, this power involves an element of discretion, which could be misused as a means of putting pressure on judges by overburdening them with cases or by assigning them only low-profile cases. It is also possible to direct politically sensitive cases to certain judges and to avoid allocating them to others. This can be a very effective way of influencing the outcome of the process.", "[14] Furthermore, Section 76.4.b AOAC enables the President of the NJO to designate another court based on the vague criterion of “adjudicating cases within a reasonable period of time”. This relates to Articles 11.3 and 11.4 of the Act on Transitional Provisions of 30 December 2011, which were adopted on the constitutional level in order to overcome the annulment of a similar provision on the legislative level by Constitutional Court judgment no. 166/2011 of 20 December 2011. The Constitutional Court had found that provision contrary to the European Convention on Human Rights. The fact, that some courts in Hungary are so small that the designation of such a court would effectively amount to the designation of a single judge or a special chamber, further adds to this.", "Even though the reasonable time requirement is part of both Article XXVIII Fundamental Law and Article 6.1 ECHR, it is not absolute, but forms a field of tension with the often conflicting right to a fair trial with respect to the fact that having and exercising more procedural rights necessarily goes hand in hand with a longer duration of the proceedings. [15] Taking into account the importance of the right to a lawful judge for a fair trial, the state has to resort to other less intrusive means, in particular to provide for a sufficient number of judges and court staff. Solutions by means of arbitrary designation of another court cannot be justified at all. In order to prevent the risk of an abuse of the power to allocate and to bring the provisions in line with Article 6 ECHR, the Venice Commission recommends that the Hungarian authorities use other mechanisms for the distribution of cases, especially those outlined by the Venice Commission as follows: “In order to enhance impartiality and independence of the judiciary it is highly recommended that the order in which judges deal with the cases be determined on the basis of general criteria. This can be done for example on the basis of alphabetical order, on the basis of a computerised system or on the basis of objective criteria such as categories of cases.", "The general rules (including exceptions) should be formulated by the law or by special regulations on the basis of the law, e.g. in court regulations laid down by the presidium or President. It may not always be possible to establish a fully comprehensive abstract system that operates for all cases, leaving no room to decisions regarding allocation in individual cases. There may be circumstances requiring a need to take into account the workload or the specialisation of judges. ...", "The criteria for making such decisions by the court President or presidium should, however, be defined in advance[16] on the basis of objective criteria. Workload statistics provide objective statistical data, but they are not sufficient as a basis for the decision on transferral, since they do not contain criteria for the selection of certain cases for transferral or for the selection of the individual receiving court. In order to prevent any risk of abuse, court Presidents and the President of the NJO should not have the discretion to decide which cases should be transferred or to select the ‘sending’ or ‘receiving’ courts. In addition, any such case allocation should be subject to review in order to take into account possible harsh situations where persons without the means to come to a court that is far away from their home town. There may therefore be a basis for an objective system (even though it seems that in the present case, the nine cases were not assigned to one of the least burdened courts).", "The real problem lies in the selection of some cases, which are transferred, and in the lack of any justification, why it was just these cases that were selected. The Commission delegation was indeed informed that one of the cases transferred was a highly sensitive one of alleged political corruption.” 27. Document no. CDL(2009)055 contains the following passages: “68. Many European constitutions contain a subjective right to a lawful judge.", "As a rule, the guarantee is worded in a negative way, such as in the Constitution of Belgium: “No one can be separated, unwillingly, from the judge that the law has assigned to him.” (Article 13) or Italy: “No one may be removed from the normal judge predetermined by law”. [17] Other constitutions state the “right to the lawful judge” in a positive way such as the Constitution of Slovenia: “Everyone has the right to have any decision regarding his rights, duties and any charges brought against him made without undue delay by an independent, impartial court constituted by law. Only a judge duly appointed pursuant to rules previously established by law and by judicial regulations may judge such an individual.”[18] THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 28. The applicant complained that it did not have a fair hearing in that the court which had been designated to hear its action could not be regarded as an independent and impartial tribunal established by law.", "It relied on Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” 29. The Government contested that argument. A. Admissibility 30. The Government argued that the application was inadmissible for failure to exhaust domestic remedies. In particular, the applicant had failed to file a motion for bias against the judges to whom its case had been assigned, if it had any doubts as to their impartiality.", "31. The applicant argued that a motion for bias was not a remedy with a bearing on the objectivity of the reassignment or on the ensuing appearance of lack of impartiality on the part of the assignee court. 32. The Court agrees with the applicant’s position, observing that the key issue in the case was not the impartiality of the assignee judges. The question of a motion for bias cannot, therefore, be considered pertinent in this context.", "33. Furthermore, the Government claimed that the applicant had not exhausted domestic remedies in that its constitutional complaint, in its part going to the reassignment matter, had been introduced belatedly. The applicant contested this view, calling into question the effective character of the constitutional complaint as a remedy. 34. The Court recalls that the only remedies which Article 35 § 1 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient.", "The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these conditions are satisfied (see, among other authorities, McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010). The application of the rule 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 set up. Accordingly, the Court has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism and that the rule of exhaustion 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 individual case (see Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996 IV).", "An applicant who has availed himself of a remedy capable of redressing the situation giving rise to the alleged violation, directly and not merely indirectly, is not bound to have recourse to other remedies which would have been available to him but the effectiveness of which is questionable (see Manoussakis and Others v. Greece, 26 September 1996, § 33, Reports 1996-IV, and Anakomba Yula v. Belgium, no. 45413/07, § 22, 10 March 2009). 35. In the present case, the Court observes that the applicant pursued a constitutional complaint which included the issue of reassignment as a question of the constitutional right to a fair hearing. Assuming that this was an effective remedy in the circumstances, the Court is therefore satisfied that the applicant had brought to the attention of the authorities its alleged grievance, thereby securing an opportunity for them to redress the issue.", "When arguing non-exhaustion, the Government have not pointed to any relevant legal provision or jurisprudence according to which the reassignment issue was a matter mandatorily to be severed from the fairness of the main procedure. The Court therefore considers that the applicant could reasonably expect that a comprehensive constitutional complaint introduced within the statutory time-limit counted from the service of the second-instance decision which includes the reassignment aspect will be entertained by the Constitutional Court as a whole, offering a reply to all the issues with bearing on the fairness of the procedure. For the Court, the fact that the Constitutional Court eventually severed the reassignment decision from the main procedure and sanctioned a different time-limit in that respect was not foreseeable in the least and cannot be reproached to the applicant with the benefit of hindsight. 36. In light of the above, the Court is of the view that the application cannot be rejected for non-exhaustion of domestic remedies.", "The Court further finds that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The applicant’s submissions 37.", "The applicant submitted that the domestic courts had reached their decisions in an arbitrary manner since they had erred in facts, law and deductions. 38. With regard to the independency and impartiality of the tribunal, the applicant observed that the objectivity and transparency of the procedure had not been ensured, because the reassignment of the case had occurred at the discretion of the President of the NJO. Because the rules on reassignment were not sufficiently clear, the court hearing the applicant’s case was not “tribunal established by law”. The case was not particularly complex, so it would not have created an excessive workload for the original court had it stayed with that one.", "39. Furthermore, the fact that the legal basis for the reassignment was eventually declared unconstitutional (see paragraph 16 above) proved that there was no “tribunal “established by law” in the present case. 2. The Government’s submissions 40. The Government submitted that the Zalaegerszeg High Court was a “tribunal established by law” as being part of the ordinary court system in Hungary.", "The reassignment of a case from a court with general territorial competence to another was a well-known legal institution both in Hungarian and other European laws. Reassignments were to be applied only in exceptional cases as a temporary measure with a view to alleviate the serious regional imbalances between the workloads of courts and to eliminate excessive backlogs hindering the conclusion of judicial proceedings within a reasonable time. They took place between courts and not between judges. The assignment of a case to a judge (or to a judicial formation) at the assignee court remained subject to the generally applicable rules governing the allocation of cases, determined by the president of the assignee court in accordance with the law. Therefore, due to the designation of the assignee court in accordance with the law and due to the subsequent allocation of the case to the assignee judge in accordance with the generally applicable rules, the judge having actually proceeded in the applicant’s case became a “lawful judge” for the purposes of domestic law.", "41. Furthermore, the Government pointed out that in contrast to the case of DMD GROUP, a.s., v. Slovakia (no. 19334/03, 5 October 2010), the applicant’s case had not been reassigned from one judge to another, but from one court to another, whose competence differed solely in respect of territorial competence; the reassignment was not made by the assignee court but by an independent third party, namely the President of the NJO who had acted not as an agent of the executive, but as head of the judiciary. In any case, the remedies available in the proceedings against the decision given by the assignee court had guaranteed a full review of the case by the Kúria (in review proceedings) and, eventually, by the Constitutional Court (in proceedings instituted for the alleged unconstitutionality of the decision). 42.", "Regarding decision no. 36/2013. (XII.5.) AB of the Constitutional Court, the Government pointed out that it was a ruling on complaints filed in a different context, namely in relation to criminal cases, which therefore could not be applied to the present case – civil, or rather economical, in nature. 43.", "In the Government’s view, there was no indication that the decision given in the case was in any manner affected by the reassignment of the action. In any case, the final review of the procedure was conducted by the Kúria – which would have been the last instance either way. 44. Lastly, the Government submitted that, in application of the impugned reassignment rule, thirteen cases were reassigned in 2011, and forty-two cases in 2012. All but one requests for reassignments were filed by the President of the Budapest High Court, which had the biggest workload among all Hungarian courts.", "Two requests had been rejected by the President of the NJO because the conditions for reassignment were not met. Since February 2013 no case had been reassigned. Since the legislature’s intention had been to enact reassignment as a provisional and exceptional measure, the relevant statutory provisions were repealed as of 1 August 2013 by Act No. CXXXI of 2013. 3.", "The Court’s assessment (a) General principles 45. The Court firstly reiterates that “the right to a fair trial holds so prominent a place in a democratic society that there can be no justification for interpreting Article 6 § 1 restrictively” (see Perez v. France [GC], no. 47287/99, § 64, ECHR 2004 I). 46. In cases under Article 6 of the Convention, the Court often examines individual aspects of a fair trial that the applicant complains of, and a breach of such a specific right may result in a breach of the right to a fair trial (see Kinský v. the Czech Republic, no.", "42856/06, § 83, 9 February 2012). Nevertheless, in many instances it takes into account the “proceedings as a whole”. Thus the Court may find a breach of Article 6 § 1 of the Convention if the proceedings taken as a whole did not satisfy the requirements of a fair hearing even if each procedural defect, taken alone, would not have convinced the Court that the proceedings were “unfair” (see Barberà, Messegué and Jabardo v. Spain, 6 December 1988, § 89, Series A no. 146; and Mirilashvili v. Russia, no. 6293/04, § 165, 11 December 2008).", "47. Under Article 6 § 1 of the Convention, a tribunal must always be “established by law”. This expression reflects the principle of the rule of law, which is inherent in the system of protection established by the Convention and its Protocols (see, for example, Jorgic v. Germany, no. 74613/01, § 64, ECHR 2007‑III). 48.", "“Law”, within the meaning of Article 6 § 1 of the Convention, comprises not only legislation providing for the establishment and competence of judicial organs (see, inter alia, Lavents v. Latvia, no. 58442/00, § 114, 28 November 2002), but also any other provision of domestic law which, if breached, would render the participation of one or more judges in the examination of a case irregular (see Gorguiladzé v. Georgia, no. 4313/04, § 68, 20 October 2009; and Pandjikidzé and Others v. Georgia, no. 30323/02, § 104, 27 October 2009). This includes, in particular, provisions concerning the independence of the members of a tribunal, the length of their term of office, impartiality and the existence of procedural safeguards (see, for example, Coëme and Others, cited above, § 99; and Gurov v. Moldova, no.", "36455/02, § 36, 11 July 2006). 49. In other words, the phrase “established by law” covers not only the legal basis for the very existence of a “tribunal” but also compliance by the tribunal with the particular rules that govern it (see Sokurenko and Strygun v. Ukraine, nos. 29458/04 and 29465/04, § 24, 20 July 2006) and the composition of the bench in each case (see Buscarini v. San Marino (dec.), no. 31657/96, 4 May 2000).", "50. In principle, a violation by a tribunal of domestic legal provisions relating to the establishment and competence of judicial organs gives rise to a violation of Article 6 § 1. The Court may therefore examine whether the domestic law has been complied with in this respect. However, having regard to the general principle that it is, in the first place, for the national courts themselves to interpret the provisions of domestic law, the Court finds that it may not question their interpretation unless there has been a flagrant violation of domestic law (see, mutatis mutandis, Coëme and Others, cited above, § 98 in fine; and Lavents, cited above, § 114). 51.", "The Court further observes that, according to its case-law, the object of the term “established by law” in Article 6 of the Convention is to ensure “that the judicial organisation in a democratic society does not depend on the discretion of the executive, but that it is regulated by law emanating from Parliament” (see Zand v. Austria, no. 7360/76, Commission’s report of 12 October 1978, Decisions and Reports (DR) 15, pp. 70-80). Nor, in countries where the law is codified, can the organisation of the judicial system be left to the discretion of the judicial authorities, although this does not mean that the courts do not have some latitude to interpret relevant domestic legislation (see Coëme and Others, cited above, § 98; Savino and Others v. Italy, nos. 17214/05, 20329/05 and 42113/04, § 94, 28 April 2009; and Fruni v. Slovakia, no.", "8014/07, § 134, 21 June 2011). 52. “The notion of separation of powers between the executive and the judiciary ... has assumed growing importance in the case-law of the Court” (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002‑IV). At the same time, “neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers’ interaction” (see Kleyn and Others v. the Netherlands [GC], nos.", "39343/98, 39651/98, 43147/98 and 46664/99, § 193, ECHR 2003‑VI). 53. In order to establish whether a tribunal can be considered “independent” within the meaning of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of safeguards against external pressure and the question whether the body presents an appearance of independence (see Findlay v. the United Kingdom, 25 February 1997, § 73, Reports 1997-I; and Brudnicka and Others v. Poland, no. 54723/00, § 38, ECHR 2005-II). In this latter connection, what is at stake is the confidence which such tribunals in a democratic society must inspire in the public and, above all, the parties to the proceedings.", "In deciding whether there is a legitimate reason to fear that a particular court lacked independence or impartiality, the standpoint of the party to the proceedings is important without being decisive. What is decisive is whether the party’s doubts can be held to be objectively justified (see, amongst others, Morris v. the United Kingdom, no. 38784/97, § 58, ECHR 2002-I; and Miroshnik v. Ukraine, no. 75804/01, § 61, 27 November 2008, with further references). In this respect, even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done” (see De Cubber v. Belgium, 26 October 1984, § 26, Series A no.", "86). 54. Moreover, as a rule, impartiality denotes the absence of prejudice or bias. According to the Court’s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to: (i) a subjective test, where regard must be had to the personal conviction and behaviour of a particular judge – that is, whether the judge held any personal prejudice or bias in a given case; and (ii) an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, among other authorities, Fey v. Austria, 24 February 1993, §§ 28 and 30, Series A no. 255; and Wettstein v. Switzerland, no.", "33958/96, § 42, ECHR 2000-XII). 55. There is no watertight division between subjective and objective impartiality, as the conduct of a judge may not only prompt objectively held misgivings as to his or her impartiality from the point of view of the external observer (the objective test) but may also go to the issue of his or her personal conviction (the subjective test) (see Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005‑XIII). Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge’s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports 1996‑III).", "56. Finally, the concepts of independence and objective impartiality are closely linked and, depending on the circumstances, may require joint examination (see Sacilor-Lormines v. France, no. 65411/01, § 62, ECHR 2006‑XIII). (b) Application of those principles in the present case 57. At the outset, the Court would emphasise that the paramount importance of judicial independence and legal certainty for the rule of law calls for particular clarity of the rules applied in any one case and for clear safeguards to ensure objectivity and transparency, and, above all, to avoid any appearance of arbitrariness in the assignment of particular cases to judges (see Iwańczuk v. Poland (dec.), no.", "39279/05, 17 November 2009; and DMD GROUP, a.s., cited above, § 66). 58. The Court considers that where the assignment of a case is discretionary in the sense that the modalities thereof are not prescribed by law, that situation puts at risk the appearance of impartiality, by allowing speculation about the influence of political or other forces on the assignee court and the judge in charge, even where the assignment of the case to the specific judge in itself follows transparent criteria. The order in which the individual judge or panel in charge of a certain case within a court is determined in advance, that is, an order based on general and objective principles, is essential for clarity, transparency as well as for judicial independence and impartiality. An element of discretion in the allocation or reassignment of cases could be misused as a means of putting pressure on judges by for instance overburdening them with cases or by assigning them only low-profile ones.", "It is also possible to direct politically sensitive cases to certain judges and to avoid allocating them to others. Therefore, the Court shares the Constitutional Court’s opinion (see paragraph 21 above), according to which: “the reassignment of a particular group of cases from a court proceeding under the general jurisdiction rules to the jurisdiction of another court may only be compatible with the Convention if the substantive and procedural rules and preconditions of such a reassignment are laid down by the lawmaker in transparent, pre-determined, clear and objective parameters leaving no (or minimal) room for discretion and ensuring that the actual decision is taken by the own institutions of the independent, impartial court system”. 59. The Court will next examine the individual aspects of a fair trial (see Kinský, loc. cit.).", "It notes the applicant’s submissions about the assignee court not being a tribunal “established by law” and about the impact of the discretionary assignment of the case on the independence and impartiality of that court. 60. The Court observes the Government’s argument about the imbalance between the workloads of courts in Hungary (see paragraph 40 above) and recognises the need for organisational measures that enable the administration of justice to avoid undue delays. Such measures, however, have to be of a kind that satisfies the requirements of the right to a fair hearing. 61.", "The competence of the assignee court to hear the applicant’s case was determined by a decision of the President of the NJO, who has extensive powers over administrative issues and to some extent over the personal status of members of the judiciary, and who was elected by Parliament and not within a system of judicial self-government. The Court refers to the opinion of the Venice Commission according to which the mere fact that only judges are eligible to be elected President of the NJO does not render the latter an organ of judicial self-government (see paragraph 26 above). Moreover, the Court cannot overlook the fact that until 17 September 2012 there had been no criteria at all in place that could, in principle, contribute to an objective reassignment (see paragraph 12 above). Although the National Judicial Council determined the applicable principles on that date, it did not provide any criteria for the selection of the individual cases to be reassigned, but granted discretion to the President of the NJO in the choice between eligible assignee courts. In any event, the introduction of the selection criteria was immaterial in the present case, since the assignee High Court had given judgment earlier, on 5 June 2012; and by 18 September 2012 the Pécs Court of Appeal, whose competence had also been determined by the assignment of the case to the Zalaegerszeg High Court, terminated the appeal procedure.", "62. While the reorganisation of judicial work in general terms – that is, according to verifiable criteria and without selecting particular cases – can be accepted by the Court, by contrast the reassignment of the applicant’s case took the form of an individual decision, which concerned that file exclusively (see paragraph 10 above) (compare and contrast, DMD GROUP, a.s., cited above, § 69). In this respect, the Court would underline that in the instant application, it is not the lawful existence of a court which is at issue but the lawfulness of the allocation of a case to that court. 63. For the Court, the discretionary nature of the reassignment manifested itself in the fact that there were neither ascertainable reasons nor criteria as to which cases were to be transferred.", "This situation was ultimately capable of creating the appearance of lack of independence and impartiality and did not offer the foreseeability and certainty that is required in order for a court to be considered “established by law”. 64. Similar was the conclusion of the Constitutional Court which established in its decision no. 36/2013. (XII.5.)", "AB (see paragraph 16 above) that the provisions on reassignment, namely sections 62 and 63 of Act no. CLXI of 2011 on the Organisation and Administration of Courts, as in force between 1 January and 16 July 2012, had been unconstitutional. Although that conclusion was reached in the context of constitutional complaints originating in criminal proceedings, the Constitutional Court’s findings were not limited to the reassignment of criminal trials in the sense that sections 62 and 63 had provided legal basis for reassignments in civil and criminal cases alike. 65. It is true that no direct domestic legal consequences emerged from the Constitutional Court’s decision in the applicant’s case (see paragraphs 16 in fine, 19 and 24 above).", "For the Court, however, remains the fact that the legal provisions ultimately underlying the reassignment of the applicant’s case were unconstitutional – and were found to be so by the Constitutional Court for reasons (see paragraph 21 above) which the Court agrees with. Indeed, the constitutional criticism of the impugned measure casts serious doubts on the Zalaegerszeg High Court being a “tribunal established by law” in the applicant’s case. The Court would add at this juncture that the failure of the domestic authorities to attach adequate legal consequences to the declaration of unconstitutionality affecting litigants in the applicant’s position sits uncomfortably with the requirement of the effective protection of Convention rights including the ones enshrined in paragraph 1 of Article 6. 66. The Court further considers that the above-mentioned inherent defects of the proceedings, resulting from the discretionary reassignment of the case, could not be corrected by the subsequent appeal or review.", "The first-instance procedure, carried out by the assignee court – which reassignment was, for the above reasons, irreconcilable with the notion of a fair hearing – must have had a decisive impact on the entire proceedings and irretrievably affected the applicant – especially since, subsequently, the territorial competence of the appeal court also flowed from this assignment (see paragraph 11 above). Again, the Court would stress that the discretionary reassignment of the applicant’s litigation was open to concerns in terms of domestic constitutionality. 67. In sum, the Court is of the view that the case was not heard by a “tribunal established by law”. There has accordingly been a violation of Article 6 § 1 of the Convention.", "The Court further considers that in view of the findings as to the principal legal issue of the application, it is unnecessary to consider the applicant’s other submissions made under Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 68. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 69.", "The applicant claimed 36,212,049 euros (EUR) in respect of pecuniary and EUR 30,000 in respect of non-pecuniary damage. 70. The Government contested these claims. 71. 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 suffered some non-pecuniary damage and awards it, on the basis of equity, EUR 6,000 under this head. B. Costs and expenses 72. The applicant also claimed EUR 14,000 plus VAT for the costs and expenses incurred before the Court. This sum corresponds to 70 hours of legal work billable by its lawyer at an hourly rate of EUR 200 plus VAT.", "73. The Government contested this claim. 74. 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 for the proceedings before the Court.", "C. Default interest 75. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 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 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 12 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıV. De GaetanoDeputy RegistrarPresident [1] This Act entered into force on 1 January 2012, but was declared unconstitutional and annulled on 29 December 2012 (Constitutional Court decision no.", "45/2012. (XII. 29.) AB), with retroactive effect as of 31 December 2011. [2] Article 27(4) of the Fundamental Law was enacted by the Fourth Amendment of the Fundamental Law as of 1 April 2013, but was repealed by the Fifth Amendment with effect from 1 October 2013.", "[3] In force until 31 July 2013, when the possibility of case reassignment was abolished. [4] In force until 31 July 2013. [5] This amendment entered into force on 17 July 2012. [6] The text in italics was enacted as of 17 July 2012. [7] Opinion on Act CLXII of 2011 on the Legal Status and Remuneration of Judges and Act CLXI of 2011 on the Organisation and Administration of Courts in Hungary.", "[8] The NJO has no real powers in itself, but is regarded by the Hungarian authorities as “the work organization under him [i.e. the President]”. [9] Recommendation CM(2012)12, paragraph 24. [10] CDL-AD(2010)004, paragraph 81, 82.16. [11] See Zand v. Austria, application no.", "7360/76, Commission report of 12 October 1978, Decisions and Reports (DR) 15, pp. 70 and 80. [12] See Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, paragraph 98, ECHR 2000-VII. [13] CDL-AD (2010)004, paragraph 77 [14] CDL-AD(2010)004, paragraph 79.", "[15] Cf. König v. Germany, ECtHR judgment of 28 June 1978, paragraph 100. [16] CDL-AD(2010)004, paragraph 80. [17] See also § 24 of the Constitution of Estonia: “No one shall be transferred, against his or her free will, from the jurisdiction of the court specified by law to the jurisdiction of another court.”; Article 8 of the Constitution of Greece: “No person shall be deprived of the judge assigned to him by law against his will.”; Article 33 of the Constitution of Liechtenstein: “Nobody may be deprived of his proper judge; special tribunals may not be instituted.”; Article 13 of the Constitution of Luxembourg: “No one may be deprived, against his will, of the Judge assigned to him by the law.”; Article 17 of the Constitution of the Netherlands: “No one may be prevented against his will from being heard by the courts to which he is entitled to apply under the law.”, Article 83 of the Constitution of Austria: “No one may be deprived of his lawful judge.”; Article 32 para. 9 of the Constitution of Portugal: “No case shall be withdrawn from a court that already had jurisdiction under an earlier law.”; Article 48 of the Constitution of Slovakia: “No one must be removed from the jurisdiction of his law-assigned judge.", "The jurisdiction of the court is established by law.”; Article 101 of the German Grundgesetz: “No one may be removed from the jurisdiction of his lawful judge.” [18] See also Article 30 of the Constitution of Switzerland: “Every person whose case is to be judged in judicial proceedings has the right to a court established by law, with jurisdiction, independence, and impartiality.”; Article 24 of the Constitution of Spain: “Likewise, all have the right to the ordinary judge predetermined by law”." ]
[ "FOURTH SECTION CASE OF AĞDAŞ v. TURKEY (Application no. 34592/97) JUDGMENT STRASBOURG 27 July 2004 FINAL 27/10/2004 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ağdaş v. Turkey, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrM. Pellonpää,MrR.", "Maruste,MrS. Pavlovschi,MrL. Garlicki,MrJ. Borrego Borrego, judges,MrF. Gölcüklü, ad hoc judge,and Mr M. O’Boyle, Section Registrar, Having deliberated in private on 6 July 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 34592/97) 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 Kemal Ağdaş (“the applicant”), on 4 December 1996. 2. The applicant was represented by Mr M. Narin, Mr A. Yüksel, Mr E. Bolaç, Ms F. Bozuoğlu and Mr B. Aşçı, 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 his brother İrfan Ağdaş was shot dead by police officers while walking in their neighbourhood and that the authorities failed to carry out an effective investigation following the incident. He also complained that he had no access to court. He invoked Articles 2 and 6 of the Convention. 4.", "The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5. The application was allocated to the 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. Mr R. Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr F. Gölcüklü to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 6. By a decision of 19 June 2001, the Court declared the application admissible.", "7. The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine). The parties replied in writing to each other’s observations. 8.", "On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9. The facts of the case, in particular the circumstances surrounding the death of the applicant’s brother İrfan Ağdaş on 13 May 1996, are disputed by the parties.", "A. Events relating to the death of İrfan Ağdaş 1. Facts as presented by the applicant 10. On 13 May 1996, at about 7.00 p.m., the applicant’s brother İrfan Ağdaş, aged 17, was walking through the Alibeyköy neighbourhood. Three plain-clothed police officers, who were patrolling the neighbourhood in an unmarked car, noticed the newspaper which İrfan was carrying in his hand and began to follow him.", "The newspaper was Zafer Yolunda Kurtuluş (Salvation in the Path of Glory) known for its leftist point of view. When İrfan noticed that he was being followed, he started to run. At that moment two of the police officers got out of the car and opened fire. İrfan was shot and he fell to the ground. 11.", "The police officers proceeded to kick him where he lay on the ground. A woman, A.B., a witness to the incident, ran to İrfan to help him. However, the police officers pushed her aside and put İrfan in the car. One of the police officers sat on him as they drove away. After an hour or so they left İrfan’s body near the Eyüp SSK Hospital.", "2. Facts as presented by the Government 12. On 13 May 1996, at about 8.00 p.m., three plain-clothed police officers from the anti-terrorist branch of the Istanbul Security Directorate, who were patrolling the Alibeyköy neighbourhood in an unmarked car, approached four suspects in order to carry out an identity control and a body search. The suspects, among whom was the applicant’s brother, İrfan Ağdaş, attempted to run away. During their flight, İrfan opened fire at the police officers.", "The police officers called them all to surrender and returned fire. The police officers did not aim at İrfan Ağdaş but fired warning shots. The other three suspects fled into the side streets and disappeared. During the exchange of fire, the applicant’s brother was wounded and died after his transfer to hospital by the police officers. 13.", "The police found twenty-seven copies of the newspaper Zafer Yolunda Kurtuluş in the black plastic bag that İrfan had been carrying. 14. Another patrolling police squad, informed about the armed incident through the police radio communications, arrived at the scene of the shooting. The witnesses told them that İrfan had been taken to hospital by the police officers present during the incident. B.", "The proceedings concerning the death of the applicant’s brother 15. Upon the request of the Head of Eyüp Security Directorate, a doctor from the Eyüp SSK Hospital performed a post-mortem examination at 8.20 p.m. In the report drafted by the doctor, two bullet entry wounds were recorded. It was also stated in the report that İrfan was already dead when he was brought to the hospital. 16.", "At 8.50 p.m. the second police squad which arrived at the scene drafted an incident report and drew a sketch of the scene of the incident. The police squad directly involved in the alleged armed clash drafted an incident report at 9.20 p.m. 17. At around 9.30 p.m., the second police squad submitted to the police station the following items found at the scene of the incident: one 9 mm calibre Browning gun, six empty 9 mm calibre cartridges, seventeen empty 9 mm calibre cartridges, one cartridge clip and twenty‑seven copies of the Zafer Yolunda Kurtuluş newspaper. 18. On 14 May 1996 the applicant’s other brother Cemal Ağdaş identified the body in the morgue of the Forensic Institute.", "Subsequently, he lodged a complaint with the Eyüp Public Prosecutor, requesting that an on-site inspection of the scene of the incident be conducted and that the eyewitnesses be heard. 19. On the same day, the Fatih Public Prosecutor opened a criminal investigation into the death of İrfan Ağdaş. He requested the forensic department to carry out an autopsy on the body of the applicant’s brother and send the autopsy report to his office. 20.", "At 11.00 a.m., a preliminary autopsy on İrfan Ağdaş was carried out by a forensic expert at the Fatih Forensic Medicine Institute. In the autopsy report it was recorded that there was one bullet wound to the left side of his chest, two bullet wounds to his left elbow and one to his right scapula. It was concluded that a final autopsy should be carried out in order to determine the cause of death. 21. Later on the same day, the final autopsy was carried out by three forensic experts, in the presence of the Fatih Public Prosecutor.", "In the autopsy report which was drafted at a later date (5 July 1996) it was concluded that İrfan had died of a haemorrhage due to his bullet wounds. One bullet entry wound from the left elbow, one bullet exit wound from the left arm, one bullet entry wound from the left nipple and one bullet exit wound from the back were found on the body. Although it was not possible to establish the exact shooting range, the bullet wounds suggested that İrfan was not shot at close range which was considered to be within 30 to 40 cm. The chemical analysis indicated that neither alcohol nor any other narcotic substances had been found in his blood. Furthermore, no nitrate or nitrite ion was found on the skin samples taken from İrfan’s hands.", "22. Meanwhile, two eyewitnesses gave statements at the Istanbul branch of the Human Rights Association. 23. S.M. stated as follows: “At around 7.00 p.m.", "I saw a young man walking in front of my house. [At that moment I saw] a white Toros car coming very fast towards the young man, from the top end of the street. The license plate of the car was 34 FT 322. There were three plain-clothed men in the car. One of them got out of the car and fired a few shots from 4 to 5 meters.", "I believe that the young man was hurt on the leg. He started to run down the street. One of the men, who was already out of the car, ran after him and continued shooting with a gun and an automatic weapon. At that moment there were many children on the street. They ran approximately 150 or 200 meters.", "Afterwards I saw the young man fall on the ground. He had been shot in the back. The three men kicked him as he was lying on the ground. They put him in the car and sat on him.” 24. A.B.", "stated as follows: “Everything took place before my eyes. I was walking on the street with my grandchild. When I heard some shots, first I thought the children were playing a game. Then I saw a young man lying on the street. He was bleeding.", "There was blood on his chest and on his back. When I saw two men kicking him in the head I bent down over him. However, they pushed me aside, put him in the car and drove away.” 25. On the same day, the 9 mm calibre Browning gun together with its six cartridges, one cartridge clip and seventeen empty cartridges of 9 mm calibre were submitted to the Criminal Police Laboratory of Istanbul for a ballistics examination. The report concluded that seven of the bullets had been discharged from the Browning gun and that ten of the bullets had been fired from the weapons used by the police officers.", "26. In a letter dated 14 May 1996, replying to an inquiry initiated by the Eyüp Security Directorate, Istanbul Security Directorate stated that a confiscation order had been pronounced by the Istanbul State Security Court in respect of the issue of the newspaper collected at the scene of the incident. 27. On 15 May 1996, upon the public prosecutor’s request, the Eyüp Security Directorate drafted an incident report and submitted it, together with the newspapers and the weapons collected at the scene of the incident, to his office. 28.", "On 16 May 1996 the Eyüp Public Prosecutor issued a decision of non-jurisdiction. The public prosecutor stated that İrfan Ağdaş had opened fire on the police officers after they had requested to see his identity card. The police officers had returned fire in order to arrest him. However, as a result of their careless shooting, İrfan Ağdaş had been killed. The public prosecutor decided to transfer the case-file to the office of the Eyüp District Governor pursuant to the provisions of Law on Prosecution of Civil Servants since the alleged crime had been committed while the police officers were on duty.", "29. On 20 May 1996 the Eyüp District Governor forwarded the case-file to the office of the Istanbul Governor. 30. On 23 May 1996 the applicant’s other brother Cemal Ağdaş lodged an objection with the Eyüp Assize Court against the Eyüp Public Prosecutor’s decision of non-jurisdiction. He stated that the public prosecutor had decided to transfer the case-file to the office of the Eyüp District Governor without conducting a serious investigation.", "31. On the same day, Cemal Ağdaş also lodged a complaint with the Eyüp Magistrate’s Court. He requested that an on-site inspection be conducted into his brother’s death and that the eyewitnesses be heard by the court in accordance with Article 158 of the Law on Criminal Prosecution which provides that the Magistrate’s Court can conduct a criminal investigation in cases where a delay may cause a setback in the investigation. 32. On 27 May 1996 the Eyüp Magistrate’s Court rejected Cemal Ağdaş’s complaint of 23 May 1996 on the grounds that the administrative and judicial authorities had already initiated an investigation into the matter.", "On 3 June 1996 Cemal Ağdaş lodged an objection with the Eyüp Assize Court against the Eyüp Magistrate’s Court’s decision of 27 May 1996, arguing that the Magistrates were entitled to conduct an ex officio investigation in urgent matters pursuant to Article 158 of the Law on Criminal Procedure. On 4 June 1996 Eyüp Assize Court decided that the decision of the Eyüp Magistrate’s Court was in accordance with the law and dismissed Cemal Ağdaş’s objection. 33. On 11 June 1996 the Eyüp Assize Court rejected the objection filed against the public prosecutor’s decision of non-jurisdiction. 34.", "On 13 August 1996 the transcripts of police radio communications, recorded on the day of the incident, at approximately 8.00 p.m., were drafted. The following conversations are extracts from these records: “(20.09 a.m.) 4032: HQ HQ: I am listening 4032: there was a person carrying a plastic bag. We opened fire at him. We captured the wounded person. Now we are on our way to ... HQ: indicate the address 4032: it is up the Saya Hill.", "There is chaos in the neighbourhood. We shot the man. (...) (20.11 a.m.) HQ: (...) our TEM team has captured a person in a mixed 502 situation. (...) the police squads which are nearby should provide help. (20.14) HQ: On Gülistan Street the TEM team opened fire without a 502 situation.", "A wounded person has been captured. Now all the patrolling squads are going back to their normal routine. We will only have to take some precautions at the hospital.” 35. On 17 August 1996 A.B. and two persons who did not want to disclose their names gave statements to the applicant’s representative.", "A.B. stated as follows: “I was sitting, together with my neighbours, on Gülistan Street where the incident occurred. I saw two plain-clothed persons who were running after a 16-17 years old boy. It was starting to get dark. It was around 7.00 p.m. [...] They were shooting at the boy from behind.", "There were approximately 15 meters [between the two men and the boy]. As a result of the shooting the boy fell on the ground. When he was falling he turned himself around and fell on his face. There were 10 meters between me and the boy. When I ran and bent down over him in order to take him to a hospital, one of the men said “Lady!", "Stay back!” They immediately took him by his hands and legs, put him on the back seat of their white car and drove away. During the chase I saw very clearly that the boy did not posses any weapon or anything like it. I also saw very clearly that the boy was shot in the back. When they were putting him in the car he was still alive. I learned afterwards that he died at the hospital.", "I learned from the press that his name was İrfan Ağdaş.” 36. The two other witnesses, who wished to remain anonymous because of their fear of police, stated that they had heard shootings at around 7.00 p.m. on the day of the incident and that they saw two men in plain-clothes, holding large weapons, standing next to a boy who was lying on the ground. One of the witnesses stated that the boy was lying on his back. When the two men noticed the people were coming out of their houses, they immediately put him into their car and drove away. They further stated that they learned the identity of the boy and the profession of the two men from the press.", "37. Between 22 August and 9 September 1996, police superintendent Sebahattin Hacıoğlu, in his capacity of investigator, took statements from the applicant, the applicant’s wife, Cemal Ağdaş and the police officers, A.K., B.M. and A.Y. The police officers stated that when they were on patrol on 13 May 1996 in the Alibeyköy neighbourhood they had requested to see the identity cards of four suspicious individuals. Instead of complying with the request, the individuals started to run and one of them opened fire.", "When the police officers returned his fire in order to arrest him, he was wounded. They seized his gun and twenty-seven copies of a newspaper called Zafer Yolunda Kurtuluş that he had with him. They took the wounded man to the Eyüp SSK Hospital. 38. On 23 October 1996 the police superintendent drafted a recommendation report (fezleke) concerning the death of İrfan.", "In his report he concluded that the police officers had performed their duty with diligence and that no fault or negligence could be attributed to them. The use of force by the police officers was in accordance with the law. He suggested not to bring any prosecution or disciplinary proceedings against them. 39. On 14 November 1996, despite the police superintendent’s submission, the Istanbul Provincial Administrative Council decided that the police officers A.K., B.M.", "and A.Y. should be prosecuted pursuant to Article 455 of the Criminal Code. It was further decided that the proceedings should be brought against the police officers before the Istanbul Criminal Court of First Instance. 40. On 3 February 1997 the Istanbul Criminal Court of First Instance decided that it had no jurisdiction to examine the case.", "It stated that although the incident concerned death due to negligence, as the real perpetrator of the killing was unknown, the matter should be examined by the Istanbul Assize Court. It therefore, transferred the case-file to the Istanbul Assize Court. 41. On 6 March 1997 the Istanbul Assize Court decided that it had no jurisdiction to examine the matter as it fell under the jurisdiction of the Eyüp Assize Court. It transferred the case-file to the office of the Eyüp Public Prosecutor.", "42. On 3 April 1997 the Eyüp Public Prosecutor filed an indictment charging the three police officers with “intentional homicide” under Article 448 of the Criminal Code. 43. On 14 April 1997 the first hearing took place before the Eyüp Assize Court. The court summoned the police officers A.K., B.M.", "and A.Y. since they had not been present at the hearing. As A.K. had been appointed to a post at the Şırnak Security Directorate the court requested the Şırnak Assize Court to take his statement. 44.", "On 13 May 1997 the Şırnak Assize Court summoned A.K. As he did not attend the hearing of 30 May 1997, the court repeated its request. 45. On 17 June 1997 the second hearing took place. The court accepted requests from the applicant, his wife Şükran Ağdaş and his other brother Cemal Ağdaş to intervene in the proceedings.", "All three interveners and the eye-witness A.B. gave oral evidence before the court. They all refuted the allegation that there had been an armed clash. 46. A.B.’s statement given before the court was as follows: “On the day of the incident, at around 5.00 or 6.00 p.m.", "I was sitting in front of my house. Children were playing on the street. When I heard the shootings I wanted to bring my grandchildren home. I saw two plain-clothed policemen. One of them was holding a gun in one hand and a big weapon in the other hand.", "The big weapon was almost half a meter long. He was shooting with both of them. He shot İrfan with the big weapon from a distance of approximately 10 meters. I was 3 to 4 meters away from İrfan. When he was wounded he fell to the ground.", "I went next to him. I asked the police officers why they had shot him. They did not let me [help him]. I went to inform the neighbours about what had happened. When I came back, the police officers had put İrfan into a white car.", "Only one of the bullets hit İrfan although they had fired a lot. I don’t think that he was dead. I believe that they shot him again in the car and killed him. (...) I did not see any weapon in İrfan’s hand.” 47. The police officers B.M.", "and A.Y. did not attend the hearing. The applicant requested the court to detain the accused police officers on remand. The court dismissed his request holding that it was not necessary to arrest them at that stage of the proceedings. 48.", "On 18 June, 18 July, 1 August and 1 September 1997 hearings were held before the Şırnak Assize Court in order to take A.K.’s statements. However, the latter failed to attend the hearings held on the afore-mentioned dates. 49. During the hearing of 9 September 1997 there was a big crowd in front of the court room, protesting about the incident. Moreover the case also attracted the attention of the media.", "The Eyüp Assize Court decided to ask the Court of Cassation’s opinion on whether it was necessary to transfer the case-file to a different court for security reasons. 50. On 16 September 1997 A.K. appeared before the Şırnak Assize Court. He reiterated his statements given at the Security Directorate and pleaded not guilty.", "51. On 17 December 1997 the Court of Cassation decided that the Eyüp Assize Court should continue with the proceedings. 52. On 4 March 1998 A.K. was called once again before the Şırnak Assize Court.", "He only reiterated his previous statements and made no further comments. 53. On 17 March 1998 the accused police officers B.M. and A.Y. testified before the Eyüp Assize Court for the first time.", "The summary of B.M.’s testimony is as follows: “On the day of the incident I was on patrol with my colleagues on the Gülistan Street in the Karadolap neighbourhood where there are terrorist activities. At around 8.00 p.m. we saw three men and one woman who looked suspicious. One of them was holding a bag. First I went out of the car, and then my colleagues followed me. We told them that we were police officers and that we wanted to make [an identity check and] a body search.", "We were standing within hearing range. At that moment one of the men and the woman started to run into the side streets. The other man ran towards Gülistan Street. He took out a gun. We were not running after him.", "I do not remember the distance between us. He opened fire. Actually I only heard shots. I knelt down [in order to protect myself]. My colleagues were behind me.", "When the man did not stop shooting I returned fire without really targeting. I noticed at that moment that my colleagues were shooting as well. After a while we realised that the man was wounded. We took the man to the hospital. As I stated before, the two men and the woman had run away.", "A crowded group of people began to come towards us. In order to protect ourselves from another possible attack, we quickly put the wounded person into the car and took him to hospital. I acted in accordance with the law [and used my right of self-defence]. He shot at us first. We did not intend to kill him.", "“ 54. A.Y. reiterated B.M.’s testimony and added the following statement: “(...) When I went close to the wounded person he told me that he was shot in the left arm. It did not seem to be a serious wound. I seized his gun.", "[Later on] I handed it over to my supervisor. I do not know if a fingerprint examination was conducted later on. We had no time to collect the empty cartridges. We informed headquarters about the incident and that we were taking him to hospital.” 55. At the same hearing the court decided that the officers who had collected the empty cartridges should be summoned to appear before the court.", "The court further requested the transcripts of the police radio communications which were recorded on the day of the incident. 56. On 22 April 1998 the Eyüp Police Headquarters submitted the verbatim transcripts of the police radio communications to the Eyüp Assize Court. 57. At the hearing of 28 May 1998, the police officers’ representative asked the court to request the Eyüp Police Headquarters to inform them whether the transcripts submitted on 22 April 1998 were the full version of the radio communications and whether the accused police officers had been part of the TEM team (Terörle Mücadele – Struggle with Terrorism) mentioned in the transcripts as the team present at the crime scene.", "The court also asked for the meaning of a “502” situation which was often referred to in the transcripts. Moreover, at the same hearing, the court dismissed once again the applicant’s request to detain the accused officers on remand. The officers who had collected the empty cartridges from the scene of the incident did not appear before the court to give their testimonies. 58. In the Eyüp Security Directorate’s reply to the court, dated 30 June 1998, it was stated that the transcripts were the full version of the radio communications and that a “502” situation indicated an armed conflict with policemen.", "59. At the hearing dated 7 July 1998 the court again dismissed the applicant’s request to detain the accused police officers on remand. Moreover it repeated its request to the Eyüp Police. The officers who had collected the empty cartridges did not appear before the court. 60.", "On 21 August 1998, the Eyüp Security Directorate confirmed that the three accused police officers were the TEM team mentioned in the transcripts. 61. At the hearing dated 10 September 1998 the Eyüp Assize Court ordered the accused policemen’s detention on remand in absentia as they had not appeared before the court despite having been summoned to do so. Moreover, the court was unable to take statements from the members of the second police squad, as they also, once again, did not reply to the summons. 62.", "On 11 September 1998 the Istanbul Security Directorate informed the court that the accused police officers A.Y. and A.K. were doing their military service in Amasya and in Şırnak respectively, and that they were no longer attached to their directorate. However, as the accused police officer B.M. was still working at the Istanbul Security Directorate he would be able to appear before the court when necessary.", "63. On 16 September 1998 B.M. appeared before the court to give his statement. He denied the authenticity of his signature on the bottom of the incident report drafted on 13 May 1996 at 8.50 p.m. 64. On 2 November 1998 A.K.", "appeared before the Şırnak Assize Court once again and repeated his previous statements, stressing that there had been an armed clash. He pleaded not guilty to the charges brought against him. 65. On 23 November 1998 the court repeated its call for the two police officers to testify before the court. 66.", "On 25 November 1998, following the Eyüp Assize Court’s order of detention on remand in absentia, A.K. appeared before the Şırnak Assize Court once again. After reiterating his previous statements, he was released. The Şırnak Assize Court stated that as the only reason for issuing an order of detention on remand was to take A.K.’s statements, there was no need to detain him. 67.", "On 16 February 1999 E.A., who was one of the police officers who had collected the empty cartridges after the incident, testified before the Eyüp Assize Court. He maintained that upon hearing the radio communication on the armed clash, they had gone to the scene of the incident and collected seventeen empty cartridges at the crime scene. 68. On 19 April 1999 the court once again dismissed the applicant’s persistent request to detain the accused policemen. It reaffirmed that as the court had taken the statements of all three accused there was no need to detain them at that stage of the proceedings.", "However, the applicant further alleged that the empty cartridges kept in the security directorate were not the same as those mentioned in the ballistics report. He therefore requested to see the empty cartridges. The court communicated this request to the Security Directorate. 69. At the hearing held on 23 June 1999 the Eyüp Security Directorate did not respond to the court’s demand to obtain the empty cartridges.", "On 8 September 1999 the Eyüp Security Directorate informed the court that as the police station was under renovation they had been unable to find the requested cartridges. 70. On 27 October 1999 the court asked the Eyüp Public Prosecutor the identity and the address of the three people who were together with İrfan at the time of the incident. These people had allegedly been taken into police custody at a later date. The court again dismissed the applicant’s request to detain the police officers on remand.", "71. At the hearing dated 29 December 1999 both the Security Directorate and the Eyüp Public Prosecutor did not reply to the court’s inquiry. The applicant and the Public Prosecutor repeated their request to detain on remand the accused police officers. The court dismissed their request. 72.", "On 24 February 2000 the Istanbul Security Directorate, informed the court about the identity of two of the individuals who were with İrfan at the time of the incident. According to this information, both ‘terrorists’ had been killed in an operation carried out on 20 August 1996 in Eyüp. 73. At the hearings which took place on 22 March 2000 and 15 May 2000 the Security Directorate failed once again to submit the requested items. 74.", "On 19 July 2000 the Eyüp Assize Court repeated its order to have a ballistics examination of the three weapons belonging to the accused policemen, in order to determine from which of these weapons the empty cartridges found at the scene of the incident had been discharged. On 7 August 2000 the ballistic exam was conducted by the experts at the Criminal Police Laboratory of Istanbul. 75. On 23 October 2000 the ballistic report was read out before the court. According to this report only four of the seventeen empty cartridges matched one of the identified weapons.", "Of the remaining cartridges, six came from a different weapon and seven yet another. However, none of these weapons were those submitted for the ballistics examination. During this hearing the applicant complained that despite his requests, both the Fatih Public Prosecutor and the Eyüp Magistrate’s Court had not conducted an on-site inspection of the scene of the incident and he repeated the same request before the court. The Eyüp Assize Court dismissed the applicant’s request considering that to carry out an on-site inspection almost five years after the incident would not shed light on the facts of the case. 76.", "On 22 January 2001 the applicant raised an objection to the ballistics report. He complained before the court that the report did not indicate from which weapon the empty cartridges had been discharged. Moreover, he stated that as there had been no examination of the weapon allegedly used by İrfan, it could be concluded that he had not used any arm. 77. At the same hearing the public prosecutor submitted his opinion.", "In view of the transcripts of the police radio communications recorded on the day of the incident, the public prosecutor advised the court to convict the accused police officers as charged. However, he also maintained that Law No. 4616 on the suspension of sentences regarding the offences committed before 23 April 1999 should be applicable to the accused. 78. On 19 February 2001, as the accused police officers and their lawyer were absent, the court requested the concluding remarks of the parties for the next hearing.", "79. On 2 April 2001 the Eyüp Assize Court delivered its final judgment. By making reference to the ballistics reports dated 14 May 1996 and 7 August 2000, the autopsy report, the transcripts of the police radio communications and the statements of the accused police officers, the interveners and the witnesses, it concluded that İrfan Ağdaş had died in an armed clash. It consequently acquitted the police officers on the ground that they had acted in self defence. In the detailed reasoning of the judgment, which was four pages long, the court held that A.B.’s testimony was not reliable as she failed to provide the exact time of the incident.", "Moreover it observed that according to A.B. when she saw İrfan he had only one bullet wound. She therefore testified that İrfan must have been shot dead in the car. However according to the autopsy report dated 5 July 1996, İrfan had more than one bullet wound on his body and although it was not possible to establish the exact shooting range, the wounds suggested that İrfan was not shot at close range defined as being between 30 to 40 cm. In the light of these considerations, the court did not find A.B.’s evidence convincing.", "The court also held that although all three members of the deceased’s family argued that there had been no armed clash between the accused and the victim, since they had not witnessed the incident, their arguments could not be sustained. On the other hand, the court examined the statements of the accused police officers and concluded that they corresponded to the findings of the autopsy report. It maintained that as İrfan was carrying a plastic bag in his left hand and was shooting with his right hand, as described by the accused, it was logical that he was wounded on the left side of his chest and on his left elbow. Moreover it emphasized that, it was only in the heat of the moment that the police officers informed the headquarters that a mixed 502 situation had occurred. 80.", "Both the applicant and the Eyüp Public Prosecutor appealed against the decision of the Eyüp Assize Court. On 1 July 2002 the Court of Cassation upheld the decision of the assize court. II. RELEVANT DOMESTIC LAW 81. The relevant domestic legislation is outlined in the Court’s Tepe v. Turkey judgment (no.", "27244/95, §§ 115-122, 9 May 2003). THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTION 82. The Government submitted that the applicant had filed his application without awaiting the outcome of the domestic criminal investigation into the death of his brother. 83.", "The applicant alleged that he lodged his application with the Court without exhausting all the criminal remedies as he considered them to be ineffective. He argued that the national authorities failed to conduct an effective and adequate investigation into his brother’s killing. 84. The Court recalls that, in its decision of 19 June 2001, it considered that the question whether the criminal investigation at issue can be regarded as effective under the Convention was closely linked to the substance of the applicant’s complaints and that it should therefore be joined to the merits. The Court considers it appropriate to address this point in its examination of the substance of the applicant’s complaint under Article 2 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 85. The applicant submitted that his brother İrfan Ağdaş had been unjustifiably killed by the police officers and that there had been no adequate investigation into the circumstances of his death. He invoked 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.” A. Arguments before the Court 1. The applicant 86.", "The applicant submitted that his brother İrfan Ağdaş had been unjustifiably killed by the police officers. 87. As regards the alleged responsibility of the State for the death of İrfan Ağdaş, the applicant claimed that the court had failed to assess correctly the evidence contained in the case-file. He contended that there was no armed clash as concluded by the court. The fact that no nitrate or nitrite ion was found on İrfan’s hands in the autopsy proved that he had not fired a gun.", "88. As regards the State’s procedural obligation under Article 2, the applicant contended that the preliminary investigation had been delayed by the unnecessary transfer of the case-file from one public office to the other. Furthermore, the proceedings before the court were flawed by the delays and the non-compellability of the accused or police witnesses. He maintained that, despite his persistent requests, the court did not carry out an on-site inspection of the scene of the incident. It refused to arrest the accused although, by being police officers, they had the ability to obscure the evidence.", "He believed that all this could only be described as an effort by the authorities to cover up for the police, rather than to investigate their acts. The inadequate investigations into this and other cases were the proof of official tolerance on the part of the State of the use of unlawful lethal force. 2. The Government 89. The Government refuted the applicant’s claims under Article 2 that his brother had been killed by any excessive or unjustified use of force.", "They submitted that the police officers warned and called on the applicant’s brother to surrender before opening fire. They acted in the honest belief that they were in danger of being shot by him. 90. The Government further denied that the domestic law in any way failed to comply with the requirements of Article 2. They argued that the procedural aspect of this provision was satisfied by the preliminary investigation and the criminal proceedings.", "The authorities had taken the steps available to them to secure the evidence concerning the incident. Witness testimonies were taken, autopsies, deciphering of the police radio communications and examining of forensic evidences were secured. These assured the fundamental purpose of the procedural obligation, in that they provided for effective accountability for the use of lethal force by State agents. They submitted that the available procedures provided the necessary effectiveness, independence, and transparency by way of safeguards against abuse. B.", "The Court’s assessment 1. As to the killing of the applicant’s brother 91. 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 facts, 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 facts for that of the domestic courts and as a general rule it is for those courts to assess the evidence before them.", "Though the Court is not bound by the findings of domestic authorities, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those authorities (see, mutatis mutandis, Klaas v. Germany, judgment of 22 September 1993, Series A no. 269, p. 18, §§ 29-30). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, § 32, and Avşar v. Turkey, no. 25657/94, § 283, ECHR 2001‑VII) even if certain domestic proceedings and investigations have already taken place.", "92. The Court notes that it is confronted with fundamentally divergent accounts of how the applicant’s brother died. While the applicant maintained that his brother had been unjustifiably killed by the police officers, the Government asserted that he died during an armed clash which took place between him and the police officers, following his attempt to evade an identity check and body search by the police (see paragraph 12). 93. The Court considers that the factual circumstances surrounding the death of the applicant’s brother are not clear.", "It notes first of all that the failure to carry out an on-site inspection at the scene of the incident hampered the assessment of the facts. The scene of the shooting was inspected only by another police squad which was informed about the armed clash by radio. These police officers collected the empty cartridges, the copies of the newspaper and a gun which allegedly belonged to Irfan. However as there was no finger print identification the Court cannot conclude with certainty if Irfan was actually in possession of that gun as alleged by the Government (see paragraphs 17 and 25). Furthermore the Court notes that the applicant’s version of facts is not corroborated in any persuasive manner by eyewitnesses or other evidence.", "The radio conversations were contradictory as the police headquarters first defined the incident as a “mixed 502 situation” (armed conflict with policemen situation) and later on called it a “no 502 situation” (see paragraphs 34 and 58). Additionally the key statements of the only civilian witness who accepted to appear before the assize court were not consistent as they differed on points of detail at various stages of the procedure (see paragraphs 24, 35 and 46). 94. Against this background the Court consequently has serious doubts as to how the shooting took place. It considers that this is largely due to the manner in which the investigation at the scene of the incident, the post-mortem examination and the investigation by the criminal court had been conducted.", "95. The Court reiterates that while the attainment of the required evidentiary standard may follow from the co-existence of sufficiently strong, clear and concordant inferences or unrebutted presumptions, their evidential value must be assessed in the light of the circumstances of the individual case and the seriousness and nature of the charge to which they give rise against the respondent State (see Yaşa v. Turkey, judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, § 96). 96. In view of all material before it, including the judgment of the Eyüp Assize Court dated 2 April 2001, the Court considers that there is an insufficient factual and evidentiary basis on which to conclude that the applicant’s brother was deprived of his life by the police officers as a result of the use of force which was more than absolutely necessary within the meaning of paragraph 2 of Article 2 of the Convention. It follows that no violation of Article 2 has been established on that account 2.", "As to the alleged inadequacy of the investigation 97. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCallum v. the United Kingdom, judgment of 30 August 1990, Series A no. 183, p. 49, § 161, and the Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, p. 324, § 86). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances.", "However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see, for example, mutatis mutandis, İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII). 98. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see Güleç v. Turkey, judgment of 27 July 1998, Reports 1998-IV, §§ 81-82, and Oğur v. Turkey [GC], no.", "21594/93, §§ 91-92, ECHR 1999-III). This means not only a lack of hierarchical or institutional connection but also a practical independence (see, for example, Ergi v. Turkey, judgment of 28 July 1998, Reports 1998-IV, §§ 83-84, where the public prosecutor investigating the death of a girl during an alleged clash showed a lack of independence through his heavy reliance on the information provided by the gendarmes implicated in the incident). 99. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances (Kaya, cited above, p. 324, § 87) and to the identification and punishment of those responsible (Oğur, cited above, § 88). This is not an obligation of result, but of means.", "The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death (see, concerning autopsies, Salman v. Turkey [GC], no. 21986/93, § 106, ECHR 2000-VII; concerning witnesses, Tanrıkulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV; concerning forensic evidence, Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard.", "100. A requirement of promptness and reasonable expedition is implicit in this context (see Yaşa, cited above, pp. 2439-2440, §§ 102-104, Çakıcı v. Turkey [GC], no. 23657/94, §§ 80-87 and 106, ECHR 1999-IV, Tanrıkulu, cited above, § 109, and Mahmut Kaya v. Turkey, no. 22535/93, §§ 106-107, ECHR 2000-III).", "It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. 101. The Court notes that an investigation into the incident was carried out by the Eyüp Public Prosecutor as well as by the police superintendent, in his capacity of investigator. Notwithstanding the seriousness of the incident however and the necessity to gather and record the evidence which would help to shed light on the facts of the incident, there was a number of omissions.", "While a ballistic test was carried out on the Browning weapon to show that it matched some of the bullets allegedly found at the scene of the incident, there was no testing of the gun for İrfan’s finger prints. These elements disclose considerable defects in the reliability and thoroughness of this part of the investigation. The Court has examined whether this was remedied by the investigation conducted by the Eyüp Assize Court during the proceedings. 102. The Court recalls 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 McKerr v. the United Kingdom, no.", "28883/95, § 134, ECHR 2001-III). Nonetheless, it cannot be excluded, for example, that defects in an investigation may fundamentally undermine the ability of a court to determine responsibility for a death (see Salman, cited above, §§ 106-109 concerning inadequate autopsy procedures and Kılıç v. Turkey, no. 22492/93, §§ 79-83, ECHR 2000-III, where there was no evidence presented to the trial court linking the suspect to the killing). Whereas in this case, suspects were prosecuted and consequently acquitted as the court concluded that they acted in self-defence. It cannot therefore ordinarily be claimed that the preliminary investigation did not prove capable of identifying and prosecuting the perpetrators.", "103. A preliminary investigation was carried out and a criminal action was initiated, notwithstanding the police superintendent’s recommendation report suggesting not bringing any prosecution or disciplinary proceedings against the police officers. Nevertheless the Court notes important shortcomings in the conduct of the criminal proceedings. In particular, it considers that once the case was before the criminal court, the steps taken by the court were dilatory and half-hearted. The Court notes the following in this regard: (i) The criminal proceedings began on 3 April 1997 when the Eyüp Public Prosecutor filed an indictment with the court charging the three police officers with “intentional homicide”.", "They ended on 1 July 2002 when the Court of Cassation upheld the decision of acquittal rendered by the first instance court. Thus, the criminal proceedings lasted more than five years. Moreover, including the period in which the case-file was transferred back and forth between the registries of the criminal courts due to the problem of jurisdiction, the total length of the entire criminal procedure exceeded six years. (ii) On 14 May 1997, the accused police officers were summoned for the first time to give their statements. One of the accused appeared before the court after five hearings had taken place, on 16 September 1997, which is four months after the first summons.", "The other two officers gave their first statements before the Eyüp Assize Court on 17 March 1998, which is nearly one year after they were first called. (iii) On 17 March 1998 the court summoned the police officers who had collected the empty cartridges, to give their statements before the court. After almost a year, on 16 February 1999 only one of the police officers from the squad appeared before the court. (iv) On 19 April 1999, upon the applicant’s request the court asked to see the empty cartridges which were kept in safe storage at the security directorate. It was only after fifteen months that the court was provided with the requested items.", "Moreover, at the end of the ballistic examination carried out on these cartridges, it was concluded that they were not the same as those assessed in the first ballistic examination. However, the court did not attach any importance to this outcome. (v) In its final decision the court completely disregarded the autopsy report which concluded that no nitrate or nitrite ion was found on İrfan’s hands. 104. Having regard therefore to the duration and serious shortcomings of the criminal proceedings in this case, the Court finds that the defects in the preliminary investigation were not remedied by the investigation conducted by the Eyüp Assize Court.", "105. The Court concludes that the domestic authorities did not provide a prompt and adequate investigation into the circumstances surrounding the killing of İrfan Ağdaş. It accordingly dismisses the Government’s preliminary objection based on non-exhaustion of domestic remedies (see paragraphs 82-84) and holds that there has been a violation of Article 2 in this respect. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 106.", "The applicant complained that he had been deprived of effective access to a court in breach of Article 6 § 1 of the Convention. He contended that the facts of the case demonstrated that there was no commitment to carry out an effective investigation into his brother’s murder and that the domestic court was determined to acquit the police officers. Article 6 § 1 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. (...)” 107.", "The Government argued that the investigation into the incident and the prosecution of the police officers provided an effective remedy into the applicant’s allegations. 108. The Court observes that the applicant’s grievance under Article 6 § 1 of the Convention is inextricably bound up with his more general complaint concerning the manner in which the investigating authorities treated the death of his brother and the repercussions which this had on access to effective remedies which would help redress the grievances he had as a result of the killing. It is accordingly appropriate to examine the applicant’s Article 6 complaint in relation to the more general obligation on Contracting States under Article 13 of the Convention to provide an effective remedy in respect of violations of the Convention including Article 2 thereof, which, it is to be noted, cannot be remedied exclusively through an award of compensation to the relatives of the victim (see, mutatis mutandis, Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, pp. 2285‑86, §§ 93–94, and Aydın v. Turkey, judgment of 25 September 1997, Reports 1997-VI, pp.", "1894–96, §§ 100–103). 109. The Court recalls 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 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 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 the omissions of the authorities of the respondent State (see Aksoy, cited above, § 95, Aydın, cited above, § 103, Menteş and Others v. Turkey, judgment of 28 November 1997, Reports 1997-VIII, § 89, and Kaya, cited above, § 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 Kaya, cited above, § 107). 110. On the basis of the evidence adduced in the present case, the Court has not found it proved beyond reasonable doubt that the applicant’s brother had been unjustifiably killed by State agents. As it has held in previous cases, however, that does not preclude the complaint in relation to Article 2 from being an “arguable” one for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no.", "131, p. 23, § 52, Kaya, cited above, § 107, and Yaşa, cited above, § 113). 111. The authorities thus had an obligation to carry out an effective investigation into the circumstances surrounding the death of the applicant’s brother. For the reasons set out above (paragraphs 101-105), no effective criminal investigation can be considered to have been conducted in accordance with Article 13, the requirements of which are broader than the obligation to investigate imposed by Article 2 (see Kaya, cited above, § 107). The Court finds therefore that the applicant has been denied an effective remedy in respect of the death of his brother and thereby access to any other available remedies at his disposal, including a claim for compensation.", "Consequently, there has been a violation of Article 13 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 112. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 113.", "When submitting his application, the applicant claimed in general that a compensation be awarded to him. However he did not give any particulars of these claims, as required by Rule 60 of the Rules of Court, although he was requested to do so. 114. As regards pecuniary damage the Court notes that İrfan Ağdaş was still a high school student at the time of the incident. In the absence of any evidence that proves the contrary, the Court assumes that he did not have any income.", "Accordingly, it does not find it appropriate to award compensation for pecuniary damages. 115. The Court reiterates that it has found that the authorities failed to carry out an effective investigation into the circumstances surrounding the death of the applicant’s brother contrary to the procedural obligation under Article 2 of the Convention and in breach of Article 13 of the Convention. In the light of its established case-law in similar cases (see Tepe, cited above, § 215, and Ülkü Ekinci v. Turkey, no. 27602/95, § 171, 16 July 2002) and having regard to the circumstances of the case the Court awards the applicant the sum of 15,000 Euros (EUR) for non-pecuniary damage.", "B. Costs and expenses 116. The applicant did not seek the reimbursement of costs and expenses relating to the proceedings before the Court and this is not a matter which the Court has to examine of its own motion (see Mehdi Zana v. Turkey, no. 29851/96, § 25, 6 March 2001). C. Default interest 117.", "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. Dismisses unanimously the Government’s preliminary objection; 2. Holds by 6 votes to 1 that there has been no violation of Article 2 of the Convention as regards the death of the applicant’s brother; 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 unanimously that it is not necessary to consider the applicant’s complaint under Article 6 § 1 of the Convention; 5. Holds unanimously that there has been a violation of Article 13 of the Convention; 6. Holds unanimously (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 15,000 (fifteen 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 27 July 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O’BoyleNicolas BratzaRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate partly dissenting opinion of Sir Nicolas Bratza is annexed to this judgment. N.B.M.O’B.", "PARTLY DISSENTING OPINION OF JUDGE BRATZA 1. While sharing the view of the majority of the Chamber that there was in the present case a violation of Article 2 of the Convention in its procedural aspect, I would have gone further and found that there was additionally a violation of the substantive provisions of that Article. 2. The case is materially different from a number of cases against Turkey which have been examined by both the former Commission and the Court, involving the killing of individuals by unknown perpetrators (see, for example, Yaşa v. Turkey judgment of 2 September 1998, Reports 1998-VI, Tanrıkulu v. Turkey [GC], no.23763/94 judgment of 8 July 1999, Reports 1999-IV; Mahmut Kaya v. Turkey, no.22535/93, judgment of 28 March 2000, Reports 2000-III; Kılıç v. Turkey, no.22492/93, judgment of 28 March 2000, Reports 2000-III; Akkoç v. Turkey, nos. 22947/93 and 22948/93, judgment of 10 October 2000, Reports 2000-X).", "In each of these cases, it was found that it had not been established to the requisite standard of proof, that is “beyond reasonable doubt”, that police officers, members of the security forces or other agents of the State had been responsible for the deprivation of life of which complaint was made. By contrast, in the present case it is undisputed that police officers shot and killed the applicant’s brother, İrfan Ağdaş. In these circumstances, so far from the burden of proof resting on the applicant, it seems to me that it must in principle be for the respondent State to establish on the evidence before the Court that the deprivation of life resulted from the use of force which was no more than “absolutely necessary” for one or more of the legitimate purposes set out in paragraph 2 of Article 2 – in this case, the “defence of any person from unlawful violence”. This term indicates that a stricter and more compelling test of necessity must be employed than that applicable when determining whether State action is “necessary in a democratic society” under paragraph 2 of Articles 8 to 11 of the Convention: the force used must be shown to be strictly proportionate to the achievement of the permitted aims (see McCann and Others v. the United Kingdom judgment of 27 September 1985, Series A no. 324, p. 46 §§ 148-149; Gül v. Turkey, no.22676/93, judgment of 14 December 2000, § 77).", "3. In the present case, the death of İrfan Ağdaş was the subject of criminal proceedings for intentional homicide instituted against the three police officers concerned in November 1996. In April 2001 (some five years after the death and four and a half years after the filing of the indictment) the Eyüp Assize Court acquitted the police officers, finding them to have acted in self-defence when İrfan Ağdaş opened fire on them. The decision of the Assize Court was upheld on appeal by the Court of Cassation in July 2002. 4.", "I accept that in normal circumstances it would require cogent elements to lead the Court to depart from the reasoned findings of fact reached by national judicial authorities, particularly where, as in the present case, the Court has not itself had the benefit of seeing and examining the relevant witnesses and forming its own assessment of their credibility. However, as is pointed out in the judgment (§ 91) the central importance of the protection afforded under Article 2 is such that the Court is required to subject deprivations of life to the most careful scrutiny even where domestic proceedings and investigations have already taken place. Moreover, in view of the different burden of proof in criminal proceedings as well as the different standards applied in assessing criminal responsibility, the fact that such proceedings resulted in the acquittal of the police officers can in no sense be regarded as decisive of the issue which arises under the Convention, namely whether the use of force has been shown to be absolutely necessary. 5. In paragraph 94 of the judgment, the Court has noted its serious doubts as to how the shooting took place, these doubts stemming largely from the manner in which the investigation at the scene of the incident, the post-mortem examination and the investigation by the criminal court had been conducted.", "I not only share these doubts but consider that the serious deficiencies in the investigation and in the resulting proceedings were such that it has not been shown that the use of force was no more than absolutely necessary or that it was strictly proportionate to any of the aims permitted under Article 2. I would, in particular, highlight the following troubling features of the case. a) As noted above, the criminal proceedings against the police officers lasted more than 5 years. The accused police officers were summoned for the first time to give their statements before the Assize Court in May 1997, one year after the killing had taken place. One of the accused appeared before the court in September 1997, four months after the summons had been issued and after five hearings had already taken place; the other two officers appeared before the court to give their statements only in March 1998, nearly a year after the summons had been issued.", "On the same date, the Assize Court summoned the police officers who had collected the empty cartridges to give their statements before the court; in the result, only one of the police officers from the squad appeared before the court in February 1999, eleven months after the summons had been issued. b) It appears that the 9 mm Browning gun allegedly used by the applicant’s brother and retrieved by the police officers was never subjected to any fingerprint analysis in order to establish whether it had ever been handled by him. This is the more remarkable having regard to the fact that no nitrate or nitrite ion traces were found in the chemical analysis of the skin samples taken from İrfan’s hands, even though the first ballistic report concluded that seven bullets had been discharged from the gun (see § 25). I note that in its judgment the Eyüp Assize Court does not appear to have remarked on either of these points. c) Although two ballistic examinations were carried out, there appear to have been significant contradictions between the results of the examinations.", "In the report of the examination carried out by the Criminal Police Laboratory of Istanbul on 14 May 1996, it is stated that of the seventeen empty 9 mm cartridges submitted for examination from the scene of the incident, seven of the bullets had been fired from the Browning gun and ten from the weapons used by the police officers (judgment, § 25). However, in response to the applicant’s complaint that the empty cartridges kept in the Eyüp Security Directorate were not the same as those mentioned in the ballistics report, the Assize Court in April 1999 ordered that the cartridges be produced. The cartridges were not in fact produced until July 2000, some fifteen months later, the Security Directorate having claimed in September 1999 that the cartridges had been lost during renovations in the police station. On the order of the Assize Court, a further ballistic examination of the three weapons belonging to the accused police officers was conducted on 7 August 2000 by the same Criminal Police Laboratory. In its report of 23 October 2000 the Laboratory concluded that only four of the seventeen empty cartridges matched one of the weapons.", "Of the remaining cartridges, six came from a different weapon and seven from yet another weapon, neither of which weapons had been submitted for ballistic examination (judgment, § 75). This apparent inconsistency does not appear to have been commented on in the Assize Court’s judgment. d) It was the accused officers’ case that they had approached four suspects in order to carry out an identity check and body search, that the suspects had all run away and that during their flight İrfan had opened fire at the police officers. This account would appear difficult to reconcile with the contemporary radio communications in which there is no mention of any person other than İrfan (“There was a person carrying a plastic bag. We opened fire at him, we captured the wounded person... we shot the man.”).", "In the same communication it is also far from clear that the police officers were responding to the opening of fire on them. As is noted in the judgment of the Assize Court, the police headquarters reported that the TEM team had captured a person “in a mixed 502 situation”, that is in a situation of armed conflict with the police. The Assize Court explained this by saying that it was only in the heat of themoment that the police officers had informed the headquarters that such a situation of conflict had occurred. But no explanation is offered for the fact that in the subsequent exchange the headquarters reported that the TEM team had opened fire “without a 502 situation”. e) It appears that at least two of the three persons alleged to have been with İrfan at the time of the incident were not only known to the authorities but had been taken into police custody at a later date.", "However, it does not appear that they were ever questioned about the alleged incident. When for the first time in February 2000 the Assize Court requested information about the identity and addresses of the three individuals, the Security Directorate reported that two of the individuals who were “terrorists” had been killed in an operation conducted on 20 August 1996 in Eyüp (judgment, §§ 70-72). f) Despite B.M.’s evidence that, immediately after the shooting, a crowd of people descended on the officers with the result that they had quickly to put İrfan in the car, the only independent eye-witness called to give evidence was A.B. There is nothing to suggest that any attempt was at any stage made by the authorities to trace and interview other eye-witnesses of the incident. A.B.", "gave evidence which contradicted the account of the accused police officers that İrfan had opened fire on them. The Assize Court’s conclusion that she had not in fact witnessed the incident and that her evidence was not sincere was based primarily on the fact that in her statement before the court she had placed the incident some two hours before it had in fact occurred and on the fact that she saw only one bullet wound in İrfan’s body and thus appeared to have assumed that the other bullet found to have struck İrfan must have been fired in the car – a fact which was disproved by the autopsy report. While accepting that the Assize Court was better placed to assess AB’s credibility, I do not find either of the grounds relied on by that court as affording convincing reasons for rejecting her evidence in its entirety. In this regard I note that in her statement to the applicant’s representative made a few months after the event, A.B. had given the time of the incident as “around 7 p.m.” when “it was starting to get dark”, an estimate which was closer to the actual time than that made nearly a year later.", "I also note that it appears that A.B. was not the only person who initially thought that İrfan had been struck by a single bullet: in his evidence to the Assize Court, A.Y., one of the accused police officers, stated that İrfan had told him that he had been shot in the left arm and that “it did not seem to be a serious wound”. 6. Notwithstanding their doubts about the circumstances in which İrfan lost his life, the majority of the Court find that there is an insufficient factual and evidentiary basis on which to conclude that he was deprived of his life as a result of the use of force which was more than absolutely necessary (judgment, § 96). But this to my mind is to apply the wrong test and to reverse the burden of proof.", "As noted above, the test to be applied is not whether there is a sufficient evidence to satisfy the Court that the use of force was more than absolutely necessary; rather, it is whether the evidence is such as to satisfy the Court that the use of force was no more than absolutely necessary in self-defence. On the basis of the material before the Court, I am not so satisfied and consequently do not find that the killing of İrfan was justified in terms of Article 2 of the Convention." ]
[ "FOURTH SECTION CASE OF HORYCH v. POLAND (Application no. 13621/08) JUDGMENT STRASBOURG 17 April 2012 FINAL 17/07/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Horych v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: David Thór Björgvinsson, President,Lech Garlicki,Päivi Hirvelä,George Nicolaou,Zdravka Kalaydjieva,Nebojša Vučinić,Vincent A. De Gaetano, 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 an application (no. 13621/08) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Andrzej Horych (“the applicant”), on 25 February 2008. 2. The applicant was represented by Mr J. Znamiec, a lawyer practising in Kraków. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.", "3. The applicant alleged, in particular, that the prolonged imposition of the so-called “dangerous detainee” regime on him had been in breach of Article 3 of the Convention and that restrictions on his contact with his family amounted to a violation of Article 8 of the Convention. 4. On 31 August 2009 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1957 and lives in Warszawa. He is currently detained in the Warsaw Mokotów Remand Centre. A.", "Criminal proceedings against the applicant (case no. IV K 200/05) 6. On 14 July 2004 the applicant was arrested on suspicion of drug smuggling. On 15 July 2004 the Gdańsk District Court (Sąd Rejonowy) remanded him in custody for 3 months, relying on the reasonable suspicion – supported by evidence taken from witnesses – that he had committed the offence in question and the need to secure the proper course of the proceedings. The court also attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant and the risk that he would attempt to induce witnesses to give false testimony or would otherwise obstruct the proceedings.", "That risk was justified by the fact that the case involved a large number of accomplices who had not yet been apprehended. 7. An appeal by the applicant against the detention order, likewise his further appeals against subsequent decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him were unsuccessful. In his applications and appeals, he argued that his lengthy detention violated the provisions of the Code of Criminal Procedure relating to the imposition of this measure. 8.", "In the course of the investigation, the applicant’s detention was extended on several occasions, namely on 21 September 2004 (to 31 December 2004), 21 December 2004 (to 31 March 2005) and 22 March 2005 (to 30 June 2005). In all their decisions the authorities relied on the original grounds given for the applicant’s detention. The courts also stressed the fact that, owing to the complexity of the case, the investigation had still not been completed. 9. On 16 June 2005 a bill of indictment was lodged with the Gdańsk Regional Court (Sąd Okręgowy).", "The applicant, together with 3 other co‑accused, was indicted on charges of drug smuggling and conspiracy to import drugs committed in an organised criminal group aiming at importing into Poland considerable amounts of drugs. 10. During the court proceedings the courts further extended the applicant’s detention on several occasions, namely on 23 June 2005 (to 30 September 2005), on an unspecified subsequent date, on 28 June 2006 (to 30 October 2006), 3 October 2006 (to 31 December 2006), 28 December 2006 (to 30 April 2007), 25 April 2007 (31 August 2007), 22 August 2007 (to 31 December 2007), 11 December 2007 (to 31 March 2008), 18 March 2008 (until 30 June 2008), 25 June 2008 (until 30 September 2008) and 18 September 2008 (until 31 December 2008). The courts repeated the grounds previously given for keeping the applicant in custody. They attached importance to the likelihood of a severe sentence of imprisonment being imposed on him and the risk that he would obstruct the proceedings.", "11. On 19 October 2005 the Regional Court held the first hearing. The trial continued until 30 December 2008. Throughout that time 98 hearings were scheduled. The hearings took place at last once a month but at certain periods the court held up to 5 hearings per month.", "On average, they were held at 2 week-intervals and there was no interruption of the trial longer than 5 weeks. 12. On 30 December 2008 the court convicted the applicant of drug smuggling and conspiracy to import drugs but acquitted him of acting in an organised criminal group. He was sentenced to a cumulative penalty of 12 years’ imprisonment. The Court deducted the period of his detention from 14 July 2004 to 12 June 2005 from his sentence.", "The applicant appealed. 13. The applicant did not specify when the proceedings had terminated but it appears that they most likely ended between the end of 2009 and the beginning of 2010. B. Other criminal proceedings against the applicant 1.", "Case no. III K 120/06 before the Kraków Regional Court 14. On an unspecified date in 2005 the Kraków Regional Court convicted the applicant of drug-related offences committed in an armed organised criminal group and sentenced him to 15 years’ imprisonment. The applicant started to serve the sentence on 13 June 2005. 2.", "Case no. XVIII K 311/07 before the Warsaw Regional Court 15. On an unspecified date, apparently on 18 January 2006, the Ostrołęka Regional Prosecutor charged the applicant with, among other things, leading an organised criminal group called “mokotowska” involved in trafficking large amounts of drugs, arms and ammunition, money laundering, bribery of public officials, kidnapping, extortion, armed robbery and other theft-related offences. 16. On 19 January 2006 the Ostrołęka Distrcit Court remanded the applicant in custody relying on the reasonable suspicion that he had committed the offences with which he had been charged.", "The court underlined that the suspicion was fully supported by evidence obtained from a crown witness (świadek koronny) and confirmed by other evidence, such as searches, inspections of crime scenes and testimonies of other witnesses. It also referred to the risk that the applicant would try to bring pressure to bear on witnesses, the need to secure the proper course of the investigation and the likelihood that a severe penalty – minimum 8 years’ imprisonment ‑ would be imposed on him. 17. On an unspecified date, apparently in 2009, the Warsaw Regional Court convicted the applicant as charged and sentenced him to 14 years’ imprisonment. 18.", "The applicant did not inform the Court of the further course of the proceedings. C. Proceedings under the 2004 Act (case no. II S 22/07) 19. On 18 July 2007 the applicant lodged with the Gdańsk Court of Appeal (Sąd Apelacyjny) a complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). 20.", "The applicant sought a ruling that the length of the proceedings in case no. IV K 200/05 (see paragraphs 6-13 above) had been excessive and an award of just satisfaction in the amount of 10,000 Polish zlotys (PLN) (approx. 2,500 euros (EUR)). 21. On 25 September 2007 the Gdańsk Court of Appeal dismissed his complaint as unfounded.", "It held that since the beginning of the trial 61 hearings had been scheduled in the case until 24 August 2007 and only 11 of them had been adjourned due to the absence of counsel or co‑suspects and because of a lay judge’s illness. The court concluded that the proceedings had been conducted with the requisite speed and without undue delay. D. The “dangerous detainee” regime 1. Detention facilities in which the applicant was held 22. After his arrest on 14 July 2004 (see paragraph 6 above) the applicant was detained in the Sztum Prison (Zakład Karny).", "Shortly afterwards, on an unspecified date, he was transferred to the Gdańsk Remand Centre (Areszt Śledczy). He remained there until 22 January 2009 but in 2008 he was transferred to the Warszawa-Mokotów Remand Centre for a few months. From 22 January 2009 to 9 June 2009 he was detained in the Kraków Remand Centre. Later he was held in the Radom Prison and then transferred to the Warsaw Mokotów Remand Centre. 2.", "Imposition of the regime and its continuation 23. On 22 July 2004 the Sztum Prison Penitentiary Commission (Komisja Penitencjarna) classified the applicant as a “dangerous detainee” (a so-called ”tymczasowo aresztowany niebezpieczny”; in the relevant legal provisions referred to as ”tymczasowo aresztowany stwarzający poważne zagrożenie społeczne albo poważne zagrożenie dla bezpieczeństwa aresztu”). It considered that it was necessary to place the applicant in a solitary cell designated for such detainees at a special high-security prison ward because he had been charged with serious offences committed in an organised criminal group. Pursuant to Article 212a § 3 of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy), this circumstance by itself justified the classification of a detainee as “dangerous”. The commission also referred to the applicant’s serious lack of moral character (wysoki stopień demoralizacji).", "24. Every three months the Gdańsk Remand Centre’s Penitentiary Commission (Komisja Penitencjarna Aresztu Śledczego) reviewed its decision on the classification of the applicant as a “dangerous detainee”. The applicant appealed against many of those decisions. He submitted that the offences with which he had been charged, in particular drug-smuggling, did not justify the imposition of the special regime. He argued that the measure had been extended automatically without any consideration for his health and mental well-being, that it had in fact been imposed for an unlimited duration and was putting an exceptionally severe strain on him and his family.", "He also complained about being subjected to a strip search every time he left and entered the cell. All the appeals were dismissed. 25. On 3 September 2007 the Gdańsk Regional Court – Penitentiary Division examined the applicant’s appeal against the Gdańsk Remand Centre’s Penitentiary Commission’s decision of 10 July 2007 prolonging the application of the “dangerous detainee” regime and continuing to hold him in a solitary cell. In his appeal, the applicant underlined that the special regime had already been imposed on him for some 3 years and that its continuation had been based solely on the charges laid against him, without any court conviction.", "In his view, this was in breach of the principle of the presumption of innocence. The court rejected the applicant’s argument that the nature of the offences with which he had been charged did not justify the continued application of that regime in his case. In that regard, it stressed that the applicant had been charged in three separate sets of criminal proceedings conducted by different courts or prosecutors and those other charges included, among other things, the leading of an organised and armed criminal group, kidnapping, armed robbery and arms trafficking. The nature of the charges and the applicant’s personal circumstances, such as his previous criminal record, leadership qualities and tendency to dominate the others fully supported the view that there existed the “danger [to society and the security of a remand centre]” referred to in Article 212a of the Code of Execution of Criminal Sentences. In sum, there was no indication that the contested decision was contrary to the law, which was the sole ground on which it could be challenged and possibly quashed.", "As regards the applicant’s argument that his contacts with his family were severely restricted as a result of his “dangerous detainee” status, the court held that those restrictions were lawful as being applied under the relevant provisions of the Code of Execution of Criminal Sentences and did not make it impossible for him to maintain such contacts. 26. On 11 December 2007, 15 February 2008 and 3 June 2008 the Gdańsk Regional Court – Penitentiary Division, relying on the same grounds, rejected further appeals against the Penitentiary Commission’s decisions prolonging the imposition of the “dangerous detainee” regime on the applicant. In his appeals, the applicant submitted that his prolonged solitary confinement was putting an exceptionally severe emotional strain on him, which was compounded by his lack of sufficient contact with the family. He also complained that the routine strip-searches, to which he had been subjected, sometimes several times a day, were intrusive, unnecessary and humiliating.", "27. Further decisions on the prolongation of the “dangerous detainee” regime were based on similar grounds or repeated the initial reasons. On 19 August 2009 the Radom Regional Court upheld the Penitentiary Commission’s decision to continue the imposition of the regime, given on 23 June 2009, in view of the serious nature of the charges brought against the applicant and his personal circumstances, such as his leadership qualities and tendency to dominate the others and his serious lack of moral character. On 23 October 2009 the Warsaw Regional Court upheld a similar decision, stressing that since 13 June 2005 the applicant had been serving a sentence of 15 years’ imprisonment, following his conviction for drug‑related offences committed in an organised criminal group. He had also been convicted at first instance by the Gdańsk District Court for other drug‑related offences and sentenced to 12 years’ imprisonment.", "In these circumstances, the special regime had to be continued. On 14 July 2010 the Warsaw Regional Court upheld another decision of the Penitentiary Commission, relying on the applicant’s criminal convictions and stressing that under the applicable legal provisions no time‑limit was set for the imposition of the regime. On 30 August 2011 the Warsaw Regional Court upheld the Penitentiary Commission’s decision of 2 August 2011. Noting that the decision was based on the fact that the applicant, in view of his personal circumstances and serious lack of moral character, posed a serious danger to prison security and order, as well as to prison officers’ safety, the court found that this assessment had been objective and fully justified the continuation of the regime. 28.", "Throughout his detention the applicant repeatedly requested the authorities to place him with another inmate, complaining that his excessively long solitary confinement had severely affected his emotional and mental well-being. 29. The regime is still being applied to the applicant and he is still held in a solitary cell. In all likelihood, pursuant to Article 212a § 3 of the Code of Execution of Criminal Sentences (see paragraph 44 below), the regime will continue until he has finished serving his three consecutive sentences of imprisonment, or at least the sentence following the conviction for leading an organised and armed criminal group, kidnapping, arms and drug trafficking. At present it is estimated that the applicant’s imprisonment would come to an end at the end of 2031.", "3. Particular aspects of the regime 30. Since 22 July 2004, when the applicant was placed in a solitary cell for dangerous detainees at the high-security prison ward until present, he has remained under increased supervision. The cells in which he has been held, including their sanitary facilities, have been constantly monitored via close-circuit television. They have also been searched frequently, sometimes on a daily basis.", "He has been subjected to a so‑called “personal check” (kontrola osobista), i.e. a thorough body search every time he has left and entered the cell. The applicant has explained that this means that each time he enters or leaves the cell he must strip naked in front of prison guards and carry out deep knee-bends from 6 to 10 times to enable an examination of his anus. Whenever he is outside his cell and the high-security ward, including his appearances at court hearings, the applicant must be handcuffed or required to wear so-called “joined shackles” (kajdanki zespolone) on his hands and feet (see paragraph 47 below). Those shackles consist of handcuffs and fetters joined together with chains.", "The applicant has many times unsuccessfully complained to the authorities that outside his cell his hands were handcuffed behind his back, which caused him considerable pain and difficulty in moving, especially during a daily walk. The applicant’s movements outside his cell and the special ward must be supervised by 2 prison guards. He is allowed to have a 1-hour long solitary walk per day in a segregated area. E. Restrictions on the applicant’s contact with his family 31. The applicant was entitled to 1 one-hour visit from the family per month.", "32. He supplied a document issued by the Governor of the Gdańsk Remand Centre on 13 February 2008, setting out a list of visits received by him up to that date. From 23 August 2004 to 20 January 2008, i.e. for 3 years and some 5 months, he was granted permission to have 11 “open visits” (widzenie przy stoliku). He was also granted 21“closed visits” (widzenie przez telefon) (see also paragraph 58 below).", "33. On most occasions only the applicant’s wife visited him. The applicant has 3 daughters M.H., K.H. and S.H. born, respectively, in 1988, 1993 and 1998.", "Throughout the above period he received visits from his oldest daughter on 2 occasions and from each of the two younger daughters once. 34. In 2004 the applicant was granted 6 visits, 2 of which were open and 4 closed. They took place on 23 August (this was an open visit from the applicant’s wife), 17 September (this was a closed visit from his wife, E.H., and M.H., his oldest daughter), 15 October, 29 October (on this occasion he received an open visit from his daughter M.H. ), 19 November and 17 December respectively.", "35. In 2005 the applicant was granted 10 visits, only 1 of which was open. They took place on 11 February, 11 March, 15 April, 12 May, 5 July, 28 July, 16 August, 30 September (this was a closed visit from his wife and K.H., one of his daughters), 28 October and 9 December 2005. 36. In 2006 the applicant received 7 visits (including 1 “open”) from his wife only.", "They took place on 28 February, 5 April, 13 June, 23 August, 20 October, 30 November and 29 December. 37. In 2007 the applicant was granted 7 visits from his wife, 4 of which were open visits. They took place on 9 February, 29 March, 1 June (on this open visit the applicant could also see S.H., his youngest daughter), 24 July, 6 September, 24 October and 27 November. 38.", "In 2008, as of the date of the issuance of the document, the applicant received one “open visit” from his wife – on 20 January 2008. He submitted that throughout the whole of 2008 he had received 5 family visits. 39. The applicant stated that his very limited contact with his daughters had been caused by the fact that the Gdańsk Remand Centre and the Kraków Remand Centre did not provide satisfactory conditions for visits by children or minor persons. A visit took place in a room where visitors were separated from a detainee by a Perspex window partition and bars, making it impossible for them to have any direct contact.", "A visitor, including a child, in order to reach the visiting area in the ward for dangerous detainees had to walk through the entire prison, past prison cells situated on both sides of the corridor. This exposed his daughters to the gaze of inmates and their reaction to the girls’ presence constituted an exceptionally traumatic experience for them. During the meeting, they were separated by a window and bars from their father, which was very stressful for them and made it impossible for them to have any normal contact. For that reason, considering that the conditions in which he was allowed to see his family in prison caused too much distress and suffering for his daughters, the applicant had to give up receiving visits from his daughters. 40.", "In the Kraków Remand Centre the visits to “dangerous detainees” could take place only on Tuesdays. For that reason, the applicant’s wife was unable to visit him on every occasion he was entitled to have a monthly visit because she worked from Monday to Friday. 41. The applicant made numerous complaints about poor visiting conditions and the practical impossibility of having contact with his daughters, but they were to no avail. F. Censorship of the applicant’s correspondence 42.", "The applicant’s correspondence with his family was censored. He supplied three envelopes bearing stamps that read respectively: “censored on 12 November 2007”, “censored on 8 January 2008”, “censored on 30 January 2008” and illegible signatures. The first letter was from his daughter, K.H., and two others from a family member, a certain K[a]. H. The applicant did not inform the Court about the contents of the letters and whether any parts of them had been expunged or otherwise censored. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Preventive measures, including pre-trial detention 43. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing others, so-called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland (no. 31330/02, §§ 27-33, 25 April 2006) and Celejewski v. Poland (no. 17584/04, §§ 22-23, 4 May 2006).", "B. “Dangerous detainee” regime 1. General rules 44. Article 212a of the Code of Execution of Criminal Sentences reads, in so far as relevant, as follows: “1. The penitentiary commission shall classify a detainee as posing a serious danger to society or to the security of a remand centre.", "It shall review its decisions on that matter at least once every three months. The authority at whose disposal a detainee remains and a penitentiary judge shall be informed of decisions taken. 2. A detainee, referred to in subparagraph 1, shall be placed in a designated remand centre’s ward or in a cell in conditions ensuring increased protection of society and the security of the remand centre. A penitentiary judge shall be informed about this placement.", "3. A detainee who is suspected of committing an offence in an organised criminal group or organisation aimed at committing offences shall be placed in a remand centre in conditions ensuring increased protection of society and the security of the remand centre, unless particular circumstances militate against such placement. ...” The penitentiary commission referred to in the above provision is set up by the governor of the prison or the governor of the remand centre. It is composed of prison officers and prison employees. Other persons ‑ such as representatives of associations, foundations and institutions involved in the rehabilitation of prisoners as well as church or religious organisations – may participate in the work of the commission in an advisory capacity.", "If the commission’s decision on the classification of a prisoner or detainee is contrary to the law, the relevant penitentiary court may quash or alter that decision (Article 76). A detainee may appeal against the penitentiary commission’s decision but solely on the ground of its non-conformity with the law (Article 7). 2. Functioning of wards for dangerous detainees in practice 45. Article 212b of the Code of Execution of Criminal Sentences lays down specific arrangements for the detention of a “dangerous detainee”.", "It reads, in so far as relevant, as follows: “1. In a remand centre a detainee referred to in Article 212a shall be held in the following conditions: 1) cells and places designated for work, study, walks, visits, religious services, religious meetings and religious classes, as well as cultural and educational activities, physical exercise and sports, shall be equipped with adequate technical and protective security systems; 2) cells shall be controlled more often than those in which detainees [not classified as “dangerous”] are held; 3) a detainee may study, work, participate directly in religious services, religious meetings and classes, and participate in cultural and educational activities, exercise and do sports only in the ward in which he is held; 4) a detainee’s movement around a remand centre shall be under increased supervision and shall be restricted to what is strictly necessary; 5) a detainee shall be subjected to a personal check (kontrola osobista) each time he leaves and enters his cell; 6) a detainee’s walk shall take place in designated areas and under increased supervision; ... 8) visits shall take place in designated areas and under increased supervision ...; 9) a detainee may not use his own clothes or footwear. Rules on the use of handcuffs, fetters and other restraint measures are laid down in the Cabinet’s Ordinance of 17 September 1990 on conditions and manner of using direct restraint measures by policemen (as amended on 19 July 2005) (Rozporządzenie Rady Ministrów z dnia 17 września 1990 r. w sprawie określenia przypadków oraz warunków i sposobów użycia przez policjantów środków przymusu bezpośredniego) (“the 1990 Ordinance”). Paragraph 6 of the 1990 Ordinance reads, in so far as relevant, as follows: “1b Handcuffs shall be put on hands kept on the front. If a person is aggressive or dangerous, handcuffs may be put on hands kept behind the back.", "2b In respect of persons detained or sentenced to imprisonment, in particularly justified cases joined shackles designed to be worn on hands and legs may be used.” 46. The “N” wards (from “niebezpieczny” – dangerous in Polish) designed for dangerous detainees are closed units within prisons or remand centres, shut off from other sections of the detention facility. They are placed in a separate building or in a specific part of the prison building fully isolated from other sections of the prison, usually through a special entry or corridor. A security door remains closed at all times and the entire ward is continually monitored via close-circuit television. Regular daily routines (provision of meals, clothes, etc.)", "are organised with the use of remote‑controlled devices, reducing to the minimum any direct contact between the detainees and the prison guards. The prison guards wear bullet‑proof jackets. Routine searches of cells are often carried out. 47. The detainees, whenever outside cells, even within the “N” ward, wear “joined shackles” or are handcuffed at all times.", "They are subjected to a personal check before leaving cells and on return. They all wear special red uniforms. They have a daily, solitary walk in a specially designated and segregated area and if they are allowed to spend some time in a day room, they usually remain alone. They are not necessarily subjected to solitary confinement and may share the cell with an inmate or inmates but, pursuant to paragraph 90 of the 2003 Ordinance, the number of detainees in the cell is limited to 3 persons at the same time. According to paragraph 91(1) of the Ordinance of the Minister of Justice of 31 October 2003 on means of protection of organisational units of the Prison Service (Rozporządzenie Ministra Sprawiedliwości z dn.", "31 października 2003 r. w sprawie sposobów ochrony jednostek organizacyjnych Służby Więziennej) (“the 2003 Ordinance”), a dangerous detainee can move about within the detention facility only singly. In justified cases such detainees may move in a group of three but under the increased supervision by the prison guards. Paragraph 91(4) states that, outside the cell and facilities designated for “N” detainees, an “N” inmate must be permanently and directly supervised by at least 2 prison guards. This restriction can only exceptionally and in justified cases be lifted by the Prison Governor. A dangerous detainee cannot perform any work using dangerous tools, handle devices designed to make dangerous or illegal objects, take up any work enabling him to set fire, cause an explosion or any danger to the prison security or work in any place enabling an escape or uncontrolled contact with other persons (paragraph 92).", "He is not allowed to make purchases in the prison shop but must submit his shopping list to a designated prison guard. The goods are delivered directly to his cell (paragraph 93). 48. As of 2008 there were 16 “N” wards in Polish prisons, which had the capacity to hold from 17 to 45 detainees. As of February 2010 there were 340 “dangerous detainees” (convicted or detained on remand) in “N” wards.", "3. Personal check 49. Article 116 § 2 of the Code of Execution of Criminal Sentences defines the “personal check” in the following way: “A personal check means an inspection of the body and checking of clothes, underwear and footwear as well as [other] objects in a [prisoner’s] possession. The inspection of the body, checking of clothes and footwear shall be carried out in a room, in the absence of third parties and persons of the opposite sex and shall be effected by persons of the same sex.” 50. Pursuant to paragraph 94 § 1 of the 2003 Ordinance: “1.", "A [dangerous] detainee shall be subjected to a personal or cursory check, in particular: 1) before leaving the ward or the workplace and after his return there; 2) before individual conversations or meetings with the representatives of the prison administration or other persons that take place in the ward; 3) immediately after the use of a direct coercive measure – if it is possible given the nature of the measure; 4) directly before the beginning of the escort.” 4. Monitoring of dangerous detainees 51. By virtue of the law of 18 June 2009 on amendments to the Code of Execution of Criminal Sentences (ustawa o zmianie ustawy – Kodeks karny wykonawczy) (“the 2009 Amendment”) Article 212b was rephrased and new rules on monitoring detention facilities by means of close-circuit television were added. The 2009 Amendment entered into force on 22 October 2009. 52.", "The former text of Article 212b (see paragraph 45 above) became paragraph 1 of this provision and a new paragraph 2 was introduced. This new provision is formulated as follows: “2. The behaviour of a person in pre-trial detention referred to in Article 212a § 1 and 4 in a prison cell, including its part designated for sanitary and hygienic purposes and in places referred to in paragraph 1 (1) [of this provision] shall be monitored permanently. The images and sound [obtained through monitoring] shall be recorded.” 53. The above provision belongs to the set of new rules that introduced monitoring in prisons by means of close-circuit television as a necessary security measure.", "The new Article 73a reads, in so far as relevant, as follows: “1. Detention facilities may be monitored through an internal system of devices recording images or sound, including close-circuit television. 2. Monitoring, ensuring the observation of a prisoner’s behaviour, may be used in particular in prison cells including parts designated for sanitary and hygienic purposes, in baths, in premises designated for visits, in places of employment of detainees, in traffic routes, in prison yards, as well as to ensure observation of the prison grounds outside buildings, including the lines of external walls. 3.", "Monitored images or sound may be recorded with the help of appropriate devices. 4. Monitoring and recording of sound may not include information subject to the seal of confession or secret protected by law. 5. Images from close-circuit television installed in the part of the prison cell designated for sanitary and hygienic purposes and in baths shall be transmitted to monitors or other devices referred to in paragraph 3 in a manner making it impossible to show [detainees’] private parts or their intimate physiological functions.", "...” 54. Pursuant to Article 73 (a) §§ 6 and 7, if the recorded material is not relevant for the prison security or security of an individual prisoner it shall be immediately destroyed. The Prison Governor decides for how long the relevant recorded material should be stored and how it is to be used. 55. However, all recorded material concerning a dangerous detainee is stored in accordance with Article 88c, which reads as follows: “The behaviour of a [detainee classified as dangerous] in a prison cell, including its part designated for sanitary and hygienic purposes and in places referred to in Article 88b (1) [places and premises designated for work, education, walking exercise, receiving visits, religious service, religious meetings and teaching, as well as cultural, educational and sports activity] shall be monitored permanently.", "The images and sound [obtained through monitoring] shall be recorded.” 56. Before that amendment, the rules on monitoring detainees were as included in paragraph 81 § 2 of the 2003 Ordinance, according to which a prison cell could be additionally equipped with video cameras and devices enabling listening. C. Right to visits in detention 1. Situation until 8 June 2010 57. Pursuant to Article 217 § 1 of the Code of Execution of Criminal Sentences, as applicable until 8 June 2010, a detainee was allowed to receive visitors, provided that he had obtained a visit permission (“zezwolenie na widzenie”) from the authority at whose disposal he remained, i.e.", "an investigating prosecutor (at the investigative stage) or from the trial court (once the trial had begun) or from the appellate court (in appeal proceedings). A detainee was entitled to 1 one‑hour long visit per month. 58. According to paragraphs 2 and 3, a visit should take place in the presence of a prison guard in a manner making it impossible for a detainee to have direct contact with a visitor but the authority which issued the permission may set other conditions. In practice, there are 3 types of visits: an “open visit”, a “supervised visit” (widzenie w obecności funkcjonariusza Służby Więziennej) and a “closed visit”.", "An open visit takes place in a common room designated for visits. Each detainee and his visitors have at their disposal a table at which they may sit together and can have an unrestricted conversation and direct physical contact. Several detainees receive visits at the same time and in the same room. A supervised visit takes place in the same common room but the prison guard is present at the table, controls the course of the visit, may restrict physical contact if so ordered under the visit permission, although his principal role usually is to ensure that the visit is not used for the purposes of obstructing the proceedings or achieving any unlawful aims and to prevent the transferring of any forbidden objects from or to prison. A closed visit takes place in a special room.", "A detainee is separated from his visitor by a Perspex partition and they communicate through an internal phone. 59. Article 217 § 5 lays down specific conditions for receiving visits by dangerous detainees in the following way: “In the case of a [dangerous detainee], the governor of the remand centre shall inform the authority at whose disposal a detainee remains of the existence of a serious danger for a visitor and that it is necessary to grant a visit permission in a manner making [his or her] direct contact with a detainee impossible.” 2. Situation as from 8 June 2010 (a) Constitutional Court’s judgment of 2 July 2009 (no. K. 1/07) 60.", "The judgment was given following an application, lodged by the Ombudsman on 2 January 2007, alleging that Article 217 § 1 of the Code of Execution of Criminal Sentences was incompatible with a number of constitutional provisions, including the principle of protection of private and family life (Article 47 of the Constitution), the principle of proportionality (Article 31 § 3 of the Constitution), Article 8 of the Convention and Article 37 of the United Nations Convention on the Rights of the Child. The Constitutional Court’s judgment became effective on 8 July 2009, the date of its publication in the Journal of Laws (Dziennik Ustaw). 61. The Constitutional Court ruled that Article 217 § 1, in so far as it did not specify the reasons for refusing family visits to those in pre-trial detention, was incompatible with the above provisions. The court held that this provision did not indicate with sufficient clarity the limitations on a detainee’s constitutional right to protection of private and family life.", "The court also considered that Article 217 § 1 was incompatible with the Constitution in so far as it did not provide for a possibility to appeal against a prosecutor’s decision to refuse a family visit to those in pre-trial detention. (b) Amendments to the Code of Execution of Criminal Sentences 62. On 5 November 2009 Parliament adopted amendments to Article 217 of the Code of Execution of Criminal Sentences. In particular, subparagraphs 1a-1f were added. These provisions stipulate that a detainee is entitled to at least one family visit per month.", "In addition, they indicate specific conditions for refusing a family visit to a detainee and provide an appeal procedure against such a refusal. The amendments entered into force on 8 June 2010. D. Monitoring of detainees’ correspondence 63. The relevant domestic law and practice concerning the censorship of prisoners’ correspondence are set out in the Court’s judgment in the case of Kliza v. Poland, no. 8363/04, §§ 29-34, 6 September 2007.", "E. Claim for damages for the infringement of personal rights 1. Liability for infringement of personal rights under the Civil Code 64. Article 23 of the Civil Code contains a non-exhaustive list of so‑called “personal rights” (dobra osobiste). This provision states: “The personal rights of an individual, such as, in particular, health, liberty, honour, 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 by the civil law regardless of the protection laid down in other legal provisions.” Article 24, paragraph 1, of the Civil Code provides: “A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ...", "In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.” 65. 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 an adequate sum as pecuniary compensation for non-material damage (krzywda) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...” 66. Articles 417 et seq.", "of the Polish Civil Code provide for the State’s liability in tort. Article 417 § 1 of the Civil Code (as amended) provides: “The State Treasury, or [as the case may be] a self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage (szkoda) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.” 2. Limitation periods for civil claims based on tort 67. Article 4421 of the Civil Code sets out limitation periods for civil claims based on tort, including claims under Article 23 read in conjunction with Articles 24 and 448 of the Civil Code. This provision, in the version applicable as from 10 August 2007, reads, in so far as relevant, as follows: “1.", "A claim for compensation for damage caused by a tort shall lapse after the expiration of three years from the date on which the claimant learned of the damage and of a person liable for it. However, this time-limit may not be longer than ten years following the date on which the event causing the damage occurred.” F. Remedies against unreasonable length of proceedings 68. The relevant domestic law and practice concerning remedies for the excessive length of judicial and enforcement proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland, no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V, and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005‑VIII, and in its the judgment in the case of Krasuski v. Poland, no.", "61444/00, §§ 34-46, ECHR 2005-V. III. INTERNATIONAL DOCUMENTS A. Recommendation Rec(2006)2 of the Committee of Ministers of the Council of Europe to Member States on the European Prison Rules (adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies) 69. The recommendation, in its part relating to the application of security measures reads, in so far as relevant, as follows: “Security “51.1 The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody. 51.2 The security which is provided by physical barriers and other technical means shall be complemented by the dynamic security provided by an alert staff who know the prisoners who are under their control.", "51.3 As soon as possible after admission, prisoners shall be assessed to determine: a. the risk that they would present to the community if they were to escape; b. the risk that they will try to escape either on their own or with external assistance. 51.4 Each prisoner shall then be held in security conditions appropriate to these levels of risk. 51.5 The level of security necessary shall be reviewed at regular intervals throughout a person’s imprisonment.” Safety “52.1 As soon as possible after admission, prisoners shall be assessed to determine whether they pose a safety risk to other prisoners, prison staff or other persons working in or visiting prison or whether they are likely to harm themselves. 52.2 Procedures shall be in place to ensure the safety of prisoners, prison staff and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety. 52.3 Every possible effort shall be made to allow all prisoners to take a full part in daily activities in safety.", "52.4 It shall be possible for prisoners to contact staff at all times, including during the night. 52.5 National health and safety laws shall be observed in prisons.” Special high security or safety measures “53.1 Special high security or safety measures shall only be applied in exceptional circumstances. 53.2 There shall be clear procedures to be followed when such measures are to be applied to any prisoner. 53.3 The nature of any such measures, their duration and the grounds on which they may be applied shall be determined by national law. 53.4 The application of the measures in each case shall be approved by the competent authority for a specified period of time.", "53.5 Any decision to extend the approved period of time shall be subject to a new approval by the competent authority. 53.6 Such measures shall be applied to individuals and not to groups of prisoners.” B. The 2009 Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 70. From 26 November to 8 December 2009 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) carried out a periodic visit to selected detention establishments in Poland. The CPT visited wards designated for dangerous detainees in the Poznań Remand Centre, the Racibórz Prison and the Rawicz Prison.", "The CPT report contains a general description of the “N” regime and a number of specific recommendations aimed at ameliorating conditions of detention of inmates with “N” category status in the establishments visited. It also lists recommendations aimed at removing perceived shortcomings in the “dangerous detainee” regime in general. 71. The following observations were made in paragraph 91 of the report in respect of the application of the regime: “The regime applied to ‘N’ category prisoners remained very restrictive, similar to the one described in the report on the 2004 visit. Out-of-cell time consisted essentially of one hour of outdoor exercise per day (taken either alone or in the company of a cellmate) and access to a recreation room twice weekly at Poznań Remand Prison and Racibórz Prison.", "Inmates could have their own TV in the cell. They were entitled to a weekly shower, two visits a month, and two phone calls per month for sentenced prisoners (at the prosecutor’s discretion for remand prisoners) at Rawicz and Racibórz prisons, and a five-minute-daily phone call for sentenced prisoners at Poznań Remand Prison. Contact with staff was limited to occasional visits by educators, psychologists and a chaplain. The CPT remains of the opinion that the regime for ‘N’ status prisoners should be fundamentally reviewed. Solitary confinement or small-group isolation for extended periods is more likely to de-socialise than re-socialise people.", "There should instead be a structured programme of constructive and preferably out-of-cell activities, and educators and psychologists should be proactive in working with \"N\" status prisoners to encourage them to take part in that programme and attempt to engage them safely with other prisoners for at least a part of each day. As stressed in the report on the visit in 2004, regardless of the gravity of the offences of which prisoners are accused or have been convicted and/or their presumed dangerousness, efforts must be made to provide them with appropriate stimulation and, in particular, with adequate human contact.” 72. In paragraph 92 of the report the CPT referred to the procedure for the classification as a “dangerous detainee” and the usually lengthy application of the “dangerous detainee” status in the following terms: “The procedure for allocation and review of ‘N’ status remained unchanged. Despite the presence of regular quarterly reviews, most prisoners remained in ‘N’ status for lengthy periods of time. ...", "The Committee must stress that placement in an ‘N’ unit should not be a purely passive response to the prisoner’s attitude and behaviour. Instead, reviews of placement should be objective and meaningful, and form part of a positive process designed to address the prisoner’s problems and permit his (re-)integration into the mainstream prison population. In the CPT’s opinion, the procedure for allocating a prisoner to ‘N’ status should be refined to ensure that only those who pose an ongoing high risk if accommodated in the mainstream of the prison population are accorded this status. Reviews of ‘N’ status should specify clearly what is to be done to assist the prisoner concerned to move away from the ‘N’ status and provide clear criteria for assessing development. Prisoners should be fully involved in all review processes.", "The Committee reiterates its recommendation that the Polish authorities review current practice with a view to ensuring that \"N\" status is only applied and maintained in relation to prisoners who genuinely require to be placed in such a category.” 73. In paragraph 94, the CPT expressed the following opinion regarding the practice of routine strip-searches: “The CPT also has serious misgivings about the systematic practice of obliging ‘N’ status prisoners to undergo routine strip-searches whenever entering or leaving their cells. The prisoners concerned had to undress completely, and squat fully naked in view of the guards and any prisoner(s) sharing the cell while all their clothes were examined. In the CPT’s opinion, such a practice could be considered as amounting to degrading treatment. The Committee recommends that strip-searches only be conducted on the basis of a concrete suspicion and in an appropriate setting and be carried out in a manner respectful of human dignity.” 74.", "The CPT gave the following general recommendations to the Polish Government in respect to prisoners classified as “dangerous” (“N” status): “- the Polish authorities to review the regime applied to ‘N’ status prisoners and to develop individual plans aimed at providing appropriate mental and physical stimulation to prisoners (paragraph 91); - the Polish authorities to review current practice with a view to ensuring that ‘N’ status is only applied and maintained in relation to prisoners who genuinely require to be placed in such a category (paragraph 92); - strip-searches to be conducted only on the basis of a concrete suspicion and in an appropriate setting, and to be carried out in a manner respectful of human dignity (paragraph 94). C. The Polish Government’s response to the CPT’s report 75. The Polish Government’s response to the CPT report was published on 12 July 2011. 76. In respect of the recommendation that the Polish authorities should revise the regime applied to “N” status prisoners and develop individual plans aimed at providing inmates with appropriate psychological and physical stimulation (paragraph 91), they stated: “Adult[s] ... classified in the category of so-called dangerous offenders have a possibility of selecting a system in which they serve their sentence of imprisonment, i.e.", "programmed impact or an ordinary system. The above does not apply to sentenced juvenile offenders who are classified as dangerous and who obligatorily serve their sentence in the system of programmed impact. In an ordinary system, a convict may use employment available at the penitentiary institution, as well as education and cultural-educational and sports classes. As far as such convicts are concerned, no plans are made for application of the individual programme of impact. The individual programme of impact is prepared in co-operation with the convict who declared that he wishes to serve his sentence in the system of programmed impact, which anticipates active participation of the convict in the process of re-socialization by means of fulfilment of tasks imposed upon him as part of the programme which are aimed at solving the problems constituting the grounds for the offences he committed.", "Dangerous convicts qualified in a therapeutic system requiring specialized impact are presented with individual therapeutic programmes preceded by diagnosis, which encompasses: 1) a description of the causes of the event; 2) a description of irregularities in the area of cognitive, emotional and behavioural processes; 3) characteristics of the actual state of their psychological and physical condition; 4) a description of the problem constituting the grounds justifying delegation for the therapeutic system; 5) description of individual problems of the convict; 6) evaluation of motivation to participate in implementation of the individual therapeutic programme; 7) indication of positive features if personality and behaviour of the convict. When developing an individual therapeutic programme, the following should be specified: 1) the scope of the conducted activities; 2) purpose of impact, possible to be undertaken in the conditions of a therapeutic ward or outside such ward, taking into account the properties of the convict; 3) methods of specialized impact; 4) criteria for implementation of an individual therapeutic programme. Convicts qualified in the category of so-called dangerous are subjected to penitentiary impact with limitations deriving from the fact of causing by them of serious social threat or a serious threat to security of the institution. Moreover, they are subjected to impact whose purpose is to, in particular, decrease emotional tensions, as well as limitation of tendencies for aggressive or self-aggressive behaviours. In the individual programme of impact and the individual therapeutic programme conducted for him, methods and measures are specified which are aimed at mental and physical stimulation of the convict.", "It should also be emphasised that each inmate, including dangerous offender, exhibiting symptoms of worsening of his mental conditions is covered by psychological and psychiatric help. Moreover, dangerous inmates are also covered by intensive psychological supervision for the purpose of elimination of tensions resulting from an increased isolation. The Polish prison system developed rules of organization and conditions of conduct of penitentiary impact against convicts, persons under detention on remand and punished persons who pose serious social danger or serious danger for security of the penitentiary institution or a detention on remand centre, kept in conditions ensuring increased security of the community and the security of the penitentiary institution. Such solutions are aimed at intensification and unification of impact against dangerous inmates, and in particular: - directing the penitentiary work on preventing of negative consequences of limitation of social contacts by organization and initiation of desirable activity as part of cultural-educational and sports activities, re-adaptation programmes; - undertaking measures connected with maintenance of mental hygiene, including the reduction of the level of stress and aggression; - a need of allowing the inmate to commence or continue education (in particular in case of juvenile offenders); - undertaking of employment in the division; - impact based on educational and prophylactic programmes. Recommendations of the Committee concerning development of individual programmes for dangerous convicts have been taken into account and are implemented according to the provisions binding in this regard.” 77.", "Referring to the recommendation that the Polish authorities should verify their current practice in order to ensure that the “N” status is accorded appropriately and maintained only in respect of prisoners who do, in fact, require to be qualified in such category (paragraph 92), the Government responded: “In the Polish penal law, the basic legal act specifying criteria of qualifying inmates creating serious social danger or serious danger to security of the institution is the [Code of Execution of Criminal Sentences]. The aforementioned inmates are placed in a designated division or cell of a penitentiary institution or an investigation detention centre in conditions ensuring increased protection of the community and the security of the penitentiary unit. An authority authorized to verify a necessity of further stay of the inmate in a designated division or cell is a penitentiary commission. The penitentiary commission is obliged to verify its decisions in this regard at least once every three months. Decisions taken by the penitentiary commission shall be each time notified to the penitentiary judge, and in the event of detention on remand, also to the authority at whose disposal the inmate is.", "The penitentiary commission performed an inquisitive and, in every case, individual analysis of justification of the request for qualification, as well as verifies a necessity of continued stay of the inmates in delegated division or cell. Moreover, attention should be drawn to the fact that each decision of the authority executing the judgement according to Art. 7 of the [Code of Execution of Criminal Sentences] is subject to an appeal by the inmate. Summing up the above, we can state that such frequent verification of this category of inmates, an analysis of behaviours and a legal situation gives a guarantee of real evaluation of the situation of the inmate and possible benefits deriving from continued application against him of an extended system of protection.” 78. Lastly, in regard to the recommendation that a strip-search should be conducted only on the basis of a concrete suspicion and under appropriate conditions, as well as with respect for human dignity (paragraph 94 of the Report), the Government stated: “The principles and procedures of performing a personal search of the inmate and other persons in penitentiary institutions and investigation detention centres are regulated in the [Code of Execution of Criminal Sentences] and the [Ordinance of the Minister of Justice of 31 October 2003 on means of protection of organisational units of the Prison Service].", "According to these provisions, personal check-up consists of examination of the body and checking clothes, underwear and shoes, including any objects in possession of the convict. Inspection of the body and checking-up clothes and shoes is each time performed by officers of the Prison Service in a separate room, in absence of any third parties and persons of a different sex, and is performed by persons of the same sex. The conducted control must, on many occasions have a prevention character, but it is always performed with respect for human dignity, applying the principle of humanitarianism and legality. The control is conducted for the purpose of finding dangerous and forbidden products and preventing an escape or in other justified cases. Departure from these rules would entail a realistic threat to security of the penitentiary unit and inmates kept therein.” THE LAW I.", "THE COURT’S ASSESSMENT OF FACTS 79. The account of the facts in the present case was provided by the applicant, who also supplied various documents in support of his complaints. The Government did not submit observations on the admissibility and merits of the application. Nor did they make any comments on the applicant’s claims for just satisfaction. In that regard, the Court would also note that the Government asked, and were granted by the President of the Chamber, extensions of the time-limits set for submission of their observations and, subsequently, their comments on the applicant’s claims for just satisfaction.", "80. In the circumstances, the Court will examine the admissibility and merits of the application solely on the basis of the applicant’s submissions and the documentary evidence produced by him (see Fedotov v. Russia, no. 5140/02, § 61, 25 October 2005; Kostadinov v. Bulgaria, no. 55712/00, § 50, 7 February 2008; and Wasilewska and Kałucka v. Poland, nos. 28975/04 and 33406/04, § 34, 23 February 2010).", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE IMPOSITION OF THE “DANGEROUS DETAINEE” REGIME 81. The applicant complained that the prolonged imposition of the “dangerous detainee” regime was in breach of Article 3 of the Convention. He referred, in particular, to his excessively long confinement in a solitary cell and humiliating strip searches with deep knee‑bends, to which he had been, and still was, subjected daily. 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 82.", "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 applicant’s arguments 83. The applicant maintained that his prolonged solitary confinement and complete segregation from other detainees, as well as his excessive isolation from his family and the outside world put an exceptionally severe emotional and mental strain on him. For many years he had to undergo daily, on occasions several times a day, humiliating strip-searches whenever he left or entered his cell, despite the fact that all his movements within the cell were monitored by means of close-circuit television. Outside the ward he was always supervised by prison guards. 84.", "In the applicant’s opinion, the prolongation of the regime had been a purely automatic exercise, which had not been based on any genuine review of his personal circumstances and behaviour in detention. The fact that he had been suspected of offences involving organised crime had sufficed for the authorities to extend the imposition of the “N” status indefinitely and his subsequent conduct in prison had not been considered at all. In that regard, he stressed that he had never had any record of bad or problem behaviour in prison. Nor had he ever been subjected to a disciplinary penalty for a breach of the prison rules or prison order. The applicant concluded that the treatment to which he was subjected under the “dangerous detainee” regime” amounted to treatment contrary to Article 3 of the Convention and asked the Court to find a breach of that provision.", "2. The Court’s assessment (a) General principles deriving from the Court’s case-law 85. Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Even in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned. The nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3 (see Labita v. Italy [GC], no.", "26772/95, § 119, ECHR 2000-IV; Indelicato v. Italy, no. 31143/96, § 30, 18 October 2001; Öcalan v. Turkey [GC], no. 46221/99, ECHR 2005- ..., § 179; and Ramirez Sanchez v. France [GC], no. 59450/00, ECHR-2006-..., § 115 et seq., with further references). 86.", "Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, for instance, Kudła v. Poland [GC], no. 30210/96, ECHR 2000-IX, § 91). 87. The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering.", "It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. On the other hand, 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, among other authorities, Kudła cited above, § 92, with further references). The question whether the purpose of the treatment was to humiliate or to debase the victim is a further factor to be taken into account, but the absence of any such purpose cannot conclusively rule out a violation of Article 3 (see Van der Ven v. the Netherlands, no. 50901/99, ECHR 2003-II, § 48). 88.", "Measures depriving a person of his liberty often involve an element of suffering or humiliation. However, it cannot be said that detention in a high-security prison facility, be it on remand or following a criminal conviction, in itself raises an issue under Article 3 of the Convention. Public-order considerations may lead the State to introduce high‑security prison regimes for particular categories of detainees and, indeed, in many State Parties to the Convention more stringent security rules apply to dangerous detainees. These arrangements, intended to prevent the risk of escape, attack or disturbance of the prison community, are based on separation of such detainees from the prison community together with tighter controls (see, for instance, Ramirez Sanchez, cited above, §§ 80-82 and 138; Messina (no. 2) v. Italy, no.", "25498/94, ECHR 2000-X, §§ 42-54; Labita, cited above, §§ 103-109; Rohde v. Denmark, no. 69332/01, 21 July 2005, § 78; Van der Ven, cited above, §§ 26-31 and 50; and Csüllög v. Hungary, no. 30042/08, 7 June 2011, §§ 13-16). 89. While, as stated above, those special prison regimes are not per se contrary to Article 3, under that 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 the execution of the measure do not subject him to distress or hardship of an intensity exceeding that 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, cited above, §§ 92-94; and Van der Ven, cited above, § 50).", "90. The Court, making its assessment of conditions of detention under Article 3, will take account of the cumulative effects of those conditions, as well as the specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, ECHR 2001-II, § 46). In that context, it will have regard to the stringency of the measure, its duration, its objective and consequences for the persons concerned (see Van der Ven, cited above, § 51 and paragraph 159 above). 91.", "Although the prohibition of contacts with other prisoners for security, disciplinary or protective reasons can in certain circumstances be justified, solitary confinement, even in cases entailing only relative isolation, cannot be imposed on a prisoner indefinitely. It would also be desirable for alternative solutions to solitary confinement to be sought for persons considered dangerous and for whom detention in an ordinary prison under the ordinary regime is considered inappropriate (see Ramirez Sanchez, cited above, §§ 145-146). 92. Furthermore, in order to avoid any risk of arbitrariness, substantive reasons must be given when a protracted period of solitary confinement is extended. The decision on the continuation of the measure should thus make it possible to establish that the authorities have carried out a reassessment that takes into account any changes in the prisoner’s circumstances, situation or behaviour.", "The statement of reasons will need to be increasingly detailed and compelling the more time goes by. Indeed, solitary confinement, which is a form of “imprisonment within the prison”, should be resorted to only exceptionally and after every precaution has been taken, as specified in paragraph 53.1 of the European Prison Rules adopted by the Committee of Ministers on 11 January 2006 (see Öcalan, cited above, § 191; Ramirez Sanchez, cited above, §§ 139 and 145-146; Messina (no.2) v. Italy (dec), no. 25498/94, ECHR 1999-V, with further references; and Csüllög v. Hungary, cited above, § 31). (b) Application of the above principles in the present case 93. The Court would first refer to the law governing the special regime.", "Pursuant to Article 212a § 3, if a detainee is suspected of an organised‑crime offence, the authorities have to apply the regime and, consequently, all the security measures enumerated in Article 212b, unless particular circumstances militate against this (see paragraphs 44-45 above). The legal formulation of the rule and exceptions to it could, in the Court’s view, generally result in an over-inclusive regime. This conclusion goes hand in hand with the findings of the 2009 CPT report, which underlined that the procedure for allocating a prisoner “N” status fails to ensure that only those who pose an ongoing high risk if accommodated in the mainstream prison population are accorded this status (see paragraph 72 above). Also, given the absence of any provisions linking that status with a person’s actual behaviour in prison, the legal framework of the “N” regime seems to be too rigid and not sufficiently oriented towards the individual circumstances of a particular detainee. However, it is not the Court’s role to assess the application of the restrictions under the regime in the abstract but to ascertain whether their cumulative effects on the applicant were incompatible with Article 3 of the Convention.", "94. Turning to the facts of the present case, the Court notes that the decision of 22 July 2004 imposing the “dangerous detainee” regime on the applicant was a legitimate measure, warranted by the fact that in one of two parallel criminal proceedings conducted against him at that time, namely in case no. III K 120/06 before the Kraków Regional Court, he had been charged with drug-related offences committed in an armed organised criminal group (see paragraphs 14 and 23 above). It was not, therefore, unreasonable on the part of the authorities to consider that, for the sake of ensuring prison security, he should be subjected to tighter security controls, involving increased and constant supervision of his movements within and outside his cell, limitations on his contact and communication with the outside world and some form of segregation from the prison community. As the Court has already held in similar cases concerning organised crime, in particular those lodged by persons linked to Mafia-type organisations, the existing, continuing danger that an applicant may re‑establish contact with criminal organisations is an element that may justify applying even harsh isolation measures in order to exclude such a possibility (see, for instance, Messina (no.2) (dec.), cited above).", "In the applicant’s case that risk had to be taken into account and further increased in 2005, following his conviction in case no. III K 120/06 and, subsequently, in January 2006, when the charges of leading an armed organised criminal group involved in, among other things, drug-trafficking, bribery of public officials, extortion, kidnapping and arms and ammunition trafficking were laid against him . He was convicted of these offences by the first-instance court apparently in 2009 (see paragraphs 15-17 above). Also, the monitoring of a detainee’s behaviour via close-circuit television at all times, as in the present case, although certainly intrusive, is not per se incompatible with Article 3. This measure serves the purposes of both ensuring prison security and protecting the detainee from the risk of pressure or even physical attack from the criminal community which, in the context of organised crime, cannot be excluded.", "95. However, for the reasons stated below, the Court cannot accept that the continued, routine and indiscriminate application of the full range of measures that were available to the authorities under the “N” regime for – as on the date of the adoption of this judgment – 7 years and 9 months was necessary for maintaining prison security and compatible with Article 3 of the Convention. 96. To begin with, since 22 July 2004 to date the applicant has continually been held in a solitary cell at a special high-security ward separated from the rest of the prison. Throughout this time he has been completely segregated from other inmates.", "All his repeated, numerous requests for placing another person in his cell were to no avail (see paragraphs 23 and 28-29 above). While he must have maintained a degree of daily contact with the prison staff, even if only for the sake of a daily walk (see paragraphs 30 and 45-47 above), his opportunities of communication, if only superficial, with other people in prison was very seriously reduced, nearly non-existent. It is true that he received family visits. Nonetheless, at least between July 2004 and the end of 2008 they only took place 5 to 10 times a year and most of them were “closed visits” without any direct contact, during which he was separated from the visitors by a Perspex partition and communicated with them by internal phone (see paragraphs 31-38 and 58-59 above). The Court does not overlook the ever present need to prevent any flow of illicit information between a gang leader and the outside world.", "Nevertheless, in the Court’s view, this – again very limited – possibility of human contact could not attenuate sufficiently the consequences of his nearly complete, prolonged isolation and his daily solitude for his mental and emotional well‑being. 97. As the CPT pointed out in its 2009 report, not only was the regime itself very restrictive but also the Polish authorities in general failed to provide “N” ward inmates with appropriate stimulation and, in particular, with adequate human contact (see paragraphs 71-74 above). In that report the authorities were explicitly criticised for not having developed “a structured programme of constructive and preferably out-of-cell activities”. It was recommended that “educators and psychologists should be proactive in working with “N” status prisoners to encourage them to take part in that programme and attempt to engage them safely with other prisoners for at least a part of each day” (see paragraph 71 above).", "The CPT also pointed out that “placement in an “N” unit should not be a purely passive response to the prisoner’s attitude and behaviour” (see paragraph 72 above). 98. In the Court’s view, the circumstances of the present case confirm the CPT’s observations. It does not appear that the authorities made any effort to counteract the effects of the applicant’s isolation by providing him with the necessary mental or physical stimulation except for a daily, solitary walk in the segregated area. As noted above (see paragraph 96 above), the applicant repeatedly brought the issue of his excessively long solitary confinement to the authorities’ attention.", "For reasons which were never explained in the relevant decisions, they did not consider it fit to place another inmate with him – be it for a short or trial term – even though this solution was explicitly provided under the 2003 Ordinance (see paragraphs 24-28 and 47 above). The Court would recall that all forms of solitary confinement without appropriate mental and physical stimulation are likely, in the long term, to have damaging effects, resulting in a deterioration of mental faculties and social abilities (see Csüllög v. Hungary, cited above, § 30, with further references). Considering the duration of the regime imposed on the applicant and the very limited possibilities available to him for physical movement and human contact, the Court has no doubt that his prolonged solitude must have caused him serious distress and mental suffering. 99. The negative psychological and emotional effects of his increased social isolation were aggravated by the routine application of other special security measures, namely the handcuffing and strip searches.", "The Court is not convinced that handcuffing the applicant with his hands kept behind his back on leaving his cell – which was a matter of everyday procedure unrelated to any specific circumstances concerning his past or current behaviour – was indeed necessary on each and every occasion. Moreover, in contrast to a personal check, which the authorities are expressly obliged to carry out pursuant to Article 212b § 1(5), handcuffing a detainee with his hands behind the back should only take place if “a person is aggressive or dangerous” (see paragraph 45 above). It does not appear that there was a permanent need to do so in the applicant’s case, given that in the prison he remained in a secure environment and other means of direct and indirect control of his behaviour were at the same time applied. 100. The Court also has misgivings in respect to the personal check to which the applicant was likewise subjected daily, or even several times a day, whenever he left or entered his cell.", "The Court is aware of the necessity to prevent a gangster from smuggling objects and/or communications out of his cell. Nevertheless, the strip-search, involving an anal inspection, was carried out as a matter of routine and was not linked to any concrete security needs, nor to any specific suspicion concerning the applicant’s conduct . It was performed despite the fact that outside his cell and the “N” ward he could move around the remand centre only by himself under a permanent and direct supervision of at least 2 prison guards and that his mobility was restricted due to his being handcuffed – in a stressful position with hands behind his back – all the time. In addition, his behaviour in the cell, including his use of sanitary facilities, was constantly monitored via close‑circuit television (see paragraphs 24, 26, 30, 47, 49 and 51-56 above). In this connection, the Court would again refer to the 2009 CPT report in which it expressed its considerable concern about the practice of strip‑searches applied to persons classified as dangerous detainees, in the following way: “[t]he CPT also has serious misgivings about the systematic practice of obliging “N” status prisoners to undergo routine strip-searches whenever entering or leaving their cells.", "The prisoners concerned had to undress completely, and squat fully naked in view of the guards and any prisoner(s) sharing the cell while their clothes were examined. In the CPT’s opinion, such a practice could be considered amounting to degrading treatment.” (see paragraph 73 above). 101. The Court agrees that strip-searches may be necessary on occasion to ensure prison security or to prevent disorder or crime (see Iwańczuk v. Poland, no 25196/94, 15 November 2001, § 59; and Van der Ven, cited above, § 60, with further references). However, it is not persuaded that systematic, intrusive and exceptionally embarrassing checks performed on the applicant daily, or even several times a day, were necessary to ensure safety in prison.", "Having regard to the fact that the applicant was already subjected in addition to several other strict surveillance measures, that the authorities did not rely on any concrete convincing security needs and that, despite the serious charges against him, he apparently did not display any disruptive, violent or otherwise dangerous behaviour in prison, the Court considers that the practice of daily strip-searches applied to him for 7 years and some 9 months, combined with his nearly complete social isolation, must have diminished his human dignity and caused him feelings of inferiority, anguish and accumulated distress which went beyond the unavoidable suffering and humiliation involved in the imposition of detention on remand (see Van de Ven, cited above, § 62 and paragraph 86 above). 102. Lastly, the Court would add that due to the strict, rigid rules for the imposition of the special regime and the vaguely defined “exceptional circumstances” justifying its discontinuation laid down in Article 212a § 3 of the Code of Execution of Criminal Sentences, the authorities, in extending that regime, were not in fact obliged to consider any changes in the applicant’s personal situation and, in particular, the combined effects of the continued application of the impugned measures (see paragraphs 44 and 93 above). Those rules – and this was also noted by the CPT – do not provide for adequate solutions enabling the authorities, if necessary, to adjust the regime to individual conduct or to reduce the negative impact of social isolation (see paragraphs 44-47 and 71-72 above). In the present case the authorities did not ever refer to any likelihood of the applicant’s escaping in the event of his being detained under a less strict regime.", "However, neither the apparent absence of such risk, nor the adverse emotional and mental effects of isolation as alleged by the applicant, were considered circumstances sufficient to justify lifting any of the strict measures applied under the regime (see paragraphs 24-29 above). In that context, the Court would again recall that, as stated above (see paragraph 92 above), in cases involving solitary confinement the authorities should act with special caution in imposing that measure and should examine carefully all the specific circumstances militating for or against its continuation. In contrast, it emerges from the relevant decisions that, apart from the original grounds based essentially on the admittedly very serious nature of the charges against the applicant, which included the leading of an armed organised criminal group involved in violent offences and on his “leadership qualities and tendency to dominate the others”, as well as his “serious lack of moral character”, subsequently the authorities did not find any other reasons for classifying him as a “dangerous detainee” (see paragraphs 23-27 above). While those circumstances could justify the imposition of the “N” regime on the applicant for a certain, even relatively long, period (see paragraph 93 above), they could not suffice as a sole justification for its prolonged continuation. As pointed out by the applicant (see paragraph 84 above), with the passage of time the procedure for review of his “dangerous detainee” status became a pure formality limited to a repetition of the same grounds in each successive decision.", "103. In conclusion, assessing the facts of the case as a whole and considering the cumulative effects of the “dangerous detainee” regime on the applicant, the Court finds that the duration and the severity of the measures taken exceeded the legitimate requirements of security in prison and that they were not in their entirety necessary to attain the legitimate aim pursued by the authorities. There has accordingly been a violation of Article 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE APPLICANT’S DETENTION IN CASE No.", "IV K 200/05 104. Under Article 5 § 3 of the Convention the applicant complained that the length of his pre-trial detention was excessive. Article 5 § 3, in so far as relevant, reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Period to be taken into consideration 105.", "On 14 July 2004 the applicant was arrested on suspicion of drug smuggling (see paragraph 6 above). On 13 June 2005, when he was still held in pre-trial detention in case no. IVK 200/05, he started to serve the sentence of 15 years’ imprisonment following his conviction for drug‑related offences committed in an organised criminal group (see paragraphs 8 and 14 above). Accordingly, his detention for the purposes of Article 5 § 3 of the Convention lasted 11 months. B.", "The applicant’s submissions 106. The applicant maintained that the length of his pre-trial detention had been excessive and unreasonable. He stressed that the national courts had failed to give valid reasons for keeping him in custody for the relevant period. C. The Court’s assessment 1. General principles deriving from the Court’s case-law 107.", "The Court recalls that the general principles regarding the right “to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention were stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland, cited above, § 110 et seq. ; and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further references). 2. Application of the above principles in the present case 108.", "In their detention decisions the authorities, in addition to the reasonable suspicion – supported by evidence taken from witnesses – that the applicant had committed the offences with which he had been charged, relied on the need to secure the course of the proceedings. In that context, they attached importance to the justified risk that the applicant would attempt to obstruct the process of obtaining evidence, in particular as the case involved a large number of accomplices who had not yet been apprehended, and the anticipated, severe penalty (see paragraphs 6‑8 above). 109. The Court accepts that, regard being had to the nature of the offence with which the applicant was charged and apparently considerable number of other persons involved but not yet heard, the authorities rightly assumed that holding him in custody was necessary to ensure that the investigation followed its proper course. While during the period to be examined under Article 5 § 3 the charges against the applicant did not yet include organised crime (see paragraphs 6 and 9 above), the prosecution certainly faced a difficult task of obtaining and securing voluminous evidence from many sources and determining the respective roles played by each suspect.", "In the nature of things, in cases where, as in the present one, numerous persons are involved, the risk that a detainee, if released, might bring pressure to bear on witnesses or accomplices or otherwise obstruct the proceedings must be considered a valid argument militating in favour of imposing detention, rather than other measures. This ground, even taken together with other reasons advanced by the authorities, might not by itself have been enough to justify a prolonged continuation of detention on remand. However, having regard to the fact that the period in question amounted to 11 months, the Court is satisfied that there were relevant and sufficient grounds for keeping the applicant in custody. Furthermore, it is apparent that despite the obvious complexity of the case, the authorities displayed due diligence in the conduct of the proceedings. The investigation lasted some 11 months only and there is no indication of any delay or lack of procedural activity on their part (see paragraphs 6-9 above).", "110. It follows that this part of the application is inadmissible as being manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF PROCEEDINGS IN CASE No. IV K 200/05 111.", "The applicant further complained under Article 6 § 1 of the Convention, that the length of the criminal proceedings against him had been excessive. Article 6, in so far as relevant, reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” A. The applicant’s arguments 112. The applicant maintained that the proceedings had been unreasonably lengthy and asked the Court to find a violation of Article 6 § 1 of the Convention. B.", "The Court’s assessment 1. General principles deriving from the Court’s case-law 113. The Court will assess the reasonableness of the length of the proceedings in the light of the particular circumstances of the case and having regard to the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities. On the latter point, what is at stake for the applicant has also to be taken into account (see, among many other authorities, Kudła, cited above, § 124). 2.", "Application of the above principles in the present case (a) Period to be taken into consideration 114. The proceedings began on 14 July 2004, when the applicant was arrested (see paragraph 6 above). The applicant described the course of the trial until his first-instance conviction, which was pronounced on 30 December 2008 (see paragraphs 6-12 above) but failed to inform the Court whether, and if so when, the proceedings had terminated (see paragraph 13 above). In that context, it is recalled that, pursuant to Rule 44C of the Rules of Court, where a party fails to divulge relevant information of its own motion or otherwise fails to participate effectively in the proceedings, the Court may draw such inferences as it deems appropriate. In the present case, having regard to all the material in its possession, the Court finds it appropriate to assume that the proceedings terminated around the end of 2009 or the beginning of 2010 at the latest.", "In consequence, their length is deemed to have amounted to some 5 years and 6 months at two court instances. (b) The Court’s conclusion 115. As already noted above, the case was complex. It involved charges of organised crime, which inevitably made the task of trying the accused considerably more difficult than in an ordinary criminal case (see paragraphs 9 and 107-108 above). Assessing the authorities’ conduct from the point of view of Article 5 § 3, the Court has already found that, despite the nature of the case, the investigation was terminated without undue delay (see paragraph 109 above).", "It comes to the same conclusion in respect of the court proceedings. The trial at first instance lasted from 16 June 2005 to 30 December 2008, that is to say, for 3 years and some 6 months (see paragraphs 9 and 12 above). Given that during that time the Regional Court listed 98 hearings, of which only a few were adjourned for valid reasons, that the hearings were held at regular intervals and that there were no periods of inactivity (see paragraphs 11 and 21 above), the Court finds that the first-instance proceedings were terminated within a “reasonable time”. The same is true in regard to the appellate proceedings which, as assumed above, ended within some 1 year, which cannot be considered an excessive period. 116.", "It follows that this part of the application is inadmissible as being manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF RESTRICTIONS ON CONTACT WITH THE FAMILY DURING THE APPLICANT’S DETENTION 117. The applicant further complained that the visiting regime resulting from his “dangerous detainee” status and the conditions in which visits from his family, in particular his daughters, took place practically deprived him of his family life in detention and amounted to a violation of Article 8 of the Convention. Article 8, in its relevant part, reads as follows: “1. Everyone has the right to respect for his ... family life ... .", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” ... A. Admissibility 118. 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 applicant’s arguments 119. The applicant maintained that for many years following his arrest on 14 July 2004 he had been practically unable to maintain basic contact with his family, in particular with his daughters. He in essence referred to his detention in the Gdańsk Remand Centre and the Kraków Remand Centre, stressing that his very limited contact with the daughters had been caused by the fact that those detention facilities had not provided satisfactory conditions for visits by children or minor persons.", "Those conditions, in his view, had been utterly unacceptable. A visitor, including a child, in order to reach the visiting area in the ward for dangerous detainees had to walk through the entire prison, past prison cells situated on both sides of the corridor. This exposed his daughters to the close – and especially unwelcome and disagreeable for females of their age – view of prison life and to the possible harassing, if only verbal, by inmates. It had been shocking even for an adult person and had constituted an exceptionally traumatic experience for young girls. 120.", "Moreover, visits took place in a room where visitors had been separated from a detainee by a Perspex window partition and bars, making it impossible for them to have any direct contact. During the meeting, the daughters were separated by a window and bars from the applicant, which had been very stressful for them and made it impossible for them to have any normal contact. For that reason, seeing that the conditions in which he had been allowed to meet the daughters had caused too much distress and emotional suffering for them, the applicant had to give up receiving visits from them. 121. In addition, he could not take advantage of all the visits from his wife to which he had been entitled because the authorities had imposed a very inflexible timing on them.", "For instance, in the Kraków Remand Centre the visits to “dangerous detainees” could take place only on Tuesdays. This made it impossible for his wife to visit him on every occasion because she worked from Monday to Friday. 2. The Court’s assessment (a) General principles deriving from the Court’s case-law 122. Detention, likewise 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 Messina (no. 2), cited above, § 61). There is no question that a prisoner, or a detainee, forfeits his Convention rights merely because of his status; a person retains his or her Convention rights in detention so that any restrictions on those rights must be justified in each individual case. This justification can flow, inter alia, from the necessary and inevitable consequences of imprisonment or from an adequate link between the restriction and the circumstances of the prisoner in question. (see, muatis mutandis, Hirst (no.", "2) v. the United Kingdom [GC], no. 74025/01, ECHR 2005-IX, § 69; and Dickson v. the United Kingdom [GC], no. 44362/04, ECHR 2007-..., §§ 67-68). 123. Such restrictions as limitations put on the number of family visits, supervision of those visits and, if so justified by the nature of the offence, subjection – as happened in the present case – 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 Messina (no.2), cited above,§§ 71-74) Nevertheless, any restriction of that kind must be applied “in accordance with the law”, must pursue one or more legitimate aims listed in paragraph 2 and, in addition, must be justified as being “necessary in a democratic society” (ibid.", "§§ 62-63; and Klamecki (no. 2) v. Poland, no 31583/96, 3 April 2003, § 144, with further references). The notion of “necessity” for the purposes of Article 8 means that the interference must correspond to a pressing social need, and, in particular, must remain proportionate to the legitimate aim pursued. Assessing whether an interference was “necessary” the Court will take into account the margin of appreciation left to the State authorities but it is a duty of the respondent State to demonstrate the existence of the pressing social need behind the interference (see, among other examples, McLeod v. the United Kingdom, judgment of 23 September 1998, Reports of Judgments and Decisions 1998‑VII, p. 2791, § 52; and Bagiński v. Poland no. 37444/97, 11 October 2005, § 89, with further references).", "124. Furthermore, 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 and family life. These obligations may involve the adoption of measures designed to secure respect for private and family life even in the sphere of the relations of individuals between themselves. The boundaries between the State’s positive and negative obligations under Article 8 do not lend themselves to precise definition.", "The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance to be struck between the competing interests (see Dickson, cited above, § 70, with further references). (b) Application of the above principles in the present case (i) Nature of the alleged violation 125. The applicant did not allege that at any stage of his detention he had been arbitrarily refused a family visit. This makes it unnecessary for the Court to analyse whether the restrictions complained of were imposed “in accordance with the law” in the light of its previous judgments finding that unreasoned refusals of family visits had not met that requirement, based on the Constitutional Court’s case-law (see paragraphs 60-62 above and, among other examples, Wegera v. Poland, no.", "141/07, 19 January 2010, §§ 74-75). The gist of the applicant’s Convention claim is not mainly the imposition of limitations per se on his contact with the family but, rather, his inability to take full advantage of visits already granted or available to him each month because of, first, the authorities’ failure to secure satisfactory conditions for meetings with his daughters and, second, the specific arrangements for visits, which on most occasions excluded his direct physical contact with the visitors and, lastly, the prison schedule for visits (see paragraphs 116 and 118-120 above). 126. Having regard to the foregoing, the Court does not consider it necessary to categorise strictly its examination of the complaint as being under the head of the State’s positive obligations or the head of the State’s negative duty to refrain from an unjustified interference with the applicant’s right to respect for his family life. The Court takes the view that the core issue before it is whether a fair balance was struck between the competing public and private interests involved (see Dickson, cited above, § 71).", "(ii) Whether a fair balance was struck between the requirements of the applicant’s detention under the “dangerous detainee” regime and his right to respect for his family life 127. The applicant’s complaint about the hindrance to his right to visits concerns events in two detention facilities: the Gdańsk Remand Centre, where he was held from an unspecified date shortly after his arrest on 14 July 2004 to 22 January 2009, with a few months’ break, and the Kraków Remand Centre where he was held from 22 January to 9 June 2009. Accordingly, the period under the Court’s consideration amounts to nearly 5 years, less those few months in 2008 that he spent in the Warszawa Mokotów Remand Centre (see paragraphs 22 and 119 above). 128. The Court notes that, despite the fact that the applicant was entitled to 1 visit per month, he in reality received regularly monthly visits only during the first six months following his arrest in 2004, when they took place every month (see paragraph 33 above).", "He was also able to have 10 visits in 2005, but in the next years the number of visits was reduced to 7 visits in 2006 and 2007 and only 5 in 2008. On most occasions he was only allowed to have the so-called “closed visits”, without the possibility of direct contact as he was separated from the visitors by a Perspex partition and they could communicate verbally only by internal phone (see paragraphs 32-38 and 58 above). 129. The Court accepts that, in the circumstances of the case, certain restrictions on the applicant’s contact with the family were inevitable. As stated above, detention entails inherent limitations on the detainee’s private and family life, including restrictions on family visits or, if so justified by the nature of the offence and detainee’s circumstances, special arrangements for such visits (see paragraphs 122-123 above).", "In particular, in cases involving high-security prison regimes where the applicants are charged with, or convicted of, a serious offence representing a considerable social danger – for instance, violent or organised Mafia-type crime – the application of such measures as a physical separation of a detainee from his visitors through a special transparent partition can be justified by the prison security needs or the danger that a detainee would communicate with criminal organisations through the family channels (see, for instance, Van der Ven, cited above, §§ 16 and 54; and Messina no. 2, cited above, §§ 27 and 72). However, the extended prohibition on direct contact with family members is accepted under Article 8 only in so far as the authorities have not failed to fulfil their duty under this provision to enable, and assist, the applicant in maintaining contact with his close family and secured a fair balance between his rights and the aims of the special regime (see Messina no. 2, cited above, §§ 72-73 and paragraphs 123-124 above). 130.", "In the present case, for the reasons stated below, the Court does not find convincing justification for the continued, prolonged prohibition on the applicant’s direct contact with his wife and daughters. It is true and has already been noted that, given the nature of the charges against the applicant, the general risk that he might attempt to re-establish links with the criminal world had to be taken into account (see paragraph 94 above). Nevertheless, to justify long-term restrictions, there must exist a genuine and continuing danger of that kind (see paragraphs 94, 129 above and Messina (no. 2), cited above §§ 66-73). In that regard, the Court notes that the first visit from the applicant’s wife was an open visit enabling them direct contact and unrestricted conversation (see paragraphs 34 and 58 above).", "In the light of the material in the Court’s possession, it appears that neither this first visit, nor any further events or the applicant’s own behaviour during his detention (see paragraphs 84 and 101-102 above) revealed any grounds to believe that he intended to use his wife or daughters as intermediaries to restore contacts with the criminal community or that open family visits from them would jeopardise the prison security. Indeed, subsequently, open visits were granted to the applicant each year, although rarely, at different intervals and on an irregular basis (see paragraphs 33‑38 above). In the Court’s view, this shows not merely the lack of a consistent pattern in the authorities’ decisions but also, indirectly, that in reality the measures taken were not apparently related to any tangible fear or risk that could possibly legitimise the impugned restrictions under Article 8 § 2 of the Convention (cf. Messina (no.2), cited above, ibid.). 131.", "The applicant further maintained that the unacceptable conditions in which he had received visits from his daughters, who had all three been minors at the beginning of his detention (see paragraph 33 above), had prevented him from having contact with them at all (see paragraph 119 above). The Court would note that, by the nature of things, visits from children or, more generally, minors in prison require special arrangements and may be subjected to specific conditions depending on their age, possible effects on their emotional state or well-being and on the personal circumstances of the person visited. However, positive obligations of the State under Article 8, in particular an obligation to enable and assist a detainee in maintaining contact with his close family (see paragraphs 123-124 and 129 above), includes a duty to secure the appropriate, as stress-free for visitors as possible, conditions for receiving visits from his children, regard being had to the practical consequences of imprisonment. That duty is not discharged properly in situations where, as in the present case, the visits from children are organised in a manner exposing them to the view of prison cells and inmates and, as a result, to an inevitably traumatic, exceptionally stressful experience. The Court agrees that, as the applicant said, the exposure to prison life can be shocking even for an adult and, indeed, it must have caused inordinate distress and emotional suffering for his daughters (see paragraphs 39 and 119 above).", "It further notes that, owing to the authorities’ failure to make adequate visiting arrangements, the applicant, having seen the deeply adverse effects on his daughters, had to desist from seeing them in prison. Throughout his detention from 14 July 2004 to the end of 2008 he saw his oldest daughter twice and each of the two younger ones once. In effect, he was deprived of any personal contact with them for several years (see paragraphs 33-34 and 37 above). 132. In view of the foregoing, the Court concludes that the restrictions imposed by the authorities on the applicant’s visiting rights, taken together with their continued and prolonged failure to ensure proper conditions for visits from his daughters, did not strike a fair balance between the requirements of the “dangerous detainee” regime on the one hand, and the applicant’s Convention right to respect for his family life on the other.", "Accordingly, there has been a violation of Article 8 of the Convention. VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF THE CENSORSHIP OF THE APPLICANT’S CORRESPONDENCE 133. The applicant further complained about routine censorship of his correspondence with his family. Article 8, in its relevant part, reads as follows: “1.", "Everyone has the right to respect for ... his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The applicant’s arguments 134. The applicant, apart from producing three envelopes of letters from his family members stamped “censored” on different dates (see paragraph 42 above), did not adduce any specific arguments or information supporting his allegations of a breach of his right to respect for his correspondence.", "B. The Court’s assessment 135. The Court would recall that in its judgment in the case of Biśta v. Poland and other rulings that followed, it held that applicants with complaints based on similar interferences with detainees’ correspondence which – as in the applicant’s case – occurred after 28 June 2007 were, in order to comply with Article 35 § 1, required to avail themselves of an action for the infringement of personal rights under Article 24 read in conjunction with Article 448 of the Civil Code (see Biśta v. Poland, no. 22807/07, 12 January 2010, § 49). However, in the present case the Court does not deem it appropriate to decide on the exhaustion issue, in particular on the relevance of the fact that the limitation period of 3 years for lodging the above action had expired already on 8 January 2011 (see paragraphs 42 and 67 above), because it finds that the complaint is in any event manifestly ill-founded.", "136. The practice of marking detainees’ correspondence with the “censored” stamp in similar cases leads the Court to presume that the letters were opened and their contents read (see, among many other examples, Friedensberg v. Poland, no. 44025/08, 27 April 2010, § 36, with further references). There was accordingly an interference with the applicant’s right to respect for his correspondence. The measure, likewise as in other cases (ibid., § 43), was applied “in accordance with the law”, pursuant to Article 217a § 1 of the Code of Execution of Criminal Sentences, stipulating that a detainee’s correspondence shall be stopped, censored or monitored by the authority at whose disposal he remains, unless otherwise decided.", "That said, the applicant, through his failure to substantiate the complaint and to provide any information, such as for example the nature or subject‑matter of the letters (see paragraph 42 above), capable of showing that the impugned interference was not “necessary in a democratic society”, has not proved before the Court that the censorship of his correspondence lacked justification under Article 8 of the Convention. 137. It follows that this part of the application is inadmissible as being manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. VII. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF THE IMPOSITION OF THE “DANGEROUS DETAINEE” REGIME 138.", "In respect of the imposition of the “dangerous detainee” regime on him, the applicant also alleged that, irrespective of the fact that it constituted treatment contrary to Article 3 of the Convention, it also amounted to a violation of his right to private life protected by Article 8 of the Convention. Article 8, in its relevant part reads as follows: “1. Everyone has the right to respect for his private ... life. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 139.", "The Court notes that this complaint is linked to the complaint under Article 3 examined above (see paragraphs 81-103 above) and must therefore likewise be declared admissible. B. Merits 140. The applicant submitted that the imposition of the “N” regime on him violated his right to private life, in particular on account of intrusive, constant surveillance of his cell, including sanitary facilities, and grossly humiliating strip-searches, which had been performed on him several times a day without any plausible security considerations. 141.", "The Court observes that the prolonged imposition of the “dangerous detainee” regime on the applicant lies at the heart of his complaint under Article 3 of the Convention. These issues have been examined and resulted in the finding of a violation of that provision (see paragraph 103 above). In the circumstances, the Court considers that no separate issue arises under Article 8 of the Convention and makes no separate finding. VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 142.", "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 143. The applicant claimed EUR 10,000 in respect of non-pecuniary damage. 144. The Court, having regard to its case-law and assessing the claim on an equitable basis, awards the applicant EUR 5,000 in respect of non‑pecuniary damage.", "It rejects the remainder of the claim. B. Costs and expenses 145. Since the applicant made no claim for the reimbursement of costs and expenses incurred before the domestic courts or in the proceedings before the Court, there is no reason to make any award under this head. C. Default interest 146.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints under Articles 3 and 8 concerning the imposition of the “dangerous detainee” regime on the applicant and under Article 8 concerning the restrictions on contact with his family during detention 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 8 of the Convention on account of the restrictions on the applicant’s contact with his family during detention; 4.", "Holds that there is no separate issue under Article 8 of the Convention in respect of the imposition of the “dangerous detainee” regime on the applicant; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros), to be converted into Polish zlotys at the rate applicable at the date of settlement, 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; 6. Dismisses the remainder of the applicant’s 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 EarlyDavid Thór BjörgvinssonRegistrarPresident" ]
[ "FIFTH SECTION CASE OF SOLDATENKO v. UKRAINE (Application no. 2440/07) JUDGMENT STRASBOURG 23 October 2008 FINAL 23/01/2009 This judgment may be subject to editorial revision. In the case of Soldatenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Karel Jungwiert,Volodymyr Butkevych,Renate Jaeger,Mark Villiger,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 30 September 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 2440/07) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Nikolay Ivanovich Soldatenko (“the applicant”) on 15 January 2007.", "2. The applicant, who had been granted legal aid, was represented by Mr A.P. Bushchenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice. 3.", "On 20 February 2007 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. Further to the applicant’s request, the Court granted priority to the application (Rule 41 of the Rules of Court). 4. Written submissions were received from the Helsinki Foundation for Human Rights in Warsaw, which had been granted leave by the President to intervene as a third party (Article 36 § 2 of the Convention and Rule 44 § 2).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1961 and is currently detained in a penitentiary institution in the Kherson region, awaiting his extradition to Turkmenistan. The applicant’s lawyer claims that the applicant is a stateless person. According to the Government, the applicant is a Turkmen national.", "The applicant himself does not deny his Turkmen nationality and has not raised the issue of his allegedly stateless status before the Ukrainian authorities. 6. On 7 July 1999 the Turkmen law-enforcement authorities issued a bill of indictment against the applicant for inflicting light and grievous bodily harm on two individuals on 4 June 1999 (the latter, more serious crime is punishable by five to ten years’ imprisonment under the Criminal Code of Turkmenistan). The same day the Turkmen police ordered the applicant’s arrest. This latter decision was approved by the Ashgabat Azatlyksky District Prosecutor on 8 July 1999.", "7. On 12 July 1999 a search for the applicant was announced by the police. 8. The applicant left Turkmenistan in October 1999 because of his alleged persecution on ethnic grounds. Since then he has resided in Ukraine.", "9. On 4 January 2007 the applicant was apprehended by the police. According to the applicant his relatives were informed that he had been arrested for hooliganism and later they were informed he had been arrested under Article 106 of the Code of Criminal Procedure under an international search warrant. 10. The same day the applicant was informed that he was wanted by the law-enforcement authorities of Turkmenistan.", "According to the applicant, the police officers persuaded him to refrain from asking for legal assistance under the pretext that all procedural steps in his criminal case would be conducted in the territory of Turkmenistan. 11. The same day the Kherson Police Department received an official request from the Turkmen authorities for the applicant’s provisional arrest under the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, 1993. 12. On 8 January 2007 the applicant was allowed to see a lawyer.", "13. On 10 January 2007 the applicant was brought by the police before a judge of the Kakhovsky District Court of the Kherson Region, who ordered his detention pending the extradition proceedings against him. The decision, which stated that an appeal could be made under Article 165-2 of the Code of Criminal Procedure, was served immediately. No time-limit was set for his detention. 14.", "The same day the applicant was questioned by the Gornostaevsky District Prosecutor, to whom he explained, inter alia, that prior to his arrest he had not been aware that he had been wanted by the Turkmen law-enforcement authorities. He further explained that he had signed a waiver of assistance from a lawyer since the police had explained to him that he would not face a trial in Ukraine. 15. On 15 January 2007 the applicant requested the Court to apply Rule 39 of the Rules of Court in his case. On 16 January 2007 the President of the Chamber decided to apply Rule 39, indicating to the Government that it would be desirable in the interests of the parties and the proper conduct of the proceedings not to extradite the applicant to Turkmenistan pending the Court’s decision.", "16. On 19 January 2007 the General Prosecutor’s Office of Turkmenistan requested the applicant’s extradition with a view to criminal prosecution for the crimes of inflicting light and grievous bodily harm on two individuals. It further gave assurances that the applicant would be prosecuted only for the crimes indicated in the request, that he would be allowed to leave Turkmenistan after serving his sentence, and that he would not be handed over to a third country without the consent of the Ukrainian authorities. It added that he had never been and would never be discriminated against on the grounds of social status, race, ethnic origin or religious beliefs. This request was received by the General Prosecutor’s Office of Ukraine on 30 January 2007.", "It appears that the applicant learned about this document only in the framework of the Convention proceedings. 17. On 31 January 2007 the General Prosecutor’s Office of Ukraine informed the General Prosecutor’s Office of Turkmenistan of the suspension of the extradition proceedings pursuant to the interim measure indicated by the Court. 18. On 5 February 2007 the Gornostaevsky Prosecutor’s Office sent a petition to the head of the Gornostaevsky Police Department, stating that the applicant’s detention had breached criminal procedural law.", "According to the petition, the applicant had been arrested on 4 January 2007 and placed in a cell at the police station in accordance with the arrest warrant issued by the Ashgabat Azatlyksky District Prosecutor’s Office of Turkmenistan. The prosecutor noted that from 4 to 10 January 2007 the police had not brought the applicant before a court to decide on his detention and had not informed the prosecutor about his detention. The prosecutor considered that the situation had arisen because of the police officers’ negligent performance of their duties and called for disciplinary action to be taken against them. 19. By orders of 20 February and 15 March 2007 the police officers responsible for the applicant’s detention in violation of the law were punished by an oral warning, a formal reprimand and deprivation of bonus payments for one month.", "20. In a letter of 19 April 2007 the First Deputy Prosecutor General of Turkmenistan, in reply to the request from the Ukrainian General Prosecutor’s Office, informed it that the observance of the applicant’s rights and legitimate interests would be guaranteed, in particular: “- the requirements of Article 3 of the Convention on Human Rights and Fundamental Freedoms will be fulfilled in respect of N.I. Soldatenko, he will not be subjected to torture, inhuman or degrading treatment or punishment after extradition; - in case of necessity he will be provided with appropriate medical treatment and medical assistance; - the right to fair judicial consideration of his criminal case will be secured to him.” He further pointed out that the death penalty had been abolished in Turkmenistan. II. RELEVANT LAW AND PRACTICE A.", "Relevant international and domestic law 1. Constitution of Ukraine 1996 21. The relevant provisions of the Constitution read as follows: Article 9 “International treaties that are in force and are agreed to be binding by the Verkhovna Rada of Ukraine are part of the national legislation of Ukraine.” Article 29 “Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law. In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours.", "The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of the holding in custody. Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel. Everyone who has been detained has the right to challenge his or her detention in court at any time. Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.” Article 55 “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 exercising State power, local self-government bodies, officials and officers... ... After exhausting all domestic legal remedies, everyone has the right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or participant...” Article 92 “The following are determined exclusively by the laws of Ukraine: (1) human and citizens’ rights and freedoms, the guarantees of these rights and freedoms; the main duties of the citizen; .. (14) the judicial system, judicial proceedings, the status of judges, the principles of judicial expertise, the organisation and operation of the prosecution service, the bodies of inquiry and investigation, the notary, the bodies and institutions for the execution of punishments; the fundamentals of the organisation and activity of the advocacy; ...” 2.", "The CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters 1993 (“the Minsk Convention”)[1] 22. The Convention was ratified by the Ukrainian Parliament on 10 November 1994. It entered into force in respect of Ukraine on 14 April 1995 and in respect of Turkmenistan on 19 February 1998. The text of the Convention was published on 16 November 2005 in the Official Gazette of Ukraine (no. 44, 2005).", "The relevant provisions of the Convention read as follows: Article 61: Arrest or detention before the receipt of a request for extradition “1. The person whose extradition is sought may also be arrested before receipt of a request for extradition, if there is a related petition (ходатайство). The petition shall contain a reference to a detention order ... and shall indicate that a request for extradition will follow. A petition for arrest ... may be sent by post, wire, telex or fax. 2.", "The person may also be detained without the petition referred to in point 1 above if there are legal grounds to suspect that he has committed, in the territory of the other Contracting Party, an offence entailing extradition. 3. In case of [the person’s] arrest or detention before receipt of the request for extradition, the other Contracting Party shall be informed immediately.” Article 62: Release of the arrested or detained person “1. A person arrested pursuant to Article 61 § 1 shall be released if no request for extradition is received within a month of the arrest. 2.", "A person arrested pursuant to Article 61 § 2 shall be released if no request for extradition is received within the time established by the law concerning arrest.” 3. Code of Civil Procedure of Ukraine 1963 (replaced by a new Code on 1 September 2005) 23. Chapter 31-a of the Code lay down the procedure for considering complaints by citizens about decisions, acts and omissions of State bodies, legal persons and officials in the sphere of administration. 4. Code of Administrative Justice of 6 July 2005 (entered into force on 1 September 2005) 24.", "Article 2 of the Code provides that the task of the administrative judiciary is the protection of the rights, freedoms and interests of individuals and the rights and interests of legal entities in the sphere of public-law relations from violations by State bodies, bodies of local self-government, their officials and other persons in the exercise of their powers. Under the second paragraph of this Article, any decisions, actions or omissions of the authorities may be challenged before the administrative courts. 25. According to paragraph 7 of Chapter VII of the Transitional Provisions of the Code, after its entry into force any applications and complaints arising from administrative-law relations (Chapters 29-32 of the Code of Civil Procedure 1963) that had been lodged but not yet considered were to be examined under the procedure set out in the Code of Administrative Justice. 5.", "Code of Criminal Procedure, 1960 (with amendments) 26. Article 106 of the Code governs the arrest and detention of persons suspected of committing a criminal offence. It provides: Article 106: Detention of a criminal suspect by the investigating body “The investigating body shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds: 1. if the person is discovered whilst or immediately after committing an offence; 2. if eyewitnesses, including victims, directly identify this person as the one who committed the offence; 3. if clear traces of the offence are found on the body of the suspect or on the clothing which he is wearing or which is kept at his home. For each case of detention of a criminal suspect, the investigating body shall be required to draw up a record mentioning the grounds, the motives, the day, time, year and month, the place of detention, the explanations of the person detained and the time when it was recorded that the suspect was informed of his right to have a meeting with defence counsel before his first questioning, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The record of detention shall be signed by the person who drew it up and by the detainee.", "A copy of the record with a list of his rights and obligations shall be immediately handed to the detainee and shall be sent to the prosecutor. At the request of the prosecutor, the material which served as a ground for detention shall be sent to him as well. The investigating body shall immediately inform one of the suspect’s relatives of his detention... Within seventy-two hours after the arrest the investigating body shall: (1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article; (2) release the detainee and select a non-custodial preventive measure; (3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her. If the detention is appealed against to a court, the detainee’s complaint shall be immediately sent by the head of the detention facility to the court.", "The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure. If the complaint is received after the preventive measure was applied, the judge shall examine it within three days after receiving it. If the request has not been received or if the complaint has been received after the term of seventy-two hours of detention, the complaint shall be considered by the judge within five days after receiving it. The complaint shall be considered in accordance with the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring that the detention is lawful or allowing the complaint and finding the detention to be unlawful.", "The ruling of the judge may be appealed against within seven days from the date of its adoption by the prosecutor, the person concerned, or his or her defence counsel or legal representative. Lodging such an appeal does not suspend the execution of the court’s ruling. Detention of a criminal suspect shall not last for more than seventy-two hours. If, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up a record to that effect, and shall inform accordingly the official or body that carried out the arrest.” 27. Article 148 of the Code provides that preventive measures shall be imposed on a suspect, accused, defendant, or convicted person.", "28. Article 165-2 of the Code concerns the selection of a preventive measure in criminal proceedings. It reads as follows: Article 165-2: Procedure for the selection of a preventive measure “At the stage of the pre-trial investigation, a non-custodial preventive measure shall be selected by the investigating body, investigator or prosecutor. In the event that the investigating body or investigator considers that there are grounds for selecting a custodial preventive measure, with the prosecutor’s consent he shall lodge an application with the court. The prosecutor is entitled to lodge an application to the same effect.", "In determining this issue, the prosecutor shall be obliged to familiarise himself with all the material evidence in the case that would justify placing the person in custody, and to verify that the evidence was received in a lawful manner and is sufficient for charging the person. The application shall be considered within seventy-two hours of the time at which the suspect or accused is detained. In the event that the application concerns the detention of a person who is currently not deprived of his liberty, the judge shall be entitled, by means of an order, to give permission for the suspect to be detained and brought before the court under guard. Detention in such cases may not exceed seventy-two hours; and in the event that the person is outside the locality where the court is situated, it may not exceed forty-eight hours from the moment at which the detainee is brought within the locality. Upon receiving the application, the judge shall examine the material in the criminal case file submitted by the investigating bodies or investigator.", "A prosecutor shall question the suspect or accused and, if necessary, shall hear evidence from the person who is the subject of the proceedings, shall obtain the opinion of the previous prosecutor or defence counsel, if the latter appeared before the court, and shall make an order: (1) refusing to select the preventive measure if there are no grounds for doing so; (2) selecting a preventive measure in the form of taking of a suspect or accused into custody. The court shall be entitled to select for the suspect or accused a non-custodial preventive measure if the investigator or prosecutor refuses to select a custodial preventive measure for him or her. The judge’s order may be appealed against to the court of appeal by the prosecutor, suspect, accused or his or her defence counsel or legal representative, within three days from the date on which it was made. The lodging of an appeal shall not suspend the execution of the judge’s order.” 29. Article 382 of the Code lays down the procedure of appeal against first-instance court rulings and decisions, including those given under Article 165-2 of the Code.", "6. Recommendation No. R (98) 13 of the Committee of Ministers to Member States on the right of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of Article 3 of the European Convention on Human Rights 30. The recommendation calls for the following procedural requirements in the case of removal of asylum seekers: “The Committee of Ministers ... Recommends that governments of member states, while applying their own procedural rules, ensure that the following guarantees are complied with in their legislation or practice: 1.", "An effective remedy before a national authority should be provided for any asylum seeker, whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment. 2. In applying paragraph 1 of this recommendation, a remedy before a national authority is considered effective when: 2.1. that authority is judicial; or, if it is a quasi-judicial or administrative authority, it is clearly identified and composed of members who are impartial and who enjoy safeguards of independence; 2.2. that authority has competence both to decide on the existence of the conditions provided for by Article 3 of the Convention and to grant appropriate relief; 2.3 the remedy is accessible for the rejected asylum seeker; and 2.4 the execution of the expulsion order is suspended until a decision under 2.2 is taken.” B. Relevant domestic practice 1. Resolution no.", "16 of the Plenary Supreme Court of 8 October 2004 on certain issues relating to the application of legislation governing the procedure and length of detention (arrest) of persons awaiting extradition 31. The relevant extracts from the Resolution of the Plenary Supreme Court read as follows: “The Constitution of Ukraine provides that no one may be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law (Article 29). In accordance with the first paragraph of Article 9 of the Constitution, international agreements in force ratified by the Verkhovna Rada form part of the national legislation. Under the second paragraph of section 19 of the International Treaties Act of 29 June 2004, if an international treaty to which Ukraine is a party and which has been ratified in accordance with a procedure prescribed by law establishes rules which differ from those laid down by the Ukrainian legislation, the rules of the international treaty shall apply. Issues relating to inviolability and freedom of movement (detention, arrest, apprehension and so forth) are therefore regulated not only by the norms of the Code of Criminal Procedure (‘the CCP’) and Article 10 of the Criminal Code (‘the CC’), but also by international treaties to which Ukraine is a party, and in particular by the 1957 European Convention on Extradition and its Additional Protocols of 1975 and 1978, ratified on 16 January 1998 by Law no.", "43/98-ВР, ... the CIS Convention on Legal Assistance of 22 January 1993, concluded in Minsk and ratified on 10 November 1994 by Law no. 240/94-ВР, bilateral treaties between Ukraine and other States, multilateral specialised treaties ... ... An examination of the practice of the courts of Ukraine in deciding issues relating to the extradition of persons to other States demonstrates that they have applied the relevant legislation differently. In particular, some courts initiate proceedings on applications by the competent authorities concerning the application of a preventive measure in the form of detention of the persons to be extradited, while others refuse to institute proceedings on such applications. For the purposes of the uniform application of the legislation governing extradition to other States and the protection of fundamental human rights and freedoms, the Plenary Supreme Court resolves: 1. ... in deciding whether an issue relating to extradition to another State is within the courts’ jurisdiction, the courts must refer to the provisions of the Constitution of Ukraine, other national legislation, including the [1957] European Convention or other international treaties to which Ukraine is a party and by which it has agreed to be bound, or the former USSR’s treaties applied by Ukraine pursuant to Law no.", "1543‑XII of 12 September 1991 on the succession of Ukraine. The courts should therefore decide what treaties have been concluded between Ukraine and the requesting State and what procedure such treaties lay down for resolving extradition issues... 2. Having regard to the fact that the current legislation does not allow the courts independently to give permission for extradition of persons and that, pursuant to Article 22 of the European Convention on Extradition and similar provisions of other international treaties to which Ukraine is a party, the extradition procedure is regulated solely by the law of the requested State the courts are not empowered to decide on this issue. They [the courts] cannot on their own initiative decide on preventive measures applicable to persons subject to rendition or transfer, including their detention, as these issues are to be decided by the competent Ukrainian authorities. 3.", "Bearing in mind that in Ukraine a person can be held in detention for more than three days only on the basis of a reasoned court decision, and taking into account the fact that, pursuant to the second paragraph of Article 29 of the Constitution, such a decision can only be taken by a competent Ukrainian court, courts must accept jurisdiction and examine the merits of prosecutors’ requests and requests, approved by the prosecuting authorities, from the bodies acting upon extradition requests from other States [concerning individuals’ extradition], for detention and rendition under guard to the competent State bodies of the requesting State. 4. Pursuant to Article 16 of the European Convention on Extradition and other similar provisions of international treaties to which Ukraine is a party, the competent State bodies of the requesting State may in some cases request that a wanted person be temporarily detained. The competent State bodies dealing with the request shall take a decision in accordance with their country’s legislation. In this way, local courts decide on and examine the merits of requests made by prosecutors or other bodies approved by them which are acting upon requests from other States relating to the extradition or temporary arrest of a person for the purposes of his or her transfer under guard to the competent body of the requesting State, for a period established by the European Convention on Extradition or another international treaty.", "5. The courts must decide whether an individual’s detention or temporary arrest is in accordance with the rules laid down in Article 165-2 of the Code of Criminal Procedure. The courts have the right to apply paragraph 4 of Article 165-2 of the Code of Criminal Procedure in a situation where a person is handed over to the court with a view to a decision on his apprehension (temporary arrest) for the purposes of extradition or transfer. The court shall review the existence of a request and of the relevant documents, established by treaty, forming the basis for extradition, and the absence of any grounds prohibiting extradition or transfer (Articles 2, 3, 6, 10 and 11 of the European Convention on Extradition and the 1975 and 1978 Additional Protocols thereto and Article 57 of the 1993 CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters). In particular, detainees may not be extradited for political and military offences; in the event of expiry of the limitation period; when, in the territory of the party to which the extradition request has been made, a court has already delivered a judgment or resolution closing the proceedings concerning a charge similar to the one mentioned in the extradition request; when issues relating to the extradition of a citizen of Ukraine or stateless persons permanently residing on the territory of Ukraine are being considered; in respect of persons enjoying refugee status in Ukraine; if the requesting party fails to provide Ukraine with sufficient guarantees that a sentence of capital punishment will not be enforced for the offence for which extradition has been requested, [if the offence in issue] is punishable by the death sentence in accordance with the law of the requesting State; if the offence, in accordance with the law of the party requesting extradition, or Ukrainian law, can be prosecuted by means of a private prosecution; if the offence which forms the basis for extradition is punishable by a maximum [sentence] of less than one year’s imprisonment or a less severe penalty.", "The courts shall also take into account other provisions of the European Convention on Extradition or other international treaties with regard to legal assistance which give the party to which the extradition request is addressed the right to refuse extradition. The courts should also make due reference to the fact that, under Article 28 of the European Convention, its provisions replace any other bilateral international treaties, conventions or agreements regulating extradition issues between any two Contracting Parties. Therefore, if a requesting State is a party to the European Convention, the provisions of bilateral or multilateral international treaties concerning extradition shall be applied in part, where they amend the provisions of that Convention. 6. In accordance with the third paragraph of Article 29 of the Constitution, the courts shall take into account and examine the merits of complaints by the individuals concerned and their lawyers and legal representatives alleging unlawful detention on the basis of an extradition request from another State.", "Such requests shall be examined on the basis of Article 106 (7) and (8) of the Code of Criminal Procedure. In deciding whether a person is being detained lawfully, the judge shall refer to the relevant provisions of Article 106 of the CCP with regard to detention procedures and compliance with procedural formalities and the provisions of the relevant international treaty on the basis of which the person has been detained, and also to the presence of the necessary documents on which the extradition is based (in particular, the request for extradition, the decisions of the competent bodies of the requesting party with regard to detention or arrest of the person, and so forth).” 2. Third party’s comments 32. The third party, commenting on the lack of a relevant procedure for reviewing decisions on extradition in Ukrainian law, submitted an example of the relevant domestic practice, which at the time had received considerable attention from the international community. 33.", "The 2006 Country Reports on Human Rights Practices, released by the United States Department of State on 6 March 2007, described this example of administrative practice in the following way in its report on Ukraine: “On February 16, UNHCR and the international community strongly condemned the forcible deportation of 10 Uzbek asylum seekers. The SBU [Security Service of Ukraine] detained eleven men in Crimea based on extradition warrants issued by the Uzbekistani authorities on the grounds that they allegedly participated in the Andijan mass protests in Uzbekistan in May 2005. They were transferred to a Ministry of Interior detention facility in Simferopol. The UNHCR asked authorities for assurances that no asylum-seekers would be forcibly returned unless they had been determined not to be refugees and had completed asylum procedures, including any appeal. The Migration Service in Crimea rejected the asylum applications on the basis that they were ‘manifestly unfounded’.", "On February 14, 10 of the men were forcibly returned to Uzbekistan. (The remaining man was reportedly allowed to stay because he had relatives in the country.) Twenty-one Ukrainian regional human rights organizations issued a statement protesting the incident. On May 3, the Ministry of Justice issued a legal opinion saying that deportation was illegal. The president’s chief of staff stated that the deportation was a violation of procedure because the refugees were not granted ten days to appeal the deportation, but added that the extradition was acceptable as they ‘belonged to a radical Islamic group’.” C. Relevant international materials concerning the situation of human rights in Turkmenistan 1.", "The Country Reports on Human Rights Practices by the US Department of State 34. The Country Reports on Human Rights Practices of the US Department of State (hereafter “the Reports”) for 2003, released on 25 February 2004, noted with respect to Turkmenistan: “c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ... there were widespread credible reports that security officials tortured, routinely beat, and used force against criminal suspects and prisoners to obtain confessions... ... There were reports that prisoners needing medical treatment were beaten on their way to and from the hospital. Security forces also used denial of medical treatment and food, verbal intimidation, and placement in unsanitary conditions to coerce confessions... ...", "Conditions were poor in prisons, which were unsanitary, overcrowded, and unsafe. Disease, particularly tuberculosis, was rampant, in part because prisoners who were ill were often not removed from the general prison population. Food was poor and prisoners depended on relatives to supplement inadequate food supplies. Facilities for prisoner rehabilitation and recreation were extremely limited. Most prisoners could receive food and sundries once per month from relatives; those who did not suffered greatly.", "Prisoners held under the ‘Betrayers of the Motherland’ law were unable to receive food, sundries, or visits by relatives. Most were held in the newly constructed maximum security prison at Ovadan Depe, where access to prisoners was extremely limited... There were three types of prisons throughout the country: educational-labor colonies; correctional-labor colonies; and prisons. Some prisoners, usually former government officials, were sent into internal exile. In the correctional-labor colonies, there were reports of excessive periods of isolation of prisoners in cells and ‘chambers’.", "A new prison for hardened criminals and political prisoners at Ovadan Depe, near Ashgabat, was completed in June. Authorities allegedly threatened, harassed, and abused prisoners in an attempt to force some prisoners to renounce their faiths. In Gyzylgaya prison, located in the Karakum Desert, prisoners were forced to work in a kaolin mine under hazardous and unhealthy conditions... ... Some prisoners died due to the combination of overcrowding, untreated illnesses, and lack of adequate protection from the severe summer heat... ... Prison officials refused to respond to inquiries from family members and foreign diplomats about prisoners’ whereabouts or physical condition, or to allow family members, foreign diplomats or international observers, including the International Committee of the Red Cross (ICRC), to visit detainees or prisoners, including political prisoners, by year’s end. The Government claimed that granting access to prisoners would be an admission that there were problems with the country’s penal system... Detainees are entitled to immediate access to an attorney once a bill of indictment has been issued; however, in practice they were not allowed prompt or regular access to legal counsel.", "Incommunicado detention was a problem. Authorities regularly denied prisoners visits by family members, who often did not know their whereabouts... d. Arbitrary Arrest, Detention, or Exile ... In February, President Niyazov signed the ‘Betrayers of the Motherland’ law, which characterizes any opposition to the government as an act of treason. Those convicted under the law face life imprisonment, are ineligible for amnesty or reduction of sentence, and may not receive visitors or food from outside sources... By year’s end, approximately 50 to 60 persons were arrested or convicted under the law... The law provides that a person accused of a crime may be held in pretrial detention for no more than 2 months, which in exceptional cases may be extended to 1 year.", "In practice, authorities often exceeded these limits ... e. Denial of Fair Public Trial The Constitution provides for an independent judiciary; however, in practice the judiciary was not independent. The President’s power to select and dismiss judges subordinated the judiciary to the Presidency. The President appointed all judges for a term of 5 years. There was no legislative review of these appointments, except for the Chairman (Chief Justice) of the Supreme Court, and the President had the sole authority to dismiss all appointees before the completion of their terms... The law provides for the rights of due process for defendants, including a public trial, access to accusatory material, the right to call witnesses to testify on their behalf, a defense attorney, a court-appointed lawyer if they could not afford one, and the right to represent themselves in court.", "In practice, authorities often denied these rights, and there were few independent lawyers available to represent defendants... In January, summary trials of those accused in the November 2002 attack began without public notice. Suspects were not afforded regular access to their attorneys, and their attorneys were not allowed to cross-examine other defendants in the case during the pretrial investigation. Attorneys for some defendants received notice that proceedings against their clients were beginning only 15 minutes before the trials (the norm is 1 week). Some defendants did not receive adequate legal counsel.", "Attorneys for a number of defendants expressed regret for defending their clients in their opening statements, which were broadcast on state-owned television, even though the trials themselves were not public. The Government refused to allow family members or foreign diplomats to observe the proceedings. AI reported that none of the defendants had an independent lawyer representing them during their trial. Defendants were not allowed to confront or question witnesses against them. Defendants and their attorneys were denied access to government evidence against them; the General Prosecutor’s Office stated the evidence consisted of ‘state secrets’.", "The defendants did not enjoy a presumption of innocence. Before the trials began, the Government publicly announced that the principal defendants were guilty and sentenced them to life imprisonment under the new ‘Betrayers of the Motherland’ law. Sentences for those convicted of involvement in the November 2002 attack ranged from life imprisonment to forced resettlement. The systemic failure to observe due process in investigating and prosecuting prisoners implicated in the attack made it difficult to distinguish between those actually complicit in the attack and some who may be political prisoners convicted for their perceived political opposition views. An OSCE Rapporteur described the trials as ‘in breach of all the most elementary principles of the rule of law’.", "Courts allegedly ignored allegations of torture that defendants raised in trial... In practice, adherence to due process in other cases was not uniform, particularly in the lower courts in rural areas. Even when due process rights were observed, the authority of the government prosecutor was so much greater than that of the defense attorney that it was very difficult for the defendant to receive a fair trial. In an October 2002 case against two former senior officials, the Ashgabat City Court refused to admit evidence critical to the defense, despite the fact that it appeared to be admissible under the law. In general, observers were not permitted access to ostensibly open court proceedings.", "The Government physically prevented foreign diplomats from attending the trials of accused November 2002 attackers and of a civil society activist in March; however, foreign diplomats attended the trial of two former officials in October 2002 and of a member of Jehovah’s Witnesses in May...” 35. The 2006 Reports, released on 6 March 2007, showed no improvements in the situation: “c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment The constitution and law prohibits such practices; however, security officials tortured, routinely beat, and used excessive force against criminal suspects, prisoners, and individuals critical of the government, particularly in detention while seeking a confession... Prison and Detention Center Conditions Prison conditions were poor; prisons were unsanitary, overcrowded, unsafe, and posed a threat to life. Disease, particularly tuberculosis (TB), was rampant. There continued to be concerns that prisoners with TB were released untested and untreated into the general population, although the government reportedly began screening prisoners for TB, among other diseases, upon their release and provided some treatment in some cases.", "Prisoners diagnosed with TB were transferred to a special Ministry of Interior hospital in Mary Welayat for treatment. Government officials protested foreign diplomatic missions’ allegations of poor prison conditions, but they did not respond to direct inquiries. Nutrition was poor, and prisoners depended on relatives to supplement inadequate food supplies, although prisoners convicted for treason were unable to receive supplies from relatives. The government defined treason as any opposition to the government... Family members and international publications claimed some prisoners died due to the combination of overcrowding, untreated illnesses, and lack of adequate protection from the summer heat... There were three types of incarceration facilities throughout the country: educational-labor colonies, correctional-labor colonies, and prisons.", "Some prisoners, usually former government officials, were sent into internal exile. In the correctional-labor colonies, relatives of prisoners reported excessive periods of prisoner isolation. There were reports that prisoners were forced to work under hazardous and unhealthy conditions in a kaolin mine in Gyzylgaya Prison, near Dashoguz... d. Arbitrary Arrest or Detention The law prohibits arbitrary arrest and detention; however, arbitrary arrest and detention were serious problems... Arrest and Detention ... Detainees are entitled to immediate access to an attorney once a bill of indictment is issued, and they were able to choose their counsel; however, in practice they did not have prompt or regular access to legal counsel. In some cases legal counsel ceased advising their clients after government officials altered the charges or case details initially provided to defendants.", "Incommunicado detention was a problem. By law detainees are to be charged within 72 hours; authorities did not respect this right in practice. There was no bail system. Authorities denied some prisoners visits by family members during the year. Families sometimes did not know the whereabouts of imprisoned relatives...", "The law characterizes any opposition to the government as an act of treason. Those convicted faced life imprisonment and were ineligible for amnesty or reduction of sentence. Unlike in previous years, there were no known treason convictions during the year. Those expressing views critical of or different from those of the government were arrested on charges of economic crimes against the state and various common crimes... e. Denial of Fair Public Trial The law provides for an independent judiciary; however, in practice the judiciary was subordinate to the president. There was no legislative review of the president’s judicial appointments, except for the chairman (chief justice) of the Supreme Court, who was reviewed by the rubber-stamp parliament.", "The president has the sole authority to dismiss all judges before the completion of their terms and has done so frequently down to the city level... Trial Procedures The draft revised criminal procedure code released in 2004 remained pending at year’s end. The code could significantly alter the 1961 Soviet code, which was still in force. The proposal incorporated rights of the accused, including the introduction of the presumption of innocence, restraints on police searches, establishment of a bail mechanism, and limits on pretrial detention. The law provides due process for defendants, including a public trial, access to accusatory material, the right to call witnesses to testify on their behalf, a defense attorney, a court-appointed lawyer if the defendant cannot afford one, and the right to represent oneself in court. In practice authorities often denied these rights, and there were few independent lawyers available to represent defendants.", "There is no jury system. At times defendants were not allowed to confront or question witnesses against them, defendants and their attorneys were denied access to government evidence against them, and defendants frequently did not enjoy a presumption of innocence. In some cases, courts refused to accept exculpatory evidence provided by defense attorneys, even if that evidence would have changed the outcome of the trial. Even when due process rights were observed, the authority of the government prosecutor far exceeded that of the defense attorney, and it was very difficult for the defendant to receive a fair trial. Court transcripts were frequently flawed or incomplete, especially in cases in which defendants’ testimony needed to be translated from Russian to Turkmen.", "Lower courts’ decisions could be appealed, and the defendant could petition the president for clemency. However, in most cases, courts allegedly ignored allegations of torture that defendants raised in trial. Foreign observers were permitted at some trials. However, many more trials, especially those considered to be politically sensitive, including the trial of Helsinki Foundation affiliate and RFE/RL correspondent Ogulsapar Myradova, were closed to observers... Political Prisoners and Detainees The law characterizes any opposition to the government as an act of treason.", "Those convicted faced life imprisonment and were ineligible for amnesty or reduction of sentence. Opposition groups and international organizations claimed the government held many political detainees, although the precise number was unknown. Detainees may include several hundred relatives and associates of those implicated in the November 2002 attack being held without charge for their perceived political opinions and possible involvement in the attack. Government officials refused to respond to inquiries from family members and diplomats about political prisoners’ location or condition. Government officials also refused to permit family members, foreign diplomats, or international observers, including the ICRC, access to detainees or prisoners associated with the November 2002 attack.” 2.", "Report of 3 October 2006 by the United Nations Secretary-General on the Situation of Human Rights in Turkmenistan to the United Nations General Assembly 36. Referring to the continuation of gross and systematic violations of human rights in the country, the UN Secretary-General’s report highlighted among the main areas of concern the use of torture and the absence of an independent judiciary in Turkmenistan. In his report the Secretary-General further noted, in particular: “14. While welcoming the submission of the reports, the committees generally expressed the need for more information on the practical implementation of the provisions of the conventions, including statistical data, in accordance with the guidelines for preparation of reports. The Committee on the Elimination of Racial Discrimination ‘noted with deep concern the major contradictions between, on the one hand, consistent information from both intergovernmental and nongovernmental sources relating to the existence of grave violations of the Convention in Turkmenistan, and, on the other hand, the sometimes categorical denials by the State party’ (CERD/C/TKM/CO/5).", "The Committee also encouraged the State party to increase its efforts to institute a constructive and sincere dialogue. ... E. Developments concerning the full respect for all human rights and fundamental freedoms Prison conditions and torture 23. The following sections are based on information obtained by OHCHR, the special procedures of the Human Rights Council and the United Nations treaty bodies. Due to the limited access to information in Turkmenistan by international human rights bodies, further details on the human rights situation in the country were not available for the preparation of the present report. ... 38.", "The Special Rapporteur on the question of torture referred to the situation of a number of individuals convicted in December 2002 and January 2003 to prison terms ranging between five years and life for their alleged involvement in what the authorities described as an assassination attempt on the President in November 2002 (E/CN.4/2006/6/Add.1). All these prisoners continue to be held incommunicado, without access to families, lawyers, or independent bodies such as the International Committee of the Red Cross. The Special Rapporteur on the question of torture also mentioned Turkmenistan as one of 33 Governments that have never responded to urgent appeals sent under his mandate (A/60/316), although having received a significant number of urgent appeals. 39. The death in custody of a Radio Free Europe/Radio Liberty journalist, Ogulsapar Muradova, whose body allegedly bore signs of torture, raises particular concern.", "40. The Committee on the Rights of the Child expressed its deep concern at the information that torture and ill-treatment of detainees, including children, is widespread (CRC/C/TKM/CO/1), especially at the moment of apprehension and during pre-trial detention, and used both to extract confessions or information and as an additional punishment after the confession...” 3. Other sources 37. The International Helsinki Federation for Human Rights in its 2007 Report on Human Rights in the OSCE Region noted the widespread use of torture and ill-treatment in custody in Turkmenistan and poor prison conditions there. The same problems in Turkmenistan are mentioned by Human Rights Watch in its World Report 2007.", "THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTION BASED ON LACK OF INTEREST ON THE PART OF THE APPLICANT AND REQUEST TO HAVE THE CASE STRUCK OUT 38. The Government maintained that the applicant’s involvement in the proceedings before the Court had been limited to signing the authority form by which he had entrusted Mr Bushchenko to represent him in the proceedings before the Court. Otherwise, all submissions had been made by Mr Bushchenko and the Government doubted whether the applicant himself had been aware of the proceedings pending before this Court and whether he had an interest in these proceedings. Accordingly, they invited the Court to strike the case out of its list of cases, on the ground that the applicant himself had shown no interest in pursuing his present application.", "39. The applicant’s representative maintained that the applicant’s intention to apply to the Court had been expressed by signing the power of attorney for his lawyer to act on his behalf before the Court and that there was no requirement for him to confirm such an intention by any other steps. The representative further maintained that he experienced problems in communicating with the applicant due to restrictions imposed on by the local law enforcement bodies. According to the Government, following the lawyer’s complaint these restrictions had been lifted after the General Prosecutor’s Office intervened and the communication problem between the applicant and his representative was resolved. 40.", "The Court finds no circumstances in the present case to conclude that the applicant lost interest in his case or that his lawyer is no longer authorised to act on his behalf. The Court accordingly dismisses this objection by the Government. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 41. The applicant complained that, if extradited, he would face a risk of being subjected to torture and inhuman or degrading treatment by the Turkmen law-enforcement authorities, which would constitute a violation of Article 3 of the Convention.", "Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 42. The Government contested that argument. A. Admissibility 1. Submissions by the parties 43. The Government submitted that the applicant had effective domestic remedies in respect of his allegations under Article 3 but had failed to make use of them.", "44. The Government submitted that the applicant had never raised his complaints about the risk of his ill-treatment in the event of extradition to Turkmenistan with the domestic courts or the General Prosecutor’s Office. The Government considered that the domestic legislation provided the applicant with an opportunity to do so. They noted in particular that Article 55 of the Constitution guaranteed to everybody the right to challenge any decision, act or omission of the State authorities in the courts. Furthermore, Article 2 of the Code of Administrative Justice made it possible to challenge not only the prosecutor’s decision on the applicant’s extradition but any action the prosecutor took in the process of the extradition proceedings.", "Therefore, they considered that the applicant had failed to exhaust the remedies available to him under Ukrainian law. 45. The applicant noted that under the Court’s case-law, for a remedy in respect of Article 3 complaints in extradition cases to be an effective, the courts had to be able to effectively review the legality of the exercise of executive discretion on substantive and procedural grounds and quash decisions as appropriate. He maintained that he had no possibility of raising his complaint before the domestic courts, because Ukrainian legislation lacked a procedure for examining such complaints and providing him with sufficient means for defending his rights. He further referred to the Resolution of the Plenary Supreme Court of 8 October 2004, which provided specifically that “...[h]aving regard to the fact that the current legislation does not allow the courts independently to give permission for extradition of persons ... the courts are not empowered to decide on this issue.”.", "The lack of such a procedure, in the applicant’s opinion, created a real risk of extradition being carried out prior to the final decision of the domestic courts. He further maintained that the lack of information about the state of the proceedings for his extradition and the means of challenging it, as well as his lack of access to the material in the case file and to legal assistance, seriously hindered effective access to the courts. 46. As to the particular remedies referred to by the Government, the applicant maintained that these remedies had not proved to be effective in practice. He submitted two examples of the domestic courts’ case-law.", "In the first case, the attempt of the first-instance court to examine the lawfulness of the extradition decision on the basis of Article 55 of the Constitution and the legislation relevant to administrative-law complaints had been overruled by the court of appeal in accordance with the above Resolution of the Supreme Court, on the ground that the courts were not competent to consider such issues. In the second case, the administrative-law complaint against the actions of the prosecutor in extradition proceedings had been dismissed on the ground that extradition issues belonged to the sphere of criminal law and should be determined on the basis of the Code of Criminal Procedure. The Code, however, did not provide for an appropriate procedure for challenging extradition decisions and did not give the courts competence to decide on the lawfulness of the extradition and to suspend extradition pending the final resolution of the complaint. 47. The applicant further maintained that neither the courts nor any other national authority could properly examine the risk of his being tortured in Turkmenistan.", "He reached this conclusion on the basis of the Government’s position, expressed in their observations, that they could not cast doubt on the assurances given by the Turkmen authorities and that they had no possibility of, or any legal basis for, seeing these assurances respected. 2. The Court’s assessment 48. The Court reiterates 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 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 Menteş and Others v. Turkey, judgment of 28 November 1997, Reports of Judgments and Decisions 1997‑VIII, § 57).", "49. The Court notes that the Government referred to two legal provisions: Article 55 of the Constitution and Article 2 of the Code of Administrative Justice, which in their opinion provided the applicant with an effective remedy to challenge the decision on extradition and any action taken during the extradition proceedings. These provisions guarantee to everyone the right to challenge any decisions, actions and omissions of the State authorities in the courts, in particular in the administrative courts. In the Court’s opinion, these provisions are potentially capable of providing an effective remedy in respect of complaints that Article 3 would be violated by decisions to extradite, provided they offered sufficient safeguards. Such safeguards would require, for example, that the courts could consider the compatibility of a removal with Article 3 and then, in a given case, could suspend the extradition.", "However, the Government do not give any indication of the powers of the courts in such a review, and do not submit any decisions in which such actions have been used, while the applicant submitted court decisions to the contrary (see paragraph 46 above). The Court therefore dismisses the Government’s preliminary objection as to the necessity for the applicant to exhaust remedies indicated by the Government. 50. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. Submissions by the parties (a) The Government 51. The Government noted that the General Prosecutor’s Office of Turkmenistan had sent assurances that the applicant’s rights under Article 3 of the Convention would not be violated: he would not be ill-treated and would be provided with medical treatment, if necessary. 52.", "The Government maintained that they could not doubt the information provided by the Turkmen authorities, as the extradition proceedings were being conducted in accordance with international agreements. They further noted that they had neither the possibility of checking this information nor any legal basis for doing so, since the proceedings in the applicant’s case would be conducted by the foreign country’s authorities. They noted that all countries were interested in having a good international reputation, and that it was not in a country’s interests to worsen its external relations with its partners by violating its obligations. In the Government’s opinion, it was more important for the State to have a good international reputation than to violate its international obligations. 53.", "As to the applicant’s fear of being subjected to treatment contrary to Article 3 of the Convention, the Government maintained that the applicant’s fear had been formulated in such a general way that it was impossible to conclude that the risk was real and personal. Therefore, they considered that the applicant’s arguments were insufficient to conclude that there might be a violation of the applicant’s rights in the event of his extradition. (b) The applicant 54. The applicant contended that the Government’s submissions about the international reputation of a State were speculative. 55.", "The applicant maintained that in Turkmenistan there was a practice of torturing people during investigation to extract confessions. Furthermore, in Turkmenistan he would face a risk of appalling conditions of detention. The applicant made particular reference to the conditions in the SIZO of the Ministry of the Interior in Ashgabat, in which he was most likely to be held in the event of his extradition. He referred to a number of international materials, which described the human rights situation in Turkmenistan as particularly worrying. 56.", "He further maintained that the risk described concerned him personally. He asserted that he did not have any specific circumstances capable of protecting him from the widespread use of torture and ill-treatment, which threatened any person detained in Turkmenistan. The applicant considered that, like any accused or convicted person, he ran the risk of ill-treatment in the context of criminal proceedings. Furthermore, this risk was intensified by the fact that legislation and administrative practice in Turkmenistan did not provide sufficient guarantees against arbitrary detention by the police. The lack of judicial supervision of detention in Turkmenistan excluded even minimum control over observance of his rights during his detention.", "The lack of access to an independent medical expert would prevent any signs of possible ill-treatment in detention from being recorded. He further maintained that the right of immediate access to a lawyer was seriously impeded in Turkmenistan. Such a situation, in the applicant’s opinion, created “fertile ground” for the widespread practice of torture and helped the officials involved to avoid any responsibility. 57. The applicant maintained that he would be at risk of even more cruel forms of ill-treatment because he was a Russian and not an ethnic Turkmen.", "58. The applicant further maintained that in view of the fact that any opposition to the government in Turkmenistan was considered an act of treason (see paragraph 34 above), he feared that his application and submissions to the Court could be interpreted as treason by the Turkmen authorities. 59. He further claimed that the information submitted by the Turkmen authorities was not sufficient to assess the soundness of the request for his extradition. 60.", "The applicant noted that the Government had failed to give reasons to believe that Ukraine would be able to make sure that Turkmenistan honoured its international obligations. 61. He referred to the relevant international materials demonstrating that Turkmenistan constantly ignored its obligations under major human rights treaties and failed to implement recommendations of international organisations and to cooperate with their monitoring bodies. In these circumstances the applicant doubted the ability of the Turkmen authorities, on assuming the obligation to observe his rights, to supervise the implementation of these obligations by State agents. He considered that, whatever assurances the Government of Turkmenistan might present to the Government of Ukraine, they could not guarantee the observance of these assurances because of the lack of an effective system of torture prevention.", "The applicant referred to the Court’s judgment in the case of Salah Sheekh v. the Netherlands (no. 1948/04, § 147, ECHR 2007‑... (extracts)), in which it had found that there would be a violation of Article 3 if the applicant returned to Somalia, since the national authorities could not guarantee his security. 62. Finally, the applicant maintained that the risk of his ill-treatment was closely connected to the issue of a fair trial. (c) The third party 63.", "The third party noted the lack of effective domestic remedies in Turkmenistan to investigate allegations of ill-treatment. They noted the lack of independence of the judiciary and the persistently poor human-rights record in Turkmenistan. They referred to international reports prepared by international governmental and non-governmental organisations and foreign States with regard to the human-rights situation in Turkmenistan. 64. They noted that given the human-rights situation in Turkmenistan, the applicant would face a very real risk of torture or ill-treatment.", "65. They concluded that the issue of the applicant’s extradition should be decided not automatically, but after careful examination of all relevant factors and his individual case. The lack of an individual approach and the failure to take into account the human-rights situation in Turkmenistan in deciding on the applicant’s extradition would be contrary to Article 3 of the Convention. 2. The Court’s assessment (a) General principles 66.", "It is the settled case-law of the Court that extradition 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 in question would, if extradited, face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 of the Convention. 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. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, pp.", "35-36, §§ 89-91; Garabayev v. Russia, cited above, § 73). 67. In determining whether it has been shown that the applicant runs a real risk, if expelled, of suffering treatment proscribed by Article 3, the Court will assess the issue in the light of all the material placed before it, or, if necessary, material obtained proprio motu. In cases such as the present the Court must examine the foreseeable consequences of sending the applicant to the receiving country, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, § 108 in fine).", "To that end, as regards the general situation in a particular country, the Court has often attached importance to the information contained in recent reports from independent international human-rights-protection associations such as Amnesty International, or governmental sources, including the US State Department (see, for example, Chahal v. the United Kingdom, judgment of 15 November 1996, Reports of Judgments and Decisions 1996‑V, §§ 99-100; Müslim v. Turkey, no.o53566/99, § 67, 26 April 2005; Said v. the Netherlands, no. 2345/02, § 54, 5 July 2005; Al-Moayad v. Germany (dec.), no.o35865/03, §§ 65-66, 20 February 2007; and Saadi v. Italy [GC], no. 37201/06, §§ 143-146, 28 February 2008). At the same time, it has held that 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 (see Vilvarajah and Others, cited above, § 111, and Fatgan Katani and Others v. Germany (dec.), no. 67679/01, 31 May 2001) and that, where the sources available to it describe a general situation, an applicant’s specific allegations in a particular case require corroboration by other evidence (see Mamatkulov and Askarov v. Turkey [GC], nos.", "46827/99 and 46951/99, § 73, ECHR 2005‑I). 68. In cases where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the Court considers that the protection of Article 3 of the Convention enters into play when the applicant establishes, where necessary on the basis of the sources mentioned in the previous paragraph, that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned (see, Saadi v. Italy [GC], cited above, § 132). 69. 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, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration and its physical or mental effects. Treatment will be considered to be “inhuman” within the meaning of Article 3 because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. Furthermore, in considering whether a punishment or treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. When assessing conditions of detention, account has to be taken of their cumulative effects as well as the applicant’s specific allegations. The duration of detention is also a relevant factor (see, Garabayev v. Russia, cited above, § 75, with further references).", "Furthermore, even if diplomatic assurances have been given, the Court is not absolved from the obligation to examine whether such assurances provided, in their practical application, a sufficient guarantee that the applicant would be protected against the risk of treatment prohibited by the Convention (see Chahal, cited above, § 105; Saadi v. Italy [GC], cited above, § 148). (b) Application of the above principles to the present case 70. In line with its case-law as set out above, the Court needs to establish whether there exists a real risk of ill-treatment of the applicant in the event of his extradition to Turkmenistan with reference to the facts which are known. 71. In the present case the Court has had regard, firstly, to the reports of the US State Department (see paragraphs 34 and 35 above).", "According to these materials, there were numerous credible reports of torture, routine beatings and use of force against criminal suspects by the Turkmen law-enforcement authorities to obtain confessions. There were reports of beatings of those who required medical help and denial of medical assistance. According to the Report of the United Nations Secretary-General (see paragraph 36 above), torture was also used as a punishment for persons who had already confessed. All above reports equally noted very poor prison conditions, including overcrowding, poor nutrition and untreated diseases. It is also reported that allegations of torture and ill-treatment are not investigated by the competent Turkmen authorities.", "Bearing in mind the authority and reputation of the authors of these reports, the seriousness of the investigations by means of which they were compiled, the fact that on the points in question their conclusions are consistent with each other and that those conclusions are corroborated in substance by other sources (see paragraph 37 above), the Court does not doubt their reliability. Moreover, the respondent Government have not adduced any evidence or reports capable of rebutting the assertions made in the sources cited by the applicant. 72. The Court notes that, in so far as the applicant alleged that he would face a risk of treatment or punishment which is contrary to Article 3 of the Convention because of his ethnic origin, there is no evidence in the available materials that the criminal suspects of non-Turkmen origin are treated differently from the ethnic Turkmens. From the materials considered above it appears that any criminal suspect held in custody counter a serious risk of being subjected to torture or inhuman or degrading treatment both to extract confessions and to punish for being a criminal.", "Despite the fact that the applicant is wanted for relatively minor and not politically motivated offence, the Court agrees with the applicant’s argument that the mere fact of being detained as a criminal suspect in such a situation provides sufficient grounds for fear that he will be at serious risk of being subjected to treatment contrary to Article 3 of the Convention. 73. The Court further notes that in his letter of 19 April 2007 the First Deputy Prosecutor General of Turkmenistan wrote that the requirements of Article 3 of the Convention on Human Rights and Fundamental Freedoms would be fulfilled in respect of the applicant and he would not be subjected to torture, inhuman or degrading treatment or punishment after extradition (see paragraph 20 above). The Court observes, however, that it is not at all established that the First Deputy Prosecutor General or the institution which he represented was empowered to provide such assurances on behalf of the State. Furthermore, given the lack of an effective system of torture prevention, it would be difficult to see whether such assurances would have been respected.", "Finally, the Court notes that the international human rights reports also showed serious problems as regards the international cooperation of the Turkmen authorities in the field of human rights and categorical denials of human rights violations despite the consistent information from both intergovernmental and nongovernmental sources (see paragraph 36 above). 74. In the light of the above findings, the Court cannot agree with the Government that the assurances given in the present case would suffice to guarantee against the serious risk of ill-treatment in case of extradition. 75. The foregoing considerations, taken together, are sufficient to enable the Court to conclude that the applicant’s extradition to Turkmenistan would be in violation of Article 3 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 76. The applicant alleged that he had no effective remedies to challenge his extradition on the ground of the risk of ill-treatment. He referred to Article 13, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 77. The Government contended that the applicant had access to the domestic courts and had thus been able to raise his complaints before the competent domestic authorities.", "A. Admissibility 78. 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 79. The Government and the applicant referred to their arguments with respect to the Government’s objection as to exhaustion of domestic remedies (see paragraphs 43-47 above). 80. The third party reiterated the Court’s case-law concerning the necessity of reconciliation and of finding a fair balance between international cooperation in criminal matters and the Convention obligations of the Contracting States.", "It emphasised that a State should always take due account of the threat of a violation of human rights in the requesting country. Therefore, the courts and other relevant authorities of many countries made inquiries as to the human-rights situation abroad in the context of extradition requests. Such inquiries, for instance, were conducted by the courts in the United States, Canada, the Netherlands, Germany, Switzerland, Ireland and Japan. The third party noted that in many countries the conduct of such inquiries was prescribed by legislation. It therefore underlined the importance of the Court’s assessment of whether in the present case there were procedures to evaluate the risk of a violation of the applicant’s rights in the event of his extradition.", "81. The third party noted that unlike in many other States, in Ukraine the decision on extradition was made by the General Prosecutor’s Office. In its opinion, such decisions should be made by a court since they entailed serious consequences for the persons whose extradition was requested. It noted that in Ukraine there was no clear and foreseeable procedure for appealing against decisions on extradition. It cited an example of Uzbek asylum-seekers who had been deported following an extradition request despite the fact that their application for asylum was still pending (see paragraph 33 above).", "The third party provided an example of a decision of the Polish Supreme Court prohibiting the extradition of an individual from Poland to China on account of Poland’s obligations under Articles 3 and 6 of the Convention and the risk of a violation of these Convention provisions in the event of extradition. 2. The Court’s assessment 82. The Court reiterates that the notion of an effective remedy under the Convention requires that the remedy may prevent the execution of measures that are contrary to the Convention and whose effects are potentially irreversible. Consequently, it is inconsistent with the relevant provisions of the Convention for such measures to be executed before the national authorities have examined whether they are compatible with the Convention, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (see, mutatis mutandis, Garabayev v. Russia, no.", "38411/02, § 105, 7 June 2007, ECHR 2007‑... (extracts)). 83. The Court refers to its findings (at paragraphs 52-53 above) in the present case concerning the Government’s argument regarding domestic remedies. For the same reasons, the Court concludes that the applicant did not have an effective domestic remedy, as required by Article 13 of the Convention, by which he could challenge his extradition on the ground of the risk of ill-treatment on return. Accordingly, there has been a breach of this provision.", "IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 84. The applicant next complained that by extraditing him to Turkmenistan, where he was likely to be subjected to an unfair trial, Ukraine would violate Article 6 § 1 of the Convention. “In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...” A. Admissibility 85. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Submissions by the parties (a) The Government 86.", "The Government maintained that they could not assess the probability of a violation of the applicant’s right to a fair hearing, as guaranteed by Article 6 § 1 of the Convention, after his extradition. The Government observed that no proceedings in the applicant’s case were pending before the Turkmen courts, and they had no grounds to believe that his case would be considered by an unfair court in Turkmenistan. 87. The Government contended that the information submitted by the applicant on the situation in Turkmenistan was insufficient to found a strong belief that the judicial system in Turkmenistan was based on principles of unfairness and general violation of human rights during trials. 88.", "The Government pointed out that an issue might only exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of a fair trial in the requesting country (they cited Soering v. the United Kingdom, cited above, § 113). 89. They submitted that a mere assumption was not enough to raise an issue of a violation of Article 6 of the Convention in the present case. 90. They further noted that the competent Turkmen authorities had provided additional guarantees that the applicant would have a fair trial in the event of his extradition.", "91. The Government further noted that the Court had previously declared a complaint under Article 6 inadmissible in another extradition case (Novik v. Ukraine (dec.), no. 48068/06, 13 March 2007), and invited the Court to declare this complaint inadmissible for the same reasons. (b) The applicant 92. The applicant maintained that in the event of his extradition he would face a strong risk of being denied a fair trial.", "He noted that the Government had failed to give any explanations about the domestic judicial system in Turkmenistan, probably because they considered this problem beyond their responsibilities. The applicant drew attention to the Government’s acceptance that they could not consider the probability of a flagrant denial of a fair trial in Turkmenistan. 93. The applicant referred to the relevant international materials that described the situation in Turkmenistan and noted that after having been tried in Turkmenistan, he would not be able to complain of the unfairness of the trial to the European Court of Human Rights. He underlined that if the Turkmen authorities infringed the basic principles of a fair trial in cases which attracted the attention of the international community, this would be even more likely in his “ordinary” case.", "94. In view of the reports by international organisations, he believed that he would risk a flagrant denial of a fair trial in Turkmenistan. 95. He lastly challenged the Government’s submissions concerning the resemblance of his case to that of Novik (cited above), in which the Court had declared the Article 6 complaint inadmissible. He noted that in the Novik case, the General Prosecutor’s Office had refused to extradite the applicant on the ground that, under Ukrainian law, the charges against Mr Novik did not carry a sentence of imprisonment, and that he had therefore no longer been at risk of extradition.", "For this reason, Mr Novik’s complaint under Article 6 had been declared inadmissible. 2. The Court’s assessment 96. The Court recalls its finding that the extradition of the applicant to Turkmenistan would constitute a violation of Article 3 of the Convention (see paragraph 75 above). Having no reasons to doubt that the respondent Government will comply with the present judgment, it considers that it is not necessary to decide the hypothetical question whether, in the event of extradition to Turkmenistan, there would also be a violation of Article 6 of the Convention (see, mutatis mutandis, Saadi v. Italy [GC], cited above, § 160) IV.", "ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION 97. The applicant complained that he was detained in violation of Article 5 §§ 1 and 3. He maintained that prior to 30 January 2007, when the General Prosecutor’s Office had received the official request for his extradition, his detention had fallen within the ambit of Article 5 § 1 (c). Only after that date, in his view, could the detention be qualified as being “with a view to extradition”. The relevant parts of Article 5 read as follows: “1.", "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... (f) the lawful arrest or detention of ... a person against whom action is being taken with a view to ... extradition. ... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 98.", "The applicant maintained that his detention between 4 and 30 January 2007 fell within the ambit of Article 5 § 1 (c) of the Convention. He considered that once the request for his extradition had been received by the Ukrainian authorities on 30 January 2007, his detention fell within the ambit of Article 5 § 1 (f). For the Government, the detention fell within Article 5 § 1 (f) throughout. 99. The Court notes that the applicant was arrested on the basis of the international search warrant issued by the Turkmen authorities and he had been so informed on the day of his arrest.", "He was also informed that the criminal procedure against him was pending in Turkmenistan and not in Ukraine. The same day the Kherson Police Department received an official request from the Turkmen authorities for the applicant’s provisional arrest under Article 61 of the Minsk Convention. On 10 January 2007 the Kakhovsky Court ordered the applicant’s detention pending the extradition proceedings against him. On 30 January 2007 the General Prosecutor’s Office of Ukraine received an official request from the General Prosecutor’s Office of Turkmenistan for the applicant’s extradition with a view to criminal prosecution. The Court further notes that the Minsk Convention, which is part of the domestic law in Ukraine, provides for a provisional arrest of the wanted person with a view to his possible extradition to the requested State even prior to the official request for extradition.", "From the facts described above the Court considers that the Ukrainian authorities arrested and detained the applicant in order to take action with a view to his extradition. There were no criminal proceedings against the applicant in Ukraine. Moreover, no other reason, except the one of extradition (and the proceedings for hooliganism which were mentioned to his relatives but never referred to again), has ever been advanced by the authorities for the applicant’s detention during the period in question and there is no evidence in the case-file to suggest that any such other reason has ever existed. Therefore, notwithstanding the applicant’s submissions to the contrary, his detention has always been with a view to extradition and his above complaint falls to be considered under Article 5 § 1 (f) of the Convention (see Novik, cited above). Therefore, Article 5 § 1 (c) and, accordingly, Article 5 § 3 of the Convention are not applicable in the present case (see Quinn v. France, judgment of 22 March 1995, Series A no.", "311, § 53). 100. The Government maintained that the applicant had failed to appeal against the decision of 10 January 2007 on his arrest to the appellate court. This possibility was provided for in Article 165-2 of the Code of Criminal Procedure and had been mentioned in the decision itself. Therefore, the Government argued that the applicant had failed to exhaust the remedies available to him under Ukrainian law in respect of this complaint.", "101. The applicant made no comment. 102. The Court further notes that under Article 165-2 of the Code of Criminal Procedure provides that it is open to the “prosecutor, suspect, accused or his or her defence counsel or legal representative” to challenge the decision of the first instance court. However, the applicant, as a person detained with a view to extradition rather than a suspect in a criminal case, did not fall into any of these categories.", "Furthermore, the essence of the applicant’s complaint about the unlawfulness of his detention is the lack of legislation that would provide clear and foreseeable rules of holding someone in custody pending extradition. The Government did not explain how, against the background of the Supreme Court’s Resolution of 8 October 2004, an appeal under Article 165-2 would address these issues or remedy the situation. The Government’s objection as to the applicant’s failure to appeal against the initial arrest warrant is therefore without substance and must be dismissed. 103. The Court therefore dismisses the Government’s preliminary objection and notes that the complaint under Article 5 § 1 (f) 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. The applicant’s complaints under Article 5 §§ 1 (c) and 3 of the Convention are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. B. Merits 1.", "Submissions by the parties 104. The Government maintained that the extradition of individuals from Ukraine to Turkmenistan was regulated by the Minsk Convention 1993, which had been ratified by the Ukrainian Parliament and had become part of Ukrainian legislation under Article 9 of the Constitution. They further noted that under the Minsk Convention, a Contracting State had to recognise official documents issued by the other Contracting State. Therefore, the Ukrainian Government could not call into question the official documents issued by the relevant Turkmen authorities in the applicant’s case. The Government maintained that by detaining the applicant, the Ukrainian authorities had acted in accordance with their international obligations under the Minsk Convention and that his detention was for the purpose of extradition.", "105. The Government noted that the Ukrainian court had ordered the applicant’s arrest on 10 January 2007. They maintained that there were no doubts as to the lawfulness of the domestic court decision and that the applicant’s arrest had been carried out in accordance with a procedure established by law. They further noted that this procedure allowed the applicant to appeal against the decision on his arrest, but that he had failed to do so. 106.", "The Government also noted that with regard to the applicant’s detention prior to 7 January 2007, the domestic authorities had acknowledged its unlawfulness, and the applicant had had an opportunity to appeal. 107. The applicant maintained that the requirements of Article 5 § 1 did not dispense the State from fulfilling its international obligations regarding extradition, since such a ground for detention was clearly provided for in Article 5 § 1 (f), which only required the detention to be in accordance with a procedure prescribed by the domestic legislation. The applicant submitted that the Minsk Convention did not provide for such a procedure. He further observed that the unlawfulness of his detention between 4 and 10 January 2007 had also been admitted by the State authorities themselves.", "108. The third party submitted that the decision on extradition was closely linked to the decision on the temporary arrest of the person whose extradition was being requested. Deprivation of that person’s liberty in such situations likewise required a clear and precise law to protect the person from arbitrary detention. 2. The Court’s assessment (a) General principles 109.", "The Court, as mentioned above, considers that the applicant was detained with a view to his extradition from Ukraine to Turkmenistan. Article 5 § 1 (f) of the Convention is thus applicable in the instant case as mentioned above. This provision does not require that the detention of a person against whom action is being taken with a view to extradition be reasonably considered necessary, for example, to prevent his committing an offence or absconding. In this connection, Article 5 § 1 (f) provides a different level of protection from Article 5 § 1 (c): all that is required under sub-paragraph (f) is that “action is being taken with a view to deportation or extradition”. It is therefore immaterial, for the purposes of Article 5 § 1 (f), whether the underlying decision to expel can be justified under national or Convention law (see Čonka, cited above, § 38, and Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, § 112).", "110. 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, judgment of 25 June 1996, Reports 1996‑III, § 50). 111. The Court must therefore ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein.", "On this last point, the Court stresses that, where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. 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 Khudoyorov v. Russia, no. 6847/02, § 125, ECHR 2005‑X (extracts); Ječius v. Lithuania, no. 34578/97, § 56, ECHR 2000-IX; Baranowski v. Poland, no.", "28358/95, §§ 50-52, ECHR 2000-III; and Amuur, cited above). In Nasrulloyev v. Russia (no. 656/06, §§ 72-77, 11 October 2007) the Court established that Chapter 54 of the Code of Criminal Procedure of Russia (“Extradition of a person for criminal prosecution or execution of sentence”), which did not set up special procedure of arrest and detention with a view to extradition but referred to the procedure of arrest and detention on remand, created confusion among the national authorities as to its application. The Court concluded that the provisions of the Russian law governing detention of persons with a view to extradition were neither precise nor foreseeable in their application and fell short of the “quality of law” standard required under the Convention. (b) Application to the present case 112.", "The Court accepts the Government’s submission that the Minsk Convention, being part of the domestic legal order, is capable of serving as a legal basis for extradition proceedings and for detention with a view to extradition. Article 5 § 1 (f) of the Convention, however, also requires that the detention with a view to extradition should be effected “in accordance with a procedure prescribed by law”. The Minsk Convention does not provide for a particular procedure to be followed in the requested State which could offer safeguards against arbitrariness. The Court therefore has to consider whether other provisions of Ukrainian law offered such a procedure. 113.", "As is apparent from Article 29 of the Ukrainian Constitution, there is a general rule that any individual who has been deprived of his or her liberty has the right to have the reasonableness of his or her detention reviewed by the domestic court within 72 hours. The Constitution further guarantees to everyone the right to challenge his or her detention in a court at any time. In other contexts, those constitutional safeguards are set out in further detail in separate instruments, such as the Code of Criminal Procedure and the Psychiatric Medical Assistance Act in the case of compulsory psychiatric treatment (see Gorshkov v. Ukraine, no. 67531/01, § 30, 8 November 2005). There are no legal provisions, however, whether in the Code of Criminal Procedure or in any other legislative instrument, that provide, even by reference, a procedure for detention with a view to extradition.", "The Supreme Court was aware of the problem, and attempted to address the issues in its resolution no. 16 of 8 October 2004 (see paragraph 31 above). It advised the lower courts to apply, mutatis mutandis, certain provisions of the Code of Criminal Procedure to extradition proceedings. Nevertheless, the Code of Criminal Procedure itself does not envisage such a possibility, clearly indicating that preventive measures shall be imposed on a suspect, accused, defendant, or convicted person (see paragraphs 26-28 above). Furthermore, the resolutions of the Plenary Supreme Court do not have the force of law and are not legally binding on the courts and the law-enforcement bodies involved in extradition proceedings.", "114. The foregoing considerations are sufficient for the Court to conclude that Ukrainian legislation does not provide for a procedure that is sufficiently accessible, precise and foreseeable in its application to avoid the risk of arbitrary detention pending extradition. Given the above findings, the Court does not consider it necessary to examine each of the applicant’s allegations concerning particular periods of his detention or the appropriateness of the criminal procedure suggested in the above Resolution of the Plenary Supreme Court. There has accordingly been a violation of Article 5 § 1 (f) of the Convention. V. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 115.", "The applicant further complained of the lack of sufficient procedural guarantees in domestic legislation for the review of the lawfulness of his detention, and of the delay in the initial review of his detention by the domestic court, given that he had been brought before a court on the seventh day of his detention. 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. Admissibility 116. The Government maintained that the applicant had at his disposal an effective procedure to challenge the lawfulness of his detention. According to the Government, this procedure was defined in Articles 106, 165-2 and 382 of the Code of Criminal Procedure, and in the Resolution of the Plenary Supreme Court of 8 October 2004.", "117. The Government also noted that the applicant’s detention prior to the decision of 10 January 2007 had been reviewed by the prosecutor, who had found that the applicant’s rights had been violated. As a result of the prosecutor’s actions, the officials responsible for this violation had been held liable for a disciplinary offence. The Government considered that the acknowledgment of a violation had entitled the applicant to seek restoration of his rights and compensation, which he had not done. Therefore, the Government submitted that the applicant had failed to exhaust the remedies available to him under Ukrainian law.", "118. The applicant maintained that Ukrainian legislation did not have any provisions clearly providing him with the possibility of challenging his detention in connection with a criminal prosecution in a foreign country. He considered that the procedure envisaged in Article 106 of the Code of Criminal Procedure did not comply with the requirements of Article 5 § 4 of the Convention. This procedure concerned the review of the first-instance court decision on appeal, but did not envisage any possibility for the applicant to initiate a periodic review of the lawfulness of his detention. 119.", "The applicant also noted that he had not been informed about the decisions by which the domestic authorities had acknowledged a violation of his rights; therefore, he had not been able to rely on them in any domestic proceedings. Moreover, this admission had not addressed all his complaints under Article 5. Furthermore, he questioned the adequacy of the disciplinary punishment in relation to the violation of his right to liberty, given that Article 371 of the Criminal Code provided for criminal punishment in the event of unlawful detention. The domestic authorities, however, had not initiated any criminal proceedings to ensure adequate punishment for those responsible. 120.", "In reply, the Government maintained that the applicant had failed to take any action even after he had received such information. 121. The Court finds that the Government’s contentions concerning non-exhaustion are so closely linked to the merits that they should be joined to them and considered together. 122. The Court therefore joins to the merits the Government’s contentions about availability of effectiveness of remedies for the applicant’s complaint under Article 5 § 4.", "The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "Submissions by the parties 123. As noted above, the Government contended that an adequate procedure was defined in Articles 106, 165-2 and 382 of the Code of Criminal Procedure, and in the Resolution of the Plenary Supreme Court of 8 October 2004 or, alternatively, in the possibility of bringing compensation proceedings in the light of the prosecutor’s findings of 20 February and 15 March 2007 that the applicant’s detention prior to 10 January 2007 had violated his rights. 124. In the applicant’s submission, the only procedure that could be considered under Article 5 § 4 was the one provided in Articles 165-2 and 165-3, but it did not afford the judicial safeguards required by Article 5 § 4. 2.", "The Court’s assessment 125. The Court reiterates that the purpose of Article 5 § 4 is to secure to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected (see, mutatis mutandis, De Wilde, Ooms and Versyp v. Belgium, judgment of 18 June 1971, Series A no. 12, § 76). A remedy must be made available during a person’s detention to allow that person to obtain speedy judicial review of the lawfulness of the detention, capable of leading, where appropriate, to his or her release. The 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, mutatis mutandis, Stoichkov v. Bulgaria, no.", "9808/02, § 66 in fine, 24 March 2005, and Vachev v. Bulgaria, no. 42987/98, § 71, ECHR 2004-VIII (extracts)). The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy (see, mutatis mutandis, Čonka, cited above, §§ 46 and 55). 126. The Court refers to its findings under Article 5 § 1 of the Convention about the lack of legal provisions governing the procedure for detention in Ukraine pending extradition.", "It considers that in the circumstances of the case, these findings are equally pertinent to the applicant’s complaint under Article 5 § 4 of the Convention, as the Government failed to demonstrate that the applicant had at his disposal any procedure through which the lawfulness of his detention could have been examined by a court. In particular, Article 165-2 of the Code of Criminal Procedure provides that it is open to the “prosecutor, suspect, accused or his or her defence counsel or legal representative” to challenge the decision of the first instance court. However, the applicant, as a person detained with a view to extradition rather than a suspect in a criminal case, did not belong to any of these categories. As to Articles 106 and 382 of the Code they equally refer to the situations of and parties to domestic criminal proceedings and not specifically to extradition proceedings. The Government have not indicated how Articles 106, 165-2 and 382 of the Code of Criminal Procedure could provide the review required by Article 5 § 4.", "Furthermore, in connection with an action for compensation based on the finding that the applicant’s detention before 10 January 2007 had violated his rights, and again as noted above, the detention in question had ended by the time the applicant was aware of the decisions in question, and the court dealing with an action for compensation would not have been capable to order his release. It could not therefore have constituted the “proceedings” foreseen by Article 5 § 4, either. 127. The foregoing considerations are sufficient to enable the Court to dismiss the Government’s preliminary objections and to conclude that there has been a violation of Article 5 § 4 of the Convention. VII.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 128. 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.” 129. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Joins to the merits the Government’s contention concerning the exhaustion of domestic remedies in respect of the applicant’s complaint under Article 5 § 4 of the Convention; and rejects it after an examination on the merits; 2. Dismisses the remainder of the Government’s preliminary objections; 3. Declares the complaints under Article 3, Article 5 §§ 1 (f) and 4, Article 6 § 1 and Article 13 of the Convention concerning the applicant’s possible extradition to Turkmenistan and detention pending extradition admissible and the remainder of the application inadmissible; 4. Holds that the applicant’s extradition to Turkmenistan would be in violation of Article 3 of the Convention; 5. Holds that there has been a violation of Article 13 of the Convention; 6.", "Holds that it is not necessary to examine whether the applicant’s extradition to Turkmenistan would be in violation of Article 6 § 1 of the Convention; 7. Holds that there has been a violation of Article 5 § 1 (f) of the Convention; 8. Holds that there has been a violation of Article 5 § 4 of the Convention; 9. Holds that there is no need to examine the issue of 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.", "Claudia WesterdiekPeer LorenzenRegistrarPresident [1] The Convention was amended by a Protocol of 1997, to which Ukraine has acceded, but Turkmenistan has not." ]
[ "FIFTH SECTION CASE OF BOYCHENKO AND GERSHKOVICH v. RUSSIA (Application no. 62866/00) JUDGMENT STRASBOURG 28 June 2007 FINAL 28/09/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Boychenko and Gershkovich v. Russia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: MrP. Lorenzen, President,MrsS.", "Botoucharova,MrK. Jungwiert,MrR. Maruste,MrA. Kovler,MrJ. Borrego Borrego,MrM.", "Villiger, judges,and Mrs C. Westerdiek, Section Registrar, Having deliberated in private on 5 June 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 62866/00) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Mr Aleksandr Aleksandrovich Boychenko and Mr Vladislav Vladimirovich Gershkovich (“the applicants”), on 27 October 2000. 2. The applicants were represented by Mr A. Kemishev, a lawyer practising in Moscow.", "The Russian Government (“the Government”) were initially represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mrs V. Milinchuk. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 3. The applicants, Mr Aleksandr Aleksandrovich Boychenko and Mr Vladislav Vladimirovich Gershkovich, are Russian nationals, who were born in 1953 and 1971 respectively and live in Moscow. 4.", "On 14 May 1993 the Ministry of Finance of Russia issued “Series III” domestic hard currency bonds (облигации внутреннего государственного валютного займа III серии). On 15 January 1999 the first applicant acquired bonds of a total nominal value 200,000 United States dollars (USD) and the second applicant acquired bonds of a total nominal value USD 2,010,000. 5. On 14 May 1999 the bonds matured and the applicants presented them for redemption. 6.", "On 11 June 1999 the applicants were informed that Vnesheconombank acting as the Government's agent refused to redeem the bonds, referring to a letter of the Ministry of Finance of 14 May 1999 No. 11-02-09 advising the holders of Series III bonds to refrain from presenting the bonds for redemption for a period of six months in the light of the unfavourable economic situation in the country. In the same letter the Ministry undertook to negotiate restructuring of the debt during this period. 7. On 29 November 1999 the Government of Russia issued Order No.", "1306 which provided for the existing Series III bonds to be converted into new bonds of two types with four and eight year maturity periods. 8. On an unspecified date the applicants brought civil proceedings against the Government, the Ministry of Finance and Vnesheconombank seeking recovery of the nominal value of the bonds and damages. They also asked the court to defer the payment of the court fees. 9.", "On 22 March 2000 the Presnenskiy District Court of Moscow awarded the applicants the nominal value of the bonds and dismissed the claim for damages. The first applicant was awarded USD 200,000 and the second applicant was awarded USD 2,010,000. 10. On 6 June 2000 the Moscow City Court dismissed the appeal lodged by the Ministry of Finance and upheld the judgment. 11.", "On 17 July 2000 the applicants submitted writs of execution to Vneshtorgbank. 12. On 20 July 2000 Vneshtorgbank refused to comply with the writs of execution, referring to an application for supervisory review of the judgments which was to be lodged by the Prosecutor of Moscow. The applicants' request to see the application was refused. 13.", "On 10 August 2000 the Prosecutor of Moscow lodged an application for supervisory review of the judgments. 14. On 28 September 2000 the Presidium of the Moscow City Court granted the application. The Presidium quashed the judgment of 22 March 2000 and the appeal decision of 6 June 2000 on the grounds that the courts had erred in interpretation of the law and failed to rule on the issue of payment of court fees, and remitted the case for a fresh examination. 15.", "On 6 April 2001 the Presnenskiy District Court examined and dismissed the applicants' claim in full. 16. On 22 May 2001 the Presnenskiy District Court delivered an additional judgment ordering the applicants to pay court fees. 17. On an unspecified date the applicants' appeal against the judgment was dismissed.", "18. On 21 November 2002, following a request by the applicants, the Prosecutor of Moscow lodged an application for supervisory review of the judgments. 19. On 24 December 2002 the Presidium of the Moscow City Court examined the application and upheld the judgment of 6 April 2001. In the same proceedings it quashed the judgment of 22 May 2001 concerning the payment of court fees and remitted it for a fresh examination.", "20. On 11 August 2003 the Presnenskiy District Court discontinued the proceedings concerning the court fees. 21. On 6 June 2005 the Deputy President of the Supreme Court of the Russian Federation lodged an application for supervisory review of the judgment in the applicants' case. 22.", "On 8 August 2005 the Presidium of the Supreme Court decided to adjourn its examination of the case, apparently pending a ruling from the Constitutional Court on the matter. 23. In July 2006 the parties informed the Court that the examination of the case by the Presidium of the Supreme Court was adjourned in connection with a case pending before the Constitutional Court of the Russian Federation which concerned a similar issue. Since then the parties provided no information to the Court about the development of the case. II.", "RELEVANT DOMESTIC LAW 24. Section 11 of the Code of Civil Procedure of 1964 (Гражданский процессуальный кодекс РСФСР), as in force at the relevant time, provided that regional and higher courts could conduct supervisory review of the activities of the lower courts. 25. According to Sections 319, 320 and 327 of the Code, certain senior judicial officers could, at any time, at request of the person concerned or on their own motion, lodge with a higher court an application for supervisory review of a final decision of a lower court on points of law and procedure. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 26. The applicants complained under Article 6 of the Convention about the decision of 28 September 2000 by which the Presidium of the Moscow City Court quashed on supervisory review the final judicial decision in their favour. Article 6, insofar as relevant, reads as follows: “1. In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing...” 27. The Government alleged that the decisions in the applicants' favour had been erroneous in that the domestic courts wrongly interpreted and applied the relevant law and that therefore the quashing had been justified.", "They contended that the decisions had been reversed with a view to correct a judicial error. They made no comments concerning the new supervisory review of the case in 2005, or the subsequent procedural steps. 28. The applicants contested the Government's submissions and claimed that their right to the judicial award had not been restored. A. Admissibility 29.", "The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 30.", "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, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which 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 [GC], no. 28342/95, § 61, ECHR 1999-VII). 31. The Court has found a violation of the above principle of legal certainty and of the right to a court in the case of Ryabykh v. Russia (Ryabykh v. Russia, no.", "52854/99, ECHR 2003‑IX) where a final and binding judgment in the applicant's favour was set aside, on the ground of misinterpretation of the law, by a higher court in supervisory review proceedings following an application by a president of a regional court, whose power to make such applications was not subject to any time-limit, so that judgments were liable to challenge indefinitely (see Ryabykh, cited above, §§ 51-58). 32. Turning to the circumstances of the present case the Court observes that, by allowing the application lodged by the Prosecutor of Moscow, the Presidium of the Moscow City Court set at naught an entire judicial process which had ended in a final and binding judicial decision of 22 March 2000, upheld on appeal on 6 June 2000, and was thus res judicata. The Court finds no reason to depart from its reasoning in the aforementioned Ryabykh case. It concludes that the setting aside of that decision in supervisory review proceedings for the sake of correcting an alleged judicial error violated the principle of legal certainty enshrined in Article 6 § 1 of the Convention.", "33. There has accordingly been a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 34.", "The applicants complained under Article 1 of Protocol No. 1 to the Convention that the quashing on supervisory review of the final judicial awards in their favour also constituted an unjustified interference with their right to the peaceful enjoyment of their possessions. 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.” 35. The parties' submissions under this head were the essentially the same as above. Admissibility 36. In so far as the applicants' complaints concern the outcome of the civil proceedings, the Court notes that the examination of their case has resumed and the proceedings are pending before the domestic courts. The Court, therefore, considers that it is not called upon to decide whether the facts alleged by the applicant disclose any appearance of a violation of Article 1 of Protocol No.", "1 to the Convention. 37. It follows that therefore this complaint is premature and this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 38.", "Lastly, the applicants complained that the ruling of the Presidium of the Moscow City Court of 28 September 2000 violated their right to an effective remedy guaranteed by Article 13 of the Convention, and that it constituted an abuse of rights prohibited by Article 17 of the Convention. 39. 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. IV.", "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 each claimed a compensation of pecuniary and non-pecuniary damage. The first applicant's claims in respect of pecuniary damage included 37,600 United States dollars (USD) representing the nominal value of the bonds and USD 141,818 of accrued interest, plus penalties.", "The second applicant's claims in respect of pecuniary damage included USD 386,000 representing the nominal value of the bonds and USD 1,431,807 of accrued interest, plus penalties. In respect of non-pecuniary damage the applicants each claimed USD 10,000. 42. The Government contested the applicants' claims as excessive and unfounded. 43.", "The Court notes that the applicants' claims as regard pecuniary damage related to the alleged violation of their right to the peaceful enjoyment of possessions. In view of the above finding that this complaint is inadmissible, the Court rejects this part of the claims. As regards non-pecuniary damage, it considers that the applicants must have suffered frustration and a feeling of injustice as a consequence of the reversal of the final judicial decision in their favour. Accordingly, making its assessment on an equitable basis, it awards the applicants 2,000 euros each for non-pecuniary damage, plus any tax that may be chargeable on that amount. B.", "Costs and expenses 44. The applicants did not make any claim in respect of the costs and expenses incurred before the domestic courts or in the proceedings before the Court. Accordingly, the Court makes no award under this head. C. Default interest 45. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 6 § 1 concerning the quashing of the judgment 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 on account of the quashing of the judgment of 22 March 2000, upheld on appeal on 6 June 2000; 3. Holds (a) that the respondent State is to pay each applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above 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 28 June 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]
[ "FIRST SECTION CASE OF MUSAYEVA AND OTHERS v. RUSSIA (Application no. 74239/01) JUDGMENT STRASBOURG 26 July 2007 FINAL 31/03/2008 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 Musayeva and Others v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrsN.", "Vajić,MrA. Kovler,MrsE. Steiner,MrK. Hajiyev,MrD. Spielmann,MrS.E.", "Jebens, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 5 July 2007, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 74239/01) 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, Mrs Aminat Dautovna Musayeva, Mr Alamat Reshetovich Musayev and Mrs Elza Uvaysovna Zurapova (“the applicants”), on 20 September 2001. 2. The applicants, who had been granted legal aid, were represented by Mrs L. Khamzayeva, a lawyer practising in Moscow.", "The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicants complained, in particular, of the torture and death of their relatives following their unlawful detention, of the absence of adequate investigation into these events, and the lack of effective remedies in respect of those violations. They relied on Articles 2, 3, 5 and 13 of the Convention. 4.", "On 29 August 2004 the President of the First Section decided to grant priority to the application under Rule 41 of the Rules of Court. 5. By a decision of 1 June 2006, the Court declared the application partly admissible. 6. The applicants and the Government each filed further written observations (Rule 59 § 1).", "The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other's observations. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicants were born in 1954, 1946 and 1977 respectively and live in the village of Gekhi, Urus-Martan District, Chechnya. 8.", "The facts of the case as submitted by the parties are summarised in section A below (paragraphs 9 - 55). A description of documents submitted by the Government is contained in section B below (paragraphs 56 - 59). A. The facts 9. The first two applicants are a married couple.", "They have four children, two of whom – Ali Musayev, born in 1972, and Umar Musayev, born in 1977 – lived together with their parents in a household comprising two houses in Gekhi. The third applicant was married to Ali Musayev. 1. Detention of Ali and Umar Musayev 10. On 8 August 2000 a Russian armoured personnel carrier (APC) was attacked and blown up in the vicinity of Gekhi and the military responded with a “sweeping” operation in the village.", "11. During this operation an armed man, who was being pursued by soldiers, entered the applicants' house and hid in one of the rooms. According to the Government, the man was A., a member of an illegal armed group. The servicemen strafed the house, using machine-guns and grenade-launchers. Two daughters and a grandson of the first two applicants, the second applicant, the third applicant, Ali Musayev and Umar Musayev were inside the house at the time.", "A two-year-old grandson of the first two applicants was in a car parked in the courtyard. 12. A. was killed when the military threw nine grenades into the house and shelled it from the APC. The servicemen then wrapped the corpse in a blanket and put it into Ali Musayev's car, a white Zhiguli. They then searched the house.", "Umar Musayev, who had been feeling ill that day and was lying in bed, was blindfolded and ordered to step out of the house and lie down. 13. Major S., an officer in command, seized the identity papers, car documents and car key belonging to Ali Musayev, who was then forced into the car. Umar Musayev was put into an APC which had no visible vehicle number. They were both taken away.", "14. The first applicant later found out that the APC number was 108 and belonged to the Main Intelligence Department of the Ministry of Defence of Russia (Главное разведывательное управление Министерства Обороны РФ). 15. Following their detention, Ali and Umar Musayev were brought to a temporary operational headquarters of the military commander's office situated near Gekhi. According to the first applicant, who referred to unnamed witness statements, Ali Musayev was beaten there by federal officers.", "16. Thereafter the Musayev brothers were brought to the Urus-Martan Temporary Office of the Interior (временный ОВД Урус-Мартановского района, “the VOVD”) and questioned. The first applicant submitted, with reference to the witnesses' accounts, that after the interrogation her sons and three other persons apprehended in Gekhi that day had again been brought to the temporary operational headquarters. At 5 p.m. the military released the other three persons, but not Ali and Umar Musayev, of whom there was no further news. 2.", "Search for Ali and Umar Musayev 17. Between 8 and 10 August 2000 federal troops sealed off the village of Gekhi. On the latter date, after restrictions were lifted, the first applicant went to Urus-Martan and notified the head of the district administration (глава администрации) of the detention of her sons. 18. She then went to the district military commander's office (районная военная комендатура) where she noticed her elder son's car in the courtyard.", "The first applicant applied to military commander G. with enquiries about her sons and the car. The military commander told the first applicant that he had no information concerning Ali and Umar Musayev and advised her to come back in two days. As regards the car, Mr G. stated that it was “unclean”. 19. On the same date the first applicant also applied to the Urus-Martan prosecutor's office (прокуратура Урус-Мартановского района), claiming that her sons had been unlawfully detained.", "20. On 11 or 12 August 2000 the first applicant went to the military commander's office again. Mr G. told her that he had not participated in the “sweeping” operation on 8 August 2000 and had no information about the whereabouts of her sons. Later, the military commander stated that the Musayev brothers had been taken to the main federal military base in Khankala. As to the car, Mr G. said that a database check had confirmed that it was “clean” and that the first applicant had to produce a power of attorney to recover the vehicle.", "The first applicant stated that she did not have this paper, as all the documents had been in the seized car, and the military commander refused to return the vehicle. In the first applicant's submission, the car was returned only on 4 October 2000, after her son-in-law had brought a copy of the power of attorney from a vendor from Dagestan. 21. During August and September 2000 the first applicant repeatedly applied to the military commander's office, the VOVD and prosecutors at various levels in connection with her sons' disappearance. She received hardly any substantive information from official bodies in reply to her enquiries.", "The responses were mainly formal ones stating that her requests had been forwarded to different prosecutor's offices. 22. In a letter of 11 September 2000 an acting prosecutor of the Urus-Martan District informed the first applicant that Ali and Umar Musayev were not detained in the VOVD, that they were not listed in the VOVD registration papers, and that no criminal proceedings had ever been brought against them. The letter further stated that information requests sent to military units had remained unanswered, and that the head of the Urus-Martan VOVD had been instructed to commence a criminal investigation into the disappearance of the Musayev brothers. 3.", "Discovery of the bodies of Ali and Umar Musayev 23. According to the applicants, on 11 August 2000 the Russian TV channel NTV showed Ali Musayev's body as that of a rebel fighter killed during the “sweeping” operation in Gekhi on 8 August 2000. The applicants did not submit a copy of that recording. 24. In early September a serviceman of a military unit stationed in the village of Tyangi-Chu produced a plan of a burial site near the cemetery of Gekhi, where, he claimed, Ali and Umar Musayev had been buried.", "According to the applicants, they had to pay for the indication of the site. 25. On 13 September 2000 the applicants notified the head of the administration of Gekhi, the Urus-Martan District Prosecutor's Office, the military commander's office and the district administration of Urus-Martan (администрация Урус-Мартановского района) that they were going to excavate the grave. 26. On the same date the second applicant exhumed the grave in the presence of a police officer and officials from the local administration and found four corpses, all of which showed signs of having met a violent death.", "He identified his sons' bodies by fragments of the remaining teeth. The other two bodies were identified as that of the man killed in the applicants' house on 8 August 2000 and that of a resident of Gekhi, who had been detained along with the Musayev brothers. It appears that the remains were examined by officials of the administration of Gekhi, who issued a certificate in this respect. 27. The police officer undertook no investigative actions at the excavation site.", "According to the Government, the applicants refused to submit the bodies for an autopsy on account of their national and religious traditions. The applicants buried the remains shortly afterwards, without taking photographs or inviting a medical doctor to attend before the burial. 28. On 7 September 2001 the Urus-Martan Town Court certified the death of Ali Musayev, upon the first applicant's request. The court heard evidence from two witnesses, who confirmed the first applicant's submissions about the detention of her son on 8 August 2000, the discovery of his body and his burial on 13 September 2000 at the Gekhi village cemetery.", "The court certified that Ali Musayev's death had occurred on 13 September 2000 in the village of Gekhi. It does not appear that a court certification of death was made in respect of Umar Musayev. 29. On 18 September and 9 October 2001 respectively the registry office of the Urus-Martan District issued death certificates for Ali Alamatovich Musayev, born in 1972, and Umar Alamatovich Musayev, born in 1977. The date and the place of death were recorded as 12 September 2000, Gekhi.", "30. On 8 October 2001 a medical certificate of death was issued for Umar Musayev. Referring to the certificate of the administration of Gekhi and a certificate of the Urus-Martan prosecutor's office, the medical certificate stated that Umar Musayev's death had been caused by multiple stab wounds and severe injuries. The date and the place of death were recorded as 12 September 2000, Gekhi. 4.", "Official investigation 31. On 18 September 2000 the Urus-Martan VOVD refused to institute criminal proceedings in connection with the discovery of four bodies on 13 September 2000, referring to the absence of essential elements of a crime. 32. On 18 October 2000 the Urus-Martan prosecutor's office set aside the above decision and instituted criminal proceedings under Article 105 (2-a) of the Russian Criminal Code (murder of two or more persons). The case file was assigned the number 24047.", "33. In a letter of 1 November 2000 the military prosecutor of military unit no. 20102 (военная прокуратура – войсковая часть 20102) informed the first applicant that a suspect in the blowing-up of the APC had been found in their house, and that her sons had been detained for an identity check in this connection. The letter confirmed that after being apprehended Ali and Umar Musayev had been brought to the Urus-Martan VOVD but stated that no further information about them was available, since they were not listed among the detained persons. The letter went on to say that on 13 September 2000 a burial site had been excavated by police officers who had found four male bodies there.", "Two of the bodies had been identified as those of the first applicant's sons. The letter also stated that Major S., the officer in charge of the operation, had left for his permanent location in Penza, and that efforts were being made to obtain information from him about the detention of Ali and Umar Musayev. 34. On 27 November 2000 the Urus-Martan prosecutor's office received a letter from a district prosecutor of the Penza Region informing him that on 15 November 2000 Major S. had been questioned about the operation of 8 August 2000. The transcript of this interview was enclosed.", "Major S. stated the following: “From 18 June until 22 September 2000 I was seconded to the town of Urus-Martan, the Chechen Republic. ... In addition to the Urus-Martan VOVD, military personnel of the troops of the interior and of the army (военнослужащие из внутренних и федеральных войск) and the military commander's company (комендантская рота) also took part in the operation [on 8 August 2000]. I cannot say which particular person was in command of the operation. From our department there was the head of the Urus-Martan VOVD, Lieutenant-Colonel Sh.", "There were also three generals, whose names I do not know, and military commander G. in the vicinity of the village of Gekhi. Acting on the instructions of the superiors of the alignment, I and a group of 30 – 35 men arrived by bus and APC in Gekhi at around 11 a.m. ... About 20 men in the group were police officers, the rest were army servicemen. I was in charge of the police officers, and the [army] servicemen were under the command of an officer with the rank of captain, whose name I do not know. I do not know in which particular military units those servicemen served and at whose disposal the APC with the vehicle number 108 was. During the “sweeping” operation we went to the courtyard of one of the houses.", "It was subsequently established that the house belonged to the Musayev family. ... I approached one of the windows and looked inside. I saw a man wearing an ammunition jacket and holding a pistol. Having seen me, the man fired ... at me.", "... In response to the shots from the house, our personnel opened fire. ... [During the fight another] man came over to me and said that he lived in Moscow and was a relative of this family. ... One of the soldiers threw 6 grenades into the house, but the shots from the house did not stop. Then [we] started shooting at the criminal from the APC, and only then did the fire from the house cease, but the house caught fire.", "... Only one man seemed to have been shooting from the house, and only one body was found inside. The soldiers put this corpse into a white car and the relative from Moscow also got into this vehicle. Then I went out and saw two cars near the house. The servicemen said that they had seized those cars. I cannot tell who ordered them to seize the cars.", "I did not give such an order. Besides, on the APC I noticed another detained man in a white shirt. I do not know who ordered that man to be detained. We escorted the detained men and two cars to the outskirts of Gekhi, where the command centre of the alignment was located. ... On the instructions of the superiors, the detained persons and the cars were left at the command centre.", "Upon my return from Gekhi, somebody told me that the detainees and the red car had been released. The detainees were not brought to the Urus-Martan VOVD, as upon my return there in the evening I saw neither the white car nor the persons apprehended during the fight at the Musayevs' house. I do not know whether they were brought to the military commander's office and who escorted them. ... Following the instruction of the superiors, we left these detainees at the command centre, and I have no further information about them, or about the white car.” 35.", "Having regard to the transcript, the prosecutor of the Urus-Martan District ordered the military commander G. to be questioned. According to the first applicant, that order was never complied with. 36. In a letter of 4 January 2001 the military prosecutor of military unit no. 20102 informed the Urus-Martan prosecutor's office and the first applicant that an inquiry had been carried out into the first applicant's allegations, and that no involvement of the military personnel of the Ministry of Defence or of the interior troops of the Ministry of the Interior in the detention of the Musayev brothers had been established, and therefore no criminal proceedings would be brought against the aforementioned personnel.", "37. On 18 December 2000 the Urus-Martan prosecutor's office suspended the criminal proceedings in case no. 24047 for failure to establish the identity of the alleged perpetrators. The first applicant was notified of that decision in a letter of 18 January 2001. 38.", "On 7 August 2001 the Urus-Martan prosecutor's office quashed the decision of 18 December 2000, stating that the investigation had been incomplete and that, in particular, no forensic medical examination of the bodies had been carried out and the witnesses who had identified the corpses had not been questioned. The prosecutor's office thus ordered that the investigation be resumed. 39. On an unspecified date the first applicant received a letter from the Urus-Martan prosecutor's office dated 24 August 2001. The letter contained a restatement of the facts of the detention of Ali and Umar Musayev and the discovery of their bodies and informed the first applicant that a criminal investigation had been commenced and that the case file had been assigned the number 24047.", "The letter also stated that the first applicant would be informed of any further developments in the case. 40. On 8 September 2001 the criminal proceedings in case no. 24047 were adjourned as it was impossible to establish the identity of the alleged perpetrators. The proceedings were then resumed pursuant to a decision of the Urus-Martan prosecutor's office dated 1 April 2002 and suspended a month later.", "41. On 22 July 2002 the prosecutor's office of the Chechen Republic (прокуратура Чеченской Республики, “the republican prosecutor's office”) set aside the decision of 1 May 2002 and resumed the investigation, ordering the investigators “to study thoroughly the circumstances of the Musayev brothers' disappearance and to establish the identity of those responsible”. 42. On 22 August 2002 the Urus-Martan prosecutor's office granted the first applicant the status of victim of a crime and civil claimant. 43.", "On 26 August 2002 the Urus-Martan prosecutor's office suspended the investigation into the death of the Musayev brothers. 44. In a letter of 27 August 2002 the Prosecutor General's Office informed the first applicant that the investigation into her sons' death had been resumed on 19 July 2002 and was being supervised by them. 45. Between 26 August 2002 and 14 October 2004 the proceedings remained suspended and there were no developments in the case.", "46. In September 2004 the present application was communicated to the Russian Government. On 14 October 2004 the Urus-Martan prosecutor's office resumed the investigation, referring to the fact that a number of essential steps had not previously been taken and giving detailed instructions to the investigators as to what measures should be taken. 47. In a letter of 14 October 2004 the Urus-Martan prosecutor's office informed the first applicant that the proceedings in criminal case no.", "24047 had been recommenced on that date. 48. On 14 November 2004 the Urus-Martan prosecutor's office notified the first applicant of the suspension on the same date of the preliminary investigation into her sons' murder in the absence of those responsible. 49. It appears that at some point the investigation was resumed, then suspended on 21 April 2005 and recommenced on the same date.", "It was then suspended on 21 May and 31 October 2005 and resumed on 30 September 2005 and 18 August 2006 respectively. 50. Referring to the information provided by the Prosecutor General's Office, the Government submitted that the investigation into the murder of Ali and Umar Musayev had commenced on 18 October 2000 and had then been suspended and resumed on several occasions, but had so far failed to identify those responsible. According to the Government, the applicants were duly informed about all decisions taken during the investigation. They further submitted that the first applicant had been questioned on 20 October and 12 December 2000, 4 April 2002, 19 and 23 October 2004 and 1 April 2005 and had been granted the status of victim and been declared a civil claimant on 20 October 2000 and 22 August 2002 respectively.", "The second applicant had been questioned as a witness on 23 October 2000, 5 April, 20 and 23 October 2002 and 12 April 2005. Apart from the first two applicants, the investigating authorities had also questioned at least 18 witnesses, including the applicants' relatives and acquaintances, residents of Gekhi, the head of the local administration and a number of servicemen of law-enforcement agencies who had been working in the Chechen Republic at the material time. The Government referred in particular to the statement of Mr M., an investigator of the Urus-Martan prosecutor's office, to the effect that military commander G. had told him that the Musayev brothers had been detained and then released. The Government did not specify on which date this statement had been made. They also submitted that military commander G. had not been questioned during the investigation, as he had been killed on 29 November 2001 in a terrorist attack.", "The Government did not indicate any other names of the servicemen who had allegedly been questioned by the investigators. 51. According to the Government, it was impossible to identify other witnesses in the case, but the search for them was currently under way. The Government further stated that the applicants had refused to disclose the place of burial of Ali and Umar Musayev and allow the investigating authorities to exhume the bodies so as to enable forensic experts to examine them. Finally, the Government stated that the investigating authorities had sent a number of queries to various State bodies on 16 December 2000, 20 and 26 October 2002, 20 October, 1 and 14 November 2004, 28, 30, 31 January, 3 February, 23 and 25 March and 5 May 2005 and undertaken other investigative actions, but did not specify what those actions had been.", "5. Civil proceedings 52. On unspecified dates the first two applicants issued separate sets of civil proceedings against the Ministry of Finance in the Basmanny District Court of Moscow (“the District Court”), seeking compensation for non-pecuniary damage in connection with the unlawful detention of their sons. 53. On 23 December 2003 and 21 May 2004 the District Court delivered two similar judgments.", "It established that on 8 August 2000 in the house of the Musayev family in the village of Gekhi, Urus-Martan District, a member of an illegal armed group had been found and killed, as he had shown armed resistance. The applicants' sons, Ali Musayev and Umar Musayev, were detained and escorted to the Temporary Office of the Interior of the Urus-Martan District so as to establish the circumstances of the above-mentioned incident. On 13 September 2000 their corpses were found at the outskirts of Gekhi, and criminal proceedings were instituted in this connection but later suspended, as no culprits could be identified. The court further stated that under Article 1069 of the Civil Code of Russia the State was liable only for damages for its agents' actions that were unlawful. It then noted that the military operation in Chechnya had been launched by virtue of Presidential Decree no.", "2166 of 30 November 1994, and Governmental Decree no. 1360 of 9 December 1994 which had been found constitutional by the Constitutional Court of Russia on 31 July 1995, except for two provisions of the governmental decree. In the latter respect the court noted that the said two provisions had never been applied to the applicants and that “it did not follow from the evidence submitted that there was a causal link between the loss by [the first two applicants] of their sons and any unlawful actions on the part of the State bodies”. The court concluded that the applicants' claims were not based on domestic law and dismissed them accordingly. 54.", "On 8 July 2004 the Moscow City Court rejected an appeal by the first applicant and upheld the judgment of 23 December 2003. 55. It is unclear whether the second applicant appealed against the judgment of 21 May 2004, and, if so, what the outcome of the appeal was. B. Documents submitted by the Government 1.", "The Court's requests for the investigation file 56. In September 2004, at the communication stage, the Government were invited to produce a copy of the investigation file in criminal case no. 24047 opened into the killing of Ali and Umar Musayev. Relying on the information obtained from the Prosecutor General's Office, the Government replied that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses. In March 2005 the Court reiterated its request and suggested that Rule 33 § 3 be applied.", "In reply, the Government stated that the submission of the case file would breach the relevant national legislation, given that it contained classified information of a military nature and personal data concerning witnesses. At the same time, the Government suggested that a Court delegation could have access to the file at the place of the preliminary investigation with the exception of “the documents [disclosing military information and personal data concerning the witnesses], and without the right to make copies of the case file and transmit it to others”. 57. On 1 June 2006 the application was declared partly admissible. At that stage the Court again invited the Government to submit the investigation file and to submit information concerning the progress in the investigation.", "In September 2006 the Government informed the Court of the latest dates on which the investigation had been suspended and reopened and produced 39 documents running to 47 pages from the case file, which, as could be ascertained from the page numbering, comprised at least 423 pages. The documents included: (a) a procedural decision of 18 October 2000 instituting criminal proceedings in connection with the discovery of four bodies on 13 September 2000; (b) numerous procedural decisions suspending and reopening criminal proceedings in connection with the killing of the applicants' relatives; (c) a number of investigators' decisions taking up case no. 24047 (d) letters informing the first applicant of the suspension and reopening of the criminal proceedings in case no. 24047. 58.", "The Government did not furnish the Court with any other documents from the case file. 2. Letters from the Russian courts 59. The Government enclosed a number of letters from various higher courts in Russia, stating that the applicants had never lodged any such complaints about the allegedly unlawful detention of their relatives or challenged in court any actions or omissions of the investigating or other law-enforcing authorities. II. RELEVANT DOMESTIC LAW 60.", "Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation. 61. Article 161 of the new CCP enshrines the rule that data from the preliminary investigation may not be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator but only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation.", "It is prohibited to divulge information about the private life of the participants in criminal proceedings without their permission. 62. The Law on Complaints to Courts against Actions and Decisions Violating the Rights and Freedoms of Citizens (as revised by the Federal Law of 14 December 1995) provides that any citizen has the right to lodge a complaint with a court when he or she considers that his or her rights have been infringed by an unlawful action or decision of a State agency, local self-government body or an institution, enterprise or association, non-governmental organisation or official or State employee. Complaints may be lodged either directly with a court or with a higher State agency, which must review the complaint within one month. If the complaint is rejected by the latter or there has been no response on its part, the person concerned has the right to bring the matter before a court.", "63. Under Section 5 of the Law on Operational Search Activities, an individual who considers that his rights and freedoms have been violated by the bodies carrying out the operational search activities can complain of those actions to a higher body carrying out the operational search activities, a prosecutor or a court. THE LAW I. THE GOVERNMENT'S PRELIMINARY OBJECTION A. Submissions of the parties 64. The Government requested the Court to declare the case inadmissible as the applicants had failed to exhaust domestic remedies.", "They claimed that the applicants could have complained to a court under Article 46 of the Russian Constitution, Section 5 of the Law on Operational Search Activities and the Law on Complaints to Courts against Actions and Decisions Violating the Rights and Freedoms of Citizens about the unlawful detention of their relatives or about the unlawful actions of personnel of law-enforcement agencies, but had failed to do so. In support of their argument, the Government referred to the letters from the Russian courts which they had submitted to the Court (see paragraph 59). 65. The applicants contested the Government's objection. They pointed out that immediately after their relatives' detention and thereafter they had repeatedly applied to law-enforcement bodies, including various prosecutors.", "This avenue had proved futile, however, given that the criminal investigation had now been pending for several years but had failed to find and identify those responsible. The applicants also stated that there was no specific requirement in national law to have recourse to any other remedy once criminal proceedings were instituted and an investigation was under way. The applicants contended that, in any event, in the absence of an effective investigation any other remedy, including a civil claim, would also be rendered ineffective by the fact that court decisions would be based on the findings made within the context of the criminal investigation, which had so far failed to establish whether State agents had been involved in the murder of the Musayev brothers. In this latter respect the applicants referred to the judgments of Basmanny District Court of 23 December 2003 and 21 May 2004 which had dismissed their claims for compensation for non-pecuniary damage in connection with the unlawful detention on the ground that it had not been established that the applicants had lost their relatives as a result of State agents' unlawful actions. B.", "The Court's assessment 66. The Court notes that, in its decision of 1 June 2006, it considered that the question of exhaustion of domestic remedies was closely linked to the substance of the applicants' complaints and that it should be joined to the merits. It will now proceed to assess the parties' arguments in the light of the Convention provisions and its relevant practice. 67. The Court reiterates that the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention obliges applicants to use first the remedies which are 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 both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that 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 and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996‑VI, pp. 2275-76, §§ 51-52; Akdivar and Others, cited above, p. 1210, §§ 65-67; and, most recently, Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, no. 41964/98, § 64, 27 June 2006).", "68. It is incumbent on the respondent Government claiming non-exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicants have not had recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicants' complaints and offered reasonable prospects of success (see Akdivar and Others, cited above, p. 1211, § 68, or Cennet Ayhan and Mehmet Salih Ayhan, cited above, § 65). 69. In the present case, in so far as the Government argued that the applicants had not lodged a complaint in court about the detention of Ali and Umar Musayev, the Court observes that in the period between 8 August and 13 September 2000, when their relatives remained missing, the applicants actively attempted to establish their whereabouts and applied to various official bodies (see paragraphs 17 – 21 above), whereas the authorities denied that they had ever detained the Musayev brothers (see paragraph 22 above). In such circumstances, and in particular in the absence of any proof to confirm the very fact of the detention, even assuming that the remedy referred to by the Government was accessible to the applicants, it is more than questionable whether a court complaint about the unacknowledged detention of the applicants' relatives by the authorities would have had any prospects of success.", "Moreover, the Government have not demonstrated that the remedy indicated by them would have been capable of providing redress in the applicants' situation, namely that the applicants' recourse to this remedy would have led to the release of the Musayev brothers and the identification and punishment of those responsible. 70. As regards the period after 13 September 2000, the date on which the corpses of the Musayev brothers were found, a court complaint about their detention would clearly have been an inadequate remedy. 71. In the light of the foregoing, the Court considers that it has not been established with sufficient certainty that the remedy advanced by the Government would have been effective within the meaning of the Convention.", "The Court finds that the applicants were not obliged to pursue that remedy, and that this limb of the Government's preliminary objection should therefore be dismissed. 72. To the extent the Government argued that the applicants had not complained to a court about the actions or omissions of the investigating or other law-enforcing authorities, the Court considers that this limb of the Government's preliminary objection raises issues which are closely linked to the question of the effectiveness of the investigation, and therefore it would be appropriate to address the matter in the examination of the substance of the applicants' complaints under Article 2 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 73.", "The applicants complained of the killing of their relatives and the failure of the domestic authorities to carry out an effective investigation in this respect. They relied on 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.” A. Alleged failure to protect the right to life 1. Arguments of the parties 74. The applicants first pointed out that it was undisputed that on 8 August 2000 Ali and Umar Musayev had been taken away from their home by federal servicemen under the command of Major S. and delivered to the Urus-Martan Temporary Office of the Interior. They referred further to Major S.'s statement to the effect that “on the instructions of the superiors, the detained persons and the cars had been left at the command centre”, to the fact that they had purchased from a federal officer a plan of a burial site where the bodies of Ali and Umar Musayev had been found, and to the fact that Ali Musayev's body had been shown on NTV as that of a killed rebel fighter.", "The applicants argued that, in such circumstances, there was no doubt that federal servicemen had intentionally killed the Musayev brothers. They also pointed out that no evidence had been submitted that the deprivation of their relatives' lives had been justified under Article 2 § 2 of the Convention. 75. The Government conceded that the applicants' relatives had been apprehended by the federal officers and then found dead, but contended that there were no grounds to claim that the right to life of the applicants' relatives had been breached by the State. They referred to a reply of the Prosecutor General's Office stating that the investigation had not established that the killing of the Musayev brothers had been committed by representatives of the federal power structures.", "The Government specifically referred to the statement of Mr M., an investigator of the Urus-Martan prosecutor's office, to the effect that military commander G. had allegedly told him that the Musayev brothers had been detained and then released. 2. The Court's assessment (a) General considerations 76. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. 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 McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, §§ 146-147). 77. 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.", "Detained persons 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. The obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter (see, amongst other authorities, Orhan v. Turkey, no. 25656/94, § 326, 18 June 2002, and the authorities cited therein). 78.", "Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999‑IV). (b) Application in the present case 79.", "The Court observes that although the Government denied the State's responsibility for the killing of the applicants' two relatives, they acknowledged the specific facts underlying the applicants' version of the Musayev brothers' detention and deaths. In particular, it is common ground between the parties that on 8 August 2000 Ali and Umar Musayev were apprehended by federal servicemen in the course of a special operation and delivered to the temporary headquarters of the federal forces near the village of Gekhi. It was not alleged by the Government that the applicants' relatives had had any pre-existing injuries or active illnesses. The Court further notes the Government's reference to the statement of Mr M., an investigator of the Urus-Martan prosecutor's office, to the effect that military commander G. had allegedly told him that the Musayev brothers had been detained and then released. It notes that this statement has not been corroborated by any other witness statements, such as, in particular, that of military commander G., who was never questioned, or any other evidence.", "The Government did not produce a transcript of Mr M.'s interview to which they referred, any formal records attesting the date of the Musayev brothers' arrest or release or any others documents. The Court therefore regards the statement referred to by the Government as unreliable and untenable on the facts and finds it established that Ali and Umar Musayev were apprehended in good health and placed in custody under the control of the State. 80. The parties further agreed that four dead bodies were found in a burial site on the outskirts of Gekhi on 13 September 2000. Two of the bodies were identified as those of the Musayev brothers, whilst the two other corpses were that of Mr A., a man killed in the applicant's house on 8 August 2000, and that of a resident of Gekhi detained on the same date, along with the applicants' relatives.", "The identity of the deceased and the violent nature of their deaths were acknowledged by the domestic authorities, who had instituted criminal proceedings into the murder, and were never disputed by the Government. The Court also notes that the formal date of the Musayev brothers' death, 12 September 2000, remained undisputed by the Government. 81. On the facts of the case, it is therefore clear that the applicants' relatives were taken into custody in apparent good health and their bodies later found showing signs of having met a violent death. The Court considers it established that the applicants' relatives died whilst detained by the federal forces.", "In the absence of any plausible explanation on the part of the Government as to the circumstances of the Musayev brothers' deaths, it further finds that the Government have not accounted for the deaths of Ali and Umar Musayev during their detention and that the respondent State's responsibility for these deaths is therefore engaged. 82. Accordingly, there has been a violation of Article 2 of the Convention in this respect. B. Alleged inadequacy of the investigation 1.", "Submissions of the parties 83. As regards the procedural aspect of Article 2 of the Convention, the applicants claimed that the authorities had defaulted in their obligation to carry out an effective investigation into the circumstances of the deaths of Ali and Umar Musayev. They argued that the investigation had fallen short of the Convention standards. In particular, it does not appear that the authorities adequately investigated the possible involvement of the military personnel in the killing of Ali and Umar Musayev. Furthermore, the identity of the generals in charge of the “sweeping” operation that had been conducted in the village of Gekhi on 8 August 2000 were never established.", "Moreover, the investigating authorities never attempted to eliminate substantial discrepancies between the accounts of the events of 8 August 2000 made by the first applicant and Major S. by confronting them. 84. The Government claimed that the investigation into the death of the applicants' relatives met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify the perpetrators. 2. The Court's assessment (a) General considerations 85.", "The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see McCann and Others, cited above, § 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, p. 329, § 105). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility. The authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigatory procedures (see İlhan v. Turkey [GC] no. 22277/93, § 63, ECHR 2000-VII).", "86. The investigation must be effective in the sense that it is capable of leading to the identification and punishment of those responsible (see Ögur v. Turkey [GC], no. 21954/93, § 88, ECHR 1999-III). The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death (with regard to autopsies, see, inter alia, Salman cited above, § 106; concerning witnesses, inter alia, Tanrikulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV, § 109; concerning forensic evidence, inter alia, Gül v. Turkey, no.", "22676/93, § 89, judgment of 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling below this standard. 87. In this context, there must also be an implicit requirement of promptness and reasonable expedition (see Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998-VI, § 102-04; and Mahmut Kaya v. Turkey, no. 22535/93, ECHR 2000-III, §§ 106-07).", "It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating the use of lethal force may generally be regarded as essential in maintaining public confidence in maintenance of the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. (b) Application in the present case 88. The Court observes that some degree of investigation was carried out into the killing of the applicants' relatives. It must assess whether that investigation met the requirements of Article 2 of the Convention.", "The Court notes in this respect that its knowledge of the criminal proceedings at issue is limited to the materials from the investigation file selected by the respondent Government (see paragraphs 57 - 58 above). Drawing inferences from the respondent Government's behaviour when evidence is being obtained (Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp.64-65, § 161), the Court will assess the merits of this complaint on the basis of the available information in the light of these inferences. 89. The Court notes that the authorities were immediately made aware of the detention of the Musayev brothers, as the first applicant personally visited the local administration, the district military commander's office and the district prosecutor's office in the days following 8 August 2000, this fact having not been disputed by the Government.", "However, despite the first applicant's numerous complaints, the authorities made no attempts to investigate the circumstances of the detention and disappearance of Ali and Umar Musayev during the period when they remained missing. 90. Moreover, the authorities were instantly aware of the deaths of the applicants' relatives, as the burial site in which the dead bodies were found was excavated in the presence of the police. The Court is struck by the fact that following the discovery on 13 September 2000 of four bodies which showed signs of having met a violent death, the authorities refused to institute criminal proceedings in this respect with reference to “the absence of the constituent elements of a crime”. It further notes that the official investigation was not commenced until 18 October 2000, which was more than two months after the detention of the applicants' relatives and more than a month after the discovery of their remains.", "The Court sees no reasonable explanation for such long delays where prompt action was vital. 91. The Court further notes that once the investigation was opened it was plagued with inexplicable shortcomings in taking the most essential steps. In particular, it is clear that no forensic examination or autopsy of the bodies was ever carried out. The Government alleged that after the applicants had buried their relatives, they had refused to disclose the location of the grave to the authorities and to allow a forensic examination.", "The Court observes in this respect that on 13 September 2000 the second applicant notified the local authorities and the police of his intention to excavate the burial site, according to a plan which he had obtained from a serviceman, and that the exhumation took place in the presence of a number of officials, including a police officer. The police could at least have ensured that proper forensic photographs be taken on the spot, but even this most basic action was not taken. Moreover, it does not appear that the scene of the incident at the applicants' house or the site where the remains of the Musayev brothers and two other men had been found was ever inspected by the investigating authorities in the context of the criminal proceedings. 92. The Court also finds that the investigation can only be described as dysfunctional when it came to establishing the extent of the military and security personnel's involvement in the deaths of the applicants' relatives.", "Indeed, although it was acknowledged by the domestic authorities that Ali and Umar Musayev had been apprehended by federal military officers in the course of a “sweeping” operation, delivered to the headquarters and left there (see paragraphs 33 – 34 above), it does not appear that any meaningful efforts were made to investigate the possible involvement of the aforementioned personnel in the murder. The Court is sceptical about the Government's submission that the investigating authorities had questioned a number of servicemen and officials of law-enforcement agencies who had worked in Chechnya at the material time, as the Government did not produce any documents relating to the interviews, such as transcripts of questioning, nor did they indicate the names of any of those officials or servicemen. The only document containing witness statements, namely a transcript of Major S.'s interview, was submitted to the Court by the applicants. 93. The Court specifically notes that, in breach of a prosecutor's order (see paragraph 35 above), the authorities failed to question military commander G., despite his apparently important role in the Musayev brothers' detention.", "The Court cannot accept the Government's argument that it had been impossible to question Mr G., as he had died in a terrorist attack. It notes in this respect that the investigation was opened on 18 October 2000 and, upon receipt of the witness statements of Major S. on 27 November 2000, the prosecutor of the Urus-Martan District ordered Mr G. to be questioned, whilst, according to the Government, Mr G. was killed on 29 November 2001. No reasonable explanation was submitted to the Court as to why the investigators failed to comply with the prosecutor's order for a whole year. 94. Furthermore, there was a substantial delay in granting the status of victim to the first applicant.", "Whilst the investigation commenced on 18 October 2000, it was not until August 2002 that the first applicant was declared a victim in the case, which afforded her minimum guarantees in the criminal proceedings. The Court finds the Government's statement that the first applicant had been granted the status of victim on 20 October 2000 (see paragraph 50 above) unreliable, as they did not produce any documentary evidence in support of this affirmation, whilst the applicants, for their part, submitted a copy of the decision of 22 August 2002 declaring the first applicant a victim in criminal case no. 24047. Moreover, it appears that before – and even after – the said decision was taken, the information concerning the progress in the investigation was provided to the first applicant only occasionally and fragmentarily. 95.", "Finally, the Court observes that the investigation remained pending from October 2000 to August 2002, when it was suspended for over two years and not resumed until October 2004. After that it remained pending at least until August 2006. Between October 2000 and August 2006 the investigation was adjourned and reopened at least seven times. The prosecutors on several occasions ordered certain steps to be taken (see paragraphs 35 and 46 above), but there is no evidence that those instructions were ever complied with. 96.", "In the light of the foregoing, and with regard to the inferences drawn from the respondent Government's submission of evidence, the Court is bound to conclude that the authorities failed to carry out a thorough and effective investigation into the circumstances surrounding the deaths of Ali and Umar Musayev. It accordingly dismisses the Government's preliminary objection as regards the applicants' failure to exhaust domestic remedies within the context of the criminal proceedings, and holds that there has been a violation of Article 2 of the Convention on that account. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION A. Submissions of the parties 97. The applicants next alleged that their relatives had been ill-treated after having been detained, which constituted a violation of Article 3 of the Convention.", "They referred to the medical certificate of death issued on 8 October 2001 in respect of Umar Musayev, confirming that there had been multiple stab wounds and bruises on the latter's head and chest. They further submitted that the authorities had failed to conduct an effective investigation in this respect, in violation of their procedural obligation under Article 3 of the Convention. 98. The Government made no comments as regards the document referred to by the applicants. They relied on a reply of the Prosecutor General's Office stating that the investigation had not established that the Musayev brothers had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention.", "B. The Court's assessment 1. Alleged ill-treatment of Umar Musayev 99. The Court reiterates that the authorities have an obligation to protect the physical integrity of persons in detention. Where an individual, when taken into police custody, is in good health, but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused.", "Otherwise, torture or ill-treatment may be presumed in favour of the claimant and an issue may arise under Article 3 of the Convention (see Tomasi v. France, judgment of 27 August 1992, Series A no. 241-A, pp. 40-41, §§ 108-11, and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V). 100.", "The Court has established above that the applicants' relatives were taken into custody in good health, without any injuries (see paragraph 79 above). It further notes that the medical certificate of death (no. 51) issued on 8 October 2001 in respect of Umar Musayev confirmed the presence of various injuries on his body. The Government provided no plausible explanation as to the origin of those injuries, which must therefore be considered attributable to a form of ill-treatment for which the authorities were responsible. 101.", "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. 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 Salman, cited above, § 114). The Court has previously had before it cases in which it has found that there has been treatment which could only be described as torture (see Aksoy, cited above, p. 2279, § 64; Selmouni, cited above, § 105; Dikme v. Turkey, no. 20869/92, §§ 94-96, ECHR 2000-VIII; and, among recent authorities, Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 116, ECHR 2004‑IV (extracts)).", "102. Having regard to the document submitted by the applicants, which certified the presence of multiple injuries and stab wounds on Umar Musayev's body, the Court finds that the treatment inflicted on him involved very serious and cruel suffering that may be characterised as torture within the meaning of Article 3 of the Convention. 103. Accordingly, there has been a breach of Article 3 of the Convention in this regard. 104.", "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 (see Salman, cited above, § 117). 2. Alleged ill-treatment of Ali Musayev 105. The Court observes that the applicants did not submit any documentary evidence, such as medical certificates, confirming the presence of injuries on Ali Musayev's body. It is therefore unable to establish, to the necessary degree of proof, that Ali Musayev had been ill-treated, and finds that this complaint has not been substantiated.", "106. Against this background, the Court finds no violation of Article 3 of the Convention in respect of Ali Musayev. IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 107. The applicants complained that Ali and Umar Musayev had been detained in breach of the guarantees of Article 5 of the Convention, the relevant parts of which provide: “1.", "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.", "Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” 108.", "The applicants stated that there had been no grounds for their relatives' arrest or detention, and in particular, no reason to believe that they had committed any criminal offence. At the time of their apprehension, the Musayev brothers had been at home with other family members, had identity papers, had no firearms, and had not attempted to assist A., the man who had run into their house, or to resist the federal servicemen. They voluntarily reported to the district office of the Interior for questioning. Furthermore, the officers who had taken the Musayev brothers away had not given any reason for their detention. The applicants thus argued that their relatives had been detained in breach of the guarantees of Article 5 of the Convention.", "109. The Government conceded that the applicants' two relatives had been detained by the federal servicemen and escorted to the temporary headquarters for questioning. However, they argued that after the Musayev brothers had been delivered to the headquarters “their whereabouts had been unknown” and that the investigation “had obtained no evidence that they had been detained in violation of Article 5”. 110. The Court has frequently emphasised the fundamental importance of the guarantees contained in Article 5 for securing the rights of individuals in a democracy to be free from arbitrary detention at the hands of the authorities.", "In that context, it has repeatedly stressed 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. To minimise the risks of arbitrary detention, Article 5 provides a corpus of substantive rights intended to ensure that the act of deprivation of liberty is amenable to independent judicial scrutiny and secures the accountability of the authorities for that measure. The unacknowledged detention of an individual is a complete negation of these guarantees and discloses a most grave violation of Article 5 (see, among other authorities, Çakıcı cited above, § 104). 111. It has been established above that the applicants' relatives were apprehended on 8 August 2000 by federal servicemen and were not seen until 13 September 2000, when their corpses were found in a mass grave.", "The Government produced no formal acknowledgement of or justification for the detention of the applicants' relatives during the period in question. The Court thus concludes that Ali and Umar Musayev were victims of unacknowledged detention in complete disregard of the safeguards enshrined in Article 5, and that this constitutes a particularly grave violation of their right to liberty and security enshrined in Article 5 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 112. The applicants complained about the absence of effective remedies in respect of the violations alleged under Articles 2, 3 and 5, contrary to Article 13 of the Convention. This Article provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 113.", "The applicants contended that the investigation into the murder of Ali and Umar Musayev had been pending with no tangible results for several years, and that their attempt to obtain compensation for non-pecuniary damage for the unlawful detention of their relatives had proved unsuccessful, and that they therefore had no effective remedies against the aforementioned violations, contrary to Article 13 of the Convention. 114. The Government argued that the applicants had had effective remedies at their disposal enshrined in Article 13 of the Convention and that the authorities had not prevented them from using those remedies. In particular, the first applicant was declared a victim and a civil claimant in the criminal case opened in connection with the killing of her sons and she had received reasoned replies to all her complaints. Besides, the applicants had had an opportunity to complain of the actions or omissions of the investigating authorities in court.", "115. 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 comply with their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by acts or omissions by the authorities of the respondent State (see Aksoy, cited above, § 95).", "116. Given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life and infliction of treatment contrary to Article 3, including effective access for the complainant to the investigation procedure leading to the identification and punishment of those responsible (see Anguelova v. Bulgaria, no. 38361/97, §§ 161-162, ECHR 2002-IV; Assenov and Others, cited above, § 117; and Süheyla Aydın v. Turkey, no. 25660/94, § 208, 24 May 2005). The Court further reiterates that the requirements of Article 13 are broader than a Contracting State's obligation under Article 2 to conduct an effective investigation (see Orhan, cited above, § 384).", "117. In view of the Court's findings above with regard to Article 2 and Article 3, in so far as the treatment inflicted on Umar Musayev was concerned, these complaints were clearly “arguable” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52). The applicants should accordingly have been able to avail themselves of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation for the purposes of Article 13. 118.", "It follows that in circumstances where, as in the present case, the criminal investigation into the death was ineffective (see paragraph 96 above) and the effectiveness of any other remedy that may have existed, including the civil remedies, was consequently undermined, the State has failed in its obligation under Article 13 of the Convention. 119. Consequently, there has been a violation of Article 13 of the Convention in connection with Articles 2 and 3 of the Convention, in so far as this latter provision was breached as a result of the treatment inflicted on Umar Musayev. 120. As regards the applicants' reference to Article 5 of the Convention, the Court refers to its findings of a violation of this provision set out above.", "It considers that no separate issues arise in respect of Article 13 read in conjunction with Article 5 of the Convention, which itself contains a number of procedural guarantees related to the lawfulness of detention. VI. COMPLIANCE WITH ARTICLE 38 § 1 (a) OF THE CONVENTION 121. 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, cited above, § 70). 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 § 1 (a) of the Convention (see Timurtaş v. Turkey, no. 3531/94, § 66, ECHR 2000-VI). In a case where the application raises issues of the effectiveness of the investigation, the documents of the criminal investigation are fundamental to the establishment of facts and their absence may prejudice the Court's proper examination of the complaint both at the admissibility stage and at the merits stage (see Tanrıkulu, cited above, § 70). 122. The Court observes that it has on several occasions requested the Government to submit a copy of the investigation file opened into the killing of the applicants' relatives.", "The evidence contained in that file was regarded by the Court as crucial to the establishment of the facts in the present case. In reply, the Government produced only copies of procedural decisions instituting, suspending and reopening criminal proceedings, those of investigators' decisions taking up the criminal case and letters informing the first applicant of the suspension and reopening of the criminal proceedings in the case. They refused to submit any other documents, such as transcripts of witness interviews, reports on investigative actions and others, with reference to Article 161 of the Russian Code of Criminal Procedure. 123. The Court notes in this connection that the Government did not request the application of Rule 33 § 2 of the Rules of Court, which permits a restriction on the principle of the public character of the documents deposited with the Court for legitimate purposes, such as the protection of national security and the private life of the parties, and the interests of justice.", "The Court further notes that the provisions of Article 161 of the Code of Criminal Procedure, to which the Government referred, do not preclude disclosure of the documents from a pending investigation file, but rather set out a procedure for and limits to such disclosure. The Government failed to specify the nature of the documents and the grounds on which they could not be disclosed (see, for similar conclusions, Mikheyev v. Russia, no. 77617/01, § 104, 26 January 2006). The Court also notes that in a number of comparable cases that have been reviewed by or are pending before the Court, similar requests have been made to the Russian Government and the documents from the investigation files submitted without reference to Article 161 (see, for example, Khashiyev and Akayeva v. Russia cited above, § 46, and Magomadov and Magomadov v. Russia (dec.), no. 58752/00, 24 November 2005).", "For these reasons, the Court considers the Government's explanations concerning the disclosure of the case file insufficient to justify withholding the key information requested by the Court. 124. Having regard to the importance of cooperation by the respondent government in Convention proceedings and the difficulties associated with the establishment of the facts in cases such as the present one, the Court finds that the Russian Government fell short of their obligations under Article 38 § 1 (a) of the Convention on account of their failure to submit copies of the documents requested in respect of the murder of Ali and Umar Musayev. VII. 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 1. Pecuniary damage 126. The applicants claimed compensation for lost earnings of their breadwinners, Ali and Umar Musayev, in the amount of EUR 100,000 for each of them and for each of the three minor children of the third applicant and Ali Musayev. The applicants did not substantiate the amount sought; nor did they indicate whether their two relatives had been gainfully employed at the time of their arrest, and, if so, what occupation they had had and what wages they had received.", "127. The Government argued that the applicants' claims under this head were speculative, excessive and unfounded. They also pointed out that the children of the third applicant and Ali Musayev were not listed among the applicants, and therefore their claims should not be taken into account. 128. The Court observes that it has awarded compensation in respect of lost earnings in cases where a violation of Article 2 in its substantive aspect has been found (see, among other authorities, Salman cited above, § 137, or Imakayeva v. Russia, no.", "7615/02, § 213, 9 November 2006). However, in those cases the applicants had produced detailed and reliable calculations in support of their claims (see Salman cited above, § 135, or Imakayeva cited above, §§ 210-11), whereas in the present case the applicants, while claiming a considerable amount, provided no information or documents to corroborate their claims. In the absence of any relevant information which would enable the Court to assess the amount of the pecuniary damage allegedly sustained by the applicants, it makes no award under this head. 2. Non-pecuniary damage 129.", "The applicants claimed EUR 50,000 each in respect of non-pecuniary damage for the moral suffering which they had endured as a result of the loss of their close relatives. 130. The Government considered the applicants' claims to be excessive and submitted that should the Court find a violation of the applicants' rights, a token amount would suffice. 131. The Court observes that it has found a violation of Articles 2, 3, 5 and 13 of the Convention on account of the unacknowledged detention and death of the applicants' relatives, the treatment endured by one of the applicant's relatives before he had died and the absence of effective remedies to secure domestic redress for the aforementioned violations.", "The Court has also found a violation of Article 38 § 1 (a) of the Convention on account of the Government's failure to submit the materials requested by the Court. The applicants must have suffered anguish and distress as a result of all these circumstances. Having regard to these considerations, the Court awards, on an equitable basis, EUR 45,000 to each of the first and second applicants and EUR 40,000 to the third applicant for non-pecuniary damage, plus any tax that may be chargeable on these amounts. B. Costs and expenses 132.", "The applicants claimed EUR 10,330 for the costs and expenses incurred by them at the domestic level, which included the expenses for the medical treatment of the second applicant, the amount paid for the plan of the burial site, and transport and postal expenses. They did not submit any documents in support of this claim. The applicants also claimed EUR 12,413 in respect of costs and expenses relating to their legal representation in the proceedings before the Court. They submitted a certificate issued by the Director of the Moscow Bar Association confirming that under the contract between the applicants and their representative the lawyer's fee was equal to the aforementioned amount. 133.", "The Government contested the applicants' claim for EUR 10,330, stating that it had not been corroborated by any documentary evidence. They further argued that the amount of the lawyer's fee could not be considered as reasonable and necessary and that it was much higher than the usual level of fees payable in Russia for legal services. 134. The Court reiterates that in order for costs and expenses to be included in an award under Article 41, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, McCann, cited above, § 220). 135.", "The Court notes firstly that the applicants have not submitted any documents to substantiate their claim for the amount of EUR 10,330. It therefore accepts the Government's argument and makes no award in this respect. As regards the applicants' claim for costs relating to their legal representation before the Court, the applicants submitted a certificate in support of this claim. However, they did not submit any calculations, or a schedule of costs which would indicate the time actually spent by the applicants' lawyer on dealing with their case and the applicable rates, or any document confirming that they had actually paid the amount indicated. Furthermore, they submitted only one set of observations during the proceedings before the Court and it does not appear those observations involved much effort on the part of the applicants' representative or required much research.", "In such circumstances, having regard to the above criteria and the complexity of the case, the Court awards the applicants EUR 1,000 for costs and expenses, less EUR 715 received by way of legal aid from the Council of Europe, plus any tax, including value-added tax, that may be chargeable. C. Default interest 136. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Dismisses the Government's preliminary objection of non-exhaustion; 2.", "Holds that there has been a violation of Article 2 of the Convention as regards the killing of Ali and Umar Musayev; 3. Holds that there has been a violation of Article 2 of the Convention on account of the authorities' failure to carry out an adequate and effective investigation into the circumstances surrounding the killing of Ali and Umar Musayev; 4. Holds that there has been a violation of Article 3 of the Convention on account of the treatment suffered by Umar Musayev; 5. Holds that no separate finding is necessary under Article 3 of the Convention in respect of the alleged deficiencies in the investigation into the treatment suffered by Umar Musayev; 6. Holds that there has been no violation of Article 3 of the Convention in respect of Ali Musayev; 7.", "Holds that there has been a violation of Article 5 of the Convention in respect of Ali and Umar Musayev; 8. Holds that there has been a violation of Article 13 in respect of the alleged violations of Article 2 and the alleged violation of Article 3 of the Convention in respect of Umar Musayev; 9. Holds that no separate issue arises under Article 13 in respect of the alleged violation of Article 5 of the Convention; 10. Holds that there has been a failure to comply with Article 38 § 1 (a) of the Convention in that the Government refused to submit the documents requested by the Court; 11. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 45,000 (forty-five thousand euros) to each of the first and second applicants and EUR 40,000 (forty thousand euros) to the third applicant in respect of non-pecuniary damage; (ii) EUR 285 (two hundred and eighty-five euros) in respect of costs and expenses; (iii) any tax, including value-added 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; 12.", "Dismisses the remainder of the applicants' 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. Søren NielsenChristos RozakisRegistrarPresident" ]